Bombay High Court
Sau. Kamlabai Haribhau Lasante (In ... vs The State Of Maharashtra Thr. P.S.O. ... on 4 May, 2019
Equivalent citations: AIRONLINE 2019 BOM 1795
Author: Vinay Joshi
Bench: Z.A.Haq, Vinay Joshi
Judgment 1 apeal71.19 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 71/2019
Sau. Kamlabai Haribhau Lastane,
Aged about 65 years, Occ. Labour,
R/o. Khed Pimpri, Tq. Nandgaon
Khandeshwar, Dist. Amravati.
.... APPELLANT/ACCUSED
// VERSUS //
The State of Maharashtra
Through P.S.O. Nandgaon
Khandeshwar, Tq. Nandgaon
Khandeshwar, Dist. Amravati.
.... RESPONDENT
___________________________________________________________________
Shri C. A. Babrekar, Advocate for appellant.
Shri T. A. Mirza, APP for respondent.
___________________________________________________________________
CORAM : Z.A.HAQ AND VINAY JOSHI, JJ.
DATED OF RESERVING THE JUDGMENT : APRIL 26, 2019.
DATED OF PRONOUNCING THE JUDGMENT : MAY 04, 2019.
ORAL JUDGMENT (Per : VINAY JOSHI, J):
1. This criminal appeal has been filed against the judgment and order of conviction dated 17.07.2018 passed the learned Sessions Judge, Amravati in Sessions Case No. 286/2013, whereby, the learned Sessions ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 2 apeal71.19 .odt Judge, convicted appellant/accused - Sau. Kamlabai for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer life imprisonment and to pay fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for three years. The learned Sessions Judge also accorded the benefit of set off in terms of Section 428 of The Code of Criminal Procedure, since appellant was in jail from 25.04.2013 to 16.07.2013.
2. The factual matrix of the case is that the accused (Kamlabai) was mother-in-law of deceased - Sonu. One year preceding the incident, deceased Sonu married with the son of Kamlabai. As usual, after marriage deceased went to reside at her matrimonial house. There was matrimonial dispute due to which deceased and her husband were residing separately from their in-laws in the same house. Separate cooking arrangement was made in the same room. On 24.04.2013 in between 08.00 a.m. to 09.00 a.m., deceased sustained extensive burns, therefore, she was shifted to the General Hospital, Amravati. She was admitted to burn ward with 78% burn injuries. While Sonu was under treatment in the hospital, around 02.00 p.m at the request of Police, Executive Magistrate - PW-3 - Shri Mahale went to the hospital for recording her statement (dying declaration). Initially, PW-3
- Shri Mahale approached the then Medical Officer - PW-2 - Dr. Naidu and requested him to examine the patient about her physical and mental condition. Accordingly PW-2 - Dr. Naidu examined the patient and found ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 3 apeal71.19 .odt that she was mentally and physically fit to give statement. Accordingly PW-3 - Executive Magistrate - Shri Mahale recorded statement of deceased as per her narration. Deceased disclosed in her statement that accused - Kamlabai poured kerosene on her person and set her on fire. On the very day i.e. on 24.04.2013 around 10.45 p.m, Sonu succumbed to burn injuries. On the following day, the dying declaration was treated as First Information Report and accordingly crime was registered vide Crime No. 52/2013 at 09.30 a.m. During course of investigation, Police visited the place of incident and drew Panchanama of the scene of offence (Exhibit 11). The inquest Panchanama was drawn on the dead body (Exhibit 17). Postmortem was conducted on the dead body of Sonu on the very day.
3. Sonu's hospitalization was telephonically informed to her parents and other relatives. In turn, all of them rushed to the hospital at Amravati. On inquiry, Sonu disclosed to her mother - Antakala Raut (PW-5) that while she was cooking, the accused poured kerosene on her person and set her on fire with the aid of match sticks. After completing the investigation, the Police submitted final report in terms of Section 173(2) of the Code of Criminal Procedure against the accused for commission of offence punishable under Section 302 of The Indian Penal Code.
