Bombay High Court
Shaikh Rafiq Abdul Gafoor Shaikh vs The State Of Maharashtra on 21 February, 2014
Author: S.S. Shinde
Bench: S.S. Shinde, V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 477 OF 2011
1.Shaikh Rafiq Abdul Gafoor Shaikh,
age 27 years, occu. Labour,
2.Shaikh Abdul Gafoor s/o Shaikh Babamiya,
age 57 years, occu. Labour,
3.Shaikh Rasheed s/o Shaikh Abdul Gafoor,
age 23 years, occu. Labour,
4.Shaikh Ameenabi w/o Abdul Gafoor,
age 53 years, occu. Household.
All r/o Dattanagar Ranjangaon (Shenpunji),
Tq. Gangapur, Dist. Aurangabad. ... APPELLANTS.
[ Ori. Accused ]
VERSUS
1.The State of Maharashtra.
2.Shaikh Yousuf Shaikh Gulab Tadvi,
age 45 years, occu. Agril.,
r/o Gandheli, Tq. & Dist. Aurangabad. ...RESPONDENTS.
[R.No.2 Ori. Complainant]
...
Advocate for Appellants : Mr.Chaudhari Nitin K.
APP for Respondent 1: Mr.D.R. Kale.
Advocate for Respondent 2 :Mr. S T Kazi.
...
CORAM : S.S. SHINDE & V.M. DESHPANDE, JJ.
Reserved on : February 06, 2014.
Pronounced on : February 21 2014.
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JUDGMENT:(Per S.S. Shinde, J)
1. This appeal takes exception to the judgment and order passed by the Sessions Judge, Aurangabad in Sessions Case No.26 of 2008 decided on 30th July, 2011. By the impugned judgment and order, the appellants herein i.e. Original accused Nos.1 to 4 have been convicted for the offence punishable under Section 302 r.w. 34 of IPC and each accused has been sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.2000/- each and in default of payment of fine, to suffer simple imprisonment for two months each. The accused / appellants No.1, 2 and 4 have been convicted for the offence punishable u/s 498-A r.w. 34 of IPC and sentenced to suffer Rigorous Imprisonment for one year each and to pay fine of Rs.1000/- each, in default, to suffer simple imprisonment for one month. However, accused / appellant NO.3 has been acquitted of the offence punishable u/s 498-A r.w. 34 of IPC.
2. The prosecution case in nut shell is, as under:
The alleged incident has occurred on 27.10.2006 at about 7 am in the house of the accused persons situated at ::: Downloaded on - 01/03/2014 00:13:24 ::: 3 village Ranjangaon (Shenpunji). Accused No.1 is the husband of the deceased. Accused No.2 is father-in-law, accused No.3 is brother-in-law and accused No.4 is mother-in-law of the deceased. The deceased was issue-less. The accused persons were giving ill-treatment to the deceased by saying that accused No.1 wanted to perform second marriage. On the date of incident the deceased and accused persons were in the house. Accused persons have poured kerosene on the person of deceased from plastic Can and they set her on fire.
The deceased sustained burn injuries due to such act of accused persons. The neighbour namely Ruksana Shabbir Patel had seen the smoke coming out from the house of accused by which she immediately rushed towards the house of accused where she had seen accused persons while leaving their house. The said witness has extinguished the fire of deceased by pouring water and by means of pillow.
The witness namely Ruksana Patel has asked to the deceased about the incident on which the deceased told that her husband, in-laws and brother of her husband have poured kerosene on her person and set her on fire. At the relevant time somebody made phone call to the police about happening of the said incident on which police constable Sk.
Majid Sk. Dagdu of MIDC Waluj Police Station came at the house of accused at the instance of Police Head Constable ::: Downloaded on - 01/03/2014 00:13:24 ::: 4 Dandge. The said police constable took away the deceased in GHATI Hospital by their mobile van. Police constable Shaikh Majid asked the deceased about the incident on which the deceased disclosed that accused persons have set her on fire by pouring kerosene on her person. Thereafter, the deceased was admitted in Ward Nos.22 and 23 of GHATI hospital. PSI Raosaheb Bavle came in GHATI Hospital. He gave letter to the Medical Officer for obtaining his opinion as to whether the said patient was able to make statement or not, on which Medical Officer examined said patient at about 9 am and he gave opinion that the patient was in conscious and fit condition to make statement. Thereafter, PSI recorded the dying declaration of deceased as per her say.
The parents of deceased had come in GHATI Hospital to see their daughter and at the relevant time, the deceased had made oral dying declaration before them that accused persons have poured kerosene on her person and they have set her on fire.
3. On the basis of dying declaration of deceased, Crime No.224/2006 punishable u/s 307 and 498-A r.w. 34 of IPC had been registered against the accused persons. The spot panchanama of the scene of offence had been prepared. Sari in burnt condition and plastic can of kerosene had been ::: Downloaded on - 01/03/2014 00:13:24 ::: 5 seized under the panchanama. That on 27.10.2006, the said patient had died in the hospital while taking treatment PSI Bavle prepared inquest panchanama over the dead body of deceased. The statements of witnesses came to be recorded by concerned Investigating Officer. The accused persons were arrested. The seized muddemal property had been sent to Chemical Analyzer and after completion of necessary investigation, charge-sheet came to be filed against accused persons, charge was framed. Accused pleaded not guilty to the charge and claimed to be tried. After trial, the accused have been convicted and sentenced as mentioned above.
Hence, this appeal.
