Francis Devid Batise vs The State of Maharashtra

A.M. Thipsay, J.—The appellant and two others were prosecuted on the mss APEAL-603 allegation of having committed offences punishable under Sections 302, 498-A & 504 of the Indian Penal Code ("IPC" for short) r/w Section 34 of the IPC. The learned Sessions Judge, Aurangabad, who tried them found the appellant guilty of an offence punishable u/s 304 (Part II) of IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default to suffer RI for six months. The learned Sessions Judge acquitted the appellant of the other offences. He also acquitted the other two accused of all the offences.

The appellant, being aggrieved by conviction and sentence as aforesaid, has approached this court by filing the present appeal.

The prosecution case as was put forth before the trial court may in brief, be stated as under:

(a) Sheela, wife of the appellant sustained burn injuries on 5/11/2006 and succumbed to the said injuries on 7/11/2006. Sheela had been married to the appellant since about 10 years before her death. The accused No. 2 in the said case was the mother of the appellant and accused No. 3 therein was the person with whom accused No. 2 had been residing. The appellant had a son and daughter by name Sachin and Preeti, respectively, from his first wife. Two sons were born out of the wedlock between the appellant and Sheela, namely Nitin and Sushil. The appellant and Sheela were residing in a rented room at Ambica Nagar, Mukundwadi, Aurangabad belonging to one Smt. Padmavati (DW No. 1) with their children. The appellant and his mother Shashikala (original accused No. 2) were subjecting Sheela to cruelty since about four to five years before the incident.

(b) The ill-treatment was on account of a demand of Rs. 1 lac which the appellant and the said accused No. 2 wanted Sheela to be brought from her mother and brothers, and which was not being fulfilled. The money was required by the appellant for purchasing an autorickshaw. As Sheela was unable to fulfil the demand of the appellant and original accused No. 2, due to the poor financial condition of her mother and brothers, she was being ill-treated.

(c) That on 5/11/2006 at about 2 to 3 p.m. the appellant came home after consuming liquor. At that time his mother Shashikala was also present. Shashikala, (original accused No. 2) abused Sheela and asked the appellant to kill her by pouring kerosene. The appellant then brought the can of kerosene, which was inside the room, abused Sheela and poured kerosene on her person. Shashikala caught hold of Sheela''s hand and thereafter the appellant set Sheela on fire by lighting a matchstick; that Shashikala then ran away from the room and the appellant pretended to extinguish the fire. After the fire was extinguished, Shashikala came back to the room. The appellant and Shashikala took Sheela to Govt. hospital, Aurangabad and got her admitted there. While securing Sheela''s admission in the hospital, Shashikala falsely stated that Sheela had caught fire due to the ''bursting of stove''. A Medico Legal case was registered at Mukundwadi Police Station, Aurangabad. In connection with that, PSI Pandharinath Sanduji Bolkar (PW 6) recorded the statement of Sheela, after getting it confirmed from the medical officer Dr. Rishikesh Umakant Kharosekar (PW 7), that she was in a fit state of mind to make the statement. Her statement was treated as the First Information Report and on that basis, a crime came to be registered against the appellant and the other accused with respect to offences punishable u/s 307, 498 and 504 r/w Section 34 of the IPC.

(d) Further investigation into the matter was carried out by PSI Bolkar by visiting the spot and by drawing spot panchnama under which, a plastic can, burnt cloth pieces and matchstick box came to be seized. PSI Bolkar requested Special Executive Magistrate, Smt. Prachi Kulkarni (PW 3) to record the dying declaration of Sheela. Smt. Prachi Kulkarni accordingly recorded the statement of Sheela on 6/11/06 between 5-45 p.m. to 6-40 p.m., after having confirmed from the Medical Officer that Sheela was in a fit state of mind to make statement.

(e) Sheela died in the night between 6/11/2006 and 7/11/2006 at about 1.35 a.m. Postmortem examination on the dead body of Sheela was conducted. The cause of death of Sheela was opined to be as "shock due to burns". Thereafter the statements of the relatives of Sheela, including that of her sister Aruna (PW 2) and her mother Sakhubai (PW 4) were recorded and on completion of investigation a charge-sheet was filed against the appellant and the other two accused, as aforesaid.

