Bombay High Court Sunil Kashinath Raimale vs State Of Maharashtra on 17 November, 2005Equivalent citations: 2006 CriLJ 589 Author: N Dabholkar Bench: N Dabholkar, S Naik
N.V. Dabholkar, J.
1. Appeal Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment and order dated 28.10.2004 delivered by 3rd Ad Hoc Additional Sessions Judge, Jalgaon, in Sessions Case No.69/2004. By the impugned judgment, trial Court has held appellant guilty for offences punishable under Section 302, 498A of IPC and sentenced him to suffer life imprisonment and rigorous imprisonment for 3 years on respective counts. In addition, he is also sentenced to fine of Rs.5,000/- on each count and rigorous imprisonment for two months in case of default also on each count.
2. The incident in question took place on 29.1,2004 at about 7 or 7-30 a.m. at the place of accused i.e. village Punkheda Tq. Raver Dist. Jalgaon. There is no dispute that victim Sarlabai was married to appellant -accused about 10/11 years ago and the couple is gifted with 3 children, a son and two daughters. As admitted by PW 3 Vasant (father of the deceased), eldest son was aged 10 years and daughters were aged 7 and 5 years at the time of alleged incident.
So far as incident is concerned, statement: of victim recorded by PW 5 Devendra Patil, then PSI attached to Zilla Peth Police Station, on 29.1.2004 between 13-20 to 13 40 hours at Civil Hospital. Jalgaon, was treated as FIR and offence was registered on the basis of the same. In the said dying declaration, victim has given a detailed story. She claimed that since about one month prior to the alleged incident, husband had started demanding divorce by expressing that he wanted to many an educated girl. He was serving at Muktainagar Kanya Shala at the material time. On 26.1.2004 at about 3 p.m., husband had inflicted an injury on the left arm of victim by using sickle as a weapon. Even on 28.1.2004 at about 6p.m. husband had caught victim by hair and struck her head on the wall. On that evening, husband had departed for the place of his sister and returned only by about 9-30 p.m. No complaints were lodged about these earlier incidents.
On 29.1.2004 at about 7-30 a.m., husband again raised his demand for divorce. She was abused, in filthy language. Wife showed her disinclination towards the proposal of divorce by pointing out that they already have 3 children arid now they can not think of separation. According to Sarlabai, thereafter husband poured kerosene upon her person from a container and ignited her wearing apparel by using matchstick and ran away. She ran in the courtyard in burning condition when one Sopan Koli extinguished her.by using a Chaddar. Thereafter, her father arrived on the scene, who took her initially to Rural Hospital, Raver, and then to Government hospital, Jalgaon.
Upon completion of investigation into this offence, chargesheet was filed against accused, who was tried for offences punishable u/ss. 302, 498-A of IPC by 5th Ad Hoc Additional Sessions Judge, Jalgaon, and upon finding of guilty, was convicted, as described earlier.
3. In order to substantiate the charges, prosecution has relied upon oral evidence of as many as 13 witnesses, who can be described in brief as follows in the order of their importance for the purpose of prosecution:
PW 4 Vijay Patil is Police Patil of Punkheda. He claims to have reached the location by accident, to have heard victim Sarla, who accused her husband of having set her on fire and who also gave an intimation to that effect to father of Sarla namely Vasant Thakane (PW 4). The father has complimented the deposition of Police Patil.
There are two recorded dying declarations first one was recorded by PSI Devendra Patil (PW 5) and this dying declaration (Exh. 23) was treated as FIR. PSI Patil has also carried out part of the investigation. Second dying declaration was recorded by PW 9 Ramlal Brahmane. The dying declaration is at Exhibit 36. These two dying declarations were recorded while Sarla was admitted at Civil Hospital, Jalgaon. Those are recorded with a gap of hardly 5 minutes; the first one between 13-20 to 13-40 hours and second one between 13-45 to 14-00 hours. It can be said that these dying declarations are recorded within 7 to 8 hours from the occurrence, which fact is laid emphasis upon by the learned prosecutor.
There is one more dying declaration recorded incomplete. It was tried to be recorded by Executive Magiatrate, Raver, while patient was inltialy taken to Rural Hospital, Raver, PW 12 Dr. Gopal Mahajan has deposed about the same, who was medical officer in-charge. To the Police as well as to the Executive Magistrate, Dr. Mahajan has certified that patient was semi conscious and not in a position to make a statement (Exhs. 43 & 44). It appears that Executive Magistrate still tried to record a statement and failed to record the same. The statement recorded is only to the effect.
Vernacular matter omitted.
The incomplete dying declaration is at Exhibit 44.
Dr. Uihas Taskhedkar ( PW 11) was casualty medical officer at Civil Hospital, Jalgaon, when both the dying declaration (Exhs. 23 & 36) were recorded by respective officers and he has certified about fitness of patient to make a statement.
