Published on: 01st January 2023 at 15:20 IST
While disbelieving a woman’s dying declaration due to the chain of circumstances surrounding it, the Bombay High Court in a most learned, laudable, landmark and latest judgment titled Sandip Prakash Rathod vs State of Maharashtra in Criminal Appeal No. 286 of 2015 that was reserved as recently as on December 20 set aside a man’s conviction for murdering his wife. The man was convicted in March 2015.
It must be noted that the Court made it clear that part acceptance of dying declaration to convict accused under Section 302 while rejecting the same declaration and acquitting him of Section-498-A cannot be allowed.
It must be noted that there was just no explanation for impression of right thumb on the dying declaration instead of the usual left and also there was no information about whether any sedative was given to her before the declaration. In addition, we also need to note that the endorsement of the medical officer was not supported by case papers.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Smt Justice Vibha Kankanwadi for a Division Bench of the Bombay High Court comprising of herself and Hon’ble Mr Justice Rajesh S Patil sets the ball in motion by first and foremost putting forth in para 1 that, “Appellant is the husband of deceased Kavita, who stood prosecuted and convicted for committing offence punishable under Section 302 of the Indian Penal Code in Sessions Case No.24 of 2014 by the learned Additional Sessions Judge, Jalna, on 2nd March 2015,”.
“He has been directed to undergo imprisonment for life and to pay fine of Rs.1500/-, in default of payment of fine, to suffer rigorous imprisonment for six months. It will not be out of place to mention here that appellant is the original accused No.1 and along with accused Nos.2 to 5, he stood prosecuted for the offence punishable under Sections 302, 498-A read with Section 34 of the Indian Penal Code, “
“however all of them have been acquitted of the offence punishable under Section 34 of the Indian Penal Code. Accused Nos.2 to 5 were also acquitted of the offence punishable under Section 302 of the Indian Penal Code.”
To put things in perspective, the Division Bench then envisages in para 2 that, “The prosecution story, in short, is that Kavita who was aged 27 years, got married about 9 years prior to her death with accused No.1 i.e. present appellant. She had a son, aged 8 years and a daughter, aged six years,”.
“According to the prosecution, the husband as well as the in-laws and other relatives of husband i.e. in all accused Nos.1 to 5 used to raise suspicion over the character of Kavita. She was assaulted and abused under the influence of liquor. She was at home at about 11.00 a.m. on 17th September 2013 when accused No.1 had poured kerosene on her person,”.
“Then Kavita got annoyed and abused the husband. The husband got annoyed with her and ignited the match stick and set her to fire. Thereafter, accused Nos. 2 to 5 had extinguished the fire and took her to Mantha Government Hospital,”.
“She was then referred to Civil Hospital, Jalna. While under treatment, she gave the dying declaration, which came to be recorded by police head constable Rangrao Sardar. The said dying declaration has been treated as First Information Report and further investigation has been undertaken.”
Be it noted, the Division Bench points out in para 14 that, “PW-5 police head constable Sardar has stated that he was attached to medical police chowki at Civil Hospital, Jalna on 17th September 2013. He received MLC pertaining to Kavita and then he met to doctor in burn patients ward. Doctor put endorsement that the patient is in a condition to give statement. Thereafter, he recorded the statement.
According to him, Kavita told before him that her husband, in-laws, husband’s brother and his wife were suspecting her character since long. On the day of incident, she was sleeping at about 11.00 a.m. on 17th September 2013 and then her husband poured kerosene on her person whereupon she got annoyed and abused her husband.
Thereafter her husband got annoyed and set her to fire with the help of match stick. Her mother-in-law and brother-in-law came and they extinguished fire by pouring water on her person and then she was taken to Mantha Hospital and then to Civil Hospital, Jalna.
He says that the statement was read over to Kavita and thereafter she had put her right thumb impression.
He had then signed it and after the conclusion the doctor had again put his remark and signature. It is to be noted that in his cross-examination, PW-5 has stated that he will not be able to state the time when Kavita was referred to Civil Hospital, Jalna.
Medical treatment has started to Kavita when he was near her. Kavita had sustained burn injuries all over her body. She was in pains. PW-5 police head constable Sardar has not explained as to why he had taken right thumb impression of Kavita on Exhibit-31.