During the trial the prosecution examined seven witnesses, all of whom have been referred to earlier. The appellant and the other accused did not examine themselves as witnesses but examined two witnesses namely Smt. Padmavati and Sushil, in defence.

The case against the appellant (and even against the other accused) was based mainly on the dying declarations of Sheela. There is a plurality of dying declarations in this case, some of which are oral. Thus Sunil (PW 1) Aruna (PW 2) and Sakhubai (PW 4) who are the brother, sister and mother of Sheela respectively, speak about the oral dying declaration made to them by Sheela. There are two dying declarations, the record of which was reduced to writing, and as stated earlier, one of them was recorded by Special Executive Magistrate Mrs. Prachi Kulkarni (PW 3) and the other was by PSI Bolkar. Records of these dying declarations have been tendered in evidence as Exh.-36 and Exh.-47 respectively. Additionally, the record of registration of Medico Legal case (Exh.-40) also contains a dying declaration of Sheela. As regards the evidence of cruelty, the same consists in what the relatives of Sheela i.e. Sunil (PW 1), Aruna (PW 2) and Sakhubai (PW 4) have stated before the court in that regard.

It is contended by Shri Ghanekar, learned advocate for the appellant that the impugned judgment is not in accordance with law and according to him the prosecution had failed to prove its case by the requisite standard and that, like the other accused, even the appellant was entitled to be acquitted. He submitted that the dying declarations in this case were inconsistent and conflicting with one another and that, therefore, they ought not to have been relied upon.

It was on the other hand submitted by Mr. Shaikh, learned APP that the dying declarations recorded by Smt. Prachi Kulkarni, (SEM), (PW3) and PSI Bolkar (PW 6), after getting the mental fitness of Sheela to make the declarations ascertained from Dr. Hrishikesh (PW 7), are consistent and have been properly relied upon by the trial court.

Since this case is basically based on the dying declarations, said to have been made by Sheela, the dying declarations need to be subjected to a thorough scrutiny. The question of evaluation of a declaration as a piece of evidence often comes up before the courts and there are a number of authorities wherein the High Courts and the Supreme Court of India have dealt with the aspect of evidenciary value of dying declaration.

It is well settled that the dying declaration as a piece of evidence stands on par with any other piece of evidence. It is also well settled that a conviction can be based only on a dying declaration without any corroboration provided that the dying declaration appears to the court to be fully convincing and trustworthy. The evaluation of the dying declaration as a piece of evidence would depend on the reliability of the testimony of the witnesses who say that such a statement was made to them. It would also depend on the assessment of whether version reflected in the dying declaration is probable and believable and can be safely accepted as true. Thus, there would be two aspects which are required to be kept in mind while considering the reliability of the dying declaration and they are;

(i) Whether the declaration was in fact made;

and

(ii) Whether the declaration was true.

While considering whether the declaration was true and correct account of the happenings, the following factors, inter alia, would need consideration.

I. The physical and mental state of the declarant when the declaration is supposed to have been made;

II. The possibility of the declarant being tutored to make the statement.

We may now examine the oral dying declarations, the evidence of which have been given in this case. The oral dying declaration witnessed by Sunil (PW 1) and Sakhubai (PW 4) is the same while the oral dying declaration made by Sheela to Aruna (PW 2) is a different one.

According to Sunil, he and his mother Sakhubai had gone to GHATI Hospital on getting a telephonic message from Sheela''s son that Sheela had been set on fire by the appellant and his mother Shashikala, original accused No. 2. Thus, even before these two witnesses had met Sheela and ascertained from her what had happened, they already had information that the appellant and his mother had set Sheela on fire. Sunil then states, that on inquiries, Sheela told them that at the material time the appellant and his mother were present in the house and that they beat her and that they were demanding Rs. 1 lac for purchase of rickshaw and were beating her on that count; that her mother-in-law told the appellant that Sheela should be set on fire and thereupon the appellant poured kerosene on the person of Sheela and her mother-in-law lighted a matchstick and handed it over to the appellant, who threw the same on Sheela''s person, due to which she caught fire. According to Sunil, Sheela also stated that then the mother-in-law left the spot and when the appellant extinguished the fire, she came back; and then Sheela was taken to GHATI Hospital.