Panch Asha Nanaware (PW 1) was present when inquest was drawn. PW 2 Ashok is Police Head Constable and he had carried Muddemal property to Forensic Science Laboratory. PW 6 Sopan Koli was a panch witness when spot panchanama (Exh. 26) was drawn. Sopan has turned hostile. Dr. Surwade (PW 10) had performed post mortem. The fact of Sarla having suffered burn injuries not being disputed, the evidence of these 3 witnesses has become insignificant.
PW 7 Ball and PW 8 Ramchandra are panch witnesses to discovery panchanama under Section 27 of the Indian Evidence Act, prosecution claimed that sickle, which was used as weapon by accused in the incident dated 26.1.2004, was discovered at the instance of accused, both these witnesses having turned hostile, the documents were technically proved by investigating officer PI Deshmukh (PW 13).
4. Although prosecution has claimed that accused had absconded after the occurrence, the accused controverts this position in his statement under Section 313 of Cr. P.C., 1973, he has denied almost all the averments of the prosecution either by saying that those are false, at times, he has claimed ignorance by saying “I do not know”. However, he has admitted arrival of Police Patil Vijay (PW 4) ori the scene. So far as claim of Vijay that he heard Sarlabai (oral DD). Accused states that Sarlabai was unconscious and made no statement to Police Patil (Questions 13 & 14 during the course of statement u/s 313 of Cr. P.C., 1973). According to accused, the dying declaration was recorded by Police, as desired by father of victim. Even regarding dying declaration by executive Magistrate, accused has claimed that Sarla was unconscious and she made no statement.
In the concluding part of the statement, accused has raised a positive defence. He states that there used to be few quarrels between him and Sarla. She was hot tempered woman. On the alleged day, when she caught fire, he was just outside the house. He tried to extinguish fire and he had suffered burn injury to his hand. Thus, according to accused, he has not set fire to his wife Sarlabai, although he does not make out any positive case regarding the reason why Sarla might have caught fire, such as accident or homicide.
5. The trial Court, by its impugned judgment, has recorded a finding that Sarla died as a result of burn injuries, this was on the basis of medical evidence on record. The trial Court also found evidence of Police Patil Vijay (PW 4) to be worthy of belief. PW 4 Vijay has claimed to have heard oral dying declaration. Learned Judge felt that the version is convincing, because PW 4 had immediately reacted by informing the version of Sarla to her father PW 3 Vasant on telephone. Although admission of Vijay that he does not know the telephone number of father of deceased, was brought to the notice of learned trial Judge, he has explained it by observing that a layman can not be expected to remember telephone number, which he has rung only once. Inability of Vijay to distinguish and ascertain whether father of victim travelled with him on the motorcycle or brother of father travelled with him, also did not appeal the conscience of the trial Court. In para 12 of the judgment the trial Judge observed that this inability on the part of Vijay is not much material. The trial Court also observed that it is not much material whether father of deceased travelled with Sarla in auto-rickshaw or he travelled on the motorcycle of Police Patil. (We may state here itself that victim was shifted from Raver hospital to civil hospital and the view recorded by the Judge is pertaining to this journey whereafter the dying declarations were recorded at civil hospital. We may state that the trial Court was not correct in taking a view that father travelling in rickshaw with victim daughter is not of much importance.) Inspite of these defects pointed out, the trial Judge was inclined to believe the evidence of PW 4 Vijay for the reasons recorded in paras 12 & 13 of the impugned judgment.
Having gone through the evidence before the trial Court, it can be said that father claims to have heard the daughter, but it was only after Police recorded dying declaration (Exh.23) and, therefore, version, which can be termed as oral dying declaration heard by father is not of much importance. Father has learnt, the story through Police Patil Vijay. There is one peculiar thing about the present case. Father was very much present by the bed side when PSI Patil recorded dying declaration (Exh. 23). Prosecution has made no secret of this presence. On the contrary, at the foot of Exhibit 23, PSI has obtained verification of father that dying declaration of his daughter was recorded correctly, as per narration by Sarlabai. The trial Court, for the reasons discussed in paras .16 to 20 of the judgment, has felt the recorded dying declarations (Exhs. 23 & 36) to be worthy of credence, mainly because there was no opportunity to tutor, since according to trial Court, she was not accompanied only by lather, but also by father in law. According to trial Court, the dying declaration recorded by Executive Magistrate should stand on a higher pedestal than that recorded by PSI, because Executive Magistrate is an uninterested witness.
Having believed oral as well as written dying declarations, learned Judge has recorded a finding of guilty so far as charge under Section 302 of IPC is concerned. ;
In para 26 of the judgment, trial Judge has referred to contents of dying declara tion (Exh.23) and more particularly the in cidents those took place on 26th and 28th January, 2004, during which husband is alleged to have inflicted injuries upon the person of Sarlabai. He felt that this part of the dying declaration stands corroborated by the inquest, which showed that there whs injury to left arm as well as on the forehead of deceased Sarla. The learned Judge has carried forward these observations to para 32 of the judgment wherein he has discussed regarding proof for the offence punishable under Section 498A of IPC. He has also referred to dying declaration (Exh. 36) wherein wife has narrated that husband used to demand divorce so that he could marry an educated girl. On the basis of these narrations in the two dying declarations regarding incidents dated 26.1.2004 and 28.1.2004, the trial Judge has observed that these two trustworthy dying declarations demonstrate that accused used to subject Sarla to cruelty. Support is drawn to these observations by relying upon oral evidence of PW 3 Vasant (father of deceased), who has narrated that accused used to drink liquor and used to beat Sarla for petty household reasons, although on the basis of grievance expressed by Sarla. The learned trial Court consequently recorded an affirmative finding so far as charge under Section 498A of IPC is concerned.
