APPEAL.257.11
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
…
CRIMINAL APPEAL NO. 257/2011
* State of Maharashtra
Through Police Station, Andhera
Tq.Chikhali, Dist.Buldana. .. ..APPELLANT
versus
1) Sk. Jabbar Sk. Sattar
aged 25 years, occu: Labourer
2) Sk. Sattar Sk. Usman
Aged 6o years occu: Labourer
3) Najirabi w/o Sk.Sattar
Aged 45 years, occu: household
4) Sk. Irfan Sk.Sattar
Aged 19 years, occu: Education
5) Sk.Imran Sk.Sattar
aged 20 years occu: Labourer
All R/o Mera Khurd, Tq. Chikhali
Dist.Buldana. .. RESPONDENTS
……………………………………………………………………………………………………………………………..
Ms. H.N. Jaipurkar, Additional Public Prosecutor for appellant-State
Mr. R.P. Joshi, Advocate for respondents/accused
………………………………………………………………………………………………………………………………
CORAM: P.N. DESHMUKH
MRS.SWAPNA JOSHI, JJ.
DATED OF RESERVING: 25.09.2018
DATE OF PRONOUNCEMENT: 05.10.2018
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JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)
1. The instant Appeal has been preferred by State challenging the
judgment and order dated 20th January,2011 delivered by learned Principal Sessions
Judge, Buldana in Sessions Case No.51/2010 acquitting the respondents (hereinafter
referred to as “the accused”) of the offences punishable under sections 498A, 302, in
the alternative, Section 306 r/ws. 34 of the Indian Penal Code and Section 4 of the
Dowry Prohibition Act, 1961.
2. The prosecution case can be summarized as under :
Shahista Parveen (deceased) was the daughter of Mubarak Khan
(PW1). She was married with accused no.1-Sheikh Jabbar on 22.3.2009. After
marriage, she started residing with accused no.1 along with her in-laws at Mera Khurd,
Tq.Chikhali. Accused no.2-Sk.Sattar is the father-in-law; accused no.3-Najirabi is the
mother-in-law and accused no 4-Sk. Irfan and accused no.5-Sk.Imran are the
brothers-in-law of the deceased. After marriage, Shahista was treated properly for
some time by the accused persons. Thereafter, they started ill-treating her on trifle
issues inasmuch as started demanding an amount of Rs. 50,000/- for establishing a
grocery shop. Since the father of Shahista did not pay the amount, the accused
started abusing and beating Shahista. It is alleged that whenever Shahista used to visit
her parents’ place, she used to inform them about ill-treatment meted out at the hands
of the accused. It is the case of the prosecution that the accused persons had also
demanded one gas cylinder and Rs. 2000/- as well as Rs. 5000/- from PW1-Mubarak
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Khan, father of the deceased. Accordingly, Mubarak Khan paid the amount of Rs.
2000/- and Rs.5000/- respectively to the accused persons so also provided a gas
cylinder to them, in the fond hope that the accused persons would not ill-treat his
daughter. About two months prior to the incident in question, the maternal uncle of the
deceased namely, Latif Khan (PW2) visited the house of the accused and requested
them not to ill-treat Shahista. As Shahista showed her desire to visit her fathers’ place,
her father brought Shahista to his house at Valati, Tq. Chikhali where she stayed for
about two months. About three days prior to the incident, PW1 brought Shahista to
her matrimonial home. The incident in question took place on 22.1.2010. At about 7.00
pm, while Shahista was preparing meals on hearth, her brothers-in-law A4-Sk.Ifran
and A5-Sk.Imran and A1-Sk.Jabbar Sk.Sattar, caught hold of her and her mother-in-
law A3-Najirabi poured kerosene on her person and her father-in-law A2-Sk.Sattar set
her afire, by igniting matchstick. On hearing shouts of Shahista people from the
neighbourhood rushed to that place and extinguished the fire. Shahnaz Parveen
(DW1), Sk. Muqtar and husband of Shakilabi took her to Government Hospital,
Chikhali. She was, thereafter, shifted to Government Hospital at Buldana.
