apeal358.02.J.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.358 OF 2002
The State of Maharashtra through
PSO Police Station Ambazari,
Nagpur. ....... APPELLANT
...V E R S U S...
Iqbal s/o Fazlak Sheikh
Aged about 21 years,
R/o Sanjay Nagar,
Pandhrabodi, Nagpur. ....... RESPONDENT
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Mrs. R.A. Deshpande, APP for Appellant.
Mrs. Nisha Gajbhiye, Advocate (appointed) for Respondent.
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CORAM: B.P. DHARMADHIKARI AND
R.K.
DESHPANDE, J.
DATE: 17 th
MAY, 2016.
ORAL JUDGMENT: (PER B.P. DHARMADHIKARI J.):
1] By this appeal filed under Section 378 of the Code of
Criminal Procedure, appellant - State of Maharashtra challenges acquittal of respondent by Sessions Judge, Nagpur in Sessions Trial No.133 of 1997 on 11.02.2002 for an offence punishable under Section 302 of IPC.
2] The matter has been listed before Special Bench in Summer Vacation, 2016. We heard learned APP Mrs. R.A. Deshpande for ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 2/11 appellant - State and learned counsel appointed Mrs. Nisha Gajbhiye for respondent.
3] APP Mrs. Deshpande submits that the learned Sessions Judge has given undue importance to minor deviation in oral deposition of the eye witnesses though all of them are consistent and has stated that they have seen respondent pouring kerosene - diesel on the person of deceased Sanjay and igniting him. She relied upon dying declaration of deceased Sanjay to demonstrate that said dying declaration also supported this version of eye witnesses. Therefore, merely because eye witnesses are close relatives of deceased, their testimony cannot be discarded. The dying declaration has been proved in accordance with law, and hence the conviction could have been ordered solely by placing reliance upon it. She has also invited attention to the fact that when respondent was arrested, he was found to possess the burn injuries and the same are proved on record by producing a certificate at Exhibit 36.
Thus, presence of respondent on the spot of incident and his involvement therein is established.
4] Advocate Gajbhiye, on the other hand states that oral evidence of so called eye witnesses is mutually inconsistent and therefore, has been discarded. Evidence of complainant and of deceased Sanjay in dying declaration also does not show any consistency. In the ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 3/11 situation when the family of deceased is alleging previous enmity and accused is also urging that relationship between families were hostile, the cautious approach adopted by learned Sessions Court needs to be maintained. She submits that exact location of bath room in which incident occurred has not come on record. Alleged stick with which complainant Wasudeo delivered blow on head of respondent has not been produced by prosecution. Similarly, the grip which was removed from electric circuit to cause darkness has also not been seized.
The family of deceased has been admittedly using kerosene lamps made of glass bottles and hence, the blame put up on accused is unwarranted.
5] Both learned counsel have taken us through relevant evidence as also dying declaration.
6] The incident has taken place in early hours of 15.11.1996.
As per prosecution story family members of deceased Sanjay woke up him to find out what went wrong with electric supply at about 03:00 a.m. Wasudeo (complainant), Sanjay and other members came out near electric and meter fuse - grip was seen lying on the ground, Sanjay tried to fix it, but could not complete the job. It was decided that it should be repaired in the morning. Sanjay then went to bath room and found respondent Iqbal standing there. Iqbal was having glass bottle containing kerosene or petrol. Sanjay shouted, Wasudeo and other family members ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 4/11 started towards bath room. In the meanwhile, Iqbal broke the bottle on the head of the Sanjay and inflammable material therein fell on the person of Sanjay and part of it also fell on clothes of P.W.8 Wasudeo, Iqbal then ignited match stick and set Sanjay on fire. Sanjay and Wasudeo went out of bath room. Fire was extinguished by Mangalabai and Jijabai. Sanjay and Wasudeo both suffered burn injuries.
7] Wasudeo and Sanjay were admitted in Medical College and Hospital, Nagpur. Mangalabai was dropped at Police Station to report the matter, spot was shown by P.W.10 Jijabai w/o Wasudeo Dhone, PSI Faheem (P.W.11) prepared spot panchanama, effected seizure and then went to Medical College where he recorded report at Exhibit 23 of P.W.8 Wasudeo. He then registered offence under Section 307 of IPC against the accused as per FIR Exhibit 35. Iqbal was arrested on the same day and had burn injuries on his arms. He was referred to Doctor vide requisition at Exhibit 36. Iqbal was thereafter arrested, requisition at Exhibit 26 was sent to the Special Judicial Magistrate. P.W.9 Shri Niyaji, who then recorded dying declaration of Sanjay at Exhibit 28. Sanjay died on 28.11.1996.
