Bombay High Court
Sk Javed Sk Gulam Rasul vs The State Of Maharashtra on 22 August, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:17973-DB
appeal-25.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.25 OF 2017
Sk. Javed Sk. Gulam Rasul,
Age-24 years, Occu:Labourer,
Residing at Kumbefal,
Taluka and District-Aurangabad.
...APPELLANT
VERSUS
The State of Maharashtra.
(At the instance of Karmad
Police Station, Aurangabad)
...RESPONDENT
...
Ms. Poonam V. Bodke Patil Advocate for Appellant.
Mr. S.D. Ghayal, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 3 rd AUGUST 2023
DATE OF PRONOUNCING JUDGMENT : 22nd AUGUST 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed by original accused No.1 who
has been convicted by learned Additional Sessions Judge,
Aurangabad on 22nd November 2016 in Sessions Case No.162 of
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2014 after holding him guilty of committing offence punishable
under Section 302, 498-A of the Indian Penal Code.
2. Before we proceed, we would like to put the relationship of
the parties on record. Deceased Surayya was the wife of present
appellant. They got married on 5 th May 2013. PW-3 Mirza Akbar
Baig is the father of deceased. Originally there were two accused
persons against whom the charge-sheet was filed. Accused No.2
was Shaikh Sakina Shaikh Gulam Rasul. She is the mother of
accused No.1. However, after assessment of the entire evidence,
the learned trial Judge has acquitted accused No.2. Further, it is
not in dispute that Surayya caught fire on 25 th February 2014
and was admitted by original accused No.2 Sakina to Ghati
Hospital, Aurangabad. MLC (Medico Legal Case) was sent by
Ghati Hospital to the police. Further, it is not in dispute that
Surayya had sustained 49% burn injuries.
3. The prosecution story is that after the MLC was given by
Ghati Hospital to Medical Chowki in the same Hospital, it appears
that the fact was informed to Karmad Police Station as the
incident had taken place at village Kumbephal, Taluka and
District-Aurangabad, which was within the jurisdiction of Karmad
Police Station. Dying declaration came to be recorded
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around 2.05 p.m. on 26th February 2014 by PW-8 PSI Durga
Barase and that has been treated as the First Information Report
(for short "FIR") under Section 154 of the Code of Criminal
Procedure. At that time the offence came to be registered vide
Crime No. 44 of 2014 under Section 307, 498-A, 323 read with
Section 34 of the Indian Penal Code. Request letter was also
given to the Special Judicial Magistrate, Aurangabad to record
the dying declaration of Surayya. PW-7 Ashok Nandagavali
recorded second dying declaration between 8.50 p.m. to 9.00
p.m. on 26th February 2014. The investigation was carried out by
PW-10 PSI Baban Gaikwad and PW-9 PI Baliram Gite,
respectively. During the course of investigation they have carried
out the spot panchnama and recorded statements of witnesses.
Unfortunately Surayya expired on 15 th March 2014 while
undergoing the treatment with Ghati Hospital, Aurangabad and
thereafter inquest panchnama was carried out and the dead
body was sent for postmortem. After the postmortem was
carried out, the probable cause of death that was given, was
"Septicemia due to thermal burns". Under the said circumstance,
Section 302 of the Indian Penal Code came to be added and
further investigation has been carried out. After completion of
the investigation, charge-sheet came to be filed.
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4. The prosecution has examined in all eleven witnesses to
bring home the guilt of the accused and after considering the
evidence on record, as aforesaid, original accused No.2 came to
be acquitted, whereas present appellant, original accused No.1
came to be convicted. Accused No.1 has been sentenced to
suffer imprisonment for life for offence punishable under Section
302 of the Indian Penal Code and was directed to pay fine of
Rs.1000/-, in default to suffer simple imprisonment for three
months. Further, Accused No.1 has been sentenced to suffer
rigorous imprisonment for two years for the offence punishable
under Section 498-A of the Indian Penal Code. All the sentences
were directed to run concurrently and set off has been granted
to accused No.1 for the period of detention already undergone.
This conviction is under challenge under Section 374 of the Code
of the Criminal Procedure, by original accused No.1.
