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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 164 OF 2018
Baban Sopan Jitethor
Age 28 years, Occu: Labour, All R/o. Sant Kabir Nagar, behind Bhosla Military School, Nashik, (Presently detained at
Nashik Central Prison). Appellant
(Orig. Accused)
Through Gangapur Police Station, Gangapur Road, Nashik. Respondent
(Orig. Complainant)
…..
Mr. Pratik R. Kalantri, for the Appellant.
Mrs. P. P. Shinde, APP
, for the Respondent – State.
…..
JUDGMENT
2. The prosecution story goes like this: The appellant is the father-in-law of the victim - Nilam Dhanraj Jithethor (for short “victim”). On 1st April, 2013, the victim, who was then aged about 19 years, was admitted in Civil Hospital Nashik with burn injuries. On the basis of her complaint recorded by an Assistant Police Inspector- J. B. Sapkale of Gangapur Police Station, it revealed that after her marriage with the son of the appellant on 13th February, 2013, the victim was subjected to physical and mental torture by the appellant as well as her motherin-law and brother-in-law - Rahul.
3. On 30th March, 2013, around 6:00 p.m. her mother-in-law and husband Dhanraj were out of the house near the water tap connection. The victim was emptying water pots in the kitchen. At that time, the appellant entered from backside door and poured kerosene on her person from a plastic can. Since it was a festival of Rangpanchami /Dhulivandan, victim thought that somebody might have thrown colour, however, before she could realize anything, the appellant lit a matchstick and set her ablaze. She screamed and shouted loudly while coming out of the house. Her husband Dhanraj and mother-in-law tried to douse the fire. She was, subsequently, admitted in the hospital.
4. It is the case of the prosecution that the appellant had an evil intention in his mind qua the victim. He was accustomed to consuming liquor. He used to abuse her. He also used to take her husband with him for gambling. The appellant was enraged since the victim was restraining her husband from accompanying with the appellant for gambling.
5. After recording her statement, impression of her left toe was obtained over the statement since she had sustained burn injuries on her palm.
6. On 1st April, 2013, a Special Executive Magistrate, Nashik viz. Rajashri Ahirrao also recorded her dying declaration. Unfortunately, the victim succumbed to the injuries and therefore, an offence came to be registered against the appellant under Sections 302 and 498A of the IPC.
7. Investigating Officer held investigation into the crime. He recorded statements of the witnesses, drew inquest panchanama as well as spot panchanama of the scene of occurrence. He had also seized the articles i.e stove, match box, plastic can etc. The seized articles were forwarded to Forensic Science Laboratory. After completing the investigation a charge-sheet has been filed in the Court of Judicial Magistrate First Class, Nashik. After committal of the case to the Sessions Court, a charge was framed in terms of Exh.
5. It was read over and explained to the appellant in vernacular to which he pleaded not guilty and claimed to be tried.
8. The defence, as emerged from the line of cross-examination as well as from the statement of the appellant under section 313 of the Cr.P.C is that of false implication and absence at the scene of occurrence. No defence evidence has been adduced.
9. In support of it’s case, prosecution examined five witnesses. After recording the evidence and hearing the prosecution as well as the defence, learned Additional Sessions Judge returned her findings in favour of the prosecution by holding the appellant guilty of the offence under Section 302 of the IPC by convicting and sentencing him as above. The appellant, however, came to be acquitted of the offence punishable under Section 498A of the IPC.
10. We heard Mr. Kalantri, learned Counsel for the appellant and Mrs. Shinde, learned APP.
11. At the outset, Mr. Kalantri would argue that there are, in all, four dying declarations of the victim which are not only contradictory but also creates a reasonable doubt as regards their authenticity and genuineness. The mode and manner in which PW 5- Smt. Rajashri Ahirrao, Special Executive Magistrate, recorded the Dying Declaration of the victim on 1st April, 2013 creates doubt and is shrouded with suspicion, in the sense, she did not make any enquiry about the medical officer who had treated the victim. There is no mention of time on the said Dying Declaration which is at Exh.55. The Counsel would argue that the story put forth by the victim as regards blasting of the stove while preparing tea resulting into burn injuries has itself been falsified by her in subsequent Dying Declaration by falsely implicating the appellant.
12. The Counsel would invite our attention to the testimony of the mother of the victim - PW 2- Anjana Gaikwad, who turned hostile. The Counsel, therefore, prays for giving a benefit of doubt to the appellant.
13. Per contra, the learned APP supports the impugned judgment and order of conviction and sentence passed by the Additional Sessions Judge by contending that the last Dying Declaration of the victim is reliable, acceptable and there is no reason to question its truthfulness.
14. Admittedly, there are four Dying Declarations on record. The incident in question occurred on 30th March, 2013. PW 4 - Jitendra Sapkal, who was the Investigating Officer, initially recorded a crime under Sections 307 and 498A of the IPC. On the same day, the victim had lodged a complaint which was in the form of her oral Dying Declaration. It would be interesting to scan the evidence of PW 4- Jitendra Sapkal who testified that while recording the statement of the victim on 30th March, 2013, she had clearly stated that while preparing tea, there was a blast of the stove during which her chunari and clothes caught fire and her husband and mother-inlaw extinguished the fire and thereafter they carried her to the hospital at Nashik. The victim had narrated the incident once again to the Executive Magistrate on the same day in the presence of PW 4 - Jitendra Sapkal. The victim had, thus, initially did not blame anyone for the incident, much less, the appellant.
