Purushottam vs The State of Maharashtra

P.V. Hardas, J—The appellant, who stands convicted for the offence punishable under Sections 498-A and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1,000/-, in default of which to undergo further rigorous imprisonment for 1 and 1/2 months and imprisonment for life and to pay a fine of Rs. 1,000/-, in default further to undergo rigorous imprisonment for 6 months, by the Extra Joint Ad-hoc Additional Sessions Judge, Chandrapur, by the judgment dated 15/2/2012 in Sessions Case No. 56/2011, by this appeal questions the correctness of his conviction and sentence.

Facts, as are necessary for the decision of this appeal, may briefly be stated thus:

"P.W.14 Head Constable Naresh Shelki, who was attached to the City Police Station Chandrapur and was on duty on 4/1/2011 at the police Chowky of the General Hospital Chandrapur, was issued with an intimation regarding the admission of one Pratibha with burns. The said memo is at Exh. 49. According to P.W.14 Head Constable Shelke, he proceeded to the hospital and inadvertently recorded the statement of the appellant at Exh. 69 instead of recording the dying declaration of Pratibha. It appears that Pratibha, who had sustained 99% burns, immediately succumbed to her injuries."

P.W.13 A.P.I. Manish Bansod, who was attached to police station Rajura, was entrusted with the investigation of crime, which has been registered on the basis of the report of P.W.9 Vivekanand, brother of deceased Pratibha. On being entrusted with the investigation, P.W.13 A.P.I. proceeded to the scene of incident and in presence of Panchas drew scene of incident panchanama at Exh. 15. From the scene of the incident, he seized several incriminating articles. Photographs of the scene of the incident were taken. Statements of witnesses were recorded and the appellant/accused was arrested under arrest memo at Exh. 58. The appellant/accused was arrested on 8/1/2011. On 9/1/2011, the clothes of the appellant were seized in the presence of Panchas under seizure memo at Exh. 36. The seized property was referred to the Chemical Analyzer for examination under requisition at Exh. 54. Request was made to the Judicial Magistrate, First Class, for recording the statements of witnesses under Section 164 of the Criminal Procedure Code. The said letter is at Exh. 59. Further to the completion of investigation, a charge-sheet against the appellant was submitted.

Postmortem on the dead body of deceased Pratibha was performed by P.W.12 Dr. Sheetal Todase, who noticed that deceased Pratibha had sustained 99% burns. Deceased Pratibha succumbed to her injuries on 4/1/2011. According to P.W.12 Dr. Todase, the deceased had died due to 99% burns with hypo volumic shock. The postmortem report is at Exh. 44. On case being committed to the Court of Sessions by the trial Court, vide Exh. 6 charge was framed against the appellant for the offence punishable under Sections 498A and 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The defence of the appellant was of denial. The prosecution, in support of it''s case, examined 14 witnesses. The trial Court relied on two circumstances (1) the oral dying declaration of deceased Pratibha to P.W.9 Vivekanand and (2) the presence of the appellant at the scene of the incident as deposed to by P.W.3 Shri Nanaji and P.W.6 Shri Ashok to prove the offence against the appellant beyond reasonable doubt.

We have heard Shri A.R. Fule learned counsel h/f Shri S.V. Sirpurkar, learned counsel for the appellant and Shri S.S. Doifode, learned Additional Public Prosecutor for the State/respondent at length. In order to effectively deal with the submissions made by the learned counsel for the parties, it will be useful to refer the evidence of prosecution witnesses.

The prosecution has examined P.W.9 Vivekanand - brother of deceased Pratibha, who deposed that deceased Pratibha was married to the appellant. The appellant was addicted to liquor and used to drive Pratibha out of the house and to assault deceased Pratibha. According to P.W. 9 Vivekanand, deceased Pratibha used to frequently narrate the ill-treatment given by the appellant to her. In respect of the incident, he deposed that on receiving the message that Pratibha had sustained burns, he had rushed to the hospital. He had noticed that Pratibha had sustained burns and had questioned Pratibha as to how she had sustained burns. Pratibha had informed him that on the day of the incident, when her children had gone to school, the appellant came home at about 3 to 3.30 p.m. in an inebriated condition and took her in room and latched the room from inside. The appellant thereafter denuded Pratibha and fell her on the ground and poured kerosene and set her ablaze. According to P.W.9 Vivekanand, the appellant did not permit Pratibha either to stand or to leave the room. Thereafter neighbours had assembled and had extinguished the fire and Pratibha was admitted in the hospital. Pratibha had requested that she should be given something to eat but according to P.W.9 Vivekanand the Medical Officer had clearly instructed that Pratibha should not be given anything to eat and also she should not be administered water. According to P.W.9 Vivekanand within one hour of admission of Pratibha to the hospital, she succumbed to her injuries.

The learned counsel for the appellant has urged before us that so-called dying declaration made by Pratibha to P.W.9 Vivekanand is incredulous on the face of it. If at all she had deposed about the circumstances leading to her death, P.W. 9 Vivekanand would have lodged the report immediately. The report, it appears, was lodged on 7/1/2011 though the incident had occurred on 4/1/2011. The learned Additional Public Prosecutor has urged before us that the evidence in respect of oral dying declaration is extremely clinching and the trial Court has rightly relied upon the same.

The evidence in respect of oral dying declaration is primarily a weak piece of evidence. An oral dying declaration is easy to be introduced in evidence especially when the statements of witnesses are recorded belatedly. In the present case though the declaration was made by Pratibha to P.W.9 Vivekanand on the day of the incident itself, P.W.9 Vivekanand chose to lodge his report after 3 days. In our opinion, therefore, in the face of such evidence, implicit reliance cannot be placed on the evidence of the oral dying declaration. Further we find that there is no evidence regarding the state of health of Pratibha at the time of making oral dying declaration. No Medical Officer is examined by the prosecution to prove that Pratibha was alive when she was admitted in hospital.

We are left with the second circumstance against the appellant i.e. presence of the appellant in the room particularly when door was broken open. Prosecution has examined P.W.9 Vivekanand who deposed about the same, however, the evidence of other two witnesses cannot be relied upon as they do not support the prosecution and were declared hostile. The evidence of P.W. 3 Nanaji and P.W. 6 Ashok establishes that when the door was broken open and the neighbours had rushed inside the room, they had noticed that appellant was standing near his wife i.e. deceased Pratibha. As rightly pointed out by the learned counsel for the appellant we do not find that implicit reliance can be placed on the oral dying declaration. Mere presence of the appellant inside the room when the door was broken open would not necessarily lead to an inference that accused had committed an offence and it was the appellant who had poured kerosene and set her ablaze. Such an inference in the absence of absence of any other evidence, cannot be sustained.

It is well to remember that in cases resting on circumstantial evidence, the prosecution is required to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of conclusive nature. The circumstances so proved should form a complete chain and it should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be capable to only one hypothesis i.e. the accused and the accused alone has committed the crime. A reference may usefully be made to the judgment in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 .

The circumstance i.e. the accused alone was present in the room would not, therefore, necessarily lead to an inference that it was accused who has set his wife ablaze. The possibility of deceased committing suicide also cannot be ruled out. The evidence in respect of charge under Section 498-A is extremely vague and, therefore, in our opinion, even the offence punishable under Section 498-A of the Indian Penal Code is not proved. The appellant is, therefore, entitled to be given benefit of doubt.

Accordingly, criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted for the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.