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State Of Maharashtra-vs-Rasul And Anr. on 30 July, 2007

Bombay High Court State Of Maharashtra-vs-Rasul And Anr. on 30 July, 2007
Equivalent citations:I (2008) DMC 358
Author: C Pangarkar
Bench: C Pangarkar

JUDGMENT

C.L. Pangarkar, J.

1. This is an appeal by the State of Maharashtra against the judgment delivered by 2nd Additional Sessions Judge, Akola, whereby she acquitted both the accused of the offences punishable under Sections 306, 498A r/w Section 34 of I.P. Code.

2. The facts giving rise to this prosecution are as under: Deceased Nahid Anjum was married to accused No. 1 on 26.4.1992. Accused No. 1 used to ill-treat Nahid since the time of her marriage. She was being beaten by accused No. 1 and was also forced to bring sum of Rs. 30,000 from her father. He used to give her threat that if she does not bring the money, he will not cohabit with her and will not keep any kind of relations with her. Accused No. 1 used to insist upon the deceased to write a letter to her father making such demand. The deceased asked accused No. 1 as to why he wanted money. She, however, wrote two chits to her father, who is the complainant. In one of those chits, she had written to her father that her husband wanted money for being given to Hamidabee as demanded by her. Hamidabee is the keep of accused No. 1. When the complainant came to know of this, he called a meeting of the elderly persons from the house of accused No. 1 and discussed the same with them. Accused No. 1 tendered apology for the ill-treatment meted out to Nahid Anjum and assured that he will not do such thing again. However, on 23.8.1992, one Sk. Akbar informed the complainant around 2.00 a.m. that Nahid has sustained burn injuries. Immediately, complainant’s elder son Javed went to the house of Nahid. She was lying there all alone in serious condition. She was removed by Javed to the hospital. It is alleged that Nahid had told Javed that both the accused had set her on fire and they had run away.

3. After deceased was admitted to the hospital, her two dying declarations were recorded by two different Executive Magistrates. Upon those dying declarations, offence was registered by the police. The deceased died of the burn injuries sustained by her. The Police had drawn spot Panchanama and after completion of the investigation, a charge-sheet came to be filed against both the accused.

4. The Judicial Magistrate (F.C.) committed the case to the Court of Sessions. The Sessions Judge framed charge against both the accused to which both pleaded not guilty and claimed to be tried. Their defence was of total denial. After hearing the evidence, the learned Sessions Judge acquitted both the accused. Hence, this appeal against the acquittal.

5. I have heard Mr. Y.B. Mandpe, Additional Public Prosecutor for the State and Shriniwas Deshpande, Advocate for the respondents. I have also perused the record.

6. The first thing that requires to be seen is whether the death of deceased is suicidal, accidental or homicidal.

7. The Post-mortem Note (Exh. 34) is admitted by the accused. Postmortem Note (Exh. 34) shows that the deceased had suffered 98% burns and she died due to septicemia. It shows that the burn injuries were ante-mortem. It is thus clear that the deceased certainly died unnatural death. It is a fact that none had seen the incident and, therefore, none knows how the deceased caught fire. Although P.W.6 Mohammad Javed carried the deceased to hospital from home, he does not claim that deceased had told him as to how she had caught fire. The Judge of the lower Court has relied upon two dying declarations in para No. 22 of her judgment to hold the death to be suicidal. Surprisingly, the learned Judge has refused to rely upon the two dying declarations to hold that the accused are the abettors and that is clear from the observations in para No. 29 of her judgment. There is virtually no discussion of evidence about the trustworthiness of the dying declaration at all. If at all we have to arrive at a conclusion as to whether the death is suicidal, homicidal or accidental, it will be only on the basis of the dying declarations made by the deceased and if they are trustworthy. The learned Judge has neither discussed the evidence of the Executive Magistrate nor that of the Medical Officer. It has, therefore, become absolutely necessary to consider if the dying declarations could be relied upon.

8. I am quite aware that the High Court should be very slow in interfering with the finding of acquittal and should not convict simply because other view is possible. In this case, I would say that the learned Judge of the lower Court has refused to look into the evidence available and, therefore, arrived at a wrong conclusion. Hence, I am compelled to appreciate the entire evidence over again.

