Sadhana S. Jadhav, J.1. The appellant herein resists the judgment and order dated 22nd September 2011 passed by the Additional Sessions Judge, Nashik in Sessions Case No. 179 of 2010, by which the appellant herein is convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs. 1000 (Rupees One Thousand Only) in default to suffer Simple Imprisonment for one month.2. Such of the facts necessary for the decision of this appeal are as follows:-a) That on 25th July 2010, Seemabai wife of Suresh Narote was admitted in Civil Hospital Nashik with history of burn injuries at about 7.30p.m. The information to that effect was given to Panchavati Police Station, Nashik. MLC call was received from Civil Hospital, Nashik and PW.4., P.S.I.-Anand Magar was directed to go to the Civil Hospital. Accordingly, he had been to the Civil Hospital, more specifically to the burn ward. He had recorded the statement of the injured which is at ‘Exhibit-16’. The injured had disclosed that she was set ablaze by her husband. The statement was recorded on 26th July 2010 at 1.05a.m. On the basis of the said statement, Crime No. 389 of 2010 was registered at Panchvati Police Station for offence punishable under section 307 of Indian Penal Code.b) In the course of the investigation, pursuant to the letter written by P.S.I. of Panchvati Police Station, the statement of the injured was recorded by Special Executive Magistrate, Ashok Deshpande (P.W.3). After completion of investigation the charge-sheet was filed. The case was registered as Special Case No. 179 of 2010.3. At the trial, the prosecution has examined as many as 7 witnesses to bring home the guilt of the accused. The case mainly rests on two dying declarations which are at ‘Exhibit-14 and Exhibit-16’. There is also an oral dying declaration purportedly given to the father of the deceased Seema.4. PW.4, P.S.I-Anand Magar, is the first person who had recorded the statement of the injured in the hospital. He has deposed before the Court that the injured Seema had disclosed to him that she was married to the accused four years prior to the incident. That, she was not treated properly by her husband on the ground that she had a black complexion and that he never wanted to marry a woman with a black complexion. She had disclosed to PW.4 that on 25th July 2010 he had returned home from work at about 6.00 p.m. After dinner there was a quarrel between the spouses. The quarrel had ensued between the spouses. The in-laws i.e. father-in-law and mother-in-law had been to a neighbour’s house. That her husband had manhandled her and poured kerosene on her person and set her ablaze. That upon hearing her cries, her parents-in-law and neighbour had gathered and she was taken to the hospital. He has proved the contents of the statement recorded. According to him, the statement was recorded after obtaining opinion of the medical officer to the effect that she was conscious and oriented to give the statement. He has then requested the special Executive Magistrate to record her statement. The said dying declaration is at ‘Exhibit-16’.5. In the cross-examination he has specifically stated that he had no knowledge of mental condition of Seema while recording her statement. There is nothing on record to show that he had verified that she was in a proper state of mind to give the statement but had relied on the opinion given by the Doctor. Thereafter at about 1.15a.m. the Special Executive Magistrate had recorded the statement of the injured after obtaining a certificate from the Doctor.6. PW.3, Ashok Deshpande, Special Judicial Magistrate has deposed before the Court that when he visited the hospital he had requested all the persons and policemen to go outside the home and thereafter, he had divulged his identity to the injured and had recorded her statement which is marked at ‘Exhibit-14’.7. According to PW.3, the injured had disclosed that on 25th July 2010 at about 7.30 p.m. a quarel had ensued between the spouses. That there were no cordial relations between the spouses. There was verbal altercation. That the accused was asking the injured to go to Nagpur i.e. her maternal house and also threatened her that he would leave that place and withdraw from her society. In the course of quarrel he had poured kerosene on her shoulder and asked her to light matchstick. Her in-laws were present in the house. That there was no child born out of said wedlock. Her husband always asked her to immolate herself. He was having a match-box with him. She snatched the match-box, yet he had set her ablaze. That her husband had fled from the spot and therefore she had grievance only against her husband. He had always impressed upon her that she was disliked by him and therefore, he had set her ablaze. That she had extinguished the flames by pouring water on herself.8. It is elicited in the cross-examination that he had not inquired with the doctor what was the line of treatment given to her from 25th July 2010 since 7.30p.m. The injured had succumbed to the burn injuries on 30th July 2010 and cause of death was shown as ‘septicemic SHOCK due to Extensive Superficial to Deep BURNS to the extent of 55%’.9. At the trial, the prosecution has examined father of the deceased i.e. P.W.2, Harichandra Zipa Bagul. According to him, a discordant note had struck between the spouses one year after the marriage. There used to be intermittent quarrel between them and therefore he had brought his daughter to her maternal house and she stayed there for 6 months. Thereafter, he had sent her with her in-laws to her matrimonial house. That he was telephonically informed by her mother-in-law that Seema was admitted in the hospital and therefore, PW.2 and his wife had been to the Government Hospital at Nashik. He had seen that Seema had received burn injuries. Upon enquiry, Seema had disclosed that her husband had poured kerosene on her and set her ablaze and thereafter he had fled from home. It is reiterated that the cause of quarrel