Kailash son of Pandurang Yedmewar vs State of Maharashtra

A.S. Chandurkar, J. (Oral) - By this appeal filed under Section 374 of the Code of Criminal Procedure, 1973, the appellant challenges his conviction by the Sessions Court for the offence punishable under Section 302 read with Section 498-A of the Indian Penal Code. In that regard, the appellant has been sentenced to suffer Rigorous Imprisonment for Life in so far as the offence punishable under Section 302 of the Penal Code is concerned and Rigorous Imprisonment for one year with a fine of Rs. 500/- for the offence punishable under Section 498-A of the Penal Code.

It is the case of the prosecution that the appellant was married with one Shubhangi in the year 2002. After their marriage, the appellant started ill-treating his wife. He used to be under the influence of liquor. As said Shubhangi could not get along with her inlaws, the couple was residing separately at the house of one Pankaj Chavhan by paying rent. In this state of affairs, said Shubhangi on 29th March, 2013 at about 8.00 p.m., had poured kerosene on her body. The appellant lighted a matchstick and threw it on her person and thereafter went away from the house. After hearing the shouts of Shubhangi, the neighbours tried to extinguish the fire and thereafter she was taken to the Medical College for treatment. The uncle of said Shubhangi, PW 1 - Premlal, who was residing in the same locality, rushed to the spot on getting information. On the basis of his report, an offence came to be registered. The statement of said Shubhangi was also recorded and she succumbed to her burn injuries on 30th March, 2013. After completing the investigations in the crime, a charge-sheet came to be filed. The case was committed to the Sessions Court. The appellant did not plead guilty. At the conclusion of the trial, the learned Judge of the Sessions Court convicted the appellant in the manner stated above. Hence this appeal.

Shri A.C. Jaltare, the learned counsel for the appellant, submitted that considering the various inconsistencies in the case of the prosecution, the conviction of the appellant was not sustainable. He submitted that the initial report given by the uncle of the deceased did not implicate the accused. The said report was taken as Entry No.40/2013; but the same was never brought on record. The Dying Declaration alleged to have been given by the deceased could not be relied upon considering the fact that there were various blank spaces in said statement at Exh.35. The time mentioned in the two requisitions at Exhs.33 and 34 said to have been endorsed by the Doctor concerned and the time of recording the Dying Declaration at Exh.35 could not be reconciled. Though a Constable from Butibori Police Station had also given a requisition for recording the Dying Declaration, the same was not brought on record. It was then submitted that as per the case of the prosecution, the deceased herself had poured kerosene on her body. The incident, in question, occurred at 8.00 p.m., on 29th March, 2013, while the appellant was arrested at about 10.40 p.m., on 30th March, 2013. His clothes were seized from his body on 1st April, 2013 and it was the case of the prosecution that the same were smelling of kerosene which was highly improbable. It was, therefore, submitted that in the light of this material on record, it could not be said that the prosecution had proved the guilt of the appellant beyond reasonable doubt.

These submissions made on behalf of the appellant were opposed by Shri R.S. Nayak, learned Addl. Public Prosecutor. He submitted that the deceased had narrated the incident to her uncle - Premlal, and the same was consistent with her Dying Declaration. Even if the deceased had poured kerosene on her body, it was the appellant who had lit the matchstick and had set her on fire. It was submitted that the Investigating Officer - PW 8 had explained the manner in which the First Information Report [Exh.12] had been recorded. The depositions of the neighbours being PWs 2, 3 and 4 inspire confidence and hence the learned Judge of the Sessions Court was justified in relying upon the said evidence for convicting the appellant. It was, therefore, submitted that the Sessions Court had rightly convicted the appellant.

We have heard the learned counsel for the parties at length and with their assistance, we have also perused the records of the case.

Since PW 1 - Premlal is the first informant, his deposition can be taken into consideration initially. This witness examined below Exh.11 stated that he was residing near the house of the appellant. When he got information about Shubhangi being burnt, he had been to the house of the appellant. The concerned landlady had extinguished the fire. In his cross-examination, this witness admitted that he did not give the necessary information to the police on his cell phone. Though he had been to the Police Station, he had not lodged a report at that point of time. He had merely stated orally to the police that Shubhangi had got burnt and that they should come there. On the next day, i.e., 30th March, 2013, the report at Exh.12 was lodged. This witness admitted that when the police had come to the place of the incident, the appellant was on the terrace of the house.

From the deposition of this witness, it can be seen that immediately after the incident, this witness had told the police that Shubhangi had got burnt. He had not implicated the appellant and it was only on the next day when the report at Exh.12 was lodged, that he had implicated the appellant. It is to be noted that this witness had also deposed about his talk with Shubhangi immediately after she was burnt. The landlady, who had extinguished the fire, or Pooja Chavhan, who had given information to the appellant, were not examined.