9. There are only two dying declarations which are recorded by two different Executive Magistrates. The first in time is the dying declaration recorded by P.W.10 Devman Uparwat – the Naib Tahsildar. He states that he received a requisition at 3.50 a.m. on 24.8.1992 to record dying declaration and accordingly he went to the hospital and contacted the Medical Officer. He states that he requested the Medical Officer to examine the patient and to certify if the patient was in fit condition. He also states that the Medical Officer certified her to be fit to give statement. He also goes on to state that he satisfied himself also about the fitness of the patient. He further states that he recorded the statements as told by Nahid and she put her signature on it. The dying declaration is Exh. 33-B. He further states that the Medical Officer had again examined her and found her to be fit. If the cross-examination of the witness is seen, a few suggestions are put to witness about the fitness of patient. The witness is very firm that he had himself put certain questions to test mental fitness of the patient. Even otherwise P.W.2 Dr. Sharma positively states that he had examined the patient before and after recording the dying declaration she was in fit condition. It is in his cross-examination that he had recorded blood-pressure (B.P.) and pulse also and had put certain questions to test the orientation. If the cross-examination of P.W.10 Devman Uparwat -Executive Magistrate is seen, there is nothing to suggest that the deceased was tutored. It may be seen that the incident had occurred at mid-night i.e. around 1 to 1.30 a.m. as can be seen from the dying declaration (Exh. 33). This dying declaration is recorded at 4 a.m. i.e. within two hours. Besides the brother (P. W.6), nobody was with her. There is no suggestion to P.W, 10 – the Executive Magistrate, that anybody from the family was near her bed and had tutored her. It is suggested to P.W.10 that the father of deceased is from the department as that of the Executive Magistrate and, therefore, he has created a false document. The suggestion is denied. In fact, the second report (Exh. 31) lodged by the complainant shows that when he went to hospital, dying declaration was already recorded. Obviously, this dying declaration was not recorded to please the father of the deceased as is suggested to P.W.10. The dying declaration even bears signature of the deceased. It is obvious from the fact that she had put her signature that her mental and physical faculties were perfectly normal and, therefore, she could put her signature. This dying declaration is certainly free from any kind of infirmity. The deceased had told that her husband has kept concubine and her name is Hamidabee and she has three children. She had also told that her husband remains with her till late night and comes home late. She further has stated in her dying declaration that when she asked him where he had been, quarrel ensued, husband beat her, she poured kerosene on her person and set herself on fire. To another question, she positively answers that her husband did not set her on fire but she herself did it. This dying declaration, therefore, certainly shows that the deceased had poured kerosene on her person and set herself on fire.

10. The second dying declaration (Exh. 36-C) was recorded on 25.8.1992 by Executive Magistrate Shri Ram Joshi. He states that he recorded the dying declaration after the patient was examined by Medical Officer and had certified the patient to be in fit condition. He states that after he recorded the dying declaration as stated by Nahid, she had put her signature on the statement. He further states that the Medical Officer had once again examined her and found her to be fit. This dying declaration also bears signature of the deceased. A few questions are put to the witness as to how the alphabets have been written. There is no doubt that they are not properly written but that is even not expected of the patient who had suffered 98% burns. On the other hand, suggestion is given that signature was obtained when she was conscious. Thus, it is not disputed that it is her signature. Dr. Sonone (P.W.3) has categorically stated that the patient was fit before and after recording of the dying declaration. The witness does admit that the consciousness of the patient depends upon quantity of sedatives given. It is, however, not elicited as to what amount of dose was given to deceased patient. In the circumstances, there is nothing to suggest that the patient was under the influence of the sedatives. I do not find anything suggesting that the patient was not in a fit mental condition. The evidence of the Executive Magistrate Shri Joshi (P.W.4) clearly establishes that he recorded the dying declaration as told by the deceased. This dying declaration too does not, therefore, suffer from any kind of infirmity. In this dying declaration, the deceased had stated as follows:

There used to be quarrel between me and my husband as he is involved in one woman and her name is Hamidabee. She resides in front of our house. During quarrel, he poured kerosene and when I ignited match-stick, he said that he will not regret if I suffer burns. Hence, I ignited the match-stick and set myself on fire.

