Bombay High Court
State Of Maharshtra Through Pso, Ps ... vs Firoz Sheikh S/O Wajir Sheikh on 19 July, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 40.APEAL.157-2012 JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 157 OF 2012
State of Maharashtra,
through Police Station Officer,
Police Station Saoli,
District Chandrapur. APPELLANT
Versus
Firoz Sheikh S/o Wajir Sheikh
Aged abut 36 years, Occ. Driver,
R/o Saoli, Tahsil : Saoli,
District : Chandrapur. RESPONDENT
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Mr. Amit R. Chutke, A.P.P. for the Appellant/State.
Mrs. Sonali Saware/Gadhawe, Advocate for the Respondent.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 19th JULY, 2022.
ORAL JUDGMENT :-
Heard Mr. Chutke, learned APP for the
appellant/State and Mrs. Saware, learned appointed counsel for
2 40.APEAL.157-2012 JUDGMENT.odt
the respondent.
2. The appeal questions the judgment dated
17.10.2011, passed by the Ad-hoc Assistant Sessions Judge-2, Chandrapur, whereby the respondent/accused has been acquitted of the offence punishable under Sections 498-A and 306 of the Indian Penal Code.
3. The relationship between the deceased Mumtaz and that of the accused was of husband and wife. The incident is dated 04.10.2010, when it is alleged that at about 08.00 p.m. the accused came to the house under the influence of liquor, quarreled with his wife, and assaulted her mercilessly. The wife could not bear the ill-treatment, and therefore, poured kerosene on her person and set herself ablaze. The neighbors who were residing in the same locality i.e. PW-2/Maya Nimgade (page 26), her husband Bhimrao, Maya Burle, Firoza - sister of the accused, who were standing on the terrace saw smoke coming out of the window and therefore rushed down. PW-2/ Maya poured water on the person of Mumtaz and all of them took her down and carried her on the motorcycle of one 3 40.APEAL.157-2012 JUDGMENT.odt Boliwar to Primary Health Centre Vyahad. Since the doctor was not present there, they took her to the General Hospital, Gadchiroli in the car of Shri Kadukar, at which time the mother of the injured was also summoned and was accompanying them. Mumtaz was admitted in the General Hospital for about 7 days where she was treated by a Medical Officer (not examined). Her dying declaration is claimed to have been recorded on 05.10.2010 at Exh. 49 (page 82) by PW-9, the Executive Magistrate - Shashikant Channawar (Exh.48/page
78). Prior to the recording of the dying declaration, Mumtaz was examined by Dr. Kannake, the Medical Officer, General Hospital Gadchiroli, who after examining Mumtaz, certified her to be fit to give a statement (not examined). Earlier to that, her statement was recorded by the A.S.I. at the Government Hospital, Gadchiroli, at Exh.44 (page 72) by PW-8 Chokha Baliram Khobragade (page 69). Mumtaz succumbed to her injuries on 11.10.2010. The post mortem was conducted in which the cause of death is stated to be Aspiration pneumanitis with septicemia shock with septicemia secondary to burn. The post mortem report indicates, that deceased Mumtaz had suffered around 60% mixed type of burn injuries. The 4 40.APEAL.157-2012 JUDGMENT.odt charge-sheet was thereafter filed.
4. In the trial, the prosecution has examined total 10 witnesses, out of which PW-2 Maya Nimgade, PW-3 Jaheda Shaikh, PW-5 Saieda Pathan (mother of deceased), PW-6 Riyaz Sikandarkhan Pathan (maternal uncle of deceased) and PW-9 Shashikant Channawar (Executive Magistrate who recorded the dying declaration) are material. Out of these witnesses, PW-2 Maya Nimgade, PW-3 Jaheda Shaikh, who were the neighbours of the deceased have turned hostile. PW-1 is the panch witness for the spot panchnama and the seizure and has only proved the seizure of the burnt saree from the spot. He however has turned hostile in respect of the spot panchnama and seizure of other articles. PW-4 Maroti Umap is the person who has registered the offence and prepared the spot panchnama, PW-7 Hirasingh Aade is the Investigating Officer who has filed the charge-sheet, PW-8 Chokha Khobragade is the Assistant Sub Inspector who has recorded the statement of the deceased (Exh.44/page 72) and send the requisition to PW-9 for recording the dying declaration. PW-10 Madhukar Meshram is the Head Constable who has recorded the earlier complaint filed by the deceased 5 40.APEAL.157-2012 JUDGMENT.odt against her husband.
5. It is therefore to be seen whether the allegations that there was a quarrel between the deceased and her husband on 04.10.2010 between 08.00 to 08.30 p.m. is spelt out.
