Sk. Latif S/O Sk. Munnu vs State Of Maharashtra Through ...
2002 Latest Caselaw 632 Bom

JUDGMENT

P.K. Batta, J.

1. The Appellant was tried for the murder of his mistress Bismillabi under Section 302 of the Indian Penal Code. The Trial Court vide Judgment dtd. 10.1.1997 found the appellant guilty for the said charge and sentenced him to suffer life imprisonment and fine of Rs. 2000/-, in default, R. I. for two months. The undertrial period was set off in terms of Section 428 of the Cr. P. C. The Appellant challenges his conviction and sentence in this appeal.

2. The prosecution case, in brief, is that deceased Bismillabi was the mistress of the appellant and that at times he used to stay with her. On 12.9.1992 one Madhu alongwith his sister had come to the house of the deceased. At that time, the appellant was not present. When the appellant returned at about 5.00 p. m. and was told by the deceased that Madhu along with his sister had come and she had given her Rs. 20/- to go back, the appellant became angry and abused the deceased. The deceased told the appellant that for 8 years she is keeping relations with him and on account of the same her relations with her sister had become strained and as such she questioned as to why the appellant was keeping relations with Madhu's sister. Thereupon the quarrel started and the appellant assaulted the deceased and pressed her neck. The appellant then told the deceased that he would finish her. He went to the kitchen, brought kerosene container and poured kerosene on the deceased. Thereafter, the appellant went outside in the courtyard and sat on the cot. The kerosene on the person of the deceased was wiped with the help of towel by her daughter Mumtazbi (P.W. 2) and others. Subsequently, at about 7.00 p.m. when the deceased was sitting at the door of the Drawing Room, the appellant lighted a match stick and threw it on her person, as a result of which, she suffered 42% burns. She was taken to the Hospital where her dying declaration was recorded by the Executive Magistrate (P. W. 4). The prosecution has examined Mumtazbi (P. W. 2) daughter of the deceased in respect of the entire episode and also relied upon the dying declaration of the deceased recorded by the Executive Magistrate. The Trial Court accepted the evidence and recorded conviction of the appellant.

3. The case of the appellant is that the deceased had herself poured kerosene on her and subsequently when she went near the Havan (Shigdi) she caught fire and appellant is not, in any manner, responsible for the death of the deceased.

4. The learned Advocate for the appellant took us through the evidence of P. W. 2 Mumtazbi, evidence of Dr. Vivek (P. W. 3), evidence of Executive Magistrate P. W. 4 Dilip Dahikar, evidence of P. W. 5 Dr. Kishor Sharma as also the evidence of Investigating Officer.

5. The learned Advocate for the appellant urged before us that the dying declaration recorded by the Executive Magistrate cannot be relied upon in the light of the various pronouncements of the Apex Court since the Doctor, prior and after recording of the dying declaration, had not recorded the certificate that the deceased was in a fit state of mind and capable of making statement. On this aspect, the learned Advocate for the appellant has relied upon the case of Paparambaka Rosamma and Ors. v. State of Andhra Pradesh ; Smt Laxmi v. Om Prakash and Ors. as also Uka Ram. v. State of Rajasthan . It is next urged by the learned Advocate for the appellant that according to the Medical Evidence the hands and fingers of the deceased had burnt and as such it is not possible to obtain thumb impression of the deceased on the dying declaration. The next submission made by the learned Advocate for the appellant is that on the bed head ticket the history recorded by Dr. Kishor Sharma (P. W. 5) is that it was a case of accidental burn injury by Oven (Shigdi) and in the light of this bed head ticket, which has to be for all purposes treated as dying declaration of the deceased under Section 32 of the Evidence Act, the dying declaration subsequently recorded by the Naib Tahsildar (P. W. 4) cannot be accepted or believed since the same is directly contradictory to the earlier dying declaration of the deceased which was recorded by P. W. 5 Dr. Kishor Sharma on the bed head ticket (Exh. 45). In this respect, the learned Advocate for the appellant has placed reliance on number of rulings on the question that where the history was given by the victim; the same can be looked into by the Court as also that normally the history given by the patient is normal rule which is required to be followed in appreciating the bed head ticket (Exh. 45), The rulings upon which the reliance has been placed are in the case of Janabai Ranu. Patole and Anr. v. State of Maharashtra 1997 All M.R. (Crl.) 1157 : 1997 Cr, L.J. 3062; Sitaram Sahadu Borade v. State of Maharashtra 1998 All M.R. (Cri.) 1193; Dilip v. State of Maharashtra 1996 (3) Crimes 368 and Bhagtrath Bhaurao Kanade v. State of Maharashtra 1996 (4) Crimes 65 : 1997 Bom. C. R. (Cri.) 168 : 1997 All M.R. Cri. 362 ; 1997 (2) Mah. L. J. 29.