4. The learned Counsel for the appellants made following submissions:
a) The evidence of P.W.1 & P.W.2 does not prove the ill-
treatment and harassment allegedly meted out by the accused persons at any point of time. The evidence of P.W.1 indicates that, on an inquiry at his instance, the deceased had shown four fingers (as she was unable to speak), by which he came to know that those four persons are the accused who set her on fire. Later on says that three accused persons poured kerosene and accused No.1 set her ::: Downloaded on - 01/03/2014 00:13:24 ::: 6 ablaze. Contrary to above, evidence of P.W.2 indicates that, the deceased was able to speak & all four accused persons have set her ablaze.
b) The evidence of P.W.4 that the accused persons fled away from the spot of incident after setting her ablaze is apparently false and unbelievable inasmuch as, Exh.59 MLC letter clearly indicates that appellant No.2 i.e. Father-in-law of the deceased had admitted the deceased in the GHATI Hospital. The evidence of P.W.4 to the effect that " ... It is not correct to say that the in-laws of Farzana have taken away her in the hospital and they have admitted Farzana in the hospital" is clearly falsified in view of the letter of MLC dated 27.10.2006 Exh.59. The evidence of P.W.4 is liable to be discarded in view of the fact, that the same is contrary to the evidence of P.W.3 and the same is intended to take revenge of accused Nos.2 and 4, they being on inimical terms with the P.W.4. Moreover, all the accused persons were present post-incident in the GHATI hospital. The learned trial Court has completely disregarded the evidence indicating the conduct of the appellants after the occurrence of the incident i.e. their presence in the hospital after the incident, in view of the peculiar facts and circumstances of the case.
::: Downloaded on - 01/03/2014 00:13:24 ::: 7c) The prosecution has not satisfactory explained the delay, that occasioned in registering the crime despite the fact, that the alleged dying declaration Exh.58 has been recorded at 9 a.m. on 27.10.2006. Perusal of the cross examination of P.W.1 indicates that the culpability of the incident on the fateful day has been shifted from one accused to the other i.e. At a point of time the appellants No. 1 is blamed and at another point of time the appellant No.2.
The evidence of P.W.6 indicates that the said witness could not tell as to whether the said patient was having blood or liquid plasma and further whether the said patient was in critical condition or not.
d) Perusal of the spot panchanama Exh.33 indicates the presence of dough of wheat and the same was not seized while preparing the panchanama. The evidence of P.W.7 indicates about presence of dough of wheat while preparing the spot panchanama Exh.33. Thus, the incident has occurred due to explosion and flaring up of stove while preparing the food and therefore, the prosecution theory is liable to be discarded.
e) As per evidence of P.W.7 deceased was moaning and crying and therefore, it is doubtful as to whether the ::: Downloaded on - 01/03/2014 00:13:24 ::: 8 statement of the deceased at Exh.58 could be recorded.
Although possible, P.W.7 has failed to secure the presence of the Executive Magistrate for recording the dying declaration, though the presence of Executive Magistrate could have been availed and therefore, Exh.58 cannot be relied on. The letter to record the dying declaration of the deceased is received by the executive magistrate on 28.10.2006 and the same is not exhibited, but is a part of record.
f) Moreover, the learned trial Court has failed to follow the mandate of section 304 of the Criminal Procedure Code, 1973 inasmuch as, cross-examination of P.W.1 and P.W.2 is at the instance of the accused persons and not by their lawyer. There is nothing on record to indicate, that the learned trial Court had informed the accused persons of their right to free legal aid as mandated by Section 304 of the Cr.P.C. and denial by the accused persons to avail the same.
Thus, the same has entailed in ensuring fair trial to the accused persons and therefore, the impugned judgment and order of conviction is liable to be quashed and set aside, submits the learned Counsel for the appellants.
5. Learned Counsel for the appellants pressed into service exposition of this Court in case of Dinesh Gopal Bhure vs ::: Downloaded on - 01/03/2014 00:13:24 ::: 9 State of Maharashtra 1 and submits that if the victim is not in a position to speak and when taken to hospital was in unconscious state, in the said circumstances, alleged dying declaration cannot be the sole basis for conviction. It is further submitted that the dying declaration is required to be recorded by the Magistrate. Absence of evidence to the effect that condition of victim was so precarious that Magistrate could not be summoned for, the prosecution is bound to offer explanation or state something on record about the condition of the patient. He further invited our attention to the judgment of the Supreme Court in case of Meera vs State of Rajasthan 2 and in particular, Head Note (A) and (B) thereof. He submits that if there is room for doubt in that case, benefit of doubt should be extended to accused - appellants. He invited our attention to para 19 of the said judgment.
The learned Counsel for appellants invited our attention to the judgment of the Apex Court in case of K.Ramchandra Reddy and another vs. The Public Prosecutor 3 and in particular, Head Notes (A) and (B) thereof. It is submitted that if two views are possible on the basis of the evidence on 1 2003 CRI.L.J.3083.
2 2004 CRI.L.J.5038.
3 1976 CRI.L.J.1548(1).
::: Downloaded on - 01/03/2014 00:13:24 ::: 10record, the view which is favourable to the accused is required to be affirmed. He further invited our attention to the judgment of this Court in case of Waman s/o Gulab Kadam & Ors. Vs State of Maharashtra 4 and in particular para 21 thereof and also the judgment of this Court in case of Ashok Pandurang Jadhav vs. State of Maharashtra 5 and in particular, para 22, 23, 26, and 27 thereof. Therefore, the Counsel for the appellants submits that appeal deserves to be allowed.
6. The learned APP appearing for the State invited our attention to the impugned judgment and order and also the evidence on record and submits that the impugned judgment and order is in consonance with the evidence brought on record. It is submitted that there is dying declaration at Exh.
58 recorded by the Police Station In-charge. There is endorsement of the doctor that patient is conscious and stable state of mind to give statement. It is submitted that the said statement was read over to the deceased Farzana and she stated that the same is correct. It is submitted that there is corroboration to the dying declaration at Exh.58 by oral dying declaration of Farzana to P.Ws.1, 2 and 4 and also P.W. 5. The medical evidence unequivocally indicates that 4 2011 ALL MR (Cri) 3334.
5 2011 ALL MR (Cri) 2105.
::: Downloaded on - 01/03/2014 00:13:24 ::: 11death is homicidal. The deceased died due to 100% burns. In the statement of the accused u/s 313 of Cr.P.C., no explanation has been offered as to under what circumstances, Farzana died at their house. It is submitted that all the accused persons were sharing common intention.
