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Mohd. Farroque S/O Moh. Munshi-vs-State Of Maharashtra on 30 November, 2009

Bombay High Court Mohd. Farroque S/O Moh. Munshi-vs-State Of Maharashtra on 30 November, 2009
Bench: A. P. Lavande, Prasanna B. Varale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 88 OF 2004.

Mohd. Farroque s/o Moh. Munshi,

aged about 44 years, Occupation

Teacher, R/o Firdos Colony, Hiverkhed

Road, Akot, District Akola, presently

at Central Prison, Amravati. … APPELLANT VERSUS

State of Maharashtra,

through Police Station Officer,

Police Station, Akot, Akola. … RESPONDENT ….

Shri A.M. Ghare, Advocate for the appellant.

Shri J.B. Jaiswal, Additional Public Prosecutor for the respondent. ….

CORAM : A.P. LAVANDE AND

PRASANNA B. VARALE, JJ.

DATE OF RESERVING JUDGMENT : 13TH NOVEMBER, 2009. DATE OF PRONOUNCING JUDGMENT : 30TH NOVEMBER,2009 JUDGMENT : (Per Prasanna B. Varale, J.)

Being aggrieved by the judgment and order dated 30 th January, 2004 passed by the First Ad hoc Additional Sessions Judge, Akola in Sessions Trial No. 226 of 1998 convicting the appellant for the offence punishable under Sections 498-A and 2

302 of the Indian Penal Code and sentencing him to undergo RI for one year and to pay fine of Rs. 500/-, in default of payment of fine, to suffer further RI for two months and to undergo imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine to undergo RI for two months, respectively; the appellant has preferred the present appeal.

2. The case of the prosecution in brief is as under :- The appellant/accused is charged for committing murder of his wife Rukhsana Parveen. She was married to the appellant/accused on 09.06.1991 and started cohabiting with the appellant at Akot. Right from the first year of the marriage itself, the appellant/accused started ill treating his wife on demand of money. Though some amount i.e. Rs.20,000/- was given by the brother of Rukhsana to the appellant/accused, he again started asking for money. For the demand of money, the appellant/ accused was prosecuted for the charge of offence under Section 498-A of the Indian Penal Code and because of intervention of elderly person, the matter was compromised between the parties. An agreement to that effect was recorded. On the fateful day i.e. on 19.05.1998, Rukhsana visited the house of her brother Syed 3

Ejajali and requested her brother for payment of Rs.5,000/- as directed by the appellant/accused. Rukhsana told her brother that for the marriage of the daughter of sister of the appellant/accused, the appellant asked her to get Rs.5,000/- from her brother and as such she asked for the said amount from Syed Ejajali. As Syed Ejajali was not having money, he was unable to accede to the request of his sister. Rukhsana left the house of her brother on the same day i.e. 19.05.1998 and returned to her matrimonial house which is at a distance of 20 kms. from the house of her brother. It is further the case of the prosecution that in the intervening night of 19th and 20th May 1998, Rukhsana Parveen was burnt. She was taken to Akola Hospital for treatment as she had received 90 per cent of burn injuries. A requisition was forwarded to Special Judicial Magistrate for recording the dying declaration of Rukhsana and the Special Judicial Magistrate further obtaining the certificate of fitness of Rukhsana from the Medical Officer recorded the statement (dying declaration) of Rukhsana which is at Exh.58 (1,3 and 4). In the said dying declaration, Rukhsana stated that while igniting mosquito coil, she was subjected to accidental fire. The Police Authorities of Police Station Kotwali, Akola registered a crime as 0/98. The 4

