Sanjay Vasantrao Saosakde vs The State of Maharashtra

P.N. Deshmukh, J.—This appeal is preferred against the judgment and order dated 18th of April, 2012 passed by the learned Additional Sessions Judge, Warora in Sessions Case No. 7 of 2010, by which appellant/accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer life imprisonment and to pay a fine of Rs. 3000/-, in default to suffer simple imprisonment for 15 days. The appellant is acquitted of the offence punishable under Section 498-A of the Indian Penal Code.

Briefly, it is the case of prosecution that on 8th of December, 2009 at 1.15 am deceased Panchfula was referred from Rural Hospital Warora to General Hospital, Chandrapur for having sustained 94% burn injuries. On her admission, information was given to Police Station Officer, Chandrapur upon which PW 1 Dinkar Kalmeghe, ASI, visited the patient and on examining her from Medical Officer, recorded her statement (Exh. 16) wherein she has stated that the appellant quarreled with her under the influence of liquor and poured kerosene on her person and set her on fire. On the basis of said statement Crime No. 0 of 2009 was registered under Section 307 of the Indian Penal Code by Police Station, Chandrapur. PW 1 Dinkar, ASI, thereafter gave requisition to PW 7 Prakash Ramteke, Naib Tahsildar, for recording Dying Declaration which was accordingly recorded at 2.30 am vide Exh. 32. Deceased succumbed to her injuries on 12th of December, 2009. Inquest panchanama was drawn and dead body was sent for Post-Mortem which was performed by PW 5 Dr. Amol Anjankar and issued Post Mortem note (Exh. 28). According to the expert, death was caused due to septicemia due to 93.5% burns. The documents in this crime were then forwarded to Police Station Shegaon where offence came to be registered vide Crime No. 102 of 2009 and was further investigated by PW 17 Vitthal Sase, API, during the course of which he forwarded Muddemal articles to the Chemical Analyzer for analysis. On recording statement of material witnesses, investigation came to be concluded and charge-sheet was filed in the Court of Judicial Magistrate (F.C.), Warora.

In the course of time, case came to be committed to the Court of Sessions for trial. Charges were framed against the appellant vide Exh. 5 for the offences punishable under Sections 302 and 498-A of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. His defence is of total denial. In the alternative, it is the case of appellant that deceased committed suicide in the heat of anger.

The learned Sessions Judge, Warora after considering the evidence and documents, convicted the appellant as aforesaid, hence this appeal.

Heard Shri R.M. Daga, learned counsel for the appellant and Shri S.M. Ukey, learned Additional Public Prosecutor for the State.

To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, we have scrutinized the evidence on record.

Admittedly, the case of prosecution is based on circumstantial evidence, particularly the written Dying Declaration (Exh. 16) recorded by PW 1 Dinkar Kalmegh, ASI, and subsequent Dying Declaration (Exh. 32) recorded by PW 7 Prakash Ramteke, Naib Tahsildar coupled with oral Dying Declarations relied by prosecution on examining PW 3 Sudhakar Dadmal, brother of deceased and PW 9 Nathu Dadmal, father of deceased.

In the light of above case of prosecution and facts, we have thus first considered evidence on record with reference to two written Dying Declarations. It has come in the evidence of PW 1 Dinkar Kahmeghe, ASI, that on 8th of December, 2009 while he was present at General Hospital, Chandrapur, he received requisition Memo (Exh. 15) for recording Dying Declaration and accordingly he contacted Medical Officer and obtained his medical endorsement if patient was conscious and in a position to make statement. On receipt of such medical endorsement from PW 8 Dr. Praful, he recorded Dying Declaration wherein deceased is said to have stated that in the night while he was taking rest after having meals, accused arrived under the influence of liquor and quarrelled with her. When she stated that she is going out, appellant told her not to go out and die there only and poured kerosene on her person and set her on fire. Accordingly, PW 1 Dinkar recorded her statement (Exh. 16) and thereafter issued requisition memo to Special Executive Magistrate for recording Dying Declaration vide Exh. 17 and on the basis of said statement registered FIR at Exh. 18.

