JUDGMENT:
1. This appeal is by original accused (hereinafter referred to as “accused), who has been convicted by 5th Additional Sessions Judge, Ahmednagar, on 19.5.2000 in Sessions Case No. 80/1999, for offence under Section 306 of the Indian Penal Code (IPC for short) and has been sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for two months.
2. The case of prosecution in brief is that:-
(a) A.S.I Laxman Kusalkar (P.W.7) of Kotwali Police Station, Ahmednagar, on 22.1.1995, received phone call from Civil Hospital, Ahmednagar that one Shabana Hamji Shaikh (hereinafter referred to as “victim) with burns was admitted to the hospital. This A.S.I went to the hospital and after completing formalities, recorded the statement of Shabana, which was recorded as her dying declaration (Exhibit 32). On the same day, yet another dying declaration of Shabana was recorded by Special Executive Magistrate (P.W.2) Ruth w/o Shivaji Salve. In the dying declarations, in substance, Shabana (an unmarried woman) had informed that she was in love with the accused Shaikh Asif Ismail and both of them were residing together in a room in Pawarwada, Sherkar Lane, Maliwada. She informed that, she was working in a telephone booth of one Mande (P.W.5) and at about 3.30 p.m on that day, her lover (accused) Asif had come and he had seen one Iqbal in the telephone booth. Accused alleged that the victim had some affair with that other person, and started quarreling. They later went home, but on the same count, there was further quarrel. She told her lover that if he suspects her, she will burn herself and so saying, she put kerosene on herself, but her lover did not stop her and so, by match stick, she burnt herself. Her lover had then tried to put out fire and brought her to hospital.
(b) On 23.1.1995, Head Constable Thaknath Jawale (P.W.8) received the dying declaration recorded by the Executive Magistrate and A.S.I Kusalkar and he prepared spot panchanama and from the spot, seized articles like stove, burnt petticoat, match box and burnt match stick. He then gave report to P.S.I Sonawane (P.W.4).
(c) The victim passed away while in the hospital on 24.1.1995 at about 8.00 p.m Head Constable Jawale then gave report (Exhibit 9) and A.D No. 4/1995 under Section 174 of the Code of Criminal Procedure, 1973 (Cr.P.C for short) was registered at 10.10 p.m P.S.I Benjamin Sonawane (P.W.4) prepared inquest panchanama (Exh. 10) and post mortem of the body was got done. The post mortem report (Exh. 24) showed 99% burns were there and she died due to the burn injuries. Statements of witnesses were recorded and thereafter P.W.4 Sonawane lodged complaint which was registered as F.I.R (Exhibit 20) and crime was registered as 37/1995 under Section 306 of the Indian Penal Code against accused. P.S.I Sonawane completed investigation and filed charge sheet in the Court of Chief Judicial Magistrate, Ahmednagar.
3. The offence being Sessions triable, the matter came to be committed to the Court of Sessions. Charge was framed against the appellant/accused under section 306 of the ipc. prosecution brought on record evidence of 8 witnesses. The defence of the accused is of denial.
4. The trial Court, after considering the oral and documentary evidence, accepted that the dying declarations were duly recorded and held that, the accused was responsible for abetment of suicide by the victim and consequently, convicted the appellant/accused. In the present appeal, grounds have been raised, and the learned counsel for appellant/accused argued that, abetment to commit suicide has not been established. The dying declarations did not attribute any act to accused of instigating the victim to commit suicide. The dying declarations were not duly established and evidence was not properly appreciated. The victim was not in any physical or mental condition to give statement. The dying declaration recorded by Special Executive Magistrate was mostly copied by the A.S.I Material contradictions and omissions had been ignored and the conviction imposed is not maintainable.
5. Against this, learned A.P.P submitted that, the prosecution proved its case from the two dying declarations. The endorsement of doctor was taken on the dying declarations regarding the mental condition of the victim. The dying declarations show that, although the victim threatened the accused that she will commit suicide, the accused did not try to prevent the same. Thus, according to the learned A.P.P, the dying declarations need to be believed and the conviction should be maintained.
