Sk Gulab @ Gulam S/O Sk Ahemad vs State Of Maha
2017 Latest Caselaw 9714 Bom

                                                  Cri. Appeal No. 249/2003
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 249 OF 2003

Sk. Gulab @ Gulam s/o Sk. Ahemad,
Age: 30 years, Occu: Labour,
R/o Narayanpur, Tq. Gangapur,
District Aurangabad.                         ....Appellant

                        Versus

The State of Maharashtra                     ....Respondent


Mr. P.R. Katneshwarkar h/f Mr. A.N. Walujkar and Mr. S.P. Pandav,
Advocates for appellant.
Mr. P.G. Borade, APP for respondent/State.


                                CORAM   : T.V. NALAWADE AND
                                          ARUN M. DHAVALE, JJ.

RESERVED ON : 23/11/2017 PRONOUNCED ON : 18/11/2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 204/01, which was pending in the Court of

learned 1st Ad-hoc Additional Sessions Judge, Aurangabad. The

appellant is convicted and sentenced for the offene punishable under

section 302 r/w. 34 of Indian Penal Code (hereinafter referred to as

'IPC' for short). Both the sides are heard.

2) In short, the facts leading to the institution of present

appeal can be stated as follows :-

Cri. Appeal No. 249/2003

Deceased Jaheda was daughter of Shaikh Ismail, who is

resident of Pandharohal, Tahsil Gangapur, District Aurangabad. The

deceased was given in marriage to real brother of present appellant

about 10 years prior to the date of incident. The deceased has not

left behind any issue. The husband of deceased was suffering from

tuberculosis (T.B.) for about two years prior to the date of incident.

After that the husband of the present appellant started taking

suspicion against Jaheda that she had illicit relations with neighbour.

The name of neighbour is mentioned in the record. It is the case of

prosecution that there was illtreatment from the husband and

brother of husband to the deceased and they used to even give

beating to the deceased due to aforesaid suspicion.

3) The incident started from the night between 24.1.2001

and 25.1.2001. At about 2.30 a.m. of 25.1.2001 the husband

started giving beating to the deceased in his house out of the

aforesaid suspicion. He wanted to extract confession of deceased

about the illicit relations. The deceased did not confess. In the

morning, at about 8.00 a.m. appellant came to the house of

deceased and after that he and the husband of the deceased started

giving beating to the deceased. They wanted to extract confession of

the deceased. She did not confess. Then the appellant took a can of

kerosene which was present in the house and poured kerosene on

Cri. Appeal No. 249/2003

the person of deceased. The husband of deceased set fire to her.

When she started shouting the neighbours gathered. The husband

extinguished the fire, but it was a show as the neighbours had

reached the house after hearing the shouting of deceased.

4) The deceased was shifted to Government Hospital

Aurangabad. The dying declaration of deceased came to be recorded

in Civil Hospital and on that basis, on 25.1.2001 the crime at C.R.

No. 10/01 came to be registered in Waluj Police Station for the

offences punishable under sections 307, 323, 34 of IPC against the

present appellant and his brother, husband. The deceased blamed

both the appellant and her husband for the incident and she

narrated the aforesaid incident. The dying declaration of deceased

was recorded by Special Executive Magistrate and also by police.

5) Police prepared spot panchanama on 25.1.2001. The

pieces of partly burnt clothes of deceased, having smell of kerosene

came to be taken over. There were pieces of bangles. Can of

kerosene was also taken over.

6) Jaheda died on 26.1.2001 and then the crime came to be

converted to one punishable under section 302 r/w. 34 of IPC.

Chargesheet was filed for aforesaid offences. The husband of Jaheda

Cri. Appeal No. 249/2003

died during pendency of matter in the Trial Court and so, the case

was tried only against present appellant. The appellant pleaded not

guilty and he took the defence of total denial. The prosecution

examined seven witnesses. The Trial Court has based the conviction

on dying declaration of Jaheda and imprisonment for life is given to

the appellant.

7) The case of prosecution rests entirely on the evidence of

dying declarations. When a person dies due to burn injuries at the

residential place and inside of the house, there are possibilities like

accidental death, suicidal death and homicidal death. These

possibilities need to be kept in mind while appreciating the evidence

given in a case like present one.

