R/CR.A/1080/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1080 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
MOHAMMAD RIYAZ MANSURI MOHAMMAD SIRAJUDDIN MANSURI
Versus
STATE OF GUJARAT
Appearance:
(MR KUNAL B DAVE)(3706) for the PETITIONER(s) No. 1,2
MR BC DAVE(245) for the PETITIONER(s) No. 1,2
MR.MITESH AMIN, PP WITH MR L.B.DABHI, APP(2) for the
RESPONDENT(s) No. 1
CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 07/05/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. By way of this appeal, filed under section
374(2) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the “Code”), the
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appellants – accused have challenged the judgment and
order of conviction dated 29.06.2012, passed by
learned 4th (adhoc) Additional Sessions Judge,
Surat, (hereinafter referred to as the “trial
court”), rendered in Sessions Case No.228 of 2009,
whereby the trial court convicted the appellants –
accused under Section 302 of the Indian Penal Code,
1860 (hereinafter referred to as the “IPC”) and
sentenced to suffer imprisonment for life. However,
the trial court acquitted the appellants – accused
herein of the charges for the offence punishable
under section 498A of the IPC and sections 3, 5 and 7
of the Dowry Prohibition Act, 1961.
2. On 03.08.2009, a complaint came to be lodged by
deceased – Tarabegum @ Shabana Begum w/o Mohammad
Riyaz Masuri Mohammad Sirajuddin Mansuri before the
Limbayat Police Station, inter alia, stating that her
marriage was solemnized with accused No.1 Mohammad
Riyaz Mansuri Mohammad Sirajuddin Mansuri of village
Gajiyapur before five years in the year 2004. She was
having four children. Out of them three children had
died due to miscarriage and presently, her son
Mohammad Varis Mansuri, aged about two years, is
alive, who is staying with her. When they came to
Surat, the accused caused physical and mental
harassment to her and pressurized her to bring color
television and motorcycle from her parental home. On
03.08.2009, at about 10.30 hours in the morning,
when she was doing cooking, at that time, her husband
as well as her mother in law started tormenting her
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by asking her to bring the television and motorcycle
from her parental home. When she responded by saying
that from where her parents would bring the same, at
that time, both her husband and her motherinlaw got
provoked; her husband started beating her, and her
mother inlaw poured kerosene on her from the stove,
while her husband caught hold of her. Thereafter, her
husband ignited match stick and set her ablaze. She
has stated that as her body is entirely burnt in the
said incident, a 108 ambulance was called; she was
admitted at the Smimer Hospital. She has specifically
stated that she is lodging the present complaint in
presence of her uncle Mohammad Mumtaj Ali and
presently, her condition is normal. Accordingly, a
complaint was lodged by the Limbaya Police Station
and the same was registered being IC.R.No.220 of
2009 for the offence under sections 498A, 304B and
114 of the IPC and sections 3, 5 and 7 of the Dowry
Prohibition Act.
3. Upon registering the offences under sections
498A, 304B and 114 of the IPC and sections 3, 5 and 7
of the Dowry Prohibition Act against the accused, the
investigating officer has carried out the
investigation and after following the due procedure
of law, a chargesheet came to be filed before the
learned 9th Additional Chief Judicial Magistrate,
Surat. Since, the case was exclusively triable by the
court of Sessions, after providing papers under
section 207 of the Code to the accused, the same was
committed to the Sessions Court under section 209 of
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the Code. The same was registered as Sessions Case
No.228 of 2009. The charges vide Exh.4 under sections
498A, 304B and 114 of the IPC and sections 3, 4 and 7
of the Dowry Prohibition Act were framed. The
statements of the accused were recorded vide Exh.5
and 6. Thereafter, the learned Additional Public
Prosecutor, filed an application vide Exh.8 to add
section 302 of the IPC in the charges. Accordingly,
the charge was altered to section 302 of the IPC, as
the death of the victim – Tarabegum has been
occurred. The plea of the accused – appellants were
recorded under section 313 of the Code. The accused –
appellants pleaded not guilty to the charges and
claimed to be tried.
4. At the time of trial, in order to bring home the
charges leveled against the original accused, the
prosecution examined 20 witnesses as well as produced
26 documentary evidences.
