Sharad vs The State of Maharashtra

P.N. Deshmukh, J—The criminal appeal takes exception to the judgment and order dated 15/1/2013 passed by the Additional Sessions Judge, Pusad in Sessions Trial No. 12/2010, thereby convicting accused no. 1/appellant Sharad Devidas Dandge for the offence punishable under Section 302 of Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 5000/-, in default to suffer further imprisonment for one month. Accused no. 1/appellant is acquitted of the offences punishable under Sections 498-A and 201 read with Section 34 of Indian Penal Code. Accused no. 2 Laxmibai Devidas Dandge is acquitted on all the counts while case of accused no. 3 was referred to Juvenile Justice Board being juvenile in conflict with law.

The prosecution case can briefly be stated as follows :

Appellant is husband of deceased Ranjana. On 10/11/2009 after Ranjana had her dinner and was sleeping, she was woken up by juvenile in conflict with law and was driven outside the house. She was sitting on the platform in front of her house when she was set ablaze by accused no. 1 along with his mother - accused no. 2 Laxmibai by pouring kerosene on her person. On sustaining burn injuries, she was referred to Rural Hospital, Pusad and then to Government Hospital, Yavatmal where her dying declaration came to be recorded vide Exh. 28 and on the basis of the said statement, offences punishable under Sections 307, 498-A and 201 read with Section 34 of Indian Penal Code came to be registered vide Crime No. 138/2009.

The crime was investigated by P.W.12 Nilesh, A.P.I. attached to Police Station, Pusad Rural, during the course of which, he arrested accused and seized clothes of accused no. 1 under seizure panchanama (Exh. 64). Ranjana succumbed to her injuries, upon which offence was altered to one punishable under Section 302 of Indian Penal Code. The seized muddemal articles were forwarded to Chemical Analyser and statements of witnesses were recorded. On completion of investigation, charge-sheet came to be filed before the Court of Judicial Magistrate, First Class, Pusad. In the course of time, case came to be committed for trial before Sessions Court.

Charge was framed against accused for the offences punishable under Sections 302, 498-A and 201 read with Section 34 of Indian Penal Code, to which they pleaded not guilty and claimed to be tried. Their defence was of total denial. Accused no. 3 having been found to be in conflict with law, her case was forwarded to the Juvenile Justice Board.

The learned trial Judge on considering evidence and documents on record, held accused no. 1/ appellant guilty for the offence punishable under Section 302 of Indian Penal Code as aforesaid. Hence, this appeal.

Heard Shri Mardikar, learned Senior Counsel for appellant, and Shri Ukey, learned Additional Public Prosecutor for respondent. To effectively evaluate their submissions, we have scrutinized the evidence and documents on record with their assistance.

Admittedly, the case of prosecution is based on two dying declarations being Exh. 28 recorded by P.W.1 Manohar Patil, Naib Tahsildar on 11/11/2009 at about 7.35 p.m., which is first in point of time and subsequent dying declaration being Exh. 55 recorded by P.W.9 Bhagwan, Head Constable on 14/11/2009 at 11 A.M. Apart from these dying declarations, prosecution has also relied upon evidence of P.W.2 Sahebrao and P.W.3 Radhabai, parents of deceased Ranjana, on oral dying declaration as well as evidence of P.W.13 Dr. Nandkishor Chavan, who had medically examined deceased Ranjana prior to and after recording her dying declarations.

