Case: Gaffar Badshaha Pathan Vs. State of Maharashtra

2. The appellant (accused) was 22 years old at the time of the occurrence. The deceased was 32 years of age. She was married and had 5 children. Her husband, PW 14, was working at Abu Dhabi. As a result of burn injuries received by the deceased onat about 4.30 p.m. she was admitted in a hospital and died onThe accused and the deceased were near relatives, their mothers being real sisters. According to the case of the prosecution, the accused used to render help in construction of a bungalow on the plot owned by the husband of the deceased who used to send money for the purpose of construction from Abu Dhabi. The motive for the crime, as per the prosecution case, is illicit relations between the accused and the deceased and also extraction of money by the accused from the deceased. The burning incident had taken place in the kitchen of the house of the deceased. In the hospital DW 1, a Head Constable on police duty in the hospital recorded the statement of the deceased at about 9.00 p.m., according to which accidentally the deceased received burn injuries while she was preparing tea on a stove in her kitchen and when she was removing the vessel with the edge of her sari which suddenly caught fire. She was wearing a nylon sari. But, according to the prosecution, the dying declaration was recorded by the Head Constable to help the accused. It was not a genuine document. The husband of the deceased made a complaint datedcomplaining that the investigation had not been properly conducted. On the basis of the said complaint the matter was inquired into and ultimately ona case for offence under S.302 was registered against the appellant. The appellant was arrested onThe appellant has been found guilty of offence under S.302 and that finding has been confirmed in appeal as earlier noticed.

Reasoning: 7. There is one more aspect about the dying declaration which shows that despite the fact that the case was registered more than three years after the date of the incident, the prosecutionan eventuality like this one, there would be no question of the author of the dying declaration trying to help the accused. At best the only criticism which may be levelled against the author of the dying declaration in that eventuality would be that he could not extract the truth from the maker of the statement. But, then the only obligation of the author would be to show that the statement was recorded with bona fide intention and without any pressure having been exerted by him on the maker of the statement. This is not always an easy job for an author to enter into the mind of the maker. If an incorrect statement is given for the reasons attributed herein i.e. to hide the illicit relations between the deceased and the accused, there has to be positive evidence to override the theory of accident mentioned in the dying declaration. The other reasons given in the impugned judgment for rejecting the dying declaration also does not bear a closer scrutiny. Those reasons are also part of the aforequoted six circumstances on which the prosecution had relied. We will now consider thosepossibility of the accused reaching the bungalow and the room in question first of all in the manner stated by him in S.313 statement is also a reasonable possibility. Further, the circumstance about the breaking open of the door of the house, as also the door not being opened despite being knocked by the persons, has been taken against the accused. There is no evidence to establish that the door was knocked. Regarding breaking open of the door, again the evidence only shows that the door was closed from inside. There is no evidence that from inside any latch had been put. The door may appear to be closed depending upon various factors. Further, it is also in evidence that there were four doors and entry and exit in the house was possible from any of theit was an improvement on a very vital and important aspect. One fails to understand the reason why such a statement was not made before the police. Further, PW 2 has stated that her mother was treating the accused like her real brother. On the aspect of illicit relations, PW 5 only made a statement that about 4 to 5 months prior to the incident, when he was passing from the street, he saw the accused catching the deceased and taking her inside the house. Too much is being read into this statement, to return a finding of illicit intimacy between the deceased and the accused. No other evidence has been brought to our notice to establish illicit intimacy. Likewise, the evidence of extraction of money by the accused from the deceased is also absent.11. In view of the aforesaid deficiencies, we are of the view that neither the circumstances on which the prosecution was relying have been proved nor those circumstances conclusively prove the guilt of the accused. The conviction of the accused is a result of approach which is not sustainable in law. The prosecution has failed to establish the case of homicide. The accused is clearly entitled to the benefit of doubt.