4. On receipt of final report, the concerned Magistrate committed the case to the Court of Sessions for trial. The charge against the accused ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 4 apeal71.19 .odt was framed (Exhibit 8). The accused pleaded not guilty and put the prosecution to the task of establishing the charges levelled against him with requisite standard of proof. To substantiate the case, the prosecution has examined in all six witnesses. The prosecution's evidence mainly consists of Medical Officer - PW-2 - Dr. Naidu who was allegedly present at the time of recording dying declaration, and PW-3 - Shri Mahale - Executive Magistrate who has recorded dying declaration of deceased Sonu. The prosecution has examined PW-5 - Antakala Raut - mother of deceased to whom oral dying declaration was made. Besides that, the prosecution has examined Police witnesses.
5. After hearing both sides and perusing the record, learned Sessions Judge came to the conclusion that the prosecution has proved its case on the basis of two dying declarations i.e. one written and one oral. On that basis, learned Sessions Judge convicted the accused and sentenced her as detailed above. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence, the appellant/accused preferred this appeal, claiming innocence.
6. The learned Advocate for accused vehemently argued that the order of conviction is based on conjectures and surmises. It is argued that the trial Court totally erred in relying on the written dying declaration (Exhibit 32) which does not inspire confidence at all. He submitted that ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 5 apeal71.19 .odt dying declaration is quite doubtful and suspicious. The evidence creates strong suspicioun about the consciousness and mental fitness of the victim while recording of her statement. It is highlighted that the dying declaration has been recorded in mechanical manner by filling the blanks in printed proforma, without ascertaining the mental fitness of deceased. The learned Advocate for accused also argued that the oral dying declaration is a creation of afterthought discussion which is totally unreliable. According to him, the manner of recording dying declaration strongly surfaced the possibility of concoction and false implication.
7. On the other hand, the learned APP for the State submitted that prosecution witnesses on the point of written dying declaration as well as in oral form are trustworthy and reliable. There is evidence of Medical Officer about mental fitness of the injured at the time of recording statement. It is argued that at the beginning of dying declaration as well as at its end, there is Doctor's specific endorsement about mental fitness of the deceased. It is argued that the accused has not explained the alternate possibility as to how Sonu sustained burn injuries, though she was living under one roof and therefore failed to discharge burden in terms of Section 106 of The Evidence Act. In short, he submitted that the trial Court has properly appreciated the evidence and passed the impugned judgment and order of conviction which calls no interference.
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Judgment 6 apeal71.19 .odt
8. At the inception, we may quote some admitted facts of the case. One year preceding the incident, deceased Sonu married with the son of accused. After marriage, Sonu was staying at her matrimonial house alongwith her husband, mother-in-law i.e. accused and father-in-law. Undisputedly, on 24.03.2013 around 08.00 to 09.00 a.m., while Sonu was at her house, she sustained burn injuries to the extent of 78% for which she was hospitalized and latter on, succumbed to the burn injuries on the very day around 10.45 p.m. The cause of death is opined as hemorrhagic shock due to 78% burns. In this background, the prosecution evidence needs scrutiny to find out sustainability of the charge levelled against the accused. Though prosecution has examined in all six witnesses, the main thrust of prosecution is on the evidence of PW-2 - Dr. Naidu and PW-3 - Shri Mahale - Executive Magistrate on the point of written dying declaration (Exhibit 32) and the evidence of PW-5 Smt. Antakala Raut to whom oral dying declaration was allegedly made. The trial Court believed both dying declarations and ultimately recorded the findings of guilt against the appellant/accused.