3. At the relevant time, Dr.Amul Vanjari (PW7) was attached to Civil
Hospital, Buldana. At about 10.00 pm Shahista was admitted in the hospital in a burnt
condition. PW7 Dr. Vanjari informed the police about the said fact. At about 1.50 hours,
Naib Tahsildar-Ramra Padole (PW8) visited the said hospital. On making enquiry
about the fitness of the patient with PW7, PW8-Padole recorded the statement
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(Exh.58) of Shahista. On 23.1.2010, PSI Subhash Bawaskar (PW6) received a
message through wireless that one Shahista had suffered burn injuries and her dying
declaration has been recorded. He was asked to collect the dying declaration of
Shahista. Accordingly, PSI Bawaskar, sent a police personnel to collect the dying
declaration. The dying declaration was thereafter received by PW6, on the basis of
which offence was registered. The spot panchnama was recorded and the accused
came to be arrested. PW6-Bawaskar then recorded the statement of Shahista on
31.1.2010 (Exh.48). PSI Dnyaneshwar Thaware (PW9) recorded the statement of
witnesses and on completion of investigation, he filed the charge-sheet. The case was
committed to the Court of Sessions. On analysis of the evidence on record and hearing
both sides, the learned trial Judge acquitted the accused. The said judgment and order
is impugned in the present Appeal.
4. Ms.H.N.Jaipurkar, learned APP for appellant-State vociferously
contended that the impugned order is illegal and perverse inasmuch as the learned
trial Judge has not considered the dying declaration recorded by the Executive
Magistrate and even has not considered the oral dying declaration made by the
deceased before the relevant witnesses. She submitted that the learned trial Judge
has not considered the evidence in its right perspective. She submitted that the
impugned judgment is erroneous and it be set aside and the accused are liable for
conviction.
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5. Per contra, Shri R.P Joshi, learned counsel for the accused supported
the impugned judgment and canvassed that the oral dying declaration allegedly
made by Shahista before her father cannot be considered as Shahista had not made
any statement when she was carried from Chikhali to Buldana hospital before the two
ladies out of which one is examined as a defence witness and the other one has not
been examined by the prosecution. It is submitted that Shahista was not in a fit mental
and physical condition at that point of time to make any statement and therefore
evidence of her father PW1-Mubarak Khan cannot be relied upon on this count. It is
further submitted that the said oral dying declaration is an improvement made by PW1-
Mubarak Khan. In view thereof, no reliance can be placed on his testimony. It is
further submitted that so far as the dying declaration recorded by Executive Magistrate,
Ramrao Padale (PW8) and the dying declaration recorded by PSI Bawaskar (PW6)
are inconsistent with each other on material aspects, hence cannot be relied upon. It is
further submitted that the dying declaration recorded by PW6 is concerned, it was
recorded on 31.1.2010 and not prior to that, as the father of the deceased must have
tutored the deceased to make such a statement. Thus, the learned Advocate submitted
that the impugned judgment is just and proper and no interference at the hands of this
Court is necessary.
6. As far as the dying declaration is concerned, it is well-settled that
conviction can be based on the sole dying declaration of the deceased if the dying
declaration is found to be consistent, coherent and made in a conscious state of mind.
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Time and again, the Hon’ble Apex Court has laid down guidelines to follow while
recording the dying declaration. It is expected that the Courts should be extremely
careful when they deal with the dying declaration as the maker thereof is not available
for cross-examination which poses a great difficulty to the accused person. The Court
has to examine the dying declaration scrupulously with a microscopic eye to find out
whether the dying declaration is voluntary, truthful, made in a conscious state of mind
and without being influenced by the relatives present or by the Investigating agency
who may be interested in the success of investigation or who may be negligent while
recording the dying declaration. It is also well settled that when there are more than
one dying declarations, it should not be that the dying declaration which supports the
prosecution case alone can be accepted while innocuous dying declarations have to
be rejected. While recording the dying declaration the Court has to see that, (i) the
examination of the patient by the doctor is conducted, before recording of his
statement and a certificate is obtained from the Doctor that the person is in a sound
mental state to give statement; (ii) the presence of the doctor near the patient during
recording of the statement; (iii) the relatives of the patient should not be near the
patient and if at all present should be removed from that place where the statement of
the patient is being recorded so that the patient should be in a position to make
voluntary statement, free from any influence or any tutoring ; (iv) after recording the
statement it should be read over to that person and the contents thereof should be
explained. There should be confirmation from that person that the statement is
correctly recorded and it has true sense. No such guidelines are followed in the instant
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case.