initial papers were then forwarded to Shri L.J. Shinde, PSI (PW-12) who was attached to Police Station, Akot and Shri Shinde, on receiving the papers, registered the offence vide Crime No. 125/1998 under Sections 307 and 498A of the Indian Penal Code. The printed FIR was prepared. Shri Shinde took over the investigation and proceeded with the investigation. The information was immediately forwarded to the brother of Rukhsana namely Syed Ejajali through Shri Nadeer Shah who went on motor cycle to inform Syed Ejajali. On receiving the information, Syed called one Shoiab Ali and along with him proceeded to Akot Primary Health Center. On reaching Akot, an information was received that the lady was shifted to Akola Hospital for medical treatment and as such Syed immediately left for Akola. Syed Ejajali reached Akola in the morning at 06:00 a.m. on 20.05.1998. Syed Ejajali visited his sister Rukhsana and on enquiry Rukhsana told him that her husband set her on fire and he pressurised her to give dying declaration to the effect that she was burnt by accidental fire while igniting mosquito coil. She further informed Syed Ejajali that her husband further threatened her that if she refused to give statement as per his will, he would kill both children. She further told Syed Ejajali that on the ground 5

that she failed to bring money, the appellant/accused beat her and poured kerosene on her person and set her on fire. Syed Ejajali made a request to police authorities by an application to record the dying declaration of his sister. The second dying declaration (Exh.37) was recorded by the Special Judicial Magistrate, Akola on 20.05.1998 at about 8 o’ clock. In the said dying declaration, Rukhsana stated that she was set on fire by her husband on the ground of non payment of money. PW-12 Shri Shinde, Investigating Officer took various steps of investigation such as drawing of spot panchnama, recording the statements of witnesses, collecting the other documentary evidence etc. Shri Shinde had been to the Government Hospital, Akola and made a request to Medical Officer to examine Rukhsana and to issue a certificate that Rukhsana is in a position to make statement. On receiving the fitness certificate, Shri Shinde then proceeded and recorded the statement of Rukhsana Parveen which is the third dying declaration (Exh.55). Rukhsana succumbed to the burn injuries on 31.05.1998 while she was taking treatment in the Government Hospital. After the death of Rukhsana, Shri Shinde added offence under Section 302 of the Indian Penal Code and after completing the investigation, submitted the charge sheet. 6

Since the offence under Sections 307 and 302 of the Indian Penal Code were exclusively triable by the Sessions Judge, the case was committed to the Sessions Judge, Akola. The learned Judge, on appreciation of the evidence, found that there was sufficient evidence to hold the appellant/accused guilty of the offence punishable under Sections 498-A and 302 of the Indian Penal Code and accordingly convicted him to suffer RI for one year and to pay fine of Rs. 500/-, in default of payment of fine, to suffer further RI for two months and to undergo imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine to undergo RI for two months respectively.

3. Shri A.M. Ghare, the learned Counsel appearing on behalf of the appellant/accused made a strong attack on the prosecution evidence. He further submitted that except the so called dying declarations, there is no evidence brought by the prosecution against the appellant/accused. The learned Counsel further submitted that the case of the prosecution rests only on circumstantial evidence and in view of the settled law, the prosecution has to prove the circumstances and the chain of the circumstances strong enough to leave every hypothesis of the 7

innocence of accused and on this touchstone if the prosecution evidence is looked at, the prosecution has utterly failed and as such submitted that the case requires interference at the hands of this Court. Shri Ghare further submitted that there are three dying declarations on record. The first Dying Declaration (Exh. 58) which was recorded by the Special Judicial Magistrate immediately after the incident clearly establishes that death of Rukhsana was accidental. He further submitted that the other two dying declarations involving the accused cannot be considered for more than one reasons. The learned Counsel submitted that two dying declarations involving the appellant/accused are under the pressure of PW-1 Syed Ejajali. He further submitted that these two dying declarations cannot stand in view of the judicial decisions also.

4. Per contra, Shri J.B. Jaiswal, the learned Additional Public Prosecutor appearing on behalf of the respondent/State, supported the judgment of the trial Court. Learned APP submitted that there is cogent and reliable evidence. He submitted that the first dying declaration (Exh.58) is under the pressure of the appellant/accused and as it was disclosed to PW-1 8

by the deceased that the threats were given by the accused that the accused would kill the children of the deceased and as such the first dying declaration (Exh.58) cannot be relied upon and rightly kept out of consideration by the learned trial Court.

