Finding discrepancies in the dying declarations given by a housewife to her father, police and doctor, the Bombay High Court has quashed and set aside the life sentence imposed on her husband for setting her ablaze as a result of which she eventually died in hospital.
In separate dying declarations given by Vijaya Shelar to her father and police, she had stated that her husband Machindra suspected her character and thus on March 24, 2004, he and his aunt had poured kerosene on her and set her afire.
However, in another dying declaration to a doctor who had treated her burn injuries sustained in the incident, Vijaya had stated that she was set afire by her husband. In this statement, Vijaya had not mentioned about her husband’s aunt also being involved in setting her on fire.
“We thus find that there is a total variance in respect of number of accused who are alleged to set Vijaya ablaze,” noted a bench headed by Justice P V Hardas.
“We find that acceptance of dying declaration given by Vijaya to police and oral dying declaration made to Vitthal (her father) would necessarily falsify the dying declaration recorded by Dr. Sinha. Similarly, acceptance of dying declaration made by Vijaya to Dr Sinha would falsify and label the dying declaration given to police and the oral dying declaration made to Vitthal as false,” the judges observed.
“It would be wholly impermissible for the court in such a situation to pick and choose any one dying declaration for basing the conviction. In our opinion, therefore, no reliance can be placed on any of the dying declaration. The appellant, in our considered opinion, therefore would be entitled to be given the benefit of doubt, the bench said in an order on April 10.
The court noted that Vijaya had given Dr Sinha the history of the appellant (her husband) pouring kerosene on her and setting her ablaze. Unfortunately, the disclosure or the oral dying declaration made by Vijaya to Dr Sinha though recorded in the medical case papers were not exhibited and proved by the prosecution.
“Though Dr Sinha had stated that he had produced original case papers, yet the original case papers were not exhibited during the recording of the evidence of Dr Sinha,” the judges observed.
Accordingly, the criminal appeal filed by Machindra was allowed by the judges and the conviction and sentence of the appellant was quashed and set aside. He was acquitted of the offence with which he was charged and convicted.
The court also ordered that the fine paid by the appellant for his conviction be returned to him and Machindra be released from jail if he was not wanted in any other case.
A Pune sessions court had convicted Machindra on June 30, 2004 on the basis of three dying declarations given by the victim. However, his aunt was acquitted as no evidence was found against her.