6. PW-2 Maya Nimgade states that the accused was the tenant in her husband's elder brother's house. She was also residing in the same house in a different portion. The accused along with deceased was residing in a separate portion of the said house. She in her examination-in-chief states, that the accused and his wife were residing properly in the house. Though she has been declared hostile and has resiled from what has been stated in her statement, specifically portion marked A and B (page 53, 61 & 62), nothing has been brought out in her cross-examination by the learned APP. In her cross-examination by the counsel for the accused, she has stated that deceased Mumtaz was hot tempered and used to pick up quarrels with the neighbours due to her hot temper. In her evidence, it has come on record, that there were several other persons who had noticed the incident of fire coming from the house of the 6 40.APEAL.157-2012 JUDGMENT.odt accused and had rushed to assist, namely her husband Bhimrao, the sister of the mother of the accused, Maya Burle and Firoza, one Boliwar, on whose motorcycle, the deceased Mumtaz was carried to Primary Health Centre, Vyahad and so also Kadukar in whose car Mumtaz was carried from Primary Health Centre, Vyahad to General Hospital, Gadchiroli. However, what is material to note is that none of these persons have been examined by the prosecution.
7. PW-3/Jaheda stated, that the accused and Mumtaz were residing properly and though she has also been declared hostile, nothing has been brought out in her cross-examination by the learned APP.
8. PW-5/Saieda is the mother of the deceased and states that her daughter was subjected to ill-treatment at the hands of the accused and the facts of ill-treatment were narrated to her. She states that the accused used to beat the deceased under the influence of liquor. Surprisingly, her statement was not recorded by the Police and it is for the first time that she was coming to the witness-box and deposing. She 7 40.APEAL.157-2012 JUDGMENT.odt went to the Primary Health Centre, Vyahad after receiving information and thereafter to General Hospital, Gadchiroli and states that her daughter had told her that accused after closing the door of the room had assaulted her, due to which she set herself ablaze by pouring kerosene on her person. In her cross-examination, she admits that between a husband and wife, generally quarrels always take place on trifle domestic matters and similar was the case between the accused and the deceased. What is material to note is that PW-5 though claims earlier incidences of harassment, however not a single incident has been narrated by her in her evidence, which would indicate absence of any serious dispute between the accused and his wife. This position is further substantiated by her admission in the cross-examination that she had not called any meeting in order to resolve the alleged dispute between the accused and his wife.
9. PW-6/Riyaz is the maternal uncle of the deceased and claims, that since he had asked Mumtaz as to how she had sustained burn injuries, she had told him that due to harassment by her husband she had set herself on fire. In his 8 40.APEAL.157-2012 JUDGMENT.odt cross-examination, he categorically admits that he had no idea about the dispute between deceased Mumtaz and the accused which would be unnatural for a person to be so closely related to the deceased.
10. It is thus apparent, that the material witnesses, who could have stated about the so called dispute or discord between the accused and the deceased, as named by PW-2 in her evidence, have not been examined and so also PW-2, PW-3 and PW-6 have denied any knowledge of any quarrels or disputes between the accused and his wife. Thus there is no history of any disputes or quarrels brought on record by the prosecution, except for an earlier complaint by the deceased made to PW-10 on 20.08.2010, which shall be dealt later on.
11. Even PW-2/Maya Nimgade, PW-3/Jaheda Shaikh who are claimed to be on the terrace of the spot, do not claimed to have heard any dispute or quarrel between the accused and deceased at the relevant time on 04.10.2010. Thus the alleged quarrel between the accused and deceased on 04.10.2010, does not appear to have been established by the prosecution, from 9 40.APEAL.157-2012 JUDGMENT.odt the material on record.
12. That takes me to the evidence of PW-9/Shashikant Channawar, the Executive Magistrate, who has recorded the dying declaration of the deceased on 05.10.2010 (Exh.49/page
82). What is material to note is that before recording the dying declaration, Dr. S. Kannake is claimed to have examined the deceased and opined that she was fit to give her statement. However, Dr. Kannake has not been examined at all on account of which the question of fitness of the deceased to record her statement, becomes questionable. The evidence of PW-9 at Exh. 48 (page 78) indicates, that before he went into the ward where the deceased Mumtaz was admitted, the relatives of the deceased Mumtaz were present at her side who were asked to go out, prior to which Doctor is claimed to have examined Mumtaz and given his opinion that she was fit to make a statement. This would indicate, that the relatives of deceased Mumtaz who were present in the ward were aware that at that relevant time when they were present, the statement of Mumtaz was about to be recorded.
