The Bombay High Court has acquitted a man accused under section 302 IPC for murder of his wife, and rejected the dying declaration made by his wife while stating that prosecution has failed on account of extremely insufficient evidence and evidence of doubtful character.
The Appellant-Accused namely “Ajay’” who is a husband of a deceased had filed a Criminal Appeal before the Nagpur bench comprised of Justice Sunil B. Shukre and Justice Madhav J. Jamdar, Bombay High Court against the impugned judgement/ order issued by the learned Additional Sessions Judge.
Bombay High Court held, “this is a case wherein there is neither any certificate of the doctor regarding fit state of mind of the declarant duly proved before the Court nor the satisfaction of the person who recorded the dying declaration as to the fitness of the deceased to make a declaration. Therefore, such a dying declaration cannot be relied upon and it would be risky for this Court to give any credence to such a dying declaration. The evidence in the nature of dying declaration is rejected by us.”
The Court pronounced its judgement on a appeal filed by a man accused under section 302 IPC for murdering his wife. It was alleged that there was some quarrel between the deceased/wife and the appellant which enraged the appellant so much so that he picked up a can containing kerosene oil, opened it, poured some of the kerosene on the person of deceased and set her ablaze by means of a lit matchstick.
On merits of the case, the learned Additional Sessions Judge found the appellant as not guilty for an offence of cruelty punishable under Section 498A of the Indian Penal Code, but found him guilty for the offence of murder punishable under Section 302 of the Indian Penal Code and thus convicted him to suffer imprisonment for life and also to pay a fine of Rs. 2000/and in default, to suffer simple imprisonment for six months, by the impugned judgment and order.
Before the High Court, counsel for the appellant contended that the case being based upon the sole dying declaration, learned Additional Sessions Judge ought to have seen that the dying declaration was voluntarily made while being in mentally and physically fit condition and thus, was a reliable document. Counsel further submitted that the police officer who recorded the dying declaration did not even satisfy herself by putting adequate questions to the deceased about her being mentally and physically fit to make the statement and to worsen the case of the prosecution, the Medical Officer who allegedly gave fitness certificate, was not examined. Counsel submittted that the dying declaration, in her opinion, could never have inspired confidence of the Court and thus, it was worthy of rejection. It was further submitted that the dying declaration relied upon by the trial Court being a suspect document and there being no other evidence available on record to nail the appellant in the offence alleged against him, the appellant deserves to be acquitted of the same in the present case.
“Apart from the rejected evidence of dying declaration, there is no evidence brought on record in the present case against the appellant. The prosecution has also not examined any neighbours of the deceased although some of them had taken the deceased to the hospital. No explanation for their nonexamination has been given either. The prosecution has not explained as to where the appellant was at the time when his wife deceased Nanda received burn injuries. There is no evidence brought on record by the prosecution showing presence of appellant at the spot of incident at the relevant time. Therefore, conduct of appellant would not be of any significance here,” Said the High Court.
Court Noted that, the appellant has taken a defence of complete denial. So, it is difficult to say anything about the background of the death of Nanda (deceased) and as to what were the circumstances surrounding her death.
But, sofar as the prosecution case against the appellant is concerned, it has to fail on account of extremely insufficient evidence and evidence of doubtful character. All these aspects of the matter have not been considered by the trial Court, said the Court.
“The impugned judgment and order is replete with flawed inferences based upon sketchy and unreliable evidence and, therefore, deserves to be quashed and set aside by acquitting the appellant of the offence of murder charged against him, by giving him benefit of doubt,” held by the Court.
-India Legal Bureau