Case Note & Summary
The appellant, Prakash s/o Rupa Rathod, was convicted by the learned Sessions Judge, Jalna, on 21-03-2012 in Sessions Case No.121 of 2012 for the murder of Sushila under Section 302 of the Indian Penal Code, 1860. The prosecution case was that on 09-03-2012 at 9:00 p.m., the appellant visited the deceased's house, insisted on getting liquor on credit, and upon her refusal, poured kerosene on her and set her on fire. The deceased sustained 50% burns and was taken to the hospital, where her dying declaration was recorded by PW5 Rathod on 12-03-2012. She succumbed to her injuries. The FIR was registered on 12-03-2012, three days after the incident. The trial court relied on the dying declaration (Exh.29) and the testimony of PW2 Kavita, the daughter of the deceased, to convict the appellant. The appellant challenged the conviction in the High Court. The High Court found several infirmities in the prosecution case. The dying declaration was not recorded in the vernacular of the deceased (Marathi) but in Hindi, and there was no endorsement that it was read over to her. It also contained overwritings and insertions. The FIR was lodged with an unexplained delay of three days. PW2 Kavita, a child witness, was examined without administering oath and without the court assessing her competency. Material witnesses like the mother and brother of the deceased were not examined. Seized articles were not sent for forensic analysis, and no CA report was produced. The High Court held that the dying declaration was unreliable and could not be the sole basis for conviction. The evidence of the child witness was also not credible. Consequently, the court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
Headnote
A) Evidence Law - Dying Declaration - Recording in Vernacular - Section 32(1) of the Indian Evidence Act, 1872 - The dying declaration must be recorded in the language of the declarant to ensure accuracy; failure to do so and absence of endorsement that it was read over to the declarant renders it unreliable. Held that the dying declaration Exh.29 was not recorded in the vernacular of the deceased and there was no endorsement that it was read over to her, making it unsafe to rely upon (Paras 10-12). B) Evidence Law - Dying Declaration - Overwritings and Insertions - Section 32(1) of the Indian Evidence Act, 1872 - The presence of overwritings and insertions in the dying declaration casts doubt on its authenticity. Held that such infirmities make the dying declaration unreliable (Para 13). C) Criminal Procedure - Delay in FIR - Unexplained Delay - Section 154 of the Code of Criminal Procedure, 1973 - The occurrence was on 09-03-2012 but FIR was recorded on 12-03-2012; the delay of three days was not explained by the prosecution. Held that unexplained delay in lodging FIR is fatal to the prosecution case (Para 14). D) Evidence Law - Child Witness - Competency - Section 118 of the Indian Evidence Act, 1872 - The child witness PW2 Kavita was examined without administering oath and without the court ascertaining her intellectual capacity to depose. Held that such evidence cannot be relied upon (Para 15). E) Criminal Procedure - Non-Examination of Material Witnesses - Adverse Inference - Section 114(g) of the Indian Evidence Act, 1872 - The mother and brother of the deceased, who were present at the scene, were not examined. Held that non-examination of material witnesses leads to an adverse inference against the prosecution (Para 16). F) Criminal Procedure - Forensic Evidence - Non-Sending of Seized Articles to CA - The seized articles were not sent to the Chemical Analyzer for forensic analysis, and no CA report was produced. Held that this lacuna weakens the prosecution case (Para 17).
Issue of Consideration
Whether the dying declaration and other evidence on record are sufficient to sustain the conviction of the appellant under Section 302 of the Indian Penal Code, 1860.
Final Decision
The appeal is allowed. The judgment and order of conviction dated 21-03-2012 passed by the learned Sessions Judge, Jalna in Sessions Case No.121 of 2012 is set aside. The appellant is acquitted of the offence under Section 302 of the Indian Penal Code. His bail bonds stand cancelled.
Law Points
- Dying declaration must be recorded in the vernacular of the declarant
- must be read over to the declarant
- and must be free from infirmities like overwriting to be relied upon without corroboration
- delay in lodging FIR must be explained
- child witness must be assessed for competency before recording evidence
- non-examination of material witnesses and absence of forensic report can weaken prosecution case.
