Bombay High Court
Shaikh Aslam Shaikh Mohammadali vs The State Of Mah on 25 February, 2016
Bench: A.V. Nirgude
(1) cra657.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 657 OF 2012
Shaikh Aslam Shaikh Mohammadali .. Appellant
Age. 37 years, Occ. Labour,
R/o. Partur, Tq. Partur,
Dist. Jalna.
Versus
The State of Maharashtra ig .. Respondent
Mr. Joydeep Chatterji, Advocate for the appellant.
Mrs. R.K. Ladda, A.P.P. for respondent/State.
CORAM : A.V.NIRGUDE &
INDIRA K.JAIN, JJ.
DATED : 25.02.2016
ORAL JUDGMENT [PER : A.V. NIRGUDE, J.] :-
1] This appeal challenges judgment and order dated 29.10.2012
passed by the Sessions Judge, Jalna, in Sessions Case No.140 of 2011 in
which the appellant/accused has been convicted for offence punishable
under section 302 of the Indian Penal Code and was sentenced to suffer life
imprisonment and to pay a fine of Rs.10,000/- with a default.
2] It was alleged by the prosecution that the appellant/accused set
one Syed Sadiq on fire on 26.05.2011 at about 10.30 p.m. and caused
serious injuries to him which were likely to cause death. Sadiq was
hospitalized, but subsequently succumbed to his injuries on 05.06.2011.
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Unfortunately, the dead body was not subjected to atopsy examination
immediately after the death. Therefore, on 20.07.2011, the dead body was
exhumed and was subjected to post mortem examination. The prosecution
examined in all fourteen witnesses. There is no eye-witness to this incident.
The prosecution mostly depended on dying declarations made by victim
Sadiq either to his relatives or to Police and other officials from time to time.
3] P.W.14 is important prosecution witness. He is Police Head
Constable- Shriram who stated that he was on duty as Police Head
Constable in Police Chowky attached to Civil Hospital, Jalna. On 28.05.2011,
he received phone call from Kadim Jalna Police Station. He learnt from this
telephone that one Syed Sadiq residing within local limits of Partur Police
Station was admitted in burnt condition in Civil Hospital, Jalna. He therefore
went to the ward and after getting medical opinion about the suitability of the
victim to record his statement, he recorded Sadiq's statement. Sadiq told him
that the incident took place on 26.05.2011 at about 10.30 p.m. He said that
while he was standing in front of house of one Saberabi, accused/appellant
came there, demanded money and when he refused to pay,
appellant/accused poured kerosene on his person and set him on fire.
Through his deposition he proved dying declaration which is at Exhibit-51.
This dying declaration was sent to Police Station and the same was utilized
as a complaint.
4] P.W.8 Police Inspector Ganesh deposed that on receipt of dying
declaration he registered offence under Section 307 of the Indian Penal Code
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and handed over investigation to one Police Inspector Shri Shaikh.
5] P.W.13 is P.S.I. Shaikh who deposed that he received
investigation of this case and thereafter he proceeded to record statement of
witnesses. He also went to the hospital and recorded one more dying
declaration of victim Sadiq. This time also Sadiq confirmed that he was set
on fire by the appellant /accused. He gave details of the incident that on
26.05.2011 he was standing in front of house of Sabera. Appellant/accused
came there and after pouring kerosene on his person, set him on fire. The
dying declaration reveals that during the incident Sadiq raised alarm and
Saberabi came to help him. She doused fire, took him to the house, and then
went to inform the incident to his parents. He further revealed that his parents
came at about 04.00 a.m. during the night and they took him to hospital.
6] PW 13 further stated that thereafter he recorded statements of
parents of victim Sadiq. He also took steps for preparing sketch of the scene
of occurrence. On 23.6.2011 he received injury certificate from the Medical
Officer of Partur Rural Hospital. On that day he learnt that Sadiq had died.
He received death certificate issued by Partur Municipal Council. He
thereafter recorded supplementary statements of parents and brother of the
deceased. On 1.7.2011 he added offence punishable under Section 302 of
the Indian Penal Code to the case and thereafter could trace the accused.
He arrested him. He then stated that on 1.7.2011 the accused produced a
plastic can and a match box from his house which was seized under a
panchanama under Section 27 of the Indian Evidence Act. He also seized
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clothes of accused.
7] On 5.7.2011 he requested the learned Judicial Magistrate, First
Class, Partur for recording statement of Saberabi under Section 164 of
Criminal Procedure Code and such statement was recorded on 25.7.2011. He
stated that Saberabi was not available earlier because she had left Partur
because of fear of accused.
