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Sheikh Rashid S/O Sheikh Yakub-vs-The State Of Maharashtra on 4 October, 2011

Bombay High Court Sheikh Rashid S/O Sheikh Yakub-vs-The State Of Maharashtra on 4 October, 2011
Bench: P.V. Hardas, S.B. Deshmukh

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 432/2005.

Sheikh Rashid s/o Sheikh Yakub

aged 34 years, Occu: Private service,

R/o: Narkhed, District: Nagpur.

…Appellant.

VERSUS

The State of Maharashtra,

through PSO, Narkhed.

..Respondent.

….

Mr. S.G.Loney, Advocate for the appellant.

Mr. R.S.Nayak, APP for the respondent.

…..

CORAM P.V.HARDAS & S.B. DESHMUKH, JJ

:

DATE : 4.10.2011

ORAL JUDGMENT (PER S.B.DESHMUKH, J)

The appellant, who stands convicted for the offence punishable under sections 302 and 498 A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5000/- with default stipulation (for the offence under section 302 IPC) and for three years rigorous imprisonment and to pay fine of Rs. 1000/- with default stipulation (for the offence under section 498A IPC), is in appeal under section 374 of the Code of 2

Criminal Procedure. The Judgment of conviction and sentence has been rendered by the 5th Additional Sessions Judge, Nagpur in Session Trial No. 67/98 on 9.8.2005.

2. Prosecution case, briefly stated, is that, on 15.8.1997 Shaikh Ibrahim lodged an oral report at Police Station, Narkhed that his sister-in-law viz. Rehana died on account of burn injuries at her house in zopadpattti Narkhed, which was reduced into writing by P.S.I., Mahatale. The First Information Report lodged by Shaikh Ibrahim has set the criminal law in motion. Initially, accidental death was registered. Mr. Mahatale- P.S.I., went to the spot of occurrence. He found one woman was lying burnt and dead inside the house. This was a house of appellant, who is hereinafter referred to as ‘accused’. The dead woman Rehana was his wife. A small boy viz. Irshad – son of deceased and accused, was present. He told to P.S.I., Mahatale that accused poured kerosene upon the person of his mother (Rehana) and went away. He also disclosed that before this also his father had beaten his mother. P.S.I., Mahatale, took down the report of the small boy Irshad, obtained thumb impression of Irshad and he went back to the Police Station, Narkhed and registered crime No. 200/97. Printed FIR was 3

prepared by him. He has reported the matter to the Police Inspector at Narkhed Police Station. Two constables were deputed to guard the dead body of Rehana. On the next day i.e. 16.8.1997 P.S.I., Mahatale again went to the spot along with the panch witnesses and Shaikh Ibrahim – the first informant. Scene of offence panchanama was drawn. One kerosene oil can having some kerosene, simple earth, kerosene mixed earth, match box, ash, broken bangles and one empty kerosene can were seized under the seizure panchanama. Inquest panchanama was also held on the dead body. The dead body of Rahana was forwarded for autopsy along with the letter. Mr. Mahatale – P.S.I., recorded the statements of the witnesses. The accused was arrested. The clothes on the person of the accused, were seized by drawing the panchanama. Incriminating articles were forwarded to the chemical analyser. In the meanwhile, post mortem was conducted on the dead body by the Medical Officer. The post mortem report was obtained by the Police. Investigation carried out, revealed that deceased Rehana was subjected to ill-treatment by the accused. Earlier, at the instance of deceased Rahana Crime No. 172/97 was registered against the accused under section 498 A, IPC at the Police Station, Narkhed. It was revealed during the 4

course of investigation that on the date of the incident, accused set her on fire pouring kerosene on her person. Rehana had sustained 100% burn injuries and succumbed to burn injuries. On satisfaction that there is sufficient evidence against the accused for commission of an offence punishable under section 302 of IPC, charge sheet (Exh.11) was presented before the learned Judicial Magistrate, First Class, Narkhed against the accused. The learned Judicial Magistrate, First Class, Narkhed, committed the case to the Court of Session.