7. In order to consider the rival contentions of both sides, it would be
appropriate to go through the evidence led by the prosecution witnesses, more
particularly, the testimony of PW8-Ramrao Padale, the Executive Magistrate, who
recorded the dying declaration (Exh.58); PW 6-PSI Subhash Bawaskar who recorded
the second dying declaration (Exh.48), PW1-Mubarak Khan, father of deceased and
PW2-Latif Khan, uncle of the deceased and the defence witness no.1-Shehnaz
Parveen who was, in fact, the prosecution witness but was not examined by the
prosecution for the reasons best known to them.
8. The testimony of PW8-Ramrao Padole, who was working as a Naib
Tahsildar at Buldana, shows that on 23.1.2010 at the request of one Police
Constable, he reached the Government hospital during the intervening night of
22.1.2010 and 23.1.2010 at about 1.30 am. He received a requisition (Exh.61) issued
by the police from the Police chowky attached to General Hospital at Buldana.
Accordingly, PW 8 went to the Burn Ward of the Hospital. The doctor on duty
examined the patient and opined that the patient is fit to give her statement. PW 8 then
recorded the statement of Shahista at about 1.58 am(Exh.58). PW8 then obtained the
right leg toe impression below the said statement. He too signed on the said
statement. Again the doctor examined the patient.
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9. The deposition of PW7-Dr. Anil Vanjari indicates that on 22.1.2010 he
was attached to Civil Hospital, Buldana. At about 10.00 pm, Shahista was admitted in
a burnt condition at General Hospital. He intimated about the said fact to the police at
around 1.50 midnight. The Naib Tahsildar (PW8) made enquiry with him whether the
patient was in a fit condition to give her statement. PW7 examined the said patient
and endorsed that patient was fit to give her statement. PW8 then recorded the
statement of Shahista in his presence and on examining her, endorsed that the
statement was taken in his presence. PW7 has also conducted autopsy on the dead
body of Shahista on 4.2.2010 at 11.00 am; (post-mortem report Exh.59). The cause
of death as stated by PW7 is “due to septicemia due to superficial to deep burns
63%”. Significantly, in the course of cross-examination, PW7 admitted that he has not
specifically mentioned in the case papers that the patient was examined by him. He
admitted that examination notes were not recorded by him. The said version of PW7
makes it doubtful whether PW7 has examined the patient prior to recording of her
statement and after the statement was recorded by PW 8. Significantly, there is no
endorsement of PW7-Doctor on the dying declaration (Exh.58) that the patient was
physically and mentally fit to give her statement. PW7 admitted that case papers do
not speak about the mental condition of the patient. Thus, the testimony of PW7 does
not throw any light on the aspect that the patient was physically and mentally fit all
throughout the period when her statement was recorded by PW 8-Padole.
10. As regards dying declaration(Exh.48) recorded on 31.1.2010, it shows
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that after marriage, Shahista’s husband treated her well for about two months,
thereafter he started harassing her. Similarly, her mother-in-law used to ask her to go
to the field for work and on the said issue, she used to harass her. Her father-in-law
used to ask him to bring the amount of Rs. 50,000/- from her parents for business
purpose. For the said reason, her husband and father-in-law used to harass her. Her
younger brothers-in-law Irfan and Imran used to beat her. 2 to 3 months back, her
father-in-law told her to bring an amount of Rs. 25000/- for business or else she
should not come to his house. She therefore brought the amount of Rs. 25000/- from
her father and gave it to her father-in-law. It is stated that her husband and father-in-
law used to demand money and they used to harass her mentally and physically. She
used to tell her mother about the said harassment. On 22.1.2010 at about 7 o’ clock
in the evening while she was cooking food, her husband Sk. Jabbar, mother-in-law,
father-in-law and both her brothers-in-law were present in the house. Her mother-in-
law asked her whether she had brought the amount of Rs. 25,000 from her father.
She told that her father is not having money presently and his father would give it
after 15 days. On saying so, her husband, mother-in-law, father-in-law suddenly
started beating her. Both younger brothers-in-law Sk. Irfan and Sk.Imran also abused
her and threatened that they would kill her if she would not bring the money. Thereafter
her husband and both her younger brothers -in- law caught hold of both her hands
tightly, her father-in-law Sk.Sattar set her ablaze by igniting the matchstick. While she
was burning her sister-in-law’s husband Sk. Shabbir and younger brother-in-law
Khwaja Sk.Sattar came from outside and instigated by saying, “let Shahista burn and
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die”. Thereafter, they closed the front door. When she shouted, Shahnaz Parveen,
Sk.Muqtar and Shakilabi, who were residing in her neighbourhood, extinguished the
fire. Thereafter,Shakilabi and Shahanaz Parveen brought her to the Government
Hospital, Chikhali in an autorickshaw of one Shankar Mistry. The said dying
declaration runs into four pages whereas the dying declaration recorded by Executive
Magistrate on 23.1.2010, which was first in point of time, reveals that on 22.1.2001 at
about 7.00, while she was cooking food on hearth her younger brothers-in-law Sk.
