Bombay High Court
Lahu Govind Shingare vs The State Of Maharashtra on 11 June, 2012
Bench: V. M. Kanade, P. D. Kode
S
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.12 OF 2006
Lahu Govind Shingare
Age 52 years, Occ.Service,
R/o Room No.101, Shramjivi Nagar
Chembur, Mumbai .. Appellant.
Vs.
The State of Maharashtra
Through Nehru Nagar Police Station
Mumbai .. Respondent.
Ms.Manjiri Parasnis learned advocate appointed as amicus curie for
the appellant.
Mr.J.P.Yagnik learned APP for the State.
CORAM : V. M. KANADE &
P. D. KODE, JJ.
DATED : 11TH JUNE, 2012
JUGMENT (PER P.D.KODE, J)
1. The conviction of the appellant for committing murder of one Shakuntala Raghunath Yede by pouring kerosene and setting her on fire on 6th November, 2003 at 16.00 hours in her house at Shramjivi ::: Downloaded on - 09/06/2013 18:39:22 ::: 2 jud12.06 Nagar Zopadpatti, Chembur, Mumbai and thereby causing her burn injuries, ultimately resulting in her death at 23.35 hours; and sentence imposed for the same by judgment and order passed on 15th December, 2005 by IVth Adhoc Additional Sessions Judge, Sewri, Mumbai in Sessions Case No.273 of 2004 is subject matter of the present appeal. The appellant is sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- and in default to undergo further R.I. for six months.
2. According to the prosecution police constable Suryakant Sane (P.W.6) while on duty on Nehru Nagar Wireless Mobile Van No.1 on 6th November, 2003 at about 15.30 hours received the wireless message from control room that one women was burned in Shramjivi Nagar, Eastern Express Highway, Mumbai. P.W.6 went to said place and found a women in burned condition lying on road with blanket on her person. They brought her to Rajawadi Hospital in police van. The doctors in casualty after examination admitted her for treatment .
2.1 PSI Sapkale (P.W.7) while on station house duty at Nehru Nagar police station on 6.11.2003 at about 16.00 hours received message from the control room for attending a woman in burned condition carried by Nehru Nagar mobile wireless van No.1 to Rajawadi hospital. P.W.7 on phone called Special Executive Officer Mrs.Kalpana Mhatre (P.W.1) and alongwith her went to said ::: Downloaded on - 09/06/2013 18:39:22 ::: 3 jud12.06 hospital. P.W.7 inquired with doctor regarding condition of the said women admitted in burnt ward, to make a statement and after doctor informing him that he can record her statement, he recorded statement Exhibit-19 of said women - Shakuntala.
3. According to prosecution Shakuntala during said statement told that she was residing alongwith her unmarried daughter - Surekha (P.W.4), son - Sandeep and another son at Shramjivi Nagar Zopadpatti, Chembur, Mumbai. Her other married daughter was residing at Ghatkopar alongwith her husband. Her husband had passed away about 12 years back and he was then serving with Bombay Municipal Corporation, Shakuntala had got job in said Corporation on compassionate ground. Since last four years she had developed intimate relationship with the appellant, residing by the side of her room and working with private employer. She used to help him while in need. The appellant was demanding Rs.50,000/-
from her, however, she had refused to pay as she was not having such amount.
3.1. On 6th November, 2003 at about 16.00 hours the appellant came to her house when both of her children were not in the house.
The appellant started demanding Rs.50,000/-. As she refused to give said amount the appellant took the can containing kerosene in her house and poured kerosene on her person, lit match-stick and threw on her person. The sari on her person caught fire and she was ::: Downloaded on - 09/06/2013 18:39:22 ::: 4 jud12.06 completely burned. She started shouting loudly and by ladder alighted loft. By then due to burning of sari, her entire body was burned. After sometime police van arrived at the said place and she was brought and admitted at Rajawadi Hospital.
4. According to the prosecution since Shakuntala was completely burned P.W.7 was unable to obtain her thumb impression or signature upon her statement Exhibit-19 recorded by him. However, he obtained endorsement of Dr.Patnaik P.W.11 upon the said statement. Thereafter S.E.O. P.W.1 recorded dying declaration Exhibit-10 of the said victim. P.W.7 after returning to the police station registered Crime No.265 of 2003 for offence under section 307 of IPC against the appellant by treating Exhibit-9 as FIR. P.W.7 also received clothes Article "A" of the victim seized by P.W.6 under seizure panchnama Exhibit-20. P.W.7 arrested the appellant who came to the police station by drawing arrest panchnama Exhibit-21 and sent him to Rajawadi hospital for treatment of burn injuries on his hands, stomach, legs, shoulder and other parts of his body.
5. PI Rathod (P.W.12) on the next day took up the investigation of the said crime. In view of death of victim occurred on 6th November, 2003 at 23.35 hours the offence was altered to offence under section 302 of IPC. After completion of the investigation the charge-sheet for commission of offence under section 302 of IPC was submitted against the appellant in the 34th Court of Metropolitan ::: Downloaded on - 09/06/2013 18:39:22 ::: 5 jud12.06 Magistrate, Vikhroli. The case involving offences exclusively triable by Court of Sessions was duly committed by said Court to the Court of Sessions at Bombay.