The Dying Declaration at Exh.35 came to be recorded by PW 7 - Baban Palaspagar. According to this witness, he was attached to the Police Booth at Medical College. He along with one Head Constable having Buckle No. 3808 had given a requisition to PW 6 - Dr. Juned Sheikh. This requisition is at Exh.33. The endorsement of PW 6 that Shubhangi was fit to give her statement is made at 11.15 p.m., on 29th March, 2015. It is also necessary to note that at Exh.34, there is another requisition brought by Police Constable - Nandu Gudadhe, Buckle No. 1808. This constable had come from Butibori Police Station. Said requisition at Exh.34 has been endorsed by PW 6 - Dr. Juned Sheikh at 11.20 p.m., on 29th March, 2015. Thus, the first requisition at Exh.33 bears endorsement as to the fitness of the patient at 11.15 p.m., while the second requisition at Exh.34 bears the endorsement of such fitness at 11.20 p.m. However, there is only one Dying Declaration in the form of Exh.35 that has been placed on record.

A perusal of Exh.35 indicates that it bears the endorsement of PW 6 - Dr. Juned Sheikh at 11.30 p. m. The endorsement of the Doctor indicates that at that point of time the patient was fit to give her valid statement. The same has been recorded by PW 7. In his cross-examination, Dr. Juned Sheikh admitted that it was not mentioned that the said statement of Shubhangi was recorded before him. He also admitted that the finger print on the Dying Declaration was not attested by him. It would also be relevant to mention that in the said statement, it has been mentioned by Shubhangi that she had suffered ninety-five per cent burns and that her neighbours and relatives had brought her to the Medical College and she was undergoing treatment in Ward No.4, Bed No.31 on 29th March, 2013. This narration appears to be highly improbable, as a patient of ninety-five burns cannot be expected to give the details of the ward number or bed number where she is undergoing treatment. Moreover, in the last two lines of said Dying Declaration, there are two blanks left. Considering these circumstances which have not been duly explained by the prosecution, we do not find that this Dying Declaration inspires confidence for being relied upon. PW 6 - Dr. Juned Sheikh has made three endorsements. Exh.33, which is a requisition, is endorsed at 11.15 p.m, Exh.34, which is another requisition, is endorsed at 11.20 p.m., and Exh.35, which is the Dying Declaration, is endorsed at 11.30 p.m. The said witness has not explained as to how in this short span of fifteen minutes, he had made the aforesaid three endorsements.

The absence of the initial report said to have been made by PW 1 on 29th March, 2013 bearing Entry No. 40/13 has not seen the light of the day. PW 8, who was the Investigating Officer, admitted in his cross-examination that Diary Entry No.40/13 had been handed over to PW 9 - Deepak Dekate. PW 9, however, in his cross-examination has stated that PW 8 did not hand over this diary entry to him. This aspect has a material bearing in view of the fact that PW 1 in his cross-examination has clearly admitted that immediately after the incident, he had told the police that Shubhangi had got burnt and had not implicated the appellant. Yet another circumstance creating a doubt in the case of the prosecution is that the appellant was arrested at 10.40 p.m., on 30th March, 2013. His clothes were seized from his body on 1st April, 2013 and according to this Seizure Memo at Exh.46, the clothes were smelling of kerosene. This appears to be highly improbable considering the fact that the incident occurred on 29th March, 2013 at about 8.00 p.m. and the appellant continued wearing the same clothes for two days and the same were smelling of kerosene. Moreover, it is the case of the prosecution that Shubhangi herself had poured kerosene on her body and the appellant had ignited the matchstick and had thrown it on her. Hence, presence of kerosene on the clothes of the appellant cannot be reconciled with the case of the prosecution.

Considering the aforesaid nature of evidence, we do not find that the prosecution has succeeded in proving its case beyond reasonable doubt. The prosecution having relied heavily upon the Dying Declaration which has been found to be unacceptable and the other evidence not being sufficient to point out the guilt of the appellant, his conviction for having committed offence punishable under Section 302 of the Indian Penal Code cannot be sustained. Similarly, there is no evidence brought on record to bring home the charge under Section 498-A of the Penal Code. PW 3, who was the neighbour, has merely spoken about frequent quarrels between the couple. Though PW 10, the mother of the deceased, has referred to a report dated 29th December, 2011 [Exh.56], the same is not sufficient to sustain the conviction of the appellant under Section 498-A of the Penal Code.

As a result of the aforesaid discussion, the following order is inevitable:-

ORDER

(a) Judgment and Order dated 30th December, 2014 delivered by learned Additional Sessions Judge-7, Nagpur, in Sessions Trial Case No. 290 of 2013 is quashed and set aside.

(b) Conviction of the appellant under Sections 302 and 498-A of the Indian Penal Code is accordingly quashed.

(c) The appellant be set free immediately, if his custody is not required in any other matter.

(d) Seized Muddemal property be destroyed after lapse of appeal period.