After committal of the case, learned 6th Additional Sessions Judge, Nagpur (P.R.Bora,J) framed charge on 19.6.2002 against the accused for the offence punishable under section 302 IPC to which the accused pleaded not guilty and claimed to be tried. Record shows that Exh.25 is the charge framed on 19 th July, 2004. This document shows that charge for the offence punishable under sections 498 A and 302 IPC was framed against the accused by the Additional Sessions Judge, Nagpur (R.G.Deshmukh,J). This charge was read over and explained to the accused in vernacular to which the accused denied and claimed to be tried and, therefore, was tried.

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3. We have heard the learned counsel for the parties at great length.

4. Mr. Loney, learned counsel for the accused, made various submissions challenging the conviction and sentence by the learned trial Court. According to Mr. Loney, the learned counsel for the accused, the case of the prosecution revolves around the evidence of P.W. 1 Irshad – a child witness. His principal contention is that the evidence of child witness P.W.1 Irshad, ought not to have been accepted by the learned trial Judge. The contention of Mr. Loney, the learned counsel for the accused, has been refuted by the learned APP. According to him, Irshad was around ten years old on the date of recording his oral evidence before the Court and he was capable of understanding the sanctity of oath. In substance, he supported the Judgment of the learned trial Judge and evidence of P.W.1 Irshad.

5. To consider the submissions of the learned counsel, we shall first deal with the submissions of the learned counsel regarding appreciation of evidence of a child witness. 6

6. Mr. Loney, learned counsel appearing for the accused has admitted that on the date of occurrence i.e. on 15.8.1997 P.W.1 Irshad was 3 to 3 ½ years old. Mr. Loney, learned counsel for the accused, in support of his submission, relied upon the Judgment of the learned Division Bench of Patna High Court in the matter of J. Lodhin vs. State, reported in Patna Series, 217. We find that the appellant, in that case, was convicted for the murder of wife of Budharam Lodhi. The said murder was allegedly committed by another woman viz. Jalwanti Lodhin with a hammer (weapon) while deceased was asleep. Inquiry thereon on the lodgement of fard- beyan, under Chapter XVIII of the Code of Criminal Procedure, was conducted and ended in discharge of the accused. The said order was set aside by the Additional Deputy Commissioner of Singhbhum and accused therein was committed for trial. fifteen witnesses were examined in the court of session. Learned Division Bench recorded that most important witness there, in that case, was Chanda (P.W.11) daughter of deceased and incidentally she was a sole eye witness to murder of her mother. P.W.11 Chandra, in that case, was 6 or 7 years old. It has been noticed by the learned Division Bench of Patna High Court that Chanda (P.W.11) has gone back on her statement made before the 7

committing Magistrate and has deposed that her mother fell down from the roof and died and that she had been threatened by the police to make statement against the accused. The learned Division Bench has made a remark, regarding this witness in that case, that the said witness is capable of making incorrect statement whenever she chose to do so.(Judgment of the court, in that case, was wrote by Banerji, J). With the assistance of Mr. Loney, learned counsel for the accused, we have seen the observations of the learned Division Bench at page 224 of the said Judgment, copy of which has been supplied to us by Mr. Loney. The Division Bench has appreciated the evidence of P.W.11 Chanda. That the said witness had given complete go-by to her previous statement and added that police had instructed her to say so. The very inconsistent and improbable statements were made by the witness and, therefore, were hardly reliable. Reference was made to Section 118 of the Evidence Act. The observation was that she was a competent witness to give evidence in court, as it appears from her deposition. Reference was also made that the said child witness could understand the questions put to her and gave rational answers thereto. The Court made reference to its earlier Judgment (1938) AIR (Patna) 153, 158, in the matter of Darpan Potdarin vs. Emperor. It was held in that 8

case that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. The Court further observed that ” I would rather go further and advise close scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law”. Another Judgment of the learned Division Bench of Lahore High Court in the matter of Abbas Ali Shah vs. Emperor reported in (1933) AIR (Lah.), 667 has been referred to. There it was observed that the children are most untrustworthy class of witnesses and it is found from common experience that they often mistake dreams for reality, glibly as their own knowledge what they have heard from others, although intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy. Same judgment has also made reference to observations of an eminent author which has been pointed out to us by Mr. Loney, the learned counsel for the accused, which we would like to reproduce as below.

