P.N. Deshmukh, J.�This appeal takes exception to the judgment and order dated 16th of October 2001 passed in Session Trial No. 300 of 1997 by the Additional Sessions Judge, Amravati, whereby appellant came to be convicted for the offence punishable under Sections 498-A and 306 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for fifteen days, on both counts.
2. Prosecution case can briefly be stated as follows--
Deceased Vimal was married to appellant/accused about 15 years prior to the date of incident which has occurred on 30th of January, 1993 on which day Vimal was admitted in Government Hospital, Amavati since she had sustained 50% burn injuries. On admission of injured in the hospital, a memo was sent by the Medical Officer, informing said facts to City Kotwali Police Station, Amravati and requested for recording dying declaration. Accordingly, a requisition memo was issued by police to P.W. 4 Madhukar Naik, Special Judicial Magistrate, for recording dying declaration. In turn, said Special Judicial Magistrate requested P.W. 8 Dr. Ashok Lande, Medical Officer, to examine the injured and to certify whether she was in a fit condition to make her statement. On examining injured, Medical Officer issued said certificate and thereafter her dying declaration came to be recorded.
It is the case of prosecution that on 24th of March, 1993, injured Vimal died while she was under medical treatment. Accordingly, intimation was given to City Kotwali Police Station, Amravati upon which A.D. No. 10 of 1993 was registered which was investigated by P.W. 7 Gangadhar, H.C. During the course of investigation he recorded statement of P.W. 1 Sandhya, minor daughter of deceased, and other witnesses. As there was sufficient evidence against the appellant, P.W. 7 Gangadhar lodged his report on the basis of which offence came to be registered against appellant for the offence punishable under Sections 498-A and 306 of the Indiana Penal Code on 25th of August, 1993. On completion of investigation charge-sheet was submitted in the Court of Judicial Magistrate (F.C.), Court No. 3, Amravati. As the case was exclusively triable by the Court of Sessions, it came to be committed to the Session Court for its trial.
3. Charges were framed against the appellant for above offence vide Exh. 2 to which he pleaded not guilty and claimed to be tried. The defence of appellant is of denial and false implication.
4. It is the case of appellant that on the day of incident he was out of his village and returned back at 8 p.m. and on hearing shout from his house, he rushed to his house and found Vimal in fire. He brought her to Hospital for medical treatment and thereafter gave intimation to his brother-in-law Vinod.
5. The learned Trial Court considering the evidence and the dying declaration, convicted the appellant as aforesaid. Hence, this appeal.
6. Heard Mrs. Sonali Saware, learned counsel appointed for the appellant and Mrs. M.H. Deshmukh, learned Additional Public Prosecutor for the respondent/State.
7. To effectively evaluate the submissions advanced by learned Advocates for both the sides, with their assistance, I have scrutinized the evidence on record.
8. P.W. 1 Sandhya, minor daughter of deceased, has stated that her mother was ill-treated by her father/appellant, who was not doing any work and was addicted to liquor and under the influence of liquor he used to assault deceased. She further stated that deceased used to go for work while appellant used to take money from her employer to consume liquor. With reference to the date of incident, it is stated that the incident occurred on Bazar day on which day appellant quarreled with deceased and had given a blow of iron bar on her head. She has stated that at that time deceased asked this witness to go to the neighbour to watch T.V. and accordingly she left the house along with his younger brother Gopal. She stated that while she was watching T.V., she heard noise and thus returned back and found her mother lying on the ground in a burnt condition. According to this witness, her mother did not say anything except for saying "water � water". She has further stated that her aunt, who was residing adjoining to her house, was also present on the spot and had informed this witness that deceased poured kerosene on her person in anger and appellant provided a lighted match-stick to her.
9. Admittedly, prosecution has not examined said aunt for the reasons best known to it, though it is its case that said aunt had given information to P.W. 1 Sandhya that in a fit of anger though deceased had poured kerosene on her person, it is appellant who provided her a lighted match-stick, however much consideration is not required to be given to this aspect of non-examination of this witness, as even otherwise this does not appear to be the case of prosecution as Charge levelled against the appellant is for the offence punishable under Sections 498-A and 306 of the Indian Penal Code only.