5. Heard learned Advocate Ms. Poonam Bodke Patil appearing
for the appellant and learned APP Mr. Ghayal appearing for the
State.
6. Learned Advocate Ms. Poonam Bodke Patil for the
appellant has taken us through the evidence which was before
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the trial Court and submitted that the learned trial Judge has not
appreciated the evidence properly. It is not in dispute that
Surayya had sustained burn injuries but even as per the case of
the prosecution she was admitted by original accused No.2
Sakina to Hospital. At that time it was specifically told by her
that Surayya had caught fire when she was preparing food. The
prosecution case was based only on two dying declarations,
which, the accused had demonstrated, are the outcome of
tutoring. The inconsistency between two dying declarations i.e.
Exhibit-53 and Exhibit-45 has not been considered. Though the
MLC was given to the Police Chowki immediately after the
admission of Surayya in the Government Medical Hospital, yet
the dying declaration was not recorded immediately. It is also to
be noted that FIR Exhibit-53 bears the attestation of PW-3 Mirza,
father of the deceased, thereby indicating that he was present
when the dying declaration was recorded. This was the piece of
evidence which indicates that the dying declaration was tutored.
The cross-examination of PW-3 Mirza has not been considered,
which shows that though he had met Surayya in hospital around
10.00 a.m. to 10.30 a.m. on 26 th February 2014, he had not
attempted to lodge any report with police. In clear terms PW-3
Mirza has stated that his daughter had not stated before him
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that both the accused had set her to fire. In his examination-in-
chief, he has rather tried to say that both the accused had taken
active participation, which was contrary to the dying declaration.
Cross-examination of PW-6 Dr. Vishram Pande, who had given
the remark / endorsement on both the dying declarations would
show that since the time of admission the pulse as well as
respiratory rate of Surayya was deteriorating. It is, therefore,
hard to believe that she was in a position to speak, because the
lowest respiratory rate was only 20 and at the time of admission
it was 24. The learned trial Judge ought not to have adopted the
technical approach. It was only the accidental fire that was
caught and unfortunately the girl has expired. The Appeal,
therefore, deserves to be allowed by holding that the evidence
that was adduced against the appellant was not beyond
reasonable doubt.
7. Per contra, the learned APP supported the reasons given by
the learned trial Judge. He submitted that there is no merit in
the present Appeal as the evidence adduced by the prosecution
is consistent. No doubt the prosecution case is based on indirect
evidence i.e. two dying declarations, however, those two dying
declarations have been proved by examining the writers and also
the endorsement by the medical officer. The medical evidence
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through PW-6 Dr. Vishram would show that Surayya was in a fit
state to give statement and thereafter PW-7 Special Judicial
Magistrate Nandagavali and PW-8 PSI Durga Barase had
recorded Exhibit-45 and 53, respectively. There is no
inconsistency in both the dying declarations. The role attributed
to the appellant is the same. The incident has occurred in the
room occupied by the deceased and accused, and the incident
had taken place at night time, therefore, in view of the burden
under Section 106 of the Evidence Act, the accused was
supposed to give explanation regarding the circumstances in
which his wife caught fire. The testimony of PW-3 Mirza would
show that accused No.1 was demanding Washing Machine,
Cooler and he was harassing Surayya on that count. The
testimony of PW-5 Dr. Sandeep Haridas would show that Surayya
had sustained 49% burn injuries, however, she died due to
"Septicemia due to thermal burns". The knowledge is required to
be attributed. Accused No.1 had used diesel for causing burn
injuries and residues of diesel have been found on the clothes of
accused No.1 in the C.A. report. Therefore, there was ample
evidence to arrive at the conclusion that the offence has been
proved beyond reasonable doubt against accused No.1.