5. At the end of the trial and after recording the
statements of the accused under section 313 of the
Code and hearing the arguments on behalf of the
prosecution and the defence, the trial court passed
the judgment and order as above.
6. Being aggrieved and dissatisfied with the
aforesaid judgment and order passed by the trial
court, the appellants accused have preferred the
present Criminal Appeal.
7. Mr.Dave, learned advocate for the appellants –
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accused has submitted that the trial court has
primarily recorded the conviction of the appellants
by placing reliance on the dying declaration. He has
contended that the same is doubtful since it does not
reveal the language in which the questions were
asked. He has submitted that there is a long duration
between the incident and the recording of the dying
declaration and hence, it is impossible for the
deceased – complainant to be in a fit state of mind
for giving the dying – declaration. He has submitted
that the prosecution has not proved the case beyond
reasonable doubt and if two opinions are possible in
this case, then benefit should be given to the
accused. He has submitted that since the deceased had
died due to burn injuries, the conviction of the
accused is required to be converted from section 302
to Section 304 PartI of the IPC. In support of his
submissions, learned advocate Mr.Dave has placed
reliance on the judgment dated 23.06.2014, passed by
this court in Criminal Appeal No.1409 of 2014.
8. Learned advocate Mr.Dave has vehemently
contended that it was not possible that the deceased
– complainant was conscious enough for recording her
dying declaration since the medical case papers
indicate that she received 92% to 96% burns injuries.
Looking to the depositions of the doctors that she
was half conscious, such a dying declaration could
not have been recorded in the manner suggested by the
executive magistrate. Mr.Dave has submitted that in
any case the sentence or punishment is unjustified,
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excessive, too harsh or severe on the facts and
circumstances of the case.
9. In the alternative, learned advocate Mr.Dave has
submitted that looking to the entire evidence, the
appellants cannot be convicted under section 302 of
the IPC but he has to be given benefit of section 304
PartI of the IPC and may be convicted for the
offence referred to therein.
10. Mr.Mitesh Amin, learned Public Prosecutor with
Mr.L.B.Dabhi, learned Additional Public Prosecutor
have supported the judgment passed by the trial
court. He has submitted that the span of marriage is
less than seven years and the demand of dowry is
established. He has submitted that the dying
declaration remains intact in which the deceased –
complainant has categorically implicated the accused.
He has submitted that initially, the history, was
recorded by the accused – PW5 as per the say of the
accused – husband, who admitted the deceased – his
wife in the hospital. Hence, in order to misguide the
prosecution, he had given such history. He has
submitted that there are two dying declarations in
the present case, one in the form of FIR lodged by
the deceased – complainant and the second is the
dying declaration recorded by the executive
magistrate and the same is produced Exh.26. Both the
dying declarations implicate the accused. Both the
dying declarations are not in any manner blemished
with, tutoring and the same are trustworthy. He has
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submitted that Forensic Science Laboratory (F.S.L.)
Report mentions the presence of kerosene at the scene
of offence. He has submitted that scene of offence
also reveals the presence of the iron stove whose cap
was unlocked. He has also submitted that there is not
a whisper about tutoring. Hence, the voluntary dying
declaration made by the wife implicating the husband
and her motherinlaw has to be believed. In this
view of the matter, he has submitted that the
judgment and order passed by the trial court may not
be disturbed and the sentence imposed by the trial
court may be confirmed.
11. In support of the judgment rendered by the trial
court, learned Public Prosecutor, Mr.Mitesh Amin has
contended that the findings of the trial court are
wellfounded as the trial court has carefully
scrutinized the testimonies of the witnesses as well
as the documentary evidence. He has stated that the
accused have murdered the deceased by setting her on
fire, after pouring kerosene on her body. He has
submitted that the act of the accused to set on fire
the deceased was with intention and knowledge to
cause her death and hence, the trial court is
justified in convicting the accused for the offence
under section 302 of the IPC.