The version of Sakhubai (PW 4) with respect to this dying declaration is that Sheela told her that her husband poured kerosene oil on her person and set her on fire; that on that day a quarrel had taken place between her and her husband, i.e. the appellant as he was demanding money for purchase of rickshaw and was beating her. Thus the version of the dying declaration, as spoken about by Sakhubai, is different from the version of Sunil inasmuch as there is absolutely no mention of mother-in-law in the said dying declaration. Neither any role has been attributed to the mother-in-law Shashikala, nor even her presence at the time of incident has been mentioned.

So far as the dying declaration made to Aruna (PW 2) is concerned, her version is that Sheela told her that she was set on fire by her husband and mother-in-law and that, that there was a quarrel between her and her husband (the appellant) on that day and that the appellant was under the influence of liquor; that he poured kerosene oil on her person, lighted a matchstick and set her on fire. Thus in this dying declaration though there is an assertion that Sheela told her that she had been set on fire by her husband and mother-in-law, no role at all has been given to mother-in-law.

It is difficult to hold that these dying declarations are consistent only because they indicate that the appellant had set Sheela on fire. The omission to mention even the presence of mother-in-law in one of these dying declarations, when a specific, positive and important role viz:-of instigating as also physically catching hold of Sheela, has been attributed to the mother-in-law, in the other, is significant. Moreover, the dying declaration about which Sunil and Sakhubai are speaking, is supposed to be one and the same and, therefore, this variation assumes more significance.

This would, therefore, need discussion on the reliability on the evidence of Sunil, Aruna and Sakhubai, which may be resumed after considering the evidence with respect to the dying declarations recorded by Smt. Prachi Kulkarni (PW 3) and PSI Bolkar (PW 6).

The record of the dying declaration made by PSI Bolkar (PW 6 ) is at Exh.-47. The version reflected therein is that Sheela, the appellant, her children Nitin and Sushil and her mother-in-law, were all residing together; that her husband used to harass her by making a demand of money for purchasing autorickshaw and the mother-in-law also used to do the same. As this demand was not being fulfilled, Sheela was being harassed; that on 5/11/2006 the appellant came home at about 3 p.m. At that time, the mother-in-law was already in the house. The mother-in-law abused Sheela and asked the appellant to kill her. She told the appellant to pour kerosene on her and thereupon the appellant poured the kerosene contained in the can which was in the house, on Sheela''s person and the mother-in-law held Sheela''s hands. The husband set her on fire and the mother-in-law ran away. The husband pretended that he was making efforts to extinguish the fire and that, by this time, the mother-in-law returned. The mother-in-law and her husband took Sheela to GHATI Hospital and got her admitted therein. The mother-in-law falsely stated that Sheela had caught fire due to bursting of stove; that therefore, legal action should be taken against her husband i.e. the appellant and mother-in-law Shashikala.

The record of the dying declaration made to Prachi Kulkarni, (SEM) is at Exh.-37. In this, the version of Sheela is that, on that day her husband came home at about 3 p.m.; he was drunk at that time; that he beat her, pulled her hair and caused the bangles, worn by her, broken. Sheela sustained injuries because of the broken pieces of the bangles, having entered inside her hands; that her husband i.e. the appellant was asking Sheela to bring an amount of Rs. 1 lac from her parents for enabling him to purchase the rickshaw; that this demand was being made since four to five years; that when the beating was going on, the mother-in-law of Sheela came to Sheela''s house and told the appellant to burn Sheela by pouring kerosene over her body. The mother-in-law caught hold of the hands of Sheela. The appellant lit a matchstick and set her on fire. Thereafter the appellant as well as Sheela''s mother-in-law ran away. Thereafter the appellant came back and attempted to extinguish the fire caught by Sheela. After the fire was extinguished, the mother-in-law came back. The mother-in-law was telling Sheela, not to disclose her name and that she would spend money for the expenses of Sheela''s medical treatment. Sheela then states that the appellant and Sheela''s mother-in-law brought Sheela to Ghati Hospital in somebody else''s rickshaw and that her brother-in-law Munna was also accompanying them. Saying so, Sheela states that she had complained against the appellant, her mother-in-law and a Madrasi person by name Parveen, who stays with her mother-in-law.

