Bombay High Court Imam Bashir Pathan-vs-The State Of Maharashtra on 27 March, 1997
Equivalent citations:1998 BomCR Cri
Author: N Chapalgaonker
Bench: N Chapalgaonker, S Mutalik
N.P. Chapalgaonker, J.
1. This is yet another case where the married woman lost her life because of the burns at her matrimonial house and her husband is charged of murder. The 4th Additional Sessions Judge, Beed convicted under section 302 and 498A of the I.P.C. and sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/-, in default to undergo R.I. for three months for the offence under section 302 and to undergo two years rigorous imprisonment and to pay fine of Rs. 1,000/-, in default to suffer R.I. for three months for the offence under section 498A of the I.P.C. Shafiya Begum w/o Imam Bashir Pathan and her husband (accused-appellant) were both residing at Beed Sangvi, Taluka Ashti. It is alleged that in the evening of 12th September 1991 accused returned home and asked his wife Shafiya to bring Rs. 10,000/- from her parents, since the accused has received a call for recruitment in the army. It is alleged that the wife replied that since only 8 days before a sewing machine is purchased by her father and donated to her, looking to the financial condition of her father, he is not in a position to satisfy his further demand. It is alleged that thereafter accused told the wife that if you do not bring the money then she will face the consequences. Thereafter, he took a bottle full of kerosene and poured it on the person of Shafiya and set her on fire. She was taken to Primary Health Centre at Ashti and later removed to Civil Hospital at Ahmednagar in the early morning of 13th September 1991. While she was under treatment, she met with the death on 19th September in the Hospital. However, before her death, on 14th September, First Information Report was recorded by the Police head-constable Subhash Kisan Jagtap and her dying declaration is reduced to writing by Executive Magistrate Shri Thorat. Prosecution mainly relies on these two documents under section 32 of the Evidence Act. The defence has examined one Shamrao Ganpatrao Nagargoje, a police constable who is said to have recorded dying declaration at Ashti itself.
2. When this appeal was heard by this Court on 26th February 1996 it was submitted by the learned Counsel for the appellant that the handwriting of the First Information Report reduced in writing by head-constable Subhash (P.W. 3) and that of dying declaration alleged to have been reduced in writing by Thorat (P.W. 8) appears to be one and the same and therefore, it needs to be examined by the handwriting Expert. This Court gave direction to the learned trial Judge to get an admitted handwriting of Thorat -Executive Magistrate by dictating the contents of Exh. 33 (alleged dying declaration) and send that alongwith disputed documents to the handwriting expert. After this was done the record is again remitted to this Court.
3. In a case where a woman dies at her matrimonial house, she is in a company adverse to her and in the circumstances the dying declaration assumes importance. If the dying declaration does not suffer from any infirmity and is found trust-worthy, the conviction can be based solely on such dying declaration. In such a case it is not proper to insist for any independent corroboration. However, the sanctity of a dying – declaration is dependent on circumstances surrounding it. The victim will not allow the real culprit to go scot-free and involve somebody who is innocent and in the expectation of the eminent death will have respect for truth. But the dying declaration should be free from any infirmity. Whenever a woman suffers from burns or other injuries and is taken to the Hospital, it is generally expected that the Doctor would ask for the history and would make a short note of the history on the case paper. This short note on the basis of information given either by the victim or by the near relations who have come to admit the victim, is first record of event. As soon as a person with severe burns is admitted in the Hospital, it is the duty of the Police machinery to see that the dying declaration is forthwith recorded. It is only when the persons competent to record dying- declaration are not available or the patient is not in a fit condition to make statement then only the dying declaration can wait. If there is long interval between the admission of the patient in the Hospital at the behest of the police machinery and the actual recording of the dying declaration then the possibility of the victim having been tutored cannot be ruled out. Such a delay in recording dying declaration will have to be explained by the prosecution. As pointed out by Supreme Court in Rabi Chandra Pradhan and others v. State of Orissa, recording of dying
declaration should preferably be in question and answer form. Though it is not a legal mandatory requirement, it is to ensure that the exact words used by the victim while giving declaration are reduced in writing and there is no room for colouring. Secondly, it will have to be ensured that at the time of recording of the dying declaration (if it is recorded by a Magistrate) no person other than the Magistrate and the Medical Officer should be there near the person giving dying declaration. This is to assure that the patient is neither tutored nor detered. These are essentials to attach credibility to dying declaration. Dying declaration should not be easily brushed aside on any flimsy ground but at the same time if the surrounding circumstances make that declaration doubtful then it will not be safe to act on it.