12. Mr.Mitesh Amin, learned Public Prosecutor for
the respondent – State vehemently submitted that the
judgment and order recorded by the trial court
deserves to be confirmed, as there are relevant
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statements of the deceased in the form of FIR and
dying declaration, relevant depositions of medical
witnesses and material available on the record have
supported the case of the prosecution. Reliance is
placed by him on the testimony of PW6 (Executive
Magistrate), PW7 (Doctor), and PW3 (Scientific
Officer – F.S.L) of the deceased for proving
harassment and cruelty by the accused on the
deceased. He has supported the judgment of the trial
court by contending that the incident had taken place
within a short span of marriage life of five years,
and it is established on record that husband and
motherinlaw of the deceased used to demand articles
such as colour television and motorcycle. Therefore,
the trial court has rightly passed the judgment and
order of conviction against present appellants –
accused.
13. In view of aforesaid submissions, Mr.Mitesh
Amin, learned Public Prosecutor for the respondent –
State supported the judgment and order of the trial
court and has submitted that the same was passed
after appreciating the evidence adduced on record by
the prosecution and hence, no interference is called
for by this court. He has therefore, urged that the
criminal appeal is required to be dismissed and the
impugned judgment and order passed by the trial court
is required to be confirmed.
14. We have heard the learned advocate for the
appellants – accused and the learned Public
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Prosecutor for the respondent State and perused the
material on record with their assistance.
15. The prosecution case entirely hinges on the
dying declarations made by the deceased complainant.
In order to appreciate the rival contentions, it will
be necessary to have a closer look at the testimonies
of the witnesses in order to ascertain the sanctity
of the dying declarations. PW7, Dr. Kamal Amrutlal
Aarkman is examined at Exh.28. In his deposition, he
has stated that on 03.08.2009, when he was on duty,
at that time, at about 11.30, one patient viz.
Tarabegum Mohammad Iliyas was admitted in Casualty
ward. He has given primary treatment in the casualty
ward to her. Thereafter, she was shifted in the
burns ward where he and his colleague Dr. Upendra
treated her. Her history was recorded by Sandip Gupta
in the casualty ward. He has stated that the patient
had died due to 92% to 96% burns at about 11:40 hours
in the night. Upon showing Exh.25 – Police Yadi, he
identified the endorsement of “Patient is Conscious”
on it and also identified the signature of his
assistant Dr. Upendrabhai Patel. In his cross
examination, he has stated that the patient was very
serious. It is also deposed that when the patient was
under his treatment, during that period, no
government official had come to him to record her
statement. Thus, from his testimony, it emerges that
the deceased had received 90% to 96% burn injuries.
16. The next witness PW5, Sandip Balkrushna Gupta,
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is examined at Exh.22. In his evidence, he has stated
on 03.08.2009, at about 11:35 hours in the morning,
when he was on duty at the Smimer Hospital, one
patient Tarabegum was brought by her husband –
Mohammad Riyaz Mohammad Sirajuddin. He had given
history before him that on 03.08.2009, at about 10:30
hours in the morning, at Ratanjinagar, Limbayat, the
patient accidentally received the burns injuries
while she was cooking on stove. In his evidence, he
has stated that the patient was semiconscious and
had received 92% to 96% burns injury. Thus, from his
evidence, it reflects that the history was given by
the husband of the deceased – accused no.1 that on
03.08.2009, at about 10:30 hours in the morning, at
Ratanjinagar, Limbayat, the patient accidentally
received burns injuries while she was cooking on
stove. Thus, it is evident from his testimony that
the history was given by the husband of the deceased
to the doctor.
17. PW6, Zarin Humayu Mirza, Executive Magistrate,
Surat, is examined at Exh.24. In her evidence, she
has deposed that she has recorded the dying
declaration of the deceased – Tarabegum. She has
received the Police Yadi from the Limbayat Police
Station and accordingly, she went to the hospital for
recording the statement of Tarabegum. In her
evidence, she has emphatically stated that on
03.08.2009, at about 18:25 hours, she went to
the Smimer Hospital, Shara Darwaja, Surat for
recording the statement of the victim
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Tarabegum. On being asked as to where she
resides, she stated that at Ratanjinagar,
Limbayat, Surat. On being asked about the
incident, she stated that between 10.00 a.m.
and 10.30 a.m., her husband and her motherin
law set her on fire after pouring kerosene on
her body. Thereafter, her husband and her
relatives admitted her in the hospital for
treatment. In her evidence, she has stated that
she finished the recording of the statement of
patient Tarabegum at about 18:50 hours. In
her crossexamination, it is elicited that in
the yadi sent of Police SubInspector (Exh.25),
it was mentioned in it that on 03.08.2008, at
about 10:30 hours, the patient received the
burns injuries for unknown reason. It is
elicited that prior to recording of the dying
declaration, she has not taken any endorsement
from the doctor regarding the condition of the
patient whether she is conscious and is able to
give answers to her questions. She has further
stated that when she disclosed her identity,
the patient had accordingly given the reply.