10. P.W. 1 Sandhya, in fact, appears to have materially improved her case so as to falsely implicate her father, as in her cross-examination she has admitted that in her statement recorded by police she had not stated that her father used to collect money from the employer of her mother for consuming liquor. She has further deposed to have stated in her statement to police that appellant had given blow by an iron bar on the head of deceased and further stated in her statement to police that when the quarrel took place between her mother and father, her mother asked her to go to somebody''s house to watch T.V. She further stated to have mentioned in her statement to police that her aunt has informed her that her mother herself poured kerosene on her person and appellant provided her lighted match-stick. Prosecution has got proved all these omissions from the evidence of P.W. 7 Raghunath Haramkar, Investigating Officer, who has recorded statement of P.W. 1 Sandhya. In that view of the matter, no reliance can be placed on such type of evidence of this witness as she appears to have materially improved her case and whose statement even otherwise, as per evidence of P.W. 7 Gangadhar, was recorded on 19th of April, 1993 i.e. after gap of more than two months from the incident in question which took place on 30th of January, 1993.
11. P.W. 3 Gajanan, brother of deceased, has stated that whenever her sister used to visit his house, she used to complain about ill-treatment by appellant under the influence of liquor, however, he used to send her to her matrimonial house by consoling her. He further stated that he learnt about admission of Vimal to hospital two days after the incident and has thus visited her in Irvin Hospital, Amavati where Vimal is stated to have informed him that she was having excessive ill treatment at the hands of appellant and as it was unbearable she poured kerosene and set herself on fire. There is absolutely nothing on record to corroborate above oral dying declaration. On the contrary, according to the evidence of P.W. 3 Gajanan, whenever deceased used to visit his home, she used to complain about ill-treatment at the hands of appellant. Admittedly, no report is lodged by any of the family members of the deceased against the appellant though according to evidence of P.W. 3 Gajanan, after her marriage with appellant she was visiting her parental home. It is to be noted that even according to the case of prosecution incident took place on 10th of January, 1993 while deceased died on 24th of March, 1993. Even after death of deceased no report was lodged by her brother till 10th of April, 1993. Had deceased would have really being ill-treated at the hands of appellant, as stated by him, some family members of deceased would have had definitely lodged report against the appellant at least immediately after her death. Considering above facts, I find much substance when it is suggested to P.W. 3 Gajanan that deceased had not disclosed him anything in the hospital as deposed by him though he has denied this suggestion. On the contrary, on considering the evidence into its totality it appears that appellant is falsely implicated by lodging belated report against him.
12. In the light of above evidence of two witnesses, prosecution has further examined P.W. 4 Madhukar Naik, Special Judicial Magistrate, who has recorded dying declaration. He has stated that on 30th of January, 1993 at about 00.45 hrs., he received requisition from the Police Out Post, Irvin Hospital, Amravati for recording dying declaration of Vimal vide Exh. 16 and accordingly he visited Ward No. 4 Amravati and himself got satisfied that no sedatives were administrated to the patient. It is to be noted that except for these bare words of P.W. 4 Madhukar there is nothing to establish on what basis said witness got himself satisfied that no sedatives were administrated to the patient, though according to the case of prosecution she had sustained 50% burn injuries and for that purpose pain killers are normally administrated to the patients on their admission in the hospital. No step appears to have taken by prosecution to bring on record bed-head ticket of deceased to corroborate above piece of evidence.
13. According to P.W. 4 Madhukar Naik, Special Judicial Magistrate, he issued requisition (Exh. 17) for examining the injured for the purpose of recording dying declaration. He further stated that after completion of dying declaration he again got the injured examined from P.W. 8 Dr. Ashok Lande, Medical Officer. According to this witness, the dying declaration was recorded by him in his own hand-writings as stated by injured. He has proved the dying declaration on record at Exh. 18. He further stated that while recording dying declaration, apart from himself, the patient and P.W. 8, Dr. Ashok none was present there. He has stated that he was repeating the version of the patient so that she could hear what he was writing. In the cross-examination, P.W. 4 Naik, Special Judicial Magistrate, admitted that he did not find it necessary to obtain thumb impression of the toe of her leg. He further admitted that he is unable to state if deceased was in pains when the dying declaration was recorded.