5. In view of the rival submissions made by the learned Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the respondent/State, we proceed to consider the case at hand. It is true that the prosecution case mainly relies on the dying declarations. From the perusal of record, it is revealed that there are three written dying declarations; whereas two oral dying declarations. The other part of the evidence including certain documentary evidence with which we shall deal at the later stage. The prosecution, to prove Rukhsana Parveen died homicidal death, relied on the following circumstances.

6. The Postmortem Report (Exh.47) which is proved through PW-10 Dr. Abhijeet Vaidya. In so far as the Postmortem Report is concerned, PW-10 Dr. Vaidya deposed that he found the following injuries on the dead body of the deceased: 9

(i) Burn injury to head, neck and fact 2%. (ii) Right upper limb 5% (iii) Left upper limb 5% (iv) Anterior trank of 2% (v) Posterior trank 14% (vi) Perineum 1% (vii) Right lower limb 18% (viii) Left lower limb 18% He further deposed that as per his opinion, the cause of death was due to 77% burn injuries. Though this witness was subjected to cross examination by the defence, nothing tangible was brought on record. In view of the medical evidence on record, we find no difficulty to hold that deceased Rukhsana died on account of burn injuries suffered by her.

7. The next important question for our consideration is about the complicity of the accused. The prosecution mainly relies on the dying declarations i.e. Exhs.37 and 55. Exh.37 is the dying declaration which is proved by the prosecution through PW-11 Special Judicial Magistrate Ramesh Sawarkar. PW-11, in his deposition, stated that he received requisition from the police 10

authorities on 20.05.1998 for regarding dying declaration of Rukhsana. He further deposed that on receiving the requisition, he proceeded to the General Hospital, Akola and made a request to the Medical Officer who was present on duty at the relevant time for giving the certificate of fitness of the patient for making dying declaration. PW-11 further stated that in view to verify, he asked 2-3 questions to the patient so as to test whether the patient was capable of making statement. He further stated that he recorded the statement of patient as per her say, read over the same to the patient and the patient admitted the correctness. He further deposed that he obtained the thumb impression of the patient and also made endorsement. The prosecution has also placed on record the requisition (Exh.49). The other dying declaration is Exh.55 which is proved through PW-12 (L.J. Shinde). PW-12 who was the Investigating Officer, deposed that he had been to the Government Hospital, Akola in the course of his investigation. PW-12 further deposed that he made a request to the Medical Officer so as to issue the certificate about the fitness of Rukhsana and after receiving the certificat6e from Medical Officer, he recorded the statement of Rukhsana as per her say. He further deposed that the statement was read over to 11

Rukhsana and she admitted that the statement was written as per her say. He obtained the thumb impression of Rukhsana and made his endorsement.

8. The learned APP submitted that these are the two dying declarations which are of utmost importance so as to put the prosecution case about the complicity of the appellant/ accused. He further submitted that both these dying declarations give a clear cut picture that it is the appellant/accused who set the deceased Rukhsana on fire as deceased Rukhsana was unable to bring money from her parents as per the directions of the accused/appellant. Learned APP further submitted that the dying declarations were recorded by the Special Judicial Magistrate and the Investigating Officer respectively. He further submitted that both the officers are the independent witnesses and after verifying the fitness of the patient the statements are recorded. Learned APP further submitted that there is no variance in both of these dying declarations and submitted that in view of these dying declarations the complicity of the appellant/accused is proved by the prosecution.

