Sharad Manohar, J.
1. The appellant before us is an old man, 68 years of age, who has been convicted for offence under section 302 of the Indian Penal Code and has been sentenced to imprisonment for life by the learned Additional Sessions Judge, Pune.
2. As will be presently pointed out, the evidence led by the prosecution cannot sustain the order of conviction passed by the learned Judge and all the same for a period of nearly 3 years this old man has been languishing in jail. We cannot help feeling deepest regrets for the accused on this account.
3. The prosecution case, which is based mainly on one of the several documents posing as dying declarations, is as follows :---
The accused was 65 years of age on the date of the trial. His only married son Ankush and daughter-in-law, who is deceased in the instant case, lived in the village Kondhave which is at a distance of about 9 miles from the city of Pune. The accused works as a labourer. On the day of the incident, that is to say, on 24-7-1980, he was working as a workman with one Baburao Tatyaba Maharnu who himself was working with one Vithal Markute, as a painter. On that day the accused returned from work at about 3.30 p.m. His residence cannot but be humdrum. It consists of just two rooms. The prosecution is no sure of the position whether in addition to these two rooms there exists a padvi, meaning thereby a small verandah in front of the house. As will be presently seen, the prosecution has been lax in the matter of leading of evidence relating to a number of important links in this case and the evidence is lax also about the existence of the padvi as also as regards the question whether the padvi is in addition to the two rooms or is included in the two rooms. The prosecution is not sure even about the very existence of the padvi.
On 24th July, 1980, the accused returned home at about 3.30 p.m as mentioned above. He found his daughter-in-law, deceased Nanda, sleeping in the outer room. He woke her up and directed her to sleep in the inner room which she did. There was some exchange of words between the father-in-law and the daughter-in-law. The prosecution is not sure as to on what point the altercation took place. In fact, the prosecution case is inconsistent on this point regarding the cause and the nature of the altercation. But one thing cannot be doubted; it is that the alleged altercation was not a very serious altercation at all and in fact, according to the prosecution, after the altercation, the deceased, in fact, slept in the inner room. As she slept, contends the prosecution, the accused took up a tin of kerosene, poured it on the sari of the deceased at various places, set fire to the same with a matchstick and thereafter fled away. But while going out of the room, he closed the door and latched it from outside. The prosecution case further is that Ankush, the husband of the deceased was in fact present in the house itself at that time. Hearing the shout, one girl from outside by name Sakhu opened the door and rushed inside and started extinguishing the fire. The husband of the victim girl also rushed and extinguished the fire. The girl was severely burnt. The husband, Ankush, thereafter called a rickshaw used as tempo, put Nanda inside the tempo and rushed towards the K.E.M. Hospital, Pune. On the way, near Karve Road, he stopped the tempo. Grandmother of Nanda, on Parvati, and father of Nanda, one Dasarath were staying there. Ankush rushed into their house. Parvati, grand-mother (mother's mother) of Nanda, was present. She was informed by Ankush about the fact that Nanda had got burns by virtue of a fire. The old woman, Parvati, rushed into the tempo and three of them Ankush, nanda and Parvati went to the K.E.M Hospital. The unfortunate victim, however, was not admitted in the hospital for some reason or the other and hence she had to be carried to the Sassoon Hospital at Pune. The doctor-in-charge of Ward for victims of accident by fire, at that time, was Dr. Panse (P.W. 6). He questioned the unfortunate girl with a view to be apprised of the case history. The girl told him that the fire had set in by virtue of accidental bursting of the kitchen stove. The doctor wrote down that statement in the history sheet. Necessary treatment was thereafter given to her. The prosecution case further is that while the girl was being carried by her husband, Ankush accompanied by her grandmother Parvati, P.W. 4, Paravati enquired from the girl the cause of the fire and of the burns and at that time the girl told her that it was the accused who had poured kerosene oil on her sari while she was asleep and had set it ablaze. This is the first dying declaration which is being strongly relied upon the prosecution.
