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Judgment
P.N.Deshmukh, J
This appeal is preferred by the State of Maharashtra against the Judgment in Sessions Trial No.1 of 2010 passed by learned AdÂhoc District
JudgeÂ1, Nagpur, by which respondent nos. 1 to 4, who are husband, inÂlaws and sisterÂinÂlaw respectively of deceased Meera, came to be
acquitted of the offences punishable under Sections 302 and 498ÂA r/w. 34 of the Indian Penal Code.
The respondents were charged on the count that, on 20.9.2009, at around 3.00 a.m. in the midnight, at their house, in furtherance of their common
intention, the respondents committed murder of Meera, intentionally causing her death by forcibly administering her insecticide. The respondents were
also charged for having provided mental and physical cruelty to the deceased after her marriage with respondent no.1.
In brief, the case of prosecution can be stated as under :
Deceased was married to respondent no.1 on 23.4.2009. She was beaten by respondent no.1 in presence of PWÂ2 Manjula Gaidhane â€" her mother,
when she visited her daughter. However, due to such incident of beating, she left her house. Deceased, in that night, attended some program which
was arranged in the village on the eve of Durga festival and after returning from the program, was sleeping at home when, at around 3 a.m. in the
midnight, her husband woke her up and her inÂlaws and sisterÂinÂlaw beat her with kick and fist blows and in the course of same transaction,
respondent no.1 directed his parents to bring the insecticide which was available in their house, who brought the same; upon which, the inÂlaws of
deceased â€" respondent nos. 2 and 3, caught hold of her hands while respondent no.1 â€" her husband, forcibly administered her insecticide.Â
Deceased, however, managed to rescue herself from their clutches and was proceeding to Police Station; however, fell down and thereafter, she
found herself to be admitted in the hospital.
It further appears to be the case of prosecution that, in the night intervening 20.9.2009 and 21.9.2009, PWÂ4 Pradeep Fulzele  Head Constable
was attached to Veltur Police Station when, at 5.00 a.m., he noticed Meera lying under the tree near the Police Station having froth oozing from her
mouth and was not in a position to speak anything. Said Police Officer, therefore, with the assistance of LPC Harsha, he took her to local hospital;
however, could not record her statement as she was unable to speak. Thereafter, the deceased was referred to hospital at Bhandara, of which
information was received by PWÂ6 Suresh Madavi, PSI Â the Investigating Officer, who, visited Bhandara hospital at 11.00 a.m. and on issuing
requisition memo to PWÂ3 Dr. Manisha Rangari, recorded her statement, wherein the deceased is alleged to have stated that, in the night on
20.9.2009 between 3.00 to 4.00 a.m., the respondent no.1 initially by scratching her head and hitting it against the wall caused injuries on her chest,
and thereafter, all of them forcibly administered her insecticide, when she resisted and ran outside the house from the back door and was proceeding
towards Police Station when she fell down and was brought to hospital. PWÂ6 Suresh Madavi has proved her statement on record (Exh.45). On the
basis of dying declaration, offence came to be registered vide Crime No.48 of 2009, initially for the offences punishable under Sections 307, 328,
498ÂA r/w. 34 of the Indian Penal Code and was investigated by him, during the course of which he effected arrest of accused, visited the spot, drew
Spot panchanama (Exh.No.14), recorded statements of witnesses. Meera died on 21.09.2009 while under medical treatment and therefore, offence
punishable under Section 302 of the Indian Penal Code is added in the present crime. On drawing Inquest Panchanama, her body was sent for Post
Mortem, which was performed on 22.9.2009 by PWÂ5 Dr.Varsha Sambre and issued Post Mortem Report (Exh.43). For want of Viscera Report,
said Medical Officer reserved its opinion as to cause of death. On completion of investigation, charge sheet is filed in the Court of Judicial Magistrate,
First Class, Kuhi, District Nagpur. During the course of hearing, learned Additional Public Prosecutor has placed on record Viscera Report which is
taken on record and marked as 'X' for identification.
In the course of time, case came to be committed for trial before the learned Sessions Court. Charges were framed against the respondents vide
Exh.6, to which they pleaded not guilty and claimed to be tried. Defence of respondents is of total denial and of false implication. However, the
respondents did not examine any witness in support of their case.
To establish charge levelled against the respondents, prosecution in all has examined six witnesses and had commenced its evidence by examining
PWÂ1 Dadaram Gaidhane â€" father of deceased, PWÂ2 Manjula Gaidhane â€" mother of deceased, PWÂ3 Dr.Manisha Rangari â€" Medical
Officer who had examined deceased before and after recording of her dying declaration and had proved her endorsement Exh.35 on requisition and
Exh.36 on dying declaration (Exh.45). PWÂ4 Pradeep Fulzele â€" Head Constable who had lifted the deceased from the spot and got her admitted in
the hospital; PWÂ5 Dr.Varsha Sambare who had performed Post Mortem and had issued Post Mortem Report (Exh.43) and concluded evidence
on examining PWÂ6 PSI Suresh Madavi â€" Investigating Officer who has recorded dying declaration (Exh.45).