8) Ramesh Pawar (PW 5), ASI was attached to Waluj Police

Station at the relevant time. He has deposed that he received

information at about 10.15 a.m. on 25.1.2001 and he went to Ghati

Hospital, Government Hospital Aurangabad. He has deposed that he

obtained opinion of doctor from Civil Hospital regarding the fitness of

deceased for giving the statement and then he recorded the

statement. He has given evidence that he had read over the

statement to the deceased and only when she admitted the

contents, he obtained the thumb impression of the deceased on

Cri. Appeal No. 249/2003

statement. The statement is proved in his evidence as Exh. 16.

9) On Exh. 16, no time of recording of statement is

mentioned. The doctor from whom the certificate was obtained by

Pawar (PW 5) is also not examined. The bed head ticket/case papers

are also not produced. In the evidence, Pawar (PW 5) has tried to

say that he had requested the Executive Magistrate to record the

statement and Executive Magistrate recorded the statement first.

The evidence of Pawar (PW 5) does not show that he himself was

satisfied about the fitness of deceased before recording the

statement.

10) There is document like M.L.C. given to Government

Hospital by police at Exh. 15. This document shows that the husband

of deceased had given history to police of the incident and he had

admitted the deceased in the hospital. He had informed to police

that the clothes of deceased had caught fired accidentally due to the

flames of stove (HkMdk mMkY;kus). It was informed that the incident had

taken place at 8.00 a.m. and the document at Exh. 15 shows that

Jaheda was admitted in Government Hospital at 10.00 a.m. Though

on Exh. 15, there is the certificate regarding fitness of the deceased

for giving statement, as the doctor is not examined, who gave this

certificate, that certificate cannot be read in evidence.

Cri. Appeal No. 249/2003

11) In Exh. 16, there are following things :-

(i) The husband of deceased was not making

earning for livelihood and the deceased was required to do

labour work to earn livelihood.

(ii) Her marriage had taken place in the year 1991

and she was cohabiting with the husband at the relevant

time. The parents of the husband were, however, living

separate. The present appellant, brother in law was living

at Narayanpur, but there is no specific mention that he was

living in the same house.

(iii) From about 2 months prior to the date of

incident, husband and brother in law had started giving

illtreatment to her. They were even giving beating to her by

saying that she had illicit relations with one neighbour. (The

name of the neighbour is mentioned in the dying

declaration.)

(iv) On 25.1.2001 at about 2.30 a.m. the husband

started giving beating to her and he was insisting that she

should admit that she had illicit relations with the said

neighbour.

(v) At 8.00 a.m. of 25.1.2001 again beating was

given to her for the same reason. Brother in law then came

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and then he also gave beating as they wanted to extract

confession from her.

(vi) She did not give confession and due to that,

brother in law poured kerosene on her person and husband

set fire to her by using matchstick.

            (vii)               She shouted.

            (viii)              The neighbours gathered and then husband

created a show that he was extinguishing the fire.

12) There is no mention in Exh. 16 as to who shifted the

deceased to Government Hospital from the residential place. They

were living at Narayanpur, Tahsil Gangapur and she was shifted to

Aurangabad city where Civil Hospital is situated. It is already

mentioned that in Exh. 15, the requisition letter given by police for

taking opinion, there is mention that the husband had admitted her

in the Civil Hospital, Aurangabad.

13) The Executive Magistrate Shinde (PW 7) has given

evidence that on 25.1.2001 Police Head Constable Pawar (PW 5)

came to him and he was requested to record the dying declaration.

He has given evidence that he went to Ghati Hospital, obtained

opinion of doctor and then recorded the statement of deceased. He

has given evidence that when he recorded the statement, he had

Cri. Appeal No. 249/2003

asked the relatives of deceased to go out of the burn ward where the

deceased was kept. His evidence also does not show that he himself

got satisfied by putting some questions about the fitness of

deceased. The dying declaration recorded by Shinde (PW 7) bears

thumb impression of deceased and that document is proved as Exh.