6. The learned Advocate for the appellant has also emphasised that the Investigating Officer did not find any match stick at the scene of offence which rules out the possibility of throwing the match stick on the deceased, that even if the prosecution case is accepted it does not sound to reason as to why the appellant would wait for one and half hour as per the prosecution case for setting the deceased on fire after pouring kerosene on her; that it was the appellant who had taken the deceased to the Hospital; that the appellant was insisting with the Doctor that he should give treatment to the deceased rather than giving treatment to him since he had also suffered injuries on his person and that there is absolutely no motive on the part of the appellant to commit crime in question for which he was tried. The learned Advocate for the appellant urged that in the F.I.R. besides the appellant one more person was shown but the charge-sheet was filed only against the appellant/accused and in the dying declaration the deceased is reported to have stated that the accused brought a lady whereas according to the deposition, P. W. 2 Madhu had brought his sister.

7. On the other hand, the A.P.P. urged before us that from the evidence of Dr. Kishor (P. W. 5) and evidence of P. W. 4 Executive Magistrate, it is crystal clear that the deceased was not only conscious but she was in a position to make dying declaration and that there is absolutely no reason to discard the dying declaration of the deceased. The learned A.P.P. emphasised that the evidence in this case, besides the dying declaration of the deceased, is the direct testimony of the daughter of the deceased viz. P. W. 2 Mumtazbi who has in categorical terms described the entire episode by giving vivid details of the incident and that there is no reason whatsoever to discard the eye witness account of the said witness which gets fully corroboration from not only the medical evidence but also dying declaration of the deceased. In respect of the history recorded on the bed head ticket, it has been pointed out that Dr. Kishor (P. W. 5) has, in categorical terms, stated that the said history was given by the appellant himself and as such right from the beginning the appellant tried to tamper with the evidence on account of which not much credence can be given to the history of accidental burning given by the appellant.

8. In the light of the rival submissions, we have examined the evidence on record. The evidence consists of direct eye witness account as also dying declaration of the deceased. We shall first deal with eye witness account of P. W. 2 Mumtajbi. She has stated that the appellant was staying in the house at Murtizapur and the relations between the appellant and her mother were like husband and wife. According to her at about 4 p. m. when she was present in the house one Madhu resident of Akot came to their house with his sister. The appellant was not present at that time. Madhu demanded Rs. 20/- from her mother for ticket which was given by her mother viz. deceased and they went away. After about 1 hour, the appellant came home and the deceased told him that she had given Rs. 20/- to Madhu who came with his sister and then they went away. On this the appellant got angry and abused the deceased. The deceased told the appellant that since 8 years she is keeping relations with him and on account of the same for relations with her sister had strained and why he was keeping relation with Madhu's sister. Then quarrel started and the appellant assaulted her mother and pressed her neck.