6. I have heard counsel for both sides and perused the record.
7. Before proceeding to discuss the evidence available, it would be appropriate to make a brief reference to some of the rulings relevant to the present matter:
In the matter of of Shaikh Bakshu v. State of Maharashtra, reported in (2008) 1 SCC (Cri) 679, with reference to reading over and explaining the dying declaration to the victim, it was observed in para No. 13 as under:
“. . . 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 view is clearly unacceptable.”
In the matter of Paikuji s/o Shankar Ataram v. State of Maharashtra, reported in 2012 ALL MR (Cri) 2453, there was printed form of dying declaration. Division Bench of this Court observed in para Nos. 8 to 10 as under:
“8. On perusal of Exh.35, it is clear that the space in front of column nos. 6, 7 and 8 are blank. The space before time of completion of the recording of the statement is blank. The column read over and admitted it to be correct is also blank.
9. To rule out any remote infirmity, it is necessary that there has to be an endorsement on the dying declaration that the contents were read over and admitted to be correct and as per the say of the deponent. The said column cannot be treated as an empty formality, since the deponent is not available for cross-examination.
10. Hence, it is material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the Court. When the statement was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the 19/7/2014 conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the same and getting it endorsed to be correct was actually followed.”
In the matter of Shivaji s/o Tukaram Patdukhe v. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220, the Special Executive Magistrate, who recorded dying declaration, admitted in the cross-examination that on the dying declaration Exh. 24, there was no endorsement that he had read over the statement of Durgabai after recording it. In para No. 13, it was observed as under:
13. The dying declaration at Exh.24, according to us, can not be relied upon as the statement was never read over to deceased Durgabai and there is no endorsement to that effect. When the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration can not be made foundation for sustaining the conviction.”
As regards abetment to commit suicide, in the matter of State of Maharashtra v. Vijay Pandurang Pawar, reported in 2005 ALL MR (Cri) 1487, which matter was under Section 498-A read with 306 of the Indian Penal Code, it was observed in para No. 6 as under:
“6. In a case where accused is charged for having committed offences punishable under Section 498-A read with Section 306 of the Indian Penal Code, the prosecution has to establish beyond reasonable doubt that the accused has, as a result of his wilful conduct brought the deceased to the brink of committing suicide and, therefore, abetted the offence under Section 306 of the I.P.C . . . . .”
In the matter of Swami Prahaladdas v. State of M.P, reported in 1995 SCC (Cri) 943, the respondent before Hon'ble Supreme Court was a married woman, who had two paramours, one was the deceased and the other was appellant before the Supreme Court. There was sexual jealousy between the two paramours. On the day of incident, the three quarreled, during the course of which, the appellant was said to have remarked for the deceased to go and die. The deceased went home in a dejected mood and committed suicide. It was observed by the Hon'ble Supreme Court with reference to the said words as under:
“These words are casual in nature which are often employed in the heat of the moment between quarrelling people. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events. Besides the deceased had plenty of time to weigh the pros and cons of the act by which he ultimately ended his life. It cannot be said that the suicide by the deceased was the direct result of the words uttered by the appellant.”
As the dying declarations are the main basis for the conviction, it would be appropriate to now refer to the evidence on that count.
8. The evidence of P.W.2 Special Executive Magistrate Ruth Salve is that, on 22.1.1995, she received report from Police Station to record dying declaration of Shabana-the victim. She claims that, she went to the Civil Hospital, Ahmednagar, where Shabana was admitted. According to her, the accused was also there in the hospital. She saw Shabana and made enquiry from her. Her evidence is that, Shabana was in a condition to talk. She stated that, she put questions to Shabana and put down answers she gave. In her evidence, she then referred to what all Shabana told her, and that she recorded the dying declaration (Exhibit 15). The witness claims that the contents of the statement were true and correct and that it had the signature of Medical Officer and her signature as well as the thumb impression of victim-Shabana.