It is difficult to hold that the version in the dying declarations made to PSI Bolkar (PW 6) and the dying declaration made to SEM Prachi Kulkarni (PW 3) is uniform. It cannot be considered as uniform merely because the allegation against the appellant is the same. There are certain differences and variations between these dying declarations. For instance, in the dying declaration at Exh.-37, Sheela states that the mother-in-law came to her house when the appellant was already beating Sheela. She also states that after setting her on fire, the mother-in-law and the appellant both ran away. On the other hand, the version in the record of the dying declaration at Exh.-47, is that the mother-in-law was already in the house when Sheela''s husband, i.e. the appellant came home in the afternoon at about 3 p.m. That the mother-in-law abused her and told the appellant to kill her by pouring kerosone. As regards the happenings, after setting Sheela on fire, the version in this dying declaration is that, mother-in-law ran away, indicating thereby that the husband remained therein, itself, which is further clarified by stating that the husband then pretended to extinguish the fire. Interestingly, in this dying declaration Sheela states that after she was brought to Ghati Hospital by her mother-in-law and the appellant, the mother-in-law falsely stated that Sheela had caught fire by bursting of the stove. In this, she does not implicate any other person except the husband and her mother-in-law and makes no mention of the Madrasi person, with whom her mother-in-law had been residing. In fact, the version in this dying declaration is that the mother-in-law used to reside with the appellant and Sheela only.

In cases where there is a plurality of dying declarations, the version therein should match with one another with respect to the time, place of occurrence, as to how the incident originated, as to the numbers and names of the persons named as culprits and their roles and reactions during and after the incident, etc. The difference in the versions on these aspects and the variations in that regard cannot be lightly discarded, particularly because the declarant is not available for cross-examination. To arrive at a finding of guilt, on the basis of the dying declaration or declarations, the court should feel confident with respect to two aspects, namely; "that the statement was indeed made" and that, "it must be true". The variations in the dying declarations, therefore, would create a doubt, not only about ''whether the statement of the deceased has been accurately stated or recorded, by the concerned witness'', but also about further ''whether the dying declarations are a true and reliable version of the happenings''. Apart from the non-availability of the declarant for cross-examination, generally, the declarant is not in a normal state of health, when such declarations are made. Lack of consistency in the version with respect to all material and relevant aspects, in all the dying declarations would create a doubt, inter alia, on the physical and mental ability of the declarant, and consequently lead to a doubt about what exactly had happened. As aforesaid, they cannot be held to be consistent, merely because they all implicate the accused person or persons.

In this context, a reference may be made to the evidence regarding the health condition of Sheela, when she is supposed to have made the dying declarations. In that regard, the evidence of Dr. Hrishikesh (PW 7) is important. He is the one, who had treated Sheela, after she had been admitted in the Ghati Hospital and according to him he had examined Sheela and found that she was ''conscious and oriented''. He had certified Sheela to be ''conscious and oriented in time, place and person'', and "in complete state of mind", to give a valid statement with respect to statement recorded by PSI Bolkar (PW 6). He had also certified the condition of Sheela as ''conscious and oriented'', when her statement was recorded by the SEM Smt. Prachi Kulkarni (Exh.-37). In the cross-examination, he mentioned that the condition of the patient was noted in the case papers and the case papers consisted his examination notes, ever since, Sheela was admitted in the hospital and till her death and that the notes also show drugs administered to her. He expressed his inability to state about the condition of the patient at the relevant period without going through the record. He admitted in the cross-examination, that the relatives of Sheela were present in the hospital when the police and the Special Executive Magistrate had visited the hospital. Interestingly, he claims to be present at the time when statement of Sheela was recorded by the police but no mss APEAL-603 question as to what Sheela stated, were asked to him in the examination-in-chief. Thus, though he (going by his version) has witnessed and heard the statements made by Sheela, he has not chosen to say what Sheela had stated. The prosecution did not want that evidence from him, but wanted only his medical opinion on the health condition of Sheela.

It is not in dispute that Sheela had sustained 91% burn injuries, over all parts of her body as has been reflected in the notes of the postmortem examination (Exh.-27).

