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Judgment
M. G. Giratkar, J.
1.Appellant Suwarna Onkar Vite challenged the judgment of conviction passed by learned Additional Sessions Judge, Khamgaon in Sessions Case No.
119/2010 by which she came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs. 500/- in default to undergo R.I. for one month.
2.The case of the prosecution against the accused/ appellant can be summarized as under.
(i)Deceased Sushilabai w/o Wamanrao Vite, aged about 70 years was residing in the premises of trust of Hanuman Temple at Jamod. She was issue-
less. She was having two nephews of her brother-in-law. One of the nephew, namely, Onkar Vishnu Vite was residing on rent. Landlord was asking
him to vacate the premises. He did not vacate the premises. His landlord Shivshankar removed the tin sheets of the rented premises. Due to rain, wife
of Onkar brought all the household articles and kept in the room of deceased. Deceased told wife of Onkar i.e. accused that she was not in good
terms and, therefore, should not reside in her room. Accused poured kerosene and set her on fire. She was admitted in the hospital by Shankar Vishnu
Vite.
(ii)In the hospital, dying declaration was recorded by the Naib Tahsildar Shri Deshmukh. On the basis of the dying declaration, Exhibit 19, crime was
registered against the accused. API Shri Kshirsagar investigated the crime. After complete investigation, submitted charge-sheet to the Court of
Judicial Judicial Magistrate First Class, Jalgaon(Jamod) who in turn committed the case to the Court of Sessions, Khamgaon.
(iii)Charge was framed at Exhibit 2. Same was readover and explained to the accused. Accused pleaded not guilty and claimed to be tried. Defence
appears to be of total denial and false implication. Prosecution has examined in all total 7 witnesses. At the conclusion of trial, learned trial Court
convicted the accused as stated above.
3.Heard learned counsel Shri Badar for the appellant. He has pointed out evidence on record and submitted that except the dying declaration, Exhibit
19, there is no other evidence on record. Dying declaration, Exhibit 19 is doubtful. Therefore, without any corroboration,accused cannot be convicted.
At last, learned counsel prayed to allow the appeal and acquit the appellant/ accused.
4.Heard learned Additional Public Prosecutor Shri Ghodeswar for the State/respondent. He has submitted that accused can be convicted solely on the
basis of dying declaration. Learned trial Court rightly convicted the accused, hence, appeal is liable to be dismissed.
5.The prosecution has examined P.W. 1 Shankar Vishnu Vite, P.W. 2 Onkar Vishnu Vite and P.W. 3 Durgabai Shankar Shinde. All these witnesses
not supported to the prosecution. Therefore, only evidence considered by the trial Court is dying declaration, Exhibit 19 recorded by P.W. 4 Naib
Tahsildar Shri Deshmukh.
6.Evidence of Medical Officer Shri Shailesh Goyanka shows that he examined deceased at about 1.40 p.m. on 22-6-2010. He issued certificate,
Exhibit 18-A stating that patient was fit to give statement.Medical officer has not examined the deceased.
His cross-examination shows that he issued certificate, Exhibit 18-A and 19-A casually. His cross-examination shows that Naib Tahsildar was asking
questions and recording the replies. But dying declaration, Exhibit 18-A does not show any questions and answers.
7.Medical officer not stated in his evidence that patient was well oriented while giving dying declaration. Evidence of P.W. 4 Naib Tahsildar Shri
Deshmukh shows that he put general questions but those questions are not recorded. Naib Tahsildar stated that he could not tell which organs or body
parts of woman were burnt. It is a printed format.
8.Now, it is well settled law that accused can be convicted only on the basis of dying declaration, provided that it should be truthful and inspire the
confidence of the Court. If the dying declaration creates doubt in the mind of Court, then further corroboration is necessary as held by the Hon'ble
Apex Court in the case of Surinder Kumar Vs. State of Haryana reported in 2012 ALL MR (Cri) 696 (S.C.)
9.Hon'ble Supreme Court in the landmark decision in the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 has observed that :
In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has
been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court
has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim,
there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not
reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for
corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the
fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to
above or from such other infirmities as may be disclosed in evidence in that case.
10.The perusal of the material on record would reveal that the dying declaration is recorded by PW 4 Baburao Ajabrao Deshmukh. No doubt that the
said dying declaration implicates the present applicant. However, perusal of the dying declaration would reveal that there are overwriting at more than
one place.
The words appear to have been written in a different handwriting. Not only this but insofar as the time of completion of dying declaration is
concerned, the same also appears to have been written in a different handwriting and different ink. On perusal of the dying declaration, words used
are only - ^^oS|dh; vk?hdkz&;kaps çek.ki="". However, there is no certificate that deceased was in a fit state of mind throughout recording of the
dying declaration. Not only this but PW 6 - the Police Constable Shri Gajanan Gawande clearly admits in his cross- examination that when he received
the dying declaration it was neither sealed nor in a pocket. PW 7 - Investigating Officer Shri Subhash Haribhau Kshirsagar in his evidence clearly
admits that he did not investigate whether or not any dying declaration is recorded at Rural Hospital Jalgaon because at that time investigation was not
with him. He also further admits in the cross-examination that in the investigation it was found that the present appellant had extinguished deceased
Sushilabai by pouring water.
11.Dying declaration recorded by P.W. 4 Naib Tahsildar Shri Deshmukh is doubtful. Medical Officer not stated in his evidence that patient was well
oriented during the time of recording dying declaration. Certificate only shows that patient was fit to give dying declaration. At the bottom of dying
declaration, Medical officer not given any certificate stating that patient was well oriented during the time of recording dying declaration.
12.Except dying declaration which is doubtful, there is no other evidence to corroborate it. Therefore, only on the basis of doubtful dying declaration,
accused cannot be convicted. Learned trial Court wrongly recorded its findings. Hence, we are inclined to allow the appeal. In the result, we pass the
following order.
ORDER
(i)The appeal is allowed.
(ii)Impugned judgment is hereby quashed and set aside.
(iii)Appellant Sau. Suwarna Onkar Vite is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code.
(iv)Appellant/accused is on bail. Her Bail bond stands cancelled.
(v)R & P be sent back to the trial Court.