Tarachand Damu Sutar Vs. The State of
Maharashtra [1961] INSC 210 (4 May 1961)
KAPUR, J.L.
SUBBARAO, K.
HIDAYATULLAH, M.
SHAH, J.C.
DAYAL, RAGHUBAR
CITATION: 1962 AIR 130 1962 SCR (2) 775
CITATOR INFO :
F 1980 SC 559 (11) R 1983 SC 274 (8) RF 1992
SC 891 (8)
ACT:
Appeal-Charge of murder-Conviction by
Sessions Judge for culpable homicide not amounting to murder-High Court on
appeal convicting for murder and passing sentence of death- Right of
appeal-Acquittal, Meaning of-Practice in appeal- Constitution of India Art. 134
(1) (a),
HEADNOTE:
The appellant was tried for an offence under
s. 302 Indian Penal Code for the murder of his wife. The evidence consisted
mainly of the uncorroborated dying declaration of the wife. The Sessions judge
accepted the evidence but convicted the appellant under s. 304 Part 1 Indian
Penal Code. On appeal by the State the High Court convicted the appellant of an
offence under s. 302 Indian Penal Code and sentenced him to death. The
appellant contended that he had a right of appeal to the Supreme Court under
Art. 134 (1) (a) of the Constitution and that his conviction was bad.
Held, that the appellant had a right of
appeal to the Supreme Court under Art. 134 (1) (a) of the Constitution.
The conviction of the appellant under S. 304
Part 1 of the Indian Penal Code by the Sessions judge amounted to an acquittal
of the offence under s. 302 and the High Court had reversed this order of
acquittal and sentenced the appellant to death. The word "acquittal" in
Art. 134 (1) (a) did not mean that the trial must have ended in a complete
acquittal of the charge, but acquittal of the offence charged and conviction
for a minor offence was included in the word "acquittal".
Kishan Singh v. The King Emperor, (1928) L.
R. 55, I.A. 390 relied on.
Per Kapur, Subba Rao and Shah, JJ. The
appellant was rightly convicted and sentenced by the High Court. it was legal
to found a conviction on the uncorroborated dying declaration. The dying
declarations had been accepted both by the Sessions judge and by the High Court
and there was nothing in the evidence on the record which detracted from the
findings of-those courts in regard to the correctness or the propriety of this
dying declaration.
776 Khushal Rao v. The State of Bombay,
(1958) S.C.R. 552, referred to.
Per Hidayatullah and Dayal, JJ. In an appeal
under Art. 134 (1) (a) of' the Constitution the Supreme Court assessed afresh
the evidence on record and did not follow the practice in appeals by special
Leave under Art. 136 that concurrent findings of the Courts below could be
interfered with. only when special circumstances existed. In the circumstances
of the present case it was not safe to rely on the dying declaration and the
appellant was entitled to be acquitted.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 341 of 1960.
Appeal by special leave from the judgment and
order dated July 20, 1960, of the Bombay High Court in Criminal Appeals Nos.
488, 426 of 1960 with Review Application. Nos. 555 and 641 of 1960.
G. C. Mathur, for the appellant.
B.R.L. Iyengar and D. Gupta, for the
respondent.
1961. May 4. The Judgment of Kapur, Subba Rao
and Shah, JJ.
was delivered by Kapur, J., and the judgment
of Hidayatullah and Dayal JJ., was delivered by Dayal, J.
KAPUR, J. This is an appeal against the
judgment and order of the High Court of Bombay imposing the sentence of death
in appeal by the State against the order passed by the Sessions Judge, Dhulia.
The facts of the appeal are these:
The appellant, in about 1950, married
Sindhubai the daughter of Chandrabhagabai. Sindhubai who is the deceased had
read up to the 7th Standard. The appellant and Sindhubai were residing in a one
room tenement in a house belonging to one Tavar pleader in which there 'are in
all 12 to 15 tenements.
