STATE OF MAHARASHTRAversusSANJAY S/O DIGAMBARRAO RAJHANS

                        STA TE OF MAHARASHTRA                                      A
                                      v.
                 SANJAY S/O DIGAMBARRAO RAJHANS

                             OCTOBER 25, 2004

          [P. VENKA TARAMA REDDI AND P.P. NAOLEKAR, JJ.]                           B


       Criminal Trial-Conviction based on Dying dec/aration-1.0. recording
second dying declaration immediately after the recording by Executive
 Magistrate-Recorded without obtaining opinion from Doctors as to the              C
fitness of victim-Held, such a dying declaration is not reliable.

      Practice and Procedure-Two improbable theories-One by Prosecution
other by defence-Hence, benefit of doubt ought to be given to the accused.

     Dying declaration-More than one declaration-Held, must be tested              D
on the iouchstone of consistency and probabilities.

      Evidence Act. 1872-Evidence ofparents ofdeceased-Victim sustained
serious burns-Statements-Held, not reliable.

      PWs 2 and 3 deposing about evidence of PW4-Eye-witnesses-Not                 E
noting the number of vehicle-Many people standing-Victim shouting name
of accused-No one else having heard the name-Held, highly improbable
as it is open to doubt.

       The deceased 'V' and the Respondent-accused were engaged to be
married. Some strained relations developed between them and the respondent         F
had some reservations to marry her. On 28.9.1991 at about 7.30 p.m. the
accused and V were on the way to V's house and while they were in the locality,
the Respondent slowed down the scooter and by taking out the petrol can kept
in the §Cooter, sprinkled the petrol on the person of V and set her on fire, all
of a sudden on the moving scooter. On noticing the flames on the body of V         G
and hearing her cries, some people gathered and tried to put out the fire.
PW4 was one amongst them. He overheard V shouting. The accused also had
some burn injuries when he tried to extinguish the fire. The accused took V
to the Government Medical College Hospital. PW8-the Casualty duty Doctor,

                                      619                                          H
    620                     SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A recorded a medico legal case and noted what she said, in the register. He also
    noted that the patient was brought by the accused.

           PW7 recorded 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
B   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.

          The accused, whose hands and plams were burnt to the extenf of 3%,
C was admitted in the hospital and he was discharged on the next day. He was
    arrested later.

         The trial court convicted the respondent and the High Court on appeal
    reversed it.

D         Dismissing the Appeal by State, the Court

          HELD: 1. The intrinsic worth and reliability of so called dying
    declaration can be judged from its tenor and contents thereof. That apart, the
    1.0. did not come forward with any explanation as to why he thought of
    recording the statement soon after the Executive Magistrate purportedly
E   recorded the statement, that too without taking the opinion of the Doctor as
    to her fitness. The Court has no hesitation in discarding the alleged statement
    recorded by PW13 under Ext.86. The anxiety to plant the evidence is
    discernible from this document. [627-A-B; B-q

          2. The version of homicide set up by the prosecution as well as the
F   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. (630-F-G)
G
          3. 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.
H   It has been repeatedly pointed out that the dying declaration should be of such
                   STATE OF MAHARASHTRA v. SANJAYS/O DIGAMBARRAO RAJHANS           621

         nature as to inspire full confidence of the Court in its truthfulness and A
         correctness (vide the observations of Five Judge Bench in Laxman v. 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 dyillg declaration genuinely recorded,
         they must be tested on the touchstone of consistency and probabilities. They B
         must also be tested in the light of other evidence on record. Adopting such
         approach, the court cannot place implicit reliance on the dying declarations,
         especially when the High Court felt it unsafe to act on them.
                                                                (630-G-H; 631-A, B, q

                4. It is in the evidence of PW2 that they were by the bed-side of their
                                                                                           c
         daughter at 9.30 or 9.45 p.m. The evidence of the first 1.0. PW6 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-the next 1.0. made an.
         attempt to have the statement recorded by the Executive Magistrate but he D
         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 E
         he did not take any action by reporting to the police after he heard those
         alleged words from 'V'- 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. The Court is 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 F
         PW3-the mother of the deceased, cannot be relied upon.
                                                                   (631-E, F, G, H; 632-A]

                5. It is doubtful whether PW4 would have distinctly heard the 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       G
         fire. Amidst the notice 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 they had seen victim
         lady crying aloud naming the accused as the culprit, the people who gathered      H
    622                    SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A there and extinguished the fire would not have simply allowed him to carry
    her to th.e 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. The Court is of the view that the credibility
    of his version regarding the words alleged to have been uttered by the victim
B   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. (632-E, F, G, H; 633-A]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 648
    of 1998.                     ·           ·
c        From the Judgment and Order dated 12 and 13.11.1997 ofthe Bombay
    High Court at Aurangabad in Crl.A. No. 68 of 1993.

