Bombay High Court
Zakaullah Khan S/O Aminullah Khan And 3 ... vs The State Of Maharashtra Thr. Pso ... on 27 November, 2025
2025:BHC-NAG:13247-DB
J-cri.appeal452.06 final.odt 1/33
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.452 OF 2006
1. Zakaullah Khan s/o. Aminullah Khan,
Age - 30 years.
2. Irfanullah Khan s/o. Aminullah Khan,
Age - 26 years.
3. Mohsinullah Khan s/o. Aminullah Khan,
Age - 24 years,
All by occupation : Agriculturists,
Residents of Kholapur, Ta. Bhatkuli,
District Amravati.
4. Hameedabi w/o. Aminullah Khan,
Age - 55 years.
Occupation - household,
Resident of Kholapur, Ta. Bhatkuli,
District Amravati. : APPELLANTS
...VERSUS...
The State of Maharashtra,
Through P.S.O. Kholapur,
District Amravati. : RESPONDENT
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Mr. M.P. Kariya, Advocate for Appellants.
Mr. M.J. Khan, Additional Public Prosecutor for Respondent.
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 06th NOVEMBER, 2025.
PRONOUNCED ON : 27th NOVEMBER, 2025.
J-cri.appeal452.06 final.odt 2/33
JUDGMENT :(Per : Nandesh S. Deshpande, J.)
1. This is an appeal under Section 374 of the Code of Criminal Procedure filed by the original accused who were charged and tried for offences punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code, on the allegations that they being the husband and relatives of one Shahista Parveen subjected her to cruelty on account of dowry demand and ultimately committed her murder by pouring kerosene on her and setting her ablaze on 20th April, 2002 at Kholapur, District Amravati.
2. The facts leading to the prosecution of the accused can be briefly narrated as under :
The appellants before this Court are the accused Nos.1 to 3 and 8 respectively, who were convicted by the trial Court. The original accused No.4-Mobinullahkhan Aminullahkhan, accused No.5-Sharikullahkha Aminullahkha, accused No.6 Rajaullahkha Aminullahkha and accused No.7-Aminullahkha Dulekhan have been acquitted by the trial Court.
3. The original accused Nos.1 to 6 are the sons of original accused No.7- Aminullahkha and accused No.8-Hamidabi. All the accused are the residents of village Kholapur, Taluka Bhatukli, J-cri.appeal452.06 final.odt 3/33 District Amravati and reside together in the same house. The victim-Shahista Parveen was married to the accused No.1- Jakaullahkha, the marriage being solemnized on 20th April 2000 at village Kholapur. After the solemnization of marriage, the said deceased came to reside with the accused persons at the village Kholapur. The first to five months her marital life was normal. However, thereafter the accused Nos.1 to 8 made a demand of Rs.50,000/- for commencing some business and on that count started harassment mentally and physically.
4. The incident in question occurred on 20th April 2002 at about 4.00 a.m. at village Kholapur. According to the prosecution on 19.4.2002 during night-time Shahista Parveen was sleeping along with her husband in the house. On the next day i.e. 20th April 2002 at early morning at about 4.00 a.m. the accused Nos.1 to 8 along with 3 juveniles gathered together, covered their faces by clothes and carried Shahista Parveen near the place of incident which was in front of house of Nazirbhai situated in the same village. After reaching there, the ornaments on the person of said Shahista Parveen were removed by the accused Nos.4,5,6 and 10 and then the remaining accused poured kerosene on her person and the accused Jakaullahkha set Shahista Parveen ablaze by lighting match-stick. Due to shouts and cries of Shahista Parveen people J-cri.appeal452.06 final.odt 4/33 from the neighborhood rushed there, extinguished fire by pouring water and took her to the General Hospital at Amravati in tempo. The Medical Officer on duty of the General Hospital examined Shahista Parveen and admitted her in Burn Ward. She was under
treatment in the Hospital till 25.4.2002. During this period, her dying declarations were recorded by the Police Officer and Executive Magistrate.
