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2004 DIGILAW 33 (BOM)

Suresh Shioramji Tayawade v. State of Maharashtra

2004-01-12

D.G.DESHPANDE, P.S.BRAHME

body2004
JUDGMENT - BRAHME P.S., J.:—The appellant is convicted for offence under section 302 of Indian Penal Code and sentenced to suffer Life Imprisonment and to pay fine of Rs. 100/- in default of payment of fine to suffer R.I. for one month by the judgment and order dated 22-12-1999 passed by the 2nd Additional Sessions Judge, Amravati in Sessions Trial No. 29/1997 (New Sessions Trial No. 772/1997). In this appeal the appellant is challenging the said judgment of conviction and sentence. 2.The prosecution case is that the victim Asha was residing with the appellant as his wife. The appellants parents namely Shioramji and Sau. Kamlabai (original accused Nos. 2 and 3) were residing separately as they were against the marriage of appellant and Asha. It is alleged that the appellant-Suresh used to consume liquor and beat Asha, on the date of incident which took place on 4-12-1996, there was quarrel between appellant and Asha, as Asha refused to give money to the appellant. The appellant then alleged to have poured kerosene on the person of Asha and set her on fire. The neighbours including Meerabai (P.W. 1) who was land lady in whose premises the appellant and Asha were residing, on hearing the shouts of Asha, arrived there and extinguished the fire. Meerabai brought Asha to Irvin Hospital. She was admitted in the hospital for treatment. It is admitted that the appellant also accompanied Meerabai and Asha to the Hospital. Intimation was given to the parents of Asha, regarding the incident of burning, that had taken place in the house. After receiving an intimation, Balwant Dhole (P.W. 3) who was Special Judicial Magistrate, recorded dying declaration (Exhibit 31) of victim Asha, after getting ascertained from Medical Officer Dr. Murlidhar Parekh (P.W. 4) about the physical and mental fitness of Asha. Thereafter, on the basis of dying declaration, offence came to be registered. Police visited the spot and recorded spot panchanama. The statement of Asha was also recorded by Police Officer. Asha expired in the hospital on 7-12-1996. Consequently offence was converted under section 302 of India Penal Code. Dead body of Asha was sent for post-mortem examination. Thereafter, on the basis of dying declaration, offence came to be registered. Police visited the spot and recorded spot panchanama. The statement of Asha was also recorded by Police Officer. Asha expired in the hospital on 7-12-1996. Consequently offence was converted under section 302 of India Penal Code. Dead body of Asha was sent for post-mortem examination. The Medical Officer who conducted autopsy on the dead body prepared post-mortem notes Exhibits 22, wherein he found that Asha had sustained 90% burns, which were found to be ante-mortem and as opined by him the probable cause of death was Syncope due to superficial to deep 90% burns. After completing the investigation the charge-sheet was filed in the Court of Judicial Magistrate, First Class who in turn committed the case to the Court of Sessions. 3.The appellant pleaded not guilty to the charge (Exhibit 4). He claimed to be tried. His defence is that of denial. At the trial the prosecution examined in all six witnesses including Meerabai P.W. 1, Pradip Kherde P.W. 2 who was Police Constable attached to Irvin Police Chouki who carried the Dying Declaration of Asha to Police Station, Frezarpura and on the basis of that P.S.I. Solanke registered the offence vide Crime No. 234/1996 Balwant Dhole (P.W. 3) who recorded dying declaration (Exhibit 31) in which victim Asha has stated that her husband Suresh poured kerosene on her person under the influence of liquor and after lighting matchstick, threw it on her person and thereby set her on fire. Dr. Murlidhar Parekh (P.W. 4) who examined victim Asha, and found that she was conscious and well oriented to give the statement and he also examined her after the dying declaration was recorded and accordingly issued certificate (Exhibit 36), Indubai Kukde P.W. 5 who is sister of victim Asha to whom it is alleged that Asha made a statement while she was in the hospital narrating the incident that took place and P.S.I. Devidas Solanke (P.W. 6) was the Investigating Officer who registered the crime and also carried out the investigation in the matter. 