Bombay High Court
Amina Bi Shaikh Chand vs Stata Of Maharashtra on 7 July, 2017
Bench: S.S. Shinde
267.2001 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.267 OF 2001
Aminabi w/o. Shaikh Chand,
age 26 years, Occupation Household,
R/o. Garkheda, Bharatnagar,
Aurangabad. APPELLANT
[Ori. Accused]
VERSUS
State of Maharashtra RESPONDENT
...
Mr.Vijay Sharma, Advocate for the Appellant
Mr.S.D.Ghayal, APP for respondent/sole.
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 30.06.2017
Pronounced on: 07.07.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. This Appeal is filed by the
appellant-accused, challenging the judgment
and order passed by the Sessions Judge,
Aurangabad, on 21st June, 2001 in Sessions
Case No.278 of 1999, thereby convicting the
appellant for the offence punishable under
Section 302 of the Indian Penal Code, and
267.2001 Cri.Appeal.odt
sentenced to suffer imprisonment for life and
to pay fine of Rs.500/-, in default to suffer
R.I. for 15 days.
2. The prosecution case in nutshell is
as under:
The deceased Nurjaha Begum, who is
the informant in the present case, was
residing at Bharatnagar, Garkheda,
Aurangabad. She was residing there with her
husband, namely Shaikh Chand, who was a truck
driver, and three children, and second wife
of her husband Aminabi. She married with Sk.
Chand about ten years back before the
incident, and they were residing at
Bharatnagar, Garkheda since about one year
prior to the incident. About three years
back, her husband married with Aminabi
without her knowledge. But she was not
pulling on well with Aminabi. Therefore,
Aminabi was residing at her parental place.
267.2001 Cri.Appeal.odt
About 15 days prior to the incident, which
took place on 4th June, 1999, father of
Aminabi had reached to her house, and since
that time Aminabi was residing there. Since
the time she came to Aurangabad she was
picking up quarrels with her, and her husband
Sk. Chand. She wanted that her husband should
give money to her, and not to Nurjahabegum.
On 4th June, 1999, her husband Sk.
Chand left the house in the morning for duty,
and Aminabi and her children were in the
house. At about 2.00 p.m., she along with her
minor son Ashpak were sleeping on the
bedstead in the house, and Aminabi was
sleeping on the floor, and when she was about
to fall asleep, she felt kerosene dropping on
her face. Therefore, she opened her eyes and
saw that Aminabi was pouring kerosene from
the aluminium Can on her person. When she
tried to get up, Aminabi ignited a match
267.2001 Cri.Appeal.odt
stick and threw it on her person, as a result
of which her saree caught fire, and when she
was burning she ran out of the house and
herself poured water from the pot which was
kept outside the house. There was nobody to
put off the fire. Thereafter, she was taken
to Ghati Hospital, Aurangabad, by one Sk.
Gulab and two women from the neighbourhood
and then she was admitted in the Hospital.
Her son Ashpak also sustained burn injuries
and was also treated in the Hospital. When
she was admitted in the Hospital, her
complaint was recorded and offence at
Mukundwadi Police Station as Crime No.77/1999
under Section 307 of the IPC was registered.
The Police Head Constable Kachru
Namdeo Chavan, who was attached to Mukundwadi
Police Station, went to the Ghati Hospital,
Aurangabad, and requested the Doctor to
certify whether the patient Nurjaha was in a
267.2001 Cri.Appeal.odt
position to give statement, and the Doctor
certified that she was in a position to give
statement. Thereafter, he recorded the
complaint on 4th June, 1999, which is the FIR
in the present case. He obtained her thumb
impression on the said complaint. Thereafter,
the Special Executive Magistrate, Mr.Magan
Pawar, was also requested to record dying
declaration of Nurjahan. The Special
Executive Magistrate, Mr.Magan Pawar,
recorded her dying declaration after
obtaining certificate from the Medical
Officer at 8.30 p.m. on 4th June, 1999.
3. The Investigating Officer Sadanand
Wayasepatil, who was attached to Chavani
Police Station on 4th June, 1999, received
message that burning incident had taken place
at Bharatnagar, Garkheda, Aurangabad, and
directed the PSI Thakare to visit the spot
and make inquiry. He also received phone
267.2001 Cri.Appeal.odt
message from PSI Thakare that the patient was
serious and directed him to record her dying
declaration. Before he reached Ghati
Hsopital, the Special Executive Magistrate
had already recorded her dying declaration
and in the meantime he was required to go to
bandobast and on returning home at 11.00 p.m.
he received message that burnt woman died in
the Hospital. So the section which was
recorded in the FIR was altered from Section
307 of the IPC to Section 302 of the IPC, and
on 8th June, 1999, he himself took up the
investigation. He received statement of the
deceased and her dying declaration and
postmortem report. The Medical Officer, who
performed the postmortem on the dead body,
reported that the deceased Nurjahan sustained
90-95% burn injuries, and that cause of death
was shock due to burns. After receipt of
papers, he went to the place of incident and
made spot panchanama and attached plastic Can
267.2001 Cri.Appeal.odt
containing kerosene, one half burnt nylone
mattress, one match box and german pot.
