Namdeo Digamber Bitode vs State of Maharashtra

P.N. Deshmukh, J—The appellant has preferred this criminal appeal against the judgment and order dated 13/12/2012 passed by the learned Additional Sessions Judge, Washim in Sessions Trial No. 35/2010 thereby convicting appellant/accused no.1 Namdeo for the offence punishable under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 3000/-, in default to suffer simple imprisonment for six months. He is, however, acquitted of the offence punishable under Section 498-A of Indian Penal Code. Accused no.2 Parwatabai Digamber Bitode, accused no.3 Sau. Nita Laxman Bitode and accused no.4 Laxman Digamber Bitode are acquitted of the offences punishable under Sections 302 and 498-A read with Section 34 of Indian Penal Code.

The prosecution case, as unfolded during trial, is as follows :

Accused no.1 Namdeo is husband while accused nos.2 to 4 are mother-in-law, sister-in-law and brother-in-law of deceased Shobha. On 8/1/2010, P.W.8 Manjusha, probationary PSI attached to Police Station, Washim received information from City Hospital, Washim vide Exh. 85 in respect of admission of Shobha in the Hospital on her sustaining 70% burn injuries at about 1.30 p.m. Accordingly, she took entry in the Station Diary and proceeded to the Hospital. On reaching Hospital, she issued requisition letter (Exh. 97) to P.W.4 Dr. Susadkar, Medical Officer, City Hospital, Washim to certify physical and mental condition of Shobha for recording her statement, which was accordingly certified vide Exh. 82 and P.W.8 Manjusha recorded her statement (Exh. 98) involving all the accused in the incident of setting her ablaze. On recording the statement as aforesaid, Shobha was again examined by the Medical Officer, who found her in a fit state of mind as per medical endorsement (Exh. 83).

On the basis of the said statement of Shobha, P.W.7 Hemant Patil, A.P.I. registered offences punishable under Sections 307 and 498-A read with Section 34 of Indian Penal Code vide Crime No. 5/2010 against accused. Printed first information report is at Exh. 91. Investigation of this crime was carried out by P.W.6 Jaiswal, P.S.I. In the meantime, Shobha was referred for better treatment to Civil Hospital, Akola where P.W.1 Dattatraya Chalisgaonkar, Executive Magistrate after getting her medically examined by P.W.3 Dr. Deshpande, recorded her statement as per Exh. 48.

During the course of investigation, P.W.6 Jaiswal, Investigating Officer on 10/1/2010 recorded statement of Shobha at Exh. 92 after getting her mental and physical condition certified by P.W.3 Dr. Deshpande vide Exh. 80. It is the case of prosecution that in all her statements, Shobha had alleged that her husband Namdeo poured kerosene on her person while co-accused assisted him in bringing match box and holding her hands while co-accused Laxman instigated accused no.1 Namdeo to lit her with the help of match-stick.

On recording statements of witnesses, spot panchanama (Exh. 50) came to be drawn. On 13/1/2010 Shobha succumbed to her injuries while under the medical treatment, of which information was received in the Police Station and accordingly offence was converted into one punishable under Section 302 of Indian Penal Code. Accordingly, inquest panchanama (Exh. 66) came to be drawn and dead body was forwarded for autopsy to Dr. Negi and Dr. Kale, who performed the same and have issued post mortem notes (Exh. 66), according to which the probable cause of death was due to 100% burn injuries. The clothes of deceased Shobha were seized under seizure panchanama (Exh. 51). On arrest of accused, one stone and stick came to be recovered under memorandum statement (Exh. 88), which were seized as per seizure panchanama (Exh. 89) at the instance of co-accused Laxman.