Hence, she felt that the patient was in
conscious condition. It is further elicited
from her crossexamination that she had asked
the patient in both the languages i.e. Hindi
and gujrati and accordingly, after recording
the dying declaration, she had taken the thumb
impression of the patient on it. Thus, from the
deposition of the executive magistrate, it is
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elicited that she has not taken the endorsement
of any doctor regarding the condition of the
patient. However, her deposition reveals that
after ascertaining that the patient was in
conscious condition and was fit in responding
to her question, the dying declaration was
recorded. Accordingly, the deceased –
complainant had given the replies to her
questions implicating the present appellants –
accused.
18. Another witness PW16, Nitinkumar Dayaram
Patel, Scientific Officer, F.S.L. Laboratory,
Surat, is examined at Exh.44 on behalf of the
prosecution. In his evidence, he has stated
that he visited the scene of occurrence where
he found one iron stove with the cap lying
nearby it. It is also stated by him that beside
the stove, there was charcoalfurnace on which
rice cooker was kept. There was kerosene on the
floor. There was presence of burnt matchstick
and the match box at the scene of offence.
Thus, through the testimony of this witness,
the presence of uncapped kerosene iron stove is
established from the scene of offence. Nothing
adverse is elicited in his crossexamination.
19. The investigation officer (PW20), who has
recorded the F.I.R has been examined at Exh.55.
He has deposed that on 03.08.2009, he was
informed by the Police SubInspector, Padvina
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at 16:00 hours that the deceased had regained
consciousness, and hence, he rushed to the
Smimer Hospital to record her complaint and she
had accordingly narrated the incident involving
the accused, her husband and her mother in law.
In his crossexamination, it is elicited that
he had not met any doctor before recording the
complaint. He has stated that since he had
received the vardhi about the consciousness of
the deceased and, on the instructions of his
superior, he had gone to record the complaint.
He has denied the suggestion that the deceased
was not in conscious state. He has also denied
the suggestion that the complaint was given by
her nephew Mumtaz. He has also admitted that
he had not made an endorsement about the known
language of the complainant. From the overall
testimony of this witness, it emerges that
though the same is blemished with minor flaws,
the same is trustworthy and credible.
20. The prosecution has placed reliance on the dying
declarations in the form of complaint – Exh.56
recorded on 03.08.2009 and another dying declaration
(Exh.26) recorded by the executive magistrate for
proving the charge against the accused. Both the
dying declarations implicate the accused. Nothing
adverse suggesting anything contrary which affects
the sanctity of the dying declarations has been
brought out by the defence. It is also not alleged
that the dying declarations suffer from any tutoring.
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The dying declarations implicating the husband and
motherinlaw by the deceased – complainant are found
to be voluntary without being influenced by anyone.
The contention raised by the learned advocate for the
appellant that the dying declaration recorded by the
executive magistrate is liable to be ignored since as
per the deposition of the executive magistrate (PW
6), she has not ascertained the physical condition of
the deceased – complainant from the doctors does not
merit acceptance since it is settled law that, if the
person, who is recording the dying declaration is of
the opinion that the person, who is deposing is in
fit and conscious state to give the same, then such
dying declaration cannot be discarded on the ground
that it is not certified by the doctors.