The appellant told the deceased that today he will finish her and the deceased asked whether he wanted to kill. On this, appellant went in the kitchen, brought kerosene container and poured kerosene on the person of the deceased. The deceased asked the appellant whether he wanted to kill her and at that time the appellant told her whether she wanted to see it and sat on the cot. P. W. 2 Mumtazbi wiped out kerosene on the person of the deceased with the help of a towel. As the darkness was approaching, she went to the kitchen for lighting the lamp. Deceased was sitting at the door of the Drawing Room and when she was coming after lighting the lamp towards her mother, she saw the accused lighting a match stick and throwing the same on the person of the deceased. The deceased started shouting and went in the kitchen and then in the bathroom. The appellant was sitting on the front side. When they were shouting and weeping the appellant threatened why they were shouting and weeping. According to P. W. 2 Mumtazbi, deceased was taken in the Hospital and at that time the appellant, her brother Babu, maternal uncle Hamid accompanied the deceased to the Hospital. She was cross-examined at length and during the cross-examination she reiterated that at the time of Incident she was present in the house. She also stated that the accused was staying at Akot with his wife and children. She further stated that the appellant came between 5 to 5.30 p. m. and the quarrel took place between the deceased and the appellant in the drawing room; appellant poured kerosene on the person of the deceased in the drawing room and the incident of burning took place at 7.00 p. m. It was suggested to her that out of anger her mother had poured kerosene at her person which was denied by her. It was also suggested that the accused wiped out the kerosene with the held of the towel and brought the deceased to the drawing room and sat there, which was also denied. She confirmed that the second incident took place one and half hours after the first incident of pouring kerosene. She confirmed that she had seen the appellant lighting a match stick and throwing on her person. She also stated that the appellant later tried to extinguish fire by his hand. The evidence of P. W. 2 Mumtazbi relating to the incident could not be shaken during the cross-examination. The learned Advocate for the appellant had submitted before us that even according to the prosecution case the match stick was thrown from a distance while the appellant was sitting on the cot outside the courtyard and as such it is not possible that the burning match stick would reach the deceased from such a distance. There is no foundation in this submission since nowhere it is stated in the deposition of P. W. 2 Mumtazbi that the match stick was thrown by the appellant while he was sitting on the cot or from a distance. In case the appellant felt that this was a material fact, the appellant could have cross-examined P. W. 2 Mumtazbi on this aspect but the testimony of P. W. 2 Mumtazbi has remained in tact. She stated that she saw the appellant lighting a match stick and thrown on the person of the deceased and earlier to that appellant had poured kerosene on the deceased. Smell of kerosene was found on the clothes. This story as narrated by Mumtazbi has remained unshaken and there is no reason whatsoever to discard this eye witness account given by the P. W. 2 Mumtazbi. On the basis of this direct evidence itself the conviction of the appellant cannot be interfered with.

9. The learned Advocate for the appellant had placed heavy reliance on the history recorded on the bed head ticket (Ex. 45) wherein it has been recorded that the history given was accidental burn injury by Oven (Shigdi). In this respect, it is necessary to look into the evidence of P. W. 5 Dr. Kishor Sharma who produced the bed head ticket (Exh. 45) and stated that the same is in his handwriting. He has further deposed that it is mentioned in the said Exh. 45 that relation Sk. Latif is next of the kin. He further stated that he had not mentioned that who had given the history but he recollected that the history was given by Sk. Latif and he was anxious. Dr. Kishor has stated that seditives were given to the patient after recording dying declaration. Though there was cross-examination on this aspect, yet the learned Advocate for the appellant urged before us that the evidence of Dr. Kishor Sharma on this aspect cannot be believed since it will not be possible for him to recollect as to who had given the history. Dr. Kishor (P. W. 5) was not cross-examined at all in order to discredit his memory. He is an independent witness and we have absolutely no reason to disbelieve Dr. Kishor Sharma when he has stated that he recollects that the history was given by Sk. Latif. In view of this position, the history of accidental burn injury by Oven (Shigdi) cannot be accepted and this shows that right from the beginning the appellant was trying to tamper with the evidence. The rulings upon which the reliance has been placed by the learned Advocate for appellant, are not attracted to the facts of this case, since in the cases referred to by the learned Advocate for the appellant, the history in the bed head ticket was given by the victim herself. When there is a clear evidence of Dr. Kishor (P. W. 5) that the history was given by the appellant, there is no question of applying the rulings Janabai Ranu Patole and Anr. v. State of Maharashtra, Sitaram Sahadu. Borade v. State of Maharashtra, Dilip v. State of Maharashtra and Bhagirath Bhaurao Kanade v. State of Maharashtra (supra), We, therefore, do not find any merit whatsoever in this submission of learned Advocate for the appellant nor we find any conflict in relation to the dying declaration.

10. Coming to the dying declaration, the learned Advocate for the appellant has relied upon the rulings of the Apex Court wherein it is laid down that the Doctor should satisfy himself before the dying declaration is recorded about the fitness of state of mind of the deceased. In the case of Paparambaka Rosamma and Ors. v. State of Andhra Pradesh, (supra) the only circumstance relied upon by the prosecution was dying declaration. The other relevant facts of the case were that the deceased had sustained extensive burn injuries on his person to the extent of 90% burn injuries. The certificate of the Doctor which was appended to the dying declaration at the end read "patient is conscious while recording statement". There was no certificate in the beginning. It is on the basis of these facts that the Apex Court had laid down that in the absence of a certificate that the injured was in a fit state of mind at the time of making declaration, his dying declaration could not be accepted. The dying declaration itself was also disbelieved on facts of the case.