6. Heard Advocate Shri Joydeep Chatterji for appellant and APP Shri S.D. Kaldate for respondent – State.
The two lawyers have taken us through entire evidence and the judgment. We intend to refer to multiple prongs of the arguments during the course of discussion of our reasons, but to describe in brief, it can be said that the learned counsel for the defence assailed all 3 dying declarations, According to him, the deposition of Police Patil of having heard oral dying declaration is unworthy of belief in view of admissions in the cross examination by him as well as father of victim and their subsequent conduct as influenced by the fact. So far as written dying declarations are concerned, he claimed that those are creation of either tutoring or engineering on the part of father. He blamed the prosecution for suppression in not examining the person Sopan Koli, who is referred in the dying declaration as a person having extinguished the fire. (There are two Sopan Koli referred in the witness list. Sopan Sukdeo Koli is a panch witness examined as PW 6 and who turned hostile. Other witness is Sopan Vithal Koli at Sr. No. 5 of the witness list, who is not examined by the prosecution. He also pointed out that investigating officer had recorded statement of the daughter of victim, who was a competent witness being present in the house at the time of occurrence. He has also pointed out the instances and submitted that there is clear indication of eagerness on the part of father to implicate son in law.
Learned APP has towed the same line of reason as recorded by the trial Court and according to him, the trial Judge was justified in observing that the dying declarations are trustworthy. He, therefore, urged that this Court may not interfere with the findings of guilty and judgment of convictions.
7. So far as offence under Section 498A of IPC is concerned, the learned trial Court seems to have lost sight of the definition of “cruelty” as Incorporated in the Explanation to the said Section. On reference to said Explanation, it can be seen that conduct of two types is defined as cruelty, which would attract punishment under the said provision. If husband or his relatives subject wife to ill-treatment of such a magnitude that she is psychologically driven to commit suicide, such ill-treatrnent is termed as cruelty. In the matter at hands, prosecution has not claimed suicide on the part of Sarlabai and, therefore, sporadic incidents of ill-treatment by husband (dated 26-1-2004 and 28-1- i 2004) even if believed to be true, would not attract the definition of cruelty. Otherwise, if husband and his relatives subject the deceased to harassment in order to pressurise her and relatives of wife to satisfy their unlawful demands for any property or valuable security, such harassment is also termed as cruelty. In the recorded dying declarations (if those are accepted), the incidents dated 26.1.2004 and 28.1.2004 were aimed at pressurising wife for divorce. It was not aimed at pressurising wife for divorce. It was not aimed at pressurising for any property or valuable security and, therefore, strictly, those incidents even if believed to be true would not attract Section 498A of IPC.
Narration of father that he had heard daughter complaining about ill-treatment at the hands of husband, would be inadmissible piece of evidence in the light of ratio laid down by the Supreme Court in the matter of Gana Nath v. State of Orissa , because such narration does not strictly fall within the purview of Section 32(1) of the Indian Evidence act as a dying declaration, since cause of the death is pleaded to be homicide and not suicide by the prosecution.
We are, therefore, of the view that the trial Court was not justified in recording a finding of guilty so far as charge under Section 498-A of IPC is concerned. The allegations those are available from the recorded dying declarations do not attract the definition of cruelty, as contained in the Explanation and oral evidence of father regarding the same is inadmissible piece of evidence.
8. So far as charge of murder is concerned, the prosecution relies upon dying declarations, two oral and two recorded. Two oral dying declarations are claimed to have been heard by PW 4 Vijay arid PW 3 Vasant (Police Patil and father), although on separate occasions. According to PW 4 Vijay, he had reached the location upon noticing crowd gathered in front of house of accused while he was about to proceed for his agricultural land. When he went at the location, deceased Sarla was lying on the ground partly covered with a cloth. This indicates that she was already extinguished by someone else. She was crying and on enquiry by Police Patll Vijay, she informed of having been set on fire by her husband (appellant). It is the claim of PW 4 Vijay that he informed all these details including inculpation of accused by the statement of deceased to PW 3 Vasant on telephone. Vasant claims to have heard the daughter once again in the hospital when she disclosed to father that husband had beaten her, poured kerosene on her person and set her on fire and thereafter husband had run away.
So far as written dying declarations are concerned, it is sufficient to record here that Exhibit 23 was recorded by Shri Devendra Patil, PSI attached to Zilla Peth Police Station, Jalgaon, and was treated as FIR. At the request of Police, Executive Magistrate Ramanlal (PW 9) recorded second dying declaration (Exh. 36). The two dying declarations are recorded with a time gap of 5 minutes; the first one between 13-20 to 13-40 hours and the second one between 13-45 to 14-00 hours. The fitness of the patient to make a statement was certified by Dr. Ulhas Taskhedkar (PW 11).