Accused No.1 wanted to marry second time and, therefore, all the accused are equally responsible for the death of Farzana. The learned APP invited our attention to the judgment of Supreme Court in case of Amarsingh Munnasingh Suryawanshi vs. State of Maharashtra 6 and submitted that minor contradictions in deposition of the prosecution witnesses would not wipe out the version of the victim in the dying declaration. It is submitted that when the accused No.1 has taken a plea of alibi that he was in company, he should have proved the same. He also invited our attention to the another judgment of the Supreme Court in case of Ramawati Devi vs. State of Bihar 7 and submits that dying declaration recorded before the Police Officer is admissible and can be relied for conviction. It need not be recorded before the Magistrate. Therefore, learned APP relying upon the record and proceedings and also the reasons recorded in the impugned judgment, submits that the appeal is devoid of any merits and same may be 6 2008 ALL MR (Cri) 324 (S.C.).
7 AIR 1983 SC 164(1) ::: Downloaded on - 01/03/2014 00:13:24 ::: 12 dismissed.
Since this is first appeal, we would like to re-appreciate entire evidence on record.
7. The prosecution examined in all seven witnesses so as to prove its case against the accused persons. P.W.1 Sk.
Yousuf Sk. Gulab is father of the deceased, P.W.2 Shaminbee w/o Sk. Yousuf is mother of the deceased, P.W.3 Bharat Pandharinath Garad is a panch witness, P.W.4 Ruksana Shabbir Patel is the neighbour, who rushed immediately towards the deceased and at the relevant time, deceased told her that accused persons have set her on fire by pouring kerosene. P.W.5 Shaikh Majid Sk. Dagdu is Police Constable of Begumpura Police Station, who had taken the deceased in the Hospital at the relevant time. P.W.6 Dr.Prashant Sukesh Meshram is the Medical Officer who has made endorsement on the dying declaration of the deceased showing her mental and physical condition of the deceased at the relevant time. P.W.7 Raosaheb Shrirang Bavle is the PSI attached to the MIDC Police Station who had recorded dying declaration and carried out investigation of the case.
::: Downloaded on - 01/03/2014 00:13:24 ::: 138. Exh.58 is the dying declaration of the deceased dated 27th October, 2006. Exh.33 is the spot panchanama, Exh.54 is the copy of the letter given to the Medical Officer for obtaining his opinion about the mental condition of the deceased, Exh.59 is the letter of MLC dated 27.10.2006. Exh.
60 is the report of Chemical Analyzer, Exh.61 is the copy of the letter given to the Magistrate for adding section 302 in the alleged crime.
9. It appears that the accused persons have admitted following documents in the evidence u/s 294 of the Code of Criminal Procedure namely, Exh.31 Post Mortem notes of deceased, Exh.34 is the medical case paper of Ruksana Patel showing that she sustained burn injuries on her right wrist.
Exh.35 is the inquest panchanama of the dead body of the deceased.
Post mortem notes of deceased at Exh.31 show that the deceased had sustained 100% burn injuries as mentioned in the P.M. Notes. The Medical Officer has given his opinion that the probable cause of death is due to burns and as such there is no much dispute about the same. The deceased had made dying declaration before P.W.7 Raosaheb Bavle, PSI.
P.W.6 Medical Officer has stated in his evidence that at the ::: Downloaded on - 01/03/2014 00:13:24 ::: 14 relevant time, he had examined the said patient and found that she was in conscious and fit state of mind to make a statement and P.W.7 had recorded the statement in his presence.
P.W.4 Ruksana Shabbir Patel is the neighbour of the accused. As stated earlier, she rushed to the spot and extinguished fire.
10. P.W. 1 Sk.Yousuf Sk. Gulab who is complainant and father of the deceased, in his deposition before the Court at Exh.24 stated that he has four daughters and one son. The deceased was his daughter. Accused Shaikh Rafiq is husband of his daughter. The marriage of Shaikh Rafiq with his daughter was performed three years prior to date of incident. After marriage, his daughter was residing along with the accused at Malegaon. They stayed there for two years and thereafter, they shifted to Ranjangaon, taluka and Dist. Aurangabad. All the accused persons used to beat the daughter of P.W.1. They were not allowing him to meet the daughter since his daughter could not beget a child. He made a phone call to his daughter through coin box and at the relevant time, his daughter told him about the ill-
treatment at the hands of accused persons. She informed ::: Downloaded on - 01/03/2014 00:13:24 ::: 15 him on phone that accused were giving ill-treatment to her.
On 27th October, 2006, he received a phone call from Ranjangaon that his daughter Farzana sustained burn injuries. He received said phone call at about 8 a.m. Thereafter he himself, his wife and brother and his neighbour went in Ghat Hospital, Aurangabad. He made inquiry with his daughter about the happening of the incident, on which, she had shown her four fingers to P.W.1 by which, he understood that four accused persons had set her on fire. He further stated that on the same day, his daughter died at about 2 p.m. He further stated that he made inquiry with his daughter at the relevant time and she disclosed that three accused persons have poured kerosene on her person and her husband set her on fire. He identified the accused persons present before the Court to be the same persons. In his cross-examination by accused No.1, he has stated that it is not true to say that accused No.1 has not set his daughter on fire. In his cross-examination by accused No.2, he stated that accused No.2 set her daughter on fire. In his cross-
examination by accused No.3, he has stated that his daughter had disclosed the names of accused persons by showing four fingers. However, he specifically admitted that his daughter did not disclose names of four persons. Accused Nos.1 to 4 had come in the Hospital and on that basis he said ::: Downloaded on - 01/03/2014 00:13:24 ::: 16 that they committed alleged crime. In cross-examination by accused No.4, this witness stated that it is not correct to say that the accused persons have not killed his daughter. He further denied the suggestion that there was no quarrel between the deceased and accused persons. He further denied that his daughter was not ready to cohabit with the accused No.1 and was not liking him. He has also denied the suggestion that he threatened the accused by saying that he would prosecute them.
11. P.W.2 Shaminabee w/o Sk. Yousuf was examined at Exh.25 before the Court. She deposed that deceased Farzana was her daughter. Accused No.1 Shaikh Rafiq is husband of her daughter. Their marriage has been solemnized prior to six years of the date of incident. More or less, this witness like P.W.1 Sk. Yousuf stated in her evidence that there was ill-treatment at the hands of the accused to her daughter and further her daughter used to disclose about the ill-treatment at the hands of her in-laws. It further appears that the said ill-treatment was on account that her daughter (deceased) could not beget child. She has also stated that they went to the hospital and made inquiry, on which she stated that four accused persons poured kerosene on her person and her husband set her on fire.
