2017 ALL MR (Cri) 752
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

B. R. GAVAI AND KUM. INDIRA JAIN, JJ.

Jitendra @ Balu s/o. Uttamrao Nagrale Vs. The State of Maharashtra

Criminal Appeal No.256 of 2015

24th January, 2017.

Petitioner Counsel: Shri R.M. DAGA
Respondent Counsel: Mrs. M.H. DESHMUKH, A.P.P.

(A) Penal Code (1860), Ss.302, 307, 34 - Murder - Appeal against conviction - Accused who were husband and father of deceased allegedly killed deceased and injured her mother by setting them on fire - Relations between both accused and deceased and her mother were strained - Two dying declarations of deceased that accused came together in her house and beat her and her mother and then set them on fire - However, in first DD, she attributed role of pouring kerosene to her father and setting her on fire to her husband while in later DD, she attributed role of pouring kerosene and setting them ablaze to both accused - Therefore, both DDs, not reliable - Though injured mother of deceased stated that husband of deceased admitted them in hospital, she denied same in her evidence - Material omission of beating at hands of accused before incident in her police statement - Version of injured that alleged incident occurred on ground floor of house, while as per spot panchanama, it was apparently on first floor - Guilt of accused, not proved beyond reasonable doubt - Conviction quashed. (Paras 18, 20, 21, 22)

(B) Evidence Act (1872), S.32 - Penal Code (1860), Ss.302, 307, 34 - Dying declaration - Reliability - Accused persons allegedly killed deceased by pouring kerosene and setting her on fire - Two DDs of deceased implicating accused for alleged crime - However, manner of incident which deceased narrated in first DD is entirely different from manner of incident stated in later DD - Both DDs are inconsistent in material particulars and hence, not reliable. 2005 ALL MR (Cri) 1599 Rel. on. (Para 17)

Cases Cited:
Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, 2012 ALL MR (Cri) 2188 [Para 16]
Munnabee w/o Shoukat Tadvi Vs. State of Maharashtra, 2016 ALL MR (Cri) 3822=2016(5) Mh.L.J. (Cri.) 637 [Para 16]
Suresh S/o. Arjun Dodokar (Sonar) Vs. State of Maharashtra, 2005 ALL MR (Cri) 1599 [Para 17]


JUDGMENT

Kum. Indira Jain, J.:- This appeal is preferred by appellant/accused no.1 against the judgment and order dated 04/06/2015 passed by the learned Additional Sessions Judge, Yavatmal in Sessions Trial No.89/2013. In all there were two accused in the case.

2. By the said judgment and order, the learned Additional Sessions Judge convicted the accused for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code. Both the accused were sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for one year for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and rigorous imprisonment for five years and to a fine of Rs.5,000/- each, in default to suffer rigorous imprisonment for one year for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code.

3. For the sake of convenience, we shall refer the appellant in his original status as accused no.1, as he was referred before the trial Court.

4. Prosecution case briefly stated is as under :

(I) Deceased Kalpana was wife of accused no.1 and daughter of accused no.2. Ratnakala is wife of accused no.2 and mother-in-law of accused no.1. Kalpana was married to Jitendra in the year 2010. The couple were blessed with a female child. As there were matrimonial bickerings, marriage between Kalpana and Jitendra was dissolved by divorce somewhere in the year 2013.

(II) Incident occurred on 23/03/2013 at around 21:30 hours at Samta Nagar, Yavatmal. That time, Kalpana and her mother Ratnakala were residing on ground floor and both the accused were staying on the first floor of a double storied house. According to prosecution, accused entered the house. Kalpana and Ratnakala were present. Accused picked up quarrel with them. Accused no.2 Ashok had matrimonial dispute with his wife Ratnakala. He poured kerosene from plastic can on the person of Kalpana and Ratnakala and accused Jitendra set them on fire with 'Sutli Tembha'.

(III) After the incident, both Kalpana and Ratnakala were admitted to Civil Hospital, Yavatmal. An intimation of medico legal case was passed on to Wadgaon Road Police Station. Police Head Constable Pramod Dattatray Ingole (PW-7) rushed to the hospital. He confirmed from the Medical Officer on duty, whether patients Kalpana and Ratnakala were fit to give their statements. Medical Officer examined both the patients and certified that they were fit to give their statements. Thereafter, Head Constable Ingole recorded statements of Kalpana and Ratnakala. He returned with the statements to police station and lodged report. Crime No.140/2013 was registered under Section 307 read with Section 34 of the Indian Penal Code.

