Vishnu Sahai, J.@mdashThe appellant aggrieved by the Judgment and order dated 15-9-1982, passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 91 of 1982, convicting and sentencing him to undergo imprisonment for life u/s 302 I.P.C. has come up in appeal before us.
Along with the appellant, his brother Waman Kanade was also prosecuted and tried but, he has been acquitted vide the impugned judgment.
2. The prosecution case in brief runs as under:---
The deceased Govinda was the brother of the appellant and Waman Kanade. He was residing at Nandurshingote while the appellant and Waman were residing in a field known as Kazimala at Nasik. A truck had been purchased in the name of the appellant and deceased Govinda had contributed a sum of Rs. 30,000/- for its purchase. On account of dispute in connection with purchase of the said truck, a litigation had taken place between the appellant and Waman on one side and deceased on the other.
On the night of 5-6-1982 and 6-6-1982 a quarrel took place between the appellant and Govinda. As a consequence of that quarrel, the appellant poured kerosene oil on Govinda and set him to fire by means of match stick. It is said that the acquitted accused Waman was standing there, and when Govinda cried after being burnt, he said "You may die now."
3. At about 2.15 a.m. on 6-6-1982, Kazimala Zahiruddin who was also residing in the field known as Kazimala, informed the Nasik Taluka police station that Govinda Kanade was lying in a burnt condition in the said field. The said information was given by Kazimala Zahiruddin to PHC Vishnu Kadam. PHC Vishnu Kadam instructed police constable Deokar to inform P.S.I. Consequently, on receiving information, PSI Murlidhar Nimade went to Kazimala. He found that a person was lying there. He could not talk. He put the said person in a van and took him to Civil Hospital, at Nasik.
4. It appears that in the Civil Hospital, Nasik, the victim Govinda Kanade was medically examined by Dr. Patil (not examined). The medical case papers show that the examination took place at about 3 a.m. and Govinda had been brought by Bhagirath. The endorsement in the medical case papers is that he was semi-conscious at that time.
5. It appears that at about 10 a.m. on 6-6-1982. Govinda regained his consciousness. Consequently the Executive Magistrate P.W. 11 Prabhakar Takle was sent for. The statement of Prabhakar Takle is that at about 10 a.m. on 6-6-1982, while he was in his shop, two police-men came and handed over a memo to him. The memo was Exhibit 13. The memo directed him to record a dying declaration of Govinda Kanade. Consequently, he proceeded to the Civil Hospital, Nasik. The Medical Officer Dr. Kale P.W. 9 took him to the burns ward where Govinda was admitted. Dr. Kale then examined him and made an endorsement at Exhibit 13 to the effect that Govinda was in a fit condition to give a statement and told him that he could record the dying declaration. The Medical Officer went out of the room. Thereafter, Prabhakar Takle disclosed his identity to Govinda and between 11.00 to 11.20 a.m. on 6-6-1982, recorded his dying declaration. The said dying declaration is in question and answer form and runs as follows:---
Q: What is your name ?
A: Govindrao Bhaurao Kanade
Q: What is your age ?
A: Thirty five approximately.
Q: Where do you live ?
A: Gurunanak Society near Agra Road Nasik City.
Q: What do you do ?
A: Service.
Q: Who brought you here ?
A: I do not know.
Q: Will you tell what was the matter ?
A: When I went home at night, my brothers Waman and Bhagirath were sleeping. I got them up and asked them, the truck has been already sold away and so my amount may be given to me. While talking, there was exchange of words and also abusing, Bhagirath then threw petrol on my body from the tin and threw burning match stick on my body. I then cried loudly. My second brother Waman was there. He said very well. You may die now. No one came to rescue me. This incident took place on Saturday on night of 5-6-82.
Q: Will you tell the name of your wife ?
A: Asha Govind Kanade.
Q: How many children you have ?
A: Three children
Q: Why for such incident took place ?