::: Downloaded on - 01/03/2014 00:13:24 ::: 17In her cross-examination, she reiterated her version in examination-in-chief that the accused persons poured kerosene and set her daughter on fire as, it was told by Farzana to her. She has denied the suggestion that her daughter was residing at her house for the period of two months prior to incident.
12. P.W.3 Bharat Pandharinath Garad, resident of Dattanagar, Ranjangaon, Taluka Gangapur was examined as Panch witness to spot panchanama. In his evidence at Exh.
32 before the Court deposed that on 27th October, 2006 he was called at the spot of offence by the police to act as panch. He stated that Dadarao Tarte was another panch witness. He had seen the spot of offence. Room was admeasuring 10 x 10 ft. One lady in burn condition was lying there. Kerosene can and one stove were there. Police prepared panchanama. The said articles lying at the spot were seized under the panchanama signed by this witness and also other panchas. He identified the panchanama and also his signature and also stated that colour of can was white and he can identify the same if it is shown to him.
In his cross-examination, he stated that he is member ::: Downloaded on - 01/03/2014 00:13:24 ::: 18 of Gram Panchayat of village Ranjangaon (Shenpunji). He further stated that the Wada (house) in which the incident had taken place, is besides his shop. Immediately after the incident, within five minutes he reached to the spot. He stated that the accused Shaikh Rafi q and accused No.2 Shaikh Rashid used to leave their house during morning time for the work. He further stated that he made phone call to the police, on which, police van came there. Thereafter, in-
laws of the said lady came there. The body of the said lady was covered by the clothes. Thereafter, said lady was kept in police van in his presence. Near about 30 minutes were spent at the spot. It is stated by him that the said lady told him that she sustained injuries due to flaring up of stove. He further stated that they also noticed dough of wheat. He further stated that at the relevant time, accused No.2 Shaikh Abdul Gafoor called his sons from the factory by making phone call. Thereafter, he sent the said lady in the vehicle along with accused No.3 and 4.
13. The prosecution witness No.4 is Ruksana Shabbir Patel.
In her deposition before the Court, she stated that she is residing in the house of Shabbir Pathan as a tenant. At the time of incident, the accused persons were residing in the Wada of Bashir Pathan. The incident occurred on 27th ::: Downloaded on - 01/03/2014 00:13:24 ::: 19 October, 2006 at about 7 a.m. At the relevant time, she had seen smoke coming out from the house of the accused. She went towards house of the accused. At the relevant time, four accused who are before the Court and other two children went away from the said house. One dead body was in burning condition. She brought water in a bucket from her house and extinguished fire of the said person. It was Farzana who sustained burn injuries. She tried to extinguish fire by means of pillow. She asked Farzana as to what happened, on which, Farzana told that her family members set her on fire. Thereafter, police came there. Thereafter, she was covered with clothes and was taken in the vehicle to the hospital. This witness was in the said vehicle. Farzana was taken in GHATI Hospital.
14. In her cross-examination, she stated that their houses are adjacent to each other. Other six tenants were also residing in the said Wada. This witness is residing in a separate room as a tenant which is in front of house of the accused. She shouted by saying smoke coming out of house of the accused. She brought bucket of water from her house for extinguishing fire of that lady. She stated that two to four persons came for extinguishing the fire of the lady. However, she is not able to remember names of those persons. She did ::: Downloaded on - 01/03/2014 00:13:24 ::: 20 not tell names of the said persons even before the police.
She stated that more than 30 minutes were required for sending the said lady in the hospital after noticing smoke coming out of house of the accused. At the cost of repetition, she further stated that she extinguished fire of that lady. She further stated in cross-examination that Bharat Garad came there. However, she stated that she is not aware whether Bharat Garad called vehicle there. She has also narrated other details that police persons and other four - five persons came there. She has specifically denied suggestion that she is deposing falsely that on the date of incident she rushed towards house of the accused by saying smoke coming out of house of the accused and thereafter, she had extinguished the fire of Farzana by pouring water. She specifically stated that, it is not correct to say that she is deposing falsely that at the relevant time, she had seen the accused persons going away from their house. She has also specifically stated that it is not correct to say that she is deposing falsely that she did ask Farzana what happened on which she had stated that her family members have set her on fire. She specifically stated that it is not correct to say that there were always quarrels in between her and accused Nos.2 and 4. She specifically stated that it is not correct to say that she is deposing falsely with intent to take revenge of accused Nos.2 ::: Downloaded on - 01/03/2014 00:13:24 ::: 21 and 4. She has denied every suggestion given by the defence that she was not present at the spot or she did not accompany Farzana to the hospital. Therefore, P.W.4 Ruksana's cross-examination has not yielded any material which could be said to be favourable to the defence. On the contrary, in her cross-examination, she has reiterated her statement in examination-in-chief. The presence of this witness at the spot is natural. This witness reached the spot first in time and extinguished fire by pouring water on Farzana. She has specifically stated that four accused persons to whom she identified beofre the Court and other two children left the house when she went to the spot i.e. House of Farzana and the accused wherein she saw Farzana in burning condition and thereafter, she went to her house and brought water so as to extinguish fire. The fact that she was present at the spot, though denied by the accused in their statement u/s 313 of Cr.P.C., it is evident from her cross-examination that she was present on the spot. She was examined by the doctor. Exh.34 is injury certificate of Ruksana P.W.4, which shows 2% superficial to deep burns over right wrist. Burn injuries on Ruksana's right wrist lends support to the prosecution story that Ruksana went to the house of the accused and extinguished fire and she saw that four accused along with two children left the house when she ::: Downloaded on - 01/03/2014 00:13:24 ::: 22 went to the spot i.e. House of the accused. As already observed, the accused persons have admitted the medical case papers of Ruksana Patel (P.W.4) showing that she sustained burn injuries on her right wrist. Said certificate is at Exh.34. As already observed, her evidence in cross-
examination is not shaken in any manner.