14. On considering the evidence of this witness, thus, it appears that he has not stated the contents of dying declaration. As such there is nothing on record to establish the involvement of appellant in the present case as evidence of this witness is silent to that effect and as such do not corroborate the contents of dying declaration (Exh. 18). Secondly, from his evidence, it appears that the contents of dying declaration are not read over to its maker nor he has deposed about his making any endorsement on the dying declaration to that effect. In view of above, I find useful to refer to the decision of Division Bench of this High Court in the case of Deorao Sonbaji Bhalerao and Anr. vs. State of Mah. reported in 2008 ALL MR (Cri.) 1921 where in similar set of circumstances, the question which arose for consideration was whether a dying declaration is admissible without proof, under Section 80 of the Evidence Act and has considered the decision in the case of
"What is made admissible by S. 32(1) of the Evidence Act is the verbal statement made by the dying man to the Magistrate and not the document prepared by the Magistrate. The document made by the Magistrate does not amount to a deposition or record of evidence so as to attract the presumption under Section 80 of Evidence Act. Therefore, what is admissible in evidence is the statement made by the dying man as to who was responsible for causing his death and not the paper on which dying declaration is recorded. For these reasons therefore, S. 80 of the Evidence Act cannot be invoked in respect of presumption to be drawn in respect of a dying declaration recorded by a Magistrate or even an officer authorized by law to make evidence. As a sequel to our finding about inapplicability of presumption under Sec. 80 of Evidence Act, we further hold that the Magistrate or the person who records a dying declaration will have to testify and prove who was named as offender by the dying person before Court where trial proceedings against accused are held."
In the given set of circumstances, I further find useful to rely upon the decision in the case of Shaikh Bakshu and Ors. vs. State of Mah. reported in (2008) 1 SCC (Cri.) 679 wherein, there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The Apex Court has held that the said view is unacceptable.
15. In view of above legal proposition and since from the facts involved in appeal, prosecution is thus, found to have not established involvement of appellant as from the evidence of P.W. 4 Madhukar contents of dying declaration (Exh. 18) are not corroborated and said witness is also silent about his reading over contents of the dying declaration to its maker to admit the same to be truly recorded as stated by her, evidence relied by prosecution cannot be acted upon.
16. Though from the evidence of P.W. 8 Dr. Ashok, Medical Officer, prosecution has proved the medical endorsements in respect of physical fitness of Vimal before recording her dying declaration and on concluding the same, at Exh. 32 and 33 respectively, this piece of evidence is too short to establish involvement of appellant in view of proposition of law as aforesaid.
17. Even otherwise, prosecution has miserably failed to bring on record what were the words used or what kind of ill-treatment was provided by the appellant to deceased Vimal which conduct of appellant can be said to be of such a nature that it is likely to drive Vimal to commit suicide. In absence of such evidence and since it does not disclose as to which of the acts of the appellant amounts to instigation or abetment for Vimal to commit suicide, I find that there is sufficient merits in the appeal and thus conclude that the prosecution has failed to prove the charge levelled against the appellant. Hence, the following order.
Criminal Appeal is allowed.
The judgment and order dated 16th of October, 2001 passed in Sessions Trial No. 300 of 1997 by learned Additional Sessions Judge, Amravati convicting the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer R.I. for fifteen days, on both the counts, is quashed and set aside. The appellant is acquitted of the offences for which he was charged and convicted.
Fine amount, if any, paid by the appellant be refunded to him.
Bail bond of the appellant stands cancelled.
At this stage, I must record appreciation for Mrs. Sonali Saware, who was appointed to represent the appellant. I found that she had meticulously prepared the matter and she has very ably argued the appeal. As Mrs. Sonali Saware is an appointed advocate, I quantify legal fees to be paid to her for this appeal by the High Court Legal Services Committed at Rs. 5000/- (Rupees five thousand only).
