Full Judgment Text
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CASE NO.:
Appeal (crl.) 833 of 2007
PETITIONER:
Shaikah Bakshu and Ors
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 21/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 833 OF 2007
(Arising out of S.L.P. (Crl.) No.6002 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Divison
Bench of the Bombay High Court, Aurangabad Bench.
Conviction of the appellants under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’)
was confirmed while setting aside the conviction and sentence
relatable to offence punishable under Section 498-A IPC read
with Section 34 IPC. All the appellants were convicted by
learned 1st Additional Sessions Judge, Parbhani in Sessions
Trial No. 214/2001.
3. Prosecution version as unfolded during trial is as under:
Rubina (hereinafter referred to as ’deceased’) was married
to appellant No.1 Sk. Bakshu about 8 days prior to the alleged
incident, which took place on 19.8.2001 at about 4 p.m. in the
house of the appellants. While the deceased was staying in the
house of her in-laws, the appellant No.2-Janubai Shakur,
sister in law of the deceased and appellant No.3 Safirabi Sk.
Wahed, mother in law of the deceased caught hold of her and
her husband, the appellant no.1 Sk. Bakshu by pouring
kerosene on her person, set Rubina on fire. The deceased
suffered burn injuries. While she was burning, her father in
law extinguished the fire by pouring water on her. Thereafter,
the neighbours had brought the deceased to the Civil Hospital,
Parbhani. Court witness Dr. Bhagwan Dhutmal was on duty
and after examining the patient, he started treatment.
Radhakishan Katare (PW-3), who was working as ASI in Police
Out Post in General Hospital. Parbhani, secured the MLC
Certificate from the medical officer concerning the deceased
Rubina, which is at Exhibit 13. After ascertaining from the
medical officer regarding consciousness of the patient to make
a declaration, Radhakishan (PW-3) recorded statement of the
deceased on the same day i.e. 19.8.2001 at 6 p.m. The said
dying declaration is at Exhibit 31. Thereafter, a letter was
addressed to PW1- Naib Tahsildar for recording dying
declaration of Rubina and on receipt of intimation, Narhari
Pandit. Naib Tahsildar (PW-1), proceeded to the hospital. After
ascertaining the physical and mental condition of the patient
from the medical officer, the Naib Tahsildar recorded
statement of Rubina at 7-15 p.m. which is at Exhibit 26. The
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medical officer Dr. Bhagwan endorsed on both the dying
declarations to the effect that the patient was conscious
oriented in time and space and was able to make a statement.
The first dying declaration (Exh.31) was recorded between 6
p.m. to 6-10 p.m. and the second dying declaration (Exh.26),
which was recorded by Naib Tahsildar was between 7-15 to 7-
30 p.m. on the same day i.e. 19.8.2001. The deceased died at
8-30 p.m. on 19.8.2001. According to the post mortem report,
the deceased had suffered 67% burn injuries. The post
mortem of the deceased was conducted by Dr. Ashok
Janapurkar (PW-2). The post mortem report is at Exhibit 28.
The cause of death, according to the medical officer, was due
to cardio respiratory failure due to superficial deep 66% burns.
Anil Gaikwad (PW-6) conducted the investigation of the case.
He had drawn spot panchnama and recorded statements of
witnesses. All the appellants were arrested on 20.8.2001. The
clothes of appellants were also seized. The seizure
panchnamas are at Exhibits 42, 43 and 44. On 21.8.2001,
viscera and articles seized on the spot were sent to Chemical
Analyser, whose report is Exhibit 15. In viscera, no poison was
detected. Kerosene was detected on the clothes of accused,
which were seized. After completion of investigation, the
charge-sheet was filed. The case was committed by JMFC,
Parbhani, to the Court of Sessions for trial. The charges in
Exhibit 10 were framed and the appellants were tried before
the Court, to which they pleaded not guilty and came to be
tried.
The prosecution examined 6 witnesses. In their
statement u/s 313 of Cr.P.C. the appellants denied the
incident in question and alleged that the witnesses were
demanding money and for that reason, they are deposing
falsely. The prosecution examined 6 witnesses and Dr.
Bhagwan Pandit was examined as Court witness.
4. Placing reliance on the dying declarations purportedly to
have been made by the deceased, the trial court found the
appellant guilty and convicted them and imposed
imprisonment for life and to pay a fine of Rs.100/- for the
offences punishable under Section 302 read with Section 34
IPC. In respect of offence relatable to Section 498A read with
Section 34 IPC custodial sentence of 3 years and fine of
Rs.100/- with default stipulation were imposed.
5. In appeal, it was urged that the dying declarations are
totally unreliable. The alleged place of occurrence has been
differently stated. No explanation has been offered as to why
there was necessity of recording two dying declarations.
Though there was clear evidence of tutoring, the trial court did
not attach any importance and there has been suppression of
the station diary entry. All these go to show that prosecution
has concocted a false case. The State’s response was that
after analyzing the evidence in detail conviction has been
recorded.
6. The High Court confirmed the view of the trial court
holding that the dying declaration was credible and cogent.
