Bom HC | Murder convict set free where dying declaration had deceased’s thumb impression with clear ridges despite 100 percent burn injuries

Bombay High Court: A Division Bench of P.N. Deshmukh and Pushpa V. Ganediwala, JJ., allowed a criminal appeal filed against the order of the trial court whereby the appellant was convicted for committing the offence of murder punishable under Section 302 IPC and for the offence of cruelty to women punishable under Section 498-A IPC. 

The appellant was convicted for the murder of his wife. It was alleged by the prosecution that the appellant used to ill-treat and harass the deceased after consuming liquor. The deceased died as a result of a hundred percent burn injuries. The conviction of the appellant was based on the dying declaration of the deceased recorded in the hospital. Aggrieved by his conviction, the appellant filed the instant appeal. 

The High Court considered the submissions made by R.M. Daga, Advocate appearing for the appellant, and S.P. Deshpande, Additional Public Prosecutor representing the State. 

Perusing the order of the trial court, the high court noted that the order convicting the appellant was based only on the dying declaration of the deceased. Considering the post mortem report, the Court found that the deceased died of hundred percent burn injuries.  In such circumstances, the Court was of the opinion that a bare perusal of the dying declaration would reveal the deceased’s thumb impression thereon with clear ridges, which creates a doubt in the case of the prosecution. 

Moreover, no medical officer was examined by the prosecution to bring on record the fact of the physical and mental state of the deceased before and after recording the statement, nor there is anything on record to establish that in spite of any attempts made by the prosecution, no presence of concerned medical officer could be obtained. Reliance was placed on the decision of the Supreme Court in State of H.P. v. Jai Lal, (1999) 7 SCC 280. wherein it was held that the report of an expert witness cannot be accepted as it is unless the expert witness has been examined and in the absence of examination of the medical expert, the certificate given by him cannot be read into evidence. It was also held that medical witness is an expert witness and his evidence stands on a different pedestal than an ordinary witness.    

In such view of the matter, the High Court allowed the appeal and set aside the order of the trial court conviction the appellant. [Pravin v. State of Maharashtra, 2020 SCC OnLine Bom 95,  decided on 07-01-2020]

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