“If a child, which has itself seen something of the occurrence, hears these conversations, they become deeply engraved on its own mind and ultimately it believes it has itself seen what the 9

others have related.”

The learned Division Bench, on the basis of evidence in that case, reached to the conclusion that the said child witness P.W.11 Chanda heard different versions from the crowd which had gathered at the time of the incident and drew her own inferences from her imagination that her mother had been killed by the accused. In the matter of Arbind Singh vs. State of Bihar, reported in AIR 1994 Supreme Court, 1068, Mr. Loney, learned counsel for the accused submitted that the child witness, in that case, was of 5 years old, a daughter of deceased. Apparent traces of tutoring on aspects of method adopted for killing or as to the cause why her mother was killed by her father, were considered by the Court for reaching to the conclusion that accused therein in that case, needs to be acquitted of the charge of murder by giving benefit of doubt. That case was based on the evidence of P.W.2 Rupamkumari- a child witness, a daughter of deceased. There in that case, incident did occur in the night. The child witness claims that she was awakened by noise of quarrel and has seen her father tying and nailing her mother before hanging her. At the date of incident, the said child was 5 years old. When evidence was recorded, she was aged 9 years. Most importantly, what we have noticed from the 10

Judgment of Arbind Singh, is that the finding of the Hon’ble Supreme Court that the learned trial Judge did not undertake a ‘voir dire’ before recording her evidence on oath although he notes that she was capable of understanding and answering the questions. Immediately after the incident, the child witness was interrogated. The child witness was weeping and, therefore, her statement was not recorded. Thereafter, the statements of said child witness were recorded on 25th October, 1984, 28th October, 1984 and on 5th November, 1984, the last being under section 164 of the Code of Criminal Procedure. The incident, in that case, did occur on the night between 23rd and 24th February, 1984. It is recorded by the Hon’ble Supreme Court that in first statement Rupamkumari (P.W.2) a child witness,in that case, did not say that her mother was hanged. Subsequently, she said she was hanged by electric wire. She kept changing her versions. Thereafter, according to the said witness, hanging was with the help of jute string. In the statement recorded under section 164 of Cr.P.C. she had stated that her father had thrown jute string around the neck of her mother and killed her. On this background, on the appreciation of her evidence, the Supreme Court reached to a conclusion that these statements of P.W.2 Rupamkumari are inconsistent. Further, it was found by the 11

Hon’ble Supreme Court from the evidence of the said child witness that there were traces of tutoring on the certain aspects of the case. Appreciating her entire evidence and sifting the said evidence with other evidence brought on record in that case, the Court reached to a conclusion that it is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring.

7. Mr. Loney, the learned counsel for the accused placed reliance on the case of State of Assam vs. Mafizuddin Ahmed, reported in (1983) 2 Supreme Court Cases, 14. Mr. Loney, took us to paras 14 and 15 of this Judgment. It seems that there P.W.7, son of deceased, was 7 years old. The High Court, in that case, had observed that the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring. Noticing this observation of the High Court in para no.15 of the Judgment, the Hon’ble Supreme Court held that a bare perusal of the deposition of P.W.7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own 12

uncle. The Court, therefore, reached to a conclusion that said child witness was not a free agent and has been tutored at all stages by someone or the other. Bhagwan Singh and others vs. State of M.P., reported in (2003) 3 Supreme Court Cases, 21 was also relied upon by Mr. Loney, learned counsel for the accused. In the case of Bhagwan Singh, the child witness was about 6 years old. The date of occurrence was the intervening night of 28th February, 1984/ 29th February, 1984. The statement of the child witness (P.W.19) was recorded on 14.2.1985, after about one year or so. It was noticed by the Hon’ble Supreme Court that during this intervening period there was sufficient time to tutor him for involving the accused by names. On the background of the facts and material in that case, it was observed that the law recognizes a child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness, whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therein, in para 20 of the Judgment, the Hon’ble Supreme Court found that the child witness was vacillating in the course of 13