As already discussed hereinabove, the trial Court has found the dying declarations, oral as well as recorded, to be reliable and convincing and hence has recorded a finding of guilty.
9. Advocate Shri Chatterji has assailed the dying declarations by intrinsic as well as extrinsic material. According to him, none of the dying declarations are reliable There are inherent defects in the recorded dying declarations and there are circumstances on record in the form of subsequent conduct on the part of witnesses as also suppression on the part of prosecution to bring certain material before the Court, which make the dying declarations doubtful. In fact, he has taken his arguments to a stage to suggest the possibility of direct evidence, which is kept away from the Court and reliance is placed only on the dying declarations. Although he did not submit in so many words, he suggested that prosecution is suppressing the better piece of evidence and trying to ensure conviction by weaker piece of evidence i.e. dying declarations.
Learned counsel Shri Chatterji has placed reliance upon certain observations of the Supreme Court in the matter of P.V. Radhakrishna v. State of Karnataka AIR 2003 SC 2859. Although it is settled position that a dying declaration can be sole basis for conviction, because a person on death bed is in a situation so solemn and serene equal to obligation of oath and, therefore, requirements of oath and cross examination are also dispensed with and the dying declaration is a piece of evidence admitted on record without being tested on the touchstone of cross examination on the principle that “a man will not meet his maker with a lie in his mouth”, learned counsel took us to the caution sounded in para 14 of the judgment to following effect:
In the light of the above principles, the acceptability of alleged dying declaration in the instant case has to be considered. The dying declaration Is only a piece of untested evidence and must like any dther evidence, satisfy the Court that what is stated therein is the, unallowed truth and that it is absolutely safe to act upon. If after careful scrutiny, the Court is satisfied that it Is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.
It can be said that if the dying declaration inspires confidence of being truthful version of the maker and not a product of imagination or tutoring, the same can be relied upon without any corroboration.
In the matter of Rasheed Beg v. State of M.P. , the Apex Court has observed :
Where two dying declarations were made by a boy of 12 years and it was found that those declarations were recorded when the boy was serious and was losing consciousness and it was further found that the person, who bore enmity with the named accused and accompanied the boy from the place of the incident to the hospital and he was also present when the dying declarations were recorded, the possibility of the boy being tutored to name the accused, could not be ruled out and that it was not safe to fasten the guilt on the named accused without any corroborative evidence in support of the dying declarations.
The ruling was relied upon by taking us to factual details indicating that father was present with the victim Sarla throughout once he jointed the party at either the residence of accused or at Rural Hospital, Raver and therefore, he and opportunity to tutor the victim, and by relying upon the tendency on the part of father to inculpate the accused. It was submitted that the father appears to have had an axe to grind against the son in law and, therefore, the statement recorded in his presence is not a reliable dying declaration.
10. Firstly, we consider the oral dying declaration allegedly heard by the Police Patil. No doubt, PW 4 Vijay claims to have heard the oral dying declaration himself and also to have intimated the same to father of victim “i.e. PW 3 Vasant. However, this intimation was on telephone and, therefore, admission during the course of cross examination by PW Vijay to the effect that he does not have telephone number of father of Sariabai is of vital importance and fatal nature so far as this claim of the Police Patil as also father of the deceased is concerned. The trial Court has lightly brushed aside this admission by observing that the Police Patil may not remember the telephone number, which he hat rung only once. On reference to cross examination of father and Police Patil, there are further reasons to disbelieve this theory of Police Patil having heard the oral dying declaration and having communicated the same to father of the victim. So far as father of the victim is concerned although he claims that Police Patil told him of accused having set Sariabai to fire after pouring kerosene on her person, in his cross examination. Vasant was compelled to admit that he is unable to explain the reasons regarding absence of these details in his statement recorded by Police i.e. Police Patil had told him of accused having set fire to Sariabai. Thus, evidence of father Vasant to the effect of detailed report having been received from the Police Patil is improvement over and above his Police statement. This fact is also confirmed by deposition of investigating officer PI Deshmukh. Shri Deshmukh admitted that statement of Vasant was recorded on 30.1.2004 and Vasant did not tell that; Police Patil told him of accused having set Sarla on fire. Thus, so far as father Vasant is concerned, the version that Police Patil rang him and informed him of accused being the culprit is an omission amounting to contradiction and required to be looked with disbelief.
