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Judgment
The appellant assailed the judgment of
conviction in Sessions Trial No. 88/2000 passed by learned
Sessions Judge, Amravati by which she is sentenced to
suffer imprisonment for life and to pay a fine of Rs. 1000/- in
default to suffer rigorous imprisonment for one month for the
offence punishable Section 302 of the Indian Penal Code.
The case of the prosecution against the
appellant in short is as under:-
(i) The appellant was the wife of the deceased
Indrajit Wankhade. She always used to come to her mother
at Nerpingalai. Her husband was residing at Shimbhora. On
the day of incident, deceased Indrajit went to fetch appellant
from her mother''s house at Nerpingalai. Deceased was
accompanied by his cousin brother Shankar Wankhade.
(ii) Deceased - Indrajit requested the appellant to
return back with him to Shimbora. But, appellant /wife
informed him that whenever she wish, she will come.
Deceased Indrajit compelled her to come with him. It was
about 11.00 p.m. in the night. At that time, the appellant
poured kerosene on the person of deceased - Indrajit and
set him on fire. Deceased - Indrajit sustained burn injuries.
He was brought to Primary Heath Center, Ner Pingalai.
(iii) Dr. Shriram Sonone informed about the patient
to Shri Rangnath Jagtap, P.S.I. Police Station Shirkhed.
Shri Jagtap, P.S.I. went to the Primary Health Center. There
he reduced the report in writing of deceased - Indrajit. On
the basis of report, crime was registered against the
appellant.
(iv) Deceased - Indrajit was serious and he was
shifted to the Civil Hospital, Amravati where Special
Executive Magistrate recorded his dying declaration on
03.07.1999. In the said dying declaration deceased stated
before the Special Executive Magistrate that the appellant
and her mother both set him on fire. Charge-sheet was filed
after complete investigation. As usual, charge-sheet was
committed to the Court of Sessions.
Learned Sessions Judge framed charge at
Exhibits-29 and 30 against appellant and her mother.
The prosecution has examined the following
witnesses:-
(i) PW-1, Dr. Shriram Sonone, at Exhibit-13.
(ii) PW-2, Narendra B. Chinche, at Exhibit-14
(Panch Witness).
(iii) PW-3, Rangnath Jagtap, P.S.I. at Exhibit-18.
(iv) PW-4, Sudhir E. Deshpande, at Exhibit-24.
The learned trial Court recorded the statement of
appellant under Section 313 of Criminal Procedure Code.
She has denied material incriminating evidence against her.
After hearing the prosecution and defence, the learned trial
Court relied on the dying declaration at Exhibit-14 and
convicted the appellant for the offence punishable under
Section 302 of Indian Penal Code. Learned trial Court
acquitted mother of appellant by discarding Exhibit-24.
Dr. Shriram Sonone (PW-1) was working as a
Medical Officer at Primary Health Center, Nerpingalai. He
has stated in the evidence that on 02.07.1999 at about 11.30
p.m. one patient was brought due to burn injuries. The
patient was admitted in the Hospital. He informed the Police
Station, Shirkhed. He inquired with the patient. Patient
stated that his wife poured kerosene and set him on fire. He
has further stated that Shri Jagtap, P.S.I. came to Primary
Health Center and obtained his certificate for recording dying
declaration.
Shri Narendra B. Chinche (PW-2) not supported
to the prosecution He was declared hostile. During the
cross-examination, Spot Panchanama and Seizure
Panchanama at Exhibits-16 and 17 got proved.
Shri Jagtap, P.S.I. (PW-3), has stated in his
evidence that on 02.07.1999 in the midnight at about 12.00,
he went to Primary Health Center, Nerpingalai. He asked
the Doctor whether he can record the statement. Doctor
informed him that he is conscious and he is in a position to
give statement. Thereafter, he recorded the statement of
deceased - Indrajit.
Deceased Indrajit stated him that "his wife
always come to her parents'' house. He went to fetch her.