his deposition, even though absolute consistency in deposition of the child witness of six years old cannot be accepted on facts, the court was of the opinion that there was a possibility of his being tutored. There, Agyaram, maternal uncle of the child, who first met the child witness after the incident, took him along with his younger brothers to his father’s village. However, the prosecution did not produce the said person Agyaram as a witness in the court. The Hon’ble Supreme Court was, of the opinion, that it was most unlikely that if the child had seen the incident and identified three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. Factually, in that case, the mother of that child witness, according to the prosecution case, had gone to stay with her deceased father leaving the said child witness and two younger brothers of that witness, which was not appreciated by the Hon’ble Supreme Court. Conclusions, in that case, have been drawn by the Hon’ble Supreme Court in paragraph no.22 based on the evidence that it is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. 14

8. At this stage, it would be appropriate for us to make a reference to the Judgment of the Hon’ble Supreme Court in the case of Radheshyam Kejriwal vs. State of West Bengal and another, reported in (2011) 2 Supreme Court Cases (Cri) 721 and (2011) 3 Supreme Court Cases, 581 wherein it is held that the Judgments of the Supreme Court are not to be read as a statute. Difference of a word may make a world of difference.

9. From this view point, we have in foregoing paragraphs meticulously referred to the relevant facts of the cited Judgments and the ratio laid down by the Court. We have kept in kind the ratio of these Judgments. At this stage, we would also like to make a reference to two Judgments of the Hon’ble Supreme Court; i)) Himmat Sukhadeo Wahurwagh and others vs. State of Maharashtra, reported in (2009) 6 Supreme Court Cases, 712 and ii) State of Madhya Pradesh vs. Ramesh and another reported in (2011) 4 Supreme Court Cases, 786.

10. In the case of Himmat (supra), it appears that the incident took place on 11th June, 1989 at about 4.00 p.m.. Babarao Kolhe, his brother Jaidev and grand-son Sanjay r/o: village Panaj 15

had been to plough their fields about 1½ k.m. away from the village. They were returning home in their bullock-cart. They were waylaid by eight accused variously armed with axes and sticks who attacked Babarao and Jaideo. Sanjay escaped from the spot and reached home and informed his grand father Namdeo about the incident. He has furnished details of the injuries caused by each of the accused. In the meantime, the bullock cart without Babarao and Jaideo too returned to the residence in the village. Namdeo Kolhe called his sons Dadarao and Wasudeo and along with several other persons went in search and found Babarao and Jaideo lying seriously injured in the field of one Vishwanath Akotkar. FIR was registered. The case was committed to the Court of Additional Session Judge, Akola and ended in acquittal of the accused by the learned Additional Session Judge. Appeal against acquittal was carried out by the State to this Court. This Court by its Judgment and order delivered on April 24, 2007 allowed the appeal of the State and convicted the accused and sentenced for the offence punishable under section 302 r/w 149 IPC and etc. The said Judgment of this Court was challenged by filing SLP before the Hon’ble Supreme Court by Himmat Sukhadeo Wahurwagh and others. It was Criminal Appeal No. 1641 of 2007. There the 16

evidence of a child witness Sanjay was considered by the Hon’ble Supreme Court . In para no.30, the Hon’ble Supreme Court has observed that Sanjay’s evidence shows that though he was 11 years old, he was able to discern between right and wrong and despite of a searching cross-examination made by the defence lawyer nothing adverse could be brought out. P.W.4 Bhimrao was 13 years old- a child witness. His evidence was also considered by the Hon’ble Supreme Court. The Hon’ble Supreme Court endorsed the findings of the High Court. Two paragraphs i.e. 35 and 36 of this Judgment are relevant which are reproduced hereinbelow.

“35. We endorse the finding of the High Court that Section 118 of the Evidence Act does not preclude a child from being a witness and the only test that is applicable is as to whether the witness understood the sanctity of an oath and the import

of the questions that were being put to him. In Nivrutti Pandurang Kokate v. State of Maharashtra, it has been observed that Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the court thinks otherwise.