4. The prosecution claims to have secured a spate of other dying declarations made by the deceased. The second so-called dying declaration is the one which is already referred to above, viz. the one made before Doctor Panse at about 6.30 P.M. on the very day. The next statement treated as dying declaration is the statement made by the deceased before the Head Constable, Nivrutti Tukaram Jadhav, P.W. 8 which is produced at Exhibit 19. About the said dying declaration evidence is also given by P.W. 9 Sulochana, who has attested the said dying declaration taken down by Head Constable Jadhav. In the dying declaration recorded by P.W. 8, Nivrutti, and deposed to by P.W. 9 Sulochana, the deceased had inculpated the accused for having poured kerosene oil on her sari while she was asleep and for having set fire to the same.
5. The next dying declaration relied upon by the prosecution is the one made before the Special Executive Magistrate, Suresh Dattatraya Nasikkar, P.W. 10. This is recorded at about 1.00 A.M. In the said dying declaration, it is stated by the deceased that while she was sleeping, the accused poured kerosene oil on her sari. We will have occasion to examine all these dying declarations.
The prosecution, however, did not examine the girl Sakhu who is alleged to have opened the door, which was allegedly latched by the accused from outside after he set on fire the sari of the deceased. The prosecution did not examine even Ankush, the husband of the accused. Thus the result has been that the most important link in the prosecution evidence remains un-established by the prosecution. We will have occasion to refer to this lacuna in the prosecution evidence.
It was on the basis of the evidence led by the prosecution resting exclusively upon the said dying declarations of the deceased and upon no other circumstances that the learned Additional Sessions Judge thought it fit to convict the accused under section 302 of the Indian Penal Code and to sentence him to imprisonment for life.
6. When the appeal reached hearing before us, neither of the learned Advocates, who have filed Vakalatnama on behalf of the accused found it possible to appear before us. However, we have ourselves gone through the entire evidence and the judgment of the learned Additional Sessions Judge and we are satisfied that the conviction of the accused cannot be sustained on the basis of the evidence before the Court.
7. As stated above, no eye witness could be examined by the prosecution, nor is there any circumstantial evidence available for the prosecution to connect the accused with the incident. The only evidence that we have before us consists of the three or four dying declarations alleged to have been made by the deceased before her death to the various persons. But the most significant position about the dying declarations which can be said to be of some relevance is that until Dashrath, the father of the deceased, met the deceased in the Sassoon Hospital after around 6.30 p.m. that is to say after Dr. Panse recorded the case history, there is no statement made by the injured girl inculpating the accused. To be more precise, there is no reliable evidence about such statement by her. No doubt, Parvati, P.W. 4, states that while she was with the injured girl in the tempo, she questioned the girl about the cause of the burns. The witness has stated in the Court that the girl informed her that it was the accused who was the culprit in that behalf. But the extremely significant and alarming nature of the evidence of this witness, Parvati, P.W. 4, is to be found in the admissions given by the witness in her cross-examination. In her cross-examination she has admitted that after the police came in the hospital they asked this witness as to whether she could give any information about the identification of the offender and that she informed the police that she had absolutely no knowledge about the identity of the offender or about the incident. She further admitted that for a full period of 3 days she did not even whisper a word to anybody else about the part allegedly played by the accused in this incident. She did not even tell anything in this connection to the doctor or to the witnesses present there. This is what the witness has stated in her cross-examination.
'The police had asked as to whether I knew something about the incident. I told them that I did not know anything about it. I do not know if Ankush gave a statement to the police, I did not speak or tell anything to Nanda's father. I did not speak anything to Nanda's mother too. I did not tell anything to the doctors and Nurse present there around. The Policemen came again after 10 p.m. I did not speak anything to Police at this time also. Her parents were present in the hospital then. They recorded the statement of Nanda around 10.00 p.m. All of us were removed out except myself when the Police recorded her statement. I did not speak anything to Police at that time. On the next day of death of Nanda, my statement was recorded by the Police and till then, I had not stated to anyone all that was conveyed to me by Nanda'.