In view of above, we have first considered the evidence of P.W.1 Manohar Patil, Naib Tahsildar, who has stated that on 11/11/2009, he received requisition memo (Exh. 26) from Yavatmal Police Station at about 7.15 p.m. for recording dying declaration of Ranjana, who was admitted in Government Hospital and accordingly reached in five minutes and was taken near Ranjana to whom he put some preliminary questions, which she replied and thereafter he requested P.W.13 Dr. Nandkishor Chavan to examine her and to certify whether she is in a fit condition to make a statement. The requisition memo issued to Medical Officer is at Exh. 27, who, on examining patient, declared her to be fit to make a statement. P.W.1 Manohar Patil then recorded statement of Ranjana. He has further stated that she had stated that the incident took place on 10/11/2009 in the afternoon when she was driven out of her house by accused no. 1 and his sister and mother, namely, Saguna Dandge and Laxmibai Dandge, as Ranjana had earlier visited house of her maternal aunt Vimal Paley and thereafter accused Sharad poured kerosene on her person and her mother-in-law and sister-in-law lit her up. She further stated that the incident occurred as accused were saying as to why she came late after season of Diwali was over and they were always fighting with her. P.W.1 Manohar Patil has further stated that he then read over entire statement to Ranjana, which she accepted to be correct and has proved it on record at Exh. 28.

In his cross-examination, P.W.1 Manohar Patil has admitted that when he recorded statement of Ranjana, she was being administered I.V. fluid and she was bandaged and as per requisition for recording dying declaration, she was certified to have sustained 98% burn injuries. This witness has denied that Ranjana was unconscious and as such, was unable to speak.

In view of evidence of P.W.1 Manohar Patil to the effect that Ranjana was bandaged due to sustaining burn injuries to the extent of 98%, which aspect finds corroboration from post mortem report on record (Exh. 53) wherein both upper limbs of Ranjana are certified to have sustained 9% burn injuries each, which make to 18% as well as in view of evidence of P.W.8 Dr. Santosh Bhosale when he has stated that at the time of post mortem, he had noted that body of deceased had sustained superficial to deep burn injuries to the extent of 95% and cause of death was septicemia due to burns, we find much substance when it is contended on behalf of appellant that in view of deceased Ranjana having bandage to her burn injuries and she had sustained 98% burn injuries, it was impossible for her to give her signature on dying declaration (Exh. 28) recorded by P.W.1 Manohar Patil. The said contention is fortified in favour of appellant when on the contrary, it is observed that in the subsequent dying declaration recorded by P.W.9 Bhagwan, Head Constable on 14/11/2009 at Exh. 55, said Police official appears to have obtained thumb impression of Ranjana. This raises a doubt as to why if injured Ranjana was in a position to sign on the document on 11/11/2009, she could not do so and her thumb impression was required to be obtained on 14/11/2009. There is nothing on record to establish as to why no signature of Ranjana could be obtained three days after her first dying declaration was recorded and in fact, having considered the fact that both upper limbs of Ranjana were burnt to the extent of 18% and having considered that she was bandaged having sustained burn injuries and in the absence of any plausible explanation on record, case of prosecution raises doubt with reference to Ranjana signing on her first dying declaration (Exh. 28) and giving her thumb impression on the subsequent dying declaration (Exh. 55). Be that as it may, we, however, find it material to consider the dying declarations relied by prosecution and to satisfy whether both the documents are consistent to each other.

The evidence of P.W.9 Bhagwan, Head Constable Buckle No. 1345 reveals that on 14/11/2009 he visited Government Hospital, Yavatmal and after contacting P.W.13 Dr. Nandkishor Chavan, recorded dying declaration of Ranjana wherein she informed that on 10/11/2009 her sister-in-law drove her out of house when accused pushed her and accused no. 2 caught hold of her and accused no. 1 poured kerosene on her person as instigated by accused no. 2 and thereafter she was burnt. P.W.9 Bhagwan proved the said statement on record (Exh. 55). In cross-examination, this witness admits that while recording statement of Ranjana, he had not asked her, which of her two mothers-in-law had burnt her despite the fact that she was having two mothers-in-law.

