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CASE NO.: Appeal (crl.)  130 of 2006

PETITIONER: Mehiboobsab Abbasabi Nadaf

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 01/08/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

1.      Appellant herein is the husband of the deceased Hussainbi.  They  were living at a village known as Dodwad.  On 29.05.2004 at about 11.00  a.m., the appellant is said to have asked the deceased to put a shirt on their  son Inayat.  She allegedly did not do so.  Appellant is said to have assaulted  her with a broomstick.  She was also allegedly abused by her mother-in-law  and father-in-law.  When allegedly she had fallen down, the accused No. 3  (mother-in-law) brought a wick stove and poured kerosene on her body and  the accused No. 2 (father-in-law) ignited the matchstick setting her on fire.   She suffered serious burn injuries.  She was taken to the District Hospital.   She was later on shifted to KLE Hospital Belgaum where she succumbed to  her injuries on 3.06.2004.   

       All the prosecution witnesses viz., PWs 1 to 7 and 9 to 12 who were  material to prove the prosecution case turned hostile.  Even her own  parents, brothers and sister-in-law did not support the prosecution case.   Appellant and his parents, however, who stood their trial for commission of  murder of the deceased Hussainbi, were convicted for commission of the  alleged offence under Section 302/34 of the Indian Penal Code relying on or  on the basis of the dying declarations allegedly made by the deceased.  The  High Court, however, by reason of the impugned judgment while holding  that the deceased suffered a homicidal death opined that despite the clear  statement made by the deceased attributing the act of abusing her, pouring  kerosene oil on her and setting her fire by parents-in-law acquitted them,  while upholding the judgment of conviction passed by the learned Sessions  Judge against the appellants, stating:

\023\005On reading both the dying declarations, though  we find there is possibility of the accused Nos. 2  and 3 also taking part in the ghastly act, the second  dying declaration having excluded their  participation in setting her on fire, benefit of doubt  has to be given to the accused Nos. 2 and 3.  This  is also in view of the fact that Ex. P22 dying  declaration recorded by the A.S.I. shows an  attempt by the accused No. 2 to extinguish the fire  by pouring water on her.  Taking into  consideration all these factors, we find that the  prosecution has proved the guilt of the accused No.  1 to the hilt.  But as regards the accused Nos. 2 and  3, the circumstances create doubt about the  participation of those two persons and the benefit  has to be given to them.\024

2.      A short question which arises for consideration before us is as to

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whether having regard to the contradictory and/ or inconsistent stands taken  by the deceased in her dying declarations, the impugned judgment can be  sustained in law.

3.      The deceased had made four dying declarations; two before the  medical officers, one before the Executive Magistrate and one before the  police officer.  In her statements before the medical officers, she alleged  that while she had been cooking in her house in the morning at 11.00 hours  on 29.05.2005, accidentally, the stove burst and she sustained burn injuries.   In her dying declaration recorded by Parappa Gurappa Thotagi, ASI  Doddawada Police Station on 30.05.2004 at about 8.30 a.m., she alleged:

\023I have been married with Sri Mehbooba Saheb  Mamadapur 6 years ago.  I have three children.   My husband is a driver.  He was again and again  troubling me, beating me.  My mother-in-law,  father-in-law and husband were forcing me to  bring golden chain.  They have been giving  harassment to me in this manner. On 29.05.04, in the morning at about 9.30 when I  was in the house again my father-in-law, mother- in-law and husband started abusing me.  My  husband trashed me on my back.  As soon as I fell  down, they poured kerosene which was in the  stove on my body and by lightening the match box  they burnt me.  I do not know what happened  thereafter.  Now I came to know that I have come  to KLE Hospital and am availing medical  treatment here.  I came to know that my body has  been fully burnt.  As my husband, father-in-law  and mother-in-law are responsible for pouring  kerosene and burning me.  I am giving this  statement for getting appropriate punishment to my  father-in-law, mother-in-law and to my husband  and written on my telling and heard.\024

4.      Yet in another purported dying declaration made by the deceased,  which was recorded on 31.05.2004 by the Executive Magistrate, she  alleged:

