CASE NO.: Appeal (crl.) 648 of 1998 PETITIONER: STATE OF MAHARASHTRA RESPONDENT: SANJAY S/O DIGAMBARRAO RAJHANS DATE OF JUDGMENT: 25/10/2004 BENCH: P. VENKATARAMA REDDI & P.P. NAOLEKAR JUDGMENT:
JUDGMENT
P. VENKATARAMA REDDI, J.
This is an appeal filed by the State of Maharashtra
against the verdict of acquittal recorded by the Aurangabad
Bench of the Bombay High Court. The respondent was
convicted under Section 302 IPC and sentenced to life
imprisonment by the Additional District and Sessions Judge,
Aurangabad on the charge of committing the murder of
Veena with whom the accused had a marriage engagement.
The marriage was scheduled to take place on 2nd December,
1991. The tragic incident occurred in the night of 28th
September, 1991 at about 7.30 p.m. The victim Veena died
in the hospital on the next day i.e. 29th September at about
8 p.m. on account of the burn injuries she received on the
previous day. The accused also had some burn injuries on
his hands in the process of extinguishing the flames on the
deceased. The conviction was based on certain dying
declarations and the circumstantial evidence brought out by
the examination of PW4 who was a vendor having a tea-stall
near the spot of burning. The High Court, on an elaborate
consideration, felt it unsafe to rely on the dying declarations
or to accept the evidence of PW4 and therefore set aside the
conviction. We are informed that the respondent had
undergone about five years of sentence during and after the
trial.
We shall advert to the facts alleged by the prosecution
and the sequence of events that had happened on the two
crucial days i.e. 28th & 29th September, 1991 as emerging
from the prosecution evidence.
The deceased Veena was a cricket player and the
accused was the captain of the cricket team when she was
studying in the college. Later, he became a cricket coach.
They fell in love with each other and the elders arranged a
betrothal function on 18th August, 1991 at which it was
decided to celebrate the marriage on 2nd December, 1991.
The accuseda graduate, was employed in Census office
and the deceased was studying in Law College. The accused
and the deceased were closely moving about. Some strained
relations developed between them and the accused had
some reservations to marry her. On the crucial day of
occurrence i.e. 28th September, 1991, Veena had gone to
see the accused after informing her mother. At about 7.30
p.m. the accused and Veena were on the way to Veena’s
house and while they were in the locality behind Lokmath
building, Aurangabad, the accused slowed down the scooter
and by taking out the petrol can kept in the scooter,
sprinkled the petrol on the person of Veena and set her on
fire, all of a sudden. All this was done on the moving
scooter. On noticing the flames on the body of Veena and
hearing her cries, some people gathered and tried to put out
the fire. PW4 was one amongst them. He overheard Veena
remarking “Pramod, why you have burnt me?” (Sanjay
Pramod is the name of the accused). The accused also had
some burn injuries when he tried to extinguish the fire. The
accused then took her in an auto-rickshaw to the
Government Medical College Hospital. Soon after the
admission at 8 p.m, PW8the Casualty duty Doctor,
enquired from the victim Veena as to how she got burnt. On
getting the answer from her, PW8 recorded a medico legal
case and noted what she said in the registerthe extract of
which is Ext.39. He also noted that the patient was brought
by the accused Sanjay. She told the Doctor that her
‘husband’, while going on a scooter on the road near
Lokmath building, poured petrol and set her on fire and the
petrol can was in her hand. He noted the percentage of the
burns on various parts of the body, the total percentage
being 98. At the same time, a Police Constable on duty
(PW1) at the police post of the hospital, made an entry in
the relevant register of the substance of what he heard from
the victim while narrating the history to the Doctor. That is
marked as Ext.P13. He then informed the CIDCO police
station as the offence took place within the jurisdiction of
that police station. PW15, the Head-Constable noted the
message, made an entry in station diary and informed PW6,
the Sub-Inspector of Police when he came there at 8.40
p.m. PW6 reached the hospital at 10.15 p.m. PW6 then
addressed a letterExt.29 to the in-charge Doctor to apprise
him whether the patient was in a condition to give the
statement. The Doctor stated that she was not in a position
to give the statement. Then he returned to the police station
and registered the crime under Section 307 IPC. The FIR
Ext.30 was drawn up on the basis of the same and sent to
the concerned Magistrate. While so PWs 2 & 3the father
and mother of the deceased, having got the news, went to
the hospital and by 9.45 p.m. they saw Veena in the ward.
