S.B. Shukre, J.
1. This is an appeal preferred against the judgment and order delivered on 26.11.2014 in Sessions Trial No. 20 of 2012 by the Additional Sessions Judge-I, Achalpur, thereby convicting and sentencing the appellant for the offence punishable under Section 302 of the Indian Penal Code.
2. Briefly stated, the facts of the case are as under:
This is a case wherein a 2-Year old marriage between the appellant and the deceased Ratna met with an abrupt and unfortunate end due to indiscretion shown by the appellant, which proved to be fatal for his wife. The couple was residing at village Diya, Tahsil Dharni, District Amravati together with their 9-month old son. The appellant, it is alleged, had the habit of consuming liquor and returning home intoxicated. It is further alleged that in the state of intoxication, the appellant used to suspect the fidelity of his wife, deceased Ratna, and sometimes, even beat her. Evening of 29.4.2011, however, was different for the couple, in the sense that the callousness of the appellant towards his wife attained its peak. Around 05.00 pm of that day, the appellant returned home in an inebriated condition. No sooner did he enter the house than he started suspecting character of deceased Ratna. This suspicion, it appears, became so deep that it manifested into a concrete action on the part of the appellant. He beat deceased Ratna by giving her blows of fists and kicks and then pouring kerosene oil on her person, he set her ablaze by using an ignited matchstick. Deceased Ratna was removed to the Government Hospital at Dharni by Village Sarpanch Bhagabai from where she was taken to Irvin Hospital, Amravati for treatment of her burn injuries. She had suffered 82% burns. The treatment administered to deceased Ratna did not work much and ultimately, on 4th May 2011, Ratna succumbed to her burn injuries. While in the hospital at Amravati, her dying declaration was recorded on 30th April 2011 on the basis of which an offence punishable under Section 307 of the Indian Penal Code was registered against the appellant. After the death of Ratna, it was converted into an offence of murder, punishable under Section 302 of the Indian Penal Code. After her death, the inquest panchanama was drawn out and postmortem report was also obtained. The postmortem report revealed that deceased Ratna died due to the burn injuries of 82% and hypovolemic shock. The statements of witnesses were recorded and after completion of the investigation, the chargesheet was filed against the appellant. It was committed to the Sessions Court as the offence was exclusively triable by the Sessions Court.
3. The appellant was charged with an offence of murder punishable under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. He was tried accordingly. On merits of the case, the learned Additional Sessions Judge found that the offence of murder was proved beyond reasonable doubt against the appellant and, therefore, by his judgment and order delivered on 26.11.2014, convicted the appellant for the same and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer further RI for one month. It is the same judgment and order which are under challenge in this appeal.
4. We have heard Ms F. N. Haidari, learned counsel (appointed) for the appellant and Shri J. Y. Ghurde, learned Additional Public Prosecutor for the respondent-State. We have carefully considered the record of the case.
5. This case is based upon Dying Declaration vide exhibit 10 and oral dying declaration made by deceased to the prosecution witnesses, PW 2 Sunanda, PW 4 Punai and PW 5 Babulal.
6. According to learned counsel for the appellant, neither the recorded Dying Declaration (exhibit 10) can be relied upon nor the statements made to the prosecution witnesses by deceased Ratna disclosing the circumstances relating to her death, could be believed. She submits that there are several discrepancies and inconsistencies in the evidence of these witnesses and the independent witness, who could have been the best witness in this case, one Rekhabai, the neighbour of the deceased, was not examined by the prosecution. Therefore, she submits that the prosecution evidence is of doubtful nature benefit of which deserves to be given to the appellant.
7. Learned Additional Public Prosecutor maintains that all these aspects have been appropriately considered by the learned Additional Sessions Judge and, therefore, there is no scope for making any interference with the impugned judgment and order. He submits that though there are some discrepancies in the evidence of these witnesses, they being of minor in nature, could be ignored.