If the original document of Exhibit 15, which is in the record of trial Court, is perused, it can be seen that, the space of front and back side of the page was almost fully utilised for recording the dying declaration and the thumb impression came at the foot on back side. On side, P.W.2 appears to have put her round rubber stamp and another stamp of her name, and signed it. Then in the little space left below thereafter, it appears that, another endorsement was made by the Executive Magistrate that the time was of the evening of 7.35, and she signed there also. Below the round rubber stamp in little space available, the doctor P.W.6 Dr. Subhash Tatkare appears to have added that the patient is in condition to give statement and that patient is conscious and put his signature, put date as 22.1.1995 and time as 19.45, and added “p.m”
Keeping in view the original of Exhibit 15 as above, if the evidence of P.W.2 Salve is examined, she did not depose that when she went to the hospital she asked the doctor to examine the patient if the patient was in a condition to speak or whether the patient was conscious and oriented. She simply deposed that she went to the hospital and that Shabana was in condition to talk. If her cross-examination is perused, she admitted that, Shabana was having severe pains due to injuries. (Shabana had 99% burns). The witness deposed that, because of the severe pains, the victim Shabana was shouting and also asking for water. She deposed that, both the ears of Shabana had also got burnt and there was problem for talking to her. Her cross-examination shows that, she completed the recording of the dying declaration at 7.45 p.m and that, it takes 7 to 8 minutes on foot to go to the room of the doctor i.e waiting room of doctor from the place where Shabana was kept. This P.W.2 Salve deposed that, the Medical Officer put his signature on the statement of Shabana at 8.05 p.m Thus, what appears from the evidence of P.W.2 Salve is that, she recorded the dying declaration (Exh. 15) with condition of victim as above and completed it at 7.45 p.m and then went to the waiting room of the doctor, which obviously was away and got endorsement of the doctor. The witness deposed that, the doctor put his signature at 8.05 p.m on Exhibit 15, however, the doctor has put the time as 19.45 i.e 7.45 p.m Looking to the manner in which the endorsement of the doctor appears to have been squeezed in the little space at the end of the page of Exhibit 15, this evidence of P.W.2 Salve creates doubt regarding the evidence of P.W.6 Dr. Subhash Titkare that he had examined injured Shabana at around 7.30 p.m on 22.1.1995 P.W.6 Dr. Titkare claimed that he examined Shabana at around 7.40 p.m and that at that time Shabana was conscious and she was in condition to speak. According to him, at that time, the Magistrate was to record the dying declaration, so he was required to examine her. The evidence of P.W.2 Salve shows that, she recorded the 2 page dying declaration and it was completed at 7.35 p.m While this doctor claims that he examined Shabana at 7.40 p.m Even if much stress was not to be laid on difference of time, the evidence of P.W.2 Salve shows that the doctor made his endorsement in his waiting room after the dying declaration was already recorded. P.W.2 Salve has not deposed that the doctor examined the patient in her presence and put his endorsement.
9. The evidence of P.W.6 Dr. Titkare in cross-examination is that, no pain killer was prescribed to the patient at 6.00 p.m In the further cross-examination, he admitted from the case papers that, pain killer Pathedine had been prescribed to the patient on that day, but he could not state who had given the prescription and what was the timing. The doctor admitted that, in case of 100% burns, the percentage of water in blood gets decreased in large quantity and the same affects circulation of blood and supply of oxygen to the brain affecting the normal functioning of brain. He admitted that, such patient with 100% burns remains in frightened condition. From the case papers, the doctor admitted that the victim Shabana was in serious condition since her admission till her death. Keeping in view such condition of the patient, and the evidence of P.W.2 Salve that the patient was shouting and asking for water and was in severe pains, and had problem to talk, it is doubtful whether the patient was really in a condition to give the statement.