Before considering further evidence on record, we find it necessary to reiterate the basis requirements of valid Dying Declaration as: (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 the 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 a confirmation by the person that the statement is correctly recorded and the statement is true.

In the background of above basic requirements, PW 1 Dinkar, ASI, appears to have admitted to have not obtained medical endorsement on concluding statement Exh. 16 and has admitted that before he commenced recording of said statement relatives of lady (victim) were present with her. Though PW 1 admits that after recording statement of patient medical endorsement is required, he has stated that doctor concerned told him that second certificate is not required. Thus, according to this witness, he has not obtained any medical endorsement on concluding Dying Declaration (Exh. 16).

Perusal of Dying Declaration (Exh. 16) reveals that there is no endorsement by doctor certifying that the patient was mentally and physically fit throughout recording of statement, though there is endorsement made prior to recording of statement to the effect that the patient is fit to give statement. Similarly, there is also no endorsement made by PW 1 Dinkar on concluding the statement if contents thereof were read over to its maker and if same were admittedly to be truly recorded as stated by her.

In the background of above facts, we have further considered evidence on record with reference to subsequent Dying Declaration (Exh. 32) recorded by PW 7 Prakash Ramteke, Naib Tahsildar. He has stated that on receipt of requisition letter (Exh. 17), he visited General Hospital, Chandrapur and on meeting Medical Officer, who was treating the patient, he informed him that he wanted to record statement and recorded the same after Medical Officer examined the patient and certified her to be fully conscious for making the statement. It is further stated that after asking preliminary questions about her name, residence and incident, injured is stated to have said that in the night while she was taking meals, quarrel took place between her and the appellant due to which she was to go out of house, upon which appellant told her as to how she goes out and poured kerosene on her person and set her on fire by match box. Accordingly, Dying Declaration (Exh. 32) came to be recorded. On perusal of Dying Declaration (Exh. 32) though there appears medical endorsement given by Medical Officer prior to recording of said statement, there is no such endorsement made by the Medical Officer concerned, after Dying Declaration was recorded certifying physical and mental condition of the patient. There is also no endorsement of PW 7 Prakash about his reading contents thereof to its maker and the lady admitting the same to be correctly recorded as stated by her. In fact, PW 7 Naib Tahsildar, has admitted that on completion of recording of Dying Declaration (Exh. 32), no medical endorsement is made by the doctor. It is further admitted that the condition of lady was serious.

Having considering above evidence on record, we find that neither of these Dying Declarations can said to be fulfilling basic requirements as aforesaid.

Learned counsel for the appellant by referring to the timings mentioned in both these Dying Declarations (Exh. 16 and Exh. 32) has further raised doubt of its truthfulness contending that Dying Declaration Exh. 16 came to be recorded between 2.00 am and 2.20 am, after patient was alleged to be examined by PW 8 Dr. Praful at 2.00 a.m., and according to subsequent Dying Declaration Exh. 32 same was recorded in the same night between 2.40 am and 2.45 am after victim was medically examined at 2.20 am. These timings itself raise doubt to rely upon these documents in the light of submissions advanced, as stated above. On bare perusal of both these documents it reveals that before recording Dying Declaration (Exh. 16), PW 8 Dr. Praful had given medical endorsement on 8th of December, 2009 at 1.50 am and the Dying Declaration came to be commenced at 2.00 am was concluded at 2.20 p.m. while according to subsequent Dying Declaration (Exh. 32) same Medical Officer, in the same night, had given medical endorsement at 2.20 am and thereafter this document came to be commenced at 2.30 am and concluded at 2.45 am We find it necessary to note that in the evidence of PW 1 Dinkar who recorded Dying Declaration (Exh. 16), and PW 7 Prakash, Naib Tahsildar, who recorded subsequent Dying Declaration (Exh. 32), have not referred presence of each other at the spot where both these documents came to be scribed as, in fact, according to the case of prosecution, when Dying Declaration (Exh. 16) came to be concluded at 2.20 a.m., endorsement was given on Dying Declaration (Exh. 32) at the same time at 2.20 a.m. in the same night. In that view of the matter, it was expected from the prosecution to clarify on this aspect, as for the purpose of examining the patient to ascertain physical as well as mental state of maker, at least, some reasonable time is required. However, on considering these two documents it appears that endorsement put on Dying Declaration (Exh. 32) is given by PW 8 Dr. Praful mechanically without undertaking any medical examination of victim as Dying Declaration (Exh. 16) is concluded at 2.20 am., while the medical endorsement on Dying Declaration (Exh. 32) is given at the same time. In the absence of any reasonable explanation put forth by prosecution on these aspects, particularly on the aspect of timings as aforesaid, raises grave doubt about veracity of two Dying Declarations (Exh. 16 and Exh. 32). Hence, we are not inclined to place reliance on these two Dying Declarations on this count.