15. P.W.3's evidence in examination-in-chief appears to be narration of conducting of spot panchnama and he was panch for spot panchanama. However, in cross-examination, he stated that deceased Farzana told him that she burnt due to explosion of stove. However, as it is evident from the spot panchanama and recovery, which is established through prosecution witness that there was recovery of kerosene can and pieces of sari of the deceased. However, there is nothing to indicate that the stove exploded and deceased died due to accidental burns. It is also relevant to mention that kerosene smell was coming from house of the accused. It is mentioned in the spot panchanama, which is duly proved, that in the said room i.e. house of the accused, there was strong smell of kerosene. All three blades of ceiling fan appear to be bended due to flames of fire. There are burnt and melted pieces of nylon sari, stuck to the flooring of the room. Said pieces of sari had smell of kerosene. There is one white 10 ::: Downloaded on - 01/03/2014 00:13:24 ::: 23 liter plastic can and upon opening its lid, it smells of kerosene. There is smell of kerosene in the house. In the house, there are household articles and in south corner, there is dough of wheat in a still plate. The clothes in daily use in the room appear blackish due to fire and walls around also appear blackish. Can and pieces of sari are seized for investigation purposes. Afore stated contents of spot panchanama in vernacular are, as under:
[सदर रम मधये रॉकेलचा उग वास येत असून सदर खोलीतील िसिलग ं फानचया पटटा ितनहीही आगीचया जवाला मुळे वाकलेलया िदसत आहे, खोलीत फरशीवर नायलॉन साडीचे जळलेले तुकडे िवतळू न फरशीला िचकटलेले आहेत .
सदर तुकडाचा वास घेता रॉकेलचा येत आहे. तया बाजूलाच एक १० िलटरची पांढरी पलाििटक कॅ न असून ितचे बुच उघडू न पाहता वास रॉकेलचा येत आहे.
घरात संसार उपयोगी सामान असून खोलीतील दििण कोपऱयात एका िटीलचया ताटामधये गवहाची किणक ितमबलेली िदसत आहे. खोलीतील घरगुती वापराचया कपडांना आगीचया जवालामुळे धुराने काळे झालेले िदसत आहे तसेच चौबाजुला ं ीपण धुरामुळे काळवड िित ं लेलया िदसत आहेत. तपासकामी कॅ न व साडीचे तुकडे जप करणयात आलेले आहे.] There is nothing to indicate that the stove exploded and therefore, there was accidental fire and in said fire, the deceased caught fire and died. Upon careful perusal of the ::: Downloaded on - 01/03/2014 00:13:24 ::: 24 spot panchanama, it is abundantly clear that not only that there was strong smell of kerosene but, even the ceiling fan was damaged. As it has come in the evidence of P.W.4 that she extinguished the fire by pouring water on Farzana that by itself indicates that door of the room was open and in case of accidental fire / burn, there might be an attempt on the part of the deceased to come out of the room or she might have shouted for help. Apart from that in case of accidental fire, accused persons should have attempted to extinguish fire. It has come in the evidence of P.W.4 Ruksana that when she rushed to the spot, the accused persons four in numbers with two children left the said house. Though P.W.3 Bharat Garad has stated in his evidence that accused Nos.3 and 4 arrived at the spot after he went to the spot. Their subsequent arrival at the spot cannot be taken as they were not present on the spot at the time of the incident. Since P.W.4 Ruksana in clear words stated that when she reached the spot, accused persons left the house. It has come in the evidence of P.W.4 that P.W.3 came to the spot when she extinguished fire.
Therefore, P.W.4 Ruksana reached the spot prior in time and P.W.3 came later on. Though it is stated by the P.W.3 Bharat Garad in his evidence that father of the accused Nos.1 and 2 called them on telephone and then they came to the spot, the defence has not placed anything on record to ::: Downloaded on - 01/03/2014 00:13:24 ::: 25 suggest that at the relevant time accused Nos.1 and 2 were at their work place. It is true that the accused No.1 has taken defence that at the relevant time, he was in the company.
When he has taken a specific plea that he was in company, he should have led evidence to prove that at the relevant time, he was in company or at his work place. It cannot be forgotten that the incident had taken place in the morning hours at 7 a.m.,in the house of the accused and, therefore, the facts which are within their special knowledge, they were bound to explain / state in view of the provisions of Section 106 of the Indian Evidence Act. However, they have not offered any explanation about the burns sustained by the deceased and her subsequent death. Throughout their statement under Section 313 of Cr.P.C., except denial, they have not stated under what circumstances, deceased Farzana sustained burn injuries, in their own house.
16. Though the accused in their statement u/s 313 of Cr.P.C. have stated that P.W.4 Ruksana was not residing in the same Wada, the presence of Ruksana at the spot has been established. Her presence has been established by medical certificate showing that this witness suffered 2% burns on her right wrist and P.W. 4 in her cross-examination also has firmly stated that she went to the spot and ::: Downloaded on - 01/03/2014 00:13:24 ::: 26 extinguished the fire and Farzana told her that the accused persons have poured kerosene and set her on fire. The defence Counsel did ask a question to this witness P.W.4 that there were always quarrels in between her and accused Nos.
2 and 4 and the said suggestion was denied by her. But, giving such suggestion about quarrel between P.W.4 and accused Nos.2 and 4, firmly established that this witness is residing in the same tenanted premises near house of the accused. In her cross-examination, she has specifically denied the suggestion of the defence that at the relevant time she has not seen the accused leaving their house.
17. P.W.5 Shaikh Majid Sk. Dagdu at the relevant time working as Police Constable at Begumpura Police Station, Aurangabad, deposed before the Court that on 26th October, 2006 during night time, he was attached to MIDC Waluj Police Station. He was available at police station till 5 a.m., on 27.10.2006. On that day, he went at Ranjangaon as per the directions of Police Head Constable Dandge. He saw that persons had gathered at the house of Garad. One lady had sustained burn injuries. He had taken away her in Ghati Hospital by mobile van. Said lady, on the way to hospital told this witness that her husband, in-laws and brother-in-law have set her on fire. The said lady was able to talk while ::: Downloaded on - 01/03/2014 00:13:24 ::: 27 proceeding towards Aurangabad. She was admitted in Ward No.22-23. Doctor had asked her name on which, she had disclosed her name. PSI Bavale recorded her statement.
