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2014 DIGILAW 1842 (BOM)

Alkabai Yelanna Vaidu v. State of Maharashtra

2014-08-20

A.R.JOSHI, V.K.TAHILRAMANI

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Judgment : Smt. V.K. Tahilramani, J. 1. This appeal is preferred by the appellants - original accused Nos.1 and 2 against the judgment and order dated 27.6.2012 passed by the learned Additional Sessions Judge, Pune in Sessions Case No.609 of 2011. By the said judgment and order, the learned Session Judge convicted the appellants for the offence punishable under Sections 302 read with Section 34 and sentenced them to suffer rigorous imprisonment for life and pay fine of Rs.2,500/-, in default rigorous imprisonment for five months. 2. The prosecution case briefly stated, is as under: (a) Deceased Sunita was the daughter of PW 8 Lata. Sunita was married to appellant No.2 in the year 2006. Appellant No.1 is the mother of appellant No.2. After her marriage, Sunita was residing at Vaiduwadi along with the appellants. The house of her mother Lata was situated nearby. Lata was residing along with her husband, son PW 2 Sandeep, his wife and their two children. It is the prosecution case that after one year of the marriage, the appellants started ill treating and harassing Sunita. (b) The incident occurred on 27.6.2011 at about 4.30 a.m. At that time, Sunita was sleeping. She woke up as she got smell of kerosene. When she opened her eyes, she saw that her mother-in-law i.e appellant No.1 was pouring kerosene on her. Thereafter, husband of Sunita i.e appellant No.2 set her on fire with a matchstick. As Sunita started shouting, the people in the neighbourhood gathered there. They extinguished the fire. Thereafter, Sunita was taken to the hospital. In the hospital, dying declaration (Exh. 31) of Sunita came to be recorded. After F.I.R. was lodged, investigation commenced. Sunita expired on 28.6.2011 at about 6.30 a.m. on account of 96% burns. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellants under Sections 498-A r/w 34 and Section 302 r/w 34 of IPC. The appellants/accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellants under Sections 498-A r/w 34 and Section 302 r/w 34 of IPC. The appellants/accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the appellants for the offence punishable under Section 498-A r/w 34 of IPC, however, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned Advocate for the appellants and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the prosecution has not been able to prove its case against the appellants. 5. There is no doubt that Sunita died due to burn injuries. The evidence of PW 5 Dr. Shinde who conducted the postmortem shows that Sunita had sustained 96% burn injuries. The injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The final cause of death was shock due to burns. Though it has established by the prosecution that Sunita died on account of burn injuries, it would be necessary to examine whether the prosecution has proved that the burn injuries were caused to Sunita by the appellants. 6. In order to establish its case, the prosecution has relied on three oral dying declarations and dying declaration Exh. 31. The three oral dying declarations were made to PW 2 Sandeep, PW 3 Sangeeta and PW 8 Lata. PW 2 Sandeep was the brother of Sunita. PW 3 Sangeeta is the wife of PW 2 Sandeep and PW 8 Lata was the mother of Sunita. In his evidence, PW 2 Sandeep has deposed about the oral dying declaration made by his sister Sunita to him in the morning of 27.6.2011. Sandeep has stated that in the morning, he came to know that the appellants had set his sister Sunita on fire, so he himself and his family members went to the house of the appellants. In his evidence, PW 2 Sandeep has deposed about the oral dying declaration made by his sister Sunita to him in the morning of 27.6.2011. Sandeep has stated that in the morning, he came to know that the appellants had set his sister Sunita on fire, so he himself and his family members went to the house of the appellants. There he saw his Sister Sunita was lying on the floor with burn injuries and she told him that appellant No.1 had poured kerosene on her person and appellant No.2 had set her on fire with a matchstick. Sandeep has further stated that he had taken Sunita to Sassoon Hospital in an auto-rickshaw. However, PW 8 Lata who is the mother of Sandeep as well as Sunita has stated in her evidence that in the morning on 27.6.2011, she heard chaos from the matrimonial house of her daughter, therefore, she, her husband and her son went to the house of the appellants. When they reached there, they found that appellant No.2 had taken Sunita to the hospital in an auto-rickshaw and they followed them. Thus, from the evidence of PW 2 Sandeep and PW 8 Lata, it becomes clear that in the morning of 27.6.2011, they learnt about the incident, hence, they rushed to the house of the appellants. However, according to Sandeep when they reached the house of Sunita, she made an oral dying declaration to him and according to his mother Lata, when they reached the house, she found that Sunita had already been taken to the hospital. We do not find the evidence of PW 2 Sandeep about Sunita giving him oral dying declaration to be reliable because PW 8 Lata who had also accompanied him to the house of the appellants, nowhere stated that when they reached the house of the appellants, they saw Sunita with burn injuries and Sunita stated that she was set on fire by the appellants. On the contrary, the evidence of Lata shows that when they reached the spot, Sunita had already been taken to the hospital by the appellants. Moreover, we find that PW 2 Sandeep in his cross-examination has admitted that in the hospital, police had not made any inquiry with him nor he himself had told anything to the police on his own. Moreover, we find that PW 2 Sandeep in his cross-examination has admitted that in the hospital, police had not made any inquiry with him nor he himself had told anything to the police on his own. If Sunita had really made an oral dying declaration to Sandeep stating that the appellants had set her on fire, Sandeep would have definitely informed about the same to the police in the hospital. In view of these facts, we are of the opinion that the evidence of PW 2 Sandeep about Sunita giving an oral dying declaration to him is required to be seen with doubt. 