Judgment:
Oral Judgment: (Smt. V.K. Tahilramani, J.)
1. Cri. Appeal No.193 of 2013 has been preferred by original accused No.2 - Mahendra Ashok Jadhav, Cri. Appeal No.378 of 2013 has been preferred by original accused No.1 - Gurunath Ragho Waghe and original accused No.3 - Rajesh Pandit Waghe and Cri. Appeal No.1163 of 2013 has been preferred by original accused No.4 - Subhash Javu Jadhav. All these appeals have been preferred by the appellants -original accused Nos.1 to 4 against the judgment and order dated 31.1.2013 passed by the learned 3rd Additional Sessions Judge, Thane in Sessions Case No.191 of 2011. By the said judgment and order, the learned Session Judge convicted the appellants for the offence punishable under Section 302 r/w 34 of IPC and sentenced them to suffer life imprisonment and fine of Rs. 25000/- each, in default R.I. for six months. For the sake of convenience, we shall refer to the appellants as they were referred before the trial Court i.e Gurunath Ragho Waghe will be referred to as accused No.1, Mahendra Ashok Jadhav as accused No.2, Rajesh Pandit Waghe as accused No.3 and Subhash Javu Jadhav as accused No.4.
2. The prosecution case briefly stated, is as under:
(a) Deceased in the present case is Ranjana. She was resident of village Usar in Dist. Thane. She was residing there along with her husband and son. Ranjana used to do labour work in order to maintain her family.
(b) On 14.12.2010, Ranjana along with her friends had gone to the river bank for doing some work. At that time, Usha - sister of accused No.2 Mahendra got upset on hearing the talk between Ranjana and her friends. On account of this incident, on 16.12.2010, accused No.2 Mahendra along with accused Nos.1, 3 and 4 came to the goat shed of Ranjana where she was working. One of them called out to Ranjana. When Ranjana went near them, accused Nos.2, 3 and 4 i.e Mahendra, Rajesh and Subhash caught hold of her and accused No.1 Gurunath poured kerosene on her and set her on fire. Ranjana raised hue and cry whereupon all the accused ran away from the spot. Ranjana was then taken to Primary Health Centre at Kudus for treatment.
(c) In the hospital, dying declaration (Exh. 27) of Ranjana was recorded. The said dying declaration was recorded by PW 4 SEO Smt. Dhangada. The said dying declaration was treated as FIR. Thereafter investigation commenced.
(d) The dead body of Ranjana was sent for post mortem. The cause of death was due to hyper volumic shock in a case of 100% superficial to deep burns. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3. Charge came to be framed against the appellants-original accused Nos.1 to 4 under Sections 302 r/w 34 of IPC. The appellants pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the appellants committed murder of Ranjana.
5. In this case, it is seen that almost all the witnesses have turned hostile. PW 1 Sunita who was the friend of deceased Ranjana and PW 3 Sheu who was the neighbour of Ranjana did not support the prosecution. What is pertinent to note is that PW 2 Sita who was the mother of Ranjana has also not supported the prosecution.
6. The conviction is based only on the dying declaration Exh. 27. The dying declaration was recorded by PW 4 Smt. Dhangada. PW 4 Smt. Dhangada has stated that at about 10 a.m., she was going to Jawhar to attend a meeting. When she was in the vehicle, she received a call from police station. The police informed her that one lady with burn injuries was admitted in Kudus Primary Health Centre and asked her whether she would be able to record her statement. She replied in the affirmative. Accordingly, she went to P.H.C. at Kudus. She saw that the police and medical officers were present. PW 4 Smt. Dhangada then recorded the statement of the patient. The patient informed that a quarrel was going on for 2/3 days with one lady by name Mandhu. She further informed that when she was alone in her goat shed, four persons from her village came there. She gave their names as Rajesh Pandit, Gurunath Waghe, Subhash Jadhav and Mahendra Jadhav. Three of the persons caught hold of her and one person poured kerosene on her and set her on fire. When she started screaming, her neighbours came to the spot. That lady informed about the incident to her mother and then her mother brought her to the hospital.
7. Before the Court can accept a dying declaration, it has to be satisfied that the same is voluntary, truthful and reliable and not a result of prompting or tutoring. It is necessary for the prosecution to prove that the patient concerned was conscious to give the statement and evidence of Medical Officer attending the patient is of vital importance to prove the fact that the patient was conscious and was in a fit condition to make a statement. The dying declaration is important piece of evidence and must inspire full confidence in the mind of the Court regarding its truthfulness and correctness if it has to be accepted as legal evidence.