The tenement of the appellant was not very
far from' that of the appellant's cousin Shantabai who was residing with her
husband Pandu Genda and the house of 777 Cliandrabhagabai was about a furlong
away from that of the appellant. The relations between the appellant and the
deceased were normal for sometime but about two years before the occurrence
differences had arisen and there were frequent quarrels between them. A child
of the marriage was born about 1-1/2 years before the occurrence. The deceased
was a frequent visitor to her mother's house to which the appellant took
objection. The appellant bad stopped giving her the necessities of life
including foodgrains etc. About a week before Diwali the appellant gave her a
beating. The deceased used to have her meals with her mother and the appellant
with his cousin Shantabai and the daughter of the marriage Urmila stayed with
the mother of the deceased during the day time. The occurrence was on the
Bhaubij day i.e. November 2, 1959 between 1.30 and 3.30 in the afternoon. After
having her meals at her mother's house the deceased returned to her husband's
house and went to sleep in the afternoon. It is stated that while she was
sleeping the appellant gave her a beating and after sprinkling Kerosene oil on
her clothes, set fire to them. The deceased with her clothes burning went in
the direction of the house of Shantabai but fell down in front of it and was
almost naked when somebody covered her body with a dhoti.
Chandrabhagabai received information, it is
stated, from her nice Suman about this fact and Chandrabhagabai ran to the
spot, and found her body burnt. The cousin, Shantabai and her husband Pandu
Genda also arrived and on enquiry by Chandrabhagabai the deceased told her that
her husband had set fire to her clothes after sprinkling kerosene oil on her.
By this time a police constable informed the Police Station which was nearby
and an ambulance car was sent and the deceased was taken to the Civil Hospital,
Dhulia at about 4-15 P.m. She was examined by Dr. Javeri who 778 treated her
and on his enquiry the deceased told him that her husband had set fire to her
clothes after sprinkling kerosene oil on her clothes. Dr. Javeri then informed
the police and advised that a dying declaration be recorded. At about 5-30 P.m.
a Magistrate Mr. Mhatre recorded the statement of the deceased but she died at
8-15 P. M. on the same day in the hospital.
The defence of the appellant was that of
alibi, in that he was at work on the house of Mulchand Rajmal at Nehru Nagar
which was being built and that he was entirely innocent of the offence. The
trial court found that it was the appellant who had set fire to the clothes of
the deceased after sprinkling kerosene oil; that the appellant had the
intention of causing such bodily injury to the deceased as was likely to cause
death and it therefore convicted the appellant of an offence under s. 304 Part
1 and sentenced him to three years' rigorous imprisonment and a fine of Rs.
100/-. The learned judge accepted the testimony
of the mother Chandrabhagabai as to the dying declaration and also that of Dr.
Javeri and finally he accepted the dying declaration recorded by the Magistrate
which was in the form of questions and answers. In all her dying declarations
the deceased had accused the appellant of setting fire to her clothes and thus
causing her severe bums.
The State took an appeal to the High Court
which convicted the appellant of an offence under s. 302, Indian Penal Code and
sentenced him to death. Against that judgment and order the appellant applied
for certificate to appeal to this Court under Art. 134 (1) (a) but the
certificate was refused and this Court gave special leave under Art. 136 of the
Constitution.
The first question for decision is whether
the appellant had a right of appeal to this Court under Art. 134 (1) (a) and
the decision of that must depend 779 upon the construction to be put on the
language used in that Article the relevant portion of which is as follows:
134 (1) ""An appeal shall lie to
the Supreme Court from any judgment, final order or sentence in a criminal
proceeding of a High Court in the territory of India if the High Court.- (a)
has on appeal reversed an order of acquittal of an accused person and sentenced
him to death." If the High Court reverses an order of acquittal of an
accused person and sentences him to death an appeal shall lie as of right to
this Court under the Article. The argument raised on behalf of the appellant
was that as the appellant was acquitted of the offence of s. 302 and was
convicted under s. 304 Part 1 it was a case of reversing an order of acquittal.
