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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.