8. In the present case, if the dying declaration Exh. 27 is perused, we find that the endorsement of the doctor thereon does not show that the patient was conscious and in a position to make a statement. In fact, the endorsement only shows, "statement taken in my presence". No doubt, it is not necessary that every dying declaration has to bear the endorsement of the doctor that the patient was conscious and in a fit condition to give a dying declaration. However, at least the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. On going through the evidence of PW 4 SEO Smt. Dhangada, we find that she has not asked the medical officer to examine the patient and find out whether the patient was conscious and in a fit condition to give her statement. What PW 4 SEO Dhangada states is that she asked the patient whether the patient was in a condition to give a statement and the patient answered in the affirmative. Thereafter the patient narrated the incident to her.
9. In the present case, SEO Smt. Dhangada has not scribed the dying declaration and the dying declaration was actually scribed by PW 6 constable Patil. Constable Patil does not state that SEO Smt. Dhangada asked the patient whether she was in a condition to give a statement and the patient answered in the affirmative. Both PW 4 Smt. Dhangada and PW 6 constable Patil were present in front of the patient when the dying declaration was scribed, however, we find that there is serious discrepancy in their evidence. Constable Patil states that he inquired with the medical officer whether the patient was in a condition to speak and the medical officer replied that she was able to speak. PW 7 Dr. Nikalje's evidence, on the other hand, does not state anything about anyone asking his opinion whether the patient was in a fit condition to give a statement. He categorically states that he gave an endorsement that the statement was recorded in his presence. He does not state anything about examining the patient and stating that she was in a fit condition to giver her statement. Thus, it is seen that although PW 7 Dr. Nikalje was examined by the prosecution regarding endorsement made by him that dying declaration Exh. 27 was recorded in his presence, there is no specific certificate by the doctor to show that the patient was conscious and in a fit condition to give her statement. The evidence of Dr. Nikalje does not state that he examined the patient before her statement was recorded and that he found her in a fit condition to give her statement. Looking to all these circumstances, we find it difficult to rely upon the dying declaration Exh. 27.
10. It is settled legal position that the Courts has to be on guard before accepting the evidence in the nature of dying declaration as it may be result of tutoring or it may be imaginary. The facts in this case generate a doubt as to whether dying declaration is true and voluntary. Some other aspects which raise doubt about the dying declaration are as under:-
The evidence of PW 4 Smt. Dhangada shows that at 10 a.m., she received a call from police station asking her whether she would be able to come to record a statement of a patient in P.H.C. at Kudus. She replied in the affirmative. Then she went to P.H.C. and recorded the statement.
Though PW 4 Dhangada has stated that she received a call on her mobile phone inquiring whether she could come to P.H.C. at Kudus to record the dying declaration, on the other hand, the evidence of PW 6 constable Patil shows that he received information from P.H.C. at Kudus regarding one lady with burn injuries being admitted in the hospital. He saw that SEO Smt. Dhangada was present at S.T. stand. She was proceeding to Jawhar. He then requested her by giving her a letter to record the statement of the patient. According to constable Patil, the said letter is at Exh. 35. Thereafter, he along with Smt. Dhangada and police staff went to P.H.C. and thereafter the dying declaration of the patient was recorded.
11. There is serious discrepancy between the evidence of PW 4 Dhangada and PW 6 constable Patil. PW 4 Dhangada has stated that she received a call asking her whether she could come to record a dying declaration whereas PW 6 constable Patil states that he in person requested SEO Smt. Dhangada to record statement of the patient. Then, she accompanied him to the hospital. Further the evidence of PW 4 SEO Smt. Dhangada shows that she was called at 10.00 a.m. to record the dying declaration, however, the dying declaration Exh. 27 shows that it was recorded more than two hours later. These aspects also raise doubt about authenticity of the dying declaration.
12. On going through the record, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the appellants committed an offence under Section 302 r/w 34 of IPC, hence, we proceed to pass the following order:-
ORDER
i. The appeals are allowed.
ii. The conviction and sentence of the appellants under Section 302 r/w 34 of IPC imposed by 3rd Additional Sessions Judge, Thane vide Judgment and Order dated 31.1.2013 in Sessions Case No.191 of 2011 is hereby set aside.
iii. The appellants be set at liberty if not required in any other case.
13. We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mrs. Rupali Manik Shinde at Rs. 5000/-.