The argument on behalf of the State was that the word acquittal meant complete
acquittal. The decision of this must depend upon the construction of the word
"acquittal". If a person is acquitted of the offence charged and is
convicted of a lesser offence, as in the present case, can it be said that he
was acquitted and the High Court had on appeal reversed the order of
acquittal." In our opinion the word "acquittal ? does not mean that
the trial must have ended in a complete acquittal of the charge but acquittal
of the offence charged and conviction for a minor offence (than that for which
the accused was tried) is included in the word ",'acquittal". This view
has the support of a judgment of the judicial Committee of the Privy Council-
in Kishan Singh v. The King Bmperor (1). In that case an accused person was
tried by the Sessions Judge under s. 302 of the Indian Penal Code on a charge
of murder but was convicted under s. 304 for culpable homicide not amounting to
murder, the Court having power to do that under s. 238 (2) of the Criminal
Procedure Code. He was sentenced to (1) (1928) L.R. 55 I.A. 390.
780 five years' rigorous imprisonment. No
acquittal of the charge under s. 302 was recorded. There was no appeal to the
High Court by the then local Government but, it applied for revision under s.
439 on the grounds that the appellant should have been convicted of murder and
the sentence was inadequate. The High Court convicted the appellant of murder
and sentenced him to death. On appeal to the Privy Council it was held that the
finding of the trial court was to be regarded as an acquittal on the charge of
murder and that under s. 439 (4) Criminal Procedure Code the word "acquittal"
did not mean complete acquittal. At page 397 Sir Lancelot Sanderson observed:
"Their Lordships, however, do think it
necessary to shy that if the learned Judges of the High Court of Madras
intended to hold that the prohibition in s. 439 sub-s. 4 refers' only to a case
where the trial has ended in a complete acquittal of the accused in respect of
all charges or offences, and not to case such as the present, where the accused
has been acquitted of the charge of murder, but convicted of the minor offence
of culpable homicide not amounting to murder,' their Lordships are unable to
agree with that part of their decision. The words of the sub-sec- tion are
clear and there can be no doubt as to their meaning. There is no justification
for the qualification which the learned Judges in the cited case attached. to
the sub-section." We are in respectful agreement with the interpretation
put on the-word "acquittal" by the Judicial Committee of the Privy
Council and the word "acquittal" therefore does not mean that the
trial must have ended in a complete acquittal but would also include the case
where an accused has been acquitted of the charge of murder and has been
convicted of a lesser offence. In that view of the matter the appellant was
entitled, to a certificate 781 under Art. 134 (1) (a) as a matter of right and
this appeal must be treated as if it is under that provision of the
Constitution.
The facts of this appeal have been set out
above. In support of the prosecution the evidence mainly, if not solely,
consists of the dying declarations. The first dying declaration was made to the
mother Chandrabhagabai as soon as she came to the place where the deceased was-
lying and in answer to her question "as to who had done it," the
reply was that "it was done by her husband., also that the husband had set
fire to her clothes." In cross-examination she stated that at the time
when this statement was made by the deceased Shantabai and her husband Pandu
Gonda were present.
A suggestion was made to her that the deceased
implicated the appellant at the instance of Chandrabhagabai but she repudiated
this suggestion and both the trial court and the.
High Court have accepted the correctness of
this dying declaration and also that it was not prompted by the mother Cbandrabhagabai.
Beyond a mere suggestion in the cross- examination there is no material to
support the contention of prompting by the mother.
A similar statement accusing the appellant of
setting fire to her was made by the deceased to the Doctor (Dr. Javeri) who
asked the deceased as to how she got the burns and her reply was that her
husband had sprinkled kerosene oil on her and bad applied a match stick to her
clothes. This statement was also accepted by the High Court and we find no
reason to differ from that conclusion. The third dying declaration was made in
the presence of and was recorded by Mr. Mhatre, a Magistrate at about 5-30 P.M.
in the presence of Dr. Javeri who certified that the deceased was in a fit
state of mind to make the statement. The Magistrate asked her certain questions
which are set out in detail and he took down the answers and his evidence is
that the deceased understood the questions and replied to them. He 782 made a
record of the questions and answers but that record was not signed by her nor
her thumb impression taken on it because her hands were badly burnt. This
examination took about an hour. This dying declaration was held by the trial
Court to have been made without the help or prompting 'of anybody and according
to Chandrabhagabai she was not present at the time. The learned Trial Judge
held that the dying declaration was "freely given without the influence of
anybody. It was not made under influence of any personal feelings." The
High Court Also accepted the correctness of this dying declaration and there is
no evidence on the record which would in any way detract from the finding of
the trial Court or of the High Court,. in regard to the correctness or the
propriety of this dying declaration.