He asked her to come with him but, she refused to come and
told that she would come as per her wish. Then, he
compelled her to come with him. Thereafter, she poured
kerosene from can. Thereafter, she set him on fire by
matchstick. Therefore, he sustained burn injuries. The
people adjacent to the area brought him to to the Hospital."
P.S.I. Jagtap (PW-3) has further stated that patient was
thereafter, referred to Irwin Hospital, Amravati. He went to
Police Station, Shirkhed, and registered crime for the offence
punishable under Section 307 of Indian Penal Code against
the appellant/Accused.
Shri Sudhir Deshpande (PW-4), has stated in his
evidence that on 03.07.1999, he was working as a Special
Judicial Magistrate, Amravati. At 09.25 a.m., he received
requisition to record the dying declaration of the deceased -
Indrajit. He went to Irwin Hospital, Amravati at about 09.30
a.m. He requested Doctor to ascertain whether patient was
in a position to give statement. Thereafter, Doctor examined
him. Doctor certified that the patient was conscious and he is
able to give dying declaration. Thereafter, he started
recording dying declaration. He asked him his name and
residence. On inquiry, deceased stated about the incident.
Exhibit-26 was proved by the Sudhir Deshpande (PW-4).
Learned Trial Court relied on the dying
declaration at Exhibit-14 recorded by the P.S.I. Jagtap (PW-
3), and came to the conclusion that the appellant committed
murder of her husband. There is no dispute about the death
by burning. The Post-Morten report at Exhibit-22 is admitted
by the defence.
Two dying declarations are on record. First
dying declaration at Exhibit-14 shows that he along with his
cousin brother, Shankar Wankhade went to fetch the
appellant. The appellant was not ready to come with him.
Deceased - Indrajit insisted her to come with him therefore,
appellant poured kerosene and set him on fire.
In the first dying declaration deceased not stated
anything about his mother-in-law. In the second dying
declaration at Exhibit-26, deceased - Indrajit stated before
Sudhir Deshpande (PW-4). That, "when he went to fetch his
wife/appellant, she was not ready to accompany with him.
There was quarrel between them. In the quarrel his wife
/appellant poured kerosene and her mother Sushila set him
on fire".
Initially charge was framed against appellant
only vide Exhibit-9. But, later on, again charge was framed
against mother of the appellant vide Exhibit-29.
Heard learned Advocate Shri R. M. Daga for the
appellant. He has pointed out the material contradiction in
dying declaration at Exhibits-14 and 26. Learned Advocate
has submitted that both the dying declarations are
contradictory therefore, cannot be relied. Learned Advocate
has submitted that cousin brother of deceased was with him
at the time of incident, but he was not examined by the
prosecution. Evidence of Dr. Shriram Sonone, (PW-1) and
Shri Jagtap, P.S.I. (PW-3) are not reliable therefore, the
appellant is entitled for acquittal.
Heard learned Additional Public Prosecutor Shri
J. Y. Ghurde. He has submitted that learned Trial Court
rightly convicted the appellant relying on the dying
declaration at Exhibit-14. There is no merit in the appeal.
Hence, the appeal is liable to be dismissed.
There is no dispute about the death of deceased
due to burn injuries. Exhibit-22 post-Morten report admitted
by the defence.
Now, it is settled law that the conviction can be
awarded on the basis of dying declaration, provided it should
inspire confidence of the Court. Keeping this principle in
mind, the Court has to decide whether the dying declaration
is reliable or not. Dying declaration is to be scrutinized very
carefully because, the dead person cannot be called for
cross-examination to verify the truthfulness of the statement
made by the deceased person.
Oral dying declaration stated by Dr. Shriram
Sonone (PW-1) is not reliable. Dr. Shriram Sonone (PW-1)
was Medical Officer. It was his duty to record history of the
patient in the record of Hospital. He did not record any
history in respect of the statement made by the deceased.
He informed about the condition of deceased to Shri Jagtap,
P.S.I. (PW-3). Dr. Shriram Sonone (PW-1) denied about the
presence of the brother of the deceased in the Hospital.