Learned Trial Judge, on considering the evidence, acquitted all the respondents. Hence, this appeal.
Heard Mr.A.D.Sonak, learned Additional Public Prosecutor for the State who had contended that, from the evidence of parents of deceased, it is
established by prosecution that deceased was subjected to physical as well as mental cruelty by respondents and as a result of such cruelty, in the
night intervening 20.9.2009 and 21.9.2009, the respondents forcibly administered her poison, causing her death and has, therefore, contended that, on
the basis of oral dying declaration to them and dying declaration (Exh.45) recorded by Investigating Officer, involvement of respondents is clearly
established. However, they came to be acquitted by the trial Court. It is also contended that contents of dying declaration (Exh.45) are fully
corroborated with the evidence of PWÂ2 Manjula â€" mother of deceased, who, on the earlier day of incident, was in the house of deceased where
there was quarrel between the respondent and the deceased and as such, learned Additional Public Prosecutor had prayed that the appeal be allowed
by setting aside the Judgment of acquittal and the respondents be convicted for the offences charged against them.
Mr.A.C.Jaltare, learned Counsel for respondents, on the other hand, submitted that the case of prosecution based on oral dying declaration alleged
to be made to PWÂ1 Dadaram Gaidhane â€" father of deceased and to PWÂ2 Manjula along with dying declaration (Exh.45) recorded by PWÂ6
Suresh Madavi  Investigating Officer is not at all convincing as, from the evidence of PWÂ4 Head Constable Pradeep, it has come on record that,
after the incident, the deceased was not in a position to speak and as such, evidence of PWÂ1 Dadaram and Manjula on the point of oral dying
declaration is not at all convincing. It is also contended that, for the very same reason even the dying declaration (Exh.45) alleged to be recorded by
Investigating Officer is also not worthy to be relied upon as there is nothing to establish that, prior to recording of Exh.45, deceased was mentally and
physically fit to make her statement. For that purpose, learned Counsel for the respondents, by referring to the evidence of PWÂ3 Dr.Manisha,
submitted that her evidence is too short to establish the said fact. In fact, it is also submitted that Dr.Manisha is not the same Medical Officer to
whom requisition for examination of deceased was given by the Investigating Officer. It is, therefore, submitted that there is no substance in the case
of prosecution based on dying declaration and the appeal is thus prayed to be dismissed.
In the background of submissions advanced as aforesaid, we have first considered the case of prosecution to satisfy if evidence of PWÂ1
Dadaram is sufficient to hold that the deceased made any oral statement in his presence as to cause of her death. In that view of the matter, evidence
of PWÂ1 Dadaram Gaidhane would reveal that, on 21.9.2009, after receiving phone call informing him about admission of deceased in the hospital at
Bhandara, he visited the hospital along with other relatives and found Meera to be conscious and claims the deceased to have stated to him that
respondent no.2 her fatherÂinÂlaw was standing at the door while respondent no.3 â€" her motherÂinÂlaw and respondent no.4 â€" her sisterÂinÂ‐
law were holding her hands and respondent no.1 husband forcibly administered poison to her and thereafter, electricity supply was disconnected.
Taking advantage of such situation, she ran out of house and was proceeding to Police Station; however, she fell down.
From the evidence of PWÂ1 Dadaram Gaidhane â€" father of deceased, therefore, it has come on record that, in the morning on 21.9.2009, he
along with other family members visited the hospital. He has deposed that he along with “ all †went to hospital. However, except PWÂ1
Dadaram  father of deceased and PWÂ2 Manjula mother of deceased, there is no other independent witness examined by prosecution. However,
without giving much importance to this aspect and though from the evidence of PWÂ2 Manjula/mother of deceased, evidence of PWÂ1 Dadaram
appears to be corroborated on the aspect of oral dying declaration as she too had deposed that when she had visited the hospital with PWÂ1
Dadaram, deceased Meera informed that her fatherÂinÂlaw was standing at the door while her motherÂinÂlaw and sisterÂinÂlaw caught hold of
her hands and her husband forcibly administered her poison, it is material to note that, according to their evidence, they reached in the hospital in the
morning after receiving phone call at 9.00 a.m. informing about admission of their daughter in the hospital at Bhandara. Evidence of PWÂ4 Pradeep
 Head Constable, who has shifted deceased from the spot where she was lying near Police Station to the hospital at Bhandara, is very specific that,
while he was with the deceased for shifting her to the hospital, she was unable to speak and as such, he could not record her statement. Nothing is
brought on record by prosecution to establish that, after admission to hospital at Bhandara, deceased Meera was in a position to speak when herÂ
parents met her in the hospital. As such, evidence of PWÂ1 Dadaram and PWÂ2 Manjula  parents of deceased on oral dying declaration
alleged to have made to them by their daughter Meera, is not reliable piece of evidence. Even otherwise, by now law on oral dying declaration is
well established, that such type of evidence is weak in character and not to be acted upon unless there is ample other corroborative evidence on
record.