It is obvious that in both dying declarations, the deceased is positive that she set herself on fire. In second dying declaration, however, she says that her husband had poured kerosene and in first she claims that she herself poured kerosene. Besides this minor, discrepancy in two dying declarations, there is no other. There is no difficulty, therefore, in concluding that the deceased set herself on fire and her death is suicidal.

11. In fact, it may be mentioned here that though the father of the deceased wanted [as can be seen from the second report (Exh. 31)] a dying declaration implicating accused and others, she was firm that she set her on fire. Here, she could have very well said that her husband set herself on fire but she did not. It is for this reason also I find that the dying declaration cannot be thrown away due to minor discrepancy and there is no ground to believe that the dying declaration is outcome of any kind of tutoring. It is in fact apparent that she did not fall prey to what her father wanted her to say.

12. Now, in both these dying declarations the deceased clearly and unequivocally says that her husband – accused No. 1 had illicit relations with Hamidabee-accused No. 2. We have seen that the first dying declaration was recorded within 2-3 hours of her sustaining burn injuries and in that also she says that her husband came late at home in the night and she questioned him. She alleges that he remains with Hamidabee – accused No. 2 till late night and comes home late. In second dying declaration also she says that accused No. 1 is involved in accused No. 2 whose name is Hamidabee. It should be borne in mind here that as per P.W.I, the deceased was married to accused No. 1 on 26.4.1992 and the incident took place on 23.8.1992 i.e. within four months of the marriage. It is difficult to imagine a plight of a newly married woman whose husband is discovered to be having illicit relations and who comes home late in the night. There could be nothing more frustrating for a newly married woman. It appears from the second dying declaration (Exh. 36-C) that on this count then used to be quarrels. It is apparent, therefore that deceased used to protest and accused No. 1 did not pay any heed. If in spite of the protest accused No. 1 continued to have illicit relations the act of the accused could certainly be said to be cruel which could certainly compel a newly married woman to end her life. This act of the accused must have caused mental cruelty to deceased.

13. These allegations in the dying declaration find support in F.I.R. (Exh. 27) lodged on 24.8.1992 at 18.25 hrs. In this F.I.R. itself, it is alleged that accused No. 1 had illicit relations with accused No. 2 and, therefore, accused No. 1 was demanding Rs. 30,000 to get rid of accused No. 2. Had there been no illicit relations, the father would not have written about them in the report lodged by him soon after the incident. There could be no reason for deceased to falsely say that her husband had illicit relations. Had the relations been strained on account of any other thing, she could have put forth those reasons, but consistently she puts the reason of illicit relations only. It has been suggested to P.W.6 Javed – the brother of deceased in cross-examination that accused No. 1 had come to their house with Nahid – the deceased and he tendered apology and this has been accepted by P.W.6. Now, this suggestion lends support to the theory that the deceased had complained to parents and accused No. 1 went with her and tendered apology. It is in the evidence of Mohd Javed further that when his sister had complained, there was a meeting with relatives of accused No. 1 and accused No. 1 assured that he would not do so. If the cross-examination of this witness is seen, it would be apparent that accused did not dispute that there was such a meeting and accused No. 1 expressed regrets. It would be appropriate to reproduce here what he stated in the cross-examination.

When the accused Sk. Rasul tendered apology at that time his elder brother Babbubhai was present there. Babbubhai is the husband of my cousin sister. Despite of the fact that accused tendered apology yet there was no changes in his conduct, yet I never made any complaint about the conduct of accused Sk. Rasul with Babbubhai or the father of accused Sk. Rasul. I never disclosed the complaints made by Nahid to me about the conduct of accused Sk. Rasul, his mother and my sister Nahid they were at our place to tender apology.

14. Even though witness may have admitted that he did not disclose it to anybody, that makes no difference. It is in evidence that father was already present in the meeting and accused No. 1 with Nahid had come to house of her parents and, therefore, knew everything. Hence, non-discloser by the witness to anybody is of no consequence. The learned Sessions Judge had refused to put reliance on the evidence of this witness for this reason which, to my mind, was not proper.

