Bombay High Court
At Present Central Jail vs State Of Maharashtra on 30 October, 2012
Bench: P.V. Hardas, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.550 OF 2011
Sharifabi w/o. Sabirshah,
Aged about 66 yrs., Occ.
Housewife, r/o. Nerpingalai,
Tq. Morshi, District Amravati.
(At present Central Jail, Amravati). ........ APPELLANT
// VERSUS //
State of Maharashtra,
through P.S.O., Police Station,
Shirkhed, Amravati. ........ RESPONDENT
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Mr. R.M.Daga, Adv. for the Appellant.
Mr. R.S.Nayak, A.P.P. for Respondent/State.
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Coram: P.V.HARDAS &
A.P.BHANGALE, JJ.
Date : 30.10.2012.
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ORAL JUDGMENT (Per A.P.Bhangale, J) :
1. This appeal is directed against the Judgment and Order
dated 14th October, 2011 passed by the learned Ad-hoc Additional
Sessions Judge, Amravati in Sessions Trial No.31 of 2011 whereby the
appellant/accused herein was convicted for the offence punishable
under Section 302 of the Indian Penal Code and was sentenced to
suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/-,
in default to suffer further rigorous imprisonment for one month.
2. The facts, briefly stated, are as under :
That, on 14.8.2012, at about 2.00 p.m. there was a quarrel
between deceased Shayedabi and the appellant/accused. Upon such
quarrel, the appellant went inside the house and brought a Can
containing kerosene. She then poured kerosene on the person of
deceased Shayedabi and set her ablaze. After the deceased raising
shouts, her husband came there and extinguished the fire. Crime
No.162 of 2010 was registered initially under Section 307 of the
Indian Penal Code at Police Station, Shirkhed, District Amravati on
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the basis of dying declaration of the deceased. However, during
treatment, deceased Shayedabi succumbed to her burn injuries and
therefore, the offence punishable under Section 302 of the Indian
Penal Code came to be added. During the course of investigation, spot
panchanama and inquest panchanama of the dead body were
prepared. From the spot of incident, certain burnt clothes, plastic Can,
burnt pieces of clothes, match-stick, mud were seized. Also, Kurti
smelling of kerosene, Odhani, frock etc. were seized from the
appellant. Thereafter, post-mortem examination of the dead body was
done. The seized articles were sent for chemical analysis. After
completion of investigation, charge sheet was filed against the
appellant before the Judicial Magistrate, First Class, Morshi, who, in
turn, committed to the Case to the Court of Session. Charge was
framed against the accused vide Exh.6, under Section 302 of the
Indian Penal Code. The accused pleaded not guilty and claimed trial.
She denied the charge, took defence of false implication and claimed
trial.
3. We have heard Mr.R.M.Daga, learned Counsel for the
appellant and Mr.R.M.Nayak, learned A.P.P. for respondent/State.
Mr.R.M.Daga, learned Counsel for the appellant submits that the trial
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Court erred totally in placing reliance upon the dying declaration
(Exh.34) given by the deceased to Prabhakar Sewane, Naib-Tahsildar,
especially when, in fact, no independent prosecution witness has
supported its case. He submitted that the learned trial Judge ought to
have held that the evidence in the form of alleged dying declaration
was doubtful because the incident, as alleged, occurred on 14.8.2010,
at about 2.00 p.m. While, Prabhakar (PW-7) (Naib- Tahsildar)
recorded the dying declaration after much delay i.e. at about 8.15 p.
m., that too in the form of the blanks being filled in a printed format.
The dying declaration in column 4 mentions that nobody was present
when the incident occurred. The Naib-Tahsildar did not mention that
the contents of the alleged dying declaration were read over to the
deponent and she was conscious all along and she admitted the
correctness of the contents recorded. In the absence of such specific
endorsement by the responsible Government Official, it is submitted
that the dying declaration cannot be accepted as reliable, truthful and
voluntary evidence. It is further submitted that there was no
corroborative evidence for the trial Court to act upon. Learned
Advocate for the appellant contended that there was scope for
tutoring, prompting or imagination since there was a huge time gap
between the occurrence time at 2 p.m. and the time when the dying
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declaration in question was recorded at 8.15 p.m. It is submitted that
benefit of doubt must have been given to the accused.
