JUDGMENT
S.P. Kukday, J.
Page 1841
1. Appellants are prosecuted for having committed murder of Digamber Shamrao Wankhede of Hadgaon, in furtherance of their common intention and for intentionally insulting and provoking him to commit breach of peace. They are convicted for offences punishable under Section 302 r/w 34 and are acquitted for offence punishable under Section 504 of the Penal Code by Ad-hoc Additional District Judge, Nanded. This order dated 10th June 2005 is impugned in the present appeal.
2. At the outset we may notice relevant facts. Shamrao Wankhede resides with his wife Shantabai and three sons in the hutment at Hadgaon. His twenty year old elder son Digamber (deceased) was unemployed. The appellants also reside in this locality. Relations between both the families were strained as Chapter Case under Section 107 Cr.P.C. was registered against mother of the deceased on the basis of complaint filed by Umdabi, mother of appellant No. 1. On 9th April 2004, at about 9.00 a.m. Digambar had a quarrel with the appellants Babali, his wife Begum and Shabana wife of Gaffar, at the common water tap, over taking of water. After the quarrel the deceased returned to the house and his father took over the work of taking water. Mother of the deceased went out from the house at about 9.30 a.m. Taking advantage of the fact the deceased was alone at the house; the appellants went there, abused him, poured kerosene over his person and set him on fire. In response to the cries of the deceased his father came to the house. He saw the appellants sprinkling kerosene over Digamber after beating him and saw them setting him on fire. On arrival of Shamrao, the appellants ran away. Parents of the deceased then brought him to Rural Hospital at Hadgaon. Medical Officer Dr. Haribhau Gadekar treated the deceased and informed the Police of the occurrence by letter (Ex. 26). On receipt of the intimation, ASI Tulshiram Atram (P.W. 9) came to the hospital and recorded statement of the deceased (Ex. 61) after verifying from the medical officer that the deceased is in fit state of mind to make a coherent statement. On the basis of this statement offence came to be registered against the appellants under Sections 307, 504 r/w 34 IPC. On registration of the offence PSI Deepak Waghmare (P.W. 7) took over the investigation. He visited the spot and attached can of kerosene found near the place of occurrence on the compound wall of the court yard of the house along with pieces of burnt clothes of the deceased under spot panchnama (Ex. 49).
Page 1842
The appellants were arrested on the same day under Arrest Panchnama (Ex. 52 to 55). The patient was referred to Civil Hospital, Nanded, where second dying declaration (Ex. 41) was recorded by Judicial Magistrate First Class Smita Tanna (P.W. 4) at 4.05 p.m. The deceased succumbed to the injuries on 27th April 2004. ASI Motware of Vazirabad Police Station held inquest (Ex. 29) on the dead body and referred it for post mortem. Dr. Hemant Godbole (P.W. 5) performed post-mortem and prepared report (Ex. 45) giving cause of death as 74% burns. Articles attached from the spot were taken to Forensic Laboratory by Constable Sk.Wahid Ali (P.W. 3) on 1st May, 2004. On completion of the investigation the appellants were charge sheeted.
3. At the trial appellants adopted defence of false implication in view of the previous quarrels and complaint filed by appellant No. 4 Shabana, which resulted in filing of Chapter Case against Shantabai, mother of the deceased.
4. The prosecution examined nine witnesses in support of its case. Dr. Gadekar (P.W. 1) treated the deceased at Hadgaon Hospital and sent intimation (Ex. 26) to the Police mentioning therein that the patient is not in a position to make a statement. However, by the time ASI Tulshiram reached the hospital, condition of the patient had improved. ASI Tulsiram, recorded statement of the deceased in his presence at 10.30 in the morning. The medical officer has made an endorsement (Ex. 27) on this dying declaration (Ex. 61) certifying fitness of the patient to make a statement. During the cross-examination the medical officer admitted that he did mention in letter (Ex. 26) that the patient had set himself on fire and had suffered burns. ASI Tulsiram (P.W. 9) recorded dying declaration (Ex. 61), registered offence against the appellants and handed over investigation to PSI Deepak. Smita Tanna (P.W. 4) recorded second dying declaration (Ex. 41) of the deceased at Civil Hospital, Nanded. Both of them have mentioned that before recording of the statement they verified that the deceased was in a fit mental state to make a coherent statement. Shamrao Wankhede (P.W. 8), father of the deceased abandoned version of the incident mentioned in his statement recorded under Section 161 Cr.P.C. that he saw appellants beating his son and setting him on fire. Instead Shamrao stated that he heard shouts from the house while taking water from the tap and returned to the house with half filled water pot. On his way back, he found his son burning and saw him falling in the court yard. At that time there was no one else in the court yard of the house. However, after hearing the shouts at the water tap, he saw appellants running away from his house. The prosecution has duly proved portion A from the statement of Shamrao to establish that the witness has changed his earlier version of the incident. During the cross-examination the witness admitted that the water tap is at a distance of about 1000 feet from his house and that his house is not visible from the water tap. The witness further admitted that his wife had gone out at about 9.30 a.m. and returned to the house after one hour. After the incident she saw her son at the hospital.