Irfan and Sk.Imran and Sk. Jabbar caught hold of her hands and her mother-in-law
Najirabi poured kerosene on her person and her father-in-law set her ablaze by
igniting a matchstick. As she raised shouts, neighbouring people rushed there and
extinguished the fire. Shahnaz Parveen, Sk. Muqtar and husband of Shakilabi took
her to Chikhali hospital and she was admitted there. Thus, the first dying declaration
(Exh.58) does not reveal the presence of Sk.Shabbir and Khwaja Sk.Sattar. In fact,
the second dying declaration shows the active participation of these two persons who
were brothers-in-law of Shahista, instigated the accused to set her ablaze. They also
closed the front door so that the act of burn should get completed. Thus, there is
material inconsistency in both these dying declarations-(Exs. 58) and (Exh.48). In view
thereof, no reliance can be placed on those documents.
11. On the point of inconsistent dying declaration, an useful reference can
be made to the judgment in the case of Bhadragiri Venkata Ravi vs. Public
Prosecutor, High Court of Andhra Pradesh, reported in (2013) 14 SCC 145. Para Nos.
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22,23, and 24 read thus :
“22. It is a settled legal proposition that in case there
are apparent discrepancies in two trying declarations, it would be
unsafe to convict the accused. In such a fact-situation, the accused
gets the benefit of doubt. (vide Sanjay v. State of Maharashtra:
(2007) 9 SCC 148; and Heeralal v.State of Madhya Pradesh,
(2009) 12 SCC 671).
23. In case of plural/multiple dying declarations, the
court has to scrutinise the evidence cautiously and must find out
whether are is consistency particularly in material particulars
therein. In case there are inter-se discrepancies in the depositions
of the witnesses given in support of one of the dying declarations, it
would not be safe to rely upon the same. In fact it is not the
plurarity of the dying declarations but the reliability thereof that
adds weigh to the prosecution case. If the dying declaration is
found to be voluntary, reliable and made in a fit mental condition, it
can be relied upon without any corroboration. But the statements
should be consistent throughout.
24. In case of inconsistencies, the court has to examine
the nature of the same i.e. whether they are material or not and
while scrutinising the contents of various dying declaratios, the
court has to examine the same in the light of the various
surrounding facts and circumstances, In case of dying declaration,
as the accused does not have right to cross-examine the maker
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12witnesses, it would not be safe to rely if the dying declaration does
not inspire full confidence of the court about its correctness, as it
may be result of tutoring, prompting or product of imagination. The
court has to be satisfied that the maker was in a fit state of mind
and had a clear opportunity to observe and identify the
assailant(s).”
12. In case of Samadhan Dhudaka Koli vs.State of Maharashtra, reported
in (2008) 16 SCC 705, on the point of inconsistent dying declaration, it has been held
in . Para nos.15,16,18 as under :-
“15 Evidently, there are a few inconsistent and contradictory
dying declarations. The court while appreciating evidence on the basis
of such dying declarations is required to take into consideration
inconsistencies between two statements. In this case, the learned
Sessions Judge and the High Court proceeded on the basis that out of
the three dying declarations, in two of them the deceased did not
make any allegation against her husband.
16. A judgment of conviction can be recorded on the basis of
a dying declaration alone, but the court must have been satisfied that
the same was true and voluntary. Indisputably, for ascertaining the
truth as regards the voluntariness of making such a dying declaration,
the court is entitled to look into the other circumstances but the
converse may not be true.
18. Consistency in the dying declaration, therefore, is a very
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13relevant factor. Such a relevant factor cannot be ignored. When a
contradictory and inconsistent stand is taken by the deceased herself
in different dying declarations, they should not be accepted on their face
value. In any event, as a rule of prudence, corroboration must be
sought from other evidence brought on record. In Mehiboobsab
Abbasabi Nadaf vs.State of Karnataka (2007 (9) SCALE 473) where
four dying declarations were record,this court opined :
“6. Conviction can indisputably be based on a dying
declaration. But, before it can be acted upon, the same
must be held to have been rendered voluntarily and
truthfully. Consistency in the dying declaration is the
relevant factor for placing full reliance thereupon. In this
case, the deceased herself had taken contradictory and
inconsistent stand in different dying declarations. They,
therefore, should not be accepted on their face value.