8]
Thereafter he stated that he also obtained permission to exhume
the corpse of the deceased. On 20.7.2011 he exhumed the corpse of Sadiq
and sent it for postmortem examination. In cross-examination this witness
admitted that the scene of occurrence situated in Indiranagar was a thickly
populated area. He stated that it is a slum area. He also stated that in front
of Saberabi's house there is a road. He denied possibility of nearby residents
using side road for sleeping due to summer season. He admitted that he did
not record statement of any eye witness. He also admitted that he did not
find out as to whether the accused had purchased kerosene used for
committing the offence. The cross-examiner suggested to him that the
incident as narrated in the dying declaration did not take place in front of
Saberabi's house.
9] The next important witness of the prosecution is PW 12
Azaroddin. He disclosed that police officer Shri Shaikh of Partur police
station called him for panchanama purpose on 27.5.2011. They went in front
of house of Saberabi in Indiranagar. The place of incident was in between
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Saberabi's house and the compound wall. He also noticed that there was a
half burnt plastic bag of fertilizers lying on the spot. There was also a melted
plastic drops and a burnt piece of shirt. The panchanama was prepared.
This panchanama is at Exh.54. (It must be noted that on 27.5.2011 no offence
was registered at Partur police station. This panchanama was made because
there was a station diary entry No. 147 of 2011 of 27.5.2011. This
panchanama was prepared by one H.H.Shaikh, Head Constable B. No. 388
of Partur police station. This Head Constable, however, did not come before
court as witness.)
10] Next two important witnesses are P.W.3 & 4. They are parents of
victim Sadiq. They stated that during the night between 26 & 27 May, 2011,
they learnt that their son Sadiq got injured due to burning etc. They met their
son and took him to hospital. After they brought him to hospital, their son
Sadiq disclosed to them that it was appellant/accused who had set him on fire
after altercation in front of Saberabi's house. These two witnesses further
stated that at the instructions of the medical officer of Partur Civil Hospital
they brought their son Sadiq to Civil Hospital, Jalna. Thereafter they asked
him as to how he got burnt. They learnt from victim Sadiq that it was
appellant Aslam who had poured kerosene on his person and had burnt him.
They stated that on 4.6.2011 the Medical Officer of Jalna Civil Hospital
suggested to them that Sadiq should be shifted to Ghati Hospital,
Aurangabad. They took discharge and brought Sadiq back to Partur at their
house. Witness No.3 the father of the deceased stated that he did not have
money and therefore he was collecting money for treatment of his son Sadiq.
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He had planned to take Sadiq to Aurangabad on the next day, but next
morning Sadiq passed away. Both these witnesses (parents of Sadiq) stated
that after Sadiq's death they did not inform police about it. They buried Sadiq
at Partur. Death certificate of Sadiq is on record. It mentions that the parents
of Sadiq made an affidavit in respect of Sadiq's death and reported the death
to Municipal Council. The death certificate was prepared by Municipal
Council, Partur on 6.6.2011. During cross-examination of these witnesses a
suggestion was given that the dying declaration was tutored and was as per
the idea of Saberabi. This suggestion is significant because witness no.3
admitted that his son Sadiq used to reside with Saberabi as her husband
though they were not married.
11] P.W.6 is Dr. Santosh of Rural Hospital, Partur, who deposed that
on 27th May, 2011 at about 4.00 a.m. (early morning) the victim was brought to
his hospital by his parents and upon examination he found that the victim had
suffered about 59% burns. This witness stated that medical treatment was
given to the victim. He then sent the injured to Civil Hospital, Jalna.
12] P.W.4-Pradipsingh Thakur is Executive Magistrate who recorded
dying declaration of Sadiq on 30.5.2011. Even this time Sadiq reiterated that
it was appellant/accused who had set him on fire in front of Saberabi's house
at about 10.30 p.m. on 26.5.2011.
13] The learned Judge of the lower court believed the prosecution
case which is mainly based on oral as well as written dying declarations. The
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learned counsel for the appellant asserted that except the dying declarations
there is no circumstance against his client, and therefore, he would try to
show that the dying declaration is not trustworthy. Indeed, if the dying
declaration is disbelieved, the entire prosecution case would fail. The
question, therefore, before us is whether we should believe the dying
declarations.
14] As said above, there are three dying declarations and two oral
dying declarations. All these dying declarations are recorded more than 24
hours after the incident. The first dying declaration recorded by PHC Shriram
Pandit PW 14 was recorded on 28.5.2011 at 9.30 a.m. Thereafter second
dying declaration was recorded by PW 13 PSI Shaikh Ibrahim on 29.5.2011 at
5.40 p.m.. The third dying declaration was recorded by PW 5 Pradipsing
Thakur on 30.5.2011 at 1.30 p.m. All these dying declarations are almost
similar. They inculpate the appellant/accused being the perpetrator. The oral
dying declarations are also significant. They were heard by PWs 3 and 4
soon after the victim was brought to Jalna Civil Hospital. According to them
they heard the dying declarations of the victim on 27.5.2011 early morning.
