Vishnu vs The State of Maharashtra

B.R. Gavai, J—The appellant being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Achalpur in Sessions Trial No. 86/10, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000/- and in default to suffer further R.I. for six months and convicting him for the offence punishable under Section 498-A of the Indian Penal Code and sentencing him to suffer imprisonment for two years and to pay a fine of Rs. 500/- and in default to suffer further R.I. for three months, has approached this Court by way of the present appeal.

The prosecution case in nutshell is as under :-

The appellant was married to deceased Shalu @ Trupti in the year 2004. They were blessed with two children. The accused/appellant, deceased, two children and accused nos. 2 & 3 were all residing together. It is the prosecution case that the appellant and his parents used to illtreat the deceased. It is also the prosecution case that on account of illtreatment the deceased had returned to her parents and on an undertaking by the appellant on a stamp paper, she had returned to the house of the appellant and his parents. It is submitted that thereafter though the appellant treated the deceased properly for four months, on 27.4.2010 under the influence of liquor, he poured kerosene on her person and set her on fire. It is also the prosecution case that accused thereafter poured water on her person and ran away.

The deceased was initially brought to hospital at Daryapur and from there referred to General Hospital, Amravati. The dying declaration came to be recorded by Executive Magistrate PW.4 Prakash Gormale. The said dying declaration was carried by Police Constable PW.10 Shrikant Meshram on the instructions of Police Inspector, City Kotwali to Police Station Daryapur. On the basis of the said dying declaration, First Information Report came to be recorded by PW.11 Ravindra Dongre P.I. The deceased succumbed to injuries on 28.4.2010 and as such, the offence came to be converted to Section 302 of Indian Penal Code. The chargesheet came to be filed against all the three accused for the offence punishable under Sections 498-A & 302 of the Indian Penal Code in the Court of J.M.F.C., Daryapur. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Achalpur. The learned trial Judge framed the charges for the offence punishable under Sections 302 & 498-A of the Indian Penal Code. The accused pleaded "not guilty" and came to be tried. At the conclusion of the trial, the learned trial Judge acquitted the accused nos. 2 & 3 and passed the order of conviction and sentence as against the present appellant.

Shri Sachin Zoting, learned Counsel appearing for the appellant, submits that the learned trial Judge has grossly erred in convicting the appellant. He further submits that the FIR which is registered by PW.10 Shrikant Meshram showing the PW.10 as the first informant is not an FIR in the eyes of law. He submits that PW.10 Shrikant was only a carrier of dying declaration to Police Station. He further submits that the dying declaration written as well as oral is not free from doubt and as such, the conviction only on the basis of dying declaration is not sustainable. He further submits that though the statement of the son of the deceased and appellant was recorded by the police, for the reasons best known to the prosecution the said son has not been examined. He further submits that Shantabai - the maternal aunt of the deceased was also present in the house and she had also sustained certain injuries. He submits that she was the best person to throw light on the incident. However, the prosecution has not examined her. The learned Counsel submits that in the totality of circumstances, the prosecution has failed to prove the case beyond reasonable doubt and as such, the appeal deserves to be allowed and the appellant be acquitted of the offences charged with.

Mr. S.B. Ahirkar, the learned Additional Public Prosecutor for respondent, on the contrary submits that this is an open and shut case. He submits that on having a look at dying declaration, the Court would find that the dying declaration is sufficient enough to sustain the order of conviction and no further enquiry is needed by the Court.

With the assistance of the learned Additional Public Prosecutor and the learned Counsel for the appellant, we have scrutinized the entire evidence.

Basically the case rests on the dying declaration recorded by Executive Magistrate PW.4 Prakash Gormale and the oral dying declaration allegedly made to the relatives of the deceased.

PW.4 Prakash Gormale in his evidence states that while recording the dying declaration he had asked PW.12 Dr. Prashant to medically examine the deceased. He further states that only after PW.12 Dr. Prashant certified regarding the mental and physical fitness of the deceased to record the statement, he has recorded the dying declaration. He further states in his evidence that after the dying declaration was recorded, he requested the Medical Officer PW.12 Dr. Prashant to opine as to whether Shalu @ Trupti was in a fit condition while giving her statement. He states that accordingly PW.12 has issued the certificate. He has further stated in the evidence that he has mentioned in the dying declaration below Exh. 47 that after recording the same, he had read over the contents to her and she admitted the contents as correct. He has further stated in his deposition that it was incorrect to say that thumb and fingers of Shalu of both the hands were burnt.

