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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.291 of 2003
Ajay s/o Hiraman Katare,
Aged about 23 years, Occ.-Private Work,
R/o.-Bhangaram Ward, Bhadrawati,
Distt. Chandrapur. .... Appellant.
-Versus-
The State of Maharashtra,
Through Police Station Officer,
Police Station Bhadrawati. .... Respondent.
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None for appellant.
Shri S.D. Sirpurkar, Addl.PP for respondent.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 30
March, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The present appeal is directed against the judgment and order of conviction passed by the Additional Sessions Judge, Chandrapur dated 30-04-2003 in Sessions Case No.15 of 1998, by which the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code [for short, "I.P.C"] and is directed to suffer imprisonment for life. The appellant is further convicted for the offence ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 2 30032017 judg. apeal 291.03.odt punishable under Section 448 of the I.P.C and on that count he is directed to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for 15 days.
2] When this matter was called for final hearing, the counsel for the appellant chose not to remain present before the Court. The matter being old one and Thursday is specifically allotted for final hearing of old matters, we proceeded with the matter.
We have heard Shri S.D. Sirpurkar, the learned Additional Public Prosecutor for the State and with his assistance we have gone through the record and proceedings.
3] According to the learned Additional Public Prosecutor, the appeal has no merit and is required to be dismissed inasmuch as according to him the learned Judge of the trial Court has rightly relied on the dying declaration (Exhibit-41) of deceased Amina Khatoon and has rightly convicted the appellant. He, therefore, submits that the appeal be dismissed.
A charge was framed against the appellant and his brothers Arvind and Vinod by the learned Additional Sessions Judge. According to the charge, on 01-11-1997 at 12.00 o'clock in the noon, the appellant poured kerosene on Amina Khatoon and set her ablaze. ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 :::
3 30032017 judg. apeal 291.03.odt The learned Judge framed charge against the appellant for the offence punishable under Sections 302, 307, 452 of the I.P.C. At the same time the learned Judge also framed charge under Section 506 read with Section 34 of the I.P.C against the appellant and his two brothers. A further charge of abetment was also framed against the brothers of the appellant to commit the murder of deceased.
4] By impugned judgment the learned Judge of the trial Court acquitted the brothers of the appellant. He also acquitted the appellant for the offence punishable under Section 506 read with Section 34 of the I.P.C. However, convicted him for the offence punishable under Sections 302 and 448 of the I.P.C.
5] Shri Kapildeo Shukla (PW-7) was Police Station Officer of Police Station Bhadrawati in the year 1997. (PW-6) Mohd. Muktar Abdul Latif was PSI in the said Police Station. On 01-11-1997, when both these officers were present in the Police Station, Vilas Gawande (PW-4) came to the Police Station along with one Sunil and informed that one woman is burnt in Bhangaram Ward. They disclosed the name of the said woman as Amina Khatoon. The said information was taken in the station diary (Article-E).
6] Thereafter (PW-6) Mohd. Muktar Abdul Latif and (PW-7)
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Kapildeo Shukla went to the spot. On the spot they noticed that Amina Khatoon was lying in a injured condition. She was taken to the hospital. According to (PW-7) Kapildeo Shukla he gave requisition (Exhibit-48) to the doctor to examine the patient, doctor examined her and issued the Injury Certificate.
7] Thereafter (PW-6) Mohd. Muktar Abdul Latif sought opinion of the doctor about the condition of the patient as to whether she could give her statement. The said request to the doctor is available on record at Exhibit-40.
According to the prosecution, doctor examined Amina Khatoon and gave a certificate that she is in a condition to give her statement.
On getting such certificate from the doctor (PW-6) Mohd. Muktar Abdul Latif proceeded to record the statement of Amina Khatoon in presence of two panchas. After recording Amina Khatoon's statement her thumb impression was obtained on the same. The dying declaration is available on record at Exhibit-41. 8] After recording her statement said PSI sent a letter to Tahsildar to record her dying declaration. However, her statement could not be recorded as she was referred to Civil Hospital, Chandrapur.