Apart from the dying declarations mentioned above, there is also another dying declaration of Sheela, which is contained in the record of the document at Exh.-48. This is the record in respect of the medico legal case, recording the communication sent by ASI Jadhav, to the officer in-charge Mukundwadi (City) Police Station, Aurangabad. This records that Sheela was admitted in the Casualty Section of the Ghati Hospital by Shashikala (i.e. the mother-in-law of Sheela) and that Sheela had given the history of the incident to the casualty medical officer, on duty, as her having caught the fire accidentally, while cooking on the stove. Now, this dying declaration is entirely different from all the other dying declarations. In the cross-examination PSI Bolkar (PW 6) has admitted that he came to know from the record of the medico legal case that Sheela had disclosed to the casualty medical officer that while cooking on the stove, the incident had taken occurred. On further questioning, he agreed that he did not record the statement of the casualty medical officer and did not verify his record in the Ghati Hospital.

Even though the statement made by Sheela to the casualty medical officer has not been proved by examining the casualty medical officer, this aspect of the matter cannot be refused to be taken into consideration. It is because this was the earliest information available to the investigating agency about the incident. If in the course of investigation Sheela gave a different version of the incident, it was the duty of the investigating agency to ascertain which, out of the different versions of the incident given by her was true; and the earliest version could not have been automatically discarded by him. It was necessary for the investigating officer to have examined the casualty medical officer and recorded his statement in that regard. Instead of doing so, an attempt has been made to wipe out the effect and consequence of a statement allegedly made by Sheela to the casualty medical officer and reflected in the document at Exh.-48, by claiming that the history of the incident as reflected therein, was given not by Sheela but by her mother-in-law. There is no basis for such a claim and at any rate, that this aspect was not examined in the course of investigation by recording the statement of the casualty medical officer, indicates that investigation into that aspect has not been done seriously. The statement which could have been favourable to the defence was suppressed and prevented from being brought before the court. This is inconsistent with the principles of fairness.

In prosecuting the offenders, the prosecution is expected to be fair and bring to the notice of the court, even the circumstances, which would be favourable to an accused. It would be open for the prosecution to contend that these circumstances are not reliable or that the circumstances were created by the accused himself, or that the circumstances favourable to the prosecution should be preferred over them, but an attempt to hide or suppress the circumstances in favour of the accused, though revealed in the course of investigation, has to be discouraged. The fact, therefore, remains that, admittedly, some other version as to how Sheela caught fire was also available to the investigating agency but the investigating agency did not try to ascertain as to whether it was true. The appellant, is, therefore, entitled to claim that another version of the incident had also been given by Sheela, which was, inconsistent with the dying declarations of Sheela as have been relied upon by the prosecution and that, therefore, the value and reliability of the dying declarations relied upon by the prosecution should be judged and weighed by keeping this in mind.

After having held that the version in the various dying declarations relied upon by the prosecution is not uniform and that there are variations in the version inter se, the general version in the dying declarations, may be compared with the other evidence.

Now, Nitin (PW 5) the son of the deceased Sheela and the step son of the appellant is stated to be an eye-witness to the incident. According to Nitin, on the date of incident, the appellant was quarreling with Sheela, that he was drunk at that time and that he was demanding Rs. 1 lac from Sheela for the purchase of rickshaw. According to Nitin, he and his brother was asked by the appellant to go out of the house and then the appellant had closed the door of the house and quarrelled with Sheela. Nitin then states that the appellant poured kerosene on the person of Sheela and set her on fire. Nitin heard the sound of weeping of Sheela and that, then appellant opened the door of the house, when Nitin saw Sheela in a burnt condition. According to Nitin, Sheela asked him to telephone his maternal uncle i.e. Sheela''s brother and that accordingly Nitin made a telephone call which was answered by Sheela''s mother. In the cross-examination, Nitin admitted that the police made no inquiries with him till the death of his mother, and that, even after the death of his mother, the police did not record his statement. He also admitted in the cross-examination that as soon as he came to the court, he was told that his statement (recorded by police) was already on the file and that, therefore, he should make statement in the court, as per that statement. He also admitted in the cross-examination that he saw that the appellant had extinguished the fire caught by Sheela. A number of omissions on material aspects have been brought on record in the cross-examination of this witness and the learned Sessions Judge has not believed his evidence. The relevant discussion finds a place in para 21 of the impugned judgment. The learned Sessions Judge opined that he had been tutored and has categorically held that he could not be said to have witnessed the incident of setting Sheela on fire. The learned Sessions Judge accepted his evidence only to the extent that the appellant was present with Sheela in the room at the time of the incident.