The Police Patil, during his cross examination, has created further confusion. His claim that he knew the father of the deceased even prior to the incident stands falsified by admissions in the cross examination. While trying to explain omission on his part that father of Sarla accompanied her! in the auto rickshaw from the residence to rural Hospital, Raver, PW 4 Vijay created this confusion. According to him father of Sariabai had come with his brother. The father and brother are so similar in appearance that PW Vijay expressed his inability to confirm as to which of the two accompanied the victim in the auto rickshaw and who accompanied him on the motorcycle. This is inspite of the fact that he claims that he knew father of Sariabai as well as his brother since prior to incident. If the Police Patil was acquainted with the father of victim since prior to incident, it is natural that he may know his telephone number. The inability of Vijay to distinguish between father of Sariabai and her uncle cuts across his claim that he was already acquainted with those persons. It has not come in the deposition of father that he has a telephone installation and therefore, Police Patil can not escape his responsibility of proving truthfulness of his deposition that he had communicated to father of Sariabai of accused having set Sariabai on fire by saying “I do not have phone number of father of Sariabai”. The learned trial Judge has taken this statement as if witness did not have that telephone number when he was in the witness box. Even during his chief examination, PW Vijay did not narrate that he went to residence or took out the telephone number from diary and then rang the father. The admission “I did not have telephone number of the father of Sariabai” is, therefore, required to be taken as PW Vijay does not know the telephone number and yet it is his claim that he tele-phonically informed father of victim all the details of incident including oral dying declaration. The fact that father improved over his Police statement on this crucial aspect is sufficient to falsify his claim. PW 4 Vijay is not contradicted to that extent but if the evidence of father and Vijay compliment each other, unreliability of the evidence of one witness complimenting the evidence of another is also capable of causing adverse effect upon the evidence of complimenting witness. If the version of the father is to be disbelieved that he was informed by Police Patil on telephone, that also cuts across the version of the Police Patil that he had informed the father and admission that PW 4 does not have telephone number of the father further confirms the falsity of such claim of telephonic communication between the two witnesses.
The subsequent conduct of these two witnesses as influenced by the fact in issue i.e. Police Patil having heard the dying declaration is so passive that the passive reaction makes the claim further doubtful. The two witnesses claim to have accompanied the victim upto Rural Hospital, Raver. Admittedly Police and Executive Magistrate had reached there. There was an attempt to record the dying declaration of the victim, which could not be recorded because the victim was semi conscious and she became further incoherent by the time Executive Magistrate attempted to record her statement. PW 4 Vijay Patil is a Police Patil. He claims to be present at Raver hospital with the father of the victim and Police had visited the hospital at Raver before this party departed for civil hospital. The Police Patil has neither informed nor tendered any report in writing to the Police of deceased having made a dying declaration to him thereby implicating husband / appellant as a person responsible for her burn injuries. Vijay has tried to explain this by saying that he did not inform the Police because he believed that Sarlabai may survive. Thus, he left the responsibility of disclosing the truth upon the victim, who had suffered 90% burns and as is evident from the medical report apparently sinking towards death at that time. That is why her dying declaration could not be recorded at Raver. Neither it is the claim of father that he informed the Police of having learnt about oral dying decla ration of the victim from the Police Patil and that they should take some cognizance of It. A report, may be brief on the part of Police Patil while at Raver hospital to the Police authorities, who were available would have been the first information report of the incident and such a report could have given a silver lining of reliability to the claim of Police Patil as well as father of the victim of Police Patil having heard oral dying declaration soon after the incident. The same is missing and that is why we have expressed that subsequent conduct as influenced by fact in issue being passive reaction on the part of witnesses concerned, makes the story of this oral dying declaration a doubtful one.
For the reasons discussed in para 19, the learned Judge has recorded a finding that there was no chance of tutoring. In doing so, the learned Judge accepted the position propounded by the defence that father of accused had accompanied the victim to civil hospital. In fact, the learned Judge has discussed the documentary evidence available on record in the form of case paper of Rural Hospital, Raver (Exh. 46) in para 16 of the judgment. Exhibit 46 shows that it was father of the accused, who signed the case paper. It was father of the accused, who paid the charges for ambulance for carrying the victim from Rural Hospital, Raver, to Civil Hospital, Jalgaon. This fact situation is a twin edged blade. If the victim was taken and admitted to Rural Hospital, Raver, by father of the accused, if it was father of t}ie accused, who was given intimation by the medical officer regarding patient being serious and requirement to shift her to better medical centre and if it was the father of accused, who paid the charges of the ambulance, the presence of father of the victim at the Rural Hospital, Raver, becomes doubtful. In fact, this fact situation is so tricky that it causes disadvantage to the prosecution from both sides. If the prosecution story is accepted that father of the deceased carried her in auto rickshaw upto Rural Hospital, Raver, and thereafter to Civil Hospital, Jalgaon, this provides an opportunity to the father to tutor. This invites the father to explain as to why he had no talk with his daughter till the time they reached civil hospital. It is the claim of the father that he independently spoke to his daughter only after hearing the dying declaration recorded by PSI Devendra Patil. In fact, if father had heard about oral dying declaration from the Police Patil or if he had heard the recorded dying declaration when it was being recorded by Devendra Patil, the conduct on this part in claiming that he again independently enquired the daughter and she repeated the story of her husband being culprit is most unnatural and unpalatable. If this story is to be accepted, the claims of Police Patil and even this PSI of having recorded dying declaration in presence of the father get weakened. It we accept the situation as propounded by the defence that it was the accused and his father who took the victim to Rural Hospital, Raver (in fact there is nothing on record to indicate that they also accompanied victim to Civil Hospital, Jalgaon), then the claim of the father that he had received telephonic message from Police Patil Vijay and he had reached the residence of accused within 15 minutes and thereafter he took the victim and initially admitted her at Rural Hospital, Raver, stands falsified on the basis of do cumentary evidence in the form of case paper (Exh. 46), which shows no role played by the father. The possibility of absence of the father, therefore, cuts across the story of oral dying declaration heard by Police Patil Vijay. Father’s claim that he enquired the daughter again also has the same effect, not only adverse to oral dy-ing declarattoti claimed by Police Patil, but also upon the recorded dying declaration (Exh.23) by PSI Devendra Patil. We, therefore, feel that the claims of oral dying declarations having been heard either by the Police Patil or by the father, are doubtful and certainly not convincing.