5. In this case, initially on 20th April 2002, on the basis of oral information given by the accused No.8-Hamidabi who is mother-in-law of Shahista Parveen, the statement of Shahista Parveen was recorded by the Police Head Constable Mundane bearing Crime No.33/2002 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. The said offence was registered against two unknown persons as per the said dying declaration. Thus, the investigation commenced and during the course of said investigation spot panchanama was drawn, articles lying on the spot was seized, statements of material witnesses were recorded in addition to various dying declarations of Shahista Parveen. After completion of investigation it was transpired that Shahista Parveen was burnt by the accused for their demand of dowry and, therefore, charge-sheet under Section 302 read with Section 498A and read with Section 34 of the Indian J-cri.appeal452.06 final.odt 5/33 Penal Code was submitted before the Chief Judicial Magistrate, Amravati on 21.1.2003, who in turn made it over to the Judicial Magistrate, First Class, Court No.7 for further action.
6. As the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, learned Judicial Magistrate, First Class committed case to the Sessions Court for trial vide Section 209 of the Criminal Procedure Code. After receiving committal proceedings, the Additional District Judge, Amravati framed charges under Section 302 and 498A read with Section 34 of the Indian Penal Code against the accused persons vide Exh.-22. Since all the accused persons after explanation of charge in vernacular pleaded not guilty, they were tried as per law. The trial Court framed points during the trial and after scanning the entire material on record came to the conclusion that the appellants herein i.e. accused Nos.1 to 3 and 8 are guilty and, therefore, went on to convict them for offences punishable under Section 302 read Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life. The said accused were also convicted for offence punishable under Section 498A read with Section 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment of six months in addition to payment of fine. The original accused Nos.4,5,6 and 7 were acquitted of the offences J-cri.appeal452.06 final.odt 6/33 punishable under Sections 302 and 498A of the Indian Penal Code. It is this judgment of the Sessions Court which is impugned in the present appeal on the grounds mentioned in the appeal.
7. We have heard Mr. M.P. Kariya, learned counsel for the appellants and Mr. M.J. Khan, learned Additional Public Prosecutor for the respondent/State.
8. Learned counsel for the appellants while challenging the judgment of the trial Court states that the learned trial Court has improperly evaluated the evidence which was clearly in favour of the accused persons and has, therefore, committed a mistake in convicting them. He further states Article 'A' which is a first statement made by the deceased is recorded by the Head Constable on duty immediately after the incident at 6.00 a.m. wherein there was no incriminating material against any of the accused nor there is any complaint of ill-treatment. It is his further submission that even the second dying declaration Exh.-32 was recorded by Special Judicial Magistrate which also does not even implicate any of the accused/appellant. He further states that it was only in the third dying declaration that the injured makes a vague statement that all her in-laws are responsible for her death without naming anybody in particular. It is, therefore, his submission that there is improper analysis and appreciation of evidence which is liable to be J-cri.appeal452.06 final.odt 7/33 interfered with by this Court in its appellate jurisdiction. Learned counsel for the appellants relies on following judgments :
1 Shivkaran s/o. Ganpati Gaikwad Vs. 2023(3) Mh.L.J. (Cri) 30 State of Maharashtra and others 2 Parmeshwar s/o. Sadashiv Sanap Vs. 2023 (2) Crimes 230 State of Maharashtra 3 Abhishek Sharma Vs. State 2023 AIR (SC) 5271 (Government of NCT of Delhi) 4 Ratan Chandu Dhawale Vs. State of 2024(2) Bom.C.R. (Cri.) Maharashtra 888 5 Ganpati s/o. Sukhdev Kadam Vs. State 2024 ALL MR (Cri) 3075 of Maharashtra and another 6 Manjunath and others Vs. State of 2024 ALL MR (Cri) 376 Karnataka 7 Shyam Narayan Ram Vs. State of U.P. 2024 INSC 800 and another etc. 8 Raju @ Rajeshkumar Munnilal Gupta 2006 (8) RCR (Criminal) and another Vs. State of Maharashtra 312 9 Dhirendra Singh and another Vs. The Cr. Misc. No.12332/2000 State of Bihar and another 10 Pushpabai Subhash Garudkar and others 2004 ALL MR (Cri) 2975 vs. State of Maharashtra 11 Uttam Vs. State of Maharashtra 2022(3) SCC (Cri) 538 12 Muneer Khan Vs. State of Madhya 2002 (9) SCC 523 Pradesh 13 The State of Maharashtra, through PSO, Judgment passed by the Police Station Shirur Vs. Ramnath s/o. Aurangabad Bench in Eknath Aaher and others Criminal Appeal No.344/2002 14 Laxmibai Shankar Murarkhare vs. State Judgment passed by the of Maharashtra Aurangabad Bench in Criminal Appeal No.360/2003 15 Ramakant Sidramappa Waghmare Vs. Judgment passed by the State of Maharashtra Aurangabad Bench in Criminal Appeal No.511/2001 J-cri.appeal452.06 final.odt 8/33 16 Shivaji s/o. Tukaram Patdukhe Vs. State Judgment passed by the of Maharashtra Aurangabad Bench in Criminal Appeal No.287/2001 17 Nallam Veera Stayanandam Vs. Public 2004 AIR (SC) 1708 Prosecutor, High Court of A.P..