The argument raised before us was two fold:
(1) that the appellant was not present at the place of occurrence at all and
(2) that it was a case of suicide. There are no cogent grounds which would lead
to the, conclusion that the deceased wanted to commit suicide nor have any
circumstances been shower to us which would lead to any such conclusion.
Even though it may be true that the relations
between the husband and the wife, were strained so much so that the husband had
almost refused to maintain the deceased and was not prepared to give her even
food there is no indication that the deceased was so worked up as to have lost
her self- control so as to commit suicide. Certain other circumstances as to
the absence of any kerosene oil on the clothes of the appellant or the absence
of kerosene oil on the bedding have been pointed out but in the circumstances
of this case those circumstances are of no significance.
Both the trial court and the High Court have
found that the deceased had died as a result, of burns 'caused by the fire set
to her clothes by the appellant who had sprinkled kerosene oil on her, 783 This
is supported by the dying declarations against the correctness of which no
cogent reasons have been given or suggested and a conviction based on such
evidence has been held to be sustainable by this Court in khushal Rao v. The
State of Bombay (2).
The plea of alibi was sought to be supported
by the evidence of Gangaram Sitaram a co-worker of the appellant but his
testimony was rejected by both the trial Court and the High Court and having
gone through it we find no reason to differ from that opinion.
In the result this appeal fails and is
dismissed.
RAGHUBAR DAYAL, J. We agree that the
appellant had a right of appeal under Art. 134 (1) (a) of the Constitution, but
regret our inability to agree with the view that the conviction of the
appellant under s.302, I. P. C., be maintained.
In appeals preferred under Art. 134 (1) (a)
of the Constitution-, we are to assess afresh the value of the evidence of
record, and do not follow the practice of this Court in appeals, by special
leave, under Art. 136 of the Constitution, that the concurrent findings of the
Courts below be not interfered with, ordinarily, but be interfered with only
when special circumstances exist.
We are of opinion that it is not safe in this
case to base the conviction of the appellant solely on the dying declarations
made by the deceased, even though in law a conviction can lawfully be based on
dying declaration alone if the Court feels fully satisfied about its giving a
true version of the incident.
The first dying declaration was made to her
mother, by the deceased. It was certainly natural for the mother to question
her daughter as to how she got burnt. But that does not really mean that (2)
(1958) S. C. R. 552.
784 the daughter did state all what the
mother deposes. Two points arise there, and they are : (a) Did the mother speak
the truth ? and (b) Did the daughter ,speak the truth ? The mother, P.W. 1,
admittedly, has not good relations with her son-in-law. She made discrepant
statements. The Sessions Judge has remarked, in paragraph 12 of his judgment,
that there were lot of discrepancies in the statements of this witness.
Reference may be made to her stating at one place that when she used to request
the accused not to beat the daughter, the result was adverse and denying the
correctness of this statement when questioned in cross-examination.
According to her, only she was sent away from
the room when the Magistrate recorded the dying declaration of the deceased in
the hospitals indicating that the accused and some others continued to remain
in the room. This statement is not borne out by Dr. Javeri or by the
Magistrate. She expressed ignorance about the deceased making a statement.
to the police. The Sub-Inspector and Dr.
Javeri deposed about her making such a statement. She could not have been
ignorant about it.
She deposes that the accused came to the spot
where Sindhubai, the deceased, lay injured, about five minutes after her
arrival, She knew that he had set fire to Sindhubai's clothes after pouring
kerosene oil on her. She did not question him about it. She did not reprimand
him.
She did not abuse him. She did nothing which
could have, been normally expected of a mother knowing that the, accused bad
burnt her daughter The explanation that she was sorrow- strike, lacks the ring
of truth. Grief striken she must be, but that would not have made her mute.
According to her Sindbubai made this dying
declaration when Shantabai, cousin of the accused, and her husband Pandu Genda
were present. These witnesses have not been examined by the prosecution to
corroborate her statement.