4. Mr.R.S.Nayak, learned A.P.P. has supported the judgment
and order impugned and prays for dismissal of the appeal.
5. Turning to the prosecution evidence; Tulshiram Nathuji
Raut (PW-1) deposed about preparation of spot panchanama in his
presence at the house of the deceased. Sahidabee Usmansha (PW-2) is
a neighbour of the appellant who turned hostile and who expressed
her ignorance about the incident and also about any quarrel between
the accused and the deceased. Ramjansha Mehebubsha (PW-3) is
husband of the deceased. However, he did not support the
prosecution case and was cross-examined by the learned A.P.P. In his
cross-examination, witness Ramjansha stated that his wife was totally
burnt except her hair and was not properly talking till she was
brought at the hospital at Amravati. Sahanazbee Habibsha (PW-4) is
the sister-in-law of the appellant. She deposed that she does not know
how the deceased burnt and that she went to the spot on hearing
shouts. She was cross-examined by the learned A.P.P. In her cross-
examination by the defence Counsel, she stated that the deceased was
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unconscious when she was taken to Amravati from Ner in an
Ambulance, in which Nazirsha, Rahim and Ramjansha were present
along with her. She further stated that the deceased was unconscious
till about 9.30 p.m. Dr. Smita Suresh Jaisingkar (PW-5) had examined
Ramjansha and had found certain injuries on his body.
6. Dr. Varsha Vinod Rode (PW-6) is a Medical Officer who
was attached to General hospital, Amravati at the relevant time. She
deposed that, on 14.8.2010, she had examined the deceased in
presence of Executive Magistrate and found that the deceased was fit
for giving statement and accordingly, put endorsement vide Exh.32.
Thereafter, the Executive Magistrate recorded her statement in her
presence. According to her, the deceased was fully conscious and well
oriented while recording her statement. In her cross-examination,
Dr.Varsha (PW-6) stated that, as per the record, the deceased had
burn injuries to the extent of 85 %. Prabhakar Keshavrao Sewane
(PW-7) was Naib-Tahsildar at Amravati Tahsil. He deposed that on
14.8.2010 he went to the hospital at 6.30 p.m. for recording the dying
declaration of the deceased. He gave memo to the Medical Officer and
requested him to examine the patient as to whether she is fit to give
statement. On the doctor examining the patient and reporting that
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she is fit, he ousted all the relatives of the deceased and recorded the
dying declaration of the deceased. In his deposition, he further stated
that the patient narrated to him that, on 14.8.2010, at about 2.00
p.m., there was a quarrel in between the appellant and the deceased
and thereafter, the appellant brought kerosene can from inside the
house, poured kerosene on the deceased and set her on fire. In the
cross-examination, he stated that the doctor came at 7.55 p.m. and
then he examined the deceased. He, thereafter, denied the
suggestions given by the defense. Baburao Ramchandra Patode (PW-
8) is a retired A.S.I. On 15.8.2010 he was attached to Police Station
Shirkhed. He had visited the spot of incident and prepared spot
panchanama. He seized certain articles from the spot and also seized
clothes of the accused and recorded statements of witnesses. He had
also sent the seized articles to the Chemical Analyzer for analysis.
7. Upon considering the aforesaid evidence of prosecution
witnesses and on perusal of the impugned judgment, it is clear that the
learned trial Judge has convicted the accused on the basis of material
canvassed as supporting the evidence in the form of dying declaration.
Eg. Seizure of the clothes of the appellant/accused i.e. Salwar, Kurta,
Odhani etc. which were seized and sent for Chemical examination, on
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examination showed kerosene residues; the husband of deceased
Ramjansha seeing the accused coming out of the house while the
deceased was burning coupled with the evidence of Dr.Varsha Rode
(PW-6) and Prabhakar Sewane (PW-7). The trial Court, it seems, is
mainly relying on the dying declaration. Since there is no direct
evidence to the effect that any witness saw the appellant pouring
kerosene on the person of the deceased and setting her on fire, nor
there was any motive for the appellant to do such an heinous act
without caring for the consequences to follow and even when we do not
have any witness has having knowledge of the quarrel taken place
between the appellant and the deceased, the circumstance in respect of
the husband of the deceased finding the appellant coming out of his
house at the time of incident and finding of kerosene residues on the
clothes of the appellant cannot be said to be unmistakably pointing out
towards the guilt of the appellant.