36. In summing up the various judgments on this

issue, this is what this Court had to say; (Nivrutti Case, SCC pp 567-68,para 10).

10. 7.. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination

which will tend to disclose his capacity and 17

intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

11. In the matter of State of Madhya Pradesh vs. Ramesh and another (supra), the Hon’ble Supreme Court has considered all earlier Judgments on the point of appreciation of the evidence of a child witness. In para no. 12, it is held that there is no principle of law that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The 18

child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. In para no.13 of the report, it is held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness (emphasis supplied).

12. We shall now, keeping in mind the judicial pronouncement of the Supreme Court referred to in foregoing paras, turn to consider the evidence of P.W.1 Irshad in the case on hand. We find from his evidence that the learned trial Judge, has put some questions for assessment of understanding of the child witness, sanctity of oath etc.. These questions and answers given by P.W.1 Irshad – child witness are in para no.1 of his evidence. 19

Q.1: What happens if one tells false on oath? A. A person commit sin if he tells false on oath. Q.2: In which school you study, what are your subject, and names of your teachers?

A. I study in Keshaorao Bhange Madhamik School. My subjects are science, maths, Hindi, English,

Geography. My teacher is Sable Sir.

Thereafter, examination-in-chief starts from para no.3. It is stated by P.W.1 Irshad that Rehana- his mother expired when he was in kindergarten. He further has stated that accused sitting before the court is his father. He details the family members, who were staying at the material time. Thereafter, he states that now he is residing with his maternal grand parents at Benora. Regarding the incident, he states that on the day of incident there was quarrel between his mother and father since morning. When he returned from the school, he saw that father was beating his mother, had pressed her neck and then he pulled her on to the bed, poured kerosene and set her on fire. His father then took him and his brother outside and bolted from the outside and went away. At the time of his father burnt his mother, he states that he was at a distance of about 10 ft.. The learned trial Judge has recorded in the bracket that witness has 20

pointed out a place from the witness box which is at a distance of about 10 ft.. It is further stated by him that then police came and recorded his statement. His father went to the police station. In cross examination, he could not tell the name of kindergarten. He replied to a question since when he did learn to talk. He told that before he went to kindergarten he learnt to talk. He denied the suggestion that when incident occurred he could not talk. He also denied the suggestion that when the incident occurred, his father was outside. He volunteered that he went outside after setting his mother on fire. This voluntary statement is obviously attributing to his father. He conceded that his father used to go on duty. In cross examination at para no.9, he has stated that his father stood upon chest of his mother and pressed her neck. At that time, according to him, his mother did not shout. In reply to the question, as to when his statement was recorded, he told in para no.10 of the cross examination that it was recorded in the eventing at 5.00 p.m.. He admitted that since the incident, he was residing with the maternal grand parents. He denied the suggestion that the maternal uncle has accompanied him. On the day of recording of the evidence in the trial court, he said that maternal grand mother and his maternal aunt’s husband and neighbours came with him. He denied the 21

suggestion that his maternal grand father told him to depose such and such things before the court. He replied that his maternal grand father told him to depose whatever he has seen. Omission in his previous statement, that quarrel was going on between his mother and father since morning, is duly established. Omission that his father pressed mother’s neck, took him and his brother outside the house and bolted the door from inside, also has been proved. He stated in cross-examination that when the incident occurred, he was in courtyard. While recording his statement by police, he said that maternal grand mother was not present. He has denied the suggestion that he was deposing before the court on the say of his maternal-grand-mother. The evidence of P.W.14 P.S.I., Madhukar Mahatale shows that the statement of P.W.1 Irshad was recorded on the same day i.e. 15.8.1997. We do not find traces of tutoring, influence over this witness by his maternal uncle as suggested in the cross examination. We do not find anything in the cross- examination of this witness to discredit his evidence. The learned trial Judge has taken efforts to find out the understanding of this witness and sanctity of oath. On satisfaction only as we have referred to hereinabove, examination-in-chief by the learned APP was started. His presence at the material time is also established. 22

The evidence of this witness inspires confidence.