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8. Before we proceed to discuss the evidence, as in the
Appeal re-appreciation of the evidence is permissible, we are
also required to consider as to what is the law on the point of
dying declaration. Admittedly, the case is based on the dying
declaration. It is trite law that sole dying declaration can be
made basis of conviction, if at all it qualifies the test of
truthfulness, voluntariness and if it is free from suspicion and
doubt. There are various rulings of the Hon'ble Apex Court
regarding evidentiary value of dying declaration. It has been
held time and again that accused being deprived of cross-
examination, Court has to be very careful and cautious while
assessing dying declaration. It is expected that Court should be
on guard that the statement of deceased was not a result of
either tutoring, prompting or product of imagination. It is
further expected of the Court to satisfy itself that the deceased
was in a fit state of mind to give dying declaration. In the case of
Paniben vs. State of Gujarat; (1992) 2 SCC 474 , the Hon'ble
Supreme Court has laid down the principles governing dying
declaration, which are as follows :-
(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration.
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(iii) The Court has to scrutinize the dying declaration carefully and
must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had opportunity to observe
and identify the assailants and was in a fit state to make the
declaration.
(iv) Where dying declaration is suspicious it should not be acted
upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction.
(vii) Merely because a dying declaration does not contain the details
as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth.
(ix) Normally the court in order to satisfy whether deceased was in
a fit mental condition to make the dying declaration look up to the
medical opinion. But where the eye witness has said that the
deceased was in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be acted
upon.
9. The above principles are affirmed, relied, summarized and
applied in various other rulings, namely, Surinder Kumar vs.
State of Punjab, (2012) 12 SCC 120, Madan vs. State of
Maharashtra; (2019) 13 SCC 464.
10. Similarly, very recently Hon'ble Apex Court in the case of
Ganpat Bakaramji Lad vs. State of Maharashtra, 2018 ALL MR
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(Cri) 2249, has also reiterated certain tests to be put to use
before accepting that dying declaration. It has been held thus:-
" In respect of the dying declaration, the general
principles to be kept in mind are
(i) that it is not a weaker kind of evidence and it
stands on the same footing as other evidence, and (ii)
that there is no absolute rule of law that it cannot form
the sole basis of conviction, unless corroborated by
other independent evidence. The first step required to
be taken in every case, is to consider the three-fold
questions as under :
(a) Whether a declarant had an opportunity to observe
and identify the assailant or the accused?,
(b) Whether a declarant was in a conscious and fit
condition at the time of recording the statement?, and
(c) Whether the Court is so convinced of the
truthfulness and voluntary nature of the statement of
the declarant that it inspires confidence to such an
extent that it can be the sole basis of conviction?
The absence of an endorsement in the dying
declaration - (a) by a doctor regarding the fitness of
mind of the declarant, or (b) that the statement was
read over and explained to the declarant, who found it
to be correct, cannot be the reason for holding that the
dying declaration is unacceptable, if the Court is
otherwise satisfied that such a dying declaration
inspires confidence.
The rejection of the dying declaration cannot be
on the solitary instance of absence of endorsement of
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reading over and explaining the declaration and the
declarant confirming it to be true. It will always depend
upon the facts and circumstances of each case. We are
clearly of the view that it will be a cumulative effect of
the facts and circumstances of the case, which will
determine such issues. The presence or absence of a
particular fact or circumstance or a situation in a given
case may become significant, whereas it may become
insignificant in another case. The mode and manner of
appreciation of evidence differs from case to case,
though the principles of appreciation of evidence may
be the same. The perception of the matter in each
case and the manner of the appreciation of evidence
differs from person to person. Hence, there cannot be
a strait-jacket formula or hard and fast rule which can
be laid down.
Neither the provision of Section 32(1) of the
Evidence Act nor any decision of the Apex Court
prescribe any particular format in which a dying
declaration is to be recorded. It can be oral as well as
written. In case of oral dying declaration, the question
of existence or insistence upon reading over and
explaining the declaration to the deceased does not
arise. If that be so, how can such insistence be in
respect of written dying declaration? It is not the
requirement of any statute or of the decision of the
Apex Court that a written dying declaration must
contain a column to be duly filled in that the
statements of the declarant are read over and
explained to him and that he found it to be true and
correct. Such a requirement therefore cannot be held
as mandatory.