7. PW 3 Sangeeta is the next witness on the point of oral dying declaration. Sangeeta is the wife of PW 2 Sandeep. PW 3 Sangeeta has stated that they learnt that Sunita had received burn injuries and that Sunita had been taken to the hospital, hence, she went to Sassoon Hospital in between 11.30 to 12.00 noon. According to PW 3 Sangeeta, she met Sunita in the hospital and Sunita told her that appellant No.1 had poured kerosene on her and appellant No.2 had set her on fire. We find that the evidence of PW 3 Sangeeta about going to the hospital at 11.30 to 12.00 noon and meeting Sunita and Sunita making dying declaration to her deserves to be discarded because the evidence on record shows that Sangeeta at that time was present at the spot of the incident. This becomes clear from the evidence of Investigating Officer PW 9 API Joshi. It has come in the evidence of API Joshi that at the time of spot panchnama, PW 3 Sangeeta was present. In the examination-in-chief, PW 9 API Joshi has deposed that the spot was shown by Sangeeta Sandeep Pawar i.e PW 3. The spot panchnama is at Exh. 43. Perusal of the same shows that it corroborates the evidence of PW 9 API Joshi that the spot was shown by PW 3 Sangeeta Sandeep Pawar. The spot panchnama shows that it started at 11.15 a.m. and was completed on 12.05 noon. From the evidence which is on record, it appears that at the same time, PW 3 Sangeeta was present in the hospital and also at the spot of the incident, which is impossible. The spot panchnama shows that it started at 11.15 a.m. and was completed on 12.05 noon. From the evidence which is on record, it appears that at the same time, PW 3 Sangeeta was present in the hospital and also at the spot of the incident, which is impossible. Needless to state that it is not possible for a person to be present at two different places at one and the same time. As the spot panchnama shows the presence of PW 3 Sangeeta at the spot of the incident from 11.15 a.m. to 12.05 noon, her evidence that she had gone to Sassoon Hospital in between 11.30 to 12.00 noon and met Sunita there and Sunita made an oral dying declaration to her cannot be believed. 8. The last witness who has deposed about the oral dying declaration is PW 8 Lata. Lata is the mother of Sunita. Lata has stated that she went to Sassoon Hospital where her daughter Sunita was admitted. Lata asked Sunita what had happened upon which Sunita told her that she woke up from sleep due to kerosene smell and saw that her mother-in-law was pouring kerosene on her and her husband i.e appellant No.2 set her on fire with a matchstick. Lata being the mother of Sunita is a highly interested witness and she has admitted in her evidence that she was angry with the appellants since her daughter was not alive. It is also pertinent to note that the statement of Lata was recorded five days after the date of the incident. This is clear from the cross-examination of Lata. The prosecution has not furnished any explanation as to why the statement of Lata was recorded five days after the incident. Looking to all these facts, it would be necessary to scrutinize the evidence of Lata with great care and caution and see whether it inspires confidence. On going through the evidence in this case, we do not find it safe to rely on the evidence of Lata. 9. We shall proceed to now examine whether the dying declaration (Exh. 31) can be safely relied upon. There is only one dying declaration on record i.e Exh. 31. PW 6 Head Constable Karvande has recorded the dying declaration (Exh. 31). 9. We shall proceed to now examine whether the dying declaration (Exh. 31) can be safely relied upon. There is only one dying declaration on record i.e Exh. 31. PW 6 Head Constable Karvande has recorded the dying declaration (Exh. 31). He has stated that the deceased told him that in the morning at about 4.30 a.m., she got smell of kerosene and when she opened her eyes, she saw her mother-in-law pouring kerosene on her and then husband of Sunita set her on fire with a matchstick. Legally a dying declaration which inspires confidence may be sufficient to hold the accused guilty. A dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable, the Court may consider it unsafe to convict the accused on the basis of the declaration. 10. While recording the dying declaration, it is necessary to ensure that except the person recording the dying declaration, at the most, the medical officer should be present and no relative or friend or any other person should be present. This is to ensure that the patient is not tutored or deterred while making the dying declaration. These are essentials to attach credibility to a dying declaration. It has been so observed in a decision of this Court in the case of Imam Bashir Pathan Vs State of Maharashtra, 1997 ALL MR (Cri) 1346. In the present case, on perusal of the dying declaration (Exh. 31), we find that it is clearly mentioned therein that while the dying declaration was being recorded, the mother of the deceased i.e Lata was present. Looking to the fact that Lata is the mother of Sunita, she is a highly interested witness and the fact is also to be noted that Lata has admitted in her evidence that she was angry with the appellants. Looking to the fact that Lata is the mother of Sunita, she is a highly interested witness and the fact is also to be noted that Lata has admitted in her evidence that she was angry with the appellants. From the fact that Lata was present all through out when the dying declaration was being recorded, we find it unsafe to rely on the dying declaration (Exh. 31). There is no other credible or reliable material to connect the appellants with the death of Sunita. In this view of the matter, the appeal deserved to be allowed. 11. In result, the conviction and sentence imposed on the appellants by the learned Sessions Judge, Pune vide judgment and order dated 27.6.2012 in Sessions Case No.609 of 2011 is set aside. Both the appellants are acquitted of the said offence. Both the appellants be set at liberty if not required in any other case. 12. The appeal is allowed in above terms.