Veena allegedly told them that the accused was responsible
for setting her on fire. PW13another Sub-Inspector
attached to CIDCO police station took over investigation
from PW6 at about 11 p.m. He went to the Executive
Magistrate/Naib TehsildarPW7 and requested him to record
the statement of the victim Veena. Initially, at about 11.10
p.m, it was not possible to record the statement as the
Doctor stated that the patient was conscious but disoriented.
However, at 3.15 a.m, the Doctor endorsed on Ext.35
letter, that the patient was conscious and oriented and in a
condition to give the statement. Then the statement was
recorded by PW7 as per Ext.37 which is relied upon as the
2nd dying declaration. In her statement, the victim stated
that the accused quarrelled and poured the petrol taken out
from the can and set her on fire after slowing down the
scooter on the road behind Lokmat office and some people
gathered and extinguished the fire and that she became
unconscious thereafter. She also stated that the accused
brought her to the hospital. We have another statement,
recorded at 4.30 a.m. by the Investigating OfficerPW13,
which is sought to be treated as a dying declaration. This
statement was recorded without consulting the Medical
Officer. The spot was inspected by PW13 on being shown by
the father of Veena in the morning of next day. He had
seized the articles found at the spot of incident including an
identity card and purse. The scooter of the accused was
found lying nearby. PW13 recorded the statement of PW4
and others. He arrested the accused at 7.20 p.m. on
29.9.1991. The victim Veena died at the hospital at 8.10
p.m. The two Doctors who attended on the deceased at the
hospital were PWs 10 & 11. After holding the inquest, PW13
sent the dead body for postmortem. The postmortem
examination was done by PW12. The cause of death was
noted as shock and peripheral circulatory failure due to 95%
burns. The investigation was entrusted to PW15 on 23rd
October, 1991. He re-examined PW4 and also recorded
statements of others and then filed the charge-sheet in the
Court of C.J.M., Aurangabad on 1.7.1992.
The accused, whose hands and palms were burnt to
the extent of 3%, was admitted in the hospital and he was
discharged on the next day at 2.30 p.m. As already stated,
he was arrested later on i.e. at 7.00 p.m. The accused
examined himself as a witness. As DW1he stated that the
deceased was ill-tempered and impatient person, that she
was insisting on performing a registered marriage instead of
waiting for the ceremonial marriage, that on the crucial day,
he took her to the Muqbara to change her mood and
thereafter he came back to his house. He further stated that
in the evening he went to the house of Veena and on coming
to know that she did not return to the house, he took
Veena’s brother with him to search for her. However she
was found at his house and both of them left by the scooter
to the house of Veena. On the way at about 7.15 p.m. he
felt that something was burning at the back side and when
he was trying to stop his scooter, Veena jumped from the
scooter. Then he noticed the fire on her and tried to
extinguish it. At the hospital, while he remained by the side
of Veena, he sent the message to his parents and after his
father and others came, they were requested to inform the
parents of Veena. Her parents came to the hospital at about
10.15 p.m. DW1 also produced certain letters written by
Veena in order to throw light on her suicidal disposition.
Excepting the alleged statements of the deceased and
the statement of the accused in the Court, there is no direct
evidence relating to the occurrence, though it happened on a
public road in a busy locality. No motive had been
established. The circumstances emerging from record would
reveal that the incident must have been a sudden affair. It
looks mysterious as well. In the alleged dying declaration
given to the Executive Magistrate, she stated that the
accused quarrelled with her for no reason. That means, it
was a sort of petty quarrel, if we go by that dying
declaration. However, in Ext.39 which is said to be her
earliest revelation, it is mentioned that the accused was
doubting her character which goes contrary to the version
recorded by the Executive Magistrate. The conduct of the
accused soon after and subsequent to the incident does not
in any way point to his guilt. At this stage, it should also be
noted that the accused, who remained in the hospital for
about 11 hours after the dying declaration was recorded by
the Executive Magistrate, was not interrogated or arrested,
though by that time the incriminating evidence was said to
be available with the police. He was allowed to be
discharged at 2.30 p.m. and was arrested only at 7.00 p.m.