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13. That apart, it has also come on record that Dr. Kannake was present throughout the time when the statement of deceased Mumtaz was recorded, however, why he has not been examined both as a person who declared Mumtaz to be fit to record her statement as well as the person before whom the statement was recorded, is inexplicable.
14. It is also material to note that in the dying declaration at Exh. 49 (page 82), there is a single line statement by Dr. S. Kannake "fit for statement". The statement does not indicate as to whether Mumtaz was in a fit state of mind considering that she had sustained 60% burn injuries and had around 14% injuries on the anterior trunk and 15% on the posterior trunk, which included half of her neck and part of her right jaw (page 39). It is thus apparent, that the statement by Dr. Kannake "fit for statement" as recorded did not disclose that Mumtaz was in a fit disposing state of mind to make a declaration. The note appended underneath the dying declaration also does not indicate that the Executive Magistrate PW-9 found Mumtaz to be in a fit state of mind. What is also material to note is that the answer to question No. 9 (page 83) 11 40.APEAL.157-2012 JUDGMENT.odt as to whether the statement given by her is correct or not, against which there is a blank.
15. Mrs. Saware, learned appointed counsel for the respondent, has rightly placed reliance upon Paparambaka Rosamma & Ors. Vs. State of Andhra Pradesh decided by the Hon'ble Apex Court on 13.09.1999, in which it has been stated that the opinion of the Doctor, should indicate a fit disposing state of mind and in absence of such a certification, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. In the instant case, in absence of Dr. Kannake having been examined and in absence of a statement even by the Executive Magistrate PW-9 that he found Mumtaz to be in a fit disposing state of mind, placing reliance upon the dying declaration at Exh.49, as the sole piece of evidence, to convict the accused would clearly be risky.
16. Insofar as, the complaint dated 20.08.2010 is concerned at Exh. 56 (page 95), an NC report was given. It merely indicates, that there was some sort of quarrel between 12 40.APEAL.157-2012 JUDGMENT.odt the accused and the deceased, in which it is alleged by the deceased, that the accused had abused, assaulted and threatened her. The occurrence report at Exh. 54 (page 91) does not indicate either the nature of abuses, blows or threat which is alleged to have been administered by the accused and is not of much assistance, neither can it form the basis of the contention that there used to be continuous quarrels, abuses and assaults by the accused to the deceased, since that appears to be a singular complaint. That apart, a compromise had taken place in respect of the said incident which is dated 21.09.2010 at Exh. 57 (page 97), which would indicate, that consequent thereto they were cohabiting nicely without any quarrel whatsoever. The said incident therefore, by itself, cannot form the basis of a conviction.
17. The learned Court below, as is indicated by the impugned judgment has rightly relied upon the fact, that Dr. Kannake, who had declared Mumtaz fit, had not been examined and so also there is no averment is the statement of PW-9 that Mumtaz was in a fit disposing state of mind to give statement. It has noted the evidence of PW-7 and PW-8 who 13 40.APEAL.157-2012 JUDGMENT.odt also do not state that Mumtaz was in a fit disposing state of mind to give statement. Though Mr. Chutke, learned APP for the appellant/State has relied upon Ashabai and Anr. Vs. State of Maharashtra, AIR 2013 SC 341 - para 12 and Gulzari Lal Vs. State of Haryana, AIR 2016 SC 795, however the factual position in the instant matter indicates, that neither PW-7 Hirasingh Raisingh Aade, the P.S.I who has recorded the statement of Mumtaz at Exh. 36 and 37 (page 61) nor PW-8 Chokha Baliram Khobragade (page 69), the A.S.I. in-charge of Police Chouki situated at General Hospital Gadchiroli who had also recorded the statement of Mumtaz on 05.10.2010, indicate, that they have found Mumtaz in a fit disposing state of mind to give her statement. The evidence of PW-9 is also in the same line and has already been discussed above. That apart, there is no corroboration of the prosecution story regarding the continuous quarrels, assaults and abuses claimed to have been meted out by the deceased by the accused, and therefore, the so called dying declaration, on its own, cannot be considered to be sole basis to convict the accused, in the peculiar facts of the instant case and the material brought on record by the prosecution.
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18. It is therefore apparent, that the learned Court below has correctly appreciated the evidence on record as well as the effect and import of the absence of examining Dr. Kannake and PW-7 and PW-8 also not recording any statement of the deceased being in a fit disposing state of mind, considering which, I do not see any reason to interfere in the impugned judgment. The Appeal is therefore without any merit and is accordingly dismissed with no order as to costs.
19. Fees of the learned counsel (Appointed) for the respondent be paid by the High Court Legal Services Sub-committee, Nagpur, as per rules.
( AVINASH G. GHAROTE, J.) S.D.Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:21.07.2022 14:32