No doubt that the Court can rest an order of conviction solely on the basis of dying declaration. However, same can be done only if it is found that the dying declaration is cogent, reliable and trustworthy. We have personally gone through the original dying declaration. No doubt that in the said dying declaration the deceased has clearly implicated the present appellant. She has stated that her husband had poured kerosene on her person and set her on fire. She further states that thereafter he poured the water from utensil on her person and extinguished the fire. However, the Medical Officer has simply signed at the bottom of the dying declaration. There is no certification by the Medical Officer that the patient was throughout in mentally and physically fit state of mind to give dying declaration. Apart from that, the Executive Magistrate clearly states in his evidence that after the dying declaration was recorded, he has mentioned in the dying declaration that he had read over the contents of the same and she had admitted the same as correct. As per the settled law, such an endorsement has to be there in the handwriting of the Executive Magistrate. However, in the present case, leave apart there being an endorsement in the handwriting of the Executive Magistrate, even in the printed form it is not there. The learned Counsel for the appellant has relied on the decision in Shaikh Bakshu and Others Vs. State of Maharashtra on the point that presuming that the dying declaration was read over and explained to the deceased is unacceptable.

Another glaring fact is that in the dying declaration there is an impression of right hand thumb of the deceased. The perusal of the said thumb impression would show that the same is full of ridges. In this respect, reliance is placed by the learned Counsel for the appellant on the decision in the case of The State of Punjab Vs. Gian Kaur and Another, AIR 1998 SC 2809 : (1998) CriLJ 2061 : (1998) 2 Crimes 25 : (1998) 2 JT 563 : (1998) 2 SCALE 393 : (1998) 1 UJ 719 : (1998) AIRSCW 1407 : (1998) 3 Supreme 179 . Though the Executive Magistrate has stated that the thumb and fingers of Shalu were burnt, the same is contrary to the postmortem report and the evidence of PW.12 Dr. Prashant. The postmortem report would show that the upper limbs of right as well as left side were fully burnt. Not only that, the Medical Officer PW.12 Dr. Prashant in his deposition clearly admits that both the hands, fingers and thumbs were burnt. He has stated in his cross-examination that he cannot tell if due to the hands of the patient Shalu were burnt, if thumb of her toe was obtained. He has also admitted that he cannot tell as to whether the thumb impression on dying declaration is that of patient or if it is that of thumb impression of her toe. He has stated that process of taking thumb was not done in his presence. He has also admitted in his cross-examination that after completion of dying declaration, he did not mention about physical and mental condition of the patient. He has stated that Exh. 86 is the certificate about completion of dying declaration after completing the dying declaration.

It can thus clearly be seen that the dying declaration is full of lacunae. Serious doubt is cast regarding the reliability and genuineness of the same. The very presence of the thumb impression when admittedly even according to PW.12 Dr. Prashant her thumbs were burnt casts a great suspicion on the reliability of the said dying declaration. We find that it will not be safe to rest an order of conviction on the basis of such a suspicious dying declaration, which is full of lacunae.

That leaves us with the statements of PW.5 Panjabrao - father of the deceased, PW.6 Rukhma - mother of the deceased, PW.7 - Gopal - cousin of the deceased, PW.8 Meena friend of the deceased and PW.9 Mandabai - aunt of the deceased. No doubt that all these witnesses narrate about the deceased telling them about the appellant pouring kerosene on her person and setting her on fire. However, it is to be noted that all these witnesses are interested witnesses. The possibility of their deposing falsely cannot be ruled out.

Apart from that, the very fairness of the prosecution case is in question in the present case. PW.5 Panjabrao has clearly admitted in his examination-in-chief that after the incident occurred, he came to know about Shantabai, who had also sustained burn injuries. He further states that he and Shantabai had both gone to Police Station immediately after the incident had occurred. The information which was given by PW.5 Panjabrao and Shantabai to the Police Station, Daryapur has not been put forth by the prosecution. Apart from that, though Shantabai was personally present in the house and was related to the deceased, for the reasons best known to prosecution, her evidence has been withheld. Not only that, but from the perusal of the application at Exh. 112 and the order passed by the learned trial Judge thereon, it will be clear that though the statement of minor son of the appellant and the deceased, namely, Pankaj was recorded, he was also not examined. Apart from that, the evidence of PW.13 Investigating Officer Sayed Jalil would clearly show that the conduct of the investigation has not been fair. He has categorically admitted in his cross-examination that statements of the persons disclosed by the father of the deceased were recorded by him. Though he talks of recording of statements of persons in the neighbourhood of the deceased, in the next breath, he states that they were interrogated by him but since they did not support the case of the complainant, the statements were not annexed in the case. The said admission of the I.O. is sufficient enough to throw a serious doubt upon the fairness of the investigation.

In so far as conviction of the appellant for the offence punishable under Section 498-A of the Indian Penal Code is concerned, we fail to understand as to on what basis the conviction is recorded by the learned trial Judge. There is no iota of evidence to establish the complicity of the present appellant for the offence punishable under Section 498-A of the Indian Penal Code.

In the result, the Criminal Appeal is allowed.

The judgment and order of conviction and sentence passed by Additional Sessions Judge, Achalpur dated 24.7.2012 in Sessions Trial No. 86/10 against the appellant is set aside.

The appellant is acquitted of the charges framed against him.

The appellant is directed to be set at liberty forthwith, if not required in any other case.

Fees payable to the learned Counsel appointed for the appellant are quantified at Rs. 5000/-.