9. Per contra, Mr. M.J. Khan, learned Additional Public Prosecutor for the respondent/State submits that there is enough material on record to convict the accused as has been rightly done by the trial Court. He further states that the dying declarations are not inconsistent with each other but same are improvement and the first dying declaration was given under pressure from the in-laws. However, the third and fourth dying declarations specifically names the husband i.e. accused No.1/appellant No.1 herein and, therefore, the trial Court was correct in convicting the accused/appellant. He thus supports the impugned judgment.
10. In the backdrop, of these facts we have appreciated the controversy involved in the present appeal. The learned Additional Public Prosecutor relied on judgment of the Supreme Court in the case of Jagbir Singh Vs. State (NCT OF DELHI), reported in (2019) 8 SCC 779.
11. The controversy in the present appeal relies upon dying declaration and the evidenciary value of the same. The law J-cri.appeal452.06 final.odt 9/33 regarding dying declaration has been crystallized in various judgments and in the Judgment of Jagbir Singh Vs. State (2019) 8 SCC 779, the Hon'ble Apex Court after taking survey of all decisions, has recorded following observations :
"31. A survey of the decisions would show that the principles can be culled out as follows:
31.1. (i) Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
31.2. (ii) If there is nothing suspicious about the declaration, no corroboration may be necessary;
31.3. (iii) No doubt, the court must be satisfied that there is no tutoring or prompting; 31.4 (iv) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration; 31.5. (v) Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;
31.6. (vi) However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out J-cri.appeal452.06 final.odt 10/33 to be reconciliable 31.7. (vii) In such cases, where the inconsistencies go to some matter of detail or description but are incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
31.8. (viii) The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In one dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.
31.9. (ix) In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence J-cri.appeal452.06 final.odt 11/33 placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?
Our conclusion on multiple dying declarations.
32. We would think that on a conspectus of the law as laid down by this court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a summersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations.
If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered."
12. Even though the learned counsel for the appellants have placed reliance on various judgments, the law in this regard is more or less well settled as what has been stated above and the Judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 J-cri.appeal452.06 final.odt 12/33 SCC 710.
13. The important requirement to believe the dying declaration is a proper mental condition to make a consciously truthful statement. However, the law has been developed that the endorsement of the Medical Officer as to the fitness of the mental condition of the maker of the dying declaration is not the legal requirement. The satisfaction of the person recording the dying declaration is sufficient if it inspire confidence. The Hon'ble Supreme Court in the case of Laxman Vs. State of Maharashtra, reported in (2002) 6 SCC 710, has laid down the law what is essentially required is that the person who records the dying declaration must be satisfied that the deceased was in fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can even be established otherwise.
14. The Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra, reported in AIR 1984 SC 1622, by reviewing the authorities on the rule of dying J-cri.appeal452.06 final.odt 13/33 declaration and clear language of Section 32(1) of the Evidence Act, has observed that the following proposition emerges on the said provision.
15. Section 32 of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or relates to circumstances leading to the death. In this respect, as indicated above the Indian Evidence Act, in view of the peculiar condition of our society and the diverse nature and character of our people has thought it necessary to widen the sphere of Section 32 to avoid injustice. The second part of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. Furthermore, in a recent judgment of the Uttam Vs. State of Maharashtra, reported in (2022) 8 SCC, 576 the Hon'ble Supreme Court observed that in cases involving multiple dying declarations J-cri.appeal452.06 final.odt 14/33 made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the Court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the Court would be expected to carefully scrutinize the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point of time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the Court in exercise of its discretion. Thus, having considered the various pronouncement of this Court and the Apex Court the following principles emerged for a court to consider when dealing with the case involving multiple dying declarations :
(a) the primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;
(b) All dying declarations should be consistent. In other words, inconsistencies between such statement should be 'material' for J-cri.appeal452.06 final.odt 15/33 its credibility to be shaken;
(c) When inconsistencies are found between various dying declarations, other evidence available on record will be considered for the purposes of corroboration of the contents of dying declarations.
