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2004 DIGILAW 586 (BOM)

Rukhmabai v. State of Maharashtra

2004-04-29

A.P.LAVANDE, D.S.ZOTING

body2004
JUDGMENT (oral) D.S. Zoting, J.— This appeal is preferred by the appellant-original accused Rukhamabai w/o. Ballram Walragade against the judgment and order dated 29-2-2000 passed by the Additional Sessions Judge, Washim in Sessions Case No. 53 of 1999, whereby the appellant-original accused has been convicted for an offence punishable u/s. 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months. 2. The prosecution case, in brief, is that the murdered woman was one Asha, aged about 18 years. Deceased Asha was the daughter-in-law of the accused. Deceased Asha was married to Samadhan, the son of appellant-accused one year prior to the incident and since the time of her marriage, she was staying with the appellant-accused along with the other members of the family at village Kaotha. Her husband Samadhan was residing at Nashik to earn his livelihood. The incident occurred on 13-3-1993. It is alleged that there was a quarrel between the accused and deceased Asha. Due to the quarrel, the appellant-accused got annoyed and she poured kerosene on the person of the deceased and set her on fire. Asha sustained 63% burns all over her body. She was admitted in the Rural hospital at Risod. As soon as she was admitted in the hospital, the Medical Officer gave information to the Police Station Officer, Risod about the burn injuries sustained by deceased Asha. He requested the Police Officer to make an arrangement for recording of the dying declaration. Kashiram s/o. Lodji Khuley (P.W.1), who was working as an Executive Magistrate, received the requisition from the police for recording the dying dec-laration and in pursuance of the said requisition, he visited the hospital. He sought opinion of the doctor as regards mental fitness of Asha for the purpose of recording the dying declaration and thereafter, he recorded the dying declaration of Asha on 13-3-1999 from 10.30 P.M. to 10.45 P.M. In her Dying declaration, the deceased made dis-closure that her mother-in-law poured kerosene on her person and set her on fire. 3. On the basis of Dying declaration of deceased Asha, the offence came to be registered against the appellant-accused at Crime No. 31 of 1999, u/s. 307 of the Indian Penal Code. On the next day, the Investigating Officer visited the spot and drew panchanama. 3. On the basis of Dying declaration of deceased Asha, the offence came to be registered against the appellant-accused at Crime No. 31 of 1999, u/s. 307 of the Indian Penal Code. On the next day, the Investigating Officer visited the spot and drew panchanama. He seized the articles lying on the spot and sent them to the Chemical Analyser. After giving first aid treatment to the deceased at Rural hospital, Risod, she was referred to the Civil hospital at Akola for further treatment. However, she succumbed to the burn injuries on 18-3-1999. The offence was then converted into one for murder punishable u/s. 302 of the Indian Penal Code. The Investigating officer pre-pared inquest panchanama and referred the dead body of deceased Asha to the Medical Officer for post mortem examination. The Investigating Officer recorded the statements of witnesses. The accu-sed was arrested on 16th March, 1999. After completion of Investigation, the appellant-accused was charge sheeted for the aforesaid offence in the Court of Judicial Magistrate, First Class, Risod. 4. As the offence u/s. 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Risod committed the case to the Sessions Court, Washim for trial according to law. The appellant-accused was produced before the Additional Sessions Judge, Washim. Charge u/s. 302 of the Indian Penal Code was framed against her. It was read over and explained to her. She pleaded not guilty and claimed to be tried. Defence of the appellant-accused was of total denial. According to her, she was not present at the time of commission of the offence. Defence of the appellant-accused, as revealed from the suggestion given to witness Kamal (P.W.2), is that when Asha was cooking food, she sustained burn injuries and thus, her death was acci-dental. She has not adduced any evidence in her defence. 5. During the trial, prosecution examined five witnesses. There is no ocular evidence in this matter. The prosecution case rests only on the written and verbal dying declarations of deceased Asha. As regards the written dying declaration, it is to be noted that Kashiram Khuley, the Executive Magistrate, recorded the dying declaration of Asha at Exh. 17. The verbal dying declaration was made by the deceased before Kamal (P.W.2), the mother of deceased Asha. The prosecution case rests only on the written and verbal dying declarations of deceased Asha. As regards the written dying declaration, it is to be noted that Kashiram Khuley, the Executive Magistrate, recorded the dying declaration of Asha at Exh. 17. The verbal dying declaration was made by the deceased before Kamal (P.W.2), the mother of deceased Asha. On appreciation of the evidence, the trial Court has relied upon the written as well as verbal dying declarations of deceased Asha and held that deceased Ashabai died homicidal death and that the appellant-accused is responsible for the said homicidal death of deceased Ashabai. The trial Court convicted the appellant-accused for the offence punishable u/s. 302 of the Indian Penal Code and sentenced her to imprisonment  for life and to pay fine. 6. Being aggrieved by the said judgment, the appellant-original accused has preferred this appeal and challenged the said order of conviction and sentence passed by the learned Additional Sessions Judge, Washim. 