Moreover, both these documents also do not appear to be consistent to be relied upon as it is noted from the evidence of PW 1 Dinkar, ASI, as well as contents of Dying Declaration (Exh. 16), that the deceased has stated that in the night after taking meals when she was resting, appellant came under the influence of liquor upon which quarrel took place between them when deceased told that she is going out. At that time appellant told her not to go and to die there only and saying so poured kerosene on her person and set her on fire. However, according to the evidence of PW 7 Prakash, Naib Tahsildar, and the contents of Dying Declaration (Exh. 32), it has come on record that deceased has stated that in the night, while taking meal there was quarrel with the appellant and after extreme quarrel she started going out of the house upon which appellant told her as to how she goes out? and poured kerosene on her person and set her on fire by match box. It would thus be seen that in respect of incident there is major variance though there is a common thread in both the Dying Declarations that it was the appellant who had set her ablaze. However, we find it necessary to note that in cases resting on multiple Dying Declarations, the Court cannot pick and choose any one of the Dying Declarations. All the Dying Declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple Dying Declarations in respect of incident. In these two Dying Declarations there is variance in respect of incident itself. The variance is apparent on perusal of Dying Declarations, as according to the contents of Dying Declaration (Exh. 16), the incident is stated to have taken place after meal when deceased was resting, while in second Dying Declaration (Exh. 32) the incident took place while the deceased was taking meals with the appellant and it is the deceased who had quarrelled with the appellant. Similarly, Dying Declaration (Exh. 32) is silent about arrival of appellant in drunken condition at the place where the deceased was resting. Similarly, in first statement, deceased has stated that she told appellant that she is going out but the appellant told her to not to go and to die there and then poured kerosene on her person and set her on fire while in subsequent Dying Declaration (Exh. 32), after the extreme quarrel, the deceased started going out of the house when appellant told her how she goes out? and then poured kerosene on her person and set her on fire by match box. There is no mention of match-box in the first Dying Declaration. Having considering above inconsistencies in both these Dying Declarations, according to us, therefore, no reliance can be placed on any of them as acceptance of any one of the Dying Declarations necessarily renders the other as false. If in the Dying Declaration truthfulness of the narration itself is rendered doubtful, no reliance whatsoever, can be placed on such Dying Declaration. Merely because the overt act attributed to the appellant is consistent in both the Dying Declarations, it would not make Dying Declarations reliable piece of evidence as such type of declarations cannot be said to have passed all the tests of reliability as stated aforesaid. Therefore, no reliance can be placed on these documents on this counts also.