(d) The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.
(e) Each declaration must be scrutinized on its own merits. The Court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.
(f) When there are inconsistencies, in the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.
(g) In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assume importance along with other factors such as the possibility of tutoring by relatives etc.
16. The controversy in the present matter is to be appreciated in the backdrop of these facts and the law as enunciated by the Supreme Court stated supra.
17. The prosecution in the present case has examined in all 11 witnesses. PW 1- Shoukatali is the father of the victim Shahista Parveen, PW 2-Abdul Khalique PW 3-Nusratali and PW 5-Sayed Sabir are the persons from village Kholapur, who have seen Shahista Parveen at the spot in burning state and to whom she disclosed about the persons who burnt her. PW 4-Sharafatali is the J-cri.appeal452.06 final.odt 16/33 uncle of Shahista Parveen, PW 6-Abdul Sadique is a Panch witness on spot panchanama-Exh.-68. PW 7-Santosh Mundane was the Police Head Constable of Police Station Kholapur, who recorded the report Exh.-70 lodged by the accused No.8 Hahidabi. On the basis of the said report registered a crime bearing No.33/2002 vide Exh.-
71. PW-8 Ashok Keole is the Executive Magistrate who recorded the dying declaration of Shahista Parveen Exh.-84 on 24.4.2002. PW 9 Head Constable-Waman Wahane is the Police Officer, who prepared the spot panchanama Exh.-68, attached articles lying on the spot vide Seizure Memo Exh.38 and recorded statements of PW 2,3 and 5. PW 10-Dr. Satish Maheshwari was the Medical Officer, who examined Shahista Parveen on 24.4.2002 and issued a fitness certificate for recording dying declaration which was recorded at Exh.-84 in his presence. PW 11-Hansraj Mishra, is the Investigating Officer who carried the part of the investigation.
18. In addition to aforesaid oral evidence the prosecution has placed reliance on various documents including spot panchanama Exh.-68, Seizure Memo Exh.-38, report lodged by PW 1-Shoukatali- Exh.57, dying declaration of Shahista Parveen at Exhs.-62 and 102 recorded by the Police Officer on 20 th April 2002 and 21st April, 2002 and the F.I.R. at Exh.-71. Further the prosecution has relies on dying declaration of Shahista Parveen at J-cri.appeal452.06 final.odt 17/33 Exh.-84 recorded by PW 8-Ashok Keole, the post mortem report Exh.-42, the C.A. report Exh.-106. Out of 11 witnesses examined by the prosecution PW 2, PW 3 and PW 5 have turned hostile and have not supported the case of the prosecution. In the backdrop of these facts and as stated above in the backdrop of the dictum of the Hon'ble Supreme Court, trial Court has recorded a finding of conviction against the present appellants.
19. As stated herein above Exh.-71 is the First Information Report in which the column related to facts it is stated that when the injured herein had gone outside the house to answer the call of nature, two persons who have covered themselves with veil took her outside by pressing mouth and after pouring kerosene on her, they set her on fire and tried to kill her. Exh.-32 is the second dying declaration in which it is stated that two goondas entered the house and set me on fire by pouring kerosene and the deceased does not know their names. She further states that she does not see their faces and also adds that nobody from the house set her on fire. The said dying declaration is recorded by the Executive Magistrate on 20th April, 2002. In the dying declaration recorded on the next day i.e. 21st April, 2002, which is recorded before the Police Station Officer, the deceased stated that on 20th April, 2002 at 4.00 O'clock in the morning her mother-in-law and her husband drove her J-cri.appeal452.06 final.odt 18/33 outside the door and her six brothers-in-law i.e. the younger brothers of her husband who have covered their faces with scarf lifted her and took her near Punjabpura Masjid where they poured kerosene from the bottle of their person.
20. As can further been seen, last of the dying declaration is dated 24.4.2002 at Exh.-84. The said dying declaration is recorded before the Executive Magistrate, Amravati. In the said dying declaration the deceased specifically nameed two younger brothers of her husband, namely, Irfan, and Mohsin along with mother-in-law. She also states that appellant No.1-Zakaullahkhan set her on fire with match-stick and snatched away all the ornaments.