In my opinion, the evidence of Nitin is not free from infirmities and doubt and has rightly been rejected by the learned Sessions Judge. However, what needs to be taken into consideration is that, Nitin does not speak about the presence of the mother-in-law of Sheela at all, and to this extent, renders the version in the dying declaration, to that effect, doubtful.

Reference may now be made to the defence evidence. Smt. Padmavati Pradhan (DW 1), (in whose house the appellant and Sheela were residing as tenants), has stated that, when the flames were noticed coming from the side of the room of the appellant, this witness and others had entered inside that room. Smt. Padmavati also states that the appellant put a quilt on the body of Sheela and extinguished the fire. That he also sustained burns to his hands and chest. In the cross-examination, this witness denied that the appellant used to ask Sheela to bring cash amount from her brother for purchasing rickshaw.

The evidence of Sachin (DW 2), son of the appellant, shows that on the day of incident there had been a quarrel between the appellant and Sheela and that, the accused had, thereafter, left the room. About 15 to 20 minutes thereafter, he and others heard the shouts of Sheela whereupon they went to the room and found that Sheela had got burnt, that he raised shouts when some persons came there and that the appellant also came there at that time. Thus his evidence shows that the appellant was not present in the room when Sheela caught fire.

The learned Addl. Sessions Judge did not believe the defence evidence. However, no reasons have been given by him for discarding the defence evidence, particularly that of Padmavati. In the facts and circumstances, however, I decline to go deeper and appreciate the evidence of defence meticulously as the same does not seem to be necessary for a proper decision.

This brings us to the scrutiny of the evidence of the relatives of Sheela i.e. Sunil (PW 1), Aruna (PW 2) and Sakubai (PW 4). What is revealed from their evidence is that, for Sheela as well as the appellant, their marriage with each other was a second marriage and that the same had taken place more than 10 years, before the incident. Sheela had two children born from her previous marriage. There is substance in the contention advanced by Shri Ghanekar, learned advocate for the appellant, that considering this aspect of the matter, whether there was any likelihood of the appellant having made demands for dowries, needs serious consideration. Apparently the marriage was a compromise and a matter of convenience for the appellant as well as Sheela.

Sunil (PW 1) has claimed that initially Sheela was treated well by the appellant for about five years and thereafter the demand of dowry started. He also states that the ill-treatment was continued by the appellant for one year. It is, thereafter, he speaks about the incident. Going by his evidence, it appears that Sheela was treated properly for five years then she was ill-treated for about one year and that the ill-treatment had come to an end thereafter, till about 15 days prior to the incident, when Sheela complained about the harassment from the appellant.

According to Aruna (PW 2), Sheela''s harassment by the appellant started two years after her marriage. According to her also, the appellant was demanding Rs. 1 lac from Sheela, asking her to bring the same from her father and brother. Same is the evidence of Sakubai (PW 4) in this regard namely; that after about two to three years from the marriage, the appellant had started demanding Rs. 1 lac for the purchase of rickshaw and that Sheela used to complain to Sakubai and others regarding that, whenever, she would visit their house.

It may be observed that the allegation regarding demand of dowry is not believable. It has been made for the first time after the death of Sheela. Apart from the fact that the circumstances, in which Sheela and the appellant got married, prima facie would not suggest that the appellant would be asking dowry from Sheela, the fact also remains that a continuous harassment for the same amount and for the same reason, for about 7 to 8 years, is, something which is difficult to accept. These witnesses, who are close relatives of Sheela are naturally aggrieved by her death and, therefore, the possibility of their holding the appellant responsible for the miseries of Sheela and advancing a version which would establish the commission of offence by the appellant, cannot be ruled out. Under these circumstances and keeping in mind the variations between the dying declarations inter se as also that the version therein being inconsistent with the other evidence on record, it is difficult to base a finding of guilt on the evidence regarding the dying declarations.