In fact it is always the practice to take thumb impression of left hand on any document and if it is not possible for some reason to take the thumb impression of left hand then only the thumb impression of the right hand would be taken and for this purpose it was necessary on the part of the prosecution to prove as to what had happened to the left hand of Kavita when she was admitted to Civil Hospital, Jalna.”
In addition, the Division Bench points out in para 15 that, “Another fact that is required to be considered from Exhibit31 is that there is only one statement that accused Nos.1 to 5 were raising suspicion over the character of Kavita since long. As aforesaid, Kavita’s relatives i.e. father and brother are not supporting to this statement. Her marriage had taken place nine years ago and she had two children,”.
“In this background, as to what had happened for the accused persons to raise suspicion over her character at such a late stage itself, is a question and prosecution has not tried to give answer to the same,”.
This statement cannot lead us to conclude that there was a motive for appellant to commit the crime. Another thing that is surprising is that Kavita’s maternal home, Pimparkheda appears to be a small village and it is hard to believe that she has been allowed to sleep till 11.00 a.m,”.
“She says that she was sleeping at about 11.00 a.m. when appellant poured kerosene on her person. It is not her statement or words that as she was sleeping till 11.00 a.m., husband got annoyed and then poured kerosene on her person. Why she was sleeping even in that odd hour taking into consideration the village background, cannot be gathered. Further, if she was sleeping, then prior to that nothing had happened,”.
“It has not been brought on record by the prosecution that something had happened in the morning and therefore she was sleeping, which annoyed the appellant. What was the reason for appellant to pour kerosene on her person, is a question,”.
“In the entire evidence led by the prosecution, we are unable to get answer to this question. Prosecution has not examined Kavita’s children, who were expected to be at home in the normal course, provided they would have gone to attend the school etc,”.
“Another factor that appears to have not been considered by the trial Court is that in her dying declaration Kavita has stated that after the husband poured kerosene on her person, she got annoyed and abused the husband, then husband got annoyed and then set her on fire,”.
“The trial Court has not gone into the aspect as to whether the deceased had provoked accused– appellant. We need not go into that aspect for the simple reason that the dying declaration itself is not inspiring confidence. It does not appear to be true and it is also not supported by the case papers, of which details were necessary, as to whether the sedative was started, what was the position of the left hand of Kavita etc.”
Finally, and far most significantly, the Division Bench it must be said then very rightly minces no words to commendably mandate in para 16 holding that, “Though the dying declaration can be the sole basis of conviction, yet as this dying declaration Exhibit-31 fails to comply the yardsticks, it is not reliable. Even after considering the ratio in Ganpat Bakaramji Lad vs.
The State of Maharashtra (supra), the dying declaration in the present case is not inspiring confidence. Further, part of it has been, in a way rejected by the trial Court itself while acquitting the present accused as well as other accused for the offence punishable under Section 498-A of the Indian Penal Code. Such bifurcation or acceptance in part only, cannot be allowed.
The dying declaration will have to be read in its entirety. At the cost of repetition, it can be said that since there are over writings also and the aforesaid unexplained facts leads us to conclude that Exhibit-31, dying declaration is a concocted document or a prepared document and it ought to have been discarded outright by the learned Additional Sessions Judge.
The conviction based on the erroneous findings cannot be allowed to be sustained and therefore, the Appeal deserves to be allowed by holding that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Under such circumstance, following order is passed:-
O R D E R
(I) Appeal stands allowed.
(II) The conviction awarded to the appellant – original accused No.1 – Sandip Prakash Rathod in Sessions Case No.24 of 2014 on 2nd March 2015 by the learned Additional Sessions Judge, Jalna by holding him guilty of committing offence punishable under Section 302 of the Indian Penal Code, stands set aside.
(III) The appellant be set at liberty, if not required in any other case.
(IV) It is clarified that there is no change in the rest of the order passed by the learned Additional Sessions Judge, Jalna.”
All in all, we thus see that the Bombay High Court after analyzing all the evidence most meticulously and systematically perusing the facts also before it very rightly concludes that the dying declaration is a concocted document and it ought to have been discarded outright by the Trial Court.
In view of the aforesaid, the Division Bench of the Bombay High Court also very rightly sets aside a man’s conviction for murdering his wife as the evidence were just not worth relying upon and therefore the dying declaration was ostensibly disbelieved due to the circumstances surrounding it which certainly cannot be faulted! There can be certainly just no denying it!
Sanjeev Sirohi, Advocate