15. Subsequently, on 31st March, 2013, PW - 4 - Jitendra Sapkal visited the scene of occurrence, drew spot panchanama (Exh.20) in the presence of panch witnesses, seized the stove in question, a plastic can of five liters capacity containing little quantity of kerosene, match box of Rajkamal company and two burn match sticks. The stove must have flared up suddenly to which the victim said “blasted” (exploded). Seizure panchanama does not reveal that it was blasted off. Be that as it may. The muddemal was deposited in the malkhana.
16. The parents and maternal uncle of the victim visited the hospital on 1st April, 2013. They informed this witness (P.W.[4] – Jitendra Sapkal) that the victim again wants to give her statement and, therefore, he should record the same. This witness, therefore, again issued a letter to the Special Executive Magistrate - PW 5- Smt. Rajashri Ahirrao and accordingly, PW-5 recorded the last Dying Declaration of the victim. At that time, the victim narrated that her father-in-law (appellant) had poured kerosene on her person and thereafter set her on fire with a matchstick.
17. Interestingly, mother of the victim PW-2 Anjana Gaikwad testified that the victim - Nilam was married to the son of the appellant, viz - Baban, four years prior to the incident. She had been co-habiting with her husband at Indapur, District-Pune. On 30th March, 2013, brother of PW 2 - Anjana called her at about 8:00 p.m. and informed that Nilam was admitted in the hospital and requested them to reach immediately. When this witness reached the hospital at about 5:00 a.m., she witnessed the victim with burn injuries. Upon being asked, the victim informed PW 2 - Anjana that she did not know how the incident occurred. She further informed PW 2 - Anjana that the appellant abused her and had driven her out of the house. PW 2 - Anjana further deposed that the victim told her that on 30th March, 2013, her mother-in-law and husband were out of the house for fetching water from a public tap. Her father-in-law was also outside the house. When she was about to lit the stove, she could not realize as to what had happened. PW 2 - Anjana turned hostile by denying the suggestion given by the learned APP that father-in-law of the victim (appellant) had poured kerosene on the person of the victim from a plastic can and set her ablaze.
18. Thus, even the mother of the victim did not support the prosecution story. During her cross-examination, she reiterated that when she enquired with the victim as regards the incident, the victim told her that when she was preparing tea, the stove blasted resulting into burn injury. She admits that the victim had never made any complaint against the appellant or any member of the family. Perhaps, this witness had spoken the truth.
19. Admittedly, the victim succumbed to 90% burn injuries. PW 3- Dr. Mrs. Mrunmai Sonawane conducted autopsy on 5th April,
2013. She categorically deposed that there were 61% burn injuries on the front portion of the body and 34% burn injuries on the backside of the body of the victim. This report falsifies the story of the prosecution that the appellant had poured kerosene from the backside of the victim and thereafter, set her on fire. Had it been true, there would not have been 61% burn injuries on the front portion of her body. The cause of death, as per the autopsy is, “septicemia due to extensive burn of 90%”. No doubt, PW[3] - Dr. Sonawane testified that the patient was in a position to speak and understand as she was just 19 years old at the relevant time, she also opined that the burn injuries could have been sustained due to blasting of a stove. There is no clear opinion of this witness that victim was well oriented with time, place and person.
20. Turning to the complaint lodged by the victim on 1st April, 2013, on the basis of which, an offence came to be registered by PW - 4 Jitendra Sapkal, the complaint reveals that before it was recorded, she was examined by one doctor, who certified on the left side margin of the paper that “patient mentally conscious and fit to give statement”. As already stated, this in itself may not be sufficient. The word “Mentally Conscious” does not clarify whether the patient was well oriented with time, place and person in light of the fact that she had sustained 90% burn injuries.
21. The said complaint reveals that on 30th March, 2013, she had stated before the police that due to blasting of a stove, she caught fire. She further stated that it was given since none of her relatives from maternal side were present at the relevant time and that she had a fear of her father-in-law (appellant). However, subsequently she adds that on 30th March, 2013 when her mother-in-law and husband were fetching water from the public tap and she was emptying some water pots in the kitchen, the appellant entered into the house from the rear door and poured kerosene on her person from a plastic can. The victim first thought that since it was a festival of “Rangapanchami” someone might have poured colour on her person, however, before she could realize anything, the appellant set her on fire with a matchstick. The complaint itself creates a doubt as regards its genuineness, in the sense, two contradictory theories have been put forth by the victim herself wherein the possibility of she being tutored by her relatives cannot be ruled out. Even during her statement which was recorded by Special Executive Magistrate on 30th March, 2013, she had put forth the theory of blasting of a stove and her chunari getting caught in fire.