These factors ought to be kept in view in testing the
prosecution case. We must also have regard to the fact that
this is an appeal against acquittal and this Court ought not
to interfere unless the Court is convinced that the decision of
the High Court is vitiated by perversity, wrong legal
approach or non consideration of material evidence. If two
views are reasonably possible, this Court cannot but uphold
the verdict of acquittal.
Amongst the items of incriminating evidence in the
form of dying declarations, we would first like to advert to
the last one in point of time which was recorded by the
Investigating OfficerPW13 at 4.30 a.m. on 29th September,
1991. Leaving apart the question whether it can be
considered as a dying declaration or a statement recorded
under Section 161 Cr.P.C., we have no element of doubt
that Ext.86 is a manipulated document introduced by a
overzealous Investigating Officer to buttress the prosecution
case.
The English version of Ext.86 runs into two full typed
pages or more. The detailsnecessary and unnecessary,
minute and material are found therein. The declarant starts
with family particulars and goes on to say about her
education, her contacts with the accused, the hour to hour
details of her movements from the time she left home at
9.00 a.m., the colour and style of the dress she was
wearing, the places at which she spent with the accused and
the conversation they had, the scooter number, the name of
the petrol pump where she purchased petrol and so on. This
was all prefatory to the actual incident which she narrated in
the later part of the statement. It would be impossible to
believe that a person suffering from 95% burns would
narrate the details in such vivid manner and coherent way. A
perusal of Ext.86 further reveals that the relevant facts to
build up the prosecution case including the possible motive,
the ready availability of petrol in a can are all incorporated in
that statement. The accused was alleged to have said that
he was not interested in marrying her in the course of
conversation at Muqbara which led to a minor quarrel.
According to the statementExt.86, the accused gave Rs.50
to purchase petrol which he wanted her to keep ready so
that they may proceed to Daulatabad Fort straight after
returning from the office. She went on to say that the
accused did not return for quite some time and she roamed
here and there and went to his house and found the accused
in the house at 7.00 p.m. Then, the accused volunteered to
drop her back at home on the scooter. She added that he
took the purse and petrol can in the first instance but later
returned the purse and deposited the petrol can in the
scooter dicky. The actual incident was then narrated.
According to that narration, while going on the scooter at
7.30 p.m. to her house, they had a ‘verbal quarrel again’
and the accused slowed down the scooter near Lokmat office
building, took out petrol can from the front side dicky of the
scooter by his right hand, opened the cork and poured petrol
on her, while uttering the words that he will not marry her
and ignited the match. At that time, she was busy talking
with him. Immediately, she was engulfed by fire and as the
scooter was proceeding in slow speed, she jumped down.
When she started shouting, four or five persons came and
extinguished the fire. Thereafter, the accused brought an
auto-rickshaw and took her in that vehicle to the hospital
and admitted her. The statement goes to the extent of
giving an explanation as to why the accused was keeping a
match box with him. The intrinsic worth and reliability of this
so called dying declaration can be judged from its tenor and
contents themselves. That apart, the I.O. did not come
forward with any explanation as to why he thought of
recording the statement soon after the Executive Magistrate
purportedly recorded the statement, that too without taking
the opinion of the Doctor as to her fitness. We have no
hesitation in discarding the alleged statement recorded by
PW13 under Ext.86. The anxiety to plant the evidence is
discernible from this document.