21. It is, thus, clear the case of the prosecution is based upon ocular evidence, multiple dying declarations and circumstantial evidence. There are in all five written and one oral dying declaration of Shahista Parveen. Out of five, first two dying declarations do not implicate the accused and the remaining dying declarations specifically named them and implicate them. The prosecution is placing reliance on three subsequent dying declarations while the defence is relying on first two them do not named anybody. It is also an admitted fact that the deceased Shahista Parveen suffered 75% burn injuries on 20th April, 2002 and J-cri.appeal452.06 final.odt 19/33 succumbed to her injuries on 25th April, 2002. The accused have not disputed the nature of death as homicidal.
22. PW 1, who is the father of the deceased deposed that at the relevant period after solemnization of marriage all the accused persons were residing jointly along with the deceased. He has deposed that his daughter, namely, Shahista Parveen when visiting to her maternal house used to disclose about the ill- treatment being meted out to her. In that view of the matter there was meeting for mediation. The meeting was culminated by a promise of the accused persons not to ill-treat the deceased in future. He further states that on 20th April, 2002 he received a phone-call intimating him of burning of Shahista Parveen at about 10.30 a.m. to 11.00 a.m.
23. PW 4-Sharafatali, who is the younger brother of PW 1 and uncle of Shahista Parveen deposes about demand of Rs.50,000/- and ill-treatment given by the accused to Shahista Parveen for fulfilling their demand of money. The evidence of PW 1-Shoukatali is corroborated by the evidence of PW 4-Sharafatali regarding the ill-treatment being meted out to Shahista Parvin.
24. We have perused the evidence of both the witnesses and there is no reason to disbelieve the same branding it to be by after thought. The evidence of both these witnesses demonstrates J-cri.appeal452.06 final.odt 20/33 about the bitter relations between Shahista Parveen on one hand and the accused on the other hand and the conduct of the accused till incident took place on 20th April, 2002.
25. It can further be seen from the record of the matter that all the five dying declarations of Shahista Parveen are on record. The first of the dying declaration on 20 th April, 2002 being earliest of them has been strongly criticized by the prosecution branding it to be a fabricated document. It is also a matter of record that copy of the original dying declaration is not appended with the charge-sheet. The said Article 'A' indicates that on 20 th April, 2002 at about 6.00 a.m. Shahista Parveen made dying declaration to Police Head Constable Mundane, who is PW 7. However, the said prosecution witnesses has nowhere stated in his examination about the said dying declaration. But in his cross- examination he admits that he has recorded dying declaration on 20th April, 2002 at about 6.00 a.m. at Primay Health Centre, Kholapur and as per his version before recording the said Shahista Parveen was examined by doctor. However, it is noteworthy note that in this matter crime in respect of incident of burning was registered at 8.30 a.m. on 20th April, 2002 and on the basis of which report at Exh.-70 was lodged by the accused No.8-Hamidabi for an offence punishable under Section 307 read with Section 34 of the J-cri.appeal452.06 final.odt 21/33 Indian Penal Code. Thus, when PW 7 had already recorded the dying declaration before 8.30 a.m. i.e. at about 6.00 a.m. why did he not take note of the said dying declaration in station diary and why did he not register the crime on the basis of said dying declaration. No answer is coming forward from PW 7 with respect to this aspect. In view of these facts, it would not be possible to believe the evidence of PW 7 on the aspect of recording dying declaration of Shahista Parveen by him on 20th April, 2002 at about 6.00 a.m., which is at Article 'A'. Further perusal of the said dying declaration at Article 'A' would reveal that there is an overwriting below the date of the Medical Officer as has been found by the trial Court and also by us.
26. It is also admitted fact on record and as can be seen by the spot panchanma the house of accused is Pakka house having compound wall around around it. In normal circumstances, if the persons who allegedly burnt Shahista Parveen by taking her out claimed to be the enemies of her father-in-law/accused No.7. If they wanted to take revenge, they would have certainly killed or burnt the sons and wife of Aminullahkhan, but not the daughter-in- law.
27. Furthermore, there is no material placed on record or no depositions of any witness showing that there was enmity J-cri.appeal452.06 final.odt 22/33 between the persons burning the deceased and the father-in-law. Thus, the statement in Article 'A' appears to be false. The trial Court has recorded a cogent and clear finding in regard, which according to us also is based on correct appreciation of the evidence.