6. The appellant pleaded not guilty to the charge Exhibit-3 for offence of committing murder of Shakuntala framed against him by the trial Court on 15th June, 2005. The prosecution examined in all 12 witnesses at the trial i.e. six witnesses so far referred and additionally panchas Laxman Yede (P.W.2) regarding scene of offence panchnama Exhibit-12 and ig Lilavati Darekar (P.W.3) regarding inquest panchnama Exhibit-14, wife of brother of late husband of victim - Satyabhama Yede (P.W.5) regarding oral dying declaration/utterances made by victim while she was lying on the road in burnt condition and relationship in between victim and the appellant, Dr.Sunita Kadam (P.W.8) of Rajawadi hospital regarding examination of appellant in casualty effected by her on 6th November, 2003 at 18.10 hours and certificate Exhibit-24 regarding injuries on his person given by her; Dr.Shivaji Kachare (P.W.9) regarding autopsy performed by him at Rajawadi hospital on 8th November, 2003 in between 10.00 to 11.00 hours upon the corpse of Shakuntala and cause of death of the said victim and autopsy notes Exhibit-28 prepared by him. Dr.Rajaram Sondhe (P.W.10) of Rajawadi hospital regarding admission of victim at the said hospital on 6.11.2003 and entry Exhibit-30 made by him in casualty medical register regarding the said admission. In addition to oral testimony of the said witness, ::: Downloaded on - 09/06/2013 18:39:22 ::: 6 jud12.06 the prosecution also relied upon the documentary evidence prepared/collected during the course of investigation and C.A. report Exhibit-35 and Exhibit-36 received after submission of charge-sheet regarding muddemal articles seized during investigation.
7. The defence of the appellant as disclosed from the answers given by during his examination under section 313 of the Code of Criminal Procedure and from the trend of cross examination effected on his behalf was of total denial and of false implication. Additionally, the appellant with regard to questions put to him regarding evidence of Dr.Sunita Kadam (P.W.8) that during his examination effected by her on 6th November, 2003 she had found burn injuries on his both hands, back limbs and lower limbs, admitted her said evidence being true. The appellant during his said examination with regard to the case against him claimed that at the time of incident he had been out of his house after hearing the shouts coming from the house of Shakuntala and had been to her house. He claimed that Sandeep then present in the house was shouting. He went on loft of her house and saw that Shakuntala had caught fire and she was shouting and he extinguished the fire and brought her down. He claimed that her relatives gathered on spot and started abusing him, therefore, he went to the police station. The appellant, however, did not adduce any evidence either of himself or of any witness in support of his defence.
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8. The trial Court after assessment of the evidence, relying upon the evidence of P.W.4 and that of P.W.7, came to conclusion that Shakuntala had made oral dying declaration to P.W.4 and dying declaration Exhibit-19 to P.W.7. implicating the appellant as author of burn injuries caused to her. However, the trial Court, discarded the claims of P.W.5 and P.W.1 of Shakuntala having made oral dying declaration to P.W.5 and dying declaration Exhibit-10 to P.W.1. The trial Court on the basis of evidence of doctors P.W.10 and P.W.11 and particularly the evidence pertaining to history given to them by victim coupled with the evidence of P.W.4 and P.W.7 came to conclusion that Shakuntala had met unnatural death and appellant was responsible for said death. In consequent to the said conclusion the trial Court hold the appellant guilty for committing murder of Shakuntala and sentenced the appellant as narrated earlier.
9. Ms.Manjiri Parasnis, learned appointed advocate for the appellant urged that the trial Court manifestly erred in accepting the claim of P.W.4 that her mother had made oral dying declaration to her and so also that of P.W.7 of victim having made dying declaration Exhibit-19 to him. She urged that considering the evidence of both said witnesses in light of other evidence adduced by the prosecution their claim of victim having made such dying declarations implicating the appellant as a author for causing her burn injuries does not inspire confidence. She urged that the trial Court having discarded ::: Downloaded on - 09/06/2013 18:39:22 ::: 8 jud12.06 the evidence of P.W.5 of deceased having made oral dying declaration to her and of P.W.1 of Exhibit-10 being voluntary dying declaration made by deceased and recorded by her, there were no worthy reason for accepting similar claim staked by P.W.4 and P.W.7 and trial Court ought to have discarded their evidence. She urged that the trial Court manifestly erred in concluding that the evidence of doctors P.W.10 and P.W.11 supports the conclusion of deceased having met homicidal death and/or corroborates the evidence of P.W.4 and P.W.7. It was urged that even accepting the evidence of said witnesses, on backdrop of the fact that the appellant was known to the deceased the fact that deceased having not given name of the appellant as culprit to the said doctor is factor militating against the prosecution case that the appellant was author of the injuries caused to the deceased. It was urged that the trial Court failed to take into account that the defence of the appellant was probablised by the fact of serious burn injuries found on his person as established by the evidence of doctor P.W.8. She ultimately submitted that the order of conviction and sentence passed by the trial Court was based upon unreliable evidence and as such cannot be sustained and hence be quashed and set aside by allowing the appeal and the appellant be acquitted.