In cross-examination, though he stated that there is no mention in his statement that the said lady has made such a statement while proceeding towards Aurangabad, this omission has not been proved by defence through Investigating Officer. This witness in cross-examination further stated that, the Medical Officer was examining the said patient in the said ward at the relevant time and he was outside ward at that time. He has specifically stated that it is not correct to say that the said Farzana had not disclosed her name in his presence.
18. Apart from evidence of P.W.5, it has come in the evidence of P.W.1 and P.W.2 that when they reached to the hospital, Farzana by showing four fingers indicated her father that accused persons poured kerosene on her and set her on fire. P.W.2 mother of the deceased also deposed to that effect. The evidence of P.W.1 and P.W.2 shows that since deceased Farzana was not able to beget a child, all the accused persons ill-treated her. Accused No.1 wanted to marry second time and, therefore, all the accused persons ill-
::: Downloaded on - 01/03/2014 00:13:24 ::: 28treated Farzana.
19. Upon perusal of Column No.15 to 17 of the post-
mortem notes, it appears that deceased Farzana suffered following injuries:
"Total 100% superficial to deep burns.
1) Head, neck, face : 9%
2) Anterior trunk : 18%
3) Posterior trunk
ig : 18%
4) Right upper limb : 9%
5) Left upper limb : 9%
6) Right lower limb : 18%
7) Left Lower limb : 18%
8) Perineum : 1%
Total :100%
Deep burns seen over anterior & posterior aspect of the trunk; rest of the burns are superficial in nature. Vital reaction present, skin peeled off at places, leaving behind redden area. Hairs burnt & singed e/o vivisection mark on medial aspect of right ankle."
20. Upon careful perusal of the injuries suffered by the deceased, it is abundantly clear that she suffered 100% superficial to deep burn injuries on various parts of her body.
Probable cause of death has been stated as shock due to burns.
21. In her dying declaration at Exh.58 recorded on 27th October, 2006 at 9 a.m., i.e. on the day of incident, deceased Shaikh Farzana Sk. Rafiq stated that, she got ::: Downloaded on - 01/03/2014 00:13:24 ::: 29 married with Shaikh Rafiq before three years. She has no any child. Since she had no child, her husband, father-in-law, mother-in-law and brother-in-law were telling her that her husband i.e. Accused No.1 wants to perform second marriage and they used to quarrel and ill-treat her.
On 27th October, 2006 at 7 a.m., when she was in her husband's house, her husband, father-in-law, mother-in-law and brother-in-law started quarreling with her saying that her husband wants to have second wife and husband Rafiq, father-in-law Abdul, mother-in-law Amina and brother-in-law Rashid poured Kerosene from a can on her person and set her on fire and, therefore, she is burnt. Her husband, father-
in-law, mother-in-law and brother-in-law set her on fire with an intention to kill her. The entire body is burnt and she has complained against all the four accused. Her statement is read out to her and she stated the same to be correct.
On careful perusal of the said dying declaration, there is endorsement at Exh.53 by Medical Officer to the effect that 'the patient is conscious and in stable state of mind to give valid statement. Statement is taken in front of me'. Below this endorsement, there is signature of the doctor, date 27.10.06 ad time 9.00 a.m. Said dying declaration also bears ::: Downloaded on - 01/03/2014 00:13:24 ::: 30 thumb impression of deceased Farzana.
22. P.W.6 Dr. Prashant Sukesh Meshram who was working s Medical Officer at the relevant time in Ghat Hospital, Aurangabad, deposed before the trial Court and his deposition is at Exh.52. He deposed that on 27.10.2006, he was working as medical officer at GHATI Hospital, Aurangabad. The patient namely Shaikh Farzana Shaikh Rafiq was admitted in burn ward. He examined the said patient. The said patient was in conscious and in state of fit mental condition to make statement at the relevant time.
Accordingly, he made endorsement which bears his signature. The said endorsement is at Exh.53. He specifically stated that the statement of Farzana was recorded in his presence. He received letter of PSI MIDC Waluj for recording statement. He identified the copy of the said letter being the same, which is at Exh.54.
The learned Counsel for the appellants / accused submitted that in cross-examination of this witness, he has stated that he cannot tell whether the patient was in critical condition or not, percentage of her burn injuries and therefore, said witness is not believable and his evidence deserves to be discarded. However, upon careful perusal of ::: Downloaded on - 01/03/2014 00:13:24 ::: 31 the cross-examination, this witness has specifically stated that he spent 5 to 10 minutes for examination of the said patient. Apart from that, he has denied the suggestion that he made said endorsement at the instance of the police without examining the patient. Therefore, it appears that P.W.6 Dr. Prashant Meshram not only carefully examined the patient but, gave endorsement which bears his signature.
23. P.W.7 Raosaheb Shrirang Bavle, working as P.S.I. MIDC Police Station at the relevant time, recorded the dying declaration at Exh.58. His evidence before the Court is at Exh.57. In his examination-in-chief, he stated that in the month of October, 2006 he was working as P.S.I., MIDC Waluj Police Station. On 27.10.2006 he went to GHATI hospital for recording statement of patient namely Shaikh Farzana. He gave letter to the medical officer for obtaining his opinion as to whether the said patient was able to make a statement or not. He was shown copy of the said letter and he stated that, the said letter bears his signature and its contents are correct. He specifically stated that, the doctor told him that the patient is able to make statement. He recorded statement of the said Farzana in the presence of the doctor.
The said patient made a statement that she was not begetting a child, due to which, she was ill-treated and all ::: Downloaded on - 01/03/2014 00:13:25 ::: 32 accused poured kerosene on her person and set her on fire.
He obtained an endorsement of the medical officer on her statement. He obtained thumb impression of the patient on the said statement. He specifically stated that he read over the contents of the statement to the said patient on which she had admitted its contents. The medical officer has examined the said patient. The statement of Farzana was shown to him. He stated that the said statement bears his signature.
Its contents are correct. He has reduced the contents of the said declaration in writing as per the say of the deceased. He further stated that he thereafter went to the police station. He further stated about the preparation of spot panchanama. The spot of offence is the house of the accused. He seized pieces of sari in burnt condition and a plastic can of kerosene. The said spot panchanama is at Exh.
