Bombay High Court
Sherkhan Mirbajkhan Pathan vs The State Of Mah on 19 December, 2014
Bench: S.S. Shinde
69.2012 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 69 OF 2012
Sherkhan s/o. Mirbajkhan Pathan,
Age 38 Years, Occ. Driver,
R/o. Machigalli, Umri, Tq. Umri,
District Nanded .. APPELLANT
VERSUS
The State of Maharashtra,
[Copy to be served on the
Public Prosecutor, High Court
of Judicature at Bombay,
Bench at Aurangabad] ..RESPONDENT
...
Mr. Hemantkumar F. Pawar, Advocate for Appellant
Mr. S.A.Ambad, APP for Respondent - State.
...
CORAM : S.S. SHINDE &
A.I.S.CHEEMA, JJ.
RESERVED ON : 10.12.2014
PRONOUNCED ON: 19.12.2014
JUDGMENT [PER S.S.SHINDE, J.]:-
1] This Appeal is filed by the Appellant - original
accused, challenging the Judgment and Order dated
08.12.2011, passed by the learned Addl.Sessions Judge,
Bhokar in Sessions Case No.65/2010, thereby convicting
the appellant for the offence punishable under Section 302
of the Indian Penal Code, and sentencing to suffer rigorous
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imprisonment for Life, and also to pay a fine of Rs.1000/-
[Rs. One thousand only] in default to suffer further rigorous
imprisonment for three months.
2] The prosecution's case in nutshell is as
under:
Deceased Hasina begum was the wife of
accused Sherkhan Mirbajkhan Pathan. The accused
behaved well with his wife deceased Hasina begum for
about 4 Years. Thereafter, he started abusing, beating and
harassing her for bringing money either from her maternal
house or from anywhere else. He was also suspecting her
fidelity. On 27.04.2010 at about 3.30 p.m. accused
Sherkhan initially abused and assaulted his wife Hasina
begum suspecting her fidelity and for not bringing money.
The accused then poured kerosene on the person of his
wife Hasina begum, ablazed her and ran away. She was
engulfed by flames. Her daughter Reshma came on
hearing the shouts and extinguished the fire by pouring
water on her. Hasina begum was immediately taken to the
Government Hospital, Umri by her brother and his friends.
69.2012 Cri.Appeal.odt
She was given primary treatment there and then was
referred to the Government Hospital, Nanded, where her
dying declaration was recorded initially by the Police Head
Constable of Vazirabad Police Station, then, by Special
Judicial Magistrate. The offence under Section 307 of IPC
was registered by the Police. Hasina begum succumbed to
her injuries on 01.05.2010, hence an offence punishable
under Section 307 of IP Code was converted into the
offence under Section 302 of IP Code by the Police.
3] The trial Court framed the charge and after full-
fledged trial, convicted the appellant for the offence
punishable under Section 302 of Indian Penal Code and
sentenced to suffer rigorous imprisonment for life and also
to pay a fine of Rs.1000/- in default to suffer further
rigorous imprisonment for three months.
4] The learned counsel appearing for the appellant
submits that, Hasinabegum was burned to the extent of
97% and therefore, she was not in a condition to give a
dying declarations. The learned counsel appearing for the
appellant submits that, if the original dying declaration at
69.2012 Cri.Appeal.odt
Exh.63 is perused, there is no thumb impression. It is
further submitted that, though there is thumb impression
on another dying declaration, same is not attested. It is
submitted that, it is highly improbable that, when Hasina
begum sustained burn injuries upto 97%, she was
conscious and oriented to give dying declaration. The
learned counsel appearing for the appellant pressed into
service exposition in the case of State of Punjab Vs.
Gian Kaur and another1. Therefore, he submits that, the
benefit of doubt may be given to the appellant.
5] It is further submitted that, PW-9 was not
present when the incident occurred, but she came later on.
Therefore, she cannot be treated as an eye witness. She
has also not explained the burn injuries sustained by the
appellant accused, which were reflected in the arrest
panchanama. The spot panchanama is not reliable since
panch has not corroborated the said panchanama as
regards the timings of drawing of the panchanama.