The observations in the cases of Shaikh
Bakshu 2007 ALL SCR 2407 and Kantilal (2009)
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12 SCC 498, are based on the facts and would not,
therefore, constitute a precedent or a ratio decidenti or
even an obiter dicta to hold that bearing such an
endorsement in the dying declaration is must. In our
view, it would be unjust to reject the dying declaration
only on such hyper technical view, which hardly of any
help in the matter of criminal trials. "
11. We may also consider the Constitution Bench decision of
Hon'ble Supreme Court in Laxman vs. State of Maharashtra,
2002, Cri. L.J. 4095, wherein it was held that:-
"Absence of certification of doctor as to fitness of mind of declarant
will not render dying declaration unacceptable. What is essentially
required is that the person who records it must be satisfied that
deceased was in fit state of mind. Certification by doctor is rule of
caution. The voluntary and truthful nature of declaration can be
established otherwise also."
12. It is further observed in Laxman vs. State of Maharashtra,
(supra) that:-
"It is indeed a hyper-technical view that the certification of the
doctor was to the effect that the patient is conscious and there
was no certification that the patient was in a fit state of mind
specially when the magistrate categorically stated in his evidence
indicating the questions he had put to the patient and from the
answers elicited was satisfied that the patient was in a fit state of
mind whereafter he recorded the dying declaration."
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13. Further, we may also rely on Vikas and others vs. State of
Maharashtra [2008 (2) B. Cr. C. 235 (SC)] , wherein it has been
observed that, special sanctity accorded to evidence of dying
declaration should be respected. Unless there are clear
circumstances brought out showing that person making
statement was not in expectation of death, admissibility of dying
declaration should not be questioned. Section 32(1) of the
Evidence Act is an exception to the general rule that hearsay
evidence is no evidence. Section 32(1) of the Evidence Act
makes a statement of the deceased admissible. Those
statements made by a person as to the cause of his death or to
any of the circumstances of the transaction which resulted in his
death, are admissible when the person's death comes into
question. The essential requirement of such statement to be
accepted as evidence would be that the person who makes such
statement is under the expectation of death. The special sanctity
has been given to such statements as it is believed that a person
on the death-bed will not speak lie.
14. Further, in Vithal vs. State of Maharashtra, (2006) 13
SCC 54, it has been reiterated that in case of multiple dying
declarations, if there is no inconsistency, the same are reliable.
It has been further held that the mere fact that the accused who
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is alleged to have poured kerosene on the deceased was
inimically disposed of towards the deceased cannot by itself be a
fact to disbelieve the dying declaration or to throw out the
prosecution case. In Ranjit Singh and others vs. State of
Punjab, (2006) 13 SCC 130 , it has been laid down that if there is
an inconsistency between two dying declarations, the Court
should apply rule of caution but the consistent part can be taken
note of.
15. Keeping the above said legal position in mind, the evidence
is required to be re-assessed and re-appreciated.
16. As aforesaid, the case of the prosecution is based on two
dying declarations. First is the dying declaration recorded by
PW-8 PSI Durga Barase. It is stated to be recorded at 2.05 p.m.
on 26th February 2014 i.e. Exhibit-53. Examination-in-chief of
PW-8 PSI Durga Barase would show that she was attached to
Karmad Police Station on 26th February 2014 and on that day
they had received the MLC. However, we cannot forget the fact
that Surayya caught fire around around 23.45 hours i.e. 11.45
p.m. on 25th February 2014 and was admitted to Ghati Hospital
within an hour. MLC Exhibit-54 shows that it was recorded at
01.15 hours on 26th February 2014 and it was given to Head
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Constable Khillare attached to Ghati Police Chowki i.e. Police
Chowki situated within the Government Hospital itself at about
1.15 a.m. of 26th February 2014. Why Head Constable Khillare
had not gone to the burn ward and tried to record the dying
declaration, is a question to which prosecution has not given any
answer. Rather, it appears that the said MLC was then forwarded
to Karmad Police Station, which is far away from the Ghati
Hospital / Ghati Hospital Police Chowki. The very purpose for
which the dying declaration has to be recorded immediately or
the Police should make immediate arrangements to get the dying
declaration recorded as early as possible, appears to have been
lost in this case. In the cross-examination, further things have
been revealed by PW-8 PSI Barase. She says that MLC was
assigned to her at 1.15 a.m. on 26 th February 2014 itself but still
she says that she was not informed about the investigation at
night time. She says that she came to Police Station, Karmad,
where she was attached, at about 9.00 a.m., on 26 th February
2014 and at that time she came to know about the assignment.