33. He further stated that on 27.10.2006 said patient died in the hospital. He received MLC letter dated 27.10.2006 which is at Exh.59. Thereafter he went to GHATI hospital and prepared inquest panchanama. He identified his signature on inquest panchanama. He stated that the post-mortem on the dead body of the deceased was carried out by the medical officer. He further stated that he recorded statement of the witnesses. He arrested the accused. He has also stated that, seized muddemal property was sent to the Chemical ::: Downloaded on - 01/03/2014 00:13:25 ::: 33 Analyzer by forwarding letter to that effect. He produced C.A. Report. He stated that offence punishable u/s 302 r.w.
34 of IPC was added subsequently.
This witness was cross-examined at length. According to the learned Counsel for the accused, the dying declaration recorded by this witness is not genuine and same cannot be relied upon to convict the accused. According to the defence Counsel, this wittiness has admitted in his cross-examination that when the dying declaration was recorded, the only patient was there and the doctor was sitting 15 to 20 feet away from the patient. It is further argued that this witness has admitted that patient was in critical condition. It is further argued that this witness has stated that, he prepared the letter to medical officer within one and half minute and within 30 seconds, doctor told him to record the statement. It is further submitted that this witness has not satisfied himself that the deceased Farzana was in fit mental condition to give statement.
In this respect, as rightly submitted by the learned APP relying upon the exposition of the Supreme Court in case of Amarsingh Munnasingh Suryawanshi (supra), that minor contradictions in deposition are required to be ignored when ::: Downloaded on - 01/03/2014 00:13:25 ::: 34 there is an endorsement of the medical officer that patient conscious and in a fit mental condition to give dying declaration. As already observed, P.W.6 Dr. Prashant Meshram, medical officer in his statement has categorically stated that he examined the patient for 5 to 10 minutes and throughout recording the statement, he was present there.
Therefore, medical officer himself has examined the patient and found that the patient was in a fit mental condition to give said dying declaration. Therefore, minor contradictions in the evidence of P.W.7 about timings would not nullify the effect of dying declaration, which is recorded after endorsement of the medical officer and also the said dying declaration was read over to the patient and she admitted the contents of the said dying declaration to be correct and the same has been signed by the P.W.7 also. In the said dying declaration, in clear words, Farzana stated that all the four accused persons poured kerosene and set her on fire with an intention to kill her. She has also stated that all the accused started quarreling by saying that accused No.1 wanted to perform second marriage and to have second wife.
The dying declaration clearly implicates all the accused and attributes role to them that, they were sharing common intention to kill deceased. In the present case, there is corroboration to the dying declaration by the evidence of ::: Downloaded on - 01/03/2014 00:13:25 ::: 35 P.Ws.1, 2 and 4. P.W.4 Ruksana is the important witness, who immediately rushed to the spot after seeing smoke coming out of house of the accused and she saw that Farzana was in burning condition. She brought water to extinguish fire and there is immediate narration by Farzana to this witness wherein she stated that all the four accused poured kerosene and set heron fire. This witness has specifically stated that when she went at the spot, all the four accused persons and two children left the house i.e. place of incident.
It appears that there was no attempt by any of the four accused to extinguish the fire. The fact that P.W.4 Ruksana sustained burn injuries to the extent of 2% as it is evident from the medical certificate produced on record by the prosecution, her presence on the spot was natural inasmuch as she was residing in front of the house of the accused.
Injury certificate of Ruksana is admitted by the accused. The Chemical Analyzer's report also supports the prosecution case as kerosene residues were detected on the articles sent i.e. Can and pieces of sari.
24. The learned Counsel for the appellants submits that the trial Court has failed to follow the mandate of section 304 of Cr.P.C., 1973 inasmuch as, the cross-examination of P.W.1 and P.W.2 is at the instance of the accused persons and not ::: Downloaded on - 01/03/2014 00:13:25 ::: 36 by their lawyer. In fact, upon careful perusal of the original record & proceedings, it appears that the cross-examination of P.W.1 and P.W.2 was by the accused persons on 28th June, 2010. The original record shows that the Advocate for the accused, on the same date, placed a pursis on record that the accused have not given any instructions nor visited his office. Accordingly, the Advocate filed 'no instructions pursis'. The accused / appellants themselves proceeded to cross-examine P.W.1 and P.W.2. It further appears that on 29th June, 2010, the accused persons filed an application praying for engaging some other advocate. Therefore, on 28th June, 2010 when the accused persons themselves cross-
examined P.W.1 and P.W.2, their advocate was on record, he was not discharged and further prayer for engaging another advocate was on next day i.e. 29.6.2010. Section 304 of the Cr.P.C., was not rightly invoked by the trial Court since the accused were represented by a pleader engaged by them.
Section 304 of the Code would come to the aid of the accused when they are not represented by a pleader and where it appears to the Court that the accused are not having sufficient means to engage a pleader. Therefore, there is no substance in the contention of the Counsel for the appellants / accused that the Sessions Court should have invoked the provisions of section 304 of Cr.P.C.
::: Downloaded on - 01/03/2014 00:13:25 ::: 3725. The accused No.1 in his statement recorded u/s 313 of Cr.P.C., though denied that P.W.4 Ruksana was not residing in the said building near the house of the accused, it has come on record that Ruksana was residing near house of the accused. The suggestion given by the defence Counsel that she had some dispute with the accused Nos.2 and 4 is suggestive of the fat that Ruksana was residing near the house of the accused. The fact that she sustained burn injuries also unequivocally demonstrates that she was residing there and she extinguished fire. The accused No.1 while answering question No.11 stated that at the relevant time, he was in the company. It means that he was at his work place. Except saying so, he did not led any evidence or place on record any document showing that on the date of incident, at the relevant time, he was in company. On the contrary, evidence of P.W.4 Ruksana unequivocally indicates that when she went to the spot, all the four accused persons with two children left the house. When it was contention of the accused No.1 that he was in company at the relevant time, it was for him to establish and prove that fact. The spot of the incident is the house of the accused and incident had taken place at 7 a.m., and therefore, the accused persons were bound to offer explanation. However, none of the ::: Downloaded on - 01/03/2014 00:13:25 ::: 38 accused has stated anything in that respect. None of the accused has taken defence specifically that Farzana died due to accidental burns. The case in hand is not a case of suicidal death. From medical evidence, it is clearly established that death is homicidal one. The accused No.2 Shaikh Abdul Gafoor s/o Shaikh Babamiya, while answering question No.8 that P.W.3 Bharat Garad was a panch witness and he had seen spot of offence, kerosene can, stove, room admeasuring 10x10 ft., and one lady in burnt condition was lying there.