7. We have heard the arguments advanced by Mr. M.R. Daga, learned counsel for the appellant-accused and Mr. Loney, learned A.P.P. for the respondent-State. Mr. Daga, learned counsel for the appellant-accused submitted that it has come in the evidence of Kamal (P.W.2), mother of the deceased that the husband of deceased is having two mothers and in both the dying declarations, reference is made to the effect that mother-in law poured kerosene and set her on fire. He further submits that both the dying declarations do not specifically refer to accused No. 1 to be the perpetrator of crime. He further submits that there is material divergence between the written dying declaration and the oral dying declaration pertaining to the very occasion of crime. He pointed out in the written dying declaration deceased said that there was quarrel between her mother-in-law and the deceased, hence her mother-in-law set her on fire; whereas in oral Dying declaration, she disclosed that there was quarrel between her and her brother-in-law and due to this, her mother-in-law set her on fire. The learned counsel for the appellant further submits that as both the dying declarations are incapable of pointing out as to whether the first mother of Samadhan or his second mother is res-ponsible for the homicidal death of decea-sed Asha and this circumstances creates doubt and uncertainty sufficient to give benefit to the accused. The learned counsel for the appellant further submits that as both the dying declarations are incapable of pointing out as to whether the first mother of Samadhan or his second mother is res-ponsible for the homicidal death of decea-sed Asha and this circumstances creates doubt and uncertainty sufficient to give benefit to the accused. Therefore, it is lastly submitted that the order of conviction and sentence passed by the trial Court may be quashed and set aside and the appellant-accused may be acquitted of the offence with which she was charged. 8. As against this, Mr. Loney, the learned A.P.P. appearing on behalf of the Respondent-State submits that it has come in evidence of Kamal (P.W.2) that the appellant-accused was residing with deceased Asha at the relevant time. Hence, the dying declaration should be construed as referring to the accused. He further submits that no doubt Kamal (P.W.2) has admitted that husband of deceased is having two mothers, but there is no evidence that his second mother was residing with the deceased during the relevant period of the occurrence and as such, according to him, the evidence on record does not create any doubt which can be said to be a reasonable doubt and there-fore, the order of conviction and sentence passed by the trial Court does not call for any interference in the appeal and the said order should be maintained. He has cited the following two cases : 1. State of Punjab v. Karnail Singh1. 2. Sucha Singh and Another v. State of Punjab2. In both the above cases, it is held that : “a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense.” 9. We have heard arguments advanced by both the sides. We have gone through the entire evidence on the record including the written and verbal dying declaration of deceased Asha. We are of the opinion that the disclosure made by deceased Asha before the Execu-tive Magistrate is true disclosure and the said declaration is reliable. However, in absence of other evidence, the said evidence regarding dying declaration is not capable of stretching accusing finger towards the appellant-accused only and as such, the order of conviction and sentence passed by the trial Court cannot be sustained for the following reasons. 10. However, in absence of other evidence, the said evidence regarding dying declaration is not capable of stretching accusing finger towards the appellant-accused only and as such, the order of conviction and sentence passed by the trial Court cannot be sustained for the following reasons. 10. The fact that deceased Asha sustained 63% burns all over her body on 13-3-1999 when she was residing with the accused at village Kaotha and she succumbed to the said burn injuries in the hospital on 18-3-1999 has not come to be disputed by or on behalf of the appellant-accused. The post mortem report is at Exh. 38. The said report is proved by Dr. Vijay s/o. Rambhau Kalne (P.W.5). It has come in the evidence of Dr. Vijay that he performed post mortem examination on 18-3-1999 and on external examination, he found burns to the extent of 63% on the body of Asha. He stated that the injuries were ante-mortem. He has opined that cause of death of the decea-sed was due to syncope due to septicemic shock from 63% burns. He has further opined that these burn injuries on the person of deceased were sufficient in the ordinary course of nature to cause her death. It is also pertinent to note that the burnt clothes of deceased found at the scene of offence were sent to the Chemi-cal Analyser and the Chemical Analyser detected residues of kerosene on examination of the clothes. Having regard to all the evidence which is of incontrovertible nature, there cannot be any doubt that deceased Asha died unnatural death as a result of the burns. 