24.

14)               The contents of Exh. 24 are as follows :-

            (i)                 The husband was living separate from his

relatives like parents. Brother in law, appellant was living in

Narayanpur.

(ii) From about two months prior to the date of

incident, husband and brother in law were harassing her by

taking suspicion over her character and they were saying

that she had illicit relations with the neighbour. (The name

of neighbour is mentioned in dying declaration).

(iii) On 25.1.2001 at about 2.30 a.m. husband

started giving beating to her as he wanted to extract

confession about the illicit relations.

(iv) At 8.00 a.m. of 25.1.2001 the husband was at

home and then brother in law came there and they

together started assaulting her as they wanted to extract

confession about her illicit relations.

Cri. Appeal No. 249/2003

(v) When the deceased refused to admit that she

had illicit relations, brother in law poured kerosene from

can present in the house and then the husband set fire to

her by using matchstick.

            (vi)                She shouted.

            (vii)               The neighbours gathered.

            (viii)              Her husband extinguished the fire, but it was

            only a show for neighbours.

There is time of recording mentioned on Exh. 24 as 1.10 p.m. to

1.40 p.m.

15) On Exh. 24 also, there is no endorsement of doctor,

regarding fitness of deceased. Thus, both Pawar (PW 5) and Shinde

(PW 7) have given evidence that they used the endorsement made

about the fitness on Exh. 15. It is already observed that the doctor

is not examined to prove that the deceased was fit to make the

statement. The evidence also shows that both these witnesses did

not get satisfied about the fitness by putting some questions to the

deceased. They are entirely relying on the endorsement made on

Exh. 15 by the doctor, but the said doctor is not examined. The

evidence of Executive Magistrate further shows that the relatives of

the deceased were present by her side and he was required to ask

Cri. Appeal No. 249/2003

them to leave the place. This evidence is also important as brother

of deceased has avoided to admit that he had reached the Civil

Hospital prior to recording of the dying declaration of the deceased.

16) Shaikh Ismail (PW 1), father of deceased has given

evidence that there was illtreatment to the deceased as both the

accused were suspecting that deceased had illicit relations with

neighbour. He has deposed that 2-4 days prior to the date of

incident, the deceased had disclosed to Shaikh Shamir (PW 3), his

son that there was illtreatment to her. Shaikh Shamir (PW 3) has

given evidence that about 8 days prior to the date of incident, such

disclosure was made by the deceased to him. The evidence of both

father Shaikh Ismail (PW 1) and brother Shaikh Shamir (PW 3) does

not show that they had made inquiry with both the accused about

the illtreatment and about the suspicion they were taking about the

character of deceased. There is vague evidence of the witnesses that

they used to convince Jaheda as well as accused.

17) Shaikh Ismail (PW 1) has deposed that on the day of

incident, he learnt about the incident at about 3.30 p.m. and he

learnt it from Shaikh Shamir (PW 3). He has deposed that Shamir

had informed that in the incident, accused No. 2, appellant had

poured kerosene on the person of deceased and accused No. 1,

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husband had set fire to the deceased. He has given evidence that he

went to Civil Hospital after learning about the incident and there,

deceased made similar disclosure to him.

18) Shaikh Shamir (PW 3) has given similar evidence. Both

Shaikh Ismail (PW 1) and Shaikh Shamir (PW 3) have not given

evidence on the period since when accused Nos. 1 and 2 had started

taking suspicion. The evidence of father, however, shows that

husband was sick for quite some time.

19) Shaikh Shamir (PW 3) has given evidence that when he

received the information about the incident on 25.1.2001, he was in

campus of company with the employer. He has deposed that he went

to Civil Hospital in the evening and till that time, he was at home

though he had left the campus of company. He has given evidence

that in Civil Hospital the deceased disclosed that on the previous

night husband had given severe beating to the deceased and in the

morning, both husband and appellant had given beating to her and

both had set fire to her.