8. PW 1 Umesh Kodake is the Naib Tahsildar who recorded dying declaration of deceased Ratna vide exhibit 10. This dying declaration has been recorded on 30.4.2011. Time when it was recorded, however, cannot be ascertained with any manner of certainty as PW 1 Umesh has botched up the timing over its recording. On perusing this dying declaration, one can see as to how PW 1 Umesh has messed up with the timing of its recording. The recording of the dying declaration has been shown to have commenced at 04.30 am and has been shown to have concluded at 04.50 pm or 04.50 am on 30.4.29011. The time of conclusion of the dying declaration has been stated in such a manner as to create an impression that it could have been either 04.50 pm or am. It appears that initially, it was shown to be at 04.50 am and later on by overwriting, it has been shown to be at 04.50 pm. No explanation regarding the said overwriting and what exactly does it convey, has been given by PW 1 Umesh.
9. According to PW 1 Umesh, righthand thumb impression of deceased Ratna was obtained on the dying declaration. It is, however, seen that an impression of the thumb has not appeared in full below the dying declaration and it appears to be only of some portion of digit of some finger of the hand. Deceased Ratna had sustained 82% of burn injuries as seen from the evidence of PW 8 Dr Chandrashekhar Patil, the Medical Officer who conducted the postmortem examination and that both of her arms were burnt. In fact, PW 8 Dr Patil has stated that only knicker shaped area of the body of deceased was not burnt. Such evidence would suggest that barring the portion not burnt, the entire body was burnt. Therefore, it is doubtful if deceased Ratna was really in a position to affix her thumb impression below the dying declaration.
10. The facts discussed above would create a veritable doubt about the truthfulness of dying declaration vide exhibit 10. They would make one doubt the mental and physical fitness of deceased Ratna to make a statement. Of course, according to PW 1 Umesh, her condition was examined by Dr S. H. Hingale before and after recording of the dying declaration and that during the course of recording of the dying declaration, this doctor was also present. But, Dr Hingale was not examined by the prosecution. His examination as a witness in this case was important considering the fact that the entire body of deceased Ratna, barring the knicker shaped area, had been burnt.
11. In the dying declaration (exhibit 10) deceased Ratna has stated that she was admitted to Dharni Hospital by Village Sarpanch Bhagabai. There is no dispute about the fact that this Village Sarpanch Bhagabai is also known as Bhagirathibai who has been examined as prosecution witness no. 3. PW 3 Bhagirathibai, to one's dismay, does not support the statement of deceased Ratna that she was admitted to Dharni Hospital by Village Sarpanch. PW 3 Bhagirathibai states that PW 4 Punai, the mother of the deceased visited her house at about 09.00 pm or 10.00 pm of 29.4.2011 and informed her about receiving of burn injuries by deceased Ratna. She states that thereafter she went to the house of the appellant to see Ratna only to find that Ratna had already been taken to the Government Hospital at Dharni. She also categorically states that she did not see deceased Ratna in burns.
12. All these discrepancies, in our view, would be sufficient to push the dying declaration at exhibit 10 into mire of doubt and, therefore, no reliance could be placed upon this dying declaration recorded by Naib Tahsildar PW 1 Umesh. It cannot be said that the prosecution has proved this dying declaration to be made voluntarily, truthfully by deceased Ratna and proved beyond reasonable doubt.
13. PW 2 Sunanda is the elder sister of deceased Ratna. According to her, she learnt about sustaining of burns by deceased Ratna from Rekhabai. So, she further states, she along with her parents i.e. PW 4 Punai and PW 5 Babulal as well as Village Sarpanch PW 3 Bhagirathibai visited the residence of deceased Ratna. She further states that she then saw Ratna as lying with burn injuries all over her person. She further states that at that point of time, it was stated to her by deceased Ratna that after quarreling with her, her husband poured kerosene oil on her person and set her afire and then she was carried to Dharni by a tractor. PW4 Punai and PW 5 Babulal do not, however, state that they visited residence of Ratna along with PW 2 Sunanda. They also do not say that at that time, PW 3 Bhagirathibai accompanied them. PW 3 Bhagirathibai, as we have seen earlier, has altogether dissociated herself with PW 2 Sunanda as well as PW 4 Punai as it is her stand that when she reached the house of the appellant and the deceased, the deceased had already been removed to the Government Hospital, Dharni and that she did not see deceased Ratna in a burnt condition in her house at Diya. Therefore, a serious doubt about the trustworthiness of PW 2 Sunanda arises and for removal of this doubt, we would have to look for some other reliable evidence.