5. At the conclusion of the trial, the Sessions Judge found that the previous enmity between the families and quarrel at the water tap between the deceased and the appellants is not in dispute. He further found that both Page 1843 the dying declarations were recorded by the ASI and the Judicial Magistrate First Class after due verification of the fitness of the declarant to make a statement. Applying principle “nemo moriturus prossumitur mentiri” (a man would not meet its maker with a lie in his mouth) referred to in P.V. Radhakrishna v. State of Karnataka 2003 Cri.L.J. 3717 and distinguishing decision of the Apex Court in State of Maharashtra v. Sanjay D. Rajhans 2005 All M.R. (Cri) 211, the trial Judge placed implicit reliance on the dying declaration of the deceased. Relying on the dying declaration of the deceased the trial Judge convicted the appellants of the offence punishable under Section 302 r/w 34 of the Penal Code and sentenced them as stated earlier.
6. Learned Counsel for the appellant Shri S.G. Chincholkar would argue that the trial Judge has committed a grave error in placing implicit reliance on the dying declaration. It is contended that the trial Judge has not taken into consideration the fact that the first disclosure to the medical officer was that the deceased had sustained self inflicted burns. The variance between the two dying declarations and the fact that the father of the deceased had made improvement in his evidence has been connived at by the Trial Judge while accepting the dying declarations. Learned Counsel would submit that approach of the Trial Judge is not in conformity of the principles governing a case based on the sole evidence of dying declarations. The facts and circumstances of the present case clearly disclose that the dying declarations are not reliable; thus, conviction of the appellants based on erroneous premise that the dying man would not meet his maker with a lie in his mouth is unsustainable and deserves to be set aside.
7. Learned APP Shri P.M. Shinde contends that both the dying declarations are recorded after verification of the fitness of the deceased. Both the dying declarations are consistent and deserve credence. According to learned APP the trial Judge has considered all the facets of the controversy and after due consideration of the evidence has rightly convicted the appellants, it is thus, not necessary to interfere with the order of conviction passed by the trial Judge.
8. Undisputedly, the present case is entirely based on the dying declaration. Principles governing dying declarations are by now well settled. Section 32 is an exception to the general rule embodied in Section 60 of the Evidence Act that oral evidence of a relevant fact must be direct. Eight clauses of Section 32 provide an exception to the general rule which exclude hearsay evidence. Clause (1) of Section 32 makes the statement of a person as to the cause of his death admissible in evidence, on the principle that on the verge of death, all the pride and prejudices vanish. At such a solemn moment the only powerful consideration for the dying man is to speak the truth. This is the reason why sanctity of oath is bestowed on the dying declaration. There is no rule of law which requires corroboration to the dying declaration before it can be accepted and conviction can be founded on the basis of a dying declaration. The Court looks for the corroboration as a matter of Page 1844 prudence, as the accused had no opportunity to test veracity of the statement made behind his back. However, if the Court is satisfied that the version of the incident given by the deceased is reliable, there can be no impediment in convicting the accused on the sole basis of the dying declaration. Evidentiary value of the dying declaration necessarily depends on the facts and circumstances of each case. There can be no set rules or a formula for testing veracity of a dying declaration. However, as the dying declaration is an untested piece of evidence, it is the duty of the Court to carefully scrutinize the dying declaration and to satisfy itself that the statement made by the deceased is free from tutoring, prompting or animosity. The dying declaration is to be treated as any other species of evidence. Its credibility is to be decided by the application of the rules governing appreciation of evidence. Adverting to the principles applicable to cases founded on dying declaration in Muttu Kutty v. State the Apex Court observed in para 15 of the report:
15. 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 the 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.
9. In Panchdeo Singh v. State of Bihar the Supreme Court observed in para 3 of the report:
3. One of the latest pronouncements of this Court pertaining to the subject finds place in the decision of Arvind Singh v. State of Bihar wherein, this Court observed that apart from the care and caution factors as noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not – is it trustworthy or is it a mere attempt to cover up the Page 1845 laches of investigation: it must allure to the satisfaction of the court that reliance ought to be placed thereon rather than a distrust: the confidence of the court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelief or distrust would not arise. In the event however of there being some infirmity, howsoever negligible it be, the court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise: dying declaration alluring confidence of the court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration, neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the court since dying declaration need not be drawn with mathematical precision -the declarant should be able to recollect the situation resulting in the available state of affairs.
