Bombay High Court
State Of Maharashtra,Thr.Pso.Of ... vs Iqbal S/O Fazlak Sheikh on 17 May, 2016
Bench: B.P. Dharmadhikari
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