785 The other dying declaration relied on by
the Courts below was made by the deceased to Dr. Javeri, on his casually
questioning the deceased as to how she got injured. It may be natural, but we
have our doubts, for the Doctor to put such questions to the patient in agony,
which had no real connection with his duties as a medical man, and such
questioning cannot be said to have any comforting effect on the patient. Such
questioning can be nothing but idle curiosity which a Doctor in that position
should not evince.
Any way, it would not be a good precedent to
rely on such a statement to the Doctor in such circumstances, when the Doctor
makes no record about it, even if it be not required to be noted in the
medico-legal register. We would consider it safe not to rely upon such a
statement made to a casual question by the Doctor, the details of which
statement are not clear.
The dying declaration made to the police has
been ignored, the Sessions Judge considering that it was not made at all, or
not made at the time the Sub-Inspector deposed to have got the dying
declaration from the deceased. No significance attaches to this dying
declaration in any case when it was recorded after the deceased had made a
formal dying declaration to the Magistrate.
The dying declaration to the Magistrate has
certainly been recorded with care. The relevant statements made in this dying
declaration are the following "I am suffering injuries of burning. My
husband is my enemy. My husband has burnt me.
Kerosene was poured over my body and a match
stick was lighted. I was sleeping in the house. He, i.e., my husband, beat me
and then burnt me. I shouted, but nobody came. He was ill treating me. He was
harassing me and was causing me starvation for 786 the last 8 days. I had
complained about it to Pandu Genda and Shanta Pandu. I did not send any
information to my parents about the starvation.
The High Court has stated several times in
its judgment that Sindhubai was sleeping when the accused set fire to her
clothes. The panchnama Exhibit No. 14. prepared about the room, does not show
that the bedding had any oil sprinkled over it or that it got burnt. Quite a
number of other clothes were burnt, which need not have caught fire.
Absence of oil on the bedding is not
consistent with her statement that she was sleeping in the house when the thing
happened. This statement is also not consistent with the next statement made by
her that her husband beat her and then burnt her. Her statement that nobody
came on her shouts because the door of the house was shut, does not fit in with
her statement to the police in Exhibit 19 that the accused ran away on his work
after he had set fire. The probability too is that if the accused had set fire
to her clothes he would run away just after setting fire as he could expect
that the victim would shout and that her shouts would attract neighbours and
persons passing by. Even if the door was latched for some time while the
accused remained there because he did go subsequently, that does not explain
the non-arrival of any person.
The persons could have come and could have
knocked at the door. It is really remarkable that in this case not a single
witness of the neighbourbood has come to depose anything in support of the
prosecution case. There is no evidence at all from an outside source. The
investigation seemed to have revealed nothing whatever., There is nothing in
the case to lend assurance to any circumstance. Surely, this cannot be the
result of the accuser’s influence on the witnesses or the result of a general
inclination not to speak the truth in the interests of justice, even when the
787 accused committed the dastardly act of setting fire to his own wife. Their
absence from the witness box may be due to their not standing what they knew to
be untrue or did not consider to be true.
It is always a difficult question to
speculate why deceased accused a certain person of committing the crime, or why
a witness deposes against a person with whom he has no ostensible cause of
enmity or why the police. in the discharge of its public duty should influence
persons to make inaccurate statements, when Courts come to the conclusion that
the accusation or the evidence does not appear to be true and that there are
reasons to suppose that the. police had influenced the testimony of witnesses.
Anyway, the same difficulty occurs in the
present case. But it is clear that the relations between the wife and the
husband were strained to such an extent that, according to the prosecution, the
accused not only starved her, but also set fire to her clothes with the
intention to cause her death. Such a conduct of the husband cannot be on
account of ordinary domestic unpleasantness, but must be the result of a very
acute feeling of desperation and a desire not to live any more with his wife.
If such were the relations which one is inclined to infer from what the
prosecution wants the Court to believe, it should not be difficult to imagine
that the wife's motives in charging the husband falsely may be equally strong.
She too must have been fed up with the misery of her life and might have
committed suicide and put an end to her life, but when, as often happens, she
was questioned, she accused her husband of setting fire to her clothes, not
with a view to save herself from a conviction for attempting to commit suicide,
but either on account of her feeling that her husband was responsible for all
her troubles and that her disparate action was also due to the same cause or
out of malice. Any way, a dying declaration is not to be believed merely
because no possible reason 788 can- be given for accusing the accused falsely.