Even PW 6 Dr. Santosh Kale who had seen the victim on 27.5.2011 at 4.15
a.m. early morning, stated that the patient was able to give statement even
when he examined him and though he was in critical condition this witness
did not state that the patient or his relatives gave him history of assault as
cause of injuries. What is pertinent to note here is that the reluctance of
PWs 3 and 4 to take the case further even after hearing the dying declaration
of their son about history of assault by appellant/accused Aslam. They could
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have stated to the police or to the Medical Officer at Civil Hospital, Jalna that
their son was assaulted. No doubt, they were more concerned with the
treatment of their son, none-the-less if their son was subjected to assault this
could be the next important priority for them. The Medical Officers, who
treated Sadiq at Civil Hospital, Jalna probably did not know that this was a
case of assault, else they would have certainly informed about it to PW 14
PHC Pandit who was posted at Police Chowky of Civil Hospital, Jalna. So
the parents and relatives of the victim and the Medical Officer treating Sadiq
at Civil Hospital were not apparently eager to report this incident/MLC to
police. The question is how PHC PW 14 Pandit learnt about admission of
victim Sadiq in the Hospital. He stated that on 28.5.2011 in the morning he
received a telephone call from his police station. From this call, he learnt that
Partur police station had made a phone call to his police station about burn
case of Sadiq who was admitted to Civil Hospital, Jalna and that he should go
and inquire. It is only because of this information PW 14 Pandit went near the
victim. Had this not been informed to him he would not have learnt about the
admission of victim in the hospital and the incident would have gone
unnoticed for few more days.
15] Let us now find out as to why Partur police station made a phone
call about this case to Kadim Jalna police station. This has not been
answered by prosecution side at all. No one from Partur police station came
forward as a prosecution witness. As noted above, Partur police station
arranged to record scene of occurrence panchanama on 27.5.2011 in front of
Saberabi's house even though no offence was registered by them. It,
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therefore, appears to us that police of Partur police station some how learnt
that Sadiq sustained injuries by burning and the incident had taken place in
front of Saberabi's house in Indiranagar. At that time, no offence was
registered even death had not occurred by then. We fail to know as to why
such panchanama was recorded by H.H.Shaikh, PHC. As said above, no
one came forward from Partur police station to explain these circumstance.
The circumstance would not support the prosecution case. It was not
reported to be a case of assault. At the time of recording scene of
occurrence panchanama the police did not know that there was an assault.
The contents of panchanama do not indicate that this was a case of assault.
From these circumstances we came to the conclusion that dying declaration
is a planted piece and was invented rather belatedly.
16] The second shortcoming of the prosecution case which would
damage the prosecution case is the fact that Saberabi is not examined as
prosecution witness, though her statement under Section 164 of the Criminal
Procedure Code was recorded. A judicial note can be taken of the fact that
since the investigating officer thought that Saberabi was an important witness
her statement was recorded under Section 164 of the Criminal Procedure
Code. A special care was taken for recording her statement and yet she was
not brought before the court. This witness was important also because she
could have thrown relevant light on the incident which occurred in front of her
house. According to one of the dying declarations Saberabi was present in
the house at the time of incident. According to the dying declaration
appellant/accused came to the spot, had an altercation with the victim and
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then poured kerosene on his person and set him on fire. If this could happen
in front of house near public road the victim would raise alarm and it would be
heard by number of persons. A judicial note also can be taken of the fact
that the incident took place at about 10.30 p.m. on 26.5.2011 which is peak of
the summer season. Most of the people during this time would come out in
the night to sleep on pavements. This was a locality of poor people. If such a
ghastly incident takes place at such an hour when most of the people would
be awake, they would come to see the incident and they would help the
victim. Even Saberabi who was inside her house could have come out
hearing alarm. We are inclined to hold that the victim ought to have raised
alarm after sustaining burn injuries.
17] The other improbable part of the prosecution case is that the
victim did practically nothing during the incident. He did not resist the assault.
It is indicated that he meekly allowed himself to be subjected to such a
ghastly attack. He did not try to run away. He did not raise alarm. He did not
seek any help from neighbourhood. All these aspects of the prosecution
case are rather suspicious. We are, therefore, of the view that the
prosecution case would fail because the dying declarations are not
trustworthy. The appeal, therefore, succeeds.
18] Hence, we pass the following order.
[i] Criminal Appeal No. 657 of 2012 is allowed.
[ii] The judgment and order dated 29.10.2012, passed by the learned
Sessions Judge, Jalna, in Sessions Case No. 140 of 2011 convicting the
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appellant/accused for offence punishable under Section 302 of the Indian
Penal Code is set aside.
[iii] The accused/appellant is acquitted of the offence with which he was
charged.
(iv) The appellant/accused be released forthwith if not required in any
case.
[v] Fine amount, if any paid, shall be refunded to the appellant.
[INDIRA K.JAIN, J.]
ig [A.V.NIRGUDE, J.]
dbm/cra657.12