10. Mr.Yagnik, learned A.P.P. supported the judgment of the trial Court. He urged that the trial Court after due assessment of prosecution evidence has reached to conclusion of guilt of the ::: Downloaded on - 09/06/2013 18:39:22 ::: 9 jud12.06 appellant. He urged that even the trial Court ought to have accepted the evidence of P.W.1 and P.W.5. He urged that the trial Court has given cogent and convincing reasons and relying upon the evidence of P.W.4 and P.W.7 and so also evidence of P.W.10 and P.W.11. He urged that hardly any fault can be found in the said reasoning given by the trial Court. He urged that conclusion arrived by the trial Court on the basis of dying declaration Exhibit-19 made to P.W.7 and oral dying declaration made to P.W.4 and receiving the corroboration to some extent from the history given by victim to P.W.10 and P.W.11 squarely leads to conclusion of guilt of the appellant arrived at and as such no fault can be found with the same. He thus urged that no interference is warranted to such findings arrived by the trial Court for the reasons given. He thus prayed for dismissal of the appeal.
11. Apart from that no dispute being made on behalf of the appellant regarding victim Shakuntala having met with unnatural death i.e. succumbing to burn injuries sustained by her, the said facet of the prosecution case is duly established from the evidence of doctors P.W.10, P.W.11 and P.W.9 adduced by the prosecution considered alongwith evidence of police witnesses P.W.6, P.W.7 and to some extent from evidence of panch for scene of offence panchnama P.W.2 and panch for inquest panchnama P.W.3. Without reciting in detail the evidence of each of said witness it can be observed that P.W.6 has deposed in consonance with the prosecution case as narrated earlier which duly establishes that he has shifted Shakuntala ::: Downloaded on - 09/06/2013 18:39:23 ::: 10 jud12.06 in burned condition from the road with blanket on her person near Shramjivi Nagar at Eastern Express highway. Similarly, evidence of P.W.10 reveals that on 6.11.2003 while on duty as casualty medical officer at Rajawadi hospital at about 16.00 hours or thereabout after examining Shakuntala brought in casualty he had admitted her in female ward for further treatment for 95% to 100% superficial deep burns noticed on her person. His evidence is duly corroborated by entry at serial No.16965 made by him in casualty register. Similarly, evidence of P.W.11 Dr.Prakash reveals that while on duty as Residential Medical Officer on 6th November, 2003 at Rajawadi Hospital he had treated Shakuntala, who was admitted in female burn ward at about 4.35 pm and had sustained 100% deep superficial burn injuries. He has further deposed that she gave history of burns by known person by pouring kerosene on her person. He has further deposed that victim Shakuntala succumbed to burn injuries on the same day at about 11.35 pm and Exhibit-32 being original indoor papers of the said patient.
12. The corroboration to the evidence of above referred witnesses is also found from evidence of P.W.7 PSI Sapakal, whose evidence also reveals that while on station house duty at Nehru Nagar police station on 6th November, 2003 at 16.00 hours he received message from control room that one burned woman was carried to Rajawadi hospital by Nehru Nagar mobile wireless van No.1 and to attend her.
It reveals that thereafter he had taken steps to call S.E.M., ::: Downloaded on - 09/06/2013 18:39:23 ::: 11 jud12.06 Mrs.Mhatre - P.W.1 and alongwith her had been to hospital and taken steps for recording her complaint/statement Exhibit-19 and also getting her dying declaration recorded. Without considering presently remaining facets of evidence of P.W.7 it can be safely said that all aforesaid evidence, considered alongwith complaint Exhibit-
19 recorded by him in terms reveal that the said lady was Shakuntala and she had sustained burn injuries as claimed by earlier referred witnesses. The scrutiny also does not reveal aforesaid part of evidence of P.W.7 and so also of others being shaken in any manner during the cross examination.
13. Now considering evidence of P.W.9 - Dr.Shivaji Kachare, the same reveals that while he was attached to Rajawadi post mortem centre, he performed autopsy on corpse of Shakuntala on 8th November, 2003 in between 10 am and 11 am. His evidence amongst other reveals that during external examination he has found 100% ante mortem deep burn injuries all over her body. He had opined cause of death as "shock due to 100% superficial deep burns (unnatural)". He has also vouched for correctness of post mortem notes Exhibit-28 of the said autopsy performed by him. His evidence is found duly corroborated by the matters stated in said autopsy.
Needless to add that considering above referred evidence in proper perspective same leads to the conclusion that Shakuntala had succumbed to 100% burn injuries sustained by her on 6th November, 2003 and thus her death was unnatural.