Caution,in this behalf, is required to be applied.”
This Court noticed that as the deceased attributed the acts primarily on
her parents-in-law and they having been acquitted, it was difficult to hold that
appellant alone was responsible for causing her death.”
13. In the instant case as discussed above, there is involvement of two
more persons, Sk. Shabbir and Khwaja Sk.Sattar in the second dying declaration,
which is missing in first dying declaration. Thus, it is difficult to hold that the accused
were only responsible to cause death of Shahista.
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14. In this context, it would be advantageous to refer to the judgment on
the point of fitness of the person making the dying declaration, in the case of Manik
Vanaji Gawali vs.State of Maharashtra; reported in 2013 CRI.L.J. 972, more particularly
para nos.31 reads thus:
“31. Whether a declarant is in fit state of mind is a question of
fact. That fact is to be proved by the person who has received,
listened, drawn memorandum or leaves in his memory. He has to
prove the fact of state of health and mind of the declarant. Whenever
such person proves that the declarant was in fit state of mind, it is his
own opinion based on judgment as to said state derived from facts.”
15. The Division Bench of this Court, in the case of Manohar Landge vs.
State of Maharashtra, reported in 2000(2) Mh.L.J. page 3, has held that the doctor
must state about general physical condition of patient before stating, whether patient
was physically and mentally fit to give statement and that evidence can be brought on
record by producing relevant case papers. In the case of Kanchy Ramchander vs.
State of A.P. reported in 1995 Supp (4) SCC 118, it has been held that dying
declaration if found to be true and free from embellishment then it is sufficient for
recording conviction. The prosecution must prove that the deceased was in proper
mental condition to make the dying declaration. The failure of the prosecution to
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establish that the deceased, before she made the dying declaration, was in proper
mental condition to make the dying declaration detracts materially from the reliability of
the dying declaration and it would not be safe to rely upon it.
16. This Court in the case of Sanjay Saosakde vs. The State of
Maharashtra, reported in MANU/MH/3207/2015 has, in similar circumstances, held that
dying declaration should be voluntary and should not be prompted and physical well as
mental fitness of maker was to be proved by the prosecution. It is further held that the
prosecution has miserably failed to prove material aspect beyond reasonable doubt.
17. It is noticed that PW8 has not satisfied himself that the patient was
physically and mentally fit to give her statement. The testimony of PW7 does not
inspire confidence on the aspect that Shahista was all throughout while recording her
statement mentally as well as physically fit to give statement. Thus, the dying
declaration (Exh.58) is not found to be reliable and trustworthy document.
18. Now coming to the second dying declaration of Shahista recorded by
PW6-Subhash Bawskar, PSI, on 31.1.2010 (Exh.48). The testimony of PW6 nowhere
shows that he has verified whether the patient is mentally and physically fit to give her
statement on 31.1.2010. In this context, the testimony of PW7-Dr.Vanjari shows that on
31.1.2010 general condition of Shahista was not satisfactory. Thus, PW6 has not
satisfied himself that the patient was in a fit mental condition to give her statement.
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PW6 has remained silent on the aspect of contents in the said dying declaration
(Exh.48). Thus, both the dying declarations i.e Exh.58 and 48 are not found to be
reliable and trustworthy documents.
19. As far as oral dying declaration is concerned, PW1-Mubarak Khan,
father of deceased, testified that on 22.1.2010 at around 8.00 pm, he received a
phone call from accused no.2-Sk.Sattar informing that his daughter has sustained burn
injuries and she was hospitalised in Chikhali hospital. On receipt of said message,
PW1 along with Latif Khan (PW2), uncle of the deceased, proceeded to Government
Hospital at Chikhali. The doctor told them that Shahista should be taken to Buldana.
Accordingly, Shahista was carried in an ambulance from Chikhali to Buldana at
about 9.30 pm. Thereafter PW2 enquired with Shahista as to what had happened. On
this, she stated that since morning all the accused were quarreling with her and
making demand of amount. In the evening, while she was cooking food on hearth,
at about 7.00 accused nos.1,4 and 5 caught hold of her hands ; accused no.3- Najirabi
poured kerosene on her person and accused no.2 ignited the matchstick and set her
ablaze.