This kind of work in the Police Station is not contemplated in any
legal provisions. Even after coming to know that she was
assigned with the said job around 9.00 a.m., she does not say
exactly when she went to Ghati Hospital. The endorsement on
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Exhibit-53 by CMO i.e. PW-6 Dr. Vishram was around 1.00 p.m.
and in cross-examination PW-8 Durga Barase clearly admits that
immediately after giving the endorsement by the medical officer
she did not record the statement of the patient. She tries to give
an explanation that the doctor at the ward had asked her to give
one letter to him, therefore, it has caused half an hour delay in
recording the statement. First of all, she has not acted swiftly
nor her Police Station has acted swiftly even after receiving the
MLC around 1.00 to 1.15 a.m. Still there is delay in recording the
statement. This delay is unexplained and the benefit of the same
should go to the accused.
17. It has come on record through the cross-examination of
PW-3 Mirza that he had reached to Ghati Hospital around 10.00
to 10.30 a.m. on 26th February 2014. Thus, before arrival of the
relatives of the deceased, the Police had every opportunity to
record the dying declaration of the deceased, yet they have not
recorded it and no reason has been assigned for not recording it
at the earliest and therefore, the said dying declaration becomes
doubtful. PW-8 Barase has not explained as to why she had
taken attestation of PW-3 Mirza on Exhibit-53, dying declaration.
Rather in her cross-examination, PW-8 Barase says that she is
unable to state what is the meaning of word 'Dastur', when it
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has been already written on Exhibit-53. Another fact to be noted
from her cross-examination is that she says that patient was
telling her statement and upon her dictation her writer, Head
Constable Borade was taking it down. She says that Head
Constable Borade was having experience of recording dying
declaration, therefore, he was deputed. This type of procedure
ought to have been avoided by PW-8 PSI Barase. When she was
supposed to record the said statement, it ought to have been
recorded by her in her own handwriting. Of course, that cannot
be the single factor to discard the dying declaration. But the
inordinate delay, presence of PW-3 Mirza, father of the deceased,
are the two factors which creates doubt in respect of the first
dying declaration / FIR / Exhibit-53. We would like to turn
towards the inconsistencies those have been pointed out, at a
later stage.
18. Turning towards the point, as to whether deceased Surayya
was in a position to give the statement when Exhibit-53 was
recorded, we will have to consider the cross-examination of
PW-6 Dr. Vishram Pande. Though he has stated that she was in a
conscious state when Exhibit-53 was recorded, yet in his cross-
examination he has stated that at the time of admission Surayya
was in critical condition and therefore, they had obtained
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signature of accused No.1 on the case paper. It was mentioned
on the case paper that condition of the patient was poor. He has
stated that pulse rate as well as respiratory rate of 116 and 24
are treated to be abnormal. He says that at the time of
Surayya's examination around 4.00 p.m. on 26 th February 2014,
her pulse rate was 136 and respiratory rate was 20. The pulse as
well as respiratory rate as 136 and 20, respectively denotes that
the condition of the patient was deteriorating. In fact the case
papers which he had brought, had no entry about the blood
pressure check. In the morning the pulse rate of Surayya was
136 and the respiratory rate was 20. He further admits that
since 26th February 2014 to 2nd March 2014 blood pressure of
Surayya was not recordable. Therefore, under these conditions,
it is hard to believe that Surayya would have talked so much, so
that about two pages content in the form of FIR Exhibit-53 would
have been given. Therefore, this is the additional point which
casts doubt over Exhibit-53.
19. Now, turning towards the second dying declaration, it can
be seen that it has been recorded by PW-7 Ashok Nandagavali.
As regards the respiratory rate and pulse rate is concerned, the
same yardstick is applicable here. According to PW-8 PSI Durga
Barase, she had given letter to PW-7 Special Judicial Magistrate,
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Nandagavali around 1.00 p.m. of 26th February 2014 requesting
him to record the dying declaration of Surayya. But PW-7
Nandagavali says that he received the said letter around 6.30
p.m. and thereafter around 8.00 p.m., he went to Ghati Hospital.