          Ravindra Keshavrao Adsure for the Appellant.

D        K.V. Viswanathan, Sanjay Kharde and Ms. Chandan Ramamurthi for the
    Respondent.

          The Judgment of the Court was delivered by

           P. VENKATARAMA REDDI, J. This is an appeal filed by the State of
E   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
F   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 bum injuries she received on the previous day. The accused also had
    some bum injuries on his hands in the process of extinguishing the flames
    on the deceased. The conviction was based on certain dying declarations and
G   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 ate
    informed that the respondent had undergone about five years of sentence
    during and after the trial.
H
      STATE OF MAHARASHTRA v. SANJA Y S/O DJGAMBARRAO RAJHANS [REDDI,J.] 623


     We shall advert to the facts alleged by the prosecution and the sequence   A
of events that had happened on the two crucial days i.e. 28th and 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 B
arranged a betrothal function on 18th August, 1991 at which it wa!' decided
to celebrate the marriage on 2nd December, 1991. The accused a 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 C
marry her. On the crucial day of occurrence i.e. 28th September, 1991, Veena
had gone to see the accused after infonning 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,
sprinkled the petrol on the person of Veena and set her on fire, all of a sudden. D
All this was done on the moving scooter. On noticing the flames on the body
ofVeena 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 E
accused then took her in an auto-rickshaw to the Government Medical College
Hospital. Soon after the admission at 8 p.m, PW8-the 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 the-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', F
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 bums on various parts of the body, the total percentage
being 98. At the same time, a Police Constable on duty (PWI) at the police
post of the hospital, made an entry in the relevant register of the substance G
of what he heard from the victim while narrating the history to the Doctor.
That is marked as Ext.PB. He then informed the CIDCO police station as the
offence took place within the jurisdiction of that police station. PWI5, the
Head-Constable noted the message, made an entry in station diary and infonned
PW6, the Sub-Inspector of Police when he came there at 8.40 p.m. PW6
reached the hospital at I 0.15 p.m. PW6 then addressed a Ietter-Ext.29 to the H
    624                     SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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-Ext.30 was drawn up on the basis of the
    same and sent to the concerned Magistrate. While so PWs 2 and 3 the father
B   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. PWI3-another 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-PW7 and
    requested him to record the statement of the victim Veena. Initially, at about
C   11. l 0 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-letter, that the patient was conscious and oriented
    and \n 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
D   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 uncons.cious 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 PWI3, which is sought to
E   be treated as a dying declaration. This statement was recorded without
    consulting the Medical Officer. The spot was inspected by PWI3 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 idi;;ntity card and purse. The
    scooter of the accused was 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
F   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 and 11. After holding the
    inquest, PW13 sent the dead body for posimortem. 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
G   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
H
     STATE OF MAHARASHTRA v. SANJA Y SIO DIGAMBARRAO RAJHANS [REDD!, J.]   625

p.m. As already stated, he was arrested later on i.e. at 7.00 p.m. The accused    A
examined himself as a witness. As DWI advert he stated that the deceased
 was ill-tempered and impatient person, that she was insisting on perfonning
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       B
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, Veenajumped from
the scooter. Then he noticed the fire on her and tried to extinguish it. At the   C
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 infonn
the parents of Veena. Her parents came to the hospital at about 10.15 p.m.
DWI also produced certain letters written by Veena in order t..> throw light
on her suicidal disposition.
                                                                                  D
       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 E
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 F
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 I I
hours after the dying declaration was recorded by the Executive Magistrate,
was not int~rrogated or arrested, though by that time the incriminating evidence
was said to be available with the police. He was allowed to be discharged at G
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 the verdict H
    626                     SUPREME CpURT REPORTS [2004] SUPP. 5 S.C.R.

A of acquittal.