6] It is further submitted that, the first dying
declaration recorded by the Police [Exh.63] cannot be relied
1. AIR 1998 SC 2809
69.2012 Cri.Appeal.odt
upon because on the admission of Police Personnel Gautam
Kamble, he recorded the same in Marathi although the
deceased admittedly gave her statement in Hindi.
Therefore, no reliance whatsoever can be placed on the
first dying declaration [Exh.63] because the contents
thereof are not the words of the deceased.
7]
It is further submitted that, the second dying
declaration [Exh.52] also cannot be relied upon inasmuch
as therein, besides implicating the appellant/accused, the
deceased also implicated the husband of sister of the
accused for setting her on fire. It is submitted that, the said
dying declaration cannot be relied upon as on the
admission of PW-13 Dr. Sameer Ahire, who made the
endorsement [Exh.83] on the dying declaration, he did not
check or record the blood pressure and pulse rate of the
deceased before recording of the dying declaration. There
is an attempt on the part of the prosecution to suppress
and hide the burn injuries sustained by the appellant, which
clearly shows that, the appellant / accused had tried to
extinguish the fire and in the process himself sustained
burn injuries.
69.2012 Cri.Appeal.odt
8] The learned Additional Public Prosecutor
submitted that, there is cogent, convincing and reliable
evidence led by the prosecution, and therefore, Appeal
deserves to be dismissed. It is further submitted that,
there are two dying declarations coupled with the oral
dying declaration and evidence of PW-9 (Reshma) and PW-4
(Malanbai), and therefore, interference in the impugned
Judgment and order is not warranted.
9] We have heard the learned counsel appearing
for the appellant and the learned Additional Public
Prosecutor for Respondent - State at length, with their able
assistance, we have perused the entire evidence so as to
find out whether the findings recorded by the trial Court are
in consonance with the evidence brought on record or
otherwise.
The statement of Hasina Begum [deceased] was
recorded at Exh.63. Same was treated as First Information
Report. The cause of death as per the post-mortem report
was due to shock due to superficial to deep 97% burn.
Samir Sudhakar Ahire was examined as PW-13. His
69.2012 Cri.Appeal.odt
evidence is at Exhibit-81. In his examination in chief, he
stated that, he was on emergency duty on 29.04.2010 in
the Shankarrao Chavan College and Hospital, Nanded. On
that day at about 11.00 a.m. Special Judicial Magistrate
Navghare came to him and asked him to examine
Hasinabegum to enable him to record her dying
declaration. He made endorsement that, patient is
conscious and oriented to give dying declaration. During
recording of dying declaration of Hasina Begum, he was
present. He again examined the patient and found her
conscious and oriented throughout the recording of her
statement and necessary endorsement was given. In his
examination, he stated that, Hasina begum was admitted in
the Hospital on 27.04.2010. Dr.Zene admitted Hasina
begum in the Hospital. Hasina begum was brought to the
Hospital by her relatives. She was shifted to burn ward.
10] One Sanjay Baliram Buktar was working as an
Assistant Lecturer [Forensic Md] in the Shankarrao Chavan
Government Medical College and Hospital, Nanded, who
was examined as PW-11. His evidence is at Exhibit 64. In
his examination in chief, he stated that, on 01.05.2010, he
69.2012 Cri.Appeal.odt
conducted the post-mortem of Hasina begum from 3.45
p.m. to 4.45 p.m. He has mentioned external injuries in
column No.17 of the post-mortem report. There were 97%
burn injuries to Hasina begum. All the injuries were ante
mortem. Hasina begum died due to shock due to
superficial to deep 97% burn injuries. Accordingly, he
issued post mortem report in his handwriting and signature.
From reading his evidence, the death was homicidal. Even
defence has accepted that, death was homicidal.
11] The real question which is to be answered is,
who was responsible for the death of Hasina begum. The
daughter of accused and deceased namely Reshma
Sherkhan Pathan was examined as PW-9. In her evidence,
she stated that, deceased Hasina begum was her mother.
Accused Sherkhan is her father. She has three sisters. The
accused was driving autorickshaw prior to the incident.
Accused was not doing anything at the time of the incident.