21. In the present case, the dying declaration does
not suffer from any infirmity and the same is found
worthy of being relied for conviction. Most of the
witnesses examined on behalf of the prosecution have
turned hostile to the case of the prosecution. We
have also examined the yadi produced at Exh.25. The
same is sent by the Police SubInspector, Limbayat
Police Station to the executive magistrate. The same
bears the endorsement of the doctor “patient is
conscious: and the time recorded is 04.00 p.m. It
also bears the endorsement that “received on
03.08.2009, 18.00 p.m.”. Accordingly, the executive
magistrate, after receiving the yadi, has recorded
the dying declaration (Exh.26). The time of recording
the dying declaration shows that it is recorded
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between 18:25 to 18:50 hours. Thus, from the
aforesaid documentary evidence, it reveals that the
deceased – complainant was conscious at 04:00 p.m.
and accordingly, the executive magistrate (PW6) has
recorded the dying declaration of the deceased –
complainant at “18.25 hours”. Hence, from the
deposition of the executive magistrate as well as
documentary evidence, it reveals that at the time of
giving the dying declaration the deceased-complainant
was in conscious state and accordingly, she was in a
fit state of mind to give answers to the question put
by (PW6) the executive magistrate.
22. Reliance placed by the learned advocate for the
appellants on the judgment dated 23.06.2014 passed in
Criminal Appeal No.1409 of 2009 cannot rescue the
appellants – accused since the deceased in that case
survived for 20 days and died due to septicemia,
whereas in the present case, the deceased has died
within 12 hours after the incident took place. The
span of marriage undisputedly is less than seven
years.
23. The Supreme Court in the case of Lakhan Vs.
State of Madhyapradesh
, 2010(8) S.C.C. 514, in
which it was clearly mentioned that only on the
basis of the dying declaration, the accused may
be convicted. The Apex Court has observed thus:
“In view of the above, the law on the issue
of dying declaration can be summarized to
the effect that in case, the Court comes toPage 15 of 18
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true and reliable, has been recorded by a
person at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
In case, there are multiple dying
declarations and there are inconsistencies
between them, generally, the dying
declaration recorded by the higher officer
like a Magistrate can be relied upon,
provided that there is no circumstance
giving rise to any suspicion about its
truthfulness. In case, there are
circumstances wherein the declaration had
been made, not voluntarily and even
otherwise, it is not supported by the other
evidence, the Court has to scrutinize the
facts of an individual case very carefully
and take a decision as to which of the
declarations is worth reliance.”
24. Even though most of the witnesses examined
on behalf of the prosecution turned hostile to
the case of the prosecution, there are other
documentary as well as oral evidence available
on the record of the case in the form the of
the dying declaration, F.I.R. evidence of the
doctor and the investigating officer etc. which
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bring home the charges levelled against the
accused.
25. We are, therefore, of the considered opinion
that the prosecution has successfully established the
authenticity of the dying declarations. The findings
recorded by the trial court in convicting the accused
of the charges leveled against them are absolutely
just and proper and in recording the said findings,
no illegality or infirmity has been committed. We are
in complete agreement with the reasonings given and
the findings arrived at by the trial court. No
interference is warranted with the judgment and order
of the trial court.
26. In view of the above discussions, we are of the
opinion that the trial court has committed no error
in passing the impugned judgment and order. Hence,
the present appeal deserves to be dismissed.
27. In the result, the appeal fails and is
accordingly, dismissed. The judgment and order dated
29.06.2012 passed by learned 4th (adhoc) Additional
Sessions Judge, Surat, rendered in Sessions Case
No.228 of 2009 stands confirmed. Bail and bail bonds
of the accused, if any, stands discharged. Record and
proceedings be sent back to the concerned trial
court, forthwith.
(HARSHA DEVANI, J)
(A. S. SUPEHIA, J)
Girish
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FURTHER ORDER
After the judgment was pronounced and signed,
learned advocate Mr. Dave, while placing reliance on
the judgment dated 19.04.2016 passed in Criminal
Appeal No.1194 of 2011 has requested to make suitable
observations apro pos the life imprisonment awarded
to the appellantaccused and also for reviewing his
case by the appropriate authority. We are not
inclined to make any observation since the issue is
well settled by the Apex Court in the case of
Bhaikhon @ Bakul Borah Vs. State of Assam, reported
in JT 2013 (10) SC 373, wherein the Apex Court has
held life imprisonment means imprisonment for whole
of life subject to the remission power granted under
Articles 72 and 161 of the Constitution of India, and
it is left upon the discretion of the authorities to
exercise such power in appropriate case.
(HARSHA DEVANI, J)
(A. S. SUPEHIA, J)
Girish
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