Coming to Ext.37 which is the dying declaration
recorded by PW7 by name Ghulam GouseNaib Tehsildar-
cum-Executive Magistrate at 3.15 a.m., we share, to some
extent, the doubts that have been expressed by the High
Court. In this statement, the deceased stated that the
accused was her fiance, when she went to see him on the
morning of 28th September, he told her that “we shall go to
Daulatabad for roaming, you take the petrol”, in the
afternoon, she purchased one liter petrol in a can from
Kranthi Chowk Petrol Pump and kept the same in his house;
as he did not turn up, she went to his house at about
6.00 p.m. and that he quarrelled with her and poured the
petrol taking it out from the can and set her on fire and at
that time she was wearing Terricot Punjabi dress. This gives
an impression that the incident took place at the house of
the accused. However, in the following sentence, she stated
that when they reached the road behind Lokmat office, the
accused slowed down the scooter and poured petrol on her
person from the can kept on the front side and set her on
fire by lighting the matchstick. As she shouted, some people
gathered and extinguished fire. Then she fainted and was
unable to see anything. This is what she stated in answer to
the question “when and how the incident took place”. In
answer to the next question, she stated that the accused
brought her to the hospital in an auto. In answer to question
No.4, she stated that the accused quarrelled with her”a
quarrel without any reason”. Then a question was put by
PW7 “whether you have any doubt on anybody” for which
she replied “I have doubt on SanjayPramod” (the
accused). In reply to the last question, she stated that her
marriage was scheduled to take place on 2.12.1991. The
duration of the recording of the statement was shown as
45 minutes from 3.15 to 4.00 a.m. It was endorsed on
Ext.37 that none else was present and after reading over the
statement, thumb impression was put by Veena. PW7
clarified that the statement was given by her in Marathi
language with English words here and there. The High Court
commented that the language found in Ext.37 could not
have been that of an educated person well versed in Marathi
language hailing from a traditional Marathi family. One of us
(Naolekar, J.) who is familiar with Marathi language has also
formed that impression on going through the original of
Ext.37. The comment of the High Court that “the lady might
have narrated something which the Executive Magistrate
appeared to have recorded in his own language” and that
the Magistrate later on reproduced his recollection of the
narration, cannot be brushed aside. The High Court also
commented on the fact that PW7 would not have got her
thumb impression because her thumbs were burnt and that
the thumb impression alleged to have been affixed to the
statement may not be her thumb impression but in all
probability it is the impression of the toe of the leg on which
the marks of stamp ink were found at the time of inquest.
Therefore the endorsement “thumb impression of Veena”
below the mark may not be correct. The further comment of
the High Court is in regard to the question posed by PW7 at
the end enquiring whether she was suspecting anybody. If
the version implicating the accused in clear terms has
already been given in the earlier part of her statement, this
question and answer thereto becomes meaningless. The
further question whether she was married was also
meaningless. The High Court was therefore of the view that
the principle that the dying declaration should be free from
slightest doubt is not satisfied and that Ext.37 did not inspire
confidence in order to base the conviction on such
document. Though the High Court further commented on
certain erasures/corrections, we are not inclined to attach
much importance to them.
The overall picture we get is that the Executive
MagistratePW7 did contact the victim and record her
statement while she was conscious and oriented as certified
by the Doctor at least for sometime if not 45 minutes. The
statement read as a whole does not lead to the inference
that the Executive Magistrate did not at all record the
statement. In fact, no such suggestion was put to PW7
though many other suggestions were made. Though the
learned counsel for the respondent has drawn our attention
to the deposition of PW2 that he denied the knowledge of
any police officer or Executive Magistrate seeing his
daughter throughout the period he was in the hospital, that
statement does not militate against the weight of evidence
available to establish his presence at the hospital.
We have however a strong doubt whether for 45
minutes, the patient in that serious condition could go on
responding to the questions of PW7 to the extent of even
giving details regarding the clothes worn by her and the
place from which she purchased the petrol which are really
inconsequential details. Again, taking an overall perspective
of the evidence, there is every reason to think that PW7
could have scribbled the gist of what Veena was speaking
out and then prepared the statement in question and answer
forms subsequently employing his own language. Thus,
Ext.37 does not appear to be an accurate or unalloyed
version of the deceased. The possibility of certain
embellishments cannot be ruled out. Though, we do not
discard Ext.37 as a fabricated and distorted document, it
does not pass the test of total reliability. Even then, we shall
proceed on the premise that the material part of the
statement of Veena in regard to the actual incident that had
happened after reaching the road near Lokmat building is
correct. As already noted, the accused stood implicated by
that statement. What follows next is the question. For
finding an answer to this question, we must have regard to
the other dying declaration (Ext.39)first in point of time,
in order to see whether these declarations are consistent
with each other in material particulars.
Ext.39 is an entry in the hospital register made by Dr.