11. This brings us to consider the two recorded dying declarations, one by the PSI and second by the Executive Magistrate. Both these dying declarations are assailed by learned counsel for the appellant by common grounds. It was Dr. Taskhedkar, who claims that he had examined the patient on both the occasions and endorsed about the fitness of the patient of make a statement. Eventually, Dr. Taskhedkar has recorded only one endorsement in the margin and to the effect : Patient is conscious. Started from 13-20 to 13-40 hours” on Exhibit 23 and similar endorsement on Exhibit 36 with appropriate time of recording the same to be 13-45 to 14-00 hours. It is the claim of both recording officers and Dr. Taskhedkar that the patient was examined by the doctor before commencing the statement. We find no explanation on record as to why the endorsement of the doctor does not precede the recorded dying declaration. In fact, to make the recording convincing, such an endorsement must appear at the commencement and at the conclusion of the dying declarations. We are not willing to disbelieve the medical officer, who is otherwise an independent witness, merely because of defect in his manner of endorsing the fitness of the patient, but cross examination of Dr. Taskhedkar and admissions therein create further doubts. We quote :
I do not know who was in-charge of burn ward. I was not in-charge of burn ward till the time of admission of patient, till her death. I do not know whether Sarlabai was referred from rural hospital.
That Dr. Taskhedkar was not in-charge of the burn ward and that there was some other medical officer holding the charge is evident from his further admissions in para 4 of his cross examination.
In-charge of the burn ward remains in the hospital campus, which includes quarter. 1 gave a call to in-charge of burn ward, but he did not came.
No doubt, the recording officers are not obliged to get the fitness certified by any particular officer, but when there was some other medical officer, who was in-charge of the burn wards, ordinarily endorsement of the said officer ought to have been obtained. The admissions of Dr. Taskhedkar indicate that the presence of medical officer in-charge of burn wards could have been easily secured. It is not the case that medical officer in-charge of burn ward had left the ward by asking / requesting Dr. Taskhedkar to temporarily look after his unit. The statement of Dr. Taskhedkar that a message was sent but the medical officer did not respond, can not be accepted because presence of medical officer in this case was required for the purpose of investigation and had the medical officer in-charge of the burn ward refused assistance to the investigating officer, he coulci have faced severe consequences.
The recorded dying declarations are also assailed by expressing doubts about the state of health of the victim and this is done by pointing out the details regarding the state of health as available in the case paper of Rural Hospital, Raver. The prosecution has not bothered to bring on record the case papers at Civil Hospital, Jalgaon. The case paper of Rural Hospital, Raver, is at Exhibit 46, which gives the medical history of the patient from 8-50 a.m. to 9-10 a.m., a time of 20 minutes between admission and departure for Civil Hospital, Jalgaon. At 8-50 a.m., there is endorsement in the column for “treatment and diet”, to the effect “inform low G.C. to relatives and the Police”. There is similar endorsement at 8-55 a.m. as also at 9-10 a.m. There is endorsement under signature of father in law Kashinath Raimale about having received the intimation regarding state of health of deceased Sarla. At all three entries, the pulse of the victim is said to be feeble and blood pressure 100/70 and 100/60. In the last entry, even the speech is said to be slurred. That patient was not in a fit condition to make any statement while at Rural Hospital, Raver, stands confirmed by partly recorded dying declaration (Exh. 44). Eventually, only half a sentence is recorded, which reads :
(vernacular text omitted…. Ed.)
i.e. because there was quarrel between me and husband.
Unfortunately for the prosecution, this sentence can perfectly match as opening part for a story of homicide as well as suicide. At present, it is sufficient to point out that case papers at Rural Hospital, Raver, do not speak in favour of the prosecution and about fitness of the patient to make a statement. No doubt, Sarla survived till 1.2.2004 and there could have been a stage when her health temporarily improved. The dying declarations (Exhs. 23 & 36) are recorded between 13-20 to 14-00 hours and what must be the state of health of the patient is evident from admissions of Dr. Taskhedkar, which we quote:
“It is true that she sustained 90% burns and her condition was precarious. It is true that Sarlabal was about to die. When I examined second time Sarlabai, her condition did not improve than that of earlier. When I first examined Sarlabai. I felt that her condition can not improve.”