20) The cross examination of Shaikh Shamir (PW 3) shows

that he tried to avoid to admit that he had rushed to the Hospital

immediately on the learning about the incident. The evidence

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showing that the relatives of deceased were present by her side is

already discussed when the evidence of Executive Magistrate is

discussed. In the cross examination, Shaikh Shamir (PW 3) has

admitted that he has stated before police that he learnt about the

incident at about 8.00 a.m. itself and then he had left the company.

The spot panchanama at Exh. 10 is proved in the evidence of

Vazirkhan (PW 2) and this document shows that Shaikh Shamir (PW

3) had shown the spot to police and panchas. The spot panchanama

was drawn between 14.05 and 14.35 hours of 25.1.2001. The

contents of the spot panchanama falsifies the evidence of Shaikh

Shamir (PW 3) that he had not rushed to the Civil Hospital after

learning about the incident at 8.00 a.m. This circumstance cannot be

ignored as due to such conduct adverse inference can be drawn and

the circumstances have created a probability that there was possibly

tutoring to the deceased before recording of the dying declaration.

21) Vazirkhan (PW 2), panch witness on the spot

panchanama has given evidence that kerosene stove was present in

the house and it was in working condition. The panchanama at Exh.

10 shows that the stove was not seized. This witness is cross

examined by defence to show that he had also rushed to the spot

after starting of fire as he is neighbour of deceased. He has admitted

in the cross examination that accused No. 1, husband extinguished

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the fire and husband shifted the deceased to the hospital. He has

given evidence that Jaheda disclosed to him that her clothes had

caught fire accidentally due to flames of stove. He has stated in the

evidence that accused No. 2, present appellant, runs a garage at

Waluj. As this witness was only on spot panchanama, not much

weight can be given to the other evidence given by him. He had not

approached police to give statement of aforesaid nature.

22) The time of spot panchanama is shown as 14.05 to

14.35 hours of 25.1.2001 and it was prepared at Narayanpur, not in

Aurangabad city. The time of dying declaration recorded by

Executive Magistrate is shown as 1.00 p.m. and that was recorded in

Civil Hospital, Aurangabad. There is no mention of time of recording

of statement on the dying declaration proved in the evidence of

Pawar (PW 5). These circumstances have created suspicion about

the time of recording of dying declaration and also the voluntariness

of the statement.

23) In the spot panchanama at Exh. 10, following things

were noted :-

(i) The house consist of one room, having roof of

tin sheets. The size of the room was 8 x 12 ft. and in the

same room, arrangement was made for cooking the food.

Cri. Appeal No. 249/2003

(ii) There was kerosene stove, but no kerosene was

present in the stove and it appeared that it was not in use.

However, in Exh. 10, there is no other mention to show

that other alternate arrangement was made for cooking

food. This circumstance also creates doubt about the

fairness of the investigation.

(iii) The pieces of partly burnt clothes of deceased

were lying in the room and the pieces of her bangles were

also lying there. Match stick box was lying on the floor and

the room has a smell of kerosene.

(iv) One kerosene can was present in the room at

one window. Except the kerosene stove which is mentioned

in the spot panchanama all other articles mentioned in the

spot panchanama were taken over and seized by the

police.

24) The spot panchanama, Exh. 10, shows that on the west

side of the house deceased, there is house of Janbi Pathan. On the

north side, there is house of Shaikh Musa. On east side, there was

road and beyond that there was the house of Shaikh Akbar. In front

of house, there was Ota portion and beyond that there was some

open space. As the house of deceased was having roof of tin sheets,

it was possible for the neighbours to hear the shouting if it was

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coming from the house of deceased. The neighbours could have

even felt that there was fire. Though there are these circumstances,

no neighbour is examined by the prosecution as witness.

25) The aforesaid discussion shows that it is the husband

who admitted the deceased in the Civil Hospital and he had given

information that it was a case of accidental burns. He is dead. No

evidence is there to show that appellant was present in the house or

in the vicinity of the house except the contents of dying declaration.

In view of these circumstances, due to non examination of

neighbours, adverse inference needs to be drawn against the

prosecution.

26) Shaikh Ismail (PW 1), father of deceased has admitted

that accused No. 1 was suffering from T.B. for about two years. In

the dying declaration, it is also mentioned that husband was not

doing anything to earn for livelihood. This circumstance is important

as that can be also reason for committing suicide. Even the suspicion

about the character can be also reason for committing suicide.