8] We find it proper to first dealt with dying declaration of Sanjay. Though dying declaration was recorded by P.W.9 Niyaji on 15.11.1996, he retained it with himself till 05.12.1996 and then ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 5/11 forwarded it to Investigating Officer. He was aware of requirement of sending it immediately to the Chief Judicial Magistrate and to provide it to Investigating Officer. He could not satisfactorily answer the undue long time taken by him. Dying declaration itself shows that it is written in hand writing on plain papers in question answer form.
Exhibit 28 (from original record) shows that it runs into five pages.
On first page place of recording dying declaration is mentioned as Ward No.39, bed No.8 it is admitted position that Sanjay was never admitted in Ward No.39. Signature of Sanjay appears on its last page at its top.
This last page contains only signature of Sanjay. In very large font/words "SAJAY" are only written in vernacular, in fashion which show that person putting it had some difficulty while writing or then was not literate. By the side of that signature, signature of M.A. Niyaji appears.
Below words "SAJAY", again there is another signature of said M.A. Niyaji and just adjacent to this later signature word "certificate" is written. The certificate stipulates that statement was recorded by person signing it after visiting the Hospital, and patient was declared fit by the Doctor on duty. Below this certificate, again there is signature of M.A. Niyaji.
9] Thus, this material on last page can be used as last page of any statement to turn it into a dying declaration. No part of implicating statement made by deceased Sanjay appears on this last page.
::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 :::apeal358.02.J.odt 6/11 Similarly, the signature below words "SAJAY" by Mr. Niyaji appears to be inserted later on in the available space between said signature "SAJAY"
and "Certificate". Though during cross-examination, no such suggestion is given to Mr. Niyaji, this fact is apparent. Exhibit 27 is the communication by Mr. Niyaji to House Officer about fitness of patient Sanjay. In its margin, that certificate appears. Doctor, who has given that certificate has not been examined by the prosecution, but then there is no signature of any such Medical Officer on any page of Exhibit 28.
The dying declaration on its first page mentions five questions on left side and answer thereto on right hand side. This part is in Marathi.
Thereafter words "dying declaration/statement" are written in English and below that again in English preface is mentioned. Actual dying declaration starts from next page. Thus, last page of dying declaration and its first page of original record contain no part of statement implicating respondent. However, fact that Sanjay was admitted in Ward No.39 finds mention in answer to question No.1 on first page itself.
Mention by Mr. Niyaji that statement has been recorded after visiting the Hospital in "certificate" at its last page assumes importance because Sanjay was never admitted in Ward No.39. If Mr. Niyaji had been to Ward No.4 in which Sanjay was admitted, Mr. Niyaji could not have mentioned Ward No.39 at all if it is contemporaneously recorded 10] In answer to question No.5 Sanjay has stated that he could ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 7/11 not fix the fuse and went to bath room, he saw Iqbal there and enquired what he was doing in bath room, Iqbal broke bottle on Sanjay's head, kerosene and diesel in the bottle was poured on his person.
Sanjay's brother had gone to bring a stick, at that time Iqbal ignited Sanjay with match stick. His elder brother was standing by his side.
In answer to next question, he has stated that his brother came and gave a blow of stick on head of Iqbal. Some part of oil had fallen on the person of his brother. Iqbal also ignited his brother and then ran away.
This is also repeated by him in answer to question No.8. Why this was required to be repeated or why such repetitive question was required to be put, is not clear.
11] Story that the brother of deceased Sanjay went to fetch a stick, said brother (P.W.8 Wasudeo) delivered its blow on head of Iqbal or then Iqbal ignited Wasudeo is not supported by P.W.8 Wasudeo himself. His evidence shows that when Sanjay went to bath room Wasudeo was standing near the door of his room, Sanjay suddenly shouted and came out burning. He has stated that Iqbal was hiding in bath room. Iqbal broke bottle of petrol on head of Sanjay, and therefore, some petrol also got sprinkled on clothes of Wasudo. As his brother came to him running, Wasudeo's clothes caught fire. Sanjay started running in the lane and Mangalabai, wife of brother of Wasudeo, ran behind him to extinguish the fire. Iqbal started running away, he ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 8/11 delivered blow of broken bottle on Mangalabai and ran away.