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9. Shri A.M. Ghare, the learned Counsel for the appellant, per contra, heavily attacked these two dying declarations. He submitted that though these dying declarations were recorded soon after the incident, there is an inherent defect in these dying declarations. The learned Counsel further submitted that in view of the judgment of this Court, these dying declarations are not sustainable in the eyes of law. Shri Ghare placed reliance on the judgment of this Court in the case of Deorao Sonbaji Bhalerao and another .v. State of Maharashtra (reported in 2008 All MR (Cri) 1921) and one of us (Justice A.P. Lavande) is a party to the said judgment. This Court, while considering the issue in detail, held that :

“Section 273 of Criminal Procedure Code reads thus : “Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” A dying declaration recorded by a Magistrate is not recorded in the presence of the accused. But Sec.32(1) of the Evidence Act makes the same relevant and can be 13

proved by evidence and sanctity given to it is embodied in the maxim nemo moriturus praesumitur mentire, i.e. a man will not meet his make with lie in his mouth. That is why tests of oath and cross-examination are dispensed with. But then relevancy in evidence and proof by evidence are different things. Where accused is called upon to defend a charge under Sec.302, I.P.C., the burden of proof in the absence or presumption of law never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case, the accused can wait till the prosecution evidence is over and then show that the prosecution has not proved particular material facts through its prosecution witnesses who failed to describe the names and role of the accused in the offence of murder as told by the dying man to such a witness or a Magistrate who recorded the dying declaration. By merely exhibiting the document of dying declaration its contents and in particular the names of the offender/s and the role played by them in committing the offence of murder is not proved unless such witness or Magistrate vouchsafes before the trial court as to whom did the dying person named offenders. In Narbada Devi Gupta Vs. Birendra Kumar – AIR 2004 SC 175 : [2004(5) ALL MR (S.C.) 51], the apex court in paragraph 16 held thus : “The legal position is not in dispute that mere 14

production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the `evidence of those persons who can vouchsafe for the truth of the facts in issue’. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.”

10. The learned Counsel for the appellant submitted that in view of the judgment of this Court, both these dying declarations cannot be relied upon and they will have to be kept out of consideration. We find considerable merit in the submission of Shri Ghare. In view of the decision of this Court in Deorao’s case (cited supra), we are not in a position to place reliance on the two dying declarations. The dying declaration (Exh.58) is the dying declaration wherein Rukhsana gave the account of accidental fire and she has submitted that nobody is responsible for the said incident. The learned Counsel further submitted that in view of this dying declaration which is recorded immediately after the incident, there is no material against the appellant on record to connect with the crime. We are not in agreement with the 15

submission of Shri Ghare in view of the testimony of PW-1 Syed Ejajali and PW-2 Rehana Parveen . PW-1 Syed Ejajali deposed that since the marriage of his sister with the appellant in the year 1991, the appellant was ill treating his sister and was asking for money. He has deposed that he paid an amount of Rs.20,000/- to the appellant and thereafter the appellant maintained his sister properly for some period. Syed Ejajali further deposed that the appellant/accused again started ill treating his sister on the count of demand of money. He further deposed that because of beating and demand of money, the appellant was prosecuted for the charge under Section 498 of the Indian Penal Code. He further deposed that in view of the intervention of some elderly person such as Firoz Ali Asif Ali, the matter was compromised and an agreement to that effect was recorded. The agreement is placed on record. Perusal of the agreement shows that the appellant assured in the said agreement that the matter is compromised between Rukhsana and the appellant. It was further assured by the appellant that he would not beat or harass Rukhsana in future and also he would not demand anything from her. Syed Ejajali further deposed that in view of the compromise, his sister started residing with the appellant but there was no change in the 16