There is also evidence of P.W.1 Hajarabi, the mother of the victim. This Hajarabi was residing at Karmala, District Solapur and claims that, the incident took place on Sunday and she went to the Civil Hospital on the next day and her evidence is that, the victim told her that she had set herself on fire. This evidence of this witness regarding what Shabana told is an omission considering her statement to police. P.W.1 Hajarabi admitted in the cross-examination that it was true that Shabana could not speak anything to her in the Civil Hospital.
10. If the contents of the dying declaration Exhibit 15 are perused, initially there are four questions enquiring the name of the victim and if she was married and where her parents resided or how many brothers and sisters she has. Regarding the incident, the question No. 5 was asked and what was recorded in first person (in Marathi) can be stated to be as under:
The victim claimed that she is residing in a rented room taken in Pawarwada, Sherkar Lane, Maliwada with her lover Asif Shaikh. She works in STD-PCO, Wadia Park at the place of one Mande, on STD booth as telephone operator. She is getting Rs. 500/- per month as salary. On telephone booth many people come and one boy by name Iqbal also used to come. On that day also at about 3.30 p.m he came to make phone call and at the same time, her lover Asif Shaikh also came there and he told her as to what she was talking with him and that there was some affair with him, and so, he started quarreling. After her duty was over, with her lover she went home. At home also for above reason there was quarrel. She told her lover that if he is suspecting her, she will burn herself and so saying, she poured kerosene on herself, still he did not obstruct her and so, by her own hand she burnt match stick and put fire to her Punjabi Dress, which she was wearing and on which kerosene had been poured and she burnt. At that time, her lover tried to put out her fire and in that process, his hands were also burnt and her both hands, chest, stomach, thighs, private part had got burnt and also portions of her back had also burnt. The time when she got burnt may be 5.30 p.m
In next paragraph, she stated that she was fully conscious and she had studied till 12 Standard and she understands properly. She burnt herself because her lover suspected her and he caused her to burn herself and so she burnt herself. By taking such suspicion on her, he made her embark upon to burn herself.
The statement was given while she was fully conscious.
11. If the evidence of P.W.2 Salve is perused, while referring to what she recorded, the witness made improvement by claiming that the victim had told that the accused told Shabana to set herself on fire. Another improvement made was that, the victim, at the time of narration, told the Executive Magistrate that she asked the accused Asif to give water to extinguish fire, but Asif did not give water. P.W.2 Salve claimed that, accordingly, the statement of the victim was recorded. It is quite clear that, these things are not in the statement Exhibit 15 referred above. If the victim had said these things, it will have to be held that, the dying declaration recorded by P.W.2 Salve is not a complete document and does not contain true and complete account of what the victim stated.
12. The dying declaration suffers from another grave infirmity. Exhibit 15 does not have contents to show that after the dying declaration was recorded, the same was read over to the victim and that the victim accepted the contents to be true and correct. In cross-examination, P.W.2 Salve admitted that, there is no note on the statement of victim that after recording the statement, it was read over to the victim and that the victim admitted the contents as true and correct.