9. Since the case is solely based on two dying declarations, we prefer to deal said evidence one by one. The prosecution has examined PW-2 Dr. Naidu who had examined the patient on the point of consciousness and mental fitness to give statement. It has come in his evidence that, at the request of Executive Magistrate, he had examined the deceased and found that she was mentally and physically fit to give statement and accordingly ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 7 apeal71.19 .odt gave endorsement (Exhibit 29) to that effect. It is his evidence that in his presence, Executive Magistrate recorded statement. He specifically deposed that since beginning till the completion of statement, patient was mentally fit to give statement, and accordingly he gave another endorsement (Exhibit 30) below the statement. PW-3 - Executive Magistrate - Shri Mahale deposed that at the request of Police, he visited the General Hospital, Amravati for recording statement of deceased. At his request, the Medical Officer examined patient and opined that patient was in fit condition to give statement. It has come in his evidence that, he got satisfied that patient was in fit condition to give statement and accordingly the statement of deceased was recorded as per her say. After recording statement, he read over contents to the deceased and obtained her right toe impression on the statement and signed on the statement which is marked as Exhibit 32.
10. Undeniably, the prosecution case as referred above is totally based on the dying declaration. No doubt it is settled law that if a dying declaration inspires full confidence, it can form the basis for conviction. There is neither rule of law nor of prudence that dying declaration cannot be relied upon without corroboration. Needless to say that if Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. Before going to award conviction against the accused, Trial Court must be ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 8 apeal71.19 .odt mindful of the fact that there should be no room to suspect the evidence led by the prosecution on which conviction is being awarded. As a general rule, while appreciating evidence in a criminal case, the Court should bear in mind that it is not the quantity, but the quality of evidence that is material. It is the duty of the Court to consider the trustworthiness of the dying declaration, and whether the same inspires full confidence so as to accept rely act upon before recording conviction. In this regard we may profitably quote the observations of Hon'ble Supreme Court in the case of Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC
470.
"In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 9 apeal71.19 .odt accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case."
11. We may note that the prosecution has to prove the guilt of the accused beyond all reasonable doubt. The accused has a profound right not to be convicted for commission of an offence which is not established by the evidential standard of proof beyond reasonable doubt. The law does not permit the Court to convict the accused on suspicion or on the basis of preponderance of probabilities. No doubt the reasonableness of a doubt must be practical one and not on an abstract theoretical hypothesis.
12. The Court has to be extremely careful while dealing with dying declaration as the maker thereof is not available for the cross- examination, which poses a great difficulty to the defence. In short, before relying on dying declaration, the Court is duty bound to satisfy itself that the dying declaration is a voluntary and truthful version of the maker. If the Court is fully satisfied on these issues, then there is no difficulty to base conviction nor Court is required to look for corroborative evidence. At this juncture, we may refer the judgment of Ho'ble Apex Court in the case of Puran Chand v. State of Haryana, ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 10 apeal71.19 .odt 2010 (6) SCC 566, as under:
"15. The Courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration."
13. We may also refer the observations of Hon'ble Apex Court in case of Sham Shankar Kankaria v. State of Maharashtra, (2006) 13 SCC 165.
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 :::
Judgment 11 apeal71.19 .odt
14. Way back the Hon'ble Supreme Court in offt quoted judgment in case of Khushal Rao v. State of Bombay, AIR 1958 SC 22, laid down the principles regarding appreciation of evidence on dying declaration which are as follows:-
"(16) On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control;
that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
(17) ............. the Court, after examining the dying declaration in ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 12 apeal71.19 .odt all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."
15. On the same line we find it relevant to note following observations of Hon'ble Supreme Court in case of Vikas v. State of Maharashtra, (2008) 2 SCC 516.
"45. The Court, referring to earlier case law, summed up principles governing dying declaration as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 13 apeal71.19 .odt is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the Court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."
16. It would be appropriate here to remind ourself that generally, there are two issues with respect to a dying declaration. The first one would be, whether the declaration was actually made. Naturally, this would be assessed on the basis of the evidence of the witnesses, who claim that such declaration was made and witnessed by them. There would be a question of accuracy of the record of such declaration, if made or maintained by such witnesses. If the evidence in that regard is satisfactory, the Court would come to a conclusion that a particular statement was, indeed, made by the deceased. It is not the end of the matter, the Court thereafter would be required to decide whether such statement made by the deceased was true. In other words, the fact of having made the statement and the truthfulness of the said statement are both required to be established before a declaration is termed as reliable.
