Ratan S/O. Babhootsingh Rathod Vs. State of Maharashtra (Through the Station Officer) - Court Judgment

Oral Judgment: (A.P. Bhangale, J.)

1. The appeal is preferred against the Judgment and Order of conviction passed by the learned Ad-hoc Additional Sessions Judge-3, Amravati on 23.6.2008 in Sessions Trial No.15 of 2008 whereby the learned trial Judge found appellant/accused Ratan Babhootsingh Rathod guilty and convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay a fine in the sum of Rs.1,000/-, in default to suffer rigorous imprisonment for six months. The appellant/accused was also found guilty for the offence punishable u/s.498-A of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for one year and to pay a fine in the sum of Rs.500/- in default to suffer rigorous imprisonment for three months.

2. The facts, which are stated briefly, are as under:

That, on or about 18.10.2007, a report was lodged at Police Station, Kurha, District Amravati by Ramchandra Dashrath Jadhav (brother of deceased Sunita). In the report, he stated that his sister Sunita was married with the appellant/accused and the couple was blessed with four daughters. But, on account of the fact that there was no male child, the couple used to quarrel with each other. It is further alleged that, on or about 17.10.2007, at about 10.30 a.m. the accused poured kerosene on the person of Sunita and set her on fire by igniting a match stick. People had gathered on the spot due to the shouts raised by Sunita and they poured water on the body of Suntia and extinguished the fire. Sunita succumbed to her injuries on 18.10.2007 at about 3.00 a.m. According to the first informant, deceased Sunita was blamed by the accused for the reason that she had only daughters and no son. It is the case of prosecution that Sunita was admitted in Irwin hospital, Amravati and during the period when she was conscious, she told the first informant that the accused had poured kerosene on her person from a can and ignited a match stick and set her on fire while she was running outside the house. However, there is no any recorded dying declaration by Sunita.

3. Initially, Marg bearing No.0 of 2007 was registered at City Kotwali Police Station, Amravati on 18.10.2007, about which report was sent to Police Station, Kurha. Police inquired about the occurrence and then registered offence vide Crime No.93 of 2007, under Section 302 of the Indian Penal Code. P.S.I. Narayansingh Jaisingh Dabherao (PW-6) investigated the case by recording statements of witnesses and arrested the accused. The mudemaal articles seized were referred to the Chemical Analyser, Nagpur. Post Mortem notes were collected during the course of investigation and upon completion of investigation, the accused was chargesheeted u/ss.302 and 498-A of the Indian Penal Code before the learned Judicial Magistrate, First class, Chandur Railway. Thus, the case was committed to the Court of Session at Amravati. The learned trial Judge framed charge (Exh.4). The accused pleaded not guilty and claimed trial. The accused denied his involvement in the alleged crime and contended that he was not present in the house at the time of incident and he had gone to the house of Sarpanch along with his friend Gnyaneshwar, when he came to know about the burn injuries suffered by his wife. When he reached home, he found that his wife was covered with a blanket. He inquired with her as to how she sustained burn injuries. His wife told him that, while she was trying to ignite hearth by a match stick, she had poured kerosene in the hearth and enlightened the same with the match stick, but her saree caught fire and in the result, she received burn injuries. According to his wife, Yashodabai poured water on her body and extinguished fire and then she was taken to hospital.

4. We have heard the submissions advanced at the bar. The vital questions in this appeal are : whether the prosecution has proved beyond all reasonable doubts that Sunita Ratan Rathod (deceased) met with homicidal death. Secondly, whether the accused caused her death by pouring kerosene on her body and setting her on fire with the help of a lighted match stick and thirdly, whether the accused has subjected Sunita to ill-treatment and cruelty.

5. Ms S.P.Kulkarni, learned Advocate (appointed) for the appellant took us through the entire evidence on record and submitted that the prosecution has failed to establish homicidal death of Sunita Ratan Rathod as also her alleged murder by the appellant/accused. She also submitted that there was no evidence at all to establish cruelty punishable under Section 498-A of the Indian Penal Code.