On completion of investigation, charge-sheet came to be filed before the Court of Judicial Magistrate, First Class, Washim. In the course of time, case came to be committed for trial before the learned Court of Sessions. Charge was framed against accused for the offences punishable under Sections 302 and 498-A read with Section 34 of Indian Penal Code. The accused denied the same and claimed to be tried. The defence of accused was that of total denial. The learned trial Judge, on considering the evidence, acquitted accused nos. 2 to 4 on both the counts, however, while acquitting appellant for the offence punishable under Section 498-A of Indian Penal Code, has convicted him for the offence punishable under Section 302 of Indian Penal Code. Hence, this criminal appeal.

Heard learned Counsel for both the sides and with their assistance, we have scrutinized the evidence and documents on record. In support of the appeal, Shri Daruwala, learned Counsel for appellant, has submitted that neither of three dying declarations involved in the present case is reliable as there are material variances in these documents, which affect credibility of the evidence and has thus prayed that the appeal may be allowed.

On the other hand, Smt. Mehta, learned Additional Public Prosecutor for respondent, has submitted that there are minor variances in the dying declarations and such variances have no relevance and, therefore, such documents can be duly relied upon. It is thus prayed that the appeal may be dismissed.

In the background of above facts, since the case of prosecution is based on multiple dying declarations, we have first considered evidence of P.W.8 Manjusha, who has recorded first dying declaration in point of time on 8/1/2010 at about 2.40 p.m., which is on record (Exh. 98). P.W.8 Manjusha has stated that on 8/1/2010 while she was on duty in Washim Police Station at about 2 p.m. to 2.30 p.m. she received information from Government Hospital, Washim about admission of Shobha in the Hospital for having sustained 70% burn injuries (Exh. 85) and she accordingly on taking entry in the Station Diary, visited the said Hospital for recording her dying declaration. She has stated that on reaching Burn Ward, she was taken near Shobha, who was found administered saline and she thus issued requisition memo to P.W.4 Dr. Susadkar for certifying mental and physical condition of Shobha to record her statement as per Exh. 97. The said Medical Officer on examining the patient, declared her to be fit to make statement vide Exh. 82 and she thereafter recorded statement of Shobha wherein she has stated that wife of brother of her husband beat her with stone, her husband poured kerosene on her person, mother-in-law brought match box and brother of her husband instigated to set her on fire by igniting match-stick and accordingly her husband lit her with the help of match-stick and she came out of house in burning condition and neighbours doused fire and appellant took her to Hospital in an auto-rickshaw. P.W.8 Manjusha has further deposed that on recording statement, she read over contents thereof to its maker, who admitted to have correctly recorded and then obtained her thumb impression and has also signed the same. She has further stated that Medical Officer thereafter examined deceased Shobha and put his medical endorsement as per Exh. 83 and she then handed over the same to P.W.7 Hemant Patil, A.P.I., who, on the basis of the said statement, registered offences against accused.

In her cross-examination, P.W.8 Manjusha was suggested that at about 2.30 p.m. on 8/1/2010, information was received in Police Station to the effect that Shobha immolated herself by pouring kerosene on her person, of which station diary entry was taken, which is denied by her for want of knowledge. She has admitted to have obtained thumb impressions of Shobha on two places as her thumb impressions were not appearing clearly due to burning of her thumbs. She has denied that thumbs of Shobha were completely burnt and as such, she could not obtain her thumb impressions and thumb impressions thus obtained on her statement (Exh. 98) do not belong to Shobha. She has also denied that since Shobha was completely burnt, she was not in a position to talk. The contents of Exh. 98 corroborate the oral version of P.W.8 Manjusha.

The second dying declaration came to be recorded on the same day, i.e. on 8/1/2010 between 5.10 p.m. and 5.20 p.m. vide Exh. 48 by P.W.1 Dattatraya Chalisgaonkar, Executive Magistrate, who has stated that on that day, he was working as such and had received requisition from City Kotwali Police Station, Akola for recording dying declaration of Shobha at about 4 p.m. and accordingly reached Government Hospital and requested the Medical Officer present there to certify whether patient was fit to make a statement. On his certifying that patient was fit for recording her statement, he interrogated Shobha when she disclosed that Namdeo Bitode had poured kerosene on her and set her ablaze, which he reduced into writing and read over to her and obtained impression of her right toe and then signed the same. He then got Shobha medically examined from P.W.3 Dr. Deshpande, who certified her to be in a fit condition while recording her statement and has proved the said statement on record (Exh. 48).