Why he had spent around one hour and thirty minutes even for
proceeding to record dying declaration is unexplained. In his
cross-examination PW-7 Nandagavali has stated that there was
no talk between him and doctor about the treatment. He had not
gone through the case papers. He did not inquire with the
patient about her health. That means, which questions he had
asked for ascertaining whether she was in a fit state to give the
statement or not, and whether he had asked such questions,
becomes doubtful. According to him, except the questions which
he has given in the dying declaration (as said dying declaration
is in question and answer form) he has no talk with the patient.
Under these circumstances, the second dying declaration also
becomes doubtful.
20. Now turning towards the inconsistencies those have been
pointed out, according to Exhibit-53 Surayya says that she was
treated properly for about 15 days after her marriage with
accused No.1 and thereafter accused No.2 started saying that
she has not brought Cooler and Washing Machine. She was
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abused on that count. Then again she says that for about 1 ½
months her relationship with her husband was proper but
thereafter, he started raising suspicion over her character and
started beating her. She had informed the said fact to her
parents and thereafter her father had come to her matrimonial
home 7 to 8 times, gave advice to both the accused persons. If
this portion from dying declaration Exhibit-53 is considered, then
she has not attributed the demand of Cooler and Washing
Machine to accused No.1 but it is restricted to accused No.2 only.
Surayya has not assigned the allegation of raising suspicion over
her character to accused No.2 but it is restricted to accused No.1
only. Now, the position stands that accused No.2 was acquitted
by the learned trial Judge from all the offences including Section
498-A of the Indian Penal Code. With the said one line allegation
that accused No.1 was raising suspicion over her character,
whether the trial Court can reach to the conclusion that the
offence under Section 498-A of the Indian Penal Code has been
proved beyond reasonable doubt, is a question.
21. As regards the incident dated 25th February 2014 around
11.45 p.m. is concerned, in Exhibit-53 Surayya says that her
husband talked to her brother on Mobile and after accused No.1
talked with her brother, she has also talked with brother and
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then she had put off the phone. She has not explained on what
subject there was talk between her brother and accused No.1
and also with herself. Her brother has not been examined by the
prosecution to elaborate the situation. Then Surayya says that
thereafter her husband went to her mother-in-law i.e. accused
No.2 and after they had talked with each other, accused No.1
came and poured diesel from the Bisleri bottle on her person,
ignited the match stick and set her to fire. She raised hue and
cry and then their tenant had extinguished the fire. Her husband
had called her mother-in-law, who then came near Surayya but
did not extinguish the fire. But then Surayya says that her
mother-in-law, cousin father-in-law brought her to Ghati
Hospital. This shows that certain allegations have been made for
the sake of allegations. If the mother-in-law had no intention to
extinguish her fire or had not taken any active part, then why
she would have taken Surayya to Ghati Hospital for treatment, is
a question. Another fact is that the tenant who extinguished the
fire, has not been examined by the prosecution for the reasons
best known to it. He was the person who had reached the spot
immediately and would have asked her the reason as to why she
caught fire. This appears to be, therefore, a suppression of piece
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of evidence. On this count also the dying declaration Exhibit-53
is untrustworthy.
22. Now turning to dying declaration Exhibit-45, Surayya says
that there was quarrel between herself and her husband around
11.00 to 11.30 p.m., on 25 th February 2014, thereafter her
husband went towards his mother, talked with mother for about
fifteen minutes and then came back to her, poured diesel on her
person. Surayya was running to get out of the house but at that
time the husband threw burning match stick on her person which
caught fire. In both the dying declarations, Surayya is saying
about the presence of her sister-in-law (husband's sister).