was that she was having a black complexion and therefore he disliked her. It is specifically elicited in the crossexamination that the fingers of both the hands of Seema were burnt.10. The prosecution has examined PW.5. Dr. Deepak Rajput had performed autopsy on the dead body of Seemabai on 30th July 2010 at about 12.15p.m. to 1.30 p.m. He had noticed that the ridges on thumbs of her both hands had disappeared.11. The learned counsel for the appellant vehemently argued that taking into consideration the evidence of PW.2, father of Seemabai who had observed in the hospital itself that there were burn injuries on all fingers of both the hands of Seemabai and this is corroborated by PW.5. According to learned counsel the fact that the ridges are clear on both dying declarations are visible would establish that the thumb impressions are interpolated and hence the Dying Declaration on the basis of which the conviction is recorded deserves to be quashed and set aside.12. We have perused the Dying Declarations. We have noticed that the thumb mark on the first Dying Declaration i.e. ‘Exhibit-16’ has not been attested by the officer on being that of victim. It is stated in the first dying declaration that the deceased had initially manhandled her. Thereafter, he had poured kerosene on her person and set her ablaze and upon hearing her cries the neighbours had gathered and rescued her. The second Dying Declaration is at Exhibit-14 is recorded by the Special Judicial Magistrate. In the said Dying Declaration the prelude to the incident, the incident itself and the postlude of the incident are at variance with ‘Exhibit-16’. She has stated before the Special Judicial Magistrate that on the day of the incident at about 7.30p.m. Her husband had raised quarrel reiterating therein that he disliked her, he had asked her to go to Nagpur and also threatened that he would leave the house. Her in-laws at home. That she could not bear a child for him, he therefore asked her to immolate herself. He poured kerosene on her shoulder, she snatched a match-box from him and yet he set her ablaze. Thereafter, she poured water on herself and extinguished the flames. By then her husband had fled. The narration of the incident itself seems improbable and does not apply to a prudent mind. In the eventuality, she had snatched the match-box from him and he could not have ignited it. This portion seems improbable and therefore becomes doubtful as to whether she was in a oriented state of mind to give a statement.13. There are a catena of decisions in which the Supreme Court has held that the Dying Declaration is to be tested on the touchstone of its truthfulness and correctness. In addition, it is seen that the said Dying Declarations are not corroborated by cogent and convincing evidence inasmuch as the thumb marks are clear, despite the fact that there is clinching evidence that she had sustained burn injuries on both the thumbs. It would be difficult to hold that the thumb marks on the said Dying Declarations are that of deceased Seemabai. In addition, there are two Dying Declarations in which there is a variance in respect of the prelude and postlude. It is clear that the incident has narrated in ‘Exhibit-16’ is at variance with the incident narrated in ‘Exhibit-14’.14. In similar facts, this Court in the case of Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra (2005 All MR (Cri) 1599) has held as follows:“9……….In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. 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 the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of the name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two written dying declarations at Exhs. 24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying declarations at Exhs. 24 and 27”.15. The Apex Court in the case of The State of Punjab vs. Gian Kaur and Anr. (AIR 1998 SC 2809), an issue arose regarding the acceptability of the Dying Declarations on which the thumb impressions of the deceased were taken in support of the statement given by the deceased. The Punjab High Court had acquitted the accused on the ground that the said Dying Declarations could not be accepted since there were clear ridges and curves and the Doctor was unable to explain as to how such curves and ridges could be seen on the Dying Declaration. Despite the fact that the deceased had sustained burn injuries all over her body. The High Court had acquitted the accused. The State had taken the appeal to the Supreme Court and the Supreme Court had dismissed the appeal on the ground that it cannot be said that the High Court had
Please Login To View The Full Judgment!
taken unreasonable view.16. In the present case there is a positive evidence that the thumbs of both the hands of the deceased had sustained burn injuries and hence the said Dying Declarations are found unacceptable. Besides the written Dying Declarations, the oral Dying Declaration as narrated by PW.2 is also unacceptable inasmuch as he has neither deposed about the prelude to the incident or the incident in particular in which she was set ablaze.17. We find it extremely unsafe to accept one of Dying Declaration as a truthful narration of the facts which put forth the transaction in which Seemabai, the deceased had sustained burn injuries. The variances in both the Dying Declarations were go to the root of the matter and cast the cloud of suspicion regarding the truthfulness of the sanctity would be attached to the same in order to warrant the conviction. Hence, the appeal deserves to the allowed.ORDERi) The appeal is allowed.ii) The conviction and sentence imposed vide Judgment and Order dated 22/09/2011 passed by Additional Sessions Judge, Nashik is hereby quashed and set aside.iii) The appellant is acquitted of all the charges levelled against him.iv) The appellant be released forthwith, if not required in any other case.v) Fine amount, if paid, be refunded forthwith.vi) The appeal is accordingly disposed of.