A: Due to my demand of money, they burnt me away.
This statement before death has been started on Sunday on 6th June, 1982 at 11 a.m. and closed on Sunday the 6th June, 1982 at 11.20 a.m.
Sd/-
P.D. Takale
6th June, 1982
Sunday
6. On the basis of the dying declaration. PSI Nimade P.W. 13 recorded F.I.R. on 6-6-1982. On the basis of the F.I.R., he registered a case u/s 307 IPC against the appellant and Waman. Govinda succumbed to his injuries the same day and consequently the case was converted from section 307 to section 302 IPC.
7. The post mortem examination of the dead body of Govinda was conducted on 7-6-1982 between 11 a.m. to 11.45 a.m. by Dr. Kutubud Abasahabi P.W. 7. On the dead body, the doctor found 98% burns. They were distributed between the face, chest, back, right hand, left and right leg. In the opinion of the doctor, the deceased died on account of shock due to serious burns.
8. Investigation of the case was conducted by PSI Murlidhar Nemade P.W. 13. After lodging the F.I.R., he went to the place of the incident and prepared the spot panchanama Exhibit 23. He recovered the burnt clothes, tin can of petrol, match box, bucket etc. from the place of the incident. During the course of investigation, he recorded statement of various witnesses. After completing the investigation he submitted the charge-sheet.
9. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant and Waman Kanade were charged for offences u/s 302 and u/s 302 r/w 34 IPC in the alternative. To the said charges they pleaded not guilty and claimed to be tried. In the trial Court, apart from proving the dying declaration and some other Exhibits, the prosecution examined as many as 13 witnesses. In defence, no witness was examined.
10. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. He however, acquitted co-accused Waman. Hence, this appeal.
11. We have heard Mr. R.T. Walawalkar for the appellant and Mr. I.S. Thakur, Additional Public, Prosecutor for the State of Maharashtra-respondent. We have also perused the material Exhibits, including the dying declaration recorded by the Magistrate, statement of the witnesses examined during trial, statement of the appellant recorded u/s 313 Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter, we are squarely satisfied that there is merit in this appeal and it deserves to be allowed.
12. There is no dispute between the learned Counsel for the parties that the solitary item of evidence on which conviction of the appellant has been recorded is the dying declaration made by the deceased Govinda to the SEM Mr. Takle P.W. 11, on 6-6-1982 between 11 a.m. to 11.20 a.m. in Civil Hospital, Nasik. There can be no quarrel with the proposition that conviction can be recorded/sustained on an uncorroborated dying declaration provided the same inspires confidence? Way back as the year 1958 in the decision reported in
13. The question is whether on the facts emerging from the record of this case, the dying declaration recorded by Prabhakar Takle can be accepted as a safe basis for sustaining the conviction of the appellant. It is true that if this dying declaration is perused independently, it definitely fixes the appellant as the person who murdered the deceased.
However, in the instant case, there is plurality of dying declarations.
From the evidence of Dr. Kale, who had medically examined Govinda, prior to his dying declaration being recorded, it appears that Govinda was medically examined on his admission in the hospital by Dr. Patil and at that time, he was semi-conscious. Dr. Patil has not been examined but, entries in the medical case papers made by him have been proved by Dr. Kale. During cross examination (para 3 of his statement) Dr. Kale stated that the history given by the patient is recorded in the medico Register maintained in the hospital. In the said para he also stated that it is written in the case papers that accidental burns inflicted by the patient.
There can be no quarrel with the proposition that the entries made by the doctor in the medical case papers, on the basis of information received by the victim, would be admissible as dying declaration u/s 32 of the Indian Evidence Act. There can also be no quarrel with the conclusion that if the aforesaid two answers given by Dr. Kale are considered together, it becomes apparent that the deceased gave the information that he was burnt accidently and the same was recorded in the Medico-Register by Dr. Patil.