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14. Before considering the evidence on basis of which the trial Court arrived at the conclusion of the guilt of appellant it appears proper to consider the evidence of P.W.5 and P.W.11 not relied by the trial Court and the reasons given for the same. The reasoning given in paragraph nos.24 and 25 of the judgment of the trial Court reveals that the evidence of P.W.5 was not accepted mainly on the count of variance within the claim staked by P.W.5 and P.W.4 regarding the place at which the victim was found lying in burned condition. The trial Court observed that the evidence of P.W.5 reveals that her pan stall was on the road and house of Shakuntala was in lane and the same was not visible from her pan stall. It reveals that Shakuntala was on the road and was sitting at the distance of 100 ft. away from her pan stall and from the said place she was taken by the police to the hospital. The trial Court observed that the evidence of P.W.4 reveals that police had been to her house and taken her mother to Rajawadi hospital. On the basis of the vital discrepancy the trial Court by observing that the evidence of P.W.4 was more consistent than that of P.W.5 had declined to rely upon evidence of P.W.5. After careful scrutiny of the evidence of both the said witnesses we find that the observations made by the trial Court regarding vital aspect of the place at which Shakuntala was lying and/or the place at which she had made dying declaration/utterances being in conformity with the evidence on record.
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15. In addition with the aforesaid careful scrutiny of the evidence of P.W.5 we find that though P.W.5 was related with Shakuntala and that she had advised Shakuntala for not keeping relationship with the appellant, further admitted of having not told the appellant for not visiting house of Shakuntala. Her evidence also shows that though she was close relative of Shakuntala she had not accompanied her when police had taken her to the hospital. Furthermore, her evidence reveals that she had given a statement to police only on 9th November, 2003 i.e. three days after the incident. Additionally, the answers given by P.W.5 during the cross examination also reveals that she has not made any attempt to take Shakuntala to the hospital and so also for informing the police. The same is apparent as P.W.5 claimed that one Laxman Yede who was present near Shakuntala had called the police telephonically. Significantly, to note that Laxman Yede P.W.2 examined at trial has not staked any such a claim i.e. of either being present near Shakuntala or having called the police.
Thus, considering the evidence of P.W.5 in entirety her such unexplained unnatural conduct of not taking prompt steps for helping her relative Shakuntala, not approaching the police uptill 9th November, 2003 militates against her claim of Shakuntala having made dying declarations/utterances implicating the appellant with who she was enemical. Hence we are unable to find any fault with the trial Court in not relying and accepting her evidence not inspiring any confidence.
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16. Now considering the reasoning recorded by the trial Court in paragraph no.42 of the judgment for not accepting the evidence of S.E.O. P.W.1 regarding her claim of having recorded dying declaration Exhibit-10 of Shakuntala there exists substance in the reasons recorded by the trial Court as the observations made are apparently in conformity with the evidence of P.W.1. It was rightly observed by the trial Court that during the cross examination P.W.1 stated that police officer Rathod had told her that she has to record statement of burned woman, who was burnt by her neighbour "Lahu".
Her evidence reveals that while recording the statement she had asked whether she was burnt by anybody by pouring kerosene on her person. In the said context the trial Court has rightly observed that asking of such question clearly suggests that recording was premediated and the dying declaration recorded in such manner cannot be construed as voluntary statement given by the deceased.
Similarly, the trial Court rightly observed that though P.W.1 claimed that she made inquiry to the doctor about the condition of the injured to give the statement, no such certificate was found appended to the purported dying declaration Exhibit-10 recorded by her. Additionally, we also find that her evidence reveals that doctor had told her that she was able to speak. Needless to add that said answer does not denote the doctor having certified that she was conscious and in position to make coherent statement. Furthermore, the trial Court rightly observed that police officer Rathod told her to record ::: Downloaded on - 09/06/2013 18:39:23 ::: 15 jud12.06 statement of injured by stating that injured has told him that her neighbour had poured kerosene on her person and set fire.
Furthermore, the trial Court had correctly observed that P.W.7 PSI Sakapal during the cross examination stated that when he was recording statement of the injured woman Special Executive Officer Mhatre was present near the patient. Thus, considering the evidence of P.W.1 in proper perceptive we are unable to find fault with the further observation made by the trial Court that such a admission given by P.W.7 strengthens the contention of learned advocate that P.W.1 had prepared statement Exhibit-10 without making inquiry with the injured and at the instance of police. Thus considering the manner in which P.W.1 claimed to have recorded dying declaration Exhibit-10, it is difficult to digest that either her claim inspires the confidence of deceased having voluntarily made dying declaration to her and herself having recorded the same in impartial manner. Taking into consideration all the aforesaid aspects we are unable to find any fault with the trial Court in not accepting either evidence of P.W.1 or not relying upon dying declaration Exhibit-10 as true and voluntary dying declaration made by victim Shakuntala.