15. The prosecution relies on two chits (Exh. 28 and Exh. 29), which are said to have been written by the deceased to her father soon after the marriage, P.W. 1 Sk. Daulat has proved these chits by identifying the handwriting of his daughter. It is suggested to this witness that these two documents were fabricated and were not in existence on 24th and 25th of August, 1992. These documents are seized on 26th as per Panchanama (Exh. 30). Many questions are put to witness about this and omission about the letters in report (Exh. 31). There is no reference to these chits in this report. This report is dated 25.8.1992 lodged at 11.00 a.m. However, in the first report (Exh. 27) dated 24.8.1992, there is clear reference to these chits. Therefore, there is no substance in the suggestion that these chits were not in existence on 24th and 25th. On 24th itself he had made a reference in his report to these chits. They cannot, therefore, be said to be fabricated for the purpose of this incident. The daughter of the witness was on the verge of death and it is quite probable that it must have escaped his attention that he should immediately hand them over to police. The witness, in fact, gives such explanation. P.W.5 Mohd Javed has stated that these chits were handed over to him by his sister when he used to go to her while going to school. He denies the suggestion that these chits were prepared after the incident. There is nothing in the cross-examination of the witness which would discredit him. P.W.I Sk. Daulat – the father of the deceased has identified the handwriting of his daughter. It is quite natural for the younger brother to go to his sister’s house who is recently married. Thus, when he says that he used to go to his sister and she handed over chits to him, I do not see anything unnatural in it. I, therefore, find that it is quite safe to rely on the evidence in the form of these chits. It appears to me that the learned Sessions Judge was only searching excuses to discard the evidence.

16. The Chits Exhs. 28 and 29 are material pieces of evidence. The contents corroborate with dying declaration that accused No. 1 had extra marital relations with Hamidabee. Thus, these chits also lend support and make it more safe to rely upon the dying declaration.

17. We have seen that it is consistently stated by deceased that accused No. 1 had extra marital relations. The deceased had discovered it soon after the marriage. It ought to be a frustrating experience for a newly married woman. But in spite of protest by deceased accused, continued to have extra marital relations. That certainly amounts to cruelty and such an act would drive any newly married woman to end her life. It is not even suggested to any witness as to what was the cause for the deceased to end her life. In the absence of any such reason put forth by accused, the reason as given by deceased appears to be true. I, therefore, find that the prosecution has proved the offence of abetment of suicide and cruelty within the meaning of Sections 306 and 498A of Indian Penal Code against accused No. 1. However, accused No. 2 cannot be held guilty as it is not stated by deceased or any witness that accused No. 2 had at any time come to the house of deceased and said anything to her. If the husband of the deceased had kept relations with accused No. 2, it cannot be said that she intended that the deceased should commit suicide. In fact, there is no evidence of harassment against accused No. 2 to the deceased. Therefore, accused No. 2 was rightly acquitted. I, therefore, proceed to allow the appeal partly and proceed to hear accused No. 1 on question of sentence.

18. Heard learned Counsel for the accused on the question of sentence and the learned Additional Public Prosecutor for the State.

19. It is stated by the learned Counsel for the accused that the incident in question had taken place in the year 1992 i.e. almost 15 years ago. The accused was acquitted by the Sessions Judge. Considering the fact that the incident had taken place in the year 1992, it will not be desirable to take harsh view in the matter. In the circumstances, I find that the following sentence shall meet the ends of justice. Hence, the following order.

The appeal is partly allowed.

20. The acquittal of the accused No. 1 Sk. Rasul s/o Sk. Maheboob is set aside.

He is convicted for offences punishable under Section 306 of the Indian Penal Code and he is sentenced to undergo imprisonment for a period of two years and to pay fine of Rs. 1,000 (Rs. one thousand only), in default to undergo rigorous imprisonment for two months for having committed offence under Section 306 of Indian Penal Code. He is also convicted for offence punishable under Section 498A of Indian Penal Code and is sentenced to undergo imprisonment for a period of six months and to pay fine of Rs. 500 (Rs. five hundred only), in default to suffer rigorous imprisonment for a period of one month.

21. Both sentences shall run concurrently.

The accused No. 1 to surrender to the bail. The acquittal of the accused No. 2 is confirmed.

Lawyer’s fee is quantified at Rs. 3,000 which would be payable by High Court Legal Aid Services, Sub-Committee, Nagpur.

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