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Shri Jahangir Abdul Rashid Patel -vs- The State Of Maharashtra on 23 January, 2004

Bombay High Court Shri Jahangir Abdul Rashid Patel -vs- The State Of Maharashtra on 23 January, 2004
Equivalent citations:I (2004) DMC 741
Author: P Kakade
Bench: V Palshikar, P Kakade

JUDGMENT

P.V. Kakade, J.

1. The appellants have preferred this appeal against the Judgment and Order dated 26th February 2001 passed by Additional Sessions Judge, Pandharpur holding them guilty of commission of offences punishable under Sections 498A r/w 34 and 302 r/w 34 of the Indian Penal Code and sentencing them to suffer R.I. for three years and to pay fine of Rs. 500/= in default to suffer R.I. for two months for offence under Section 498A r/w 34 of the Indian Penal Code and for life imprisonment and to pay fine of Rs. 500/= in default to suffer R.I. for two months for offence under Section 302 of the Indian Penal Code.

2. The facts giving rise to the present case. in short, are thus –

3. The accused No. 1 is the son of the accused No. 2. Both are charged for murder of Razia wife of accused No. 1 by setting her on fire and also for subjecting her to cruelty to get their unlawful demand of Rs. 50,000/- satisfied prior to her death. Deceased Razia was daughter of one P.W. 1 Sugarabi Jamadar and sister of P.W.6 Arif Jamadar. She was married to the accused No. 1 about two years prior to the incident. Accused No. 2 is the mother of the accused No. l. Both were residing together at Akluj in Tal. Malshiras.

After marriage of Razia with accused No. 1 used to reside at the matrimonial house. Razia begotten a son by name Nihari from accused No. 1 who was working as pigmy agent. Both the accused intended to have a Rickshaw for the accused No. 1. Hence they insisted Razia to bring an amount of Rs. 50,000/= from her parents, but her parents were poor, Razia could not satisfy their unlawful demand. Both the accused, therefore, subjected her to cruelty by beating and abusing to see that their unlawful demand was satisfied but Razia was firm on the point not to bring the money from her parents due to their poverty. On 8.6.1999 at about 5.00 p.m. both the accused and Razia were present in their house. Both the accused reiterated their demand for Rs. 50,000/= and as Razia reiterated that she could not satisfy the demand due to poverty of her parents. Both the accused took it offending and accused No. l took a kerosene drum from his house and poured kerosene on Razia and accused No. 2 set Razia on fire with match stick. Razia in the flames raised shouts people in the vicinity including her sister-in-law and her husband arrived. Thereafter accused poured water on burning Razia and extinguished fire. Thereafter Razia was moved to the Rural Hospital, Akluj from where she was immediately taken to Abhijit Hospital of P.M.9. After taken in the said hospital P.W. 9 sent a letter to the Akluj Police Station informing about burnt Razia admitted in the hospital and her general condition was poor. In response to the letter Police Head Constable P.W.3 Shivaji Pansare went to the hospital. He contested Dr. Gandhi and asked about the burnt patient Razia” P.W.3 Constable Pansare expressed his desire to record the statement of burnt Razia and he asked Dr. Gandhi whether she was conscious and fit to give the statement. Doctor examined her and told that she was conscious and fit to give her statement. Thereafter P.W.3 recorded statement of Razia wherein she squarely implicated both the accused persons stating in details about their unlawful demand and consequent setting her on fire. The statement was duly recorded and read over to Razia. She admitted the contents. Her thumb impression was obtained below the statement. Dr. Gandhi was present while recording the statement put his endorsement below the statement and signed it. After recording statement at about 9.45 p.m. on 8.6.1999 P.W.3 went Akluj Police Station and on the basis thereof registered offence at C.R.No. 79/99 under Section 498A and 307 r/w 34 of the Indian Penal Code against both the accused persons and entrusted the investigation to Police Inspector Patil.

Meanwhile on the same night Tahsildar, Akluj was asked by the Police to record the statement of burnt Razia who was admitted in the hospital of Dr. Gandhi, Accordingly, P.W.7 Ramchandra Londhe the officer from Tahsil Office came to hospital and recorded dying declaration of Razia under supervision of Dr. Gandhi, which was on the similar line of her earlier statement. It was recorded at about 1,00 a.m. during the night. During further investigation the investigating officer visited the scene of incident and prepared panchanama and seized incriminating articles such as plastic drum containing kerosene. match box, pieces of broken bangles and burnt pieces of blouse smelling of kerosene. The officer recorded statement of witnesses and on that basis both the accused were put under arrest., Their clothes were seized under panchanama. All the incriminating articles seized in the course of the investigation were sent to Chemical Analyser for examination, whose report was received and is part of the record.