17. Now considering the evidence relied for arriving conclusion of guilt of appellant in light of the reasoning given by the trial Court it appears appropriate to firstly consider the evidence of doctors P.W.10 and P.W.11. Both the said witnesses had deposed in consonance with role played by them as stated in earlier part of the ::: Downloaded on - 09/06/2013 18:39:23 ::: 16 jud12.06 judgment. The material part of evidence of P.W.10 Dr.Sondhe relied by the trial Court reveals the claim of the witness that victim while admitting had given history of burns by known person after pouring kerosene and igniting her. Similarly, the material part of evidence of P.W.11 who had treated victim after admission at Rajawadi hospital also reveals herself having given history of burn by known person by pouring kerosene on her person. The scrutiny of cross examination reveals that both the aforesaid witnesses during cross examination had denied that the police constable had given them such history.
On the basis of said claim staked by both the witnesses having remained unshattered trial Court amongst other concluded that the death of Shakuntala was unnatural. It will be necessary to say that even accepting the said evidence as it is, it is difficult to conclude that said evidence is useful to the prosecution for establishing the case against the appellant. Such conclusion is inevitable as even acceptance of said evidence does not transcend further then Shakuntala being burned by some person by pouring kerosene and as such the same by itself is unable to link the appellant that the said act of burning her. The same is obvious as it is consistent prosecution case that Shakuntala was having illicit relation with the appellant for last four years. Having regard to same and even assuming that the appellant had committed such act and Shakuntala thereafter being in conscious condition while giving said history naturally she would have given name of the appellant and not stated as burned by known person. Hence said piece of evidence even ::: Downloaded on - 09/06/2013 18:39:23 ::: 17 jud12.06 accepted as it is, is not sufficient to advance the prosecution case against the appellant.
18. Now considering the main evidence relied by the trial Court against the appellant i.e. of daughter of Shakuntala - P.W.4, the material part of her evidence reveals that at the time of incident at about 3.00 to 3.30 pm she was present in her house. The appellant and her mother were on mezzanine floor (loft of the house). She had taken money from her mother and had been out of the house for bringing a dress.
She further deposed that her younger brother Sandeep i.e. son of Shakuntala was present in the house. She claimed to have returned to the house at about 4.00 to 4.30 pm. She further claimed that her mother was lying at the door of house in burned condition. She inquired with mother as to what happened and thereon her mother told that the appellant set fire to her person. She further told that the appellant was demanding money and as she refused to pay it the appellant set fire to her person. P.W.4 claimed that her mother was crying and shouting loudly and even after burning her mother was searching the appellant. Thereafter the police had been to her house and took her mother with them. Her mother died in Rajawadi hospital.
19. Thus, the evidence of P.W.4 primarily reveals two facets i.e. presence of the appellant at the time of incident in the house of Shakuntala and secondly, Shakuntala lying at the door of house and ::: Downloaded on - 09/06/2013 18:39:23 ::: 18 jud12.06 having made dying declaration to P.W.4 who had returned; implicating the appellant as author of burn injuries caused to her and his said act being due to her refusal to pay amount of Rs.50,000/- demanded by the appellant.
20. Out of the aforesaid two facets from the evidence of P.W.4 the facet of presence of the appellant does not appear to be significant as the said facet has been admitted by the appellant during his examination under section 313 of the Code wherein he had claimed to having received burn injuries in his attempt to extinguish fire on person of Shakuntala. However, claim of P.W.4 of appellant being present is prior to occurrence of incident and appellant having claimed that he had been to the said house after hearing the shouts, the evidence will be required to be scrutinised/ascertain in between rival stands.
21. On the said backdrop considering cross examination of P.W.4 effected, the same reveals that during cross examination it was brought on record that all her brothers and sisters were disliking relationship in between the appellant and her mother Shakuntala. It further reveals that P.W.4 had quarreled with the appellant for preventing him from coming to their house. Needless to add the same undoubtedly established P.W.4 and other family members having animus against the appellant. During cross examination it was also brought on record that when she had reached house, people had ::: Downloaded on - 09/06/2013 18:39:23 ::: 19 jud12.06 gathered at said place. After seeing her mother in burned condition she started weeping. However, significantly enough she answered that after arrival of police on spot she had not told police that the appellant was residing in same locality and she had not accompanied her mother while she was taken to Rajawadi hospital, further reveals claim of P.W.4 apart from herself nobody else had accompanied her mother when she was taken by the police. It further reveals that even thereafter P.W.4 had not gone to the hospital and learnt about death of her mother on the next day in morning from her brother-in-
law. Curiously enough, the answers given in cross examination also reveals that the police again had been to her house on 2nd or 3rd day after the incident and till then she had not been to police to inform about matters told to her by her mother i.e. purported oral dying declaration.
22. Thus, taking into account evidence of P.W.4 in entirety and particularly undisputed fact that she had animus against the appellant and her unnatural conduct after the incident definitely militates against her claim and that after having reached house found mother in door and her mother having made oral dying declaration to her. On the contrary, her conduct after the incident as disclosed from the above stated answers of not accompanying mother and/or not disclosing the matters to police takes away all sting in her claim of her mother having made oral dying declaration implicating appellant to her. Such inference is inevitable as in such ::: Downloaded on - 09/06/2013 18:39:23 ::: 20 jud12.06 eventuality P.W.4 had never failed to tell police that the appellant was culprit and was residing in the same locality. The silence on part of P.W.4 to not to disclose or not to make any attempt to give important information to police about oral dying declaration implicating the appellant made by her mother makes the claim staked by her vulnerable.