approach of the appellant. He further deposed that on 19.05.1998 Rukhsana visited him and requested for Rs.5,000/- as directed by the appellant but as he was not having the amount he was unable to give amount and Rukhsana returned back to her matrimonial home. He further deposed that on the very day, at the late hours i.e. 03:00 a.m., he received phone about burning of his sister and he immediately rushed to Akola Hospital. He further deposed that on his visit, Rukhsana told him that a declaration is made by her on the pressure of her husband. She further told to Syed Ejajali that her husband (appellant) told her to give a statement that she was burnt by accidental fire while igniting mosquito coil and if she did not state as per his wishes, he would kill her kids. Rukhsana further told to Syed Ejajali that she was beaten by the appellant on the ground of non payment of amount and thereafter she was set on fire by pouring kerosene. Though Syed Ejajali was put to searching cross-examination, he was not shaken at all. The version of Syed Ejajali in clear terms discloses that the first dying declaration of Rukhsana was under the pressure and threat of the appellant/accused. This dying declaration has not been accepted by the learned trial Court and the learned trial Court has rightly held that the dying declaration which is given 17

under threat and pressure of the appellant is not sustainable in the eyes of law. To connect the appellant/accused with the crime in question, in our opinion, the oral dying declaration made by the deceased Rukhsana to her brother PW-1 Syed Ejajali is a very important piece of evidence. The oral dying declaration made to PW-1 Sayed Ejajali is immediate disclosure which in no uncertain terms discloses the motive behind the act i.e. the non payment of the amount and the act of the accused i.e. setting Rukhsana on fire. This oral dying declaration to Syed Ejajali is supported by the other dying declaration made to PW-2 Rehana Parveen, sister of deceased. Rehana, in her substantive evidence deposed that when she had been to hospital on receiving a phone call from her brother about Rukhsana being admitted to the hospital, she attended her sister Rukhsana and had a talk with her. She further deposed that Rukhsana told her that she was set on fire on the ground of non payment of money. The omissions which were tried to be brought on record by the defence are minor one and they do not affect the credibility of these witnesses and as such there is no reason to disbelieve the versions of these witnesses. PW-1 Syed Ejajali and PW-2 Rehana Parveen are the reliable witnesses. In addition to the oral testimony of these witnesses, 18

the other material circumstance is the spot panchnama (Exh.30). Spot Panchnama (Exh.30) is proved by prosecution through PW-4 Ajay Dhande and the Investigating Officer L.J. Shinde. PW-4 makes a mention about the kerosene lamp, broken bqangle pieces, a kerosene can and stand of mosquito coil along with coil and match box on the spot of incident. PW-12 Lalit Shinde deposed that there was a smell of kerosene on the earth of the spot of incident. In our opinion, this is also one of the circumstances which advances the case of the prosecution.

11. Perusal of the statement of the appellant/accused under Section 313 of the Code of Criminal Procedure discloses that though the appellant/accused took the defence of the death of Rukhsana as an accidental death, however, the presence of appellant/acccused is not disputed. The presence of the appellant/accused on the spot of incident at the relevant time is also spelt out through PW-5 Sk. Gaffar and PW-6 Sk. Nadil. The omissions in respect of these witnesses are not on the material aspects and they are minor omissions.

12. Taking overall view of the evidence putforth by the 19

prosecution, in our considered opinion, the prosecution has successfully proved the offence under Section 302 of the Indian Penal Code against the appellant/accused. Insofar as the offence under Section 498-A of the Indian Penal Code is concerned, reliance has been placed by the prosecution upon the oral testimonies of PW-1 Syed Ejajali, PW-2 Rehana Parveen, sister of deceased and the documentary evidence in the form of the agreement as well as one letter which was written to PW-1 Syed Ejajali by her sister deceased Rukhsana, which is placed on record by the prosecution at Exh.25 clearly proves. In the said letter, Rukhsana informed her brother in regard to the demand of the appellant/accused and the reply given by Rukhsana that as the house was constructed by her relatives they were not in a position to give the money. She further informed her brother that she asked her husband to sell her ear rings. In view of the evidence mentioned above, in our opinion, the prosecution has successfully proved the charge under Section 498 of the Indian Penal Code against the appellant/accused.

13. Taking overall view of the evidence, in our opinion, there is no reason for us to interfere with the judgment and order 20

passed by the learned trial Court. The appeal lacks merit and is accordingly dismissed.

JUDGE JUDGE *rrg.

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