28. Furthermore, as far as second dying declaration at Exh.-32 is concerned, the appellants/original accused have admitted the same in reply to the notice under Section 294 of the Criminal Procedure Code. In the said dying declaration also the deceased does not implicate the accused and states that two goondas entered in the house poured the kerosene, set her ablaze and she does not know their names nor had seen their faces. It is noteworthy to mention that the story as mentioned in Article 'A' has been repeated in the dying declaration at Exh.-32. However, perusal of statement of both these dying declarations at Article 'A' and Exh.-32 are hardly believable since though husband of the deceased was sleeping in the house, he did not wake up on raising alarm by the deceased.
29. In that view of the matter, the statements made in both these dying declarations seems to be involuntary in nature and made out of pressure. It is further seen from the evidence on record that there is total variance in the story narrated by the deceased in Exh.-32 and in F.I.R. Exh.-71. The dying declaration at Exh.-32 J-cri.appeal452.06 final.odt 23/33 states that two gundas entered in the house in early morning at 4.00 a.m. and burnt Shahista Parveen by pouring kerosene on her person. All the members of the family were present in the house, but nobody knows anything about the same whereas F.I.R. at Exh.- 71 indicates that on 20th April 2002 at about 4.30 a.m. Nazir Khan and Sher Khan came to the house of the accused, knocked the door, accused No.8/Hamidabi opened the door and on opening the door the said two persons inquired whether her daughter-in-law is present in the house. On this accused No.8/Hamidabi replied that she is asleep and went inside the house to see her daughter-in-law, but she could not been. Therefore, the said two persons informed the accused No.8 that her daughter-in-law is lying near their house in burnt condition. This is a totally contrary version and raises fingers towards the accused.
30. In this regard what is noteworthy to mention that late Shahista Parveen is a newly wedded girl having no history of illness or psychology problem and was in the custody of the accused on the day when the incident occurred. Therefore, a reasonable and cogent explanation should firstly come from the accused as to how and why early in the morning at about 4.00 a.m. she went outside the house, but no such explanation is coming forward. It is also an admitted fact on record that when the parents and relatives of the J-cri.appeal452.06 final.odt 24/33 deceased Shahista Parveen went to the hospital on hearing about her burn, the accused persons were present in the hospital and after few hours of reaching of the parents of Shahista Parveen all the accused persons disappeared and they didn't even turn up when Shahista Parveen was declared dead on 25th April, 2002. The accused persons even didn't think it fit to attend the burial ceremony of Shahista Parveen which was performed by her father i.e. PW 1-Shoukatali. This conduct on the part of the accused is highly unnatural and abnormal. Furthermore, the dying declaration at Exh.-62 recorded on 20.4.2002 during 5.15 p.m. to 5.30 p.m. is by the Police Officer Mr. A.U. Qureshi wherein the deceased states that her husband, mother-in-law, brothers-in-law and sisters-in-law collectively picked up quarrel in respect of Kamdhanda (work) and set her ablaze after pouring kerosene and pressing her mouth. In this regard, the defence has strongly criticized the dying declaration that it is impossible to burn Shahista Parveen by all the accused jointly.
31. The dying declaration of Shahista Parveen at Exh.-84 recorded one day prior to her death is proved in the evidence of PW 8 Ashok Keole, who was Executive Magistrate in the relevant period. In the evidence he has testified that as per the request of the Police on 24.4.2002 at about 6.00 p.m. he had been to Irvin J-cri.appeal452.06 final.odt 25/33 Hospital and requested doctor to examine patient and certify whether she is in fit condition to give the statement. The Medical Officer on his request examined Shahista Parvin and certified that she was fit to give statement. Thereafter, he disclosed his identity for the purpose of his visit and recorded her statement. After recording the same it was read over to Shahista Parvin. She admitted it to be true and correct. Thereupon he obtained right- hand thumb impression, read over statement and also signed the same. This statement on oath by the Executive Magistrate and which is confirmed in the cross-examination rules out any possibility of tutoring by her parents before recording the dying declaration at Exh.-84.
32. We have perused the dying declaration at Exh.-84 and elaborate reasoning given by the trial Court while appreciating the same. In view of these facts, we are of the opinion that it cannot be said that the statement in dying declaration was not read over to Shahista Parveen and she did not admitted it to be true and correct. In our view, therefore, after considering the evidence of Executive Magistrate Ashok Keole, we are of the view that the dying declaration at Exh.-84 was correctly recorded by the Executive Magistrate.
