Macchidra Namdeo Shelar Vs. the State of Maharashtra - Court Judgment

Oral Judgment: (P.V. Hardas, J.)

1. Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default of which to undergo further RI for 4 months, by the Ad-Hoc Additional Sessions Judge, Pune, by judgment dated 30.6.2004, by this appeal questions the correctness of his conviction and sentence.

2. Facts as are necessary for the decision of this appeal may briefly be stated thus:

(i) PW-4 Head Constable Shri Suresh Salvi who on 24.3.2004 was on duty at Sassoon hospital was informed about the admission of Vijaya with burns in ward no.25 He accordingly proceeded to the said ward and requested the Medical Officer to ascertain the condition of Vijaya to give her statement. The Medical Officer accordingly ascertained the condition of Vijaya and opined that Vijaya was in fit condition to give her statement. PW-4 Head Constable Salvi accordingly recorded the statement of Vijaya at Exhibit 17. He obtained thumb-impression of Vijaya on the dying declaration. In the dying declaration at Exhibit 17, Vijaya stated that the appellant and his aunt had poured kerosene on her and had set her ablaze.

(ii) PW-7 PSI Sunil Bhandalkar who was attached to Shirur police station was entrusted with the investigation, proceeded to the scene of the incident and in the presence of panch-witnesses drew the scene of the incident panchanama at Exhibit-21. From the scene of the incident, he seized one violet coloured plastic can of kerosene and one match-box. He recorded the statement of the witnesses and arrested the appellant on 25.3.2004. Since Vijaya had succumbed to her injuries, Section 302 of the Indian Penal Code came to be added. The seized property was thereafter referred to the chemical analyzer under requisition at Exhibit 27. Further to the completion of the investigation, a chargesheet against accused nos.1 and 2 was filed.

(iii) Postmortem on the dead body of Vijaya was performed by PW-3 Dr. Gedam. PW-3 Dr. Gedam noticed that deceased Vijaya had sustained 87% superficial to deep burn. He therefore opined that the cause of death was due to shock due to burns. The postmortem report is at Exhibit 15.

(iv) On committal of the cases to the Court of Sessions, Trial Court framed charge against the appellant and original accused no.2, aunt of the appellant, for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused denied their guilt and came to be tried.

3. Prosecution in support of its case, examined 8 witnesses. The Trial Court upon appreciation of the evidence, convicted and sentenced the appellant as aforestated while acquitting original accused no.2.

4. In order to effectively deal with the submissions advanced before us by Miss. Sharmila Kaushik, learned Counsel appointed for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

5. The case against the appellant revolves around the dying declarration at Exhibit-17, the disclosure of the incident which was made by Vijaya to PW-8 Dr. Sinha and the oral dying declaration made by Vijaya to PW-5 Vitthal. In the dying declaration at Exhibit-17, Vijaya had clearly stated that both the accused had poured kerosene on her and had set her ablaze. According to Vijaya, the accused were suspecting her character and had quarrel led with her and thereafter had poured kerosene on her and had set her ablaze. PW-5 Vitthal, father of deceased Vijaya also states that he had admitted Vijaya in the Sassoon hospital and had asked Vijaya as to how she had sustained burns. Vijaya had informed him that both the accused had poured kerosene on her and had set her ablaze. PW-8 Dr. Sinha has admitted that the parents of Vijaya had admitted Vijaya in the hospital. Vijaya had given him the history of the the appellant pouring kerosene on her and setting her ablaze. Unfortunately the disclosure or the oral dying declaration made by Vijaya tio PW-8 Dr. Sinha though recorded in the medical case papers were not exhibited and proved. Though PW-8 Dr. Sinha had stated that he had produced original case paper, yet the original case papers were not exhibited during the recording of the evidence of PW-8 Dr. Sinha.

6. Wethis find that there is a total variance in respect of number of accused who are alleged to set Vijaya ablaze. As pointed out by us in the dying declaration at Exhibit 17, Vijaya claims that both the accused poured kerosene and set her ablaze, while disclosure made by Vijaya to PW-8 Dr. Sinha is that the appellant had poured kerosene and had set her ablaze. The learned Counsel for the appellant has referred to the judgment of the division bench of this Court to which one of us (P.V. Hardas, J.) was a member, in Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra [2005 ALL MR (Cri) 1599], the division bench at para-9 has held thus:

œIn cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. In these two dying declarations there is consistency in respect of name and the number of accused. However, in respect of the prelude to the incident, there is variance. There is also variance in respect of the incident itself. The variance is apparent on perusal of the dying declarations and can be discerned from the perusal of the same. Therefore, according to us, no reliance can be placed on the two dying declarations at Exhs. 24 and 27, as acceptance of any one dying declaration necessarily renders the other as false. If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected.?

7. The learned Counsel for the appellant has further referred to the judgment of the Supreme Court in State of Punjab Vs. Pervinkumar [2004 AIR SCW 6897]. The Supreme Court in the said judgment held the dying declarations to be unreliable and further held that mere fact that in the two different version which were given the name of one accused was common in both the dying declarations, cannot be a ground for convicting the accused who was named in both the dying declarations.

8. In the present case also we find that acceptance of the dying declaration at Exhibit 17 and the oral dying declaration made to PW-5 Vitthal would necessarily falsify the dying declaration recorded by PW-8 Dr. Sinha. Similarly, acceptance of the dying declaration made by Vijaya to Dr. Sinha would necessarily falsify and label the dying declaration at Exhibit 17 and the oral dying declaration made to PW-5 Vitthal as false. It would be wholly impermissible for the Court in such a situation to pick and choose any one dying declaration for basing the conviction. In our opinion, therefore, no reliance can be placed on any of the dying declaration. The appellant, in our considered opinion, therefore would be entitled to be given the benefit of doubt.

9. Accordingly, the criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case. Fees of the learned Counsel appointed for the appellant is quantified at Rs.5000/-