8. Evidence of this nature assumes even greater significance when we see that immediately after this alleged statement was made by the deceased before Paravati, P.W. 4, the deceased made a significant statement before Dr. Panse. Dr. Panse states in his evidence that when he went for the purpose of writing the case history he asked the relevant question to the injured girl and that the girl told him that she got the burns because of the explosion of the kitchen stove. In other words, her first statement, which is the satisfactorily proved dying declaration on the deceased, is to the effect that she got the burns by virtue of the accident and not by virtue of any design or deliberate act on the part of anyone, far less of the accused. In the said dying declaration she also mentioned that her husband was present in the next adjoining room. We may incidentally mention that the fact about her husband's presence at the time of the incident, whether it can be called an accident or offence, has been deposed to practically by all the relevant witnesses. This fact has got an important bearing upon this question. To our mind, in view of this fact, it was necessary for the prosecution to examine the husband of the deceased Ankush and the failure on the part of the prosecution in this behalf must give rise at least to an adverse inference against the prosecution.
9. The next dying declaration relied upon by the prosecution is the one recorded by the Head Constable, Nivrutti Tukaram Jadhav, P.W. 8. The witness has stated that after he got information about this incident he reached the hospital at about 10.30 p.m. He further states as follows :---
'I made inquiries from her in the presence of Dr. Panse and 3 panch witnesses including one woman and I recorded the version of the patient as per Exhibit 19'.
He further states as follows :---
'I obtained the signature of the doctor who was present there'.
The dying declaration recorded by him is produced at Exhibit 19. The statements contained in the dying declaration make interesting reading. This is what the girl is alleged to have stated while making the dying declaration :---
'There are two rooms where I reside. Today at about 2.15 p.m. while I was sleeping in the outer room my father-in-law, Shri Antu Mahadeo Dhavade was in the house. My father-in-law woke me at about 3.30 p.m. and called me in the house and asked me up to sleep. I slept in the inner room as per direction of my father-in-law. Immediately, my father-in-law came near me and poured kerosene oil on my person and ignited my clothes by matchstick and he went out by latching the room from outside. As I spoke adversely to my father-in-law and for the said reason he poured kerosene oil on my person and set me on fire'.
Immediately thereafter she has stated as follows :---
'Whole Sari on my person was burnt. I shouted loudly at that time. Hearing my shouts my husband came in the room. The latch of the room was opened by one girl. My husband saw the burning clothes and the body. He extinguished the fire by his hand. I received burns on stomach above the umbilicus, both hands, chin, both legs, and thighs and back. The skin on the hands, thighs and chest were disappeared due to burns. My husband saw this incident and brought me to Sassoon Hospital and admitted in Ward No. 27 for treatment. The treatment is still going on. My MIC. No. is 11990. Yesterday, that is on 23-7-1980 myself and my husband had been to Vithalwadi for darshan. When I returned home he threatened me that I should behave in good manner else he will pull me in the Dam water'.
It will be thus seen that as per her dying declaration recorded by the Police the residence of the accused and the victim consists of just two rooms, and that the accused was present in the house at 2.15 p.m. Further it is clear that when the incident had taken place her husband was very much there in the house and he in fact rushed to extinguish fire. The girl has also made allegations against her husband about threat given by him to her to drown her in the Dam water. It is in this statement that the reference is made to the girl who opened the latch of the door from outside. It is impossible to understand as to what was the purpose of latching door from outside when the husband of the girl was already there in the house. Further the fact that some girl opened the latch is to be gathered only from the dying declaration. No attempt is made by the prosecution to examine the girl in question. No explanation is given as to why she has not been examined.