23. Furthermore, considering the claim staked by P.W.4 in the light of other evidence on record as stated earlier the evidence of P.W.6 in terms reveals that Nehru Nagar wireless mobile van No.1 on which he was posted had received wireless message at about 3.30 pm. His said evidence clearly denotes that the incident must have occurred prior to 3.30 pm. The corroboration to same incident is also received from evidence of P.W.7 - PSI at Nehru Nagar police station. Thus, the evidence reveals that message was received from the control room at 16.00 hours that one burned woman was carried to Rajawadi hospital by Nehru Nagar mobile wireless van and to attend her also fortifies earlier conclusion that the incident must have occurred prior to 3.30 hours. Even giving concession regarding disparity in timing at which dying declarations would have been made to P.W.4 there appears further glaring disparity in her evidence and evidence of P.W.6. The evidence of P.W.6 reveals that after receiving message he had been to Shramjivi Nagar on Eastern Express highway and seen women in burnt condition on the road. It will not be out of place to state that though the trial Court has not accepted evidence of P.W.5 ::: Downloaded on - 09/06/2013 18:39:23 ::: 21 jud12.06 regarding her claim of Shakuntala having made dying declaration to her, the answers given by P.W.5 during cross examination reveals that house of Shakuntala was not on the road and was in by-lane.
Having due regard to the same and the evidence of P.W.4 and further evidence of P.W.5 which also corroborates evidence of P.W.6 that Shakuntala was lying on the road makes it extremely difficult to accept the claim of P.W.4 that her mother had made dying declaration while she was lying at the door in house and she was lifted from the said place by the police. Thus, evidence of P.W.4 checked from all angles reveal that the same does not inspire confidence upon the above said factors and even without taking into account the condition of Shakuntala to make statement/dying declaration to P.W.4. Hence the evidence of P.W.4 will be liable to be discarded due to not inspiring confidence.
24. Now for ascertaining the condition of Shakuntala it appears proper to consider evidence of P.W.11 Dr.Pattanaik, whose evidence reveals that he treated Shakuntala after her admission. He further deposed about injuries sustained by Shakuntala being 95% to 100% superficial deep burns. He has produced original indoor papers of Shakuntala and same are at Exhibit-32. He further claimed that at about 6.30 pm the police officer had been to the said ward and had inquired with him whether the patient was in fit condition to give valid statement. He further deposed that though general condition of the patient was poor but her mental condition was normal and she ::: Downloaded on - 09/06/2013 18:39:23 ::: 22 jud12.06 was conscious, oriented to time, space and place, she was found fit to give valid, medical and legal statement. He claimed that after examination, he gave endorsement accordingly and the endorsement upon first information report Exhibit-19 being said endorsement bearing his signature. It will not be out of place to state here that the evidence of Dr.P.W.10, who had examined Shakuntala in casualty in terms reveals that her general condition was very poor.
25. Now considering the claim staked by P.W.11 regarding having given endorsement for recording the statement of Shakuntala in the light of answers elicited from him during the cross examination it is difficult to digest such claim staked by him. At first blush it can be said that chart produced with Exhibit-32 reveals that at about 6 pm pulse rate of Shakuntala was feeble, at 7 pm and onwards her pulse rate was also feeble. P.W.10 was further unable to state whether his endorsement was obtained on blank paper or after recording statement of injured. He was not able to state whether the first information report was written prior to obtaining endorsement or after obtaining his endorsement. He also deposed that statement of patient was not recorded in his presence though he denied the suggestion of having given endorsement without examining the patient for pleasing the police. It is difficult to accept the claim staked by him in said respect. Indeed true though P.W.11 claimed consciousness and orientedness were different condition, he admitted that he had not taken down any special note regarding ::: Downloaded on - 09/06/2013 18:39:23 ::: 23 jud12.06 conscious condition of patient while giving endorsement. Thus, considering the evidence of P.W.11 in proper perspective and in light of medical papers Exhibit-32 on record makes it difficult to accept the claim that after examining Shakuntala he had allowed P.W.7 for recording of her statement. Though he claimed that mental condition of Shakuntala was normal and she was conscious and oriented to time, space and place and she was found fit to give valid medical and legal statement, hardly any corroborative evidence regarding such aspects has surfaced on record during deposition of P.W.11 or from the medical case papers produced by him. P.W.11 being expert, the prosecution was expected to elicit cogent reasons from him regarding basis on which he had made such claim. The medical papers also do not reveal the manner in which he has ascertained the said factors. Considering the said aspect coupled with inability of P.W.11 to disclose the time at which he had given endorsement i.e. either on blank paper or after recording of statement completely leads to no other conclusion that his said claim will not deserve any credence.