What he has to say. To this, this accused replied that it is correct. That clearly establishes that spot of offence was the house of the accused. The question NO.11 i.e. Further it has come in her (P.W.4 Ruksana) evidence that at relevant time you accused along with others including two daughters went away from the house. One dead body was lying in burning condition there. She has brought water in the bucket from the house and she has extinguished the fire of Farzana.
What you have to say about it? While answering this question, the accused No.2 stated, "we were there." While answering question No.29, this accused stated that the deceased was not liking her husband. Mother of Farzana had quarreled with his wife. His son was not talking properly i.e. "totara" and further stated that they are poor. Except this, this accused has not stated anything about the incident. This ::: Downloaded on - 01/03/2014 00:13:25 ::: 39 accused has specifically admitted their presence at the spot while answering Question No.11.
26. Accused No.3 Shaikh Rasheed s/o Shaikh Abdul Gafoor, in his statement u/s 313 of Cr.P.C., except denial, has not stated anything.
Accused No.4 Shaikh Ameenabi w/o Shaikh Abdul Gafoor in her statement u/s 313 of Cr.P.C., while answering question No.29 stated that they have not done anything. She (deceased) was not liking her husband.
27. It appears from perusal of the original record that a letter was written by the Police Inspector, MIDC Waluj Police Station to the Taluka Executive Magistrate on 27th October, 2006 requesting therein for recording statement of the deceased. Though it is contended by the Counsel for the appellants / accused that the accused No.1 was residing in a separate room and accused Nos.2 and 4 were residing in a separate room and accused No.3 was residing in separate room, the fact remains that the said rooms are in the same building. It appears that there are in all six rooms. Out of that, three rooms are occupied by the accused / appellants.
Upon careful perusal of statements of all the accused u/s 313 ::: Downloaded on - 01/03/2014 00:13:25 ::: 40 of the Code, it appears that all the adverse circumstances were put to them.
28. Upon considering the evidence on record in its entirety, it appears that the spot of incident was house of the accused, the incident had taken place at 7 a.m. There was recovery of burnt pieces of sari and kerosene can from the spot. Spot panchanama has been proved by the prosecution through P.W.3 and the Investigating Officer. Upon careful perusal of the spot panchanama, it is crystal clear that there was strong smell of kerosene. Even the ceiling fan was damaged / burnt.
The victim sustained 100% burn injuries. It is a fact that Ruksana P.W.4 was residing as a neighbour of the accused and she immediately rushed to the spot seeing smoke coming out of house of accused and extinguished the fire by pouring water on the person of deceased, she noticed all the accused persons along with two children left the house when she went to the spot of incident, there is nothing on record indicating that the accused persons tried to extinguish fire and in the statement of one of the accused u/s 313 of Cr.P.C., it has come on record that they were present on the spot.
The defence of the accused No.1 that he was in company, has not been proved except bare statement u/s 313. On the contrary, the evidence on record unequivocally indicates that ::: Downloaded on - 01/03/2014 00:13:25 ::: 41 all the accused persons left the spot with two children as stated by P.W.4 Ruksana. The presence of Ruksana at the spot was natural she being neighbour of the accused.
The victim was taken by police van in which she made oral dying declaration to P.W.5. In the hospital, by showing four fingers, she communicated by gesture that four accused set her on fire. P.W.2 also deposed that the victim has narrated her the incident. P.W.3 has been examined only as a panch witness. The evidence of P.W.6 and P.W.7 proves the dying declaration at Exh.58. There is endorsement of P.W.6 at Exh.53 on Exh.58 that the patient was conscious and in a fit mental state to give statement. He has stated that for 5 to 10 minutes, he examined the patient and thereafter, endorsement was given by him and accordingly, in his presence the Investigating Officer recorded the dying declaration. Though, there are minor contradictions in the evidence of the Investigating Officer i.e. P.W.7, those minor contradictions would not nullify the version in the dying declaration that the accused persons poured kerosene on the person of the victim and set her on fire with an intention to kill her. The contents of the dying declaration and other evidence placed on record by the prosecution would unequivocally indicate that the accused persons were ::: Downloaded on - 01/03/2014 00:13:25 ::: 42 sharing common intention and, therefore, each of the accused was responsible for the commission of offence and death of the deceased Farzana. The medical evidence unequivocally indicates that death of deceased is homicidal.
The Chemical Analyzer's report lends support to the prosecution case that kerosene residues were detected on pieces of sari and plastic can. There is cogent, convincing evidence on record in the form of dying declaration of the deceased Farzana. We are fully aware about the parameters laid down by the Supreme Court in case of Khushalrao vs State of Bombay 8 while appreciating evidence in the form of dying declaration. In the present case, there is enough corroboration to the dying declaration in the form of oral dying declaration made by the deceased to P.W.1 and P.W.2 and even P.W.5. The medical evidence also corroborates version of the prosecution.
29. Therefore, upon re-appreciating the entire evidence, we are of the view that the prosecution has established the case beyond reasonable doubt. The view taken by the Addl.
Sessions Judge Court, Aurangabad is in consonance with the evidence on record. The Sessions Court has properly appreciated the evidence and reached to the correct 8 AIR 1958 SC 22.
::: Downloaded on - 01/03/2014 00:13:25 ::: 43conclusion to convict the appellants / accused for the offence punishable u/s 302 r.w. 34 of IPC and other offences alleged against them.
30. Therefore, the inevitable conclusion is that the appeal sans merits. Criminal Appeal stands dismissed.
[V.M. DESHPANDE, J] [ S.S. SHINDE, J ]
.....
Kadam/*.
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