It, can only be believed if there are no grounds for doubting it at all.
Apart from the above considerations
indicating that implicit reliance cannot be placed on the dying declaration,
there are other circumstances which add to the feeling of uncertainty about the
truth of the accusation made in the dying declaration. The panchnama of the
room shows that a few shirts and old trousers and pieces of two sarees lay near
the southern wall of the room in a wet and half burnt condition There is no
explanation why such clothes should have been burnt. There was no point in the
accused pouring kerosene oil on these clothes even if they just lay huddled
near the wall. If Sindhubai fell on the clothes lying there, that may burn some
of them, but will not explain their getting wet. There is no suggestion that
anybody had poured water over the 'burnt clothes in order to extinguish the
fire, because none came there at all. In fact, Ranganath Sitaram, P.W. 6, one
of the Panchs, states that the burnt clothes were also giving smell of rock
oil. The panchnama further notes :
"On the eastern wall, two feet height
from the ground there is a black spot caused due to the burning of the clothes
and the same is recent one." There is no explanation why such a mark
should be there.
Sindhubai could not have stood opposite the
wall and, even if she did, there should have been marks of burning along the
length of her body beside the wall and not at a certain spot only. These two
observations can be consistent only with somebody deliberately setting fire to
the clothes and keeping some burning clothes beside the wall- for a, little
time, The appellant, or whoever 789 set fire to her clothes, would not have
done this as he would have made a very quick exit after drenching Sindhubai
with kerosene oil and setting fire to her clothes.
Sindhubai does not make any statement about
such a conductor the accused in her dying declaration. The only inference then
possible is that she herself (lid all this, in accordance with her own
inclinations. Why she did this, one cannot say.
Sindhubai returned to her house with her
daughter after taking her mid-day meal at her mother's house and sent back the
daughter with Usha. This is according to the statement of her mother. She
brought the child, when, according to her mother's statement, she expected her
husband to come to the house after taking his meal at his cousin's place. The
conduct is unusual, as, ordinarily, the child used to remain with her maternal
grand-mother during the day time, as for some reason the accused probably felt
aversion to her. The conduct can 'be consistent with her intention to commit
suicide. She brought the child to her place to fondle with her for the last
time and then sent her back to her mother.
Sindhubai's running towards the house of
Shantabai, her husband's cousin, and not running towards her mother's place,
also appears to be unnatural. It may be that in such troubles moments one need
not be absolutely logical, but it is expected to be instinctive that when in
trouble one thinks of one's relations who are expected to be sympathetic, and
helpful, on the occasion. It is in the statement of her mother that the route
to her house is different from the passage to the house of Shantabai. It may be
that the accused did not go to the house as expected, and went away to his job
from his cousin's place. It was a day of festival. Sindhubai might have felt
this conduct badly set fire to her clothes, and then run towards 790
Shantabai's house where she might have expected her husband to be present.
The time of the incident though said to be
between 1-30 and 3-30 P.m., appears to have been near about 3 O' clock. The
mother states to have got information about that time. Tile police got
information at about 3-45 P.m., and the ambulance took Sindhubai to the
hospital at 4-15 P.M. The accused was not expected to be at his house at 3 P.m.
The learned Judges of the High Court did not believe the defence evidence about
the accused working at the house of Mulchand Rajmal from about 2 P.m. and to
have gone to his house on receiving information from one Daga because Daga was.
not examined, the Munim of the house-owner was not examined and the register of
workers was not produced. It is however the case for the prosecution that the
accused used to go to work at 7 A.M., to return at 12 O'clock and again go for
work at 2 P.m., and then return at 6 P.m. Chandrabhaga, the mother of the
deceased, deposes so. There is therefore no good reason 'to think that the
accused did not go to his duty at 2 P.M., that day as deposed to by D.W. I.
Sindhubai herself stated in her statement to
the police that the accused, after setting her on fire, ran away to his work.