9] After recording her statement (PW-6) Mohd. Muktar Abdul Latif
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return to the Police Station and registered the offence vide Crime No. 177 of 1997 against the appellant and other accused for the offence punishable under Sections 302, 452, 506 read with 34 of the I.P.C. In the evening, he received information that injured expired in the hospital. He handed over the further investigation to (PW-7) PSO Kapildeo Shukla.
10] As Amina Khatoon died, the offence was converted into an offence punishable under Section 302 of the I.P.C. PSO Shukla arrested accused persons under arrest panchanama Exhibit-49. He also recorded statement of witnesses. After completion of the investigation charge-sheet was filed in the Court of law. 11] In order to prove the guilt of the accused persons, in all seven witnesses were examined by the prosecution and also relied upon various documents primarily the dying declaration of Amina Khatoon recorded by (PW-6) Mohd. Muktar Abdul Latif.
12] Post mortem report Exhibit-56 shows that deceased suffered 90% burn injuries. The cause of death as mentioned in the post mortem report is "shock due to 90% burning"
From the post mortem report it is clear that Amina Khatoon met with her unnatural death due to burning.
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6 30032017 judg. apeal 291.03.odt Burn injuries can be caused either accidental or in attempt to commit suicide or forcibly a person setting to ablaze. 13] According to the prosecution the death of Amina Khatoon is homicidal one and the appellant is perpetrator of the said crime. From the line of the cross examination at the hands of the appellant and other accused persons during trial or from their statement recorded under Section 313 of the Code of Criminal Procedure, 1973, it is not their case that Amina Khatoon got burn injuries either accidentally or she committed suicide.
14] The question that is posed before this Court is whether the appellant could be held responsible for causing burn injuries to Amina Khatoon and is responsible for her death.
15] Admittedly, in the present prosecution case, nobody has seen appellant poured kerosene on Amina Khatoon and setting her ablaze. Thus, there is no ocular evidence in respect of the incident of burning at the hands of the appellant as claimed by the prosecution. 16] It is also not the prosecution case that before Amina Khatoon met with her death she made any oral dying declaration to any of the prosecution witnesses.
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7 30032017 judg. apeal 291.03.odt In view of the aforesaid, the entire prosecution case hinges on the written dying declaration (Exhibit-41) recorded by (PW-6) Mohd. Muktar Abdul Latif.
17] A conviction can be secured on the dying declaration alone, if the Court finds the dying declaration to be wholly reliable. The maker of the dying declaration is not available to test the veracity of the said statement made to this crime. Therefore, it is the duty of the Court while appreciating a written dying declaration to be extremely cautious and the Court should examine the same with utmost care. It is the abundant duty of the prosecution to prove that at the time of recording of a dying declaration the declarant was in a fit mental condition to give the statement. Further the dying declaration should be absolutely free from any suspicious circumstance. These are the statements of law enunciated by the catena of decisions of Hon'ble apex Court as well of this Court.
18] Keeping in view of the aforesaid settled legal position, this Court is called upon to scrutinize written dying declaration of Amina Khatoon (Exhibit-41) to give an answer as to whether the said could be the basis for securing and confirmation of the conviction as recorded by the learned Judge of the Court below while re-appreciating the prosecution case in the appeal.
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19] The prosecution examined in all seven witnesses. (PW-2)
Shahadatkhan examined as panch witness. He has supported the
prosecution insofar as spot panchanama (Exhibit-31) is concerned. However, he did not support prosecution that in his presence any articles were seized from the spot. (PW-3) Sulochana Bansod and (PW-4) Vilas Gawande are the panch witnesses to dying declaration (Exhibit-41). According to scribe (PW-6) Mohd. Muktar Abdul Latif, the dying declaration of Amina Khatoon was recorded in presence of these witnesses. These two witnesses flatly refused to support the prosecution and therefore they were declared hostile. (PW-4) Vilas Gawande also did not support the prosecution that he informed the factum of burning of a lady to the Police. (PW-5) Ameena bi Sheikh Bapu Miya a neighbour is also of no use for the prosecution as she did not support the prosecution at all.