27) When a person dies due to burn injuries, in

circumstances like present one, it becomes necessary for

prosecution to prove convincingly that it is a case of homicide. The

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evidence of Dr. Zine (PW 4) shows that the death took place due to

85% burn injuries. But, on internal examination, Dr. Zine (PW 4)

found following injuries :-

"C/o. subgallecl contusions. One over vertox 4 cm x 1

cm. Reddish coloured. Another at middle of forehead

which is 2 x 2 cm. faint reddish in colour as compared

above."

Due to these injuries, doctor has given evidence that aforesaid injury

can be also the cause of death and the opinion is as follows :-

"Death due to shock due to 85% superficial to deep

burns. Associated finding subgalleal contusion one at

fore head (middle) another at vertex. "

There is no mention of causing of injury of aforesaid nature in dying

declaration. Doctor is not sure about the exact cause of death

though the burn injuries are also described as antemortem in

nature. This circumstance again creates doubt about the fitness of

deceased for giving statement. Due to these circumstances, it was

necessary to have case papers on record, but the prosecution has

not produced those case papers. Whenever there are such injuries,

the first suspicion goes against the husband as he has the

opportunity to cause such injuries. When the allegations are against

brother in law, it becomes necessary to show that he was either

living with the deceased in the same house or that at the relevant

Cri. Appeal No. 249/2003

time, he was present in the house or atleast in the vicinity of the

house. If the neighbours had rushed to the spot after hearing the

shouting, they would have definitely noticed present appellant in the

vicinity if he was there. Due to absence of evidence of neighbours, it

is not possible to believe that present appellant was also present at

the relevant time.

28) The learned counsel for the appellant, accused placed

reliance on the observations made by the Apex Court in the cases

reported as AIR 1994 SC 840 [Maniram Vs. State of Madhya

Pradesh] and 2002 CRI.L.J. 4095 [Laxman Vs. State of

Maharashtra]. In aforesaid cases the Apex Court has laid down

that the satisfaction of the person who recorded dying declaration

about the fitness of the deceased also needs to be proved. In the

case reported as (2006) 3 Supreme Court Cases 161 [M. Mani

Vs. State of T.N.], it is laid down by the Apex Court that if the

contents of dying declaration are suspicious in nature, the Court

should look for corroboration. It is further observed that if the Court

finds that statement is not true, conviction cannot be based on such

dying declaration if there is no corroboration. Thus, the surrounding

circumstances need to be considered by the Court for basing

conviction on the dying declaration. In the case reported as 2000

(2) Mh.L.J. 3 (Bombay High Court) [Manohar Dadarao Landge

Cri. Appeal No. 249/2003

Vs. State of Maharashtra], it was held that the material witnesses

ought to have been examined. It was held that the dying declaration

was not reliable in that case.

29) The facts and circumstances of each and every case are

always different. The relevant facts of the present matter are already

discussed. The main circumstance which is in favour of the appellant

is that he is brother in law of deceased and there is no evidence

except the contents of dying declaration that he was present in the

house of deceased at the relevant time. There is no medical

evidence to prove that the deceased was fit to give the statement

and there are surrounding circumstances which have created

suspicion about the fitness of the deceased for giving the statement.

There is possibility that the present appellant had no role to play in

the incident. The husband is dead and he had informed to police that

the deceased had sustained injuries accidentally. In view of these

circumstances, this Court holds that the Trial Court has committed

serious error in giving conviction to the appellant for the offence of

murder. Interference is warranted in the decision of the Trial Court.

30) In the result, the appeal is allowed. The judgment and

order of Trial Court, convicting and sentencing the accused for the

offence of murder punishable under section 302 r/w. 34 of IPC is

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hereby set aside. The appellant stands acquitted of the offence for

which the charge was framed against him. The bail bonds of the

appellant stand cancelled. The fine amount, if any, deposited by the

appellant is to be returned to him.

       [ARUN M. DHAVALE, J.]           [T.V. NALAWADE, J.]




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