First dying declaration (Exh. 28) recorded by P.W.1 Manohar Patil contains that the incident took place on 10/11/2009 in the noon hours when mother-in-law, sister-in-law and husband of Ranjana drove her out of house and she has stated name of mother-in-law as Laxmibai Dandge, sister-in-law as Shaguna Dandge and husband as Sharad Dandge, who have driven her out of house because she had been to her Aunt''s house, namely, Vimal Paley, resident of Pusad. Its contents further are to the effect that accused Sharad poured kerosene on her person when her sister-in-law and mother-in-law were present saying that she came late after Diwali festival and after season was over and they were often quarreling on this count. According to the contents, thus, we note that the only role attributed to accused Sharad is of his pouring kerosene on the person of Ranjana and nothing more and so far as his mother and sister are concerned, this document only attributes their presence at the time of accused Sharad pouring kerosene on the person of Ranjana. In that view of the matter, dying declaration (Exh. 28), which is first in point of time recorded on 11/11/2009 by the Naib Tahsildar, does not establish involvement of accused Sharad to have set deceased Ranjana on fire with intention to cause her murder, for which he was charged.

Contrary to contents of Exh. 28, on perusal of subsequent dying declaration of Ranjana, dated 14/11/2009 recorded by P.W.9 Bhagwan at Exh. 55, it is revealed that incident took place on 10/11/2009 in the night at about 10 to 11 o''clock when deceased Ranjana and accused no. 1 Sharad had slept in the house, her sister-in-law drove her out of house, due to which she was sitting on the plat-form when her mother-in-law caught hold of her and her husband poured kerosene from the can on her person, on the instigation of her mother-in-law and then set her on fire by igniting match stick.

On comparing contents of both these statements (Exhs. 28 and 55), they do not find to be consistent to each other as there are material variances doubting both these documents. Even the motive alleged to be stated in Exh. 55 does not corroborate with that mentioned in the first dying declaration as in that document, motive stated is to the effect that since prior to incident, Ranjana stayed in the house of her Aunt during Diwali festival and returned back after season was over, she was driven out of house and was allegedly burnt while according to this document, she is alleged to have been set on fire since she did not conceive.

Law on the subject of dying declaration is well settled in the case of Khushal Rao Vs. The State of Bombay, AIR 1958 SC 22 : (1958) CriLJ 106 : (1958) 1 SCR 552 that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests. The ratio laid down in that case has been referred to in a number of subsequent cases with approval. It is also settled in all these 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, the Court has to examine the same in the light of the various surrounding facts and circumstances.

On examining both the dying declarations involved in this appeal, we notice glaring inconsistencies in them as to who exactly poured kerosene and set Ranjana on fire or whether Ranjana sustained fire accidentally. Under these circumstances, the irresistible conclusion is that dying declarations are inconsistent and in such situation, we cannot pick out one statement from these documents and base conviction of appellant on the sole basis of such dying declaration having considered the fact that maker of the statement cannot be cross-examined and as such, the dying declaration needs to be scrutinized very carefully. Moreover, we are conscious of the fact that while appreciating credibility of the evidence produced before the Court, the same needs to be considered as a whole to come to the conclusion as to its genuineness and truthfulness. Mere fact that two different versions are given, but one name is common in both of them cannot be a ground for convicting the named person as the Court needs to be satisfied that the dying declaration is truthful. It is well settled that if there are two dying declarations giving two different versions, a serious doubt is created about truthfulness of such dying declarations.

Moreover, case of prosecution, even otherwise, raises serious doubt as according to the evidence of P.W.7 Ashok Raut, Head Constable Buckle No. 1457, while attached to Pusad Rural Police Station, he received intimation from Medical Officer, Primary Health Centre, Pusad as per Exh. 40 of Ranjana being referred to said Hospital. On perusal of said document, it reveals that the information given to Police is that Ranjana has set herself ablaze by pouring kerosene on her person. Station Diary Entry of said intimation is taken on 11/11/2009 at 6.15 a.m. vide 7/09.