\023That on 29.05.04 in the morning at about 11  o\022clock when I was in the home, my husband  Mehabooba asked to put a shirt to Inayetha.  I  refused to do so.  By saying that I have not obliged  his words, he took the broom stick lying there and  started to trashing me from its handle on my back.   By then I fell down.  My father-in-law Abbas Ali  and mother-in-law Gorima both abusing me took  the stove which was then (sic) and poured the  kerosene from it and put fire.  Because of the  burning inflation I started shouting and rushed  towards bath room.  By then my husband and  father-in-law poured water on my body as my  body was burning high, they brought me out from  my house.  The people in the lane gathered by  then.  My husband brought vehicle over there.  The  elders in our lane Rajasaheb Nadaf and Hubballi  Rajesab and my husband brought me to Dharavada  Government Hospital for treatment\005\024

5.      We have been taken through the evidence of PW13 Dr. Balappa  Basappa Oni, PW14 Dr. Rajashekara Chennabasappa Angadi and PW16  Parappa Gurappa Thotagi before whom the aforementioned purported dying  declarations were made.  From a bare perusal of their depositions in regard

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to recording dying declarations of the deceased, it is evident that whereas in  one, she attributed the incident to have taken place accidentally, in another,  attributed the act of abusing and setting her on fire on her parents-in-law  and only in one of the dying declarations she attributed the act of pouring  kerosene and lighting the same leading to her death on all the accused.

6.      Conviction can indisputably be based on a dying declaration.  But,  before it can be acted upon, the same must be held to have been rendered  voluntarily and truthfully.  Consistency in the dying declaration is the  relevant factor for placing full reliance thereupon.  In this case, the deceased  herself had taken contradictory and inconsistent stand in different dying  declarations.  They, therefore, should not be accepted on their face value.   Caution, in this behalf, is required to be applied.

7.      Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the  State, however, submitted that the entire act of abusing, beating and setting  the deceased on fire constitutes one transaction.  Assuming the same to be  so, keeping in view the fact that in two of the dying declarations, the  deceased attributed the acts primarily on her parents-in-law and they having  been acquitted, it is difficult to hold that the appellant alone was responsible  for causing her death.

8.      In Mohammed Arshad v. State of Maharashtra & Ors. [2006 (12)  SCALE 370], this Court opined as under:

\023So far as the appeal preferred by Mohammed  Ashraf is concerned, we are of the opinion that he  is entitled to benefit of doubt.  He was not named  in the first two dying declarations.  He was named  only in the 3rd dying declaration.  No injury by  stick was found on the back of the deceased.  The  motive ascribed as against him did not find place  in the First Information Report.  Evidently, the  deceased made improvement in his 3rd dying  declaration before the Police Officer.

Keeping in view the backdrop of events, we fail to  see any reason as to why appellant Mohammed  Arshad would not have been named in the 1st or 2nd  dying declarations if the motive for his  involvement was non-payment of a sum of  Rs.60,000/-  as was disclosed by the deceased.   

This Court in Balbir Singh & Anr. vs. State of  Punjab [2006 (9) SCALE 537] relying upon  several decisions of this Court including State of  Maharashtra vs. Sanjay s/o Digambarrao Rajhans  [(2004) 13 SCC 314] and Muthu Kutty & Anr. vs.  State by Inspector of Police, T.N. [(2005) 9 SCC  113] held :

\023We are of the opinion that whereas the findings of  the learned Sessions Judge as also the High Court  in regard to guilt of Appellant No.1 must be  accepted, keeping in view the inconsistencies  between the two dying declarations, benefit of  doubt should be given to Appellant No.2.  We,  however, uphold the conviction and sentence of  both the Appellants under Section 498-A IPC.\024       9.      We are not oblivious that in Maniben W/O Danabhai Tulshibai  Maheria v. State of Gujarat [2007 (7) SCALE 93], this Court relied upon  the dying declarations but consistent statements had been made by the  deceased therein.

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10.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.  Appellant,  who is in custody, shall be released forthwith, if not required in connection  with any other case.