Dr. Taskhedkar has admitted that.he is unaware of any treatment given to Sarlabai and the nature of the same. He also admits that when pulse is feeble, it means sluggish functioning of the heart. We are of a considered view that on the face of medical history as recorded in Exhibit 46 by medical officer at Rural Hospital, Raver, it was obligatory on the prosecution to produce the case papers of Civil Hospital, Jalgaon, in order to convince the Court that health of the victim had improved by the time her dying declarations were recorded by Police Officer and Executive Magistrate. Dr. Taskhedkar has admitted in cross examination para 3 that he had not taken any notes of his examination and its results on the case papers of Sarlabai when he examined her at the request of officers recording dying declarations. On the background of Exhibit 46, such details were necessary if we are to rely upon the recorded dying declarations as a statement made by the victim Sarlabai while in fully conscious and fit condition capable of thinking and rationally answering the questions put to her.
At the cost of repetition, we may point out that learned trial Judge has ruled out the possibility of tutoring inspite of the claim of the father that he accompanied his daughter in rickshaw from residence to Rural Hospital, Raver, and then in the ambulance from Raver to Civil Hospital, Jalgaon. The learned Judge has conveniently accepted the defence theory to support the prosecution and rule out tutoring by accepting the presence of father of accused. Presence of father of ae-cused stands confirmed till the stage of departure from Rural Hospital Raver, but at the time of recording dying declarations at Civil Hospital, Jalgaon, as admitted by PW 5 Devendra Patil, only Sarlabai, doctor, his writer Constable and father of Sarlabai were present. Similar position is confirmed by Executive Magistrate Mr. Ramlal. He has admitted that when he recorded statement” of Sarlabai, apart from victim Sarlabai, medical officer, two other patients in the burn ward and himself were the only persons present in the Ward. Thus, the insulation by presence offather of the accused against the tutoring, as felt to be in existence by the trial Court, is not guaranteed by the material on record. The party departed from Raver at about 9-10a.m. and according to deposition of the father, they could have reached Jalgaon within 2 and half hours i.e. by about 11-30 or 12 noon and, thus, father had an opportunity to interact with the daughter atleast for one and half hour. In the matter of Rasheed Beg relied upon by learned counsel, the witness claiming to have heard the dying declaration bore enmity with the named accused, which was an additional circumstance for looking to the dying declaration with suspicion. We have questioned Advocate Shri Chatterji as to why it can be said that father in law could tutor the daughter to inculpate her husband. Learned Advocate has rightly placed reliance upon the facts that father has conveniently developed stories around the injuries noticed on the left arm as also the forehead of the victim, although he had not complained about those incidents dated 26-1-2004 and 28-1-2004, any time earlier. In this context, we may refer to cross examination of the father and more particularly para 6 of his deposition, which demonstrates how his chief examination is full of improvements over and above the Police statement. He has narrated a story of couple of landlords having driven out his son in law, because they noticed him to be ill-treating Sarlabai. He has also narrated a story when accused had driven out Sarlabai while they had settled at Punkheda. He has narrated a story that Sarla told him of accused having inflicted an injury by means of sickle and also by hitting her forehead against the wall. All this narration in chief examination is at the cost of improvement over Police statement. We are unable to gauge truthfulness or otherwise into these statements, but these improved stories certainly reflect psychology of father in law, who appears to carry some grudge against son in law. Although faint, a possibility can not be ruled out that father was in a position to tutor and could have tutored daughter. We are inclined to say so, because even if we accept the reason for the rift between husband and wife as has come out in the two recorded dying declarations, the same is as good a reason for suicide as for homicide. It is claimed by victim in the dying declarations that since prior to alleged incident, husband had started insisting for divorce. He expressed his desire to get married with an educated girl. The wife found herself cornered and unable to accede to his request, because the couple already had 3 children.
We, therefore, feel for all these reasons discussed above that recorded dying declarations, which were recorded in quick succession, are not free from doubts and are not convincing. We are not guaranteed of health of the patient and fitness to make a statement because of earlier case paper and the nature of evidence rendered by Dr. Taskhedkar, even endorsement by Dr. Taskhedkar is a matter of doubt when he was not in-charge of burn ward and somebody else, who was in-charge, could have been available in the campus.
There is one peculiar thing about dying declaration (Exh. 23). PSI Devendra Patil has allowed the father to attend the same as if a panch witness to the recording of the dying declaration and he has also obtained verification of father upon conclusion of the recording, to the effect that dying declaration was correctly recorded as per narration of the deceased. This is curious method followed in the case at hands. Ordinarily, in order to ensure a voluntary and untutored dying declaration, precautions are taken to ensure absence of anybody, who can have influence over the maker of the statement. In the case at hands, prosecution has acted diagonally opposite to this requirement.
