C.L. Pangarkar, J.
1. The appellant was convicted by the Additional Sessions Judge, Amravati for having committed offence punishable under Section 302 of Indian Penal Code. She was sentenced to undergo imprisonment for life.
2. The facts which give rise to this appeal are thus:
One Kalpana was married to Harish. They have a daughter named Divya. She was residing with her husband in a house constructed on the plot belonging lo her mother. Her father-in-law Shankar and step-mother-in-law Sangeeta were residing together separately in their house. Since the brother of the deceased Kalpana was in need of a house, Kalpana and her husband vacated the house and came to reside with Kalpana’s father-in-law and step-mother-in-law. Since then step-mother-in-law Sangeeta i.e. the accused was quarrelling with her and was asking her to vacate the house. Sangeeta, the accused was also insisting upon her husband to transfer the house in her name. However since before 11/2 month prior to the incident mother-in-law Sangeeta i.e. the accused was living along with her son in a rented house. One day she came to the house of the deceased and beat her own husband. She also quarrelled with the deceased Kalpana.
3. On 13-10-2000 Kalpana, one lady and wife of Sukhlal were watching T.V. in the house. Her father-in-law and her husband had gone to bed. At about 11.30 p.m. Kalpana came out of the house in order to pass urine. It is alleged that at that time accused-Sangeeta came from behind, poured kerosene on the person of Kalpana and set her on fire with a match stick. Kalpana shouted. Her husband and the 2 ladies in the house came, the father-in-law also came. They extinguished the fire. Kalpana was brought to the police station and was later on taken to Civil Hospital at Amravati. Her statement was recorded by Police Officer as well as a Magistrate. Upon this statement offence came to be registered. Kalpana subsequently died of the injuries sustained by her. Offence was converted to Section 302, Indian Penal Code. Police went to place of the incident and had seized burnt pieces of clothes, vessel containing kerosene and match stick and few other clothes. After completion of the investigation charge-sheet was filed.
4. Learned Judge of the Sessions Court after recording the evidence found that the dying declarations made by the deceased were reliable and did not suffer from infirmity. She, therefore, proceeded to convict the accused and sentenced her.
5. We have heard the learned Counsel for the appellant and the respondent.
6. Seven witnesses were examined by the prosecution to bring home guilt to the accused. One defence witness has also been examined.
7. None of the witness examined is an eye-witness. The case rests only on three dying declarations said to have been made by the deceased. The first dying declaration is oral one and is said to be made to the husband P.W. 5 Harish. The second is made to P.W. 1 Sadashiv Patil the Executive Magistrate and the third is said to be recorded by Head Constable Devidas P.W. 7. P.W. 5 Harish has deposed that on the day of the incident he had gone to bed and at around 11.30 p.m. he heard shouts of his wife “Divya’s father save me”. He states that he then saw his wife coming towards the door and he extinguished the fire by tearing off the gown on her person and his father had put a quilt around her. One lady who had come to watch the T.V. also extinguished the fire. He states that when asked, his wife told him that his (Harish’s) step-mother had set her on fire. This dying declaration can be said to be made instantly. As far as second dying declaration is concerned it is made before the Executive Magistrate P.W. 1 Sadashiv Patil. The mental and physical condition of the deceased i.e. Kalpana was not seriously challenged. Even Dr. Anil Kavimandan P.W. 3 has stated that upon examination he found the patient to be in fit condition to make a statement. Considering the statement of Dr. Anil Kavimandan and the fact that this aspect was not challenged seriously, we find that the deceased was in a fit condition to make a statement. The dying declaration recorded by Executive Magistrate is at Ex. 19. During the dying declaration the deceased said that she came out of the house to pass urine around 12 midnight after watching T.V. She states that while she was passing urine accused-Sangeeta came from behind and poured kerosene on her person and lit the match stick and set her on fire and ran away. She says that her husband and father-in-law extinguished the fire. She had also stated that her mother-in-law Sangeeta always used to give her threats to kill her.