On this aspect, we have further found it necessary to discuss evidence of defence witness DW 1 Sudhakar Uikey, who was attached to General Hospital, Chandrapur. By examining him, defence has brought on record the bed-head ticket (Exh. 18) of the victim. Prosecution has also examined DW 2 Dr. Nilesh Padgelwar, who has stated that he was working as Medical Officer, General Hospital, Chandrapur and on 8th of December, 2009, according to the bed-head ticket (Exh. 18), Panchfula was admitted in Hospital for sustaining 95% burn injuries by the Casualty Medical Officer, to whom he had examined and had taken entries in the bed-head ticket in which it was mentioned that the injured was admitted in serious condition and pain-killer injection was administered to her. He further stated that on examining Panchfula he found her general condition to be poor and as per bed-head ticket he had administered Diclofenac and Penzyn injection. He has further stated that on administering these injections, the patient remains under the influence of painkiller for about six hours and condition is stated to be deteriorating from time to time. He has also stated to have administered pain-killer injection to her and has also given idea about serious physical condition of the patient to her relatives. He has admitted that such patients can become unconscious at any time. Nothing material could be brought on record in the cross-examination of this witness except for his admitting that even after administering above injections patient remains conscious. However, there is no further cross-examination with reference to consciousness of patient and his mental alertness even if the patient can be said to be conscious. What is required for the purpose of recording Dying Declaration is mental alertness of the patient as, by administering pain-killer, it is admitted by this expert witness that the patient would not become unconscious.

In that view of the matter, though patient appears to be conscious, it is necessary to consider whether she was mentally alert to make any statement. On this aspect, on considering requisition memo (Exh. 15) issued to PW 1 Dinkar, ASI, from General Hospital, Chandrapur, it is stated that Panchfula was admitted on 8th of December, 2009 having sustained 95% burn injuries at 1.10 am while according to Dying Declaration (Exh. 16) same came to be recorded between 2.00 am and 2.20 am and subsequent Dying Declaration (Exh. 32) came to be recorded between 2.30 am and 2.45 am. In that view of the matter, it has come on record that both these Dying Declarations are recorded within six hours from administering pain-killer injection to Panchfula of which, according to DW 2 Dr. Nilesh Padgelwar, influence remains for the period of six hours from the time of administration.

In the background of above facts, we thus find it useful to refer to the decision in the case of Surinder Kumar vs.. State of Haryana, reported in 2002 ALL MR (Cri) 696 (S.C.), where in para No. 17 of its judgment the Apex Court had considered the fact that at the relevant time deceased Kamlesh was under the influence of Fortwin and Pethidine injections and was not supposed to be having normal alertness and had therefore held that the Dying Declaration does not inspire confidence and therefore granted benefit of doubt to the accused.

It is well settled that one of the important tests of the 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.

In the circumstances, we find it necessary to make a specific note that while appreciating the evidence on Dying Declaration the Court has to be extremely cautious, as declarant is not available for cross-examination, apart from truthfulness of the contents of the Dying Declaration as well as fact that the declarant was in a fit mental condition to give statement. In the appeal in hand, we find that the prosecution has miserably failed to prove the above material aspect beyond reasonable doubt. Though prosecution has also relied upon oral Dying Declaration by relying upon evidence of PW 3 Sudhakar Dadmal, brother of the deceased and PW 9, Nathu Dadmal, father of the deceased, we are not inclined to rely upon said evidence, as evidence of neither of these witnesses inspire confidence as PW 3 Sudhakar along with PW 9 Nathu have stated that on their meeting Panchfula in the hospital, she had stated about the incident involving appellant to have poured kerosene on her person and to have set her on fire. His evidence does not find to be corroborated by PW 9 Nathu, father of deceased, as he in his evidence has nowhere referred the presence of PW 3 Sudhakar with him in the hospital. Even otherwise it is the case of prosecution that these relations of deceased had met her on the next day at 8.00 am to 8.30 am. which is admitted by PW 9 Nathu. Having considering earlier evidence of Dr. Nilesh based on bed-head ticket (Exh. 86), since it has come on record that on admission Panchfula was given painkiller injection, evidence of both these witnesses on oral Dying Declaration does not appear sufficient to be acted upon. Having discussed above said evidence, according to us, this is a fit case for giving benefit of doubt to the appellant and accordingly we pass the following order.

Criminal Appeal No. 314 of 2012 is allowed.

The order of conviction and sentence passed by Additional Sessions Judge, Warora in Sessions Case No. 7 of 2010, convicting appellant - Sanjay Vasantrao Saosakde, for an offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside.

The appellant - Sanjay Vasantrao Saosakde is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

Bail bonds of appellant stand cancelled.

The appellant is directed to be set at liberty forthwith, if not required in any other case.

The amount of fine, if any paid, be refunded to him.