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Shaikh Afsar And Anr.-vs-State Of Maharashtra on 10 February, 2004

Bombay High Court Shaikh Afsar And Anr.-vs-State Of Maharashtra on 10 February, 2004
Equivalent citations:I (2005) DMC 710
Author: B Marlapalle
Bench: B Marlapalle, M Gaikwad

JUDGMENT

B.H. Marlapalle, J.

1. This appeal arises out of the judgment and order of conviction and sentence recorded on 22.11.1999 by the learned IInd Additional Sessions Judge, Aurangabad, in Sessions Case No. 215 of 1998. Both the appellants/original accused have been convicted for offence punishable under Section 302 and 498A read with Section 34 of the Indian Penal Code (“Code” for short). For the first offence, each of the appellants has been sentenced to undergo life imprisonment and to pay fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for six months and for the second offence each of them has been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to suffer further rigorous imprisonment for three months.

2. The prosecution story unfolds as follows : Tabassum–daughter of Mumtaz Begum, wife of Shaikh Naimoddin–was married to appellant No. 1 (original accused No. 1) about one and half months before the incident. Appellant No. 2 (original accused No. 2) is the maternal aunt of accused No. 1 and residing hi the same locality at Aurangabad. Though the accused No. 1 is a permanent resident of Kannad he was provided residential house by the in-laws and in the neigbourhood of Shaikh Habib (P.W. 5) who is married to the elder sister of the deceased. Accused No. 1 was working at a patrol pump at Aurangabad. Immediately after the marriage, the couple had stayed at Kannad for few days and thereafter they started residing in the house at Aurangabad. On 5.6.1998 between 8.30 and 9 p.m. the accused No. 1 stated that he did not like the deceased and, therefore, she must leave his company and wanted the deceased to leave immediately to her mother’s house which was in a different locality. The deceased replied that often the accused No. 1 was threatening on this count and, therefore, she would call her mother. On this reply, the accused No. 1 got angry, picked up kerosene can lying in the house, poured kerosene on the person of the deceased and the accused No. 2 who was standing nearby lit match stick and set the deceased on fire. At the first instance P.W. 5 Shaikh Habib saw the accused No. 2 leaving the premises (Wada) and, thereafter, he saw the accused No. 1 latching his house from outside. He heard the shouts of the deceased and, therefore, rushed towards his house and noticed that in the kitchen room the deceased was burning. He immediately went to his house, brought a quilt and covered the deceased with the same and, thus, extinguished the fire. However, at this point the deceased had received almost 100% burn injuries. On hearing commotion the wife of P.W. 5 Shaikh Habib, who is sister of the deceased, Khurshidappa and Anwariappa and Shaikh Habib inquired the cause of fire. The deceased informed them that it was the accused No. 1 who first gave her kick blows and poured kerosene on her person and subsequently the accused No. 2 lit the match-stick and set her on fire. A message was given to the parents of the deceased, they arrived within 15 to 20 minutes and by then, number of persons had gathered outside the house. The deceased was taken to the hospital by her mother. Shaikh Habib (P.W. 5) and she made a declaration to her mother on way to the Ghati Hospital. P.W. 8 Dr. Subhash Mandale, Casualty Medical Officer admitted the deceased in the emergency ward, recorded the history regarding the cause of burn injuries at Exhibit 40 and sent the patient to Burn Ward Nos. 22-23. He noted that the patient had sustained 100% burn injuries. Intimation was given to the police vide Exhibit 34 regarding the burning of the deceased and to record dying declaration. P.W. 6 Uttam Telure, Police Head Constable, made a station diary entry on the basis of the information given by the Police Head Constable Shri Jadhav on phone (Exhibit 34) and subsequently intimation was passed on to PSI Madhav Patil (P.W. 11) who took over the investigation. P.W. 7 Shaikh Noor Ahmed Shaikh Sardar was the Panch for the spot Panchanama at Exhibit 37. P.W. 3 Shriram Ingle, Special Executive Magistrate, recorded the dying declaration at Exhibit 27 and a copy of which was also produced at Exhibit 29. Subsequently, P.W. 11 Madhav also recorded his dying declaration at Exhibit 52 on the patient being in conscious and fit condition to make a statement as certified by Dr. Kavita Bukke (P.W. 9). The statements of the witnesses were recorded. Prior to that, Exhibit 52 dying declaration was recorded. Crime for offence punishable under Sections 307, 498A read with Section 34 of the Code came to be registered. While under treatment, Tabassum died on the next day i.e., on 6.6.1998 in the early hours. Therefore, the offence came to be converted under Section 302 of the Code. Inquest at Exhibit 22 was drawn and the dead body was sent for post-mortem which was carried out by Dr. Kailash Zine (P.W. 1), who signed the post-mortem notes at Exhibit 18 and the cause of death came to be recorded as shock due to burns.