33. The evidence of Executive Magistrate Ahok Keole is J-cri.appeal452.06 final.odt 26/33 corroborated by the evidence of Dr. Satish Maheshwari, who deposed that on the request of Executive Magistrate is re-examined Shahista Parveen, who was admitted in Burn Ward and found that she was in a fit condition to give the statement. He has identified the endorsement of fitness given at the top of the dying declaration at Exh.-84. He has further deposed that Exh.-84 was recorded in his presence and Shahista Parveen was conscious during recording of the same. This deposition of the doctor has gone unchallenged. In the dying declaration at Exh.-84 late Shahista Parveen has specifically stated that on 24.4.2002 early in the morning her father-in-law, brothers-in-law, Irfan and Mohsin forcibly brought her out of the house and poured kerosene on her body and her husband burnt the match-stick. She further states that all ornaments were snatched and she was burnt at latrine of Punjabpura. On hearing her cries, people of Punjabpura saved her and brought her to the Hospital. Thus, in our view the dying declaration at Exh.-84 explains the role of the accused Nos.1 to 3 and 8 in burning of Shahista Parveen. Looking at the odd time i.e. 4.00 a.m. at which the incident was happened, it can very well gathered that the accused had intention to kill Shahista Parveen by burn injuries to which she succumbed within five days therefore.
34. Fourth dying declaration of Shahista Parveen at Exh.-
J-cri.appeal452.06 final.odt 27/33 102 implicate all the accused except accused No.7 and has been recorded by the Police Inspector Hansraj Mishra. In his evidence at Exh.101, the said Police Inspector has testified that after receiving case diary of Crime No.33/2002 for investigation he proceeded to General Hospital, Amravati and recorded a statement of Shahista Parveen at Exh.-102. Prior to doing this he inquired with the doctor about her fitness and after getting confirmation from the doctor that she is fit to record statement. The said statement was recorded which is at Exh.-102. Through the cross-examination of the said witness at PW 11 it has come on record that the relatives of Shahista Parveen wanted that fresh dying declaration is to be recorded and accordingly by proceeding to Irvin Hospital the said dying declaration was recorded at Exh.-102. Even though in view of these facts no explicit reliance can be placed on dying declaration but the assistance of the statement can certainly be taken for inspiring confidence in respect of subsequent dying declaration which is recorded at Exh.-84 by the Special Executive Magistrate.
35. Furthermore, there is ample evidence on record to show that after the incident till arrival of parents Shahista Parveen was in the company of the accused and soon after arrival of parents and other relatives and after she disclosing her parents about the incident, the accused persons disappeared from the spot. It can also J-cri.appeal452.06 final.odt 28/33 be seen that immediately after the incident PW 1-Shoukatli, who is the father of the deceased made an application to the Police contending that the dying declaration at Exh.-32 is false one and requested the Police to again record the statement of the deceased. Thus, the dying declaration at Exh.-84 clearly indicates that since eight days prior to the incident Shahista Parveen has been threatened and harassed for bringing an amount of Rs.50,000/- from her parental house.
36. The dying declaration at Exh.-84 dated 24.4.2002 has been proved in the evidence of PW 8-Ashok. He has narrated in detail the sequence of events for obtaining the said dying declaration. This statement on oath of Executive Magistrate which has come on record through the cross-examination rules out all possibilities of tutoring Shahista Parveen by her parents before recording the dying declaration at Exh.-84. In view of the said facts and on perusal of the dying declaration at Exh.-84 it can be very well inferred that right hand thumb impression of Shahista Parveen was obtained exactly in front of printed endorsement and the statement was reduced into writing. Therefore, it cannot be said that the statement in writing dying declaration at Exh.-84 was not read over to Shahista Parveen and she has not admitted it to be true and correct. Thus, in totality after considering the evidence of J-cri.appeal452.06 final.odt 29/33 Executive Magistrate Ashok, it is crystal clear that the dying declaration at Exh.-84 was correctly recorded by following due procedure of law. At the time of said declaration nobody from the relatives of Shahista Parveen was present.
37. Furthermore, there is ample evidence on record showing that after the incident still arrival of parents of Shahista Parveen she was in the company of the accused. Thereafter, PW 1 Soukatali, who is father of Shahista Parveen made an application to the Police contending that the statement in the dying declaration is false and requested the Police to record statement again.
