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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 accused\027a 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,

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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, PW8\027the 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 register\027the 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 letter\027Ext.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\027

Ext.30 was drawn up on the basis of the same and sent to

the concerned Magistrate. While so PWs 2 & 3\027the 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. PW13\027another Sub-Inspector

attached to CIDCO police station took over investigation

from PW6 at about 11 p.m. He went to the Executive

Magistrate/Naib Tehsildar\027PW7 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\027

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 Officer\027PW13,

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

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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 DW1\027he 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

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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 Officer\027PW13 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 details\027necessary 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 statement\027Ext.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

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discernible from this document.

Coming to Ext.37 which is the dying declaration

recorded by PW7 by name Ghulam Gouse\027Naib 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\027"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 Sanjay\027Pramod" (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

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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

Magistrate\027PW7 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)\027first 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 doctor\027PW8 was eliciting information from

the patient, PW1\027the 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 PW6\027S.I. of police.

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It is now necessary to notice the contradictions

between the two statements of the deceased incorporated in

Exbs.37 & 39. They are\027firstly 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.39\027the 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

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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. PW2\027the 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.\027PW6 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, PW13\027the 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 PW3\027the 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 me\027save, 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

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in the spot map i.e., Ext.10 prepared by the I.O.\027PW13.

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.