3. On completion of the investigation, charge-sheet was submitted to the Judicial Magistrate, First Class, Aurangabad, who committed the accused to the Sessions Court as the charge was exclusively triable by the Sessions Court. Charge at Exhibit 3 was framed. The defence as is noted from the cross-examination of the witnesses had taken a plea of alibi i.e., at the first instance the accused No. 1 was in Kannad at the relevant time and accused No. 2 was in her own house and she had not come to the house of the accused No. 1. However, through the evidence of D.W. 1 Hidayatkhan the defence took a plea that the deceased had committed suicide and she implicated the accused in the oral dying declaration as she was tutored by her mother while she was taken to the Ghati Hospital in a rickshaw. This defence has been turned down by the Trial Court and it has been held that the prosecution proved its case beyond reasonable doubt on the basis of three written dying declarations i.e., Exhibits 27 or 29, 40 and 52.

4. There is no dispute that Tabassum died because of 100% burn injuries. It was not an accidental death.

5. Mrs. Ansari, learned Advocate appearing for the appellant-accused, submitted that the prosecution had failed to prove its case on the basis of the circumstantial evidence and the dying declaration as relied by the Trial Court cannot be accepted as reliable piece of evidence in support of the prosecution case. She submitted that the dying declarations recorded by P.W. 3 Ingle suffered from major infirmities and the Medical Officer i.e., P.W. 9 Dr. Kavita Bukke did not state that when P.W. 3 Ingle had recorded the dying declaration she had endorsed about the patient being in fit condition. The oral dying declarations as purportedly made to Shaikh Habib and disclosed by Anwariappa as having been told in her presence to Khurshidappa could not be relied as they were either close relations or gotup witnesses. There was no complaint made by the deceased prior to the date of the incident regarding ill-treatment or harassment by any of the accused. For the first time a complaint came to be made through the dying declarations. Mrs. Ansari also urged before us that even otherwise if the prosecution case is taken as it is, there is nothing that has been proved against the accused. In a short span of married life i.e., one and half months the accused No. 2 had nothing to do with the marital life of the couple when she was staying in her house in Qaisar colony. Her presence at the spot of the incident is not proved by reliable evidence and the circumstances relied upon by the prosecution do not establish her presence beyond doubt at the spot. There is no motive which could be attributed to accused No. 2 as she is not a family member in the strict sense for the couple. It was lastly urged by the learned Counsel for the appellants that by taking into consideration the status of accused No. 2 a sympathetic view is required to be taken by this Court in awarding the sentence.

6. Regarding the evidentiary value to be attached to the dying declarations, the law has been well settled by the Constitution Bench of the Supreme Court in the case of Laxman v. State of Maharashtra, III (2002) CCR 247 (SC)=V (2002) SLT 49=2002 (6) SCC 71. As noted earlier the prosecution case consists of three written dying declarations and two oral dying declarations. We have gone through the evidence of P.W. 3 Shriram Ingle as well as the dying declaration at Exhibits 27 and 29 recorded by him. We agree with the objections taken by the defence regarding its validity and reliability. We, therefore, do not think it safe to consider the said dying declaration. However, the earliest dying declaration as came through the evidence of Dr. Mundale (P.W. 8) does not stand on the same footing. He stated in his deposition that when the deceased was brought to the hospital he was on duty in the emergency ward. He examined the patient who had suffered 100% burn injuries and asked the cause for the said injuries. He was informed by the deceased herself that her husband had poured kerosene on her person and the accused No. 2 i.e., Khalasas of deceased, who was present there lit a match-stick and set her on fire. The witness had brought the original register before the Trial Court and at Exhibit 40 was the said entry. It reads as follows:

“History told by patient. History of burn by husband 9 p.m. today. Husband poured kerosene on her body. Khalasas has lighted the stick husband was not liking the wife 100% burns.”