38. In view of this fact the dying declaration at Exh.-84 clearly indicates that since eight days prior to the incident Shahista Parveen was being threatened.
39. This statement in the dying declaration at Exh.-84 is corroborated by Exh.-57 which is the report made by PW 1-Shoukat Ali to the Superintendent of Police Amravati. Therefore, only on the count that the dying declarations at Exh.-62 and 102 do not contain the allegations regarding the dowry demand, the dying declaration at Exh.-84 cannot be doubted. Furthermore, the chemical analysis report at Exh.106 in respect of articles attached from the spot vide Seizure Memo at Exh.-38 clearly indicate that kerosene were detected in the said articles after chemical analysis. Thus, looking J-cri.appeal452.06 final.odt 30/33 at the circumstantial evidence merely on the basis of aforesaid inconsistency in respect of spot of incident whole evidence cannot be rejected.
40. Thus, the evidence on record discussed at length by the trial Court is supported by material on record. The aforesaid evidence is sufficient to prove the case within clause (b) of Explanation to Section 498A of the Indian Penal Code and further to gather the motive behind the commission of murder of Shahista Parveen by pouring kerosene on her person and set her ablaze. It is thus clear that from the evidence on record and from the material brought by the Prosecution, it has been able to prove the case beyond reasonable doubt that the accused No.1 to 3 and 8 in furtherance of their common intention harassed and ill-treated deceased Shahista Parveen for meeting out their demand of money and early in the morning at about 4.00 a.m. on 20th April, 2002 they poured kerosene oil on her person and set her on fire. The judgment of the trial Court being based on correct reasoning, we do not find any reason to interfere with the same.
41. As far as judgments cited by the counsel for the appellants are concerned, the said judgments are based on the facts involved in the matter. However, as stated by us above, the law is more or less summarized in the judgment of Jagbir Vs. State J-cri.appeal452.06 final.odt 31/33 (supra). In view of the facts stated herein above, we are of the view that in the case of multiple dying declaration more particularly at Exhs.-84 and 102, they are not contradictory in each other in a sense being opposite to each other but they are improvements. Thus inconsistencies between the dying declarations are not absolute and the dying declarations are reconcilable being not repugnant to one another. Thus, there is no somersault made by the deceased inasmuch as in first dying declaration she mentions one person while in another dying declaration she mentions another person. This is not the present case. Thus, in our view, the subsequent dying declaration bring out truthful version particularly in view of the fact that it has come on record that while making first two dying declarations the accused persons were in company of the deceased and there is every possibility that the said dying declarations were made under coercion. Furthermore, the circumstances stated supra such as odd timing of the incident, the omissions of the other family members to notice the deceased being taken away from their residential house where they were residing, the further fact of two persons confronting or inquiring with accused No.8 and she showing total unawareness about the presence of the deceased in her house raises serious doubt against the accused and the said J-cri.appeal452.06 final.odt 32/33 doubts have not been explained by the accused, even though the facts was specially within their knowledge.
42. Thus, a meaningful reading of the all the dying declarations conjointly would reveal that there is no inconsistency about the incident which happened on the fateful day of the intervening night of 19.4.2002 and 20.4.2002. There is no inconsistency about the incident which happened on the day with respect to the deceased Shahista Parveen. Therefore, the judgments and the grounds placed into service by the learned counsel for the appellants that there is some inconsistency does not appeal to us. True, it is that the first three dying declarations do not implicate the accused. However, as we have observed earlier the dying declaration at Exh.-84 inspires confidence which has been the basis for convicting the accused as has been done by the trial Court. In our view, therefore, the trial Court has correctly scanned the evidence on record and reached to the conclusions which are based on material on record. Furthermore, we have also in Appellate jurisdiction have re-appreciated the evidence and found that the conclusions reached by the trial court are based on material available on record, more particularly the evidence and the documents. We therefore, pass the following order :
J-cri.appeal452.06 final.odt 33/33
ORDER
(i) The appeal is dismissed.
(ii) At this stage, learned counsel for the appellants
requested to give eight week's time to surrender before the Jail Authorities.
(iii) The appellants shall surrender before the Superintendent of Central Prison, Amravati, on 05.12.2025.
(iv) The Superintendent of Central Prison, Amravati shall intimate this Court, if he fails to surrender before him to undergo the sentence.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.) wadode Signed by: Mr. Devendra Wadode Designation: PS To Honourable Judge Date: 01/12/2025 16:13:48