In his cross-examination, P.W.1 Chalisgaonkar has admitted that when he recorded statement of Shobha, there were relatives near her and her both thumbs had burnt injuries and as such, it was not possible for him to obtain her thumb impression. He has further admitted that at the time of his visiting Shobha, she was screaming in pain and the Medical Officer for ascertaining her physical condition and consciousness had put her certain questions and then issued the certificate.

The third dying declaration of Shobha was recorded by P.W.6 Jaiswal, P.S.I. after two days of incident, i.e. on 10/1/2010 at around 4 p.m. He has stated that while conducting investigating in this crime, he visited Government Hospital, Akola and recorded statement of Shobha as per Exh. 92. He has further stated that before recording said statement, he got Shobha medically examined from the Medical Officer, who vide Exh. 80 gave medical endorsement about fitness of Shobha. Rest of his evidence is with reference to investigation part carried out by him in this crime. On the point of dying declaration (Exh. 92), he has denied that both hands, palms and thumbs of Shobha were completely burnt and according to him, dying declaration recorded by him bears thumb impression of left hand of Shobha and he has voluntarily stated that entire body of Shobha was burnt except thumbs. He has admitted that after recording dying declaration (Exh. 92), he had not obtained medical endorsement from the Doctor. He has denied that thumb impression appearing in Exh. 92 does not belong to Shobha and that he had obtained medical endorsement (Exh. 80) after recording dying declaration (Exh. 92).

On considering evidence of above three material witnesses relied by prosecution, evidence of P.W.4 Dr. Susadkar reveals that on the request made by Police officials on 8/1/2010, he had examined Shobha and issued fitness certificate as per Exh. 82 and after her statement was recorded in his presence, he had again examined Shobha and issued medical endorsement vide Exh. 83. The said Medical Officer had examined patient at the time of her admission in the Hospital, who was noted to have sustained one contusion on left temporal region with 80% burnt injuries over whole body. He has also proved injury certificate at Exh. 84.

In his cross-examination, Medical Officer admits to have not obtained thumb impression of Shobha on injury certificate (Exh. 84) and has stated that her left hand thumb impressions were obtained on her statement recorded by Police in his presence.

Evidence of P.W.3 Dr. Deshpande, Medical Officer attached to Government Hospital, Akola reveals that on 8/1/2010 while he was on duty in the above Hospital, P.W.1 Dattatraya Chalisgaonkar, Executive Magistrate issued him requisition for examining Shobha for recording her dying declaration. Accordingly, he examined her and found her fit to make statement and thereafter her statement was recorded after which he had examined her and certified that during recording of statement, patient was fit to make a statement. He has further stated that on 10/1/2010 at about 4 p.m. he again received requisition for examining Shobha whether she was physically fit to make a statement and had accordingly examined her and thereafter he went out and statement of patient was recorded by Police.

In cross-examination, P.W.3 Dr. Deshpande has admitted that patient had sustained 97% to 100% burns and was administered anti-biotics, intravenous fluids and pain killers. He has admitted to have not examined her limbs. However, according to him, in his presence, P.W.1 Dattatraya Chalisgaonkar had obtained her left hand thumb impression on her statement. He has then stated that impression of toe of patient was taken on the statement.

In view of above evidence of Medical Officers and of witnesses, who have recorded dying declarations as per Exh. 98, 48 and 92 respectively, we have to first satisfy ourselves whether these statements are worthy to be relied upon and inspire confidence. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. It is not the plurality of the dying declarations, bu the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. 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. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declarations, the Court has to examine the same in the light of various surrounding facts and circumstances.