Dying declaration at Exhibit-14 itself shows that deceased
was accompanied by his cousin brother namely Shankar
Wankhade. Shri Jagtap, P.S.I. (PW-3) has admitted in his
cross-examination that when he reached to the Primary
Health Center, he came to know that Shankar Wankhade
was in the Hospital. Therefore, it is clear that the possibility
of tutoring by Shankar Wankhade cannot be ruled out.
It is pertinent to note that in first dying
declaration allegations are made against the appellant stating
that the appellant poured kerosene and set the deceased on
fire. Exhibit-14 itself shows that deceased was accompanied
by his cousin brother Shankar Wankhade. Shankar could
have saved deceased. Deceased would have run away
when appellant thrown (poured) kerosene on his person.
Moreover, Shankar Wankhade was the material witness for
the prosecution. Prosecution has not examined Shankar
Wankhade, thereby, suppressed the material evidence from
the Court.
Exhibit-14 is contradictory to Exhibit-26 recorded
by Shri Sudhir Deshpande (PW-4). In Exhibit-14, deceased
has stated that appellant poured kerosene and set him on
fire, whereas, in Exhibit-26, he has stated that there was a
quarrel between deceased (Indrajit) and appellant. Appellant
poured kerosene and her mother Sushila set the deceased
on fire by igniting matchstick. The learned Trial Court rightly
acquitted the mother of the appellant. But not considered the
contradictory version of deceased - Indrajit in both the dying
declarations while convicting appellant.
When the dying declaration is not truthful then it
cannot be relied on. Learned Trial Court ought to have
considered the contradictory statement made by the
deceased - Indrajit in dying declarations. Dying Declaration
at Exhibit-14 is relied on by the Trial Court and wrongly
convicted the appellant. In Exhibit-14, he has specifically
stated that he was accompanied by his brother but his
brother was not examined by the prosecution. Material fact is
suppressed by the Court by not examining the brother of the
deceased. Moreover, it is matter of common sense that
when wife (appellant) poured kerosene on the person of
deceased (Indrajit), deceased could have ran away. That
time his brother Shankar Wankhade could have saved him.
In Exhibit-26, deceased has stated a different version stating
that his wife/appellant poured kerosene and his mother
Sushila set him on fire. Both the dying declarations are
contradictory. There is no other evidence to corroborate any
of the dying declarations. Hence, only on the basis of dying
declaration, the accused/appellant cannot be convicted.
As per catena of judgment of the Hon''ble Apex
Court, that when dying declarations are not reliable and it
creates doubt about the incidence then there should be
corroboration by other evidence. In catena of judgment of
Hon''ble Apex Court observed that that accused can be
convicted only on the basis of dying declaration, provided it
should inspire confidence of the Court. In the present case,
Exhibit-14 which is relied by the trial Court does not inspire
confidence of the Court. It is contradictory to Exhibit-26. The
presence of Shankar Wankhade at the time of recording
Exhibit-14 could not be ruled out. Dr. Shriram Sonone (PW-
1) stated that Shankar Wankhade was not present, but P.S.I.
Jagtap (PW-3) has stated in his evidence that Shankar
Wankhade was present in the Hospital. All these evidence
clearly show that dying declaration Exhibit-14 is not reliable.
Learned trial Court wrongly convicted the appellant/wife of
the deceased only on the basis of dying declaration at
Exhibit-14, which is not corroborated by any other evidence.
Moreover, it is contradictory to another dying declaration at
Exhibit-26. Hence, we pass the following order:-
(I) The appeal is allowed.
(ii) The impugned judgment is hereby quashed and
set aside.
(iii) The appellant is hereby acquitted of the offence
punishable under Section 302 of Indian Penal
Code.
(iv) The appellant is on bail. Her bail bond
stands canceled.
(v) Fine, if any paid by the appellant, be refunded.
(vi) R. and P. be sent back to the Trial Court.