Manohar (PW8) at the time of admitting Veena into the
hospital. PW8 stated that on enquiring as to how she got
burnt, she gave the reply which was reduced to writing in
the register. The contents of Ext.39 are as follows:
“Since husband was doubting me, today in the
evening while we were going on scooter from
road behind Lokmat building, he poured petrol on
my body and set me on fire with matchstick.
Petrol was there in the can in my hand.”
At the top, husband’s name (i.e. name of the accused)
is written. Whether she pointed out to Sanjay as her
husband or whether the doctor on his own guessed that the
person accompanying her was husband, is a matter of
doubt. However, not much turns on that.
When the doctorPW8 was eliciting information from
the patient, PW1the Constable on duty at the hospital was
present. Having heard the narration of Veena, he made a
note in the MLC register as per Ext.13, which is almost the
same as Ext.39. PW1 then communicated the information to
the jurisdictional police station at 8.20 p.m. The message
was recorded by PW6S.I. of police.
It is now necessary to notice the contradictions
between the two statements of the deceased incorporated in
Exbs.37 & 39. They arefirstly with regard to the motive
and secondly regarding the location of the petrol can on the
scooter.
According to Ext.39, the victim was holding the petrol
can in her hand whereas according to Ext.37, petrol can was
in the dicky towards the front of the scooter. If what was
stated in Ext.39the 1st statement is correct, is it then
possible to believe that the accused took over the petrol can
from her while the scooter was in motion, removed its lid,
sprinkled the petrol on her and ignited the fire with the
matchstick? Such type of operation, even if possible, would
have immediately attracted the attention of the deceased
and she would have suspected foul-play. She would not
have kept quiet and remained on the scooter especially
when it slowed down. In fact, she stated in Ext.37 that after
she was set on fire she jumped out of the scooter as the
scooter was in slow motion. No sensible person placed in
such situation would helplessly watch and allow the scooter
driver to accomplish his design, that too on a busy road.
However, if the petrol can was in the dicky as stated in
Ext.37, the possibility of opening the petrol can without
attracting her attention and suddenly sprinkling it on her
clothes will be greater though even that is not an easy
operation. Once the theory of holding the petrol can with her
hand is accepted and the further fact that the incident
happened when the scooter was in motion is also accepted,
the whole prosecution story would be relegated to the verge
of incredibility. It will be highly impracticable if not
impossible to set her on fire in that manner. We cannot
ignore the version in Ext. 39 about holding the petrol can on
hand while testing the reliability of dying declarations.
True, the story of suicide set up by the accused as
DW1 also appears to be incredible. If she had opened the
petrol can and started sprinkling petrol on herself, it would
have immediately attracted the attention of the accused and
he would have stopped the scooter and thwarted her
attempt.
Thus, the version of homicide set up by the prosecution
as well as the version of suicide set up by the accused
appear to be highly improbable and do not inspire
confidence in the mind of the Court to believe either version.
In this state of things, when two incredible versions confront
the Court, the Court has to give benefit of doubt to the
accused and it is not safe to sustain the conviction. The
contradictions in the two dying declarations coupled with the
high degree of improbability of the manner of occurrence as
depicted by the prosecution case leaves the Court with no
option but to attach little weight to these dying declarations.
It is not the plurality of the dying declarations that adds
weight to the prosecution case, but their qualitative worth is
what matters. It has been repeatedly pointed out that the
dying declaration should be of such nature as to inspire full
confidence of the Court in its truthfulness and correctness
(vide the observations of Five Judge Bench in Laxman Vs.
State of Maharashtra [(2002) 6 SCC 710]. Inasmuch as
the correctness of dying declaration cannot be tested by
cross-examination of its maker, “great caution must be
exercised in considering the weight to be given to this
species of evidence”. When there is more than one dying
declaration genuinely recorded, they must be tested on the
touchstone of consistency and probabilities. They must also
be tested in the light of other evidence on record. Adopting
such approach, we are unable to place implicit reliance on
the dying declarations, especially when the High Court felt it
unsafe to act on them. This is apart from the question
whether the deceased who became unconscious at the spot
(as recorded in Ext.37) with 95% burns and who was found
to be in disoriented condition two hours later, was in a fit
condition to talk to the doctor at the time of her admission
to the hospital. We refrain from going into this aspect.