Surayya has not made any allegations against her nor she has
attributed even helpful hand also to her. Her sister-in-law has
not been examined by the prosecution. In this dying declaration
Exhibit-45, Surayya is silent as to what was the reason for
quarrel or how she was treated in the past. Surayya has not
stated anything about the demand by accused No.2 or even the
allegations of accused No.1. Therefore, definitely there is
inconsistency in both the dying declarations. Mere role is not
sufficient, there has to be background for the said role. Both the
dying declarations are silent, or in other words, the prosecution
is not coming with the case that accused No.2 had instigated
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23
accused No.1. At the cost of repetition, it can be seen that
Exhibit-53 is silent on the point that there was quarrel between
deceased and accused No.1 between 11.00 to 11.30 p.m. and
vice-versa Exhibit-45 is silent about the talks between accused
No.1 and the brother of the deceased and her own talks with her
brother on Mobile phone. In the nut-shell, the reason for the
quarrel or talks immediately prior to the incident has not come
on record. That is the crux of the matter. As to what had
happened just prior to the incident so that such behaviour is
alleged, is a question. From where the diesel was procured in a
Bisleri bottle has not been investigated, because it is not to be
sold loose. All these facts create doubt in respect of both the
dying declarations and therefore, both the dying declarations are
required to be discarded.
23. PW-1 Gajanan Shelke and PW-2 Subhash Trigute, both are
panch to the spot panchnama, which is said to have been
executed on 27th February 2014. They both have turned hostile
and their cross-examination by prosecution has not yielded any
positive result. No doubt the said spot panchnama then came to
be proved through the Investigating Officer. The spot is said to
be a 10 X 12 ft. room. In the said room there is a cot, iron
cupboard, wooden chair and iron stove with gas cylender was
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24
near the chair. Near to that there was one liter Bisleri bottle
containing 200 ml. Diesel. Except these articles, no other article
has been stated. That means it appears to be a bed room, but
then for what purpose the iron stove was kept there, is a
question. It does not appear to be a kitchen because other
household articles required in the kitchen have not been
mentioned. Further, it states that there is another room towards
eastern side of the said room wherein accused No.2 was
residing. That means, accused No.2 was residing in the separate
room. There ought to have been investigation, as to where they
used to cook food and why the iron stove was kept in that room.
Therefore, the said spot panchnama is also not throwing light on
the entire story.
24. PW-5 Dr. Haridas is the autopsy surgeon. He has said that
Surayya had sustained 49% burns but he says that the burns to
head, neck and face were sufficient to cause death and the cause
of death as ascertained, was "Septicemia due to thermal burns".
In the cross-examination he has admitted that septicemia may
be caused by various reasons. Only on the basis of the
postmortem report we cannot conclude that it was homicidal
death, as the prosecution has not ruled out the possibility of
accidental death.
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25
25. PW-3 Mirza - father of deceased has deposed that after
fifteen days of marriage Surayya was telling him that both the
accused started saying that she had not brought Cooler and
Washing Machine. According to him, accused Nos.1 and 2 both
were making the said demand and upon the non fulfillment, they
were beating Surayya. He used to console her and send her to
the house of the accused. Then he says that thereafter Surayya
was informing him that accused were taking doubt over her
character and he gave understanding to the accused. This is
against dying declaration Exhibit-53. The role attributed to
accused Nos.1 and 2 separately has been already narrated but
here the father is assigning role of demand of the articles as well
as alleging suspicion over character to both the accused persons.
26. PW-3 Mirza states that on 25th February 2014 around
midnight accused No.1 had given a phone call to him and stated
that Surayya sustained some burns to her finger and abdomen.
He says that he gave advice to accused No.1 to give treatment
to her. Mirza does not say that he had tried to extract
information from Surayya or some other way as to how much
she has received burn injuries and had not tried to go to the help
of accused No.1 when he was making call in the midnight. He
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26
then says that in the morning he received phone call of accused
No.1 again, who then stated that Surayya had sustained 40%
burns and admitted to Ghati Hospital. He himself and his wife
went to Ghati Hospital around 9.00 a.m. to 10.00 a.m. He made
inquiry with Surayya, as to how incident had happened. She told
him that accused No.1 had poured diesel on her person and both
the accused had set her to fire. He has then corrected himself by
saying that only accused No.1 had set her to fire. Accused No.2
has not cared to extinguish the fire and the tenant extinguished
the fire by pouring water on her person. He then says that
Surayya told him that due to instigation of accused No.2,
accused No.1 had set Surayya on fire. Thus, it can be seen that
he is giving totally different version than dying declarations
Exhibit-53 and Exhibit-45. In his cross-examination, PW-3 Mirza
has stated that his daughter disclosed him about the incident
around 10.00 a.m. to 10.30 a.m. and he felt it necessary to
inform the Police about the same. He has not taken any pains to
lodge the FIR or contact the Police persons in the Chowki in the
same hospital. In his cross-examination, he has further stated
that his daughter had not stated to him that both the accused
had set her to fire. Surayya told him that after hearing hue and
cry, accused No.2 came there and after the incident had taken
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27
place, accused No.1 had gone to the house of accused No.2.