13. The next door neighbour Sk. Afroj (P.W.4) has been examined. His house is behind the house of the accused at a distance of 15 ft.. To reach to his, he has to pass from the house of the accused. He has noticed bickering amongst the accused and Rehana. He claims that once when accused was beating Rehana, he interfered. He was abused by the accused. From then onwards, he stopped interfering. At the time of the incident, he testifies that he was at his house. He started from his house at 5 to 5.30 p.m. for bus stop. He noticed quarrel amongst the accused and Rehana. Without interfering, he went to the bus stop. He waited for some time i.e. 10 to 15 minutes at bus stop and has noticed the accused proceeding to river. When he returned for home, he has seen P.W.1 Irshad talking with police outside the house of the accused. He heard that Irshad was telling about the incident to Police. In the opening sentence of cross examination, he states that the complete room of accused’s house is not visible on the road. He denied the suggestion that quarrel was not visible from outside. He accepts his relation with deceased Rehana. Nothing could be elicited in the cross examination of this witness to disbelieve his evidence on the 23

point that he had seen Rehana alive on 15th August, 1997 at about 5 to 5.30 p.m., quarrel amongst the accused and Rehana. He has also confirmed the presence of P.W.1 Irshad outside the house of the accused.

Sk. Ibrahim (P.W.5) co-brother of the accused is also examined. It reflects from his evidence that accused and Rehana were married four years back to the incident and were blessed with two children. Rehana used to stitching work and accused was a driver. He claims that he was informed by two persons that Rehana was burnt by pouring kerosene. However, names of those two persons are not disclosed by him. Neither they are examined in support of the prosecution case. After the occurrence he had gone to the house of accused, seen that Rehana was burnt and sons were crying nearby. He went to the Police Station, Narkhed and reported the incident. His oral report is reduced into writing. Exh. 37 is the said report lodged by P.W.5 Sk. Ibrahim. We have seen some omissions brought out in his cross- examination. However, they are trivial in nature and mostly regarding unhappy married life of accused and Rehana. He had been to the Police station for reporting the incident, which he admits in cross-examination at about 6.45 to 7.00 p.m. and it was a oral report. 24

14. P.W.2 Khairunbi, is examined on behalf of the prosecution. Rehana was a daughter of her sister. It reveals from her evidence that Rehana used to stitching work. According to her, accused was used to demand money and had subjected Rehana to ill-treatment. Rehana was the source of her knowledge regarding ill-treatment by accused to her. At the time of occurrence, she was at her home beyond 50 houses away from the house of the accused. On noticing crowd in front of her house and on over hearing that Rehana is burnt, she went to the house of Rehana. She found P.W.1 Irshad was crying and Rehana was inside the house and smoke was billowing. It is stated by her that at that time Irshad told that accused poured kerosene upon her and set her on fire and went away. Omission that Rehana told her that accused does not do any work is brought out. She denied the suggestion that Irshad (P.W.1) did not tell her the incident. She also denied the suggestion that P.W.1 Irshad was not able to speak. The evidence of this witness and more specifically her claim that Irshad told her that accused poured kerosene upon Rehana and set her on fire could be considered in view of the provision of Section 6 of the Evidence Act. The contention of this witness that on noticing crowd she went to the house of accused is but natural. Her contention that when she 25

went to the house of accused, she had noticed smoke was billowing, seems to be not challenged in cross examination. Thus, disclosure by P.W.1 Irshad that accused poured kerosene on the person of Rahana and she was set on fire by the accused can be considered within the parameters of section 6 of the Evidence Act. Section 6 of the Indian Evidence Act provides that the facts which, though not in issue, are so connected with a fact in issue, as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. In the facts of the present case, it is clear that accused has been charged for the murder of Rahena by pouring kerosene on her person and setting her on fire. Irshad, claims that he has witnessed this incident and shortly thereafter when P.W.2 Khairunbi happened to the house of the accused, Irshad had disclosed the act of pouring kerosene and set Rahana on fire by the accused to P.W.No.2 Khairunbi. This fact, therefore, is a part of the transaction and relevant fact. It is the principle known as res gestae.