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Judgment 14 apeal71.19 .odt For ascertaining the truthfulness of the statement of a dying person, the parameters, which are applied to the witnesses while judging reliability of their evidence, must be applied. The reliability of a version of a witness would depend on several factors including opportunity available to witness to know physical and mental capacity of the patient to convey, kind of treatment which the patient was undergoing, chances of tutoring, relation of witness with patient and so on. The law does not afford to take a risk of blindly relying on the statement only because it has been recorded by Executive Magistrate. Usual scrutiny from every possible angle is must and evidence of Executive Magistrate must withstand the test of reliability.
17. The learned Advocate for the appellant argued that the evidence of dying declaration does not inspire the full confidence so as to base conviction. For this purpose, he also relied on reported cases of Jai Karan Vs. State (N.C.T.) of Delhi, 1999 DGLS (SC) 1062, Ranjana @ Changuna Prakash Sonawane and Another Vs. State of Maharashtra, 2018 DGLS (Bom.) 557 and Ram Manorath: Chhotey Vs. State of Uttar Pradhes, 1981 DGLS (SC) 155. In these judgments, the general parameters for appreciation of evidence on dying declaration are discussed which we have amply expressed above. ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 :::
Judgment 15 apeal71.19 .odt
18. In the light of such settled legal position, the facts of the case are to be assessed, since on the basis of factual aspect one has to independently decide whether the evidence of dying declaration inspires confidence. The principles would provide a guide but one has to decide the worth of dying declaration only on the basis of facts and the attendant circumstances. The written dying declaration (Exhibit
32) is in printed format. The law is well settled that there is no specific format for writing a dying declaration, meaning thereby, written dying declaration can be in any form, but the essence is, it should inspire full confidence of the Court regarding its correctness and the statement of deceased was not a result of tutoring or product of imagination. More importantly, there should be evidence that victim was well oriented and in fit state of mind to give statement. It is duty of recorder to satisfy himself that the deceased was in fit mental condition to give statement and latter the Court should also satisfy that deceased was in fit state of mind while giving statement.
19. In order to establish written dying declaration, the evidence of PW-2 - Dr. Naidu and PW-3 - Executive Magistrate is pressed into service. It has come in the evidence of PW- 2 - Dr. Naidu that on examining patient, he found that patient was mentally and ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 16 apeal71.19 .odt physically fit to give statement. Similarly, PW-3 - Executive Magistrate stated that he also got himself satisfied himself that patient was in fit condition to give statement. The prosecution has relied on the Doctor's initial endorsement on the dying declaration (Exhibit - 29) about mental fitness of patient for giving statement. Likewise, PW-2 - Dr. Naidu stated that since the beginning till the completion of statement, patient was mentally fit to give statement. For this purpose the second endorsement (Exhibit 30) at the end of dying declaration is relied.
20. Admittedly, the dying declaration is in a printed format. At the cost of repetition, we may say that the law does not prescribe any format therefore, there is no hitch in accepting dying declaration in printed format, if otherwise found truthful and trustworthy. Notably, PW-2 - Dr. Naidu had not specifically stated as to how he had examined the patient. Neither he stated that he had checked Blood Pressure, Pulses rate or any other parameter to ascertain mental fitness of patient. In peculiar facts of the case, mere omnibus statement that he had examined the patient would not suffice. Similarly PW- 3 - Executive Magistrate has stated that he got himself satisfied about mental fitness of patient. He has not stated as to whether he had put any preliminary questions to the patient or by any other mode he ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 17 apeal71.19 .odt himself got satisfied about the mental fitness. Such evidence is totally absent. Be that as it may, but as there is no specification about examination or satisfaction of the recorder, we have to turn towards the endorsement given by the Doctor at the beginning and at the end of the statement to see whether the same would vouch for the mental fitness of patient.