11. The next vital question that arises for our consideration is that whether prosecution succeeded in proving that said unnatural death is homicidal death and that the accused is responsible for the said homicidal death. 12. The prosecution case rests on the written as well as verbal dying declaration made by deceased Asha. Therefore, before appreciating the evidence of dying declaration, we think that it would be useful to note the principle as regards the appreciation of Dying declaration. As regards appreciation of a dying declaration as a piece of evidence, the Apex court reiterated the well settled principle in the case of Smt. Laxmi v. Om Prakash3 as under : “The law is well settled; dying declaration is admissible in evi-dence. The admissibility is founded on principle of necessity. As regards appreciation of a dying declaration as a piece of evidence, the Apex court reiterated the well settled principle in the case of Smt. Laxmi v. Om Prakash3 as under : “The law is well settled; dying declaration is admissible in evi-dence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction, a court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by refe-rence to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contai-ned in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstan-ces coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction.” 13. For testing the case in hand on the principles referred to above, let us examine evidence as regards dying declaration on record. The first dying declaration is made before the Executive Magistrate on 13th March, 1999. It is at Exh. 17. Shri. Khuley, the Executive Magistrate (P.W.1) has recorded this dying declaration. He stated that before recording the dying declaration he sought opinion of the Medical Officer, as to whether the patient is in a position to make statement and on examination, the doctor opined that she is in a position to make a statement. He stated that he obtained the certificate to that effect from the doctor and thereafter, he recorded the dying declaration as per the version of deceased Asha. We have gone through the said dying declaration (Exh. 17). He stated that he obtained the certificate to that effect from the doctor and thereafter, he recorded the dying declaration as per the version of deceased Asha. We have gone through the said dying declaration (Exh. 17). In this dying declaration deceased Asha made a declaration that on that day quarrel took place between her and her mother-in-law and her mother-in-law poured kerosene on her person and set her on fire by igniting match stick. There is an endorsement of the Executive Magistrate below the dying declaration to the effect that the dying declaration was read over to the person giving the same and that the person admitted the same to be correct. There is also a certificate issued by the Medical Officer stating therein there he was present at the time of recording the dying declaration and the person giving the statement was mentally fit to give the statement. 14. Thus, there cannot be any doubt that the Executive Magistrate has recor-ded the dying declaration of deceased Asha when she was conscious and was in a position to make statement. The endorsement made by the doctor in the dying declaration shows that the said dying declaration was recorded from 10.30 P.M. to 10.45 P.M. There appears nothing in the cross-examination of Shri Khule (P.W.1) to show that the said dying declaration made by the deceased Asha is not a true dying declaration. However, it is pertinent to note that she has not disclosed the name of her mother-in-law. 15. Now turning to the second dying declaration, which is a verbal dying declaration made by deceased before her mother Kamal (P.W.2). Mother of deceased Asha gave evidence that on receipt of the message that Asha sus-tained burn injuries and she was admitted in the hospital; she (mother) rushed to the hospital and at that time, Asha was conscious. She further states that when she asked her about the incident she told her that there was quarrel between her and her brother-in-law (husband’s brother) and due to this, her mother-in-law Rukhamabai poured kero-sene on her person and set her on fire. In the cross-examination, she has admitted in clear terms that Asha has not stated that name of her mother-in-law while making the verbal dying declaration. In the cross-examination, she has admitted in clear terms that Asha has not stated that name of her mother-in-law while making the verbal dying declaration. Therefore, what she states in the examination-in-chief about the disclosure made by the deceased as regards the name of accu-sed No. 1 appears to be an improvement and therefore, said statement pertaining to the name of mother-in-law of deceased Asha will have to be rejected. 