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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Z.A. HAQ, VINAY JOSHI, JJ.
KAMLABAI HARIBHAU LASTANE - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 71 of 2019
Decided on : 04-05-2019
Indian Penal Code, 1860 – Sections 302 – Code of Criminal Procedure, 1973 – Sections 428, 173, 313 – Order of conviction – Criminal appeal has been filed against the judgment and order of conviction passed Sessions Judge, Amravati in Sessions Case whereby, the learned Sessions Judge, convicted appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer life imprisonment and to pay fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for three years. – Sessions Judge also accorded the benefit of set off in terms of Section 428 of The Code of Criminal Procedure, since appellant was in jail from 25.04.2013 to 16.07.2013. – Held, Trial Court, though has recorded the statement under Section 313 of the Code of Criminal Procedure, however the vital circumstance has not been put to the accused during his statement. – Trial Court, while convicting the accused, has mainly relied on the written dying declaration (Exhibit 32). – However, the contents of written dying declaration were not put to the accused during his statement. – It is really a matter of concern that the trial Court did not frame the question specifically putting the incriminating material stated by deceased in her statement. – Thereby, a very important circumstance is lost. – The deceased, in her statement (dying declaration) stated that the accused had poured kerosene on her person and had set her on fire. – Particularly, this incriminating part of dying declaration has not been put to the accused to get her explanation. – Although the dying declaration (Exhibit 32) is treated as the basis to convict the accused, the same was not put to the accused in her statement recorded under Section 313 of the Code of Criminal Procedure. Apparently, the accused was not given opportunity to explain this vital circumstance. – Recording of statement under Section 313 of the Code of Criminal Procedure is not an empty formality during trial. Section 313 of the Code of Criminal Procedure prescribes the procedure to safeguard the interests of the accused. – Obviously, in absence of seeking explanation on this vital point, prejudice is caused to the accused. – Finding of guilt based on written dying declaration for this reason alone would not sustain apart from the other reasons which we have recorded above. – In the result, we hold that the dying declaration is not trustworthy and reliable. – Evidence on the point of dying declaration does not inspire confidence so as to keep implicit faith on it. – There is no reliable evidence to satisfy the judicial mind that the deponent was conscious and mentally fit at the time of giving statement, rather the genesis of the case i.e. recording of statement of deceased itself has become doubtful. – From the forthcoming material we are not satisfied about the truthfulness, voluntary nature of the dying declaration and fitness of the mind of deceased. – In the aforesaid facts and circumstances, we find and hold that the prosecution has failed to substantiate the charge leveled against the appellant/accused beyond all reasonable doubt by adducing consistent, cogent and reliable evidence. – If dying declaration is excluded, nothing remains in prosecutions case. – Therefore, the appellant/accused is legitimately entitled to avail the benefit of doubt. – Hence, the impugned judgment and order of conviction passed by the learned Sessions Judge, Amravati would not withstand the legal position and requires to be reversed by acquitting the accused from the charges levelled against her. – Consequently, appeal deserves to be allowed by setting aside impugned judgment and order of conviction. – Appeal Allowed
VINAY JOSHI, J.
1. This criminal appeal has been filed against the judgment and order of conviction dated 17.07.2018 passed the learned Sessions Judge, Amravati in Sessions Case No. 286/2013, whereby, the learned Sessions Judge, convicted appellant/accused - Sau. Kamlabai for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer life imprisonment and to pay fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for three years. The learned Sessions Judge also accorded the benefit of set off in terms of Section 428 of The Code of Criminal Procedure, since appellant was in jail from 25.04.2013 to 16.07.2013.
2. The factual matrix of the case is that the accused (Kamlabai) was mother-in-law of deceased - Sonu. One year preceding the incident, deceased Sonu married with the son of Kamlabai. As usual, after marriage deceased went to reside at her matrimonial house. There was matrimonial dispute due to which deceased and her husband were residing separately from their in-laws in the same house. Separate cooking arrangement was made in the same room. On 24.04.2013 in between 08.00 a.m. to 09.00 a.m., deceased sustained extensive burns, therefore, she was shifted to the General Hospital, Amravati. She was admitted to burn ward with 78% burn injuries. While Sonu was under treatment in the hospital, around 02.00 p.m at the request of Police, Executive Magistrate - PW-3 - Shri Mahale went to the hospital for recording her statement (dying declaration). Initially, PW-3 - Shri Mahale approached the then Medical Officer - PW-2 - Dr. Naidu and requested him to examine the patient about her physical and mental condition. Accordingly PW-2 - Dr. Naidu examined the patient and found that she was mentally and physically fit to give statement. Accordingly PW-3 - Executive Magistrate - Shri Mahale recorded statement of deceased as per her narration. Deceased disclosed in her statement that accused - Kamlabai poured kerosene on her person and set her on fire. On the very day i.e. on 24.04.2013 around 10.45 p.m, Sonu succumbed to burn injuries. On the following day, the dying declaration was treated as First Information Report and accordingly crime was registered vide Crime No. 52/2013 at 09.30 a.m. During course of investigation, Police visited the place of incident and drew Panchanama of the scene of offence (Exhibit 11). The inquest Panchanama was drawn on the dead body (Exhibit 17). Postmortem was conducted on the dead body of Sonu on the very day.
3. Sonu's hospitalization was telephonically informed to her parents and other relatives. In turn, all of them rushed to the hospital at Amravati. On inquiry, Sonu disclosed to her mother - Antakala Raut (PW-5) that while she was cooking, the accused poured kerosene on her person and set her on fire with the aid of match sticks. After completing the investigation, the Police submitted final report in terms of Section 173(2) of the Code of Criminal Procedure against the accused for commission of offence punishable under Section 302 of The Indian Penal Code.
4. On receipt of final report, the concerned Magistrate committed the case to the Court of Sessions for trial. The charge against the accused was framed (Exhibit 8). The accused pleaded not guilty and put the prosecution to the task of establishing the charges levelled against him with requisite standard of proof. To substantiate the case, the prosecution has examined in all six witnesses. The prosecution's evidence mainly consists of Medical Officer - PW-2 - Dr. Naidu who was allegedly present at the time of recording dying declaration, and PW-3 - Shri Mahale - Executive Magistrate who has recorded dying declaration of deceased Sonu. The prosecution has examined PW-5 - Antakala Raut - mother of deceased to whom oral dying declaration was made. Besides that, the prosecution has examined Police witnesses.
5. After hearing both sides and perusing the record, learned Sessions Judge came to the
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