4. In the instant case we find that Shafiya was admitted firstly in Primary Health Centre, Ashti and then to Ahmednagar Hospital but there is no document in the form of admission ticket produced by the -prosecution which would give the case history given by victim Shafiya or the person who had brought her in the Hospital. At both these places – Ahmednagar and Ashti, many persons who are authorised to record dying declaration were available. But dying declaration was not recorded till 3 a.m. on 14th September i.e. 24 hours alter she was admitted in Ahmednagar Hospital. Even first information report which is in the form of another statement by Shafiya is dated 14th September 1991, minutes after the dying declaration alleged to have been recorded. Nothing has been brought on record by the prosecution as to why the dying declaration or the statement which has been taken to be the first information report was not recorded during the whole day of 13th September, when Shafiya was in the Hospital.
5. It has been solemnly stated on oath by the Special Executive Magistrate (P.W. 8) Shri Dnyaneshwar Thorat that he himself reduced in writing the statement of Shafiya. Categorical statement made is :
“Now I am shown the original statement of Shafiya and it is in my handwriting. It is at Exh. 33.”
Special Executive Magistrate has also deposed :
“Except me and D.M.O. nobody was present near Shafiya at the recording of dying declaration.”
He has again reiterated in the cross-examination that “dying declaration is in my own hand-writing.” The statement of Shafiya was also reduced in writing by Police head constable Subhash on the basis of which the offence was registered at Tophkhana Police Station, Ahmednagar at 00 number tor transmission to Ashti Police Station. It was alleged that the hand-writing of Exh. 17 and Exh. 33 appears to be one and therefore, the matter was remitted to the trial Court for recording evidence of handwriting expert, P.W. 8 Special Executive Magistrate Shri Thorat was recalled and he was asked to re-write the contents Exh. 33 before the Court and the said re-writing alongwith Exh. 33 and Exh. 17 was sent to the expert Shri PR. Dhotre, C.I.D., Aurangabad, who has, on examination, given report that the portions marked A-1 and A-2 in Exh. 17 and B-1 and B-2 in Exh. 33 are written by one and the same person and the portion marks B-1 and B-2 in Exh. 33 are not in the hand-writing of the person, who wrote portions C-1 and C-2 i.e. the admitted specimen hand-writing taken down by the learned trial Judge as per directions of this Court. This goes to show that the dying declaration was not reduced in writing by the Magistrate and it was written by the Police head-constable Subhash Jagtap. It is a serious infirmity which goes to the root of the credibility of dying declaration. We want to make it clear that we do not wish to lay down that dying declaration recorded by the Police head-constable is not acceptable but when the Magistrate tells the Court on oath that the dying declaration was recorded by him and there was nobody else except the Medical Officer near the bed on which the patient was lying and it was found that the contents were written by the head-constable, then the basic fact that such a deposition is really made to the Magistrate itself becomes doubtful. This is the reason which prevents us from relying on this dying declaration. A dying declaration can be oral and can be in writing and in different circumstances, different persons may record it. In a case Magistrate may not be available, a doctor may not be available, then the only reason that statement was reduced in writing by a Police Officer may not be, by itself, sufficient to discard it. Here the case is totally different. The person who claims to have heard the dying declaration and reduced it in writing is speaking a lie.