If the time of the incident be calculated from the time the police was
informed, i. e., from 3-45 P.m., the incident would have taken place sometime
between 3 and 3-30 P.m., and the accused would not have been at his house at
that time. In fact, it appears to us that it is to avoid this difficulty that
at Rome stage an attempt was made to time the incident at about 1-30 P.m. The
incident could not have taken place before 2 P.m., as, in that case,
information to the police would be very belated and in the normal course of
events, it is not expected that Sindhubai would have tarried in the room for
long or that the persons who must 791 have collected after her running towards
Shantabai's place and falling down there, Would not have taken steps to inform
the police without any undue delay.
The mother's statement that Sindhubai used to
tell her that if the ill-treatment continued, she would sever her connection with
the accused and would earn her own living would support the view that she had
really got tried of her living with the accused and that this could have
prompted her to attempt suicide.
If Sindhubai was not actually asleep when the
kerosene oil was poured on her, it does not stand to reason that she would not
have made any attempt to run away and the possibility of the accused
successfully setting fire to her clothes in the course of the struggle, would
be remote, and even if he succeeded, it is a moot point whether he too would
not have been singed, if not burnt.
Those are the various considerations which
make us feel doubtful about the truth of the dying declaration and take the
view that the appellant's conviction on the basis of the dying declaration
should not be maintained.
It appears from the High Court judgment that
the case put before it was "sometime after 1.30 P.m., the accused latched
the room from inside and while Sindhubai was sleeping he poured a large
quantity of kerosene oil on her person. Her clothes became wet with that
kerosene oil and before she could struggle and get up he searched for a match
stick, lighted it and set Sindhu's clothes on fire'. Such a case could not be
made out from the dying declaration recorded by the Magistrate. Sindhubai had
said at first she was sleeping when it happened, but, in answer to the very
next question, she said that her husband beat her and then burnt her. If the
burning followed the beating, there could be no question of throwing kerosene
oil on 792 her while asleep. No reason for this conduct was stated.
The, Magistrate who cleared the doubt full
points failed to elicit why this deed was perpetrated.
Further, the searching for a match box is
very improbable thing. If the accused had decided to set fire to his wife, he
would have got, a match box handy and if he did forget about it and had to
search for it, that would give sufficient time to Sindhubai to make good her
escape.
The aversion of Sindhubai to tell the name of
her husband could not have been on account of any tender feeling for her
husband, but was the natural act of a Hindu married woman not to tell her
husband's name. This aversion to tell the name of her husband is no guarantee
of the truth of her subsequent statement accusing her husband of the crime.
We do not find any justification for the
following observation of the High Court, when considering the defence evidence
:
"The accused has led evidence and his
case is that he was not responsible for this murder at all. But in fact he was
in the house when the incident took place." The High Court had made the
latter statement as a statement of fact, though there was no evidence to
support it. Of course, on the basis of a dying declaration, the High Court had
already held before discussing the defence evidence, that the accused was
responsible for the murder of his wife.
If the defence evidence is to be adjudged on
the basis of the final finding of the Court, there is no use for defence
evidence. It has to be taken into consideration before arriving at a final
finding.
The conduct of the accused in travelling in
the same ambulance car and in remaining in the 793 hospital is in-his favour
and is against the prosecution.
The accused stated in his examination that he
paid the charges for the ambulance car.
We would like to remark that the learned
Judges who heard the appeal should not have heard it when they, at the, time of
admitting it, felt so strongly about the accused being wrongly acquitted 'of
the offence of murder that they asked the Government Pleader to look into the
papers to find out whether it was a case where the Government would like to
file an appeal against the acquittal, under s. 302, I.P.C.
Government did file an appeal against that
acquittal. We do not know whether it was at the suggestion of the Government
Pleader or not. But, in these circumstances, it would have been better exercise
of discretion if this appeal against the acquittal had not been heard by the
same Bench which, in a way, suggested the filing of the Government appeal. In
fact, to make such a suggestion appears to be very abnormal.
We are therefore of opinion that it is not
satisfactorily proved that the appellant committed the murder of his wife by
setting fire to her clothes. We would therefore allow-- the appeal. Set aside
the order of the Court below and acquit the appellant of this offence.
By COURT. In accordance with the opinion of
the majority, this appeal fails and is dismissed.
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