26. Such conclusion is inevitable due to cogent evidence about general condition of Shakuntala being poor found corroborated from the medical papers produced on record. The said papers reveals that the treatment was also commenced upon said patient. Having due regard to 95% to 100% superficial deep burns sustained by said patient it is difficult to digest that prior to 6.30 pm she would not ::: Downloaded on - 09/06/2013 18:39:23 ::: 24 jud12.06 have been administered any pain killers/sedatives. Careful perusal of medical papers does not lead any endorsement made by doctor of not giving any such drugs prior to recording of dying declaration.
Having regard to said facets the evidence of P.W.11 will be liable to be discarded and in turn same it will adversely effect the claim staked by P.W.7 of having recorded dying declaration cum F.I.R.
Exhibit-19 of Shakuntala.
27. Now considering the evidence of P.W.7 the same reveals claim of having been to Rajawadi hospital alongwith P.W.1. As discussed earlier his said claim is not supported by evidence of P.W.1, who had claimed that when she had been to hospital, the police were present at the said place. P.W.7 further claimed that after going to female ward and after seeing burned woman, having inquired with doctor on duty whether said women was in condition to given statement and the doctor told him that he can record her statement. He claimed of thereafter having recorded the statement i.e. statement implicating the appellant. He further claimed that after recording her statement he obtained endorsement of doctor upon the same. Now reading the said endorsement upon Exhibit-19 the same reveals interpretation within the word "able" and "unable" to give right thumb impression.
The further part of endorsement reveals that the patient was conscious and oriented and is able to give valid legal statement.
Even leaving aside the aspect of interpolation in the words "able" and "unable" the endorsement denotes that the said endorsement must ::: Downloaded on - 09/06/2013 18:39:23 ::: 25 jud12.06 have been made prior to recording of statement. The same is abundantly clear from the word "is able to give". Needless to add that same runs counter to the claim of P.W.7 of having obtained endorsement after recording the statement. As a matter of fact endorsements regarding condition of patient are required to be obtained prior to and also after recording the statement. The inability of P.W.11 to disclose at what juncture he had made endorsement and the claim staked by P.W.7 being not supported from the said endorsement would be another feature for not relying upon the said evidence.
28. Apart from the aforesaid evidence of P.W.7 considered in proper perspective clearly reveals anxiety on his part to hurriedly record the statement of Shakuntala. It is difficult to accept that in the event of P.W.7 having informed S.E.O. P.W.1 for recording dying declaration then there existing any necessity on his part to firstly record statement of deceased and thereafter narrate the matters from the same and particularly name of the culprit to S.E.O. and then allow her to record dying declaration. The said anxiety on part of P.W.7 takes away all sanctity of claim and himself having recorded true voluntary dying declaration cum F.I.R. of Shakuntala. Needless to add that entire prosecution evidence regarding recording of dying declaration of Shakuntala either by P.W.1 or P.W.7 in shrouded with serious suspicion about the claim staked by them. Additionally the evidence of P.W.7 does not reveal the precise manner in which he has ::: Downloaded on - 09/06/2013 18:39:23 ::: 26 jud12.06 recorded Exhibit-19. Even perusal of Exhibit-19 does not reveals the manner of recording of the same and denotes the same being not recorded in question and answer form. The Apex Court from time to time has urged that person recording dying declaration should record the same in question and answer form for enabling the courts to ascertain whether victim was in position to understand the question asked and was able to give rational answer to same. Needless to add that Exhibit-19 is also not bearing signature or thumb impression adding any sanctity to it. It may be true that due to Shakuntala having sustained burn injuries at the hand and it would not be possible to obtain her thumb impression upon the same, however, in such eventuality better type of endorsement and proper recording of dying declaration only would inspire confidence and sanctity to the prosecution claim of Exhibit-19 being true and voluntary dying declaration made by Shakuntala and recorded by P.W.7.
29. On the aforesaid backdrop considering the reasons given by the trial Court in paragraph 19 and 20 of the judgment for accepting the evidence of P.W.4 the same predominantly reveals that the trial Court had concluded that P.W.4 has no grudge/animus for implicating the appellant and her statement was recorded by the police on the following day of the incident and her evidence barring certain omissions is consistent about cause of burn injuries sustained by her mother. The trial court also lightly brush aside evidence of PW.4 that her mother was then searching for the appellant for unconvincing ::: Downloaded on - 09/06/2013 18:39:23 ::: 27 jud12.06 reasons. The trial Court observed that as PW.4 was unaware of the statement given by her mother to the police after admission in the hospital merely because she was disliking illicit relation of the appellant with her mother being not good reason for falsely implicating the appellant by giving false evidence. The reasoning given by the trial Court for accepting the evidence of P.W.4 on the count of there being no reason to discard her evidence can never be said to be sound in view of various features regarding the evidence of P.W.4 pointed out by us earlier for coming to the conclusion of her evidence and claim not inspiring confidence. The reason for disliking the appellant being illicit relationship of the appellant and her mother, we find it difficult to accept that the same would not have been sufficient for P.W.4 to entertain animus against the appellant.