4.The trial Court placed reliance on the dying declaration (Exhibit 31) as also the evidence of witness Indubai and found that the victim Asha was set on fire by the appellant in the manner in which it is narrated by the victim in the dying declaration Exhibit 31 and accordingly the appellant came to be convicted for murder of Asha and he was sentenced to imprisonment for life with fine as stated in earlier part of the judgment. However, the appellant was acquitted of the offence under section 498-A I.P.C. It may be noted that the trial Court did not accept the evidence of witness Meerabai P.W. 1 and Indubai P.W. 5 in that regard. The trial Court also acquitted the original accused Shioramji and Sau Kamlabai of the offence under sections 302 I.P.C. and 498-A read with section 34 of Indian Penal Code. 5.Mr. Saboo, learned Counsel for the appellant took us through the evidence. He submitted that the trial Court has committed an error in accepting the dying declaration Exhibit 31 in as much as there is no evidence to show that Asha was in physical and mental fit condition to give statement. He pointed out discrepancies, material as they are having regard to the admissions given by the witnesses Meerabai and Indubai and more particularly to the factum of oral dying declaration made to these witnesses by the victim. The learned Counsel submitted that having regard to the oral dying declaration as claimed by the witnesses Meerabai and Indubai, serious doubt is created as regards the written dying declaration (Exhibit 31) and in such circumstances, truthfulness of the said dying declaration is materially impaired and shaken and as such no reliance could be placed on it. He submitted that having taken into consideration the admissions given by witnesses Meerabai and Indubai it is crystal clear that the victim Asha herself, out of frustration committed suicide by burning herself. 6.The learned A.P.P. as against that, submitted that the trial Court has rightly accepted the dying declaration as on the evidence on record more particularly that of Medical Officer Dr. Parekh, it is established that the victim Asha was conscious and well oriented and physically and mentally fit to make statement and even after her statement was recorded her condition was well oriented. Parekh, it is established that the victim Asha was conscious and well oriented and physically and mentally fit to make statement and even after her statement was recorded her condition was well oriented. The learned A.P.P. submitted that there is no merit in the contention of the defence and having regard to the facts and circumstances of the case, it does not stand probable that the victim Asha herself got burnt in an attempt to commit suicide. He therefore, urged that the appeal be dismissed. 7.We have carefully considered the evidence of Dr. Parekh and also that of Special Executive Magistrate Balwant Dhole. It is true that the victim Asha had sustained 90% burns. But then as the evidence of Dr. Parekh stands, it is crystal clear that the victim was conscious and well oriented and that she was physically and mentally fit to make statement. Therefore, the challenge to the dying declaration-Exhibit 31 by the defence on the ground that the victim had 90% burns and as she was not fit to make statement, cannot be accepted. 8.However, we find considerable substance in the contention of learned Counsel for appellant that the statement in dying declaration (Exhibit 31) is doubtful and cannot be accepted having regard to admission given by witnesses Meerabai and Indubai in their evidence. The witness Meerabai was landlady of appellant as appellant and deceased were residing in her premises. Her relations with them were cordial. She was on visiting terms with them. That is clear from her evidence. Her evidence shows that deceased Asha had confidence in her. She had disclosed to her about earlier incident in which she had attempted to commit suicide when she was frustrated because of bad habit of appellant of consuming liquor and treating her badly. Even at the time of the incident in question it was witness Meerabai who on hearing Ashas cry and shouts went to her house and brought her to the hospital. This also shows that she was not favourable to the accused. Nor she had any reason to save the accused. She had no reason to give evidence against the prosecution. Even at the time of the incident in question it was witness Meerabai who on hearing Ashas cry and shouts went to her house and brought her to the hospital. This also shows that she was not favourable to the accused. Nor she had any reason to save the accused. She had no reason to give evidence against the prosecution. 8-A.In her evidence she stated that when she enquired with Asha, in the hospital as to how the incident took place, and how she was burnt, Asha told her that Suresh used to consume liquor and that he was not prepared to give up his vice of consuming liquor. She stated that it was impossible for her to survive and hence she herself set on fire by pouring kerosene on her person. 