20. In the course of cross-examination, PW1 admitted that accused no.2 i.e.
father-in-law of Shahista, Shahnaz Parveen (DW1) and Shakilabi (not examined)
accompanied Shahista in the ambulance while he was riding a motorcycle.
Significantly, an improvement was pointed out in his version to the effect that Shahista
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disclosed him about the said incident at Buldana. The said improvement in the version
of PW1 goes to the root of the case and creates a serious doubt as to whether
Shahista made any statement before her father at Buldana. Admittedly prior to that
Shahista, was at Chikhali hospital and was carried in an ambulance to Buldana
hospital and in the said ambulance PW1 did not accompany her but he was on his
motorcycle from Chikhali to Buldana. Thus, there was no occasion for PW1 to speak
with his daughter prior to reaching at Buldana. So far as the oral dying declaration is
concerned, it is an omission in the deposition of PW1 about Shahista making any
statement before him at Buldana. Significantly, the statement of PW1 was not
recorded by the police till 31.1.2010 from the date of incident, ie 22.1.2010. Thus, the
testimony of PW1 is not found to be reliable on the point of oral dying declaration.
21. So far as the testimony of PW2-Latif Khan is concerned, according to
him, Shahista was brought from Chikhali to Buldana in an ambulance and she was
admitted in the hospital. He made enquiry with her about the injuries. She told that
while she was preparing food, some of accused had caught hold her hands and
some had caught legs and set her on fire. PW2 has also made an improvement with
regard to the statement that Shahista had narrated the incident at Buldana.
Pertinently, PW 2 has stated that PW1 was standing outside the hospital whereas he
went inside the hospital and at that time Shahista made a statement before him.
According to PW1, Shahista made a statement in front of them. The said discrepancy
goes to the root of the case so also omission pointed out in the testimony of PW 2
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makes the testimony doubtful. Thus, PW2 is not found to be reliable witness on the
point of oral dying declaration.
22. On the point of cruelty, the testimony of PW1 shows that after
marriage, the accused treated Shahista quite well for about 2 months thereafter they
started ill-treating her on trivial issues and they used to make regular demand of Rs.
50,000/- for establishing a grocery shop. On this point, PW2-Latif Khan stated that
only once the accused had demanded a sum of Rs.50,000/- for establishing a
grocery shop. According to PW1 he had given one gas cylinder and sums of Rs.
2000/- and further Rs. 5000/- to the accused. Thus, PW1 has not stated that accused
had demanded gas cylinder and amount of Rs.2000/- and Rs.5000/- respectively from
PW1. It appears that PW1 had gifted gas cylinder and the cash amount to his
daughter whereas according to PW2, accused no.2 had demanded the gas cylinder
and the amount of Rs. 2000/- as well as Rs. 5000/-. According to PW2, it was paid in
his presence, whereas PW1 has not stated about the demand of the said amount and
the gas cylinder. There appears to be discrepancy in the testimony of PW1-Mubarak
Khan and PW2-Latif Khan, on the point of alleged demand. Thus, the testimony of PW
1 and PW 2 is not reliable on this aspect also.
23. During the course of cross-examination of PI Subhash Bawaskar
(PW6), he had admitted that it transpired that Mohd. Shabbir was at Jafradabd at the
time of incident; and Sk.Khwaja was at also at Jafrabad attending CET classes at the
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time of the incident. Thus, according to PW6, both the brothers-in-law of Shahista were
not present in the house at the time of the incident. On going through the testimony of
PW6, it is not clear as to why he has not recorded the statement of Shahista on
23.1.2010 and why he remained silent from 23 rd to 30th January, 2010. It appears that
on discussing with PW1 and PW2, PW6 has concocted the case against the accused
persons.
24. It is worthwhile to note that the prosecution has not examined the
material witnesses, i.e. Shahnaz Parveen and Shakilabi who accompanied the
deceased in ambulance from Chikhali to Buldana. The defence has examined
Shahnaz Parveen as defence witness whose testimony indicates that on the date of
the incident at about 7.00 pm, she heard shouts from the house of the accused. She
went there; Shakilabi (not examined) also came there. Shahista was in the middle
room. She was burning, while her in-laws were extinguishing the fire. The A2 called for
an autorickshaw. Shakilabi, A3-Najirabi and Shahista occupied the autorickshaw. On
making enquiry with Shahista as to how she received burn injuries, Shahista told that
she herself set her on fire. They came to Chikhali at that time her father and uncle
came to meet her. On making enquiry by her father and uncle Shahista informed that
she set herself on fire. Thereafter they proceeded to Buldana. She along with
Shakilabi returned home. The testimony of DW1 has not shaken at all in the cross-
examination by the learned Prosecutor. In fact, no prosecution case was put to her.
