Sharifabi W/O. Sabirshah Vs. State of Maharashtra - Court Judgment

Excerpt:
indian penal code, 1860 - section 302 evidence act, 1872 - section 32 – case law referred : 1. wakkar and another vs. state of uttar pradesh (2011) 3 scc 306 (para 11). 2. p. mani vs. state of t.n. (2006) 3 scc 161 (para 8). 3. kake singh @ surendra singh .vs. state of madhya pradesh air 1982 sc 1021 (para 10). comparative citations: 2013 all mr (cri) 261, 2013 (2) bcr(cri) 137oral judgment: (a.p. bhangale, j.) 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 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 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 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 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 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 (pw8) 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 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 : "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 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 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 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.