9.This evidence of witness Meerabai has to be accepted as trustworthy and reliable in as much as it is not at all controverted by the prosecution. When this witness stated so in cross-examination, the learned prosecutor could have sought permission of Court to cross-examine her by declaring her hostile. Apart from that, as stated earlier, she was an independent witness having no animosity against Asha and appellant Suresh. She had no reason to protect the appellant. Other witness Indubai in her evidence also stated that some time Asha said that because of frustration she poured kerosene oil on her person when she was repeatedly asked to disclose real facts. This version of witness Indubai lends corroboration to what was deposed by Meerabai. Indubai had no reason to give false evidence to favour the accused. She being real sister of Asha and having cordial relations with her all the while, she will not speak against the interest of her sister Asha, just to save the appellant. In view of this factual position, evidence of Meerabai and Indubai stands probable and trustworthy and we can place implicit reliance on it. The result is that, statement in dying declaration (Exhibit 31), being contradictory to this evidence of Meerabai and Indubai, cannot be accepted and relied upon. In other words, oral evidence of Meerabai and Indubai, as to what really happened on scene on the basis of what was disclosed to them by Asha, being inconsistent, shakes the credibility of Exhibit 31 and therefore, it is unsafe to accept and place reliance on it. In other words, oral evidence of Meerabai and Indubai, as to what really happened on scene on the basis of what was disclosed to them by Asha, being inconsistent, shakes the credibility of Exhibit 31 and therefore, it is unsafe to accept and place reliance on it. 10.The witness Indubai, has no doubt stated in her examination-in-chief that Asha told that her husband had demanded money for taking liquor and when she refused, she was beaten by him and then he poured kerosene oil on her person and set her on fire. But no reliance can be placed on this evidence as the witness did not adhere to this statement, on the other hand she stated in her cross-examination that sometime Asha used to tell that her husband said that being frustrated, she herself poured kerosene on her person and set on fire. 11.That apart, reason for Asha to give contradictory statement is not far from reach. What prevailed in the hospital after Asha was admitted and her parents, brother came, is stated, clinchingly by witness Meerabai. In her evidence she stated that parents of Asha started scolding Suresh and exchange of words took place between Suresh and parents of Asha and mother of Asha got angry and told that Suresh should be implicated. All this talk and exchange of words, must have had bearing on the mind of Asha and therefore we find that in cross-examination P.W. Indubai had given two contradictory versions. Be that as it may, one thing is clear in our mind, the statement of Asha implicating appellant was result of what was expressed by her mother in the hospital against the appellant. That is reflected in dying declaration (Exhibit 31). If that is so, this is one more reason to doubt the truthfulness of dying declaration (Exhibit 31). Therefore, truthfulness and authenticity of dying declaration (Exhibit 31) is very much doubted having regard to oral evidence of P.Ws. Meerabai and Indubai and admissions given by them. There is no other evidence except Exhibit 31, to point out that the appellant had, caused death of Asha, by setting her on fire. In the facts and circumstances of the case, when no reliance on Exhibit 31 could be placed, appellant cannot be held guilty for committing murder of Asha. Meerabai and Indubai and admissions given by them. There is no other evidence except Exhibit 31, to point out that the appellant had, caused death of Asha, by setting her on fire. In the facts and circumstances of the case, when no reliance on Exhibit 31 could be placed, appellant cannot be held guilty for committing murder of Asha. If that is so, then it has to be said that trial Court has committed error in convicting him for offence under section 302 I.P.C. We have found that the prosecution has failed to establish that appellant committed murder of his wife. Appellants conviction and sentence for offence under section 302 I.P.C. will have to be set aside and he is to be acquitted. Hence the order. ORDER The appeal is allowed. The conviction of the appellant under section 302 of I.P.C. is set aside. He is acquitted of the offence under section 302 of I.P.C. The appellant shall be set at liberty if not required in any other crime. If he has paid fine amount same be refunded to him. Appeal allowed.