6. There are some more circumstances which renders impugned dying declaration as doubtful. We find that the language of Exh. 17 and Exh. 33 is similar in many respects. As was directed by the Supreme Court the dying declaration should have been in the question answer form or at least it should represent the manner in which the incident was narrated by the deponent. In the dying declaration the very first sentence is indicative of the normal practice of the Police to record a statement under Section 162. The sectence is ^^eh le> nok[kkU;kr vkS”k/k mipkj ?ksr vlrkuk tokc fygwy nsrs dh—**
Many identical sentences find place in both these documents. Since it is not reduced in question-answer form, it becomes doubtful as to what were exact words which deponent uttered. It has come in evidence that one Shamrao Nagargoje, Police head-constable who is examined as defence witness No. 1 had recorded dying declaration which is at Exh. 50, Shafiya had stated in this dying declaration that she was fast asleep and woke up finding that her sari has caught fire. Probable reason given by her is accidental fall of a kerosene lamp. This dying declaration has an endorsement by the Medical Officer of the Primary Health Centre, Ashti that while recording her statement, Shafiya was medically fit to depose. In the light of this statement coupled with the fact that the alleged dying declaration Exh. 33 was recorded 24 hours after the admission of the Shafiya in Ahmednagar Hospital impugned dying declaration Exh. 33 becomes doubtful.
7. Facts stated in the dying declaration and the fact that the declaration was made, both will have to stand scrutiny on the touch stone of probabilities. If we consider the surrounding circumstances, those also go against the prosecution. There is no evidence that there was a call for the recruitment in army, received by the accused. Though, there is some dispute as to when sewing machine was purchased by the lather of Shafiya and donated to her daughter and son-in-law but admittedly the demand was satisfied and there was reason for any grudge. The immediate cause as given by the prosecution is the demand of Rs. 10,000/-. It is not the case of prosecution that Rs. 10,000/- were demanded by the husband and the wife was sent to her parental house and since the demand was not satisfied within the reasonable time, the husband punished the wife with of death. The prosecution story is that Rs. 10,000/- were demanded and when the wife protested and said that you should not make a demand which is not capable of being fulfilled by her poor parents, accused appellant immediately poured kerosene and set her on fire. If anybody is set on fire after pouring kerosene the residues of the clothes wore by her give kerosene smell. This evidence is not available, since there is no report from the Chemical Analyser about the pieces of half burnt clothes which were found on the scene of offence. Even in the panchanama Exh. 12 there is no mention that the pieces of half burnt clothes were having kerosene smell. Panchanama speaks about the kerosene smell to empty bottle but in the cross-examination panch Suhalal (P.W. 1) states that the bottle was full with the kerosene and it had a cork stopper. Therefore, the story that the kerosene was poured on the person of Shafiya is also doubtful. We have reservations about the submission by the learned defence Counsel that it was an accidental fall of the kerosene lamp which has caused the fire. In such circumstances, the panchanama would have spoken about blackening of the kerosene lamp or damage caused to it. Nothing of the sort is on record. However, this would not help the prosecution.
8. It is true that the death has taken place in the matrimonial house. It is also true that the accused was naturally in the company of the deceased, at least some time before the incident. This all raises finger of suspicion towards the accused appellant. Suspicion however, strong cannot absolve the prosecution of its responsibility to prove the case against the accused by positive evidence. We are sorry to note that the investigating agency took the stand that no dying declaration is recorded at Ashti, whereas actually there was a dying declaration recorded by the Police head constable in the presence of Medical Officer and the document was withheld. Even if there were certain doubts about that statement, arrangement could have been made to record second dying declaration at Ahmednagar, which was not done at earliest. Special Executive Magistrate ventured to say that he himself has recorded after seeing the document Exh. 33 and was found to be speaking a lie and his assertion has been negatived by the expert evidence. Fate of investigation of crimes against innocent women lie in the hands of agency investigating them and Special Magistrates recording dying declarations, which are not only – important but in many cases only evidence available. If both of them do not have a respect for truth or are not attentive, vigilant and efficient in their working, the offences like this are bound to go unpunished.
9. We, therefore, allow this appeal and set aside the order of conviction and sentence recorded by the 4th Additional Sessions Judge, Beed on 7-1-1993 and we direct that the accused be set at liberty forthwith, if not required in any other crime. Fine amount if paid be refunded.
10. Appeal allowed.