In the light of the above principles, the acceptability of the alleged dying declaration in the present case will have to be decided. The dying declaration is only a piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from tutoring, prompting or animosity and is coherent and consistent, there can be no legal impediment in accepting the dying declaration. However, if the circumstances indicate existence of a possibility of false implication, the benefit must go to the accused.
10. In the present case the fact that there was enmity between the two families and that there was a quarrel between the deceased and the appellant over taking of water from the tap is not in dispute. It is also not in dispute that no direct evidence against the appellants is available. The prosecution case solely rests on the dying declarations recorded by ASI Tulshiram (P.W. 9) and Judicial Magistrate, First Class Smita Tanna (P.W. 4). Both of them have followed the procedure correctly and have recorded the dying declarations after due verification of the mental state of the declarant. Thus, the evidentiary value of the statement will have to be decided on scrutiny of the circumstances brought on record. The version of the incident given by the deceased in both the dying declarations, on the casual scrutiny appears to be consistent. However, closer look at the text, in the context of the facts brought on record, disclose infirmities in the version of the incident found in these statements. The first circumstance is the admission of Dr. Gadekar (P.W. 1) that in the letter sent to the police (Ex. 26) he did mention that the patient had suffered self inflicted burns and is not in a position to make a statement. Phraseology used in this letter bears out this version of the medical officer. The second circumstance is the statement of the deceased that the appellants entered the house when they found him to be alone and set him on fire after sprinkling kerosene which in terms shows that the incident took place inside the house, whereas, the testimony of the father and the panchanama of the scene of occurrence discloses Page 1846 that the incident took place in the court yard. The can of kerosene is shown to have been found on the compound wall of the house. Third circumstance is the contradiction about presence of the mother. In the first dying declaration the deceased mentioned that his father and mother came to the house in response to the alarm raised by him and brought him to the hospital. This narration is absent in the second dying declaration (Ex. 41) recorded by the Judicial Magistrate, First Class at Civil Hospital, Nanded. During his cross-examination Shamrao has categorically admitted that his wife had gone out at 9.30 in themorning and returned to the house after one hour. She met her son Digamber at the Rural Hospital for the first time after the incident (para 4 of his deposition). This admission would falsify the statement in the first dying declaration that father and mother had come to the house after the alarm was raised by the deceased. The fourth circumstance is the fact that the father has resiled from his earlier version that he saw the appellants beating his son, sprinkling kerosene over him and setting him on fire. Instead, he made an improvement by mentioning that he saw the appellants running away from the house while he was returning with partially filled water pot. The change of version goes to the root, as the dying declarations do not refer to the father having seen the incident. If the father could see the incident, the deceased would also have seen the father approaching the house as the first reaction of the besieged would be to look for assistance. If, in fact, the father had witnessed the incident, his normal reaction would have been to challenge the appellants and to disclose this fact to the medical officer at the time of the admission of the deceased. The change of version in the evidence given during the trial appears to be well thought but lets the cat out of the bag and casts a shadow of doubt on the truthfulness of the version of the incident found in the dying declarations. The earlier enmity is relied upon by the prosecution as motive for the commission of the offence but the enmity is a double edged weapon and in view of the infirmities found in the present case, possibility of false implication can not be ruled out. The fact that no independent witness is examined by the prosecution though the house of the deceased is in thickly populated locality and the incident took place at 9.00 o’clock in the morning when all the neighbours would normally be at their house, raises doubt about the credibility of the investigation.
11. The Trial Judge has referred to the dictum regarding the authenticity of the dying declaration from the decision of the Apex Court in P.V. Radhakrishna v. State of Karnataka 2003 Cri.L.J. 3717 but has not given cogent reasons for distinguishing ruling of the Supreme Court in State of Maharashtra v. Sanjay D. Rajhans 2005 All M.R. 211. Discussion in para 25 of the Judgment would show that without marshalling facts of the case, implicit reliance is placed on the dying declarations to arrive at the conclusion of the guilt of the appellants. The omission to scrutinize the evidence in proper perspective has resulted in erroneous conclusion which is negated by the circumstances mentioned earlier. In our considered opinion, having regard to the infirmities discussed earlier, it is not possible Page 1847 to concur with the findings recorded by the Trial Judge. The findings reached by the Trial Judge without proper scrutiny of the circumstances which erode the reliability of the dying declaration can not be sustained. In this view of the matter we set aside the conviction of the appellants.
Criminal Appeal No. 447 of 2005 is thus allowed. Conviction and sentence of the appellants is hereby quashed and set aside. The appellants are acquitted of the offences with which they are charged and convicted. Fine, if paid by the appellants, be refunded to them. Since appellant No. 1 Syed Babali s/o Syed Lal is in jail, he be released forthwith if not wanted in any other case. Bail bonds of appellant Nos. 2 to 4 stand cancelled.