Although she was cited as prosecution, witness, she was not examined as a
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APPEAL.257.11
20
prosecution witness. Perhaps she was not supporting the prosecution. Thus, the
entire case of the prosecution is under the shadow of doubt.
25. Learned counsel for the accused brought to my notice, the judgment in
the case of State of Gujarat vs. Jayrajbhai Varu reported in (2016) 14 SCC 151; Para
nos. 15,17,18,20, read thus:
15. The courts below have to be extremely careful when they
deal with a dying declaration as the maker thereof is not available
for the cross-examination which poses a great difficulty to the
accused person. A mechanical approach in relying upon a dying
declaration just because it is there is extremely dangerous. The
court has to examine a dying declaration scrupulously with a
microscopic eye to find out whether the dying declaration is
voluntary, truthful, made in a conscious sate of mind and without
being influenced by the relatives present or by the investigating
agency who may be interested in the success of investigation or
which may be negligent while recording the dying declaration.
17. A number of times the relatives influence the
investigating agency and bring about a dying declaration. The dying
declarations recorded by the investigating agencies have to be very
scrupulously examined and the court must remain alive to all the
attendant circumstances at the time when the dying declaration
comes into being. In case of more than one dying declaration, the
intrinsic contradictions in those dying declarations are extremely
important. It cannot be that a dying declaration which supports the::: Uploaded on – 05/10/2018 06/10/2018 01:55:56 :::
APPEAL.257.11
21prosecution alone can be accepted while the other innocent duying
declarations have to be rejected. Such a trend will be extremely
dangerous. However, the courts below are fully entitled to act on
the dying declarations and make them the basis of conviction,
where the dying declarations pass all the above tests.
18. The Court has to weigh all the attendant
circumstances and come to the independent finding whether the
dying declaration was properly recorded and whether it was
voluntary and truthful. Once the court is convinced that the dying
declaration is so recorded, it may be acted upon and can be made
a basis of conviction. The Courts must bear in mind that each
criminal trial is an individual aspect. It may differ from the other
trials in some or the other respect and, therefore, a mechanical
approach to the law of dying declaration has to be shunned.
20. The burden of proof in criminal law is beyond all
reasonable doubt. The prosecution has to prove the guilt of the
accused beyond all reasonable doubt and it is also the rule of
justice in criminal law that if two views are possible on the
evidence adduced in the case, one pointing to the guilt of the
accused and the other towards his innocence, the view which is
favourable to the accused should be adopted. ”
26. The overall assessment of the prosecution case demonstrates that the
oral as well as written dying declarations are not proved by the prosecution. No doubt,
the medical evidence shows that Shahista died “due to septicemia due to superficial
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APPEAL.257.11
22
to deep burns 63%” burns; however the prosecution has failed to prove that it was a
homicidal death. In that view of the matter, in our considered opinion, no interference
is called for with the judgment passed by the learned trial Court.
27. In the case of Mahendra Pratap Singh vs. State of Uttar Pradesh,
reported in (2009) 11 SCC 334, the Hon’ble Apex Court has given a rule of prudence
that if on appraisal of evidence and on considering relevant attending circumstances, it
is found that two views are possible, one for acquitting accused and other for
convicting accused, in such a situation, rule of prudence should guide High Court not
to disturb the order of acquittal made by the trial court, unless conclusions of trial court
drawn on evidence on record are found to be unreasonable and perverse or
unsustainable, High Court should not interfere with the order of acquittal. In the case of
Harbeer Singh vs. Sheeshpal and others, reported in (2016) 16 SCC 418, it is
observed by the Hon’ble Supreme Court on the same facts that another view could
also have been taken on the evidence on record, is not a ground for reversing an order
of acquittal. In view of the aforesaid facts and circumstances, no interference is
warranted with the order of acquittal. Hence, the following order :
ORDER
Criminal Appeal No.257/2011 is dismissed.
JUDGE JUDGE
sahare
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