20] (PW-1) Sayyad Ahmad is the husband of deceased Amina Khatoon. Admittedly on the day and the time of incident he was not present in Bhadrawati and he was at Hinganghat. After returning from Hinganghat at about 5.00 p.m. at Bus Station he got the knowledge about the fact that his wife is admitted to the hospital and thereafter he went to Police Station and after getting information from the Police that his wife is shifted to Chandrapur he reached to Chandrapur. There it was informed that his wife is expired. His ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 9 30032017 judg. apeal 291.03.odt evidence shows that burial of his wife was performed at Rajura and thereafter Police came to his house and spot panchanama was prepared. The incident is dated 01-11-1997 and the spot panchanama is drawn on 04-11-1997. Seizure memo Exhibit-43 though was not proved by panch (PW-2) Shahadatkhan, it is proved by (PW-6) Mohd. Muktar Abdul Latif. It shows that the seizure was done on 04-11-1997. Seizure memo shows that from the spot a kerosene bottle and a tin containing 500 ml. kerosene is seized.
Evidence of (PW-1) Sayyad Ahmad shows that there used to be quarrel in his family and the family of the accused persons because he has purchased the house from his landlord. His evidence shows that proceedings under Section 107 of the Code of Criminal Procedure were initiated against him for having quarrel with the family of the accused. Though he claimed in his evidence that deceased was beaten by the family members of the accused persons he chose not to file any complaint against them. He being the Government servant. From his evidence it is crystal clear that the family of the accused was in cross terms with (PW-1) Sayyad Ahmad.
21] (PW-3) Sulochana Bansod and (PW-4) Vilas Gawande were neither the relatives of the deceased or they were not concerned with the deceased whatsoever in manner. (PW-4) Vilas Gawande plies auto rickshaw. Though he denied the fact that he did not inform the ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 10 30032017 judg. apeal 291.03.odt Police about the incident of burning, the contemporary record in the nature of station diary entry shows that, it is this witness who has informed that Amina Khatoon is lying in burnt condition. 22] (PW-3) Sulochana Bansod was in Police Station Bhadrawati on 01-11-1997 for her personal work. Her evidence shows that there (PW-7) PSO Shukla asked her to sign some papers, therefore, she signed the papers without reading the same. Her statement under Section 164 of the Code of Criminal Procedure was recorded on 13-11-1997. However, while deposing during trial she has denied her statement.
23] (PW-6) Mohd. Muktar Abdul Latif is the scribe of dying declaration (Exhibit-41). He has proved his memo given to doctor to examine Amina Khatoon and give certificate about her fitness so as to record her statement. The said requisition is at Exhibit-40. According to the evidence of this scribe, doctor gave certificate that Amina Khatoon is in a condition to give her statement and therefore he proceeded to record her statement. As per the statement, on the day of incident Amina Khatoon was alone in the house and her husband was out of station. At 10.00 o' clock, in the morning, there was a quarrel between her and the female members from the house of Arvind over the issue of rubbish. That time Arvind exhorted ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 11 30032017 judg. apeal 291.03.odt "lkyhyk ?kjkr tkowu uaxh d:u ekjk" Thereafter she was at house. That time Ajay and Vinod also threatened to kill her. At 10.00 o' clock, in the noon, Ajay (appellant) came to her house, took the kerosene kept in her house, poured it on her person and set her ablaze by igniting match stick. She raised shout and came to the front room and fell down. Salim the one old lady extinguished the fire. Quarrel had taken place with the members of the house of Mirabai and Sangita. This is the statement given by Amina Khatoon to (PW-6) Mohd. Muktar Abdul Latif, which was reduced into writing by him. After recording the aforesaid statement, as per the evidence of (PW-6) Mohd. Muktar Abdul Latif, the said was read over to her and thereafter he obtained her thumb impression. According to evidence of (PW-6) Mohd. Muktar Abdul Latif the statement was recorded in the presence of (PW-3) Sulochana Bansod and (PW-4) Vilas Gawande. They also signed the statement.