8. The Honorable Apex Court has held in several cases that
there is no bar for basing conviction solely on the dying declaration, but
the same should be tested about its voluntariness and truthfulness. The
Hon'ble Apex Court in P. Mani vs. State of T.N. reported in (2006) 3
SCC 161 has held as follows :
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" Dying declaration must be wholly reliable. In case of
suspicion, the Court should seek corroboration. If evidence
shows that statement of deceased is not wholly true, it can
be treated only as a piece of evidence, but conviction cannot
be based solely upon it. It is further held that indisputably
conviction can be recorded on the basis of dying declaration
alone, but therefor the same must be wholly reliable. In a
case where suspicion can be raised as regards the correctness
of the dying declaration, the Court before convicting an
accused on the basis thereof would look for some
corroborative evidence. Suspicion, it is trite, is no substitute
for proof."
9. We must bear in mind that the evidence in the nature of
dying declaration is a piece of evidence which is untested by the cross-
examination. It must be proved as true and absolutely safe to act upon
it after careful scrutiny thereof. It is surprising to note that the husband
of the deceased Ramjansha has mentioned in his evidence that his wife
was totally burnt except her hair and was not properly talking till she
was brought at the hospital at Amravati. Moreover, witness Sahanazbee
Habibsha (PW-4), who is sister-in-law of the appellant, has deposed
that the deceased was unconscious from the moment she was taken to
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the hospital at Amravati from Ner in an Ambulance till about 9.30 p.m.
Under the circumstances, it appears doubtful that the deceased - having
sustained 85 % burns - might have been fully conscious and well-
oriented to give statement, as stated by Dr.Varsha Rode (PW-6) and
Prabhakar Sewane (PW-7). Under these circumstances the possibility
that the deceased might have received burn injuries accidentally cannot
be overruled. It is well settled legal position that in order to record
conviction on the basis of dying declaration, it must be established as
true, reliable and voluntary after due scrutiny of the evidence. The
Court must be satisfied that the deceased was in a fit mental state to
make the declaration and must ensure that the dying declaration was
not the result of tutoring, prompting or imagination.
10. In Kake Singh @ Surendra Singh .vs. State of Madhya
Pradesh reported in AIR 1982 SC 1021, it is held by the Honorable
Apex Court that where the deceased was unconscious and could never
make any dying declaration, the evidence with regard to it is to be
rejected.
11. In the cases of circumstantial evidence, motive is very
important unlike cases of direct evidence, where it is not so important
11 apeal550.11.odt
vide Wakkar and another vs. State of Uttar Pradesh, (2011) 3 SCC
306 (Para 14). No evidence was in picture to establish motive of the
appellant in the present case to do away with the deceased. There
was no concrete proof. The prosecution could not establish that the
accused had murdered the deceased by causing the burn injuries to
her.
12. The Criminal Court has to bear in mind that if two views
are possible upon the evidence led, one pointing towards the guilt of
the accused while the other pointing towards innocence of the
accused, then the view which is favourable to the accused should be
adopted to prevent miscarriage of justice which can result by
conviction of an innocent.
13. In the present case we find that there was no convincing
evidence to impute criminal liability positively to the accused in the
absence of wholly reliable and acceptable evidence. The accused is,
therefore, entitled to the benefit of doubt. In the result, the Criminal
appeal is allowed.
The conviction and sentence of the appellant is hereby
quashed and set aside and the appellant is acquitted of the offence
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with which she was charged and convicted.
Fine, if paid by the appellant, be refunded to her.
Since the appellant is in jail, she be released forthwith, if
not required in any other case.
JUDGE JUDGE
jaiswal