In that view of the matter, on scrutinizing the three dying declarations collectively, we find that in Exh. 98 what is stated by Shobha is accused no.3, i.e. wife of brother of her husband beat her with stone, accused no.1 husband poured kerosene on her person, accused no.2 mother-in-law brought a match box, accused no.4 brother of her husband instigated to set her on fire by igniting match-stick and accordingly her husband lit her with the help of match-stick and she came out running in a burning condition when neighbours extinguished fire and her husband took her to Hospital.

Second dying declaration was recorded by P.W.1 Dattatraya Chalisgaonkar on the same day at about 5.10 p.m. to 5.20 p.m. wherein Shobha has implicated accused no.1 alone and stated that Namdeo Bitode set her on fire on pouring kerosene.

According to contents of third dying declaration recorded by P.W.6 Jaiswal, Investigating Officer, on 8/1/2010 at about 10 a.m. appellant was in the house and he told Shobha that her other sisters and family members are enjoying all the money of her mother and they are not getting any share and, therefore, threatened her to give electric shock and to kill her. As per its further contents, by saying so, appellant on getting electric wire, tried to give her electric shock. However, he could not get success in it and Shobha thus gave information of said incident to her relative Kundlik on phone that her husband has assaulted her on that day and, therefore, he should come and he assured her to reach her house immediately. She has further stated that thereafter when all the accused were in the house, appellant said to her why she had made a phone call to her relative and, therefore, he would set her on fire and kill her and on saying so, he poured kerosene out of 5 litres can on her person while her mother-in-law and sister-in-law caught hold of her hands and her husband set her on fire by match-stick and before that, her brother-in-law Laxman was instigating them.

Since the case is based on multiple dying declarations, it is necessary to consider whether the same are truthful and can be acted upon. On considering above dying declarations, we find that there are material inconsistencies in all the three dying declarations. In fact, it is noted that in respect of incident, there are major variances though there is common thread in all these documents that it was appellant, who had set her ablaze. However, we reiterate that in cases resting on multiple dying declarations, the Court cannot pick and choose any one of the dying declarations and all the dying declarations have to be consistent in respect of material aspects of the incident. It is well settled law that consistency is expected in multiple dying declarations in respect of names, number of accused, sequence of events and incident, etc. Having considered contents of above three dying declarations, we do not find same to be consistent to each other as there are material variances in respect of incident itself as in Exh. 98 though deceased Shobha has involved appellant as well as his family members, in the subsequent dying declaration, which was recorded on the same day after gap of three hours, has named appellant alone while in the third dying declaration (Exh. 92) recorded by the Investigating Officer after gap of two days, has come out with various other details as mentioned aforesaid.

In view of above material inconsistencies in the dying declarations, according to us, no reliance can be placed on any one of them as acceptance of any one dying declaration necessarily renders others as false. Merely because overt act attributed to appellant is consistent in these dying declarations, that by itself would not make the dying declaration reliable piece of evidence.

Apart from above, we reiterate that for relying upon dying declaration, basic requirements of a valid dying declaration are necessary to be established, which are :

1) Examination of the patient by the Doctor before recording of his statement and a certificate by the Doctor that the person (patient) is in a sound mental state to give a statement.

2) Presence of the Doctor near the patient during recording of the statement.

3) Relations of the patient should not be in a vicinity and should be removed from the room wherein the statement of the patient is being recorded, so that a voluntary statement free from any influence or tutoring could be obtained.

4) Last, but not the least, after recording of the statement, the same must be read over to the person (patient) and confirmation by the person that the statement is correctly recorded and the statement is true.