In the case of State of M.P. (supra) in para no. 18 the Hon’ble Supreme Court has made reference to its earlier Judgment in the matter of Sukhar vs. State of U.P. Reported in (1999) 9 SCC, 507 wherein section 6 of the Evidence Act has been explained. It is 26

held that Section 6 is an exception to the general rule whereunder the hearsay evidence becomes admissible. It is also observed by the Supreme Court that such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself. Applying the ratio of the said judgment, we reach to a conclusion that statement of P.W.2 Khairunbi indicating that after the occurrence and on perception she had been to the house of the accused , P.W.1 Irshad met her and told her that accused poured kerosene on the person of Rahana and set her on fire, is admissible under section 6 of the Evidence Act. To sum up, the evidence of this PW.2 Khairunbi lends support or corroboration to the evidence of P.W.1 Irshad that accused poured kerosene on the person of Rehana and set her on fire.

15. Mr. Loney, learned counsel for the accused submitted that P.W.3 Makhmud Khan, a panch witness on the spot 27

panchanama, did not support the prosecution. The spot panchanama Exh.33, however, has been exhibited. Apart from this witness, PSI, Madhukar Mahatale (P.W.14) states that on 16.8.1997 he had been to the place of occurrence along with P.W.3 Makhmud Khan. Mr. Lone, the learned counsel took us to the evidence of P.W.3 Makhmud Khan, P.W.14 PSI Madhukar and panchanama Exh.33 to contend that P.W.1 Irshad could not have noticed the incident. It appears from Exh. 33 that the house of accused is situated in Indira Nagar Hutment. We have considered the scene of occurrence Panchanama Exh.33 and cross examination of P.W.14 PSI, Madhukar on the point of scene of offence panchanama. In para no.21, this witness has clarified that the spot panchanama could not be prepared on the day of the incident because it was a night time. There is no cross-examination on the point of spot panchanama or contention of the learned counsel that P.W.1 Irshad could not have witnessed the incident. It is also not brought on record in the cross -examination even of P.W.3 Makhmud Khan- hostile witness on behalf of the accused. A suggestion was given to P.W.3 Makhumad Khan, that he does not know what is written in the panchanama which seems to have been accepted by that hostile witness and this admission of a hostile witness does not help the 28

accused in the contention that P.W.1 Irshad could not have witnessed the incident.

16. P.W. 9 Sk. Idris – panch witness has established the seizure panchanama Exh. 48 of the seizure of the clothes of the accused in Police Station i.e. open terrycot shirt, white sandoz baniyan and other clothes of the accused mentioned in seizure memo Exh.48. Report of Chemical Analyser (Exh.40) shows detection of kerosene oil residues positive. Incriminating articles are burnt pieces of cloth, pieces of broken bangles, mud from the spot of incident and clothes of the accused worn at the time of incident. This circumstantial evidence implicates the accused.

17. On behalf of the prosecution, to prove the homicidal death of Rahena, medical evidence is brought on record. P.W.10 Dr. Naresh, performed autopsy on the dead body of Rehana. He has listed the injuries in his oral evidence as follows: i) Superficial burn injury all over the body. Deep burn injuries, on both thighs, left back sides of elbow joints, upper part of back above waist.

It reflects from his evidence that the injuries noticed by 29

him were antemortem. On internal examination, he found burnt scalp, barin was congested, thorax walls were burnt, plura was congested, Iyranx and trachiu was congested. Both lungs showed redish, pink and congestion. Cut surface of lungs showed oozing of froth, pericordiun was congested. Teeth intact, tongue protruding through mouth liver congested, pancreas congested, kidneys congested uterus was normal and cavity was empty. It is stated by him that the cause of death was due to asphyxatia due to secondary to 100% burn injures. He opined that the injuries have been mentioned in post mortem report Exh.53 under his signature and signature of Dr. Gajbe. According to him, injuries found on the dead body of Rehana, are sufficient to cause death. Nothing could be elicited in the cross-examination to disbelieve the homicidal death of Rehana. Thus, the oral evidence of P.W.10 Dr. Naresh read with post mortem note (Exh.53) has proved the homicidal death of Rahana. We have also been taken to the evidence of other witnesses. Amongst them, P.W.11 Anand did not support the prosecution and was declared hostile and has been cross examined. It seems that he is a neighbourer and panch witness on inquest panchanama (Exh.33 A). Inquest panchanama is established in the evidence of P.W.14 Madhukar. P.W.12 Hamidabi is mother of 30