Thus, Wasudeo does not support the material part of dying declaration mentioned supra.
12] Mangalabai w/o Raju Dhone is examined as P.W.12.
Perusal of her evidence shows that Sanjay could not find coil and therefore, told that he would fix in the morning. He then went inside the bath room and shouted taking name as Iqbal. Sanjay came out burning and they started running after Sanjay, she caught Sanjay. Wasudeo had also caught fire and she caught Wasudeo also. She and Jijabai (P.W.10) extinguished the fire. Thus, she saw Sanjay and Wasudeo both burning and did not see how they caught fire. Prosecution had declared her hostile and she was cross-examined. In the cross-examination she has stated that when Sanjay shouted "Iqbal, Iqbal", she saw Iqbal broke the bottle on head of Sanjay. Kerosene, petrol and diesel in it fell on the person of Sanjay. When Sanjay came out with flames at the same time she and Wasudo rushed towards Sanjay. She was not aware whether Iqbal had inflicted any injury of broken bottle on her person. Thus, this witness also does not support dying declaration of Sanjay or them statement of P.W.8 Wasudeo.
13] P.W.10 Jijabai is wife of P.W.8 Wasudeo. Her evidence shows that at about 3'o clock they got up as electric supply was ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 9/11 disturbed. They woke up Sanjay to fix the problem, Sanjay first went to bath room, thereafter he said that fuses were dropped and he would restore it in the morning. He then again went to bath room and then she heard shouts of Sanjay from inside the bath room, Mangala and Wasudeo were standing near the door. Her husband Wasudeo went inside. Then Sanjay and Wasudeo came out, Sanjay had caught fire extensively while her husband had also little fire on him. Sanjay ran outside the courtyard. They extinguished fire on the person of Wasudeo.
Mangalabai poured water and extinguished fire on Sanjay. Mangala and Wasudeo went to Police Station. In cross-examination she has stated that opening of bath room was small and only one person could pass at a time. She has further stated that prior to said incident, she was not aware of relationship of accused with Anita wife of her husband brother.
She has further stated that while extinguishing fire on Sanjay, her husband sustained some injuries.
14] The witnesses on spot panchanama have turned hostile.
Investigating Officer P.W.11 Faheem has proved spot panchanama, he has also prepared a map at Exhibit 33. That map does not specifically show the bath room. However, way to bath room appears to be very narrow and only one person could have passed at a time. P.W.11 has not seized any loose fuse grip coil or any stick from spot. P.W.8 Wasudeo has in cross-examination in paragraph 5 stated that they were having ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 10/11 kerosene lamps and those lamps were prepared out of bottles.
15] In the light of this material on record, we find the conclusion reached by learned Sessions Judge that prosecution witnesses have not placed correct and true version on record appears to be proper.
If there was illicit relationship of respondent with Anita and there was any previous quarrel between two families on that account, P.W.10 could not have learnt about that relationship only after the incident.
P.W.11 (I.O.) had recorded statement of one Sher Mohd. and taken some articles and amount of Rs.130/- from him. Prosecution could not explain why the articles and Rs.130/- were taken from Sher Mohd. and why same were returned to him later on. It is also on record that a letter was found dropped at the house of P.W.8. P.W.12 Mangalabai has spoken about that letter, as per that letter accused had offered to keep Anita in case her husband was not ready and willing to treat Anita properly.
No such letter was produced by prosecution. The defence blamed family of complainant for death of Rubina who happened to be sister of respondent/accused.
16] We have perused all other witnesses. We find nothing wrong with appreciation of controversy by learned Sessions Judge. Though, it is claimed that Iqbal had burn injuries, Doctor, who examined Iqbal was not produced as prosecution witness. Iqbal was arrested on the same day ::: Uploaded on - 23/05/2016 ::: Downloaded on - 30/07/2016 02:20:11 ::: apeal358.02.J.odt 11/11 from his residence only.
17] In this situation, we do not see any perversity in the findings and approach of trial court. No case is made out warranting interference under Section 378 of the Code of Criminal Procedure. Appeal is accordingly dismissed.
18] Properties seized be destroyed after appeal period is over.
19] Fees of counsel appointed for respondent are fixed at Rs.5000/-.
JUDGE JUDGE
NSN
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