Moreover, evidence of PWÂ1 Dadaram and PWÂ2 Manjula on the oral dying declaration as aforesaid also needs to be kept out of consideration
as, from the evidence of these two witnesses, it has come on record that when they were in the hospital at Bhandara, police had come there in their
presence; in spite of that, they did not find it necessary to disclose information given by deceased to them. In fact, father of deceased admits that, for
the whole day he did not make any complaint to police. Similar is the evidence of PWÂ2 Manjula  mother of deceased who, in fact, admits that
police were visiting them for three days after the incident continuously. However, she did not disclose any fact to police for three days. In view of
evidence of these witnesses as aforesaid, case of prosecution of deceased making oral statement to them does not appear to be truthful as, if there
would have been any such statement made to them, there was no reason for parents of deceased to not to disclose this important fact to police, to
whom they met in the hospital itself.
So far as involvement of respondents in the present crime is concerned, prosecution has further relied upon dying declaration (Exh.45) recorded by
PWÂ6 Suresh Madavi, Investigating Officer. His evidence would reveal that, on his reaching to hospital at Bhandara on 21.9.2009, at 11.00 a.m., he
issued requisition letter to doctor (Exh.35); upon which, the doctor made endorsement and thereafter, he recorded statement when the deceased is
said to have stated that the respondents were providing her mental and physical harassment and was being tortured suspecting her character. She
has further said to have stated that, on 20.9.2009, it was Sunday, her mother and brother had come, at that time her husband beat her. In the night
at 3.00 to 4.00 a.m., when there was no electricity, her husband got up from sleep. She also got up from sleep. At that time, her husband said to her
“tuzya bapachi aukat dakhwat hotis, aata dakhavâ€. Her husband then opened the door when parentsÂinÂlaw and sisterÂinÂlaw of deceased
came from the adjoining shed (chapari). Her husband hit her head on the wall and caused scratches on her hand and chest. Thereafter, her husband
asked her inÂlaws to bring insecticide. However, he himself brought it and administered it to her. She resisted it and went away from the backside
door and concealed herself in the neighbourhood. Thereafter, on being satisfied about her inÂlaws being slept, she went towards Police Station;
however, fell down.
PWÂ6 PSI Suresh Madavi â€" Investigating Officer has proved said statement of deceased at Exh.45. Before considering evidence of PWÂ6
PSI Suresh Madavi about his issuing requisition to Medical Officer, who is said to have examined the patient and declared her to be fit to make
statement, we find it necessary to mention that material contents of statements are contrary to oral version alleged to have been stated by deceased to
her parents as, according to oral dying declaration, respondent no.1 directed respondent nos.2 and 3 to bring insecticide which they brought; while,
according to Exh.45, it is respondent no.1 himself who has brought the same, though he has initially asked respondent nos. 2 and 3 to bring the
insecticide. Secondly, according to oral dying declaration, respondent nos. 2 and 3 caught hold hands of deceased and respondent no.1 administered
insecticide; while in Exh.45, no overt act is attributed to respondent nos. 2 and 3 as aforesaid and it is stated that, after respondent no.1 brought the
insecticide, he himself administered it to deceased. These are material contradictions in both these statements. Apart from this, according to oral
dying declaration, there was no electricity and as such, there was quarrel between deceased and her husband; while, as per Exh.45, there was no
electricity supply, therefore, she got up. The abuses alleged to have been given by respondent no.1 as stated in Exh.45 are missing in the oral dying
declaration. Similarly, reference of respondent no.1 opening door and thereafter, respondent nos. 2 and 3 and 4 coming in the room from the shed
are also missing in oral dying declaration. In view of contents of oral dying declaration and Exh.45 as aforesaid, therefore, such piece of evidence led
by prosecution is not at all convincing. More particularly, when from the above discussed evidence, it has also come on record that the deceased
was not in a position to speak.
In the background of above facts, from the evidence of PWÂ3 Dr. Manisha Rangari, it has come on record that on 21.9.2009 when she was on
duty at General hospital, Bhandara as Medical Officer, she received requisition memo from Investigating Officer to examine patient Meera Thote and
accordingly, she, on examining the patient, gave her endorsement Exh.35 on the requisition memo, certifying her to be in a position to make statement
and stated that thereafter on recording her statement, she again gave her endorsement (Exh.36) on Exh.45. As per evidence of this witness, she was
not continuously with the patient, but was in the ward when her statement was recorded.