21. We find that the dying declaration (Exhibit 32) is one page printed format divided into three parts. First part speaks about prior endorsement of Doctor and the last part about latter endorsement of Doctor. Significantly, the endorsement on the printed format are prepared on the presumption that patient was conscious and mentally fit from the beginning to the end of the recording of the statement.
22. The endorsement in printed format left the only scope for recorder to fill in some insignificant factual aspects like name, day and date. Since, it is an important aspect of the case, we find it necessary to reproduce both the endorsements as below:-
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Judgment 18 apeal71.19 .odt
(A) First endorsement at the beginning of statement
(Exhibit 29) is as under:-
"e`R ;q i w o Z tckuh ns. ;kiq o hZp s ize k.ki=
eh MkW- vfHk"ksd uk;Mw oS| fd; vf/kdkjh] lkekU; :X.kky;] vejkorh iz e kf.kr dfjrks dh] ¼:X.kkps uko½ lkS- lksuw lafni ylars fn- 24@04@013 os G 2-15 ih-,e- oktrk e`R;q iw o Z tckuh ns.;klkBh Ikw.kZ 'kq/nhoj o l{ke vkgs r -
Sd/-
oS| dh; vf/kdkjh Lok{kjh] uke o inuke"
(B) The last endorsement at the end of statement
(Exhibit 30) is as below:-
"e`R ;qi w o Z tckuh uks n foY;kua r jps ize k.ki=
eh oS | fd;n` " V;k ize kf.kr djhrks dh] Jh @ Jherh lksuw lafni ylars gs e`R ;iwoZ tckuh nsrkau k iw. kZ 'kq /nhoj o 'kkfjjhd o ekufldn"V;k l{ke gks r s -
Sd/-
fnuka d %& 24@4@13 oS| fd; vf/kdkjh
osG %& 2-40 ih-,e- Lok{kjh] uke o inuke"
For the purpose of clarity, we have highlighted (Bold letters) the portion which was already printed.
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Judgment 19 apeal71.19 .odt For better understanding, we find it advisable to incorporate photo copy of the entire dying declaration couple with both the doctors' endorsements as below:-
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Judgment 20 apeal71.19 .odt
23. It is evident from the printed format that, it was prepared by presupposing that the patient was conscious for giving statement and remained conscious till the end of statement. In other words, no option was left for the Medical Officer to state otherwise because whatever the requirement of dying declaration, was already locked by putting said material in printed format. One can understand if some alternative was left at the end of endorsement like l{ke vkgsr @ ukghr or l{ke gksrs @ l{ke uOgrs. Had it been the fact that even such option was left with the Medical Officer to decide after examination of the patient, then it could have been understood. However, the entire exercise of preparing a ready-made format of endorsement as per requirement, looses its significance rather it loudly conveys that Medical Officer had completed an empty formality by casually putting his signature at the place which was meant for signature. We strongly deprecate such practice of preparing one sided format of Doctor's endorsement which has no nexus with the factual condition of patient. Therefore, we are reluctant to rely on such stereo typed ready-made, mechanical and presumptive printed doctors' endorsement. ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 :::
Judgment 21 apeal71.19 .odt
24. Having held so, the option left for us is to judge the mental fitness and consciousness of the patient on the basis of oral evidence. We have already expressed above that neither Medical Officer nor Executive Magistrate has detailed as to how they got satisfied about the mental fitness of the patient. Therefore, such type of evidence coupled with the rest of the facts is not free from suspicion.