6. In order to answer the questions raised before us, we have perused the evidence on record. Although it is alleged that the incident of setting Sunita on fire occurred on 17.10.2007, at about 10.30 a.m. and according to the prosecution, she was conscious and able to narrate the incident and died at about 3 a.m. on 18.10.2007, prosecution did not summon any Magistrate or responsible Officer who could have recorded dying declaration of Sunita. Prosecution has examined Ramchandra Dashrath Jadhav (first informant) as PW-1. He alleged that Sunita gave birth to four daughters and not a son and therefore, the accused used to consume liquor and beat her. The evidence of Ramchandra (PW-1) is of a hearsay nature. According to him, his elder sister told him that Sunita was burnt and then he went to General hospital, Amravati. He alleges that Sunita was conscious and able to speak and when he asked her as to how the incident took place, she narrated the incident to him saying that, at about 10.30 a.m., a quarrel took place between her and her husband. She further told that her husband asked her as to why she gave birth to daughters only and why she was not able to give birth to a son. Further saying that why she did not die and he will kill her, the appellant lifted a kerosene can and poured kerosene on her body and set her on fire while she had started running. In the course of cross-examination of Ramchandra (PW-1), he admitted that there was an omission in his police statement regarding the fact stated in the Court that the accused used to consume liquor. He had stated in his report to the police that his elder sister Sunita, accused and his mother met him at S.T. stand, Karala; while, in the Court, he made an improvement that his elder sister told him that Sunita was burnt. In the course of his cross-examination, he admitted that, at the S.T. stand, his elder sister told him, but Sunita did not tell anything to him and till they reached General hospital, Amravati from S.T. stand, Karala, there was no talk about the incident. After admission of Sunita in Ward No.4 also, Sunita did not tell anything to the Nursing staff. According to Ramchandra (PW-1), he had disclosed to the Medical Officer about the incident as disclosed to him by his sister Sunita. Had it been so, Ramchandra (PW-1) could have lodged written complaint in Police Station, Kurha or atleast could have reported the incident to Police Chowki in the General hospital. The evidence of Ramchandra (PW-1), therefore, appears to be doubtful and do not inspire confidence in the judicial mind.

7. Regarding alleged oral dying declaration, the prosecution has examined Rukhama Ramesh Rathod (elder sister of Sunita) (PW-4). According to Rukhama, she made an enquiry with Sunita as to how she got burnt, when Sunita told her that there was a five litre kerosene can in the house; the accused poured kerosene on her body and when she started running, she fell on the ground and the accused set her on fire with the match stick. In the course of her cross-examination, it appears that Rukhamabai made tall claims that there was a five litre kerosene can in the house of the accused and after pouring kerosene on Sunita, accused burnt her while she had started running. She also claims that the accused had quarreled with Sunita for the whole night. However, whatever was stated by Rukhama was nothing but improvements made by her as she clearly admitted in the cross-examination that she cannot assign any reason as to why the facts stated by her before the Court were not appearing in her statement made to the police. According to Rukhama (PW-4), she was present at the funeral ceremony of Sunita and the accused had performed funeral of Sunita. If that is so, a prudent person getting information about murder of his/her sister would lodge complaint to Police Station immediately or at the earliest possible opportunity, which is not done either by Ramchandra (PW-1) or Rukhama (PW-4).

8. Prosecution has also examined Kajal Ratan Rathod (daughter of accused and deceased). She deposed about the frequent quarrels between her parents since the appellant/accused was addicted to liquor. However, in the course of her cross-examination, she admitted that her father always gave treatment to her deceased mother and her sister with love and affection. Under these circumstances, the prosecution theory of homicidal death as a result of alleged murder appears to be doubtful.