Accused was insisting her mother to bring money from her
parents and was harassing and beating mother for the said
reason. The incident took place on 27.04.2010 at about
3.00 p.m. On that day, Afsar Chotumiyan came to their
69.2012 Cri.Appeal.odt
house for demanding Rs.16,000/- taken by the accused
from him. The accused was not present at that time. The
accused came to the house and asked her mother to bring
money from her father's house for paying it to Afsar.
Reshma's mother refused, due to her inability, as her
parents were not paying money. The accused at that time
abused and beat her mother suspecting her mother's
character.
The accused lifted plastic can
kerosene oil kept near the hearth and poured it on her
containing
mother Hasinabegum and ablazed her by match stick. She
was frightened and shouted loudly. Saree of her mother
was burning. Reshma poured water on the person of her
mother and extinguished the fire. The neighbour Malanbai
came there and helped Reshma in extinguishing the fire.
The accused ran away from the spot. Reshma's maternal
uncle Syed Chand, neighbour Baba and Hasan Khan came
to the spot. They took her mother to the Government
Hospital, Umri. Thereafter, her mother was taken to the
Government Hospital Nanded. Her mother succumbed to
injury on 01.05.2010. Her statement was recorded by the
Police as per her say. The plastic can containing kerosene
oil at Exhibit A1, and burnt pieces of saree with petticoat
and broken pieces of match box with match stick, shown to
69.2012 Cri.Appeal.odt
Reshma, were identified by her. The defence challenged
her evidence in cross examination on the ground that, she
has not stated the exact time of abusing and beating to
Hasina begum by the accused. Suggestion was also given
to her that, the accused tried to extinguish the fire,
however, said suggestion was denied by her. She has also
denied suggestion that, the accused shouted and asked her
to bring water and pour it on Hasina begum. Upon careful
perusal of cross examination, the defence has not brought
anything on record so as to negativate her version in
examination in chief. Upon careful perusal of the evidence
brought on record, the defence has admitted Reshma's
presence at the spot. Though, the learned counsel
appearing for the appellant vehemently argued that, PW-9
was not present on spot, however, upon perusal of the
evidence brought on record and in particular evidence of
PW-4, presence of PW-9 is established by the prosecution.
The trial Court has recorded the finding to the effect that,
the presence of PW-9 was not disputed by the defence at
the spot. PW-9 being daughter of the accused could not
have any grudge against him, and therefore, her evidence
assumes importance. In the light of discussion herein
above, in our considered view, evidence of PW-9 is reliable,
69.2012 Cri.Appeal.odt
truthful and deserves to be believed. It is also pertinent to
mention that, even accused has not disputed her presence
at the spot.
12] PW-4 Malanbai Rannavare, neighbour of the
accused, in her evidence, she stated that, she was knowing
deceased Hasinabegum. Hasinabegum was her neighbour.
She has also known the accused sitting in the Court. There
used to be quarrel between the accused and the deceased
for the demand of money. The accused was insisting
Hasina to bring money from her father. PW-4 was hearing
the quarrel between the accused and the deceased as
there is only one wall between her house and house of the
accused. On the date of the incident at noon, she was
sleeping in her house. She heard shouts of quarrel, hence
came out of the house. She saw Hasina in burnt condition.
Sher Khan i.e. Accused was present there. Sher Khan
poured water on Hasina and ran away. PW-9 told PW-4
that, Sherkhan poured kerosene on Hasina and ablazed
Hasina. Reshma extinguished fire. The public informed
about the incident to the father and brothers of Hasina and
took her to the Hospital. In the cross examination, her
69.2012 Cri.Appeal.odt
evidence has not been shattered in any manner. There is
corroboration to the evidence of PW-9 from the evidence of
PW-4.
13] The accused himself has not disputed his
presence on the spot at the time of the incident. He
himself has suggested that, he was present in the house till
the arrival of Malanbai.
14] There are two dying declarations. Statement of
Hasina begum is at Exhibit 63, which was recoded by the
P.I., Police Station Umri, District Nanded. In the said
statement, it was stated by the Hasina Begum that, the
accused used to suspect fidelity and also used to ask her to
bring money from parents. PW-10 Gautam Kamble has
deposed that, on 27.04.2010, he was attached to Vazirabad
Police Station Outpost in Civil Hospital, Nanded. He was on
duty in Civil Hospital outpost from 14.00 hours to 20.00
hours. On that day, Hasina begum Sherkhan Pathan was
admitted in the Civil Hospital. He was to record statement
of Hasina Begum. He deposed in his evidence that, Doctor
examined patient and gave endorsement that, patient is
69.2012 Cri.Appeal.odt
conscious. Hasina Begum stated before him that, she was
married to accused Sherkhan 4 years before. He was
harassing her for bringing money from maternal house.