Thus, he gives a different version than the two dying
declarations. Therefore, the alleged oral dying declaration to
PW-3 Mirza; which by itself a very weak piece of evidence,
cannot be relied upon.
27. PW-4 Sheshrao Chavan is said to be the person from the
same village of PW-3 Mirza. He says that he was knowing
deceased and accused. According to him, deceased had told him
that both the accused were demanding her Washing Machine and
Freeze and then he volunteers to say that they were demanding
Cooler. When this was communicated to him, is not explained by
this witness. Further, in order to bring it within the ambit of
Section 498-A of the Indian Penal Code, mere demand is not
sufficient. The married lady should be subjected to cruelty on
account of said illegal demand, then only the husband or his
relatives can be convicted for the offence punishable under
Section 498-A of the Indian Penal Code. PW-4 Sheshrao then
says that in the winter season of 2014 he came to know that
Surayya has consumed poison, therefore, he went to Ghati
Hospital to see her and on reaching there, he found that Surayya
had sustained burns. That means the initiation was wrong, but
then further he says that when he asked her the reason behind
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burns, Surayya stated that both the accused always demanded
Washing Machine and Cooler, accused No.1 always suspected
her character and set her to fire on the instigation of his mother.
Interesting point to be noted is that he is not giving the date on
which he visited the hospital. As aforesaid, the version in
Exhibit-53 and Exhibit-45 are inconsistent and therefore the
inconsistency is percolating in the alleged oral dying declaration
to this witness also. The cross-examination of this witness
shatters his examination-in-chief, because it has been extracted
from him that he is not well conversant with the family. If he was
not well conversant with the family, whether he would have gone
to the hospital to see Surayya, itself is a question. He was not
even living in the vicinity where PW-3 Mirza is staying. Further,
he says that parents of Surayya were present near her when he
visited Ghati Hospital. Therefore, even the possibility of oral
dying declaration being tutored, cannot be ruled out. Further, he
says that he had not talked with the doctor about the incident
and at the time of his visit Surayya was found sleeping and was
on the verge of death bed. Therefore, it creates doubt as to
whether she was in a fit state to give statement.
28. Thus, from the re-assessment and re-appreciation of entire
evidence, it can be certainly said that the yardstick that was
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applied by the learned trial Judge for the scrutiny, was wrong.
Both the dying declarations ought not to have been relied upon.
The learned trial Judge has not followed the law laid down by the
Hon'ble Supreme Court as well as this Court on the point of
dying declarations. When the appreciation of evidence is
perverse, then definitely interference by this Court is necessary
and therefore, we conclude that the prosecution had failed to
prove the guilt of the accused No.1 also beyond reasonable
doubt. Learned trial Judge ought to have acquitted the accused -
appellant. The Appeal deserves to be allowed. Hence the
following order:-
ORDER
(I) Criminal Appeal stands allowed.
(II) Conviction awarded to the appellant - Sk. Javed Sk. Gulam Rasul in Sessions Case No. 162 of 2014 by holding him guilty of committing offence punishable under Sections 302, 498-A of the Indian Penal Code by the learned Additional Sessions Judge, Aurangabad on 22nd November 2016, is hereby set aside. (III) The appellant stands acquitted of the offence punishable under Sections 302, 498-A of the Indian Penal Code. ::: Uploaded on - 22/08/2023 ::: Downloaded on - 23/08/2023 09:54:53 :::
appeal-25.17 30 (IV) The appellant be set at liberty, if not required in any other case.
(V) Fine amount deposited, if any, be refunded to the appellant after the statutory period is over.
(VI) It is clarified that there is no change in the order passed by the learned Additional Sessions Judge, Aurangabad regarding disposal of Muddemal.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/AUG23
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