          Amongst the items of incriminating evidence in the form .of dying
    declarations, we would first like to alert to the last one in point of time which
    was recorded by the Investigating Officer-PWl3 at 4.30 a.m. on 29th
    September, 1991. Leaving apart the question whether it can be considered as
B   a dying declaration or a statement recorded under Section 16 l 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 Qr more.
C The details-necessary and unnecessary, minute and material are found therein.
   The declarant starts with family particulars and goes on to say about her
   education, her contact3 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 th.e conversation they had, the scooter number, the name of the petrol
D 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% bums would narrate
   the details in such vivid manner and coherent way. A perusal ofExt.86 further
   reveals that the relevant facts to build up the prosecution case including the
E 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-Ext.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
F 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.
G 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 ~lowed 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
H · with him. Immediately, she was engulfed by fire and as the scooter was
      STATE OF MAHARASHTRA v. SANJAY S/O DIGAMBARRAO RAJHANS [REDDI, J.]   627
 proceeding in slow speed, she jumped down. When she started shouting, A
 four or five persons came and extinguished the fire. Thereafter, the accused
 brought an auto-rickshaw iind 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 B
 contents themselves. That apart, the 1.0. 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 discernible from this document.                         C
        Coming to Ext.37 which is the .dying declaration recorded by PW7 by
  name Ghulam Gouse-Naib 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 D
  ''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 tum 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
                                                                                   E   ~
  at the house of the accused. However, in the following sentence, she stated
  that when t~ey 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 faioted and was unable F
  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-"a quarrel without any
. reason". Then a question was put by PW7 "whether you have any doubt on G
  anybody" for which she replied "I have doubt on Sanjay-Pramod" (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.3 7 that none else was present and after reading over the statement,
  thumb impression was put by Veena. PW7 clarified that the statement was H
    628                    SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A 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 ofus (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 Hig~ Court that "the lady might have narrated
B   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 aiso 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
C   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
D   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.3 7 did not inspire confidence .in
E   order to base the conviction on such document. Though the High Court
    further commented on ce~in erasures/corrections, we are not inclined to
    attach much importance to them.

          The overall picture we get is that the Executive Magistrate-PW7 did
    contact the victim and record her statement while she was conscious and
F   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
G   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
H   in that serious condition could go on responding to the questions of PW7
      STATEOFMAHARASHTRAv. SANJAYS/ODIGAMBARRAORAJHANS[REDDl,J.) 629

to the extent of even giving details regarding the clothes worn by her and         A
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           B
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     C
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}-first 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)       D
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         E
        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          F
his own guessed that the person accompanying her was husband, is a matter
of doubt. However, not much turns on that.

       When the doctor-PW8 was eliciting information from the patient,
PWl-the Constable on duty at the hospital was present. Having heard the
narration ofVeena, he made a note in the MLC register as per Ext.13, which         G
is almost the same as Ext.39. PWl then communicated the information to the
jurisdictional police station at 8.20 p.m. The message was recorded by PW6-
S.I. of police.

     It is now necessary to notice the contradictions between the two
                 .                                                                 H
    630                     SUPREME COURT REPORTS (2004] SUPP. 5 S.C.R.

A statements of the deceased incorporated in Exbs.3 7 and 39. They are-firstly
    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 fropt of
B   the scooter. If what was stated in Ext.39-the lst 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
C   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
D   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
E   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 DWI also appears
F   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
G 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 sustab
  the conviction. The contradictions in the two dying declarations coupled with
  the high degree of improbability of the manner of occurrence as depicted by
H the prosecution case leaves the Court with no option but to attach little
     STATE OF MAHARASHTRA v. SANJA Y S/O DIGAMBARRAO RAJHANS [REDDI, J.)    631

weight to these dying declarations. It is not the pluralit:,· of the dying          A
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 v. State of Maharashtra, [2002] 6 SCC 710). Inasmuch as
the correctness of dying declaration cannot be tested by cross-examination          B
of its maker, "great caution must be exercised in considering the weight to be
given to this species of evidence". When there is more thari 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         C
reliance on 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% bums
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.                                             D
       We shall now tum 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-the father of the deceased states
that Veena told him and his wife as soon as they called on her at the Q.ospital     E
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    F
l.O.-PW6 is to the effect that he went to the hospital and contacted the
doctor at the hospital at I 0.15 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-the next 1.0. made an attempt to have the statement recorded by the
Executive f.1agistrate but he could not succeed for the reason that the duty        G
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         H
    632                     SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A 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 ofh~r bums. For the same reasons,
    the evidence of PW3-the mother of the deceased, cannot be relied upon.
                                                       )
B          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 die learned counsel for the
C   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
    mesave, save". Then he stated that by the time he went to the spot where
D   the giri 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
E   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 in the spot map
    i.e., Ext. IO prepared by the I.O.-PWI3. 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
F   washing the utensils. By the time he went there already some people
    sur-~unded 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 ~nbearable pain. Another aspect which deserves notice
G   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
H   alleged to have been uttered by the victim is open to doubt as it goes against
     STATEOFMAHARASHTRAv. SANJAYS/ODIGAMBARRAORAJHANS[REDDI,J.]         633

probabilities and the natural course of conduct. At any rate, the deposition   A
of PW4 cannot fonn 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.
                                                                               B
     In the result, we affinn the judgment of the High Court and dismiss the
appeal.

VM                                                       Appeal dismissed.