(IV) Accused were arrested. Investigation was taken over by Police Inspector Naresh Pimpalkar (PW-17). Spot panchnama was drawn in the presence of panch witnesses. Burnt matchstick, cover of matchbox, torn red colour Paijama into two pieces, burnt pieces of 'Sutli', plastic can containing kerosene and one stick burnt at its one end, were lying on the spot. Those articles were seized. Accused produced their clothes. Seizure-panchnamas of clothes of accused were recorded.

(V) On 25/03/2013, Executive Magistrate was requested to record dying declarations of both the victims. Accordingly, PW-15 Arun Mawale had been to Sewagram Hospital, Wardha, where the patients were shifted, and recorded their statements after ensuring from the Medical Officer that they were fit to give dying declarations. Kalpana succumbed to injuries on 27/03/2013. The offence under Section 302 of the Indian Penal Code was then added. Investigating Officer recorded statements of material witnesses. Tahsildar was asked to draw a map of the spot. Seized muddemal was sent to forensic laboratory for analysis. Chemical Analyzers Reports were received. On completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate First Class, Yavatmal who in turn committed the case for trial to the Court of Sessions.

5. Charge came to be framed against the accused vide Exh.6. They pleaded not guilty and claimed to be tried. The factum of marriage between Kalpana and accused no.1-Jitendra is not in dispute. It is also an admitted fact that there was matrimonial discord between accused no.2 and his wife Ratnakala, another victim of assault. Regarding incident, the defence of accused was of total denial and false implication. Accused no.1 raised specific defence in his statement under Section 313 of the Code of Criminal Procedure that Kalpana and Ratnakala used to quarrel between them and being tired of harassment at the hands of Ratnakala, Kalpana committed suicide. It is submitted that to avoid prosecution, Ratnakala lodged false report and impleaded him in a false case.

6. Prosecution examined in all 17 witnesses to substantiate the guilt of accused. Accused did not enter the witness-box and chose not to examine any witness in support of his defence. On going through the evidence adduced by the prosecution, learned Additional Sessions Judge convicted the accused, as stated in paragraph 1 above. Being aggrieved thereof, accused no.1 has preferred this appeal. The learned A.P.P. and the learned Counsel for appellant stated that no appeal is filed by accused no.2.

7. We have heard the learned Counsel for the parties. On careful consideration of the facts and circumstances of the case, arguments advanced by learned Counsel for appellant and learned A.P.P. for the State and reasonings recorded by the trial Court, for the below mentioned reasons, we are of the opinion that prosecution has not proved the guilt of accused beyond reasonable doubt against accused no.1.

8. The prosecution case is mainly based on dying declarations of Kalpana recorded by PW-7 Head Constable Ingole and PW-15 Executive Magistrate Arun Mawale. The statements of Ratnakala, victim of assault and injured, were also recorded by Head Constable Ingole and Executive Magistrate Mawale. Since the victim survived, those statements can be used under Section 161 of the Code of Criminal Procedure to bring omissions and contradictions. Prosecution also examined PW-10 Ratnakala as an eye-witness to the incident.

9. Assailing the evidence of Head Constable Ingole and Executive Magistrate Mawale, the learned Counsel for appellant submitted that both the dying declarations are inconsistent and do not pass the test of reliability as required in law. He submits that in case of multiple dying declarations, Court cannot pick and choose any one dying declaration. Another submission is that dying declaration (Exh.70) was not read over to the victim and there is no endorsement to the effect that it was read over and admitted to be true and correct by the victim. In such circumstances, it is stated that dying declaration is suspicious and no reliance can be placed on the same.

10. In response to the submissions advanced on behalf of appellant, learned A.P.P. contended that there is no reason for the Police Officer and the Executive Magistrate to grind an axe against the accused. Learned A.P.P. refers to printed question no.8 of dying declaration (Exh.70) and submits that the same was read over to the victim and she admitted the same to be correct.

11. Needless to state that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross-examination. It is a settled law that once the court comes to a conclusion that dying declaration is the truthful version as to the circumstances of the death and the assailant of victim, no further corroboration is required to such a dying declaration.