8. In the third dying declaration recorded by Head Constable Devidas also she has repeated the same story.
9. It was contended on behalf of the State that all these three dying declarations are consistent and there is nothing to suggest in the evidence of either the Executive Magistrate or Dr. Anil Kavimandan to hold that she was not in fit mental and physical condition. It was also contended that there is no infirmity in the dying declaration. We agree to the proposition that the deceased did make such statement implicating the present accused-appellant. Deceased may have made such statement, yet the Court has to look into the truthfulness about the contents thereof upon considering the attending circumstances. The Court has not only to look into the attending circumstances but also has to see if the deceased had an opportunity to see the assailant, and whether there could be any possibility of deceased being tutored.
10. We find that what is stated in the dying declaration may not be true and for arriving at such a finding we proceed to give the reasons.
11. The first such circumstance is that the accused was not living with the deceased since many days prior to the incident. In dying declaration Ex. 43 recorded by P.W. 7 Devidas, it is stated very clearly by the deceased that since many days her mother-in-law i.e. the accused is living separately with her children in a rented house. It is thus clear that on the day of the incident the accused-appellant was not at all living with the deceased in the same house. It is for this reason we find it difficult to accept the story of accused coming to the house of the deceased in the midnight. How could the accused know that the deceased would come out of the house at a particular time to pass urine. It is just not possible to accept that the accused was in the waiting with a Can of kerosene and a match-box. It is further difficult to accept that she knew that the deceased would come out at a particular time and that she would get an opportunity to set her on fire. It is also difficult to digest that accused would keep waiting all alone on the road near the house for hours together with a can and match-box in hand and yet nobody would notice her. Had the accused been living in the same house, then perhaps the story could have been accepted but admittedly she was not living with them.
12. The time of the incident is 12 midnight. There is nothing in the evidence that there was any illumination of street light or the light in the house so as to enable the deceased to have a look at the person committing this act. Since the time is 12 midnight and there is no evidence of illumination of any light it is quite probable that the deceased may not have had an opportunity to observe and see the person committing the act. This is a clear infirmity in the dying declaration and the benefit of this must go to the accused.
13. The following factors also need to be looked into:
P.W. 5 Harish has admitted that his deceased wife had filed a complaint against him under Section 498A of Indian Penal Code with an allegation that she was dragged out of the house by catching hold of the hair and then turning her out of the house. He further admits that she had once taken poison. These admissions suggest that the relations between deceased and her husband were not good and she had in fact once consumed poison in order to commit suicide. If these factors are taken into account then there is certainly a scope to doubt the veracity of the contents of the dying declaration.
14. Yet another thing that casts a shadow of doubt on the truthfulness of the contents of dying declaration are the contents in the spot panchanama Ex. 21. It is seen from the spot panchanama that near the door of the house burnt pieces of clothes were found and that in the varandah just in front of the door on the first step a match-box was also found. One vessel containing white kerosene was also found near the western outer wall. We find that, had an outsider come on the spot in order to commit murder, he would not have left the match-box in the varandah and the vessel containing kerosene on the spot. On the other hand he would have run away along with the match-box and the vessel. He would not have left the evidence in this form on the spot. Hence there is every doubt about the complicity of the accused who was then not living in the house belonging to the family of Kalpana. The fact that the match-box was found in the varandah and the vessel was also found containing kerosene, it could be somebody living in the house or it could even be a case of suicide. We have seen from the evidence that the deceased had twice attempted to commit suicide by consuming sleeping pills and endrine. It is in this background that the possibility of suicide or a third person committing such act cannot be ruled out.
15. The accused-appellant, therefore, must get the benefit of this reasonable doubt.
16. There is also every possibility of the deceased having been tutored by her husband. It may be seen that the accused was insisting on deceased and Harish to leave the house and she was also insisting to transfer the house in her name. She quarrelled with her husband. Therefore, Harish, her step-son, his father had an axe to grind against her. The husband of the deceased was constantly with her, right from the incident till her death. It is for this reason that the possibility of the deceased having been tutored cannot also be ruled out. The dying declaration is, therefore, full of infirmity and on such dying declaration conviction cannot rest. Learned Judge of the trial Court had failed to appreciate this aspect. We, therefore, differ with her and proceed to allow the appeal.
Appeal is allowed. The conviction and sentence imposed by the Additional Sessions Judge, Amravati is set aside. Accused-appellant is acquitted of the offence of which she stood charged. She is in jail, she be set at liberty forthwith if not required in any other case.