11. In Uka Ram v. State of Rajasthan (supra) the prosecution case was that the deceased was a mental patient and it was found that despite knowledge of the said fact, the Investigating Agency did not take any precaution to ensure that the incident was suicidal or homicidal as a result of which the probability of the deceased committing suicide had not been eliminated as to which there existed a doubt about the mental condition of the deceased at the time she made dying declaration. The medical certificate only stated of her physical condition to make a statement but did not refer to her mental condition.

12. In the case under consideration, Dr. Vivek P. W. 3 who conducted the post-mortem on the dead body of the deceased, found that the deceased had 42% burn injuries which were anti mortem. The cause of death was septicemia shock due to burns on account of asphyxia. According to him, the injuries were sufficient in the ordinary course of nature to cause death, In cross-examination he reiterated that injuries were dangerous to the life. That if the medical treatment was given, the patient can survive. P. W. 5 Dr. Kishor Sharma had before and after recording of the statement of the deceased certified that she was fully conscious. In the course of his deposition, he has stated that he had examined the deceased and certified that the patient is fully conscious and can give dying declaration. He also confirms that the Executive Magistrate recorded the dying declaration in his presence and the patient was conscious throughout recording of the dying declaration. It is pertinent to note that in cross-examination he stated that when he mentioned that the patient is conscious, it includes general condition though he had not specifically mentioned about it. The general condition would include the mental condition as well. It was suggested to him that when the questions were being put to the patient, she was facing difficulty In answering the same which was denied by him. He confirmed that there were no injuries on the thumb though the evidence on record is that hands and finger had burnt. In the light of the evidence of the Dr. Kishor (P. W. 5), we find that the deceased was not only conscious but was also in a fit state of mind to make a statement and there is no reason whatsoever to discard her dying declaration especially in the light of the deposition of Dr. Kishor Sharma (P. W. 5) in the Court. The contention of the learned Advocate for the appellant that the thumb impression of the deceased could not be affixed since her hands and fingers were burnt, is without any merit, since there was no injury on the thumb. The dying declaration has been proved through Executive Magistrate P.W. 4 Dilip Dahikar. The learned Advocate for the appellant had urged before us that there is a material discrepancy in the dying declaration and the statement of P. W. 2 Mumtazbi on the question as to whether a lady was brought by the appellant or by Madhu as per the prosecution case. P. W. 2 Mumtazbi has stated that Madhu had come alongwith his sister and the entire dispute arose on account of the same since the deceased told the appellant that why he was maintaining relations with Madhu's sister. It is in this context that the dying declaration of the deceased has to be read when she has stated that the accused brought a lady. The dying declaration need not be encyclopedia of the entire incident and in this respect the Apex Court in the case of Smt. Laxmi v. Om Prakash and Ors. has laid down that the statement may be brief or longish, it is not the length of the statement but fit state of mind of the victim to narrate the facts of the occurrence which is relevant.

13. In the light of the direct evidence of P. W. 2 Mumtazbi, the prosecution had conclusively established that it was the appellant who had poured kerosene on the deceased and subsequently ignited a match stick and threw the same on the deceased. The deceased got burnt and ultimately died. The fact that the appellant tried to extinguish fire later cannot enure to his benefit. There was a gap of more than 1 hour between pouring of kerosene and the lighting of the match stick which shows that the act of the deceased in burning the deceased was premeditated act and any remorse subsequently after burning cannot help the appellant to riggle out of the legal liability of setting fire to the deceased though it may be an extenuating circumstances while awarding sentence. In addition to the evidence of P. W. 2 Mumtazbi, we find that the deliberate attempt was made by the appellant to tamper with the evidence right from the beginning by giving history of the accidental burn by Oven/Shigdi in respect of which there is absolutely no material to accept the defence case. Added to that there is also dying declaration recorded by the Executive Magistrate P. W. 4 Dilip. In so far as the motive is concerned, the motive is duly established by the prosecution, as we have already pointed out that the entire quarrel started on account of the statement made by the deceased that the appellant was maintaining relations with Madhu's sister. Even otherwise, in cases where there is a direct evidence, the motive does not assume that much importance. In view of this, we do not find any merit in this appeal. The appeal is hereby rejected.