The dying declarations have not been believed fully by the learned Sessions Judge also. It is evident from the fact that the learned Sessions Judge acquitted the other accused against whom also, going by the version in at least some of the dying declarations, allegations had been made. Now, if the involvement of the other accused though stated in the dying declarations, was disbelieved, the dying declarations could not be relied upon only with respect to the involvement of the appellant in the alleged offences. It would be improper to believe the dying declarations partly as the maker is not available for cross-examination and the version in the dying declarations cannot be tested by cross-examination which is supposed to be a powerful method for discovery of truth. The dying declarations are, therefore, either accepted fully or rejected fully. They cannot be accepted with respect to a particular accused and disbelieved with respect to the other accused.

It may be recalled that Dr. Hrishikesh (PW 7) did not produce the case papers before the court and did not give his evidence by referring to the case papers. The learned Sessions Judge, however, believed his evidence, in spite of the same, as he was of the view that Dr. Hrishikesh was an independent witness and had no reason to state falsely about the state of health of Sheela and that he had no animus against any of the accused. This reasoning of the learned Sessions Judge cannot be accepted. That a witness had no animus against the accused, cannot be a parameter to hold him as a reliable witness. There are a number of reasons, why a person would depose falsely even though he would be an independent witness and one such reason can be to see that the supposed offender does not escape for want of evidence.

In my opinion, the evidence of Sheela being in a fit state of mind, at the time when she is supposed to have made the dying declarations, is not fee from doubt, particularly when it is viewed in the context of the variations that are appearing in the various version projected in different dying declarations.

Anyway, the learned Addl. Sessions Judge has himself come to the conclusion that the dying declarations were inconsistent. He has compared the dying declarations with the other evidence and has come to the conclusion that they could not be believed as regards the involvement of the other accused. Even after doubting considerable part of the dying declaration, the learned Sessions Judge, opined that the dying declarations "inspire confidence to the extent they implicate the appellant". This is not logical and is inconsistent with the legal position which permits the finding of guilt to be based solely on the dying declarations provided the dying declarations would be absolutely reliable. If the maker of the dying declaration is not believed with respect to a material part of the version, it would be hazardous to believe the declaration with respect to the other parts of the version.

The learned Sessions Judge was impressed by the fact that the spot panchnama (Exh.-21), did not show any cooking material and stove found in the room. He, therefore, disbelieved the version in the MLC intimation (Exh.-48) that Sheela had sustained injuries due to bursting of the stove. It is difficult to accept this reasoning. In a living household, there has to be some method of cooking the food and, if no gas or stove would be found in such a room, it would be a quite suspicious. The circumstances, namely-of not finding of a stove in the room during spot panchnama, which the learned Sessions Judge viewed as against the appellant, should actually be viewed in his favour inasmuch as the possibility of the stove having been deliberately removed from the room, would be quite likely in the circumstances. If indeed the stove had been burst, that would have falsified the prosecution case and, therefore, the possibility of the stove having been removed to justify the allegation, would not be ruled out. This is certainly more likely than the theories that there was no stove or other cooking material available in the room at all though a full fledged family consisting of six persons was residing there. The learned Sessions Judge, apparently, viewed the factor that the appellant did not explain how Sheela was burnt very adversely to him. The learned Sessions Judge overlooked that the case of the appellant was that he was not present in the room at the time and that when he came in the room, Sheela had already caught fire. There was no evidence to positively contradict this version and, therefore, the failure of the appellant to explain how Sheela got burnt, could not have been viewed as a circumstances against the appellant.

The conclusion of the learned Sessions Judge that dying declarations though not consistent and believable entirely, were consistent to the extent of the role played by the appellant, is not proper or legal. The learned Sessions Judge has not been able to appreciate the evidence with respect to the dying declarations by applying proper and accepted parameters and principles.

This was a case where the evidence of the dying declarations was not reliable and convincing.

As such it was not possible to base a finding of guilt solely on such evidence -there being no other evidence to support the allegation against the appellant and the evidence of the supposed eye-witness rightly being disbelieved by the trial court. The appellant was entitled to be acquitted.

The appeal is allowed.

The impugned judgment of conviction is set aside.

The appellant is acquitted. He be set at liberty forthwith, unless required to be detained in connection with some other case.

Fine, if paid, be refunded to the appellant.