Bombay High Court Suresh Mohaniraj Thakur-vs-The State Of Maharashtra on 9 February, 2005
Equivalent citations:II (2005) DMC 767
Author: A V Mohta
Bench: S Parkar, A V Mohta
Anoop V. Mohta, J.
1. The appellant was charged, tried and convicted of an offence punishable under Section 302, however, acquitted of an offence under Section 498A of Indian Penal Code (IPC). Therefore, this appeal against the order of conviction.
2. As per the prosecution on 11/11/1993, the appellant, during the quarrel with Changunabai (the deceased), poured kerosene on her from the stove and set fire. The burn injuries were 70%. The neighbours came and extinguished the fire. The defence of the appellant was that, he was not present on the spot at the time of incident, and when he came, found that the deceased was burning. He tried to extinguish the fire, therefore, he suffered 5% burn injuries. The deceased was hospitalised. In the hospital a Special Judicial Magistrate (P.W.11) (Kisanlal Bora) (SEM) was summoned and a dying declaration (Exh.22) was recorded on 11/11/1993, which was scribed by one Shri S.B. Deshmukh, P.W. 8 and not by the SEM, as he forgot to bring his spectacle. In the said dying declaration it was stated by the deceased that the appellant after pouring kerosene, set her on fire. The said dying declaration was treated, as FIR and crime was registered accordingly. On 12th November, 1993, the appellant was arrested. The spot panchanama and inquest panchanama were recorded on the same day. On 12/11/1993, at 9.20 a.m., in the presence of Medical Officer, when the deceased was conscious, the Special Judicial Magistrate (SEM), P.W.10, Mr. Baviskar, recorded the second dying declaration (Exh. 30) at Nasik, wherein the deceased had stated that she was burnt as stove exploded. The statement made in the second dying declaration, no where implicated and/or suggested the name of the appellant. The statement made therein was in contradiction to the first dying declaration. On 23rd November, 1993, the deceased succumbed to the burn injuries. The accused was also medically examined by P.W. 6, Jagdish Patil. After completion of the investigation the appellant was charge-sheeted. The charges were framed under section 498A r/w section 302 of IPC and same were denied by the appellant and pleaded not guilty. No evidence was led by the appellant in support of his defence. The prosecution has examined 13 witnesses. Most of them were declared hostile. The learned Judge, however, based on the first dying declaration Exh.22, dated 11/11/1993, found him guilty of the murder.
3. Heard learned Counsel Mr. S.V. Kotwal for the appellant and learned A.P.P., Dr. F.R. Shaikh for the State.
4. The order of conviction is based on the first dying declaration, dated 11/11/1993. The learned Judge over looked the second dying declaration Exh.30, dated 12/11/1993. The contents of the second dying declaration are totally favouring the appellant. The Counsel appearing for the appellant relied on (1993) 1 S.C.C., Kamla V. State of Punjab and State of A.P. v. Shaik Moin and contended that, in view of the Apex Court’s decisions in regard to the effect of multiple dying declarations the conviction order based on the first dying declaration is not correct and also in view of the apparent material inconsistency between the two dying declarations in question. The second dying declaration was recorded by SEM after following the procedure, as contemplated under the law. The Second Dying declaration was supported and corroborated by the evidence. Whereas improperly recorded first dying declaration was unsupportive and un reliable. The relevant para (5) from Kamala (Supra), makes point more clear.
“It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao V. State of Bombay). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances.”
5. In the present case, as noted, there is inconsistency in the dying declaration made by the deceased. P.W. 2, Kamal, a servant who saw the deceased with burn injuries also not supported the prosecution case. She made the reference of Shantabai and Venubai (P.W.4), who were