Perusal of endorsements on Exh. Nos. 35 and 36 reveals that they bear signatures of Medical Officer namely Dr.Manisha Rangari. As such, it
is specific case of prosecution that, before recording the dying declaration, physical condition of patient was examined and endorsements to that effect
were given by Dr.Manisha Rangari, Medical Officer, who is examined as PWÂ3. However, it is doubtful to say whether PWÂ3 Dr.Manisha who
is examined on this aspect is the same Medical Officer, as she has admitted that her name is “Manjusha†and not “Manisha†and she has
further admitted that she is never called as “Manisha†and that she was never incharge of ward where deceased was admitted. She has
further admitted that she has nothing to establish that, at the material time, she was on duty in the ward where deceased was admitted. In view of
specific evidence of PWÂ3 Dr.Manisha, admitting that her name is “Manjusha†and as prosecution appears to have not taken any steps to clarify
this fact by leading further evidence on record that “Manjusha†and “Manisha†are one and the same Medical Officer, it is difficult to say
that PWÂ3 Manisha is the same Medical Officer who has examined the patient. From her endorsements on Exh. Nos. 35 and 36, what is found is
that the patient is examined by Dr.Manisha and prosecution had proved these endorsements from PWÂ3 Dr.Manisha by examining her. However,
in the crossÂexamination, she admits that she is “Manjusha†and not “Manisha†and was not incharge of ward where statement of deceased
is recorded. PWÂ3 Manisha has also not produced anything on record to establish that she was on duty in that ward when statement of deceased was
recorded. In that view of the matter, case of prosecution fails on this count also to establish that, before recording dying declaration, deceased was
medically examined to satisfy that she was in a position to make her statement, which fact assumes importance in view of evidence of PWÂ4
Pradeep â€" Head Constable, who has deposed that deceased was unable to speak till he got her admitted in the hospital at Bhandara. In that view of
the matter, we do not find it safe to rely upon oral dying declaration nor on her statement (Exh.45).
Moreover, from the evidence of PWÂ5 Dr.Varsha Sambre, on carrying Post Mortem, opinion of cause of death was reserved for want of
viscera. During the course of argument, prosecution had tendered at bar Viscera Report, dt.21.12.2009 certifying that, on performing tests of viscera
consisting of small intestine with its contents and of lungs, liver, kidney, spleen, heart of deceased Meera, it did not reveal any poison in the viscera.
This document is another fatal blow to the case of prosecution as, from this report, case of prosecution of respondents forcibly administering poisonous
substance/insecticide is further doubted.
Law on dying declaration is by now well established. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and
not being a statement on oath so that its truth could be tested by crossÂexamination, the courts have to apply the strictest scrutiny and the closest
circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person
on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the court has to be on guard against the
statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased
was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his/her assailants and that he was
making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be
sufficient to found the conviction even without any further corroboration.
The law on the subject has been clearly considered by the Apex Court in the case of Khushal Rao .vs. State of Bombay reported in AIR 1958 SC
22 where the Court observed thus :
“On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we
have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as
an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be
determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing
as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the
weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form
of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order
to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for
example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had
not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if
he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest
opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the
statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by crossÂexamination.
In the appeal in hand, we are not at all satisfied to rely upon the dying declaration for the reason that its contents are contrary to alleged oral dying
declaration on material aspects which even otherwise do not have other corroborative evidence on record and on the count that there is nothing to hold
that, at the time of making statement, the deceased was in a position to make the same. Hence, we find that Exh.45 fails to pass the test of reliability.
We are conscious of the fact that conviction can be recorded on the basis of dying declaration alone, but the same must be wholly reliable. In the
appeal in hand, we find that Exh.45 is suspicious and therefore, its correctness is doubtful. The evidence which is brought on record to rely upon
dying declaration (Exh.45) suggests that the dying declaration does not reveal the entire truth and as such, we are of the considered view that, in no
circumstances, conviction can be rested on such type of evidence. In the result, we find no substance in the appeal.
Even otherwise, scope of appeal against acquittal is very limited. Hon'ble Apex Court in the case of Chandrappa and Others .vs. State of
Karnataka reported in (2007) 4 Supreme Court Cases 415 has laid down five general principles regarding power of Appellate Court while dealing with
the appeal against order of acquittal of which principles at Serial Nos. 4 and 5 are reproduced as below :
4.An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence
is further reinforced, reaffirmed and strengthened by the trial court.
5.If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.
In view of above discussed evidence and law, thus, we find that the view taken by the learned trial Court is a possible view to be taken. It cannot
be said to be perverse. In the result, the appeal fails. The same is, therefore, dismissed.
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