16. What we are then left with is that in both the dying declarations, deceased Asha made disclosure that her mother-in-law poured kerosene on her person and set her on fire. However, in the cross-examination, Kamal (P.W.2) has admitted that husband of deceased Asha is having two mothers. Now the question arises as to whether the mother-in-law referred to in the dying declaration, refers to the appellant-accused or the second mother of the husband of deceased, who also happens to be the mother-in-law of the deceased Asha. In this regard, there is absolutely no evidence. Therefore, there is ambiguity as to out of two mothers of husband of deceased who committed said crime. The learned A.P.P. con-ducting the prosecution case, failed in his duty to seek permission of the Court to re-examine the witness so as to remove the ambiguity by seeking clarification from the witness as to out of the two mothers who was residing with deceased Asha. This ambiguity could have been also removed by examining the other witnesses who have acquaintance with the family of deceased Asha. No such witness has been examined. It is also to be noted that, under such circumstances, it was desirable on the part of the public prosecutor to examine the Investigating officer. The record shows that the case was adjourned from time to time for the evidence of Investigating officer, but prosecution failed to produce him despite of issuance of the non-bailable warrants against him on different dates. On the contrary, the learned public prosecutor filed a pursis and closed the evidence and the ambiguity, as pointed out above, was allowed to be continued for the reason best known to the public prosecutor. We express our displeasure regarding the manner in which the prosecution case is conducted in the trial Court by the prosecutor. 17. Thus, considering the evidence on the record, the fact remains that husband of deceased Asha is having two mothers. We express our displeasure regarding the manner in which the prosecution case is conducted in the trial Court by the prosecutor. 17. Thus, considering the evidence on the record, the fact remains that husband of deceased Asha is having two mothers. Deceased Asha had not disclosed the name of any one of the two mothers of her husband to be the perpetrator of the crime either before the Executive Magistrate or before her mother Kamal (P.W.2). Therefore, under such circumstances, bare reference to mother-in-law, without any reference to name of the mother of husband of deceased, creates doubt and uncertainty and we have no hesitation in holding that this creates doubt and uncertainty sufficient to give benefit to the accused in the above circumstances. Considering the peculiar facts and circumstances of the case before us, the cases cited by the learned A.P.P., as referred to above, are of no avail to the prosecution especially when in the present matter the appre-ciation of evidence of the dying declaration is involved and there is clear doubt as to who is involved in the crime i.e. the first mother or the second mother of the husband of deceased Asha. 18. Apart from this, it is to be noted that, in the first dying declaration before the Executive Magistrate, disclosure is made by deceased to the effect that there was a quarrel between the deceased and her mother-in-law and the mother-in-law poured kerosene and set her on fire, whereas in the verbal dying declaration before her mother Kamal (P.W.2), deceased Asha told her that there was a quarrel between her and her brother-in-law (husband’s brother) and due to this, her mother-in-law poured kerosene on her person and set her on fire. A careful scrutiny of these dying declarations reveals the material divergence between the two dying declarations pertaining to the occasion of launching the murderous attack on the deceased at the relevant point of time. Either the context spoken to in one was wrong or that in the other was wrong and both could not be reconciled without much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in the criminal case is not feasible course. Either the context spoken to in one was wrong or that in the other was wrong and both could not be reconciled without much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in the criminal case is not feasible course. In this regard, a reference may be made to the decision of the Apex Court in Dandu Laxmi Reddy v. State of A.P.4 19. Thus, an overall consideration of the facts and circumstances of the case, the evidence on record and the important features which have been noted by us as above, have led us to the conclusion that the prosecution has not proved its case beyond reasonable doubt and the evidence on the record is not sufficient to sustain the order of conviction and sentence passed by the trial Court. The trial Court has not considered the aspect as regards the admitted fact that husband of deceased Asha is having two mothers and there is no reference as to whom the said dying declaration refers to. 20. In the result, we find that the order of conviction and sentence passed by the trial court deserves to be quashed and set-aside. The appeal is, therefore, allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Washim is quashed and set aside. The appellant-accused is acquitted of the offence charged u/s. 302 of the Indian Penal Code. She be released forthwith if not required in any other case. The amount of fine, if any paid by the appellant-accused be returned to her. Appeal allowed. 1. (2003) 11 Supreme Court Cases 271: 2003 (5) Supreme 508 : 2003 (9) SBR 197: 2003 (3) Crimes 292. 2. (2003) 7 Supreme Court Cases 643: 2003 (5) Supreme 445 : 2003 (3) Crimes 272: 2003 (9) SBR 124. 3. AIR 2001 SC 2383 . 4. AIR 1999 SC 3255 : 1999 (2) Supreme (Cr.) 213: 1999 (7) Supreme 354 : 1999 (4) Crimes 90.