In view of above requirements, we find that there is no convincing evidence on the point of obtaining thumb impression of deceased Shobha as according to P.W.8 Manjusha, both the hands of Shobha were completely burnt and thus, she had obtained thumb impression of both hands of Shobha at two places of her statement as impressions were not appearing clearly while according to P.W.1 Dattatraya Chalisgaonkar, Executive Magistrate, both the thumbs of patient had burnt injuries and, therefore, he could not obtain her thumb impression and according to P.W.3 Dr. Deshpande though he had initially stated that P.W.1 Dattatraya Chalisgaonkar obtained thumb impression of Shobha on her statement, in fact impression of toe of the patient was taken on her statement while according to P.W.4 Dr. Susadkar after recording statement of Shobha by P.W.8 Manjusha in his presence, thumb impression of Shobha was taken on her statement. Thus, there is no cogent evidence whether thumb impression of Shobha was obtained on her statement while according to contents of post mortem notes (Exh. 66), Shobha had sustained 100% burn injuries and both her upper and lower limbs were also fully burnt. The cause of death was as such 100% burn injuries.

Similarly, the medical endorsements put by P.W.4 Dr. Susadkar are to the effect that "dying declaration done in front of me, patient well oriented with time, place and person", which are given after recording of dying declaration (Exh. 98), while as per Exh. 82 before recording of dying declaration, P.W.4 Susadkar had certified that patient was conscious, well oriented with time, place and person. According to P.W.3 Dr. Deshpande, who had examined Shobha before recording of her second dying declaration (Exh.48), patient was conscious, oriented and fit to make valid statements and on recording her statement, it was certified that dying declaration was recorded in his presence while as per medical endorsements on third dying declaration (Exh. 92) recorded by P.W.6 Jaiswal, it was certified that patient was conscious, oriented and able to make valid statements, but there is no such endorsement after recording of her statement. In fact, it has come in the evidence of P.W.3 Dr. Deshpande that after his examining the patient, he went out and afterwards statement of Shobha was recorded by Police. In view of his evidence, it is amply clear that physical condition of Shobha was not ascertained by Medical Officer after recording her dying declaration. Even otherwise, medical endorsements on Exhs. 98, 48 and 92 do not establish that mental and physical condition of patient was fit to make a statement. It is well settled law that one of the important tests of credibility of the dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on dying declaration, the Court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the fact is found to be impaired, such dying declaration should be rejected, as it is highly unsafe to place reliance on it. The dying declaration should be voluntary and should not be prompted and physical as well as mental fitness of the maker is to be proved by the prosecution. However, in the appeal in hand all these basic requirements are missing. In view of above discussion, we are inclined to disbelieve the dying declarations involved in this case.

Though prosecution has relied on the evidence of P.W.2 Dhrupadabai on the point of oral dying declaration given to her by deceased Shobha when she has stated that on receiving information, she visited Hospital at Washim and had enquired from Shobha about the incident when she told that her husband poured kerosene on her person and other accused had caught hold of her, instigated her husband and then her husband set her on fire, as contents of said statement alleged to be made to her by Shobha are totally inconsistent with the statements in dying declarations as aforesaid, the same cannot be acted upon. Even otherwise, oral dying declaration is a weak piece of evidence and cannot be relied upon in the absence of substantial evidence corroborating the same and establishing its truthfulness.

Having considered the inherent inconsistencies in the dying declarations, such dying declarations cannot be considered as sufficient to be relied upon to hold appellant guilty in view of the fact that nature of discrepancies in the dying declarations make them doubtful. The nature of inconsistencies is such that they are certainly material. That being so, it would be unsafe to convict the appellant. Therefore, we are inclined to set aside the conviction and acquit the appellant of the charge levelled against him as per order below.

Order

Criminal Appeal No. 131/2013 is allowed. The impugned judgment and order dated 13/12/2012 passed by the learned Additional Sessions Judge, Washim in Sessions Trial No. 35/2010 convicting and sentencing the appellant for the offence punishable under Section 302 of Indian Penal Code is set aside. The appellant is acquitted of the said offence. The appellant be set at liberty, if not required in any other case.

The fee payable to the learned Counsel appointed for appellant is quantified as rupees five thousand.