12. Keeping in view these legal parameters, we now advert to the admissibility, reliability and truthfulness of dying declarations (Exhs.38 and 70) recorded by the Head Constable and the Executive Magistrate respectively.

13. With the assistance of the learned Counsel for the parties, we have gone through the evidence of PW-7 Head Constable Ingole and PW-15 Executive Magistrate Mawale. PW-7 Head Constable Ingole received memo from the Government Hospital on 23/03/2013 to record dying declarations of Kalpana and Ratnakala. He made entry in the station diary and went to the hospital. He states that after ascertaining the condition of both the patients, he recorded their dying declarations. The dying declaration of Kalpana is proved by the witness at Exh.38. In this dying declaration, Kalpana stated before the Head Constable that on 23/03/2013 at 09:30 p.m., when she and her mother were in the house, her husband Jitendra and father Ashok entered the house. Her mother asked accused no.1, why did he come, and on that both the accused assaulted her and her mother. She then stated that her father poured kerosene on her and her mother and her husband set them on fire with 'Sutli Tembha'. The dying declaration further shows that thereafter Kalpana and her mother started for hospital. They were waiting for Auto near Petrol Pump of Grampanchayat Wadgaon. That time, her cousin uncle and grand-father came, they stopped an Auto and her husband admitted them to hospital. As stated by Head Constable Ingole, statement of Kalpana was recorded on 24/03/2013 at 02:00 a.m. Endorsement on Exh.38 regarding medical fitness was made by Dr. Khasbage. Prosecution did not examine Dr. Khasbage. It is admitted by Head Constable Ingole in the cross-examination that due to serious burn injuries, Kalpana was speaking in low voice. He also admits that Memos (Exhs.35 and 36) bear signatures of Medical Officer Dr. Khasbage and both the patients were under treatment of Dr. Khasbage.

14. In the above backdrop, principal question here is, whether dying declaration (Exh.38) is voluntary, free from doubt and can be relied upon as true and correct version of the victim. In this connection, evidence of PW-15 Executive Magistrate Arun Mawale would be relevant. He received requisition from Sewagram Police Station to record dying declaration of Kalpana on 25/03/2013. He visited Sewagram Hospital. Dr. Robin was on duty. He requested the Doctor to examine Kalpana and Ratnakala and give the report, whether patients are conscious and oriented to give their statements. Medical Officer examined Kalpana and gave endorsement that she is conscious and oriented to give her statement. The evidence of Executive Magistrate shows that before proceeding to record her dying declaration, he subjectively satisfied himself that she was fit to give her statement and then recorded dying declaration (Exh.70).

15. Before the Executive Magistrate, Kalpana stated that she was a Staff Nurse. Her husband is a vegetable seller. Before three years, she was married to accused no.1. After eight days of marriage, matrimonial dispute between the duo started. They have a daughter from the said wedlock. On 23/03/2013 at 09:00 p.m., her father was at the upper floor of the house. Accused no.1 was with him. Her two year old daughter had gone to upper floor. Kalpana went up stairs to bring her daughter. That time both the accused beat her and tried to pour kerosene kept in a can on her person. She came to the ground floor. Accused followed her. Her mother tried to rescue her and that time, both the accused beat her mother. She then states that both the accused poured kerosene on her person and on the person of her mother and set them ablaze. She stated that after the incident, accused no.1 admitted them to the hospital and accused no.2 fled away.

16. On careful scrutiny of dying declaration (Exh.70) recorded by PW-15 Executive Magistrate, it is apparent that the statement was not read over to the victim and she did not admit the same to be correct. Printed question no.8 remained unanswered and this is an inherent defect in the dying declaration (Exh.70). In view of the decisions of this Court in Abdul Riyaz Abdul Bashir vs. State of Maharashtra [2012 ALL MR (Cri) 2188] and Munnabee w/o Shoukat Tadvi vs. State of Maharashtra [2016(5) Mh.L.J. (Cri.) 637] : [2016 ALL MR (Cri) 3822], the dying declaration thus becomes suspicious and no reliance can be placed on the same.