She further stated before him that, on 27.04.2010 at about
3.30 p.m., her husband assaulted her, poured kerosene on
her person and ablazed her. She shouted hence her
daughter came there, poured water on her person and
extinguished the fire. Her brother Syed Aslam came there
and took her to the Government Hospital Umri. She was
given primary treatment at Umri and was referred to the
Government Hospital Nanded. PW-10 has further deposed
that, Hasina Begum put her thumb impression on her
statement and thereafter he signed on it. He issued letter
to the Special Judicial Magistrate for recording of dying
declaration of Hasina begum.
15] PW-10 was cross examined by the accused. In
his cross examination, he stated that, both cheeks, chin
and lips of Hasina begum were brunt, and she was
bandaged on her chest, stomach, left and right hands, both
legs and back.
69.2012 Cri.Appeal.odt
16] The defence challenged evidence of this
witness on the ground that, Hasina begum narrated
incident in Hindi, however, same was taken down in
Marathi, and therefore, same is not correct version of
Hasina begum. However, upon careful perusal of
Exhibit-63, Hasina begum stated that, statement is read
over to her. Same is as per her narration.
17] Another dying declaration is at Exhibit-52,
which was recorded by the Special Judicial Magistrate Shri
D.B. Navghare. The said dying declaration was endorsed
by the Doctor to the effect that, Hasina begum is conscious
and oriented to give dying declaration. Doctor in his
evidence stated that, through out recording of the dying
declaration, he was present. Even the Magistrate in his
evidence has stated that, after ascertaining that, Hasina
begum is in conscious state of mind, he recorded her
statement. Therefore, it appears that, statement at Exh.63
and Exh.52 corroborates with each other. The defence
challenged variance in two dying declarations. The learned
counsel appearing for the appellant submits that, there is
variance in two dying declarations, and therefore, dying
69.2012 Cri.Appeal.odt
declarations deserves to be rejected. In our opinion, the
statement at Exhibit 63 and also dying declaration at Exh.
52 are proved by the prosecution through PW-10, PW-8
(Navghare) and PW-13 (Samir Ahire). It is not necessary for
us to refer all these witnesses in greater detail since we find
that, findings recorded by the trial Court upon appreciation
of the evidence of the witnesses are in consonance with the
evidence brought on record. There is also oral dying
declaration with PW-3, PW-5 by the deceased. C.A. Report
shows kerosene residues on the articles recovered from the
spot, Inquest Panchanama and also spot panchanama fully
supports prosecution case. Upon going through the entire
evidence on record, we are of the considered view that, the
findings recorded by the trial Court are in consonance with
the evidence brought on record and appellant has been
rightly convicted by the trial Court.
18] The learned counsel appearing for the appellant
by way of alternate submission submitted that, the
appellant's case is covered under exception 4 of section
300 of I.P. Code. According to the learned counsel
appearing for the appellant, the accused tried to extinguish
69.2012 Cri.Appeal.odt
fire and he has also sustained injuries. PW-4 stated that,
appellant poured water on the deceased, and therefore,
there are mitigating circumstances. Therefore, he prayed
that, the order of trial Court may be modified by holding
that, the appellant's case is covered under Section 304 (II)
of the Indian Penal Code. We have considered the
submissions of the learned counsel appearing for the
appellant.
In the light of evidence of PW-9, and other
evidence brought on record by the prosecution, PW-4, two
dying declarations and oral dying declarations, the act of
the appellant was certainly with an intention to kill Hasina.
The act of beating and harassing to the deceased went on
for about half and hour to one hour as stated by PW-9, and
thereafter, kerosene was poured on her person by the
accused and she was set on fire. Therefore, viewed from
any angle, the impugned Judgment and order of conviction
needs no interference. Appeal sans merit, hence
dismissed.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S. SHINDE, J.]
...
DDC