We shall now turn our attention to the evidence of non-
official witnesses who, by quoting the words said to have
been uttered by the deceased, implicate the accused as the
culprit. PW2the father of the deceased states that Veena
told him and his wife as soon as they called on her at the
hospital ward that the accused poured petrol on her person
and set the fire while going on the road behind Lokmat
building. She even asked him to take revenge against the
accused. At that time, according to PW2, she was conscious.
We find it difficult to believe this statement which has been
rejected by the High Court too. It is in the evidence of PW2
that they were by the bed-side of their daughter at 9.30 or
9.45 p.m. The evidence of the first I.O.PW6 is to the effect
that he went to the hospital and contacted the doctor at the
hospital at 10.15 p.m. and the doctor gave it in writing that
the patient was not in a position to give the statement.
About an hour later, PW13the next I.O. made an attempt
to have the statement recorded by the Executive Magistrate
but he could not succeed for the reason that the duty doctor
opined that the patient though conscious was disoriented
and not in a fit condition to give the statement vide Ext.35.
That being the situation, it is highly doubtful whether the
victim was in a position to speak to her parents at about
9.45 p.m. as alleged by PW2. Another fact that makes PW2’s
version incredible is that admittedly he did not take any
action by reporting to the police after he heard those alleged
words from Veena. PW2 did not also make any enquiries
with the accused, who according to him, was present at that
time. That is not the natural course of conduct. We are,
therefore, not inclined to attach any weight to the deposition
of PW2 narrating the alleged statement made by the victim
regarding the cause of her burns. For the same reasons, the
evidence of PW3the mother of the deceased, cannot be
relied upon.
We now come to the evidence of PW4 who was running
a wayside ‘hotel’ outside the college gate. The High Court
unhesitatingly rejected his evidence. One of the reasons
given by the High Court, namely, misreading of his evidence
by the trial Court in quoting the words of Veena does not
appear to be correct. It is in fact agreed by the learned
counsel for the accused that the trial Court’s translation of
the crucial sentence in the deposition of PW4 is correct. It
was rechecked by one of us. Even then, we are unable to
place much reliance on the version given by this witness.
PW4 stated that he was cleaning the utensils at about 7.15
p.m. when he saw a burning person running towards him
shouting “Pramod, why you burnt mesave, save”. Then he
stated that by the time he went to the spot where the girl
was burning, 5-6 persons gathered and they were already
extinguishing the fire. He then took out a bed-sheet and
placed it on her. When the bed-sheet was burnt, he used a
gunny bag to control the fire. He then stated that after the
fire was put out, one person who was there by her side, got
an auto-rickshaw and took her away. He further deposed
that the scooter was lying on the road nearby. Whether PW4
really heard the lady in flames saying “Pramod, why you
burnt me” is the question. The distance between his work-
place and the spot where fire was extinguished is not given
in the spot map i.e., Ext.10 prepared by the I.O.PW13.
PW4 also did not mention the distance. It is doubtful
whether he would have distinctly heard the name ‘Pramod’
(which is the second name of the accused) from the place
where he was washing the utensils. By the time he went
there already some people surrounded her in a bid to
extinguish the fire. Amidst the noise and chaos that would
have prevailed there, it is highly doubtful that PW4 could at
all hear any such words from the mouth of the victim who
would have been in a state of panic and unbearable pain.
Another aspect which deserves notice in this context is that
if the victim lady was crying aloud naming the accused as
the culprit, the people who gathered there and extinguished
the fire would not have simply allowed him to carry her to
the hospital without any demur. The natural conduct would
be at least to note the auto-rickshaw number and report the
matter to the police but no such facts were spoken to by
PW4. We are therefore of the view that the credibility of his
version regarding the words alleged to have been uttered by
the victim is open to doubt as it goes against probabilities
and the natural course of conduct. At any rate, the
deposition of PW4 cannot form the sole basis for conviction.
We find no good reasons to differ with the conclusion
reached by the High Court, though we do not endorse the
reasoning of the High Court in totality.
In the result, we affirm the judgment of the High Court
and dismiss the appeal.