30. Furthermore, the said reasoning reveals that the trial Court miserably failed to take into account the vital variance about place at which Shakuntala allegedly made dying declaration to P.W.4 and was lifted by the police i.e. door of the house and contrary fact of Shakuntala being found on the road and from the said place herself being taken to hospital as established by the evidence of P.W.6 and P.W.7. The trial Court also missed to take into account unnatural conduct on the part of P.W.4 and the delay of herself approaching the police for informing about the person who was author behind causing burn injuries to her mother and mother having informed her about ::: Downloaded on - 09/06/2013 18:39:23 ::: 28 jud12.06 the same. In the light of said aspect for the discussions made earlier we find that trial Court committed error in accepting and relying upon evidence of P.W.4 to which hardly there exists any corroboration.
31. After carefully considering the reasons given by the trial Court in paragraph no. 32, 33 and 36 to 39 for accepting the evidence of P.W.7 of Exhibit-19 being F.IR. cum dying declaration of Shakuntala recorded by him we find that trial Court completely miss out various infirmities from the evidence of P.W.7 considered either alone or in the light of the other evidence, already highlighted by us during the discussion made hereinabove for not accepting his evidence and/or his claim that Exhibit-19 being voluntarily dying declaration cum F.I.R. of Shakuntala recorded by him. In light of detail reasoning given earlier we do not propose to once again discuss thread bare the reasoning given by the trial Court in the said paragraphs for accepting the evidence of P.W.7.
32. However we deem it necessary to record that for such reasoning which fails to consider said vital aspect, pointed by us the trial Court was in error of accepting and relying upon the evidence of P.W.7. Additionally we observe that the trial Court completely missed that investigating officers being always interested in the case made by them the trial Court was in error in coming to the conclusion that P.W.7 could not have been hostile against the appellant due to himself ::: Downloaded on - 09/06/2013 18:39:23 ::: 29 jud12.06 being not aware regarding the relationship in between the appellant and the victim. Similarly, taking into consideration that incident had occurred prior to 3.30 p.m. and purported dying declaration/FIR was recorded by 6.30 p.m. and the location of the relevant places i.e. Nehru Nagar Police Station and Rajawadi Hospital we are unable to accept the reasoning recorded by the trial Court for observing that there was no delay in recording dying declaration. Similarly, in light of reasoning given earlier regarding the condition of Shakuntala, we are also not in agreement to the contrary conclusion arrived by the trial Court about the same for the reasons recorded in paragraph no.36. Similarly, after considering the reasoning recorded in paragraph no. 39 in light of the evidence on record, we find that the same is more so in the nature of surmise rather than being legitimate inferences arising from the evidence surfaced at the trial.
33. Furthermore, considering the evidence of P.W.8 Dr. Kadam regarding burn injuries found on the person of appellant on 6th November, 2003 after his surrender when he was sent for medical examination and treatment by P.W.7, we find substance in the submission canvassed by learned counsel for the appellant that existence of such injuries probabilised the defence of the accused narrated earlier of having received such a injuries while extinguishing fire caught by Shakuntala when he had been to her house after hearing the shouts from her house. We are of such a considered opinion as after taking into account extent of injuries ::: Downloaded on - 09/06/2013 18:39:23 ::: 30 jud12.06 sustained by Appellant as revealed from the said evidence and the prosecution having not adduced any evidence for negativing his said defence other than the evidence of the dying declarations relied by the prosecution and which evidence is found not inspiring confidence by us. Needless to add that even the evidence of PW.4 admittedly reveals that at the time of an incident she was not in the house but Sandeep was present in the house when she had left the same. Even the appellant during his defence has admitted the said facet. In the said circumstances the prosecution ought to have examined the Sandeep at the trial for throwing the light upon the said part of the prosecution tale. However, apart from not examining Sandeep, prosecution has also not advanced any cogent reason for explaining his non-examination at a trial.
34. As the net result of the aforesaid discussion we are of considered opinion that the trial Court committed the error in accepting the evidence of P.W.4 and P.W.7 and coming to the conclusion that the prosecution has established guilt of the appellant.
We are of such a opinion as it is settled legal position that since the accused persons has no opportunity to cross examine the person who had allegedly made the dying declaration, obviously due to death, the evidence of such a nature would deserve the acceptance only if the same is inspiring confidence of deceased having made voluntarily and true dying declaration to the concerned witness. Such a position being not established by the evidence adduced at the trial, the trial ::: Downloaded on - 09/06/2013 18:39:23 ::: 31 jud12.06 Court ought not have accepted the said evidence and fastened the guilt upon the appellant. Hence the Judgment and Order of conviction and sentence passed by the Trial Court being legally unsustainable we quashed and set aside the same and acquit the appellant from the charge of commission of the offence punishable under Section 302 of the Indian Penal Code and direct to release him forthwith unless he is required in any other case. We also direct for refund of the fine amount if any paid by the Appellant.
(P. D. KODE, J.) (V. M. KANADE, J.)
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