17. Reverting to the dying declaration (Exh.38) recorded by PW-7 Head Constable Ingole, it can be seen that manner of incident, which Kalpana narrated before the Executive Magistrate, is entirely different than the manner of incident disclosed before the Head Constable. Both the dying declarations are inconsistent in material particulars and do not pass all the tests of reliability as required in law. This Court in the case of Suresh s/o Arjun Dodokar (Sonar) vs. State of Maharashtra [2005 ALL MR (Cri) 1599] observed in paragraph 9 thus :

"In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself."

18. In the case on hand, initially Kalpana attributed role of pouring kerosene to her father and setting her on fire to her husband. Later, she changed the version and attributed role of pouring kerosene and setting her ablaze to both the accused. Her changing version on the very genesis makes prosecution story doubtful and the dying declarations (Exh.38 and Exh.70) suspicious.

19. In the above backdrop, no reliance can be placed on either of the dying declarations to base a conviction of the accused under Section 302 of the Indian Penal Code.

20. Prosecution examined PW-10 Ratnakala as an eyewitness to the incident. She is also an injured witness. Before considering her evidence, important fact cannot be lost sight of that she is highly interested witness being mother of victim Kalpana and had a matrimonial discord with her husband accused no.2-Ashok. Her evidence indicates that she did not like visits of accused no.1 to her house as divorce had taken place between accused no.1 and Kalpana. As stated by Ratnakala, on 23/03/2013 between 09:00 and 09:30 p.m., both the accused came to her house and she asked Jitendra not to come to her house, as divorce had taken place between him and her daughter. She stated that both the accused then started beating her and Kalpana. They poured kerosene on her person and on the person of Kalpana and set them on fire with 'Tembha'. Her evidence shows that due to burn injuries, they poured water on their person. Thereafter, both went to petrol pump and came to Government Hospital in an Auto. Though, she denied that accused Jitendra brought them to hospital, she was contradicted with her police statement, in which she stated that Jitendra brought them to Government Hospital. It is admitted by Ratnakala that she shouted when she was burnt. Though 8 to 10 persons were residing in adjoining house, no one turned up. Various omissions and contradictions have been brought in her cross-examination. She admits that her statement was recorded by Head Constable Ingole and also by Executive Magistrate Shri Mawale. Since the victim has survived, both the statements lost their significance under Section 32 of the Indian Evidence Act and can be used for the limited extent to prove omissions and contradictions. Through the evidence of the Investigating Officer, defence has proved the omissions and contradictions brought in the evidence of Ratnakala. It is stated by PW-17 Police Inspector Pimpalkar that Ratnakala did not state in her statement that both the accused together came in the house and beat her and Kalpana. This is a material omission, which goes to the root of the prosecution case.

21. There is one more factor to doubt the testimony of Ratnakala. This relates to the spot of occurrence of incident. Spot-panchnama (Exh.24) is proved by PW-3 Akash Chintawar, a panch-witness. He did not support prosecution in the beginning. In the cross-examination by the learned A.P.P., he admitted his signature and the spot-panchnama was exhibited. It can be revealed from the spot-panchnama that entire incident took place on the first floor of the house, whereas, the evidence of PW-10 Ratnakala shows that incident occurred on the ground floor of the house, where she was residing with her daughter. The change of spot is material in the present case, as articles seized at the time of recording spot-panchnama were found by the Investigating Officer lying on the spot on ground floor and not on the first floor. If a spot-panchnama has to be believed, the place of occurrence is apparently the first floor of the house and if the evidence of PW-10 is to be accepted as true, then spot of incident has to be the ground floor of the house. This would clearly indicate that somewhere the truth is being suppressed.

22. In the above premise, we come to a conclusion that prosecution has miserably failed to bring home the guilt of accused no.1 beyond reasonable doubt and the judgment and order of conviction against him would be unsustainable in law. Hence, the following order :

i. The criminal appeal is allowed.

ii. The conviction and sentence awarded to the appellant/accused for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code vide judgment and order dated 04/06/2015 passed by Additional Sessions Judge, Yavatmal in Sessions Trial No.89/2013 are quashed and set aside and the appellant/ accused is acquitted of the offences.

iii. The fine amount, if paid, be refunded to the accused.

iv. The order passed by the learned trial Judge insofar as disposal of property is concerned, is maintained.

v. The appellant is ordered to be released and set at liberty forthwith, if not required in any other case.

Appeal allowed.