So far as case of prosecution on oral dying declaration is concerned, evidence of P.W.2 Sahebrao reveals that Ranjana was his daughter and was residing with her husband and in-laws. He has then stated about her deceased daughter going to Gujarat and accused no. 1 leaving her there alone and returning back. However, all his evidence appears to be omission. On the point of incident, his evidence reveals that on getting information about Ranjana being admitted in the Hospital, he visited Pusad and then reached Government Hospital, Yavatmal and found her to have sustained 98% burn injuries. On enquiring with her, she stated that her husband burnt her and her mother-in-law poured kerosene on her person and sister-in-law had held her. The role attributed to appellant as per said oral dying declaration is totally different than the one mentioned in dying declaration (Exh. 28), which is only of pouring kerosene. Even otherwise, evidence of P.W.2 Sahebrao on the alleged oral dying declaration also appears to be material improvement when he has stated that he had informed that mother-in-law poured kerosene and sister-in-law caught hold of his daughter. However, he could not assign any reason as to why said fact is not recorded in his statement and in fact, has admitted that his statement was not recorded by Police and as such, he had not stated any such fact in his statement. We find that statement of P.W.2 Sahebrao was recorded on 25/12/2009, i.e. more than one month after the incident, which occurred on 10/11/2009.

Evidence of P.W.3 Radhabai on the aspect of oral dying declaration is to the effect that on her visiting Ranjana in Hospital at Yavatmal, she had informed that her husband, sister-in-law and mother-in-law after throwing her out of house, poured kerosene on her person from can. Sharad poured kerosene and lit her while mother-in-law gave matchbox.

In fact, evidence of P.W.2 Sahebrao and P.W.3 Radhabai is contrary to each other though it is the case of prosecution that both of them had gone to Hospital to meet their daughter and on enquiry, Ranjana had stated about the incident in their presence. In the circumstances, it is expected that there has to be consistency in the oral evidence of both these witnesses. However, evidence of these witnesses is inconsistent even with regard to oral dying declaration which, even otherwise, is a weak type of evidence and needs to be accepted only on having sufficient other corroborative material on record to accept the same.

On the point of cases based on dying declarations, Shri Ukey, learned Additional Public Prosecutor for respondent, has relied upon the judgment in the case of Ashabai and Another Vs. State of Maharashtra, (2013) 2 ABR 321 : AIR 2013 SC 341 : (2013) 1 Crimes 15 : (2013) 1 DMC 208 : (2013) 1 JCC 722 : (2012) 1 JCC 22 : (2013) 1 JT 376 : (2013) 1 RCR(Criminal) 629 : (2013) 1 SCALE 88 : (2013) 2 SCC 224 : (2013) AIRSCW 333 : (2013) 1 Supreme 97 . However, the ratio laid down in that case cannot be applied in the present appeal for the reason that in that case involving multiple dying declarations, the Hon''ble Supreme Court found all dying declarations to be consistent, which is not the case in the present appeal and as such, the said judgment is not applicable to the present case.

One more aspect canvassed on behalf of prosecution is that clothes of accused no. 1/appellant Sharad were found having kerosene residues. We have considered this submission and found that it does not appeal to any reason as according to Chemical Analyser''s report (Exh.49), shirt and full pant of accused no. 1/appellant are certified to have detected positive for kerosene residues. However, this by itself cannot be said to be sufficient to establish involvement of appellant in the present crime inasmuch as his clothes, which were sent to Chemical Analyser, are found to have been seized under seizure panchanama (Exh. 64) on 14/11/2009 while incident is dated 10/11/2009 and as such, possibility of accused no. 1 wearing same clothes for over three days does not appear to be convincing. Even otherwise, this by itself is too short to establish link of the appellant. In the absence of any other convincing evidence except dying declarations, which are in the form of written and oral and since they are not found to be convincing to be acted upon, we are of the considered view that the appeal needs to be allowed by giving benefit of doubt to the appellant.

In the result, the criminal appeal is allowed. The impugned judgment and order dated 15/1/2013 passed by the Additional Sessions Judge, Pusad in Sessions Trial No. 12/2010 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.