Therefore, conviction for offence relatable to Section 302 read
with Section 34 was maintained. But acquittal was recorded
under Section 498-A read with Section 34 IPC.
7. Stands taken before the High Court were reiterated in
this appeal.
8. The dying declarations have been marked as Exh.26 and
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Exh.31. Exh. 26 was claimed to have been recorded by the
Naib Tehsildar (PW-1) between 7.15 and 7.30 p.m. while
Exh.31 was purported to have been recorded by the Police
Officer (PW-3) at 6.00 p.m. In the Exh. 26, it was stated that
the deceased did not know name of the mother in law and that
the A-2 and A-3 were residents of Ramabai Nagar whereas the
place where the alleged incident took place was Panchsheel
road. It was stated that the neighbour had taken deceased to
hospital. Police Officer (PW-3) stated that intimation regarding
occurrence was received at 6.30 p.m. vide Exh.30. Strangely,
the dying declaration was recorded even before the intimation
had reached i.e. at 6.10 p.m. There was a point raised about
the number of marriages of the deceased. Interestingly, the
mother of the deceased supported the defence version. PW-3
in his evidence stated that he had accompanied Naib Tehsildar
(PW-1). According to Trial Court and High Court the basic
question was who recorded the dying declaration first. So far
as the dying declaration purported to have been recorded by
Naib Tehsildar (PW-1) is concerned, he has stated that one
constable accompanied him in the hospital. He did not say
that police inspector PW-3, accompanied him though PW-3
claimed it to be so. With reference to the Panchnama it
appears that no burn marks were found in the bed room on
the other hand burn marks were found in the kitchen. As
noted above, Exh.30 shows that ASI had received intimation at
6.30 p.m. Dying declaration shows it was recorded between
6.00 to 6.10 p.m. If the intimation was received at 6.30 p.m.
question of recording the dying declaration before that time
does not arise. The trial court accepted this position to be
correct from the record. But it made a new case that the time
recorded to be 6.30 p.m. appears to be a mistake made by ASI.
That was not the case of the prosecution and, in fact, PW-3
accepted that the intimation was received at 6.30 p.m. and the
dying declaration was recorded later by the Naib Tehsildar. It
has not been explained as to what was the necessity of a
second dying declaration, if there was already a dying
declaration in existence recorded by PW-3, who stated that he
had accompanied PW-1. PW-1 in his statement stated that on
19.8.2001, on the basis of a letter requiring him to record
dying declaration of the person who was admitted to the
hospital. He went to the hospital at 7.00 p.m., met the
medical officer in the hospital and thereafter he requested the
medical officer to show the person to him. The letter in
question was not produced by him. The trial court came to the
conclusion that PW-3, the medical officer and the constable
reached the Burns Ward at about 7.10 p.m. As noted above, it
was the evidence of PW-3 that he had accompanied the Naib
Tehsildar PW-1. Even if it is accepted as noted by the trial
court that the Naib Tehsildar has not produced the letter
because it may be misplaced but nothing prevented the
prosecution to produce the copy of the letter which was
purportedly written to the Naib Tehsildar. No effort in that
regard has been made. The trial court and the High Court
noted that the condition of the deceased was very poor as was
stated by the medical officer and the condition was
deteriorating since 6.10 p.m. The trial court, however, held the
dying declaration to be credible because the medical officer
was present when the dying declaration was recorded. There
as no mention in the dying declaration that it was read over
and explained to the deceased. The Trial court and the High
Court concluded that even though it is not so stated, it has to
be presumed that it was read over and explained. The view is
clearly unacceptable. So far as the presence of the relatives
and the tutoring aspect is concerned, the High Court held that
there cannot be a possibility of tutoring Rubina for falsely
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implicating appellants in the offence because of the
promptness in recording the dying declaration by PW 1 and
PW 3. The conclusion is clearly based on surmises and
conjectures. Another fallacy in the conclusions of the High
Court and the trial Court was that mere change the place of
occurrence as borne out in the dying declaration, as projected
by the prosecution with reference to the spot panchnama was
not material. According to the deceased, the occurrence took
place in the bed room. It is to be noted that no mark of burn
injury was noticed in the bed room and they were noticed in
the kitchen. High Court noted even if spot of occurrence has
not been correctly stated by the deceased same is of no
consequence. That certainly has effect on the credibility of the
dying declaration, contrary to what the High Court has
observed. Another aspect which assumes great importance is
that in the dying declaration the deceased stated that she was
brought to the hospital by a neighbour but the official records
show that she was brought to the hospital by the accused no.2
i.e. sister-in-law. It was categorically asked to the doctor
whether in the admission register it was recorded that the
injuries were due to the accidental burn. He stated that the
witness has not gone through the register of that date.
9. In view of the aforesaid infirmities the inevitable
conclusion is that the accusations of prosecution have not
been established.
10. The judgment of the High Court cannot be maintained
and the same is set aside. The appeal is allowed. The
appellants are acquitted of the charges. They be set forth at
liberty if not required in any other case.