9. The prosecution has relied upon the evidence of Dr.Talat Iftarkhan Ahamad Khan (PW-3), who deposed about his findings noted in respect of the dead body. According to him, the dead body of Sunita had total burn injuries of 99%, which were noted on the vital parts like head, neck, face, chest, abdomen, back etc. If the victim had suffered 99% extensive burn injuries as noted in the post mortem report, it is really difficult to believe that such a person can narrate the incident in detail, as deposed by child witness Kajal (PW-5) and the first informant Ramchandra (PW-1) as also Rukhama (PW4) (sister of deceased). The learned Advocate for the appellant, therefore, submitted that the learned trial Judge ought not to have believed such tailor made evidence of oral statement as allegedly made by the deceased to Ramchandra (PW-1), Rukhama (PW-4) and Kajal (PW-5) PW-1, who are all close relatives of deceased. There was no any reliable corroborating evidence to establish homicidal death of Sunita. According to post mortem notes, the cause of death was mentioned as shock due to extensive burn injuries. Death could be accidental or suicidal as well. Probability of accidental death cannot be overruled considering the defence statement.

10. In his statement u/s. 313 of the Code of Criminal Procedure, the accused defended the prosecution on the ground that his wife was sick and therefore, he had sent her to her parents' house for treatment. However, his in-laws refused to give treatment to her and also refused to spend money for her treatment and told him to bear the expenses for the same. On account of this refusal, the relations of the accused with the relatives of his wife got strained and therefore, according to the appellant/accused, they deposed against him; while Kajal (PW-5) is a tutored witness. According to the accused, he had gone to the house of Sarpanch namely Sagar and was sitting with Gnyaneshwar Sardar Pawar. Thus, according to the appellant/accused, he was not present at the spot at the time of incident.

11. The appellant also led evidence in defence by examining two witnesses. Yashodabai Dharmaji Jadhav – the first defence witness deposed that when she saw Sunita in flames, she poured water on the body of Sunita and extinguished fire. According to Yashodabai (DW-1), at the time of incident of burning, nobody else was present in the house. She also stated that, after the incident, police had come on the spot. If that is so, it is not understood as to why the police did not make efforts to record dying declaration of injured Sunita before her death if she was conscious and speaking. On the other hand, according to Vinayak Amarsingh Rathod (DW-2), he, along with Gnyaneshwar and the accused, went to the house of the accused on that day and saw Sunita in burnt condition and Sunita had informed her that, while she was cooking the food, she was igniting hearth and poured kerosene in it, but there was an explosion of flames and her clothes caught fire. Under these circumstances, we are unable to uphold the view of the trial Court that deceased Sunita met with homicidal death.

12. In the present case, there was no eye witness to the incident. The accused defended the prosecution on the ground that he was absent from the house when the incident of Sunita's burning occurred. The investigating agency also failed to gather independent evidence in the form of recorded dying declaration and doctor's endorsement regarding Sunita's ability to make a statement while she was admitted in the hospital. It is true that minor discrepancies in the evidence which are not of significance can be ignored. However, when the evidence is in the nature of alleged oral dying declaration, the Court has to be on guard to find out whether the statements made and claimed in the nature of oral dying declaration are reliable and acceptable so as to punish the accused for the serious offences punishable under Sections 302 and 498-A of the Indian Penal Code. In our opinion, the evidence of oral dying declaration may be accepted if it inspires confidence and if supported by other evidence on record. The Court has to be vigilant and cautious while accepting the evidence of oral dying declaration. It is settled principle of law that before accepting the evidence in respect of statement of the deceased, it must be ensured that the evidence should indicate that the injured person contemplating his or her death was fully conscious and making voluntary, truthful and reliable statement untainted by vices of tutoring or prompting etc. It is true that there is no legal requirement that the dying declaration must be made to and recorded by a Magistrate, but the evidence in the nature of dying declaration must be wholly reliable. If it is suspicious in nature, the Court shall be on guard to find independent corroboration The Court shall also be on guard to find as to whether the alleged oral dying declaration was a result of tutoring or was imaginary. When evidence of alleged oral dying declaration appears suspicious and unreliable, particularly in the light of the fact that the investigating agency did not explain as to why a responsible person like Executive Magistrate was not approached for to record a dying declaration. In such cases, the investigating agency is expected to record statement of any doctor who was attending the patient so as to provide evidence of corroboration to the evidence of alleged oral dying declaration made by the deceased. In our view, therefore, when evidence as to oral dying declaration suffers on account of the fact that it is suspicious and without any independent corroboration from the record, it ought not to have been accepted by the trial Court to record conviction under Section 302 of the Indian Penal Code. In view of the discussion hereinabove, it would not be out of place to consider the following rulings of the Hon'ble Apex Court.