12. On reference to evidence of investigating officer, PSI Deshmukh, who was then attached to Raver Police Station, the submission of learned counsel for the appellant, of prosecution having denied the benefit of direct evidence and having shown inclination to rely only upon the dying declaration is evident. On reference to his cross examination, it is also evident that narration of the father, of accused not being available at the house or at the hospital when father reached there, is also improvement over the Police statement. Father had not made such an accusation when Police recorded his statement. PI Deshmukh admits that he has prepared arrest panchanama of the accused, but the same is not placed on record. This is one incident when prosecution has denied itself and this Court of corroborative piece of evidence. If appellant had set his wife on fire by pouring kerosene from a can a possibility looms that some kerosene may fall on his own clothes and such traces can be detected in the analysis by Forensic Science Laboratory. By not placing the arrest panchariama on record, prosecution does not disclose us as to whether clothes of the accused were seized or not. On reference to reports of analysis, it is evident that those were not forwarded to the laboratory. PI Deshmukh also admits that he had taken accused to Raver Cottage Hospital for medical examination. This was because he had sustained some burn injury to his hand. This certificate is also not produced for perusal of the record. The time of examination of the accused, time of his arrest could have thrown light upon the contention of the father that he had absconded, nay, those details could have further contradicted the father.
We certainly find that accused in this case has spoken and spoken in his defence. Generally accused remain satisfied by simply denying the prosecution case by replies to the effect “It is false” or “I do not know” in response to all the questions under Section 313 of Cr. P.C., 1973. In the matter at hands, accused has admitted arrival of Police Patil on the scene. He has admitted the details regarding admission of Sarla at Rural Hospital as narrated by Dr. Gopal Mahajan, Medical Officer of Rural Hospital. He has come out
with a positive version and without claiming absence from the location. He has said that there used to be quarrels, Sarla was short tempered woman. (The translation “Sarla was angry” of Marathi version (vernacular text omitted.) is neither accurate nor correct). When Sarla caught fire, he was outside the house. He tried to extinguish the fire and he had suffered burn injuries to his hand. The attempt on the part of prosecution to suppress the arrest panchanama, medical certificate and the fact that accused had suffered burn injury to his hand invites an inference adverse to the prosecution and favourable to this defence of the accused.
The time of the incident was about 7 or 7-30 a.m. when ordinarily all the family members could have been present in the house. Even in the recorded dying declaration (Exh. 36) in response to questin no. 9, victim narrates that (vernacular text omitted) i.e. children were at home. The ages of the children have come in the deposition of father of Sarlabai. they were aged 10, 7 and 5, respectively son, daughter and daughter. In the dying declaration (Exh.23), one Sopan Koli (not PW 6 but Sopan Vithal Koli, Sr. No. 5 in the witness list) is named as the person, who extinguished the fire by using the Chaddar. PI Deshmukh admits in his cross examination that he has recorded statement of daughter of the deceased; This daughter or rather all the children were eye witnesses to the incident. For the reasons best known to it, prosecution has elected to keep them away from the witness box. Although PSI denied the suggestion that the daughter of the deceased had narrated that at the time of incident, mother was inside the house and father was outside, in ‘view of the fact that daughter was not examined from the witness box, portion from her statement could not have been so confronted to investigative officer and prosecution can not escape the adverse inference that is required to be drawn for non examination of either of the children and Sopan Vithal Koli, who were the witnesses present at the location at the time of occurrence. The dying declarations can not be put at the same pedestal as direct account or eye witness account of the incident. If the two are to be compared, the eye witness account must stand on a higher footing. The prosecution, by not examining any of the three children and Sopan Vithal Koli, has clearly kept away the direct evidence and relied upon comparatively inferior quality of evidence. We feel that failure on the part of the prosecution to bring these pieces of evidence referred in this paragraph also strikes against credibiliey of the recorded dying declarations.
13. Learned APP has place reliance upon the matter of Habib Usman v. State of Gujarat , wherein it is observed that mere presence of the relatives and friends before the making of declaration does not necessarily mean that it was tutored. In the matter at hands, we have not recorded a finding that the dying declaration was tutored, but we have only recorded a finding that opportunity to tutor and influence the maker of the statement was available with the father and the manner in which Exhibit 23 was recorded by obtaining verification on the part of father made the recorded dying declaration further doubtful. The ratio laid down, therefore, is not applicable in the matter at hands.
14. For the reasons discussed herein-above, we feel that the trial Court recorded a finding of the dying declarations being convincing and reliable without referring to certain circumstances, which spoke against the same as also certain suppressions or omissions on the part of prosecution to bring best possible evidence before the Court and, therefore, we are inclined to interfere with the finding of guilty and set aside the same.
15. The appeal is allowed. The judgment and order dated 28.10.2004 delivered by 3rd Ad Hoc Additional Sessions Judge, Jalgaon in Sessions Case No. 69/2004 thereby holding the appellant guilty for the offences punishable under Sections 302 and 498A of IPC and suitably sentencing him for the same it quashed and set aside. He is acquitted of all the charges those were levelled against him. He shall be set to liberty forthwith, if not required in any other case. Fine amount, if already deposited by appellant, shall be refunded to him.
Registrar (Judicial) shall ensure prompt transmission of appropriate writ to the prison authorities.