22. PW[5] - Smt. Rajashri Ahirrao testified that there were two statements, which are given Article ‘B’ and ‘C’ respectively, recorded on the same day i.e. on 1st April, 2013. Admittedly, the victim had totally changed her stance only after arrival of her parents and maternal uncle on 1st April, 2013. Although, PW 5- Smt. Rajashri Ahirrao testified that she had taken all the precaution to ensure that before recording the Dying Declaration of the victim, she was medically examined by the doctor as regards her mental fitness and consciousness as well as capacity to understand the question and also ensured that none of her relatives remained with her at the time of recording the Dying Declaration, the inconsistencies in Dying Declarations of the victim itself render the said evidence unworthy of credit and doubtful.
23. Before the Special Executive Magistrate, the victim appears to have stated that her mother-in-law was cleaning the utensils outside the house and the brother-in-law was not at home. She lit the stove and put a tea pot. Thereafter, she provided tea to all the members of the family. She turned off the stove and took the utensils for cleaning outside the house. When she was cleaning the utensils, the appellant poured kerosene on her person from backside. She felt that it being a day of ‘rangpanchami’, some children might have thrown colour. However, the appellant immediately set her ablaze with a matchstick. It can thus be seen that first of all she had put forth a story of blasting of a stove inside the kitchen, meaning thereby, it was an accidental fire, however, subsequently after the arrival of her parents, she changed the story taking a ‘U’ turn by stating that it was the appellant, who poured kerosene on her person and set her on fire outside the house. How come the appellant did not sustain even slightest of burn or was caught red handed then and there by his wife and son? This remained an unsolved mystery.
24. The spot panchanama does not reveal any such door to the backside of the house. Moreover, if the mother-in-law and husband of the victim tried to extinguish the fire, why they have not been examined by the prosecution in order to substantiate its case that the appellant poured kerosene on her person. Even they did not sustain any burn injuries during the process of dousing the fire which sounds incredible, especially when victim had sustained nearby 90% burn injuries. Since the prosecution withheld the best evidence available, adverse inference is required to be drawn under Section 114 (g) of the Evidence Act. Be that as it may.
25. The fact that the relatives and maternal uncle of the victim again approached the police on 1st April, 2013 and insisted upon the Investigating Officer to re-record the statement of the victim itself shows that the appellant has been falsely implicated in this case at the behest of the relatives of the victim. It is significant in the light of the fact that the appellant, throughout in his statement under Section 313 of the Criminal Procedure Code, consistently stated that he was not at all present in the house at the relevant time. His conduct is also apparent from the record that he too reached the hospital and was waited there and even slept in the hospital. Had he been responsible for the death of his daughter-in-law (victim), he would not have remained with her in the hospital. He would have, rather, escaped. His defence, therefore, seems to be probable, believable and acceptable. Even otherwise, his wife and son would not have allowed him to escape from the spot, had he been responsible for setting the victim on fire. The Dying Declaration of the victim is, therefore, untruthful and unreliable.
26. No doubt, while great solemnity and sanctity is attached to the words of dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person, but the Court has to be careful to ensure that the statement was not the result of either tutoring or prompting or a product of imagination. It is, therefore, essential that the Court must be satisfied that the deceased was in a fit state of mind to make the statement without any influence or rancor. Once the Court is satisfied that the Dying Declaration is true and voluntarily made, conviction can be based on the sole evidence in the form of a Dying Declaration.
27. In the case at hand, we have no doubt that the inconsistent and contradictory Dying Declarations of the victim are the result of tutoring and prompting by her close relatives after she had given her first two statements to the Investigating Officer PW4- Jitendra Sapkal and the Special Executive Magistrate. It has been held in a catena of decisions that the first statement in point of time made by the injured person must be preferred to any of his/her subsequent statements. If there are more than one Dying Declarations of the same person, they have to be read as one and the same Dying Declaration for proper appreciation of the value and, if they differ from each other on material aspects, effort should be made to see if they could be reconciled. If no assumption could explain the difference, the statements might become unworthy of credit.
28. As such, from the evidence available on record, it is even difficult to construe that this is a case of homicidal death of the victim and that too, at the hands of the appellant.
29. The learned trial Court has utterly failed to appreciate the facts and inconsistencies in the Dying Declarations as well as the law enunciated by various decisions of Hon’ble Supreme Court and different High Courts on Section 32 (1) of the Evidence Act. The prosecution has miserably failed to prove that the deceased died a homicidal death. That being so, there is no question of appellant being held responsible for her death. The impugned judgment is based on surmises and conjunctures and, therefore, warrants interference in appeal. Consequently, the following order is expedient. O R D E R i) The Appeal is allowed. ii) The judgment and order of conviction and sentence rendered by the Additional Sessions Judge, Nashik in Sessions Case No. 281 of 2013 on 31st January, 2018 is quashed and set aside. iii) The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. iv) The appellant be released forthwith, if not required, in any case. v) The muddemal property be disposed of in accordance with the provisions of Criminal Manual.
30. Appeal is disposed of.
PRITHVIRAJ K. CHAVAN, J. REVATI MOHITE DERE, J.