14. The search for reliable evidence in this case, inspite of our great efforts, has not yielded any fruitful results. Evidence of PW 4 Punai is equally untrustworthy and evidence of PW 5 Babulal is of hearsay nature, to say the least. It is significant that these two witnesses are the parents of deceased Ratna, but their evidence too is inconsistent. Of course, PW 4 Punai states that she was informed by deceased Ratna that appellant set her afire, but she does not say that she visited residence of deceased Ratna together with her elder daughter PW 2 Sunanda and Village Sarpanch PW 2 Bhagirathibai. She states that she called Sarpanch Bhagirathibai to the house of the deceased and whereas, PW 3 Bhagirathibai says that PW 4 Punai had come to her house to inform her that deceased Ratna had burnt. PW 3 Bhagirathibai also says that when she reached the house of deceased Ratna, Ratna had already been taken to the Government Hospital at Dharni. Thus, her evidence is also inconsistent with PW 2 Sunanda on the material aspects of the case. The only consistency between their respective depositions is on the source from whom PW 2 Sunanda as well as PW 4 Punai received information about sustaining of burn injuries by deceased Ratna. Both of them have stated that information in that regard was received by them from Rekhabai. But, this important witness, Rekhabai has not been examined by the prosecution. She was an independent witness and her entering the witness box in this case would have gone a long way in removing and clearing the doubts arising from the inconsistencies and discrepancies found in the evidence of PW 2 Sunanda and PW 4 Punai.
15. So far as concerned the evidence of PW 5 Babulal, we would say that although he was father of deceased Ratna, he having not been personally told by deceased Ratna as to how she received burn injuries and his knowledge being based upon the information given to his wife, PW 4 Punai, his evidence is only an innocuous piece of paper, not worthy of consideration. It is only hearsay evidence.
16. Such inconsistent and discrepant evidence of material prosecution witnesses cannot be accepted to be of trustworthy nature and it creates doubt about they being told by deceased Ratna that she was set ablaze by her husband. This doubt could have been cleared by the prosecution had the prosecution examined independent witness Rekhabai. But, she was not produced before the Court as prosecution witness. The cumulative result of the consideration of the evidence of all the prosecution witnesses and important lacuna in the prosecution case would be the failure of the prosecution to bring home to the appellant his guilt for the offence of murder punishable under Section 302 of the Indian Penal Code beyond reasonable doubt. This prosecution evidence does not rule out the possibility of deceased Ratnabai committing an act of self-immolation in a fit of anger. PW 4 Punai, the mother of the deceased has admitted that deceased Ratna was of a hot tempered nature and so father of deceased Ratna, PW 5 Babulal. Even PW 2 Sunanda admits that there was a talk doing rounds in the village that deceased Ratna immolated herself. With such evidence on record, the said , other possibility ought to have been ruled out by the prosecution by bringing on record sufficient evidence. However, the prosecution has not done so, the benefit of which will have to be given to the appellant. All these aspects, which are extremely important for appreciating the evidence available on record, have not been considered by the learned Additional Sessions Judge. Therefore, disagreeing with the submissions of learned Additional Public Prosecutor and accepting the contentions of learned counsel for the appellant, we are of the view that the appellant deserves to be acquitted of the offence of murder punishable under Section 302 of the Indian Penal Code by holding that the prosecution has failed to prove beyond reasonable doubt the offence of murder with which the appellant has been charged. The impugned judgment and order, therefore, cannot be sustained in law and this appeal deserves to be allowed.
17. The Criminal Appeal is allowed.
Conviction of the appellant under Section 302 of the Indian Penal Code by learned Additional Sessions Judge1, Achalpur on 26.11.2014 in Sessions Trial No. 20 of 2012 is quashed and set aside. He is acquitted of the said charge.
He be set free if his custody is not required in any other matter.
Muddemal property be dealt with as directed by learned trial Judge after appeal period is over.
Charges of learned counsel Ms Haidari appointed for the appellant are quantified at Rs. 7500/- (Rupees Seven Thousand Five Hundred only).