25. Be that as it may, let us consider the actual dying declaration (Exhibit 32). The dying declaration nowhere spells out that preliminary questions were put by the recorder to satisfy himself about consciousness and mental fitness of the patient. We repeat that though it is not legal requirement but considering the entire scenario, we find that it was necessary for the prosecution in the facts of this case to lead the evidence in that regard. The dying declaration is a very short narration which runs as follows:-
"eh ?kjh vlrkauk Lo;aikd djhr gksrs- Lo;aikd djrkauk ekg;k cq<hua vaxkoj ?kklysV Vkdwu eys isVoqu nsya- ek>s o cq<hpa HkkaM.k uOgra- ?kjh dks.khp uOgra- ;kyk ehp tckcnkj vkgs- ;kf'kok; eyk dkgh lkaxk;ps ukgh-"
Though the prior part of the statement speaks about the complicity of accused, however, latter part in contravention of earlier ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 22 apeal71.19 .odt sentence conveys that deceased herself was responsible for the act. It is difficult to comprehend these two inconsistent sentences. The trial Court, on considering said aspect concluded that since the accused had not explained the circumstances which were within her knowledge therefore, the second part of dying declaration needs to be ignored. Apparently, the trial Court has picked up a favourable portion of dying declaration showing the complicity of the accused and ignored the inconsistent portion which excluded the role of accused in the incident. The said approach of trial Court is not aprovable. The dying declaration is to be taken and read as a whole. One cannot pick and choose particular portion of dying declaration dehors the rest, for drawing particular conclusion. The entire dying declaration is to be read as a whole and a cumulative effect has to be seen. Therefore, the inconsistency which are found in dying declaration itself affects its credibility. It also gives room to hold that the deceased was not in mentally fit condition, so she gave inconsistent story in the same breath.
26. The trial Court has emphasized on the burden of proof under Section 106 of The Indian Evidence Act. It is observed that though the accused was within the house at the time of incident, she ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 23 apeal71.19 .odt failed to explain the things and consequently, failed to discharge her burden. Therefore, it is held that inconsistent portion needs to be ignored. Concededly, in natural course when incident occurred in the house, one can expect certain explanation from accused. However, if the incident has not been witnessed by the accused then it is not expected from her to speculate or pin point as to how the incident occurred. The prosecution cannot be relieved of the basic burden by invoking Section 106 of The Indian Evidence Act.
27. At this juncture, we may note that at the inception, trial Court presumed that it is a case of homicidal death and proceeded to scan the evidence. In that regard, it is observed by the trial Court that, "it is nobody's case that victim has committed suicide nor it is a case that she suffered accidental death". It gives impression that only because the defence was not specific, the trial Court presumed that it is a case of homicidal death. In our opinion, irrespective of defence, the trial Court is obliged to independently decide on the basis of forthcoming evidence, whether deceased met with a homicidal death. It is a case of death due to burn injuries. Always in such cases, there is possibility of accidental or suicidal or homicidal death. Merely, because the defence is silent, it does not provide immunity to the ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 24 apeal71.19 .odt prosecution to jump on the conclusion that it is a case of homicidal death. If dying declarations are excluded, then the question of nature of death would prominently surface to be answered. In absence of that, the charge of murder would not stand at all.
28. It takes us to the next limb of prosecution case which is about oral dying declaration. The prosecution has examined PW-5 - Smt. Antakala Raut who is mother of deceased. It has come in her evidence that after receiving information, she went to the hospital along with her husband and other relatives. She had a talk with deceased who was in a position to talk. She stated that deceased disclosed that, while deceased was cooking, the accused poured kerosene from bottle and set her on fire with the help of matchstick. This oral dying declaration is given to the mother by the deceased. It requires usual scrutiny to decide worth of such evidence. The defence strongly criticized the evidence of PW-5 - Antakala on the premise that deceased was not at all in a position to give statement due to extensive burn injuries. Secondly, it is argued that PW-5 Antakala never met deceased in the hospital, and therefore no such statement was given. In this regard, defence took us through certain admissions given the PW-5 - Antakala.
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29. It has come in the evidence of PW-5 Antakala that no one was allowed to enter in the burn ward without permission of Medical Officer. She admits that Medical Officers were not allowing anybody to meet the patient. She stated that on that day, she herself, her husband and other relatives were seated outside the ward for a whole day. On the basis of such evidence, defence argued that this witness never met deceased at all in the hospital. There is no evidence to hold that PW-5 was allowed by the Medical Officer to meet her ailing daughter. Neither she stated that she alone was allowed to see her daughter nor there is evidence of Medical Officer to that effect. Pertinent to note that PW-5 - Antakala was accompanied by her husband and other relatives at that time. Had it been the fact that she met the deceased in burn ward, then naturally her husband would have also accompanied her. However, there is no such evidence to corroborate the statement of PW-5 Antakala that they met deceased and deceased disclosed the cause of death to PW-5 - Antakala. Moreover PW-5 - Antakala admitted that after death of Sonu, they had a discussion and then she gave statement. This admission assumes significance in the background of the rest of the evidence.