24] What is important to note is that the doctor who gave fitness certificate is not examined by the prosecution. The learned Judge has observed in the impugned judgment that though the summonses were issued those were not served on him. According to the learned Judge of the Court below non examination of the doctor is not fatal in view of the decision of Hon'ble apex Court in the case of Laxman Vs State of Maharashtra, reported at AIR 2002 SC 2973. ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 :::
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25] Merely because the doctor is not examined and the certificate of
fitness is remained to be proved that by itself does not render the dying declaration as a waste paper. If the scribe himself at the time of recording of the dying declaration of the declarant is satisfied that the declarant is in a condition to give the statement is the law laid down by the Constitution Bench of the Hon'ble apex Court is in Laxman's case. 26] (Exhibit-41) has no noting or nothing can be gathered from the said document that before recording statement of Amina Khatoon scribe (PW-6) Mohd. Muktar Abdul Latif was satisfied himself about the mental condition or her fitness to give statement. Even from the witness box he was completely silent that he himself was satisfied about the fitness of deceased that she was in a condition to give her statement. He states that after giving memo Exhibit-40 to doctor, the doctor examined the deceased and gave certificate about her fitness and therefore he proceeded to record her statement. Thus, it is clear that, insofar as the fitness of deceased he fall back only on the opinion given by the doctor. In that view of the matter, it was imperative on the prosecution to procure the presence of doctor and prove the fitness certificate. According to us, the learned Judge of the Court below has wrongly applied the law laid down by the Hon'ble apex Court in Laxman's case cited supra, by holding that when police officer has stated that Medical Officer had given opinion that deceased was in a fit ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 13 30032017 judg. apeal 291.03.odt condition to give statement therefore merely because doctor is not examined it is not fatal to the prosecution.
27] (PW-3) Sulochana Bansod was in Police Station for her personal work. There was no occasion for her to accompany the Police either to the spot of incident or to the hospital. Further (PW-6) Mohd. Muktar Abdul Latif the scribe is completely silent that he took her to the hospital, therefore her presence in the hospital became doubtful. In that view of the matter her evidence that her signatures were obtained in Police Station is required to be accepted.
28] (Exhibit-43) the seizure memo shows that from the spot one kerosene bottle and a tin containing 500 ml. kerosene is seized. The seizure memo is dated 04-11-1997. The incident occurred on 01-11-1997. The evidence of (PW-1) Sayyad Ahmad and evidence of (PW-7) Kapildeo Shukla shows that on 04-11-1997 there was a lock to the house and it was opened. Evidence of (PW-1), in our view, completely destroys the case in respect of seizure of kerosene from the spot. In his examination-in-chief itself he has stated as under : -
"Sometimes when cylinder was not available we used to cook food on stove. But at the time of incident there was no kerosene in our house. Articles shown to me are not the articles seized from my house. i.e. bottle containing kerosene and tin container". ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 :::
14 30032017 judg. apeal 291.03.odt Thus, it is crystal clear from the aforesaid statement made by the prosecution witness that, there is a serious doubt about the truthfulness of the prosecution case insofar as the aforesaid articles.
29] The post mortem report (Exhibit-56) shows that right upper arm and left upper arm were burnt to 9 % each. Column no.17 of the post mortem report shows that both palms of deceased were burnt. Looking to the percentage of burns of the upper arm, it is clear that, both the hands of the deceased were completely charred. However, perusal of Exhibit-41 which is having thumb impression of Amina Khatoon shows that the thumb impression available on dying declaration (Exhibit-41) is having clear curves and ridges. In our view, the said is one of the suspicious circumstances. Further the thumb impression is also not below Exhibit-41 but it is in the side margin.
30] In our view, the prosecution has utterly failed to prove that at the time of recording statement in statement Exhibit-41 that Amina Khatoon was in a condition to give her statement. On the re-appreciation of the entire evidence, we are of the view that the prosecution has not proved its case beyond reasonable doubt. According to us, it is a fit case wherein benefit of doubt will have to be extended in favour of the appellant. Accordingly, the same is given in ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:29:16 ::: 15 30032017 judg. apeal 291.03.odt favour of the appellant. Consequently, we pass the following order :-
ORDER
(i) Criminal Appeal No.291/2003 is allowed.
(ii) Conviction of the appellant-Ajay Hiraman Katare for an offence punishable under Section 302 and 448 of the Indian Penal Code is quashed and set aside. He is acquitted therefrom.
(iii) Bail Bonds of the appellant stands cancelled.
(iv) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
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