It will be thus seen that after her father, Dasarath met her in the hospital, the version given by her was completely changed. She is not sure as to what reason should be ascribed as a motive for the accused to set her on fire. Prima facie, it appears that she spoke adversely to her father-in-law and that was the reason why he poured kerosene upon her sari and set it on fire. But she makes allegations also against her husband as regards something in the nature of threat of her murder by him on the earlier day.
10. The prosecution has also examined Sulochana, P.W. 9, who gave evidence relating to the dying declaration made by the deceased before the police. The witness has not stated anything other than what has been stated by the Head Constable, Jadhav, P.W. 8. Her evidence also does not disclose as to what was the reason for the accused to pour kerosene upon the person of the victim and to set her ablaze. The evidence of this witness does not take the case of the prosecution any further.
11. The most important dying declaration relied upon by the prosecution further is the last one, recorded by the Special Executive Magistrate, Suresh Dattatraya Nasikkar, P.W. 10. The witness admitted that it was for the first time in his life that he recorded anybody's dying declaration. The witness further admits that he did not find it necessary even to consult the doctor as to whether the victim was in a fit condition to make the statement. He has also further mentioned that one of the relatives of the victim was present in the ward while he was recording the statement. He has not recorded the statement in question and answer form nor does he remember as to what questions he had put to the victim. The dying declaration recorded by him is produced at Exhibit 22. It is a very short statement. In that statement the victim Nanda stated that out of the two rooms, she was sleeping in the outer room, that at 2.00 p.m. her father-in-law the accused was in the house, that at 3.30 p.m. he woke her up and called her inside the house to sleep there and that when she slept there the accused poured kerosene oil on her person and set her on fire. The statements do not mention the fact or reason why the accused has done so. From the statement, it is clear that right from the beginning the victim was sleeping inside the room. No motive against the accused to cause the death of the victim-girl can be gathered from the said statement.
12. This is all that the prosecution want to rely upon as evidence against the accused. We may state here at this stage itself that if the prosecution story is that the accused had some motive against the victim, the evidence led by the prosecution does not support them at all. As a matter of fact, the circumstances in which the incident is alleged to have taken place are such that it is extremely difficult to understand any logic behind it. No motive is established as such. We do not wish to suggest that in no case, in the absence of evidence of motive, the evidence of the prosecution can be believed. If direct and unquestionable evidence is there on record, proving the part played by the accused in the commission of the offence, the absence of evidence about motive to commit the offence will be, by and large, irrelevant. But when direct evidence is scant and the evidence on record is only circumstantial, the fact that no motive is capable of being established against the accused would be an important circumstance in favour of the accused.
13. Moreover, the prosecution evidence suffers from certain inherent defects and shortcomings. The prosecution case is that the accused made the girl to sleep in the inner room and that she slept there. The case is that the accused thereafter poured kerosene upon her person, set it on fire and fled out of the room. Now if the girl had already been asleep in the room, the question would arise as to how she would be in a position to see whether it was the accused who had set her on fire.
Further, as per the girl's dying declaration before the Police, it is stated that as the accused fled away and came out of the room, he closed the door and latched it from outside. The further case is that a girl by name Sakhu came from outside, hearing the shouts, opened the latch and rushed inside. The fact that the accused had latched the door should have been proved by the prosecution and it could be easily proved by examining the said girl Sakhu. Mr. Chopda, the learned Public Prosecutor appearing for the State informed us that the statement of the girl Sakhu was recorded by the police. All the same, however, the prosecution has thought it fit not to examine this girl who is alleged to have opened the latch from outside.
Further we find that the husband of the girl was admittedly in the house at that time. We do not appreciate the reason for not examining him. The contention that he would not have given evidence against his father, to our mind, is not a proper consideration to be entertained by the prosecution while leading the evidence. The function of the prosecution is to bring the truth before the Court, not merely to bag a conviction from the Court. If the witness made statements before the Court which, the prosecution suspected were false ones, appropriate orders could be obtained from the Court for subjecting the witness to cross-examination. It was open for the prosecution even to request the Court to call the witness as a Court witness. Since there is no direct evidence in this case as regards the manner in which the incident took place, the person who was actually present in the house at that time would normally be the proper person to give evidence as regards the happenings in the house. We do not say that the prosecution has adopted a partisan attitude in this case by giving protection to some other persons who might have been the real offenders, but instead of bringing before the Court the truth of the matter, attempt is made only to bring home conviction against some person or the other, the person in the instant case being the present accused.