Muddemal articles were sent to Chemical
Analyzer with covering letter. He received CA
report on 22nd November, 1999. Before that he
recorded statements of witnesses, and on 4th
June, 1999, he arrested the accused and on
completion of investigation, he submitted
charge sheet against the accused for the
offence punishable under Section 302 of the
Indian Penal Code.
4. As the offence punishable under
Section 302 of the IPC is exclusively triable
by the Court of Session, the Judicial
Magistrate First Class, Aurangabad, committed
the case to the Court of Session for trial.
5. On consideration of the case papers
and upon hearing the submissions of the
learned Advocate for the accused, and the
267.2001 Cri.Appeal.odt
learned APP for the State, there was ground
for presuming that the accused committed
offence which is exclusively triable by the
Court of Session, and therefore, charge for
the offence punishable under Section 302 of
the IPC was framed against accused at Exh.3.
The charge was read over and explained to the
accused. The accused pleaded not guilty to
the charge and claimed to be tried.
6. It is her defence that Nurjahan
herself set her on fire when she was alone in
the house, and that she had not poured
kerosene on person of Nurjahan, while she was
sleeping on the bedstead and set her on fire
as alleged by the prosecution, and denied to
have committed an offence as alleged by the
prosecution.
7. After full-fledged trial, the trial
Court convicted the appellant for the offence
punishable under Section 302 of the IPC.
267.2001 Cri.Appeal.odt
Hence this Appeal filed by the appellant-
accused.
8. Heard the learned counsel appearing
for the appellant, and the learned APP
appearing for the respondent-State. The
learned counsel appearing for the appellant
invites our attention to the dying
declaration at Exh.18, and submits that the
said dying declaration suffers from legal
infirmities and is surrounded by the
suspicious circumstance, and therefore, the
reliance whatsoever can not be placed on the
said dying declaration. It is submitted that
the trial Court has rightly disbelieved the
dying declaration which was recorded by the
Special Executive Magistrate. He submits that
the evidence of other witnesses in the nature
of corroboration to the dying declaration is
not trustworthy, and therefore, the appellant
is entitled to get the benefit of doubt.
267.2001 Cri.Appeal.odt
9. On the other hand, the learned APP
appearing for the respondent-State invites
our attention to the findings recorded by the
trial Court, and also to the evidence of the
prosecution witnesses, and submits that the
findings recorded by the trial Court are in
consonance with the evidence brought on
record, and therefore, the appeal may be
dismissed.
10. We have given careful consideration
to the submissions of the learned counsel
appearing for the appellant, and the learned
APP appearing for the respondent-State. With
their able assistance, carefully 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. It appears that the
prosecution examined in all 9 witnesses in
support of its case. The FIR filed by
267.2001 Cri.Appeal.odt
Nurjahan herself is produced at Exh.18. The
offence came to be registered on the basis of
the FIR lodged by Nurjahan. The evidence of
Dr.Nivrutti Wanole is recorded at Exh.12. The
evidence of husband of deceased, namely Sk.
Chand Sk. Usman, is recorded at Exh.13. The
evidence of son of deceased namely Sk. Ayas
is recorded at Exh.14. The evidence of PHC
Kacharu Chavan is recorded at Exh.16. The FIR
of Nurjahan is recorded at Exh.18. Copy of
the letter under which request was made to
the Special Executive Magistrate to record
dying declaration of Nurjahan is produced at
Exh.19. The letter sent to the Medical
Officer to certify the condition of Nurjahan
before recording her FIR is produced at Exh.
17. The evidence of Special Executive
Magistrate, Mr.Magan Pawar, who recorded the
dying declaration of Nurjahan, is recorded at
Exh.20. PW-6 Sk.Farooq, brother-in-law of
deceased is examined at Exh.23. The neighbour
267.2001 Cri.Appeal.odt
of Nurjahan, namely Kamalabai Chandaliya is
examined at Exh.24. The evidence of ASI
Devidas Jadhav is recorded at Exh.25. Lastly,
the evidence of Investigating Officer
Sadananad Wayasepatil recorded at Exh.33. The
C.A. report is produced at Exh.35, and the
panchnama of spot under which the articles
were seized is produced at Exh.27. The
postmortem report is produced at Exh.8, and
the provisional postmortem report is produced
at Exh.9. All these documents have been
admitted on behalf of the accused. The letter
under which the seized articles were sent to
C.A. is produced. This is all the evidence
that has been led by the prosecution to prove
its case.
In the present case, though the
Special Executive Magistrate recorded dying
declaration at Exh.19, the said has been
discarded by the trial Court. We have
carefully perused the said dying declaration,
267.2001 Cri.Appeal.odt
and we find that the findings recorded by the
trial Court while discarding the said dying
declaration are correct. The said dying
declaration suffers from procedural as well
as legal infirmities, and the same has been
rightly disbelieved by the trial Court.
11. The main piece of evidence, which is
the basis of the order of conviction by the
trial Court, is the dying declaration at Exh.