13. The Hon'ble 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 indisputedly 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.”

14. In KakeSingh @ Surendra Singh .vs. State of Madhya Pradesh reported in AIR 1982 SC 1021, it is held by the Hon'ble 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.

15. The learned Advocate for the appellant, in order to support her submissions, made a reference to the ruling in MunshiPrasad and Ors. vs. State of Bihar reported in (2002) 1 SCC 351 and argued that when there is a plea of abili from the side of the accused, the trial Court ought to have taken care while scrutinizing the evidence in a serious murder trial. She submitted that the defence of the accused while making statement u/s.313 of the Code of Criminal Procedure as also the defence evidence in the form of evidence of Yashodabai (DW-1) and Vinayak Rathod (PW-2) could not have been ignored by the learned trial Judge. The learned Advocate, making a reference to para 3 of the above ruling, submitted that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. A lapse on the part of defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses. Learned Advocate for the appellant thus vehemently criticised the impugned judgment on this ground.

16. Learned Advocate for the appellant also made a reference to the ruling in DudhNath Pandey .vs. State of U.P. reported in AIR 1981 SC 911 (para 19) to submit that the plea of alibi can succeed if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. A reference is also made to the ruling in Des Raj .vs. State of Punjab reported in AIR 1974 SC 2292 by the learned Advocate for the appellant and it is submitted that conviction cannot be based upon mere conjectures or surmises or on mere suspicion. Finally, a reference is also made to the ruling in SanjivKumar vs. State of Punjab reported in (2009) 16 SCC 487. Placing reliance on the said ruling, the learned Advocate for the appellant submits that the evidence in defence led by the accused must be tested on the touchstone of probability because burden of proof lies on prosecution in all criminal trials and the onus may shift to the accused in given circumstances and if so provided by law, the evidence led by the defence ought to be appreciated to find out as to whether it is probable and true. In view of the submissions made by the learned Advocate for the appellant, she prays that the instant Criminal Appeal be allowed and the conviction and sentence of the appellant be quashed and set aside.

17. We have gone through the rulings pressed into service before us and also heard the learned Additional Public Prosecutor, who supported the impugned judgment and order. Looking to the evidence on record, particularly, considering the fact that deceased Sunita had suffered 99 % burn injuries and in the absence of any documentary evidence as to dying declaration or evidence of attending doctor regarding fitness of Sunita to make oral statement, it is really difficult for us to believe as to whether such a person can - with 99% burn injuries on her body, regain consciousness enough so as to make detailed narration of the incident as stated by witnesses Ramchandra (PW-1), Rukhama (PW-4) and Kajal (PW-5). The latter witness is a child witness and may have been tutored in view of the fact that she came to Court with other close relatives of deceased who may have been interested witnesses. In the present case, the accused came out with a defence of alibi which was supported by examining two defence witnesses. Reading evidence of Yashodabai (DW-1) and Vinayak Rathod (DW-2) and specific defence of the accused that he was not present on the spot at the time of the alleged incident of burning, it is risky and unsafe to rely upon the weak evidence in the nature of oral dying declaration allegedly made by Sunita to her close relatives. Therefore, relying upon the principle of criminal jurisprudence that ten guilty men may escape but one innocent shall not be convicted, we feel that the benefit of doubt ought to be granted in favour of the accused as the prosecution, in our opinion, could not prove the offence of murder punishable under Section 302 of the Indian Penal Code as also the offence of cruelty and ill-treatment punishable under Section 498-A of the Indian Penal Code.

18. For the reasons afore-stated, therefore, the questions mentioned by us in para no.4 of this Judgment are answered in the negative. Since the impugned Judgment suffers from infirmity considering the evidence in the nature of oral dying declaration which was not only weak, but also of a suspicious nature in view of defence of alibi pleaded and established by the accused, we have no option but to allow the Criminal appeal and set aside the impugned judgment and order. Hence, the following order is passed.

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 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.

Fees payable to Ms S.P.Kulkarni, Advocate (appointed) for the appellant is quantified at Rs.5,000/-.