13. Now, coming to the other dying declaration Exhibit 32, recorded by P.W.7 Laxman Kusalkar, the witness P.W.7 Laxman deposed that, on 22.1.1995, on coming to know about the victim, he had gone to the hospital. His evidence is that, he enquired from the Medical Officer whether the victim was in condition to speak. According to him, accordingly, the Medical Officer had put his endorsement on the statement recorded by him. He claimed that, he recorded the statement of the victim in presence of the Medical Officer. In the cross-examination, he admitted that, on the dying declaration he has not mentioned the timing of recording the dying declaration. Even the Medical Officer, who put time below dying declaration (Exh.45) did not mention timing below his endorsement in Exh. 32. The endorsement of P.W.6 Dr. Tatkare on Exhibit 32 is on the front page in the left hand margin to the effect that the patient is in condition to give statement. Doctor has signed and put date as 22.1.1995 P.W.7 A.S.I Laxman claimed that he went to the hospital exactly at 6.30 p.m and met the Medical Officer in the Clinic Room. The burns ward is at a distance of 500 ft. from the Clinic Room. He claimed that, he took endorsement of the Medical Officer in the burns ward. If the evidence of P.W.6 Dr. Tatkare is perused, he deposed firstly regarding examining the patient at 7.40 p.m as the Magistrate (i.e P.W.2) was to record her dying declaration. His evidence further is that, on the same day at about 8.30 p.m, he again examined the injured Shabana and found that Shabana was in a condition to speak and he claimed that, he made entry in the case papers and the police recorded statement of injured Shabana and he put endorsement regarding her condition on the said statement. The trial Court appears to have put up the statement to this doctor, who was examined before P.W.7, to prove the endorsement, but the same was not marked either as exhibit or any other mark given for identification of the document. According to the A.P.P, Exhibit 32 was the document which this doctor had endorsed. Considering this, the position that emerges is that, the second time Doctor examined the victim was at 8.30 p.m This is against what P.W.7 Laxman Kusalkar deposed that he had reached the hospital at 6.30 p.m To recall, P.W.2 Ruth Salve claimed that, she had recorded the statement of the victim and completed it at 7.45 p.m
All this confusion gets cleared if cross-examination of P.W.2 Salve is perused. She clearly deposed that when she was recording the statement of the victim, at the same time the police was also recording her statement. She deposed that, the Constable was present thereon, since she commenced statement of victim till it was completed. Thus, there was simultaneous recording of dying declaration Exhibit 15 and dying declaration Exhibit 32. If Exhibit 15 and Exhibit 32 are compared, there are portions which are similar and portions, which are copy. In fact, the concluding paragraph in both the dying declarations is almost a copy, containing same errors, e.g the last sentence is that, by taking suspicion the accused had made her embark upon to commit suicide. In Exhibit 15 and Exhibit 32 in both the original documents, earlier the word in Marathi used was “Paravrutta” (which means-to turn back) and in both the dying declarations that word was later on cut and “Pravrutta” (which means-engage in, enter upon or embark upon) was scribbled. It shows writing of the dying declaration in consultation, and addition of words, which is doubtful if the victim could have used.
14. Although both the dying declarations were recorded simultaneously, in evidence, while P.W.2 Salve does not mention about doctor being present there during the course of recording of dying declaration, P.W.7 Laxman claimed that doctor was present. P.W.6 Dr. Titkare although he claimed that he examined the patient, did not claim that throughout recording the dying declaration he was present there.
15. The evidence of P.W.7 Laxman also does not claim that after the dying declaration was recorded, it was read over to the victim and that the victim admitted the contents to be correct. In Exhibit 32, there is a last line added that the contents of the dying declaration were correct. However, it is not recorded in the dying declaration that it was read over and admitted by the victim to be correct.
16. Learned A.P.P, at the time of arguments, was unable to show from the dying declarations or oral evidence any material that the dying declarations were read over and admitted by the victim to be correct.
17. The cumulative effect of above discussion of evidence is that, I find the dying declarations cannot be said to be inspiring confidence.
18. Although the two dying declarations purport to have been recorded on 22.1.1995 and P.W.8 Head Constable Jawale states that he received the dying declarations, it does not appear that, he entered them in any of the records. He claims that, on 23.1.1995, he did spot panchanama Exhibit 34. Exhibit 34 does not claim that it was recorded in any particular crime or against any station diary entry. The police appears to have woken up only on 24.1.1995 when the unfortunate victim passed away. Only thereafter report Exhibit 9 purporting to be of 24.1.1995 was prepared and A.D No. 4/1995 was registered on 24.1.1995 at 22.10 Hrs. It appears that, thereafter P.W.4 P.S.I Sonawane took further steps which are required to be taken for investigation and completing all the processes at the end recorded what has been referred as F.I.R Exhibit 20. In Exh. 9 recording A.D Number, the document has overwriting in the Date of the Document. There is similar over writing of date where in F.I.R Exh. 20 it refers to the date of the report Exh. 9. Such approach of the police creates doubt regarding the investigation.