In the meantime Razia was shifted from Abhijit Hospital to the Hospital at Pune and thereafter to her parental home in Tal. Indapur where she succumbed to the burnt injuries on 12.7.1999 i.e. more than a month after the incident. Inquest panchanama was prepared and dead body was sent to the post mortem examination. Razia had suffered 75% ante mortem burns and died of septicemia due to such burns. The offence against the accused was converted into Section 302 of the Indian Penal Code. On completion of investigation the charge-sheet was sent to the court of law. The learned Magistrate committed the case to the court of Sessions.

4. The learned Additional Sessions Judge framed charge against the accused persons under Sections 498A and 302 r/w 34 of the Indian Penal Code. The accused pleaded not guilty to the charge. Their defence is that of total denial of any criminal liability. It is the defence theory that Razia was not happy in her marital home due to poor condition of the accused persons as they were comparatively poor than the parents of Razia, and therefore, Razia committed suicide. The prosecution led its evidences on which basis the learned trial judge came to the conclusion that the prosecution evidence was sufficient to bring home the guilt on both the counts and accordingly convicted and sentenced them in the aforesaid manner.

Hence the appeal.

5. We have heard Mr. Katikar, the learned counsel for the appellants and Mrs. Bhosale, the learned APP for the State at length. We have also perused the entire record.

At the outset it may be noted that the entire prosecution case is balanced on two dying declarations and therefore, it is necessary to assess that evidence, especially in view of the fact that other material witnesses viz. Razia’s mother, brother and neighbour an the point of oral dying declaration as well as cruel treatment meted to Razia at the hands of the accused, have not supported the prosecution case and have turned hostile.

6. It is not in dispute that at the time of incident both the accused and Razia were at their residence. It is also not controverted that Razia died due to burnt injuries, as can be seen from the medical record along with the testimony of the medical officer as well as Dr. Gandhi. The moot question round which the entire case revolves is whether that the death was suicidal or homicidal and secondly if it was homicidal, then whether the accused persons or any of them, were authors of the crime.

In order to bring home the guilt the prosecution had examined several witnesses. P.W.3 Police Head Constable Pansare has stated that he was on duty on 8.6.1999 at Akluj Police Station. At about 5.00 p.m. a message was received at the Police Station from the Health Centre that a burnt patient was admitted in the hospital. He made necessary entry in the message register, and proceeded to Government Hospital at Akluj, He was informed that the patient has transferred to Civil Hospital, Salapur. Then he received information that the burnt woman was admitted in the hospital of Dr. Abhijit Gandhi and therefore, he went there and contacted Dr. Gandhi, who was medically treating the deceased. The witness Pansare made an enquiry with the Doctor whether patient was in conscious and whether she was in fit conditions to give her statement. Doctor examined her and stated that patient was in fit condition to give statement. Thereafter he recorded statement of burnt Razia. In course of her statement, she narrated the entire history of the incident and actual incident to the effect that accused Nos. 1 and 2 were making unlawful demand to bring amount of Rs. 50,000/- from her parents to purchase auto rickshaw and therefore, she had gone to her place and had brought amount of Rs. 5000/- and it was given to her husband. However, still he was demanding Rs. 25,000/- more which she denied and therefore, on Sunday prior to the incident she was mercilessly beaten by the accused N.1. On the day of incident at about 5.00 p.m. both the accused persons again repeated their demand of Rs. 50,000/= more and told her to go to her parents and bring the money, but she asked them where from she should bring money because her parents were poor. Thereafter accused No. 1 took plastic kerosene can and poured kerosene from the can on her person and accused No. 2 set her on fire with match stick. She raised alarm and people gathered. Seeing the people, accused No. 1 poured water over her and extinguished flames. Thereafter she was admitted to the hospital by her sister’s husband and sister, who had also arrived after hearing the shouts. This statement was recorded in the presence of doctor and doctor made endorsement thereunder to the effect that the patient was fit to give statement. The endorsement was made at about 9.45 p.m. It is to be noted that this statement was taken to the Police Station by Constable Pansare and was treated as FIR, on which basis the offence case to be registered against the accused persons.