The doctor also stated that no tranquillizer was given though pain killer was given. The patient was able to make statements when she was questioned about the case of burn injuries. This evidence of the doctor went unshaken in the cross-examination.

7. On the basis of the history recorded by the Medical Officer an intimation was given to the police at Exhibit 34 which has been proved through the testimony of P.W. 6 PSI Telure. P.W. 11 Madhav Patil, PSI, came to the hospital and met P.W. 9 Dr. Bukke. He asked the doctor about the condition of the patient and when the patient was found in a fit condition to make statement, he recorded the dying declaration (Exhibit 52). Dr. Buke (P.W. 9) in her evidence before the Trial Court stated that PSI Patil had contacted her, she examined the patient, issued the fitness certificate and accordingly PSI proceeded to record the dying declaration. The said certificate is at Exhibit 45 i.e., a copy of the letter addressed by the Police Inspector to the Medical Officer. Thus, the dying declaration recorded by PSI Patil at Exhibit 52 has been duly supported by the Medical Officer Dr. Buke (P.W. 9).

8. Exhibit 52 states that the deceased was in the house with accused No. 2. Accused No. 1 told the deceased to leave the house as he did not like her. The deceased replied that the accused No. 1 had been often threatening her on that count in the past and, therefore, she would call her mother. On this reply, accused No. 1 got angry, picked up the kerosene can and poured kerosene on her person and accused No. 2 lit the match-stick and set the deceased on fire. Both the accused latched the door from outside and fled. She also disclosed that Khurshidappa, Shaikh Habib (P.W 5) and P.W, 4 Anwari, her sister as well as Yusuf arrived at the spot after hearing her shouts and they opened the door and extinguished the fire, After some time, the parents of the deceased came and she was shifted to the hospital. We must also note at this stage that as per the register of the hospital (Exhibit 40), it was Shaikh Habib who got the deceased admitted in the hospital. We are, therefore, satisfied that both the written dying declarations at Exhibits 40 and 52 are genuine, reliable and these are the voluntary statements made by the deceased before she breathed her last. In this view, we are fortified by the decision in Vidya Devi v. State of Haryana, I (2004) DMC 277 (SC)=I (2004) CCR 178 (SC)=I (2004) SLT 629=2004 (1) Supreme 513.

9. We have also noted that the oral dying declaration coming through the evidence of P.W. 4 Anwari and P.W. 5 Shaikh Habib as well as P.W. 2 Mumtaz-who is the mother of the deceased. P.W. 4 Anwari and P.W. 5 Shaikh Habib were present at the spot earlier in time and they had also extinguished the fire and, therefore, the disclosure made to them by the deceased would carry more weight than the disclosures which came through the evidence of P.W. 2 Mumtaz. Anwari in her depositions before the Trial Court stated that she was staying in the neighbourhood of accused No. 1 at the time of the incident and while she was in her house she heard the shouts at about 9 p.m. calling for help. She came out of her house, noticed that some persons had also came there and assembled in front of the house of accused No. 1 and therefore, she entered the house of the deceased. She noticed that the deceased was lying on the ground with burn injuries. P.W. 5 Shaikh Habib, Khurshidappa and sister of Tabassum were present. Khurshidappa questioned Tabassum as to how she had sustained the injuries. Tabassum replied that her husband told her that he did not like her and he kicked her. She said that she would call her parents. He got angry, he poured kerosene on her person and, thereafter, the accused No. 2 lit a match stick and set her on fire. Both the accused latched the house from outside and ran away.

In her lengthy and searching cross-examination conducted by the defence, nothing has come up so as to disturb her testimony. A suggestion was given to her that she was not in her house at the relevant time which she flatly denied.