14. There is yet another aspect of the evidence before the Court. It is true that the accused had not pleaded alibi as such; but he has denied the allegation of the part attributed to him. It was, therefore, necessary for the prosecution to establish in the first instance, the fact that the accused could be present at the place of the incident at the time of the incident. It would be, in that case open for the accused to prove alibi by proving that he was not present at the relevant time at the place of the offence. But surprisingly enough, in the present case, it is the prosecution which has taken burden upon itself, to prove that the accused was present at the place of the incident at the material time. For the purpose the prosecution has examined Baburao Tatyaba Maharnu, P.W. 3. The said witness has stated that the accused was working with him as his assistant for doing the work of house painting. The witness stated that on 24-7-1980 the accused was with him only upto 3.30 p.m. and that he did not return for work on that day as also on the next day. In cross-examination the witness admitted that the work was over by 3.30 p.m. and hence there was no question of the accused returning back to work. The fact that the accused did not report for duty on the next day can be easily explained from the fact that in the house of the accused such a serious incident had taken place and thereafter the accused was under arrest. But what is significant in the evidence of the witness is that, as per the evidence of this witness examined by the prosecution itself, till 3.30 p.m., on the date of the incident, the accused was working with the witness at the place of his work. Where the place of work was is anybody's guess and whether after getting free from work at 3.30 p.m. the accused could reach home at Kondhave immediately or not is again anybody's guess. But that apart, it is clear from this evidence that at least at 3.30 p.m. on the date of the incident the accused was with him, meaning thereby he was not in his own house. If that is the position, then the statements in the dying declaration made by the deceased girl before Head Constable, Nivrutti, P.W. 8, at Ex. 19, and before the Special Executive Magistrate, Suresh, P.W. 10, at Ex. 22, are false. Both these dying declarations State that at 2 or 2.15 p.m. the accused was in the house and it was at 3.30 p.m. the girl awakened and that thereafter the accused asked her to sleep in the next room. This fact throws considerable doubt upon the veracity or correctness of the dying declarations made by the girl before the Police Officer and Special Executive Magistrate.
15. As regards the second dying declarations made before the doctor, we must state that it is also not free from cloud of doubt. Initially the statement of the deceased before the doctor was that the incident was an accident. It is only after the girl met her father in the ward that the tenor changed and we find that thereafter, in all the dying declarations, she inculpated the present accused. The evidence of the doctor further shows that he has treated the matter very casually. In the examination-in-chief he has stated that in the statement recorded by the Sub-Divisional Magistrate at 5.00 p.m. there is an endorsement to the effect that the doctor was present at the time of recording the statement. That doctor also admitted that he had certified that she was in a position to make statement at that time. But in the cross-examination he has admitted that he was not present at the time of the statement at all. He further stated that the second statement of the patient was recorded by him after her statement was recorded by the Police and it is in this second statement before the doctor that a somersault is taken by the girl by inculpating the accused.
16. Having regard to all these circumstances, we are of the view that the evidence relied upon by the prosecution for bringing home the conviction against the accused is extremely scant and it would be risky and dangerous to base conviction of the accused on such evidence. The prosecution evidence also suffers from the fact that the important evidence which could have been brought on record has not been adduced and an adverse inference against the prosecution in such circumstances has got to be drawn.
17. For the reasons mentioned above, we are unable to sustain the order of conviction passed by the learned Additional Sessions Judge. The appeal is, therefore, allowed. The order of conviction and sentence is, therefore, set aside and the accused is directed to be released forthwith unless he is required in any other case.