The evidence on record further shows that in the meantime Tahsildar Office was contacted by the police with request that dying declaration of Razia should be recorded by the Executive Magistrate. P.W.7 Londhe has stated that on receipt of the message from the Police, Tahsildar, Malshiras deputed witness Londhe, who is Revenue Officer, with message that he should proceed to the hospital and record statement of Razia, Accordingly, witness Londhe went to the Hospital and contacted Dr. Gandhi and under his supervision recorded Razia’s dying declaration. Before that witness had confirmed through Dr. Gandhi that if the patient was conscious and was in fit condition to give statement. Thereafter this statement was recorded in question and answer form vide Ex.28. See has reiterated in the said statement that it was accused No. 1 and 2 who had set her on fire by pouring kerosene on her. She had stated that accused No. 1 poured kerosene and accused No. 2 set her on fire with match stick. She had also stated that she is educated upto 5th standard. After the statement was recorded her thumb impression was obtained on the said declaration and Doctor has also made his endorsement at 1.00 a.m. to the effect that the patient was fit to give statement. It is to be noted that this dying declaration is proved through P.W.7 Londhe who had recorded it and P.W.9 Dr. Gandhi who has stated in his testimony that during the course of recording both the dying declarations he had examined the patient and confirmed that she was in conscious and was in fit condition to give statement, and both the statements were recorded in his presence. He has also given the details of what Razia stated in her statements.

In the light of this evidence we have absolutely no hesitation to hold that both the dying declarations are trustworthy and genuine and therefore, are reliable. Mr. Katikar, the learned counsel for the appellants urged that there was variance in the two dying declarations, in the sense that in first dying declaration Razia did give the details about the alleged unlawful demand made by the accused persons whereas in the second dying declaration, recorded by the Executive Magistrate, she did not utter a single word about the same, and therefore, are unreliable. We prefer to disagree with this submission. The second dying declaration recorded by Executive Magistrate is in question and answer form, and therefore, it is obvious that Razia answered only those questions which are asked to her. As can be seen from second dying declaration Ex.28, the Executive Magistrate did not ask Razia at all as to why the incident took place, but confined himself to the questions to the effect as to how it took place. Therefore, there is absolutely no variance between both the dying declarations. On the other hand those are found to be consistent to each other attributing the overt act to both the accused squarely.

7. In this regard the ratio laid down by the Supreme Court in the case of P.V. Radhakrishna v. State of Karnataka – 2003 AIR SCW 3587 must be invoked, which is thus :

“The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed 5 is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight 5 it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This i(r) the reason the Court also insists that the dying should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole, basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.”

Therefore, we are of the view that the evidence of bath the dying declarations is wholly sufficient to bring home the guilt, as held by the learned trial judge.

8. It was urged on behalf of the appellants that there is absolutely no independent corroborative evidence to support the prosecution allegation that Razia was ill-treated by the appellants and there was an unlawful demand of Rs. 50,000/=. This submission is apparently based on the fact that the mother, brother and neighbour, who were examined by the prosecution to prove the terms of cruel treatment and unlawful demand did not support the prosecution case and turned hostile. However, in our considered view the fact that these three witnesses did not supports the prosecution case is inconstitutional, especially when Razia herself has given those details in the course of her first dying declaration which is also treated as FIR in this case. Applying the same ratio laid down by the Supreme Court in the case of P.V. Radhakrishna (Supra) it is obvious that Razia was not in a position to falsely implicate the accused Nos. 1 and 2 while she stated about their cruel treatment in furtherance of their unlawful demand of Rs. 50,000/=. She has also stated that she did bring Rs. 5000/= from her parents and gave it to her husband but they continued their demand and when it was not fulfilled, they did the said act. We do not see any reason why the statement of Razia to this effect should be disbelieved. The defence has failed to make out the case that Razia was not happy at her marital home due to her poverty because they were comparatively poor than her parents and therefore, she committed suicide. In this regard we may note that Razia had given birth to a child who was about one year old at the time of incident and therefore, in all the probabilities Razia would not have committed suicide leaving behind infant child. If at all she had any imminent reason and circumstances to commit suicide, it has not come on record, and therefore, this defence theory is totally devoid of any merits.

9. For the reasons recorded above we hold that been the accused persons are liable to be convicted for the impugned offences and the prosecution has succeeded in brining their guilt. The reasoning adopted and findings recorded by the learned trial judge is found to be just, legal and proper, and therefore would brook no interference.

In the result the appeal stands dismissed.

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