19. For a moment, even if it was to be accepted that the dying declarations Exhibit 15 and Exhibit 32 were duly recorded, the question is whether the act attributed to the accused could be said to be abetment to commit suicide. The victim and the accused were not married. If he was suspecting, she had the option to walk out of the relationship. According to the victim, she was residing with the accused as a lover. The dying declaration Exh. 32 claims that there was quarrel in the afternoon at about 3.30 p.m and then after going home, also on the count of accused suspecting that the victim was involved with one Iqbal, the quarrel continued. The dying declaration claims that, the victim told accused that if he is suspecting her, she will pour kerosene on herself (in Exh. 15 difference is that she stated that-if he is suspecting her, she will burn herself) and so saying, she poured kerosene on herself. When she poured kerosene on herself, the accused did not stop her. She claimed that, because of this, she took a match stick and put fire to Punjabi dress which she was wearing. If this is so, it does not attributed any act of goading, urging, provoking or inciting or encouraging the victim to commit suicide. May be the accused, due to the quarrel, was angry and when the victim had demonstrated that she may commit suicide, he did not react, but these facts do not indicate that he had the mens rea to instigate the victim to commit suicide. This can be appreciated from the fact that when the victim did put fire to herself, the accused tried to put out the fire and in the process, suffered burn injuries and then took her to the hospital. (This can be seen from Exhibit 32). There is evidence of P.W.3 Dr. Jayant Gadekar that he examined Shaikh Asif Ismail on 23.1.1995 who had suffered burns to the extent of 18% and had issued certificate Exhibit 17. No doubt in the cross-examination it was tried to be suggested that there could be other person by name Shaikh Asif Ismail and the accused tried to disconnect himself from the incident, but then there is evidence also of P.W.2 Salve that when she went to the hospital, the accused was also present there. The trial Court has found that the accused had tried to extinguish fire of the victim, but could not save her life. This part of the finding, I find myself in agreement with the trial Court. If the dying declarations are accepted, they will show that the accused did try to save the victim. It shows that, he did not have any mens rea for abetting suicide. There was a quarrel and victim appears to have reacted by pouring kerosene on herself and putting fire to herself. She herself stated that, due to the act of suspicion, she embarked upon the act of putting fire to herself. It cannot be said that, abetment to commit suicide has been established.
20. Keeping in view provisions of law and the rulings referred earlier, it is apparent that the dying declarations in the present matter cannot be relied on as the manner in which they were recorded, does not inspire confidence. And, even if the dying declarations are to be accepted as reliable, still the contents thereof do not spell out abetment to commit suicide as contemplated by law.
21. For reasons discussed above, I do not find that the prosecution has established the case against the appellant-accused. I have gone through the reasons recorded by the trial Court and I am unable to agree with the trial Court regarding the acceptance of the dying declarations. The trial Court did not consider that even if the dying declarations were to be accepted, whether the offence was spelt out or not. Initial inaction of the accused in the given situation cannot be construed as abetment. The subsequent conduct in the course of incident as appearing from the dying declaration absolves the accused of any mens rea that she should commit suicide.
22. For the above reasons, I pass the following order:
ORDER
(A) Criminal Appeal is allowed.
(B) Conviction and sentence imposed under Section 306 of the Indian Penal Code, 1860 by 5 Additional Sessions Judge, Ahmednagar in Sessions Case No. 80 of 1999, dated 19.5.2000 is quashed and set aside.
(C) The appellant-accused is acquitted for the offence punishable under Section 306 of the Indian Penal Code, 1860.
(D) Fine, if paid, shall be returned to the appellant-accused.
(E) Bail bonds of the appellant-accused shall stand discharged.
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