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30. We have another reason to discard the evidence of PW-5 - Antakala. There is no positive evidence to show that deceased was in a position to talk at the relevant time. PW-2- Dr. Naidu admits that Sonu was in serious condition and she was in pains due to burn injuries. He admits that they had given pain killer and sedative drugs to the patient. In the circumstances, it is difficult to believe that Sonu was in well oriented condition and had a talk with her mother. It creates suspicion whether PW-5 Antakal in reality met Sonu and about the alleged consequential disclosure. Pertinent to note that medical treatment papers are not produced by the prosecution for the reason best known to them. What kind of treatment was given to the patient at relevant time is not brought on record. Moreover, the prosecution evidence is silent as to who brought patient in the hospital and what was her condition at the time of admission. These aspects have bearing on the case in view of precarious condition of deceased which has come on record through the admission of PW-2 - Dr. Naidu.
31. It is the prosecution's case that the Police had requested PW-3 - Executive Magistrate to examine the patient. Neither the requisition letter issued by the Police to the Executive Magistrate nor his letter to PW-2 - Dr. Naidu requesting to examine the condition of ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 27 apeal71.19 .odt patient, are produced on record. These aspects add suspicion about examination of patient by Doctor at the relevant time.
32. This case has another angle about registration of crime on the basis of First Information Report on the following day around 09.30 p.m. Notably, on 24.04.2013, around 02.35 p.m. there was alleged disclosure in the shape of dying declaration to the Executive Magistrate. As per evidence of PW-3 - Executive Magistrate, after recording statement of deceased, he had handed over the same to the Police. It has come in the evidence of PW-4 - Bhavsar that on 25.04.2013 dying declaration was handed over to him by ASI - Motiram Pawar in the morning on which he registered crime vide Crime No. 52/2013. It is prosecution's case that concerned dying declaration was at Kotwali City Police Station which was brought by ASI - Motiram Pawar and handed over to the concerned officer of Nandgao Police Station. Pertinent to note that though there was alleged disclosure of specific act of accused by way of dying declaration, no offence was registered on that basis. In the circumstances, it was quite natural or expected from the Police to register offence punishable under Section 307 of The Indian Penal Code on receipt of the dying declaration. However, total inaction on ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 28 apeal71.19 .odt the part of Police of sitting over the dying declaration disclosing commission of cognizable offence creates serious doubt about alleged disclosure as well as truthfulness thereof. Moreover, the prosecution has not examined ASI Motiram Pawar to state that he collected dying declaration from City Kotwali Police Station nor any evidence in the form of Station Diary entry or in any other form, from City Kotwali Police Station is produced to show that dying declaration was in their custody. The explanation offered by PW-4 - Bhavsar falls short to vouch the custody of dying declaration, which adds to the suspicion.
33. The last aspect which needs to be addressed is about recording of statement of accused in terms of Section 313 of the Code of Criminal Procedure. It provides that in every trial, for the purpose of enabling the accused to explain incriminating circumstances, his/her statement has to be recorded. The very object behind recording the statement of accused, is to give him/her opportunity to explain all the incriminating circumstances which may be used against him. In other words, the purpose of examining the accused under Section 313 of the Code of Criminal Procedure, is to meet the requirement of the principles of natural justices i.e. audi alteram partem. This is a valuable right conferred by statute to the accused to explain the things which ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 29 apeal71.19 .odt are against him/her.