deceased Rehana. One more witness i.e. Sk. Raheman (P.W.13) was examined. He is related to deceased Rehana. These two witnesses principally have been examined on the point of ill-treatment within the parameters of Section 498 A.

18. It was submitted on behalf of the accused that the accused is an innocent person. It is a case of suicide. According to Mr. Lone, the learned counsel for the accused, suicide by deceased Rehana has been probabalised. The learned APP has promptly pointed out that even remotely the suicide is not suggested to the witnesses examined on behalf of the prosecution. He also points out the statement under section 313 of Cr.P.C. of the accused to contend that there is no explanation from the accused.

19. Mr. Lone, learned counsel for the accused, in support of his plea of alibi, took us to the evidence of D.W.1 Ramchandra Bagde. It appears that D.W.1 Ramchandra, was holding Taxi Permit and accused was working with him as a driver on his taxi. On the date of the occurrence i.e. on 15.8.1997 Ramchandra claims that accused was on duty and had taken passengers in a taxi to Katol. Accused was on duty till 5.30 p.m.. A boy came and told the 31

accused that his wife is burnt and, therefore, accused went away. This witness has admitted, in cross examination, that he does not maintain the record for his business, salary register, or attendance register of drivers. It is his categorical admission that he does not have documentary evidence to show that he had business of taxi and accused was working with him. On the date of occurrence where the accused was sent, also could not be disclosed by this witness. He admits that he does not have record to show that accused was on his duty. From the evidence of this witness, it is clear that the evidence of this witness is absolutely of no help for the accused to contend that accused on 15.8.1997 was working as a driver in the first place and had gone to Katol, returned back and at 5.30 p.m. had received the message from a boy that his wife was burnt. The plea of alibi raised by the accused needs to be established by him. We have examined the evidence and are not able to accept the said plea and found that it is meritless. We also do not find any substance in the contention of the accused that he was not present at the spot of occurrence.

20. In his statement under section 313 of Cr.P.C., the accused has admitted that earlier, offience under section 498 A was 32

registered against him by Rehana. Thereafter, he took Rehana to his house and stayed together. (Question no. 71).

21. The learned trial Judge does have advantage to observe / notice demeanor of the witnesses while recording the evidence of the witnesses. From the judgment para no. 46, we find that the learned trial Judge has recorded his satisfaction that Irshad (P.W.1) a child witness was capable of understanding the questions and importance of oath and thereafter only proceeded to record his testimony. The evidence of P.W.1 Irshad has been carefully considered by the learned trial Judge in view of the status of Irshad as a child witness.

22. While summing up, we may say that the evidence of P.W.1 Irshad is corroborated by the evidence of P.W.4 Sk. Afroj – a neighbour that there were quarrels amongst Rehana and accused before the incident. Rehana was alive on the day of incident at about 5 to 5.30 p.m. and accused was at home. After some time, accused proceeded towards the river. The evidence of P.W.2 Khairunbi is also considered by us within the parameters of section 6 of Evidence Act as discussed hereinabove. Having considered the 33

totality of the facts, circumstances and evidence, we are of the view that the accused intentionally and with knowledge poured kerosene oil on the person of Rehana and set her ablaze and committed the offence punishable under section 302 IPC, beyond reasonable doubt. The Judgment and sentence inflicted upon the accused by the learned trial Judge deserves to be confirmed.

23. In the result, the appeal stands dismissed confirming the conviction and sentence inflicted upon the accused by the learned trial Judge.

JUDGE JUDGE patle

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