10. Now coming to the testimony of P.W. 5 Shaikh Habib he stated that the accused No. 1 and the deceased were staying in the neighbourhood in the premises owned by the in-laws of accused No. 1. The marriage had taken place one and half months prior to the date of the incident. He further stated that the deceased and accused No. 2 used to quarrel regularly. On the date of the incident he was on duty but had returned home between 8.30 and 8.45 p.m. had removed his shirt and kept on the wall. He told his wife to prepare food. While his wife was preparing food he was waiting near the door and at that time he saw accused No. 1 coming outside his house. He went inside the house and saw through the gap of the door of his house that there was fire in the house of Tabassum. Thereafter he came out of the house and saw accused No. 1 latching the door of the house from outside and running away in haste. He heard the shouts calling for help from the house of accused No. 1 and, therefore, he opened the latch of the door of the house of accused No. 1 and peeped inside. He saw Tabassum in flames, he took quilt, threw it on the body of Tabassum and extinguished the fire. In the meantime, Khurshidappa and Anwari assembled in the Wada. He himself and Khurshidappa questioned Tabassum as to what had happened and she told them the same disclosure “Her husband told her that she does not like her to which she said she would call her parents. Accused No. 1 questioned her if she has threatened him and thereafter kicked and poured kerosene on her person while accused No. 2 Gauribegum set her on fire.” This disclosure regarding the cause of death remained unchallenged in the exhaustive cross-examination the witness was subjected to by the defence. The consistent disclosured remained unshaken and it is in line with the written dying declarations subsequently recorded at Exhibits 40 and 52.

11. The defence did not lead any evidence in support of plea of alibi of accused No. 1. However, it had examined D.W. 1 Hidayatkhan who claimed to have driven the rickshaw to the Ghati Hospital in which Tabassum was carried. He stated in his depositions that the mother of the deceased i.e., P.W. 2 Mumtaz was tutoring her and threatening her that she would get down from the rickshaw if the deceased did not implicate the accused. This evidence has been disbelieved by the Trial Court in view of the antecedents of this defence witness. He admitted that he was one of the prisoners in Harsul jail along with accused No. 1 and his statement was never recorded by the police during the course of investigation. In his cross-examination he admitted that for the first time he was disclosing before the Court what the deceased was tutored by her mother in the rickshaw which he drove to the Ghati hospital. We agree with the view taken by the Trial Court in discarding this witness of the defence.

12. Now coming to the presence of accused No. 2 at the spot, we have at the first hand the testimony of P.W. 5 Shaikh Habib who had seen he leaving the house of the accused No. 1 just before he saw the accused No. 1 latching the house from outside and heard the shouts of the deceased for help from inside the house. The deceased when questioned by the doctor regarding the cause of burn injuries at the first instance disclosed that the accused No. 1 poured kerosene on her person and accused No. 2 had lit the match stick and set her on fire. Thereafter both of them had run away. This accused No. 2 has been referred as Khalasas by the deceased before the Medical Officer.

However, it has come in the evidence that the accused No. 2 was not staying in the house of accused No. 1 and the deceased as a family member and she has her own house in Qaiser colony. Even in the disclosure which has come by way of dying declaration made by the deceased nothing has been attributed to accused No. 2 regarding cruelty or harassment and, therefore, we are satisfied that there is no evidence in support of the charge under Section 498A of the Code against accused No. 2. She deserves to be acquitted from the said charge.

13. Tabassum died a homicidial death as has been proved through the testimony of Dr. Kailash Zine (P.W. 1). In the post-mortem notes at Exhibit 18 he had recorded the injuries and the deceased had suffered 100% burns. The cause of death was recorded as shock due to burns. A suggestion was made that 100% burns could be suffered by way of suicide. This was a general question and the defence did not ask a specific question to the doctor as to whether the deceased died a suicidal death. On the other hand, the written as well as oral dying declarations have unerringly proved that the death is homicidal and it was caused by the accused. P.W. 5 Habib specifically stated that there was a common wall between his house and the house of the accused No. 1. He also stated that he had to break open the house after hearing the shouts of Tabassum for help from inside the house. The dying declarations–oral as well as written–consistently stated that both the accused after setting the deceased on fire had latched the house from outside and ran away. If the defence story was of a suicidal death there was no reason for any of them to latch the house from outside and leave the house in such suspicious circumstances. On the other hand, at least the husband would have tried to extinguish fire as a natural human conduct and approached the police station or taken the deceased to the hospital for treatment.

14. In the result, the appeal succeeds partly. The accused No. 2 is acquitted of the offence punishable under Section 498A read with Section 34 of the Code. The conviction and sentence of both the accused under Section 302 read with Section 34 of the Code is hereby confirmed. In addition, the conviction of the accused No. 1 for offence punishable under Section 498A of the Code is also confirmed. The accused No. 1 to suffer the sentences concurrently. The bail bonds of accused No. 2 are hereby cancelled. Accused No. 2 is directed to surrender for undergoing the sentence.

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