In such a situation, the position is that there is a conflict between the dying declaration recorded by the Magistrate and the dying declaration which is in the medical case papers, regarding the manner in which Govinda sustained injuries; whereas in the dying declaration recorded by the Magistrate Prabhakar Takle, Govinda stated that the appellant poured petrol on him and thereafter lighted a match stick on his body, in the dying declaration contained in the medical case papers, Govinda has mentioned that he was accidently burnt.
14. The dichotomy between the two dying declarations has not been resolved by the prosecution. Mr. Thakur, Additional Public Prosecutor vehemently urged that inasmuch as in the medical case papers it is mentioned that Govinda was brought by the appellant the said information pertaining to accidental burns must have been given by the appellant in order to save his own skin. We regret that on the face on the evidence of Dr. Kale, to which we have referred to above, it would not be possible for us to infer this. Mr. Thakur, also urged that the evidence of the two police witnesses is categorical to the effect that right from his admission in Civil Hospital, Nasik till 10 a.m. on 6-6-1982, Govinda was unconscious and that being so, the said entry in the medical case papers, which is in the form of dying declaration, should not be believed.
15. The question which stares us is whom to believe, Dr. Kale or the police witnesses? Dr. Kale has categorically stated that the history given by the patient is recorded in Medico-Register. We wish to emphasise that in a criminal case when there is conflicting evidence, in respect of the same circumstance, the benefit has got to go to the accused and not to the prosecution. Consequently, we are not inclined to believe the police witnesses. We instead prefer to believe Dr. Kale.
For the mess in which we are, it is the prosecution which has to be squarely blamed. It was Dr. Patil who on the admission of Govinda in Civil Hospital, Nasik, had examined him and made entries in the medical case papers. It was incumbent on the part of the prosecution to have examined Dr. Patil and then to have questioned him on the aspect whether he made the entry of accidental burns on the information given by the patient (Govinda) or on account of some confusion the word patient was mentioned or the said entry was made on the information given by the appellant and on account of inadvertence, he instead mentioned patient. It is distressing to note that the prosecution has furnished no explanation for not examining Dr. Patil. In our view, it cannot be permitted to take advantage of its own wrong. In such a state of affairs, there is no alternative for us but, to accept the said answers given by Dr. Kale.
For the failure of the prosecution to examine Dr. Patil, we cannot permit the benefit of this conflicting evidence, in respect of the manner of death of the deceased, in the two dying declarations, to go to the prosecution. It must go to the appellant and the prosecution must suffer for its failure to examine Dr. Patil for he and he alone could have resolved the doubt created in our minds by the said two answers given by Dr. Kale in his cross-examination.
16. It causes us tremendous anguish and pain that a case in which one brother murdered another is going unpunished. But, we cannot allow our emotions to cloud our judgment. What we have to see is whether on credible evidence the guilt of the appellant has been established beyond reasonable doubt, and in examining this question we have to bear all the time in our minds that a dying declaration cannot be tested on the anvil of cross-examination and the principle that in a criminal case, the benefit of doubt has got to go to the accused. After adopting this yardstick the highest which we can say in favour of the prosecution is that it''s case "may be true" but, as Gajendragadkar, J., (as he then was) warned us in the case of
"It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants.
Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true, but between ''may be true'' and ''must be true'' there is inevitably a long-distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."
We are in respectful agreement with the said observations of His Lordship. As we have a lurking suspicion in our minds, that the deceased may have died on account of accidental burns, we are left with no other option to give benefit of doubt to the appellant. The result may be regrettable but, it cannot be helped.
17. For the said reasons, we are satisfied that this is a fit case in which the appellant deserves benefit of doubt.
18. In the result, this appeal is allowed. The impugned judgment convicting and sentencing the appellant to life imprisonment u/s 302 IPC, is set aside. He is given benefit of doubt. He is on bail. He need not surrender. His bail bonds, stand cancelled and sureties discharged.