34. The trial Court, though has recorded the statement under Section 313 of the Code of Criminal Procedure, however the vital circumstance has not been put to the accused during his statement. The trial Court, while convicting the accused, has mainly relied on the written dying declaration (Exhibit 32). However, the contents of written dying declaration were not put to the accused during his statement. It is really a matter of concern that the trial Court did not frame the question specifically putting the incriminating material stated by deceased in her statement. Thereby, a very important circumstance is lost. The deceased, in her statement (dying declaration) stated that the accused had poured kerosene on her person and had set her on fire. Particularly, this incriminating part of dying declaration has not been put to the accused to get her explanation. Although the dying declaration (Exhibit 32) is treated as the basis to convict the accused, the same was not put to the accused in her statement recorded under Section 313 of the Code of Criminal Procedure. Apparently, the accused was not given opportunity to explain this vital circumstance. Recording of statement under Section 313 of the Code of Criminal Procedure is not an empty formality during trial. Section 313 of the ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 30 apeal71.19 .odt Code of Criminal Procedure prescribes the procedure to safeguard the interests of the accused. Obviously, in absence of seeking explanation on this vital point, prejudice is caused to the accused.
35. Considering the valuable right of accused as well as the importance of statement under Section 313 of the Code of Criminal Procedure, the Hon'ble Supreme Court in case of Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 ruled that the circumstances which are not put to the accused in her examination under Section 313 of the Code of Criminal Procedure, cannot be used against her and have to be excluded from consideration. We may note that considering the importance of statement under Section 313 of the Code of Criminal Procedure, amended Sub-clause (5) of Section 313 of the Code of Criminal Procedure has been added which permits the Court to take help of prosecution and defence in preparing relevant questions which are put to the accused. One of the reason for such amendment is to see that Court should not miss putting any incriminating circumstance to the accused while recording his statement.
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Judgment 31 apeal71.19 .odt In the result, the finding of guilt based on written dying declaration for this reason alone would not sustain apart from the other reasons which we have recorded above. In the result, we hold that the dying declaration is not trustworthy and reliable.
36. To summarize the position, the evidence on the point of dying declaration does not inspire confidence so as to keep implicit faith on it. There is no reliable evidence to satisfy the judicial mind that the deponent was conscious and mentally fit at the time of giving statement, rather the genesis of the case i.e. recording of statement of deceased itself has become doubtful. From the forthcoming material we are not satisfied about the truthfulness, voluntary nature of the dying declaration and fitness of the mind of deceased. In the aforesaid facts and circumstances, we find and hold that the prosecution has failed to substantiate the charge leveled against the appellant/accused beyond all reasonable doubt by adducing consistent, cogent and reliable evidence. If dying declaration is excluded, nothing remains in prosecution's case. Therefore, the appellant/accused is legitimately entitled to avail the benefit of doubt. Hence, the impugned judgment and order of conviction passed by the learned Sessions Judge, Amravati would not withstand the legal position and requires to be reversed by ::: Uploaded on - 04/05/2019 ::: Downloaded on - 05/05/2019 04:18:55 ::: Judgment 32 apeal71.19 .odt acquitting the accused from the charges levelled against her. Consequently, appeal deserves to be allowed by setting aside impugned judgment and order of conviction.
In view of that, following order.
(I) The appeal stands allowed.
(II) The judgment and order of conviction dated
17.07.2018 passed by the Sessions Judge, Amravati, in Sessions Case No.286 of 2013 stands quashed and set aside. (III) The appellant/accused, Sau. Kamlabai Haribhau Lastane is acquitted of the offence punishable under section 302 of the Indian Penal Code.
(IV) The accused be released from Jail forthwith, if not required in any other offence.
(V) The amount of fine, if deposited, be refunded to the accused.
(VI) The seized muddemal property being worthless, be destroyed on expiry of period of appeal.
(VII) R. & P. be sent back to the Trial Court.
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(VIII) The Registrar (Judicial) of this Court is directed to
forward copy of this judgment to the Secretary, Law and Judiciary Department, and Law and Judiciary shall issue necessary instructions to all the Executive Magistrates in the State to take note of the concern expressed by us in para 23 of the judgment.
(Judge) (Judge)
Gohane.
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