18. Upon careful perusal of the said dying
declaration, it appears that, the said was
treated as First Information Report. Upon
perusal of the endorsement made by the Police
Sub Inspector, Mukundwadi Police Station,
Aurangabad, an offence vide Crime No.77/1999
came to be registered on 4th June, 1999, for
the offence punishable under Section 307 of
the IPC, and the time is mentioned as 21.30
hours. We have also carefully perused the
letter written by the Police Officer of the
267.2001 Cri.Appeal.odt
Mukundwadi Police Station to the Medical
Officer, GHATI Hospital at Aurangabad. It is
stated in the said letter that MLC bearing
No.7433/NDW dtd. 04.06.1999 in respect of a
burnt woman viz. Nurjahan wife of Sk. Chand,
who is 90% burnt is admitted in the Hospital
for treatment. A request is made to give
opinion as to whether said lady is in a
position to give statement or otherwise.
Therefore, the Medical Officer made
endorsement on the said letter that she was
in a position to give statement. It appears
that the said letter was marked at Exh.17.
The said letter was carried by one Police
Head Constable Kachru Namdeo Chavan to the
Medical Officer, Ghati Hospital at
Aurangabad. On the said letter, the Medical
Officer has put his endorsement at 5.35 p.m.
that the patient by name Nurjahan is
conscious and oriented and she is able to
give statement. However, on the dying
267.2001 Cri.Appeal.odt
declaration at Exh.18 which was registered as
FIR subsequently, there is no endorsement of
the Medical Officer that Noorjahan was
conscious and oriented to give dying
declaration. It appears that the said dying
declaration was recorded at 21.30 hours.
There is no mention of starting time of
recording of such dying declaration and when
recording ended.
12. Dr.Nivrutti Dhonbarao Wanole was
examined as [PW-1]. In his deposition he
stated that on 4th June, 1999, he was working
as Medical Officer in the Medical College
Hospital at Aurangabad. On that day at 2.00
p.m. the patient by name Nurjahan was brought
to the Hospital for medical treatment by one
Sk. Gulab. She gave history that when she was
sleeping on the bedstead, her husband's
another wife Aminabi poured kerosene on her
person and set her on fire with match stick.
She had sustained 90% burn injuries. Along
267.2001 Cri.Appeal.odt
with her, one child aged about 3 years was
also brought for treatment. He had also
sustained 2% burn injuries. However, he
admitted in his cross examination that he did
not obtain signature of the person who
brought the patient, on M.L.C. register. He
stated that the child was brought afterwards
by Sairabegum and Sk. Gulam Rasul. He stated
that he personally did not treat the
patients. It is also relevant to mention that
Dr.Nivrutti Wanole [PW-1] stated that
Nurjahan gave history that when she was
sleeping on the bedstead, her husband's wife
Aminabee poured kerosene on her person and
with match stick set her on fire. However,
when he deposed after lapse of considerable
period before the Court, the said statement
made by him was without having any record or
MLC register. It is admitted by him in the
cross examination that he did not obtain
signature of the person who brought the
267.2001 Cri.Appeal.odt
patient, on MLC register. The suggestion was
also given to him that patient was brought by
Sk. Chand, and the medical history was given
by Sk. Chand i.e. husband of Nurjahan and not
by the patient, however, the said suggestion
is denied, nevertheless in absence of entry
in the MLC register, who brought the patient
in the Hospital, the said suggestion also
assumes importance, in view of the defence
taken by the appellant that to save Sk.Chand
himself, he has falsely implicated the
appellant in the alleged offence. In the
peculiar facts of this case, since Nurjahan
sustained 95% burn injuries, Nurjahan ought
to have been examined by the Medical Officer
soon before the recording of the dying
declaration, and his presence throughout
recording of such dying declaration, was
necessary.
We have carefully perused the
267.2001 Cri.Appeal.odt
contents of the dying declaration, which was
treated as FIR [Exh.18]. Nurjahan stated that
she married to Sk. Chand Sk.Usman who was
working as truck driver about 10 years prior
to filing the FIR. It is further seen that
her husband, without her knowledge married to
accused Aminabi, and he has one son from the
accused. It is further seen that she was not
pulling on well with Aminabi, and when she
was residing with her husband, Aminabi was
residing at her parental place. It is seen
from her complaint that about 15 days prior
to the incident, accused Aminabi's father
reached her to their house at Aurangabad, and
Aminabi was residing with them at Aurangabad.
As she came to Aurangabad, she again started
picking up quarrels with her, and she wanted
her husband to give money to her and not to
Nurjahan. As per the FIR, it is seen that the
incident took place on 4th June, 1999, at
about 2.00 p.m. Her husband Sk.Chand went to
267.2001 Cri.Appeal.odt
his duty, and at about 2.00 p.m. when she was
sleeping on the bedstead along with her minor
son Ashpak, Aminabi was also sleeping on the
floor and when Nurjahan was about to fall
asleep, she felt kerosene dropping on her
face, and when Nurjahan opened her eyes she
saw accused Aminabi pouring kerosene on her
person from german tin, and when she was
trying to get up, Aminabi ignited match stick
and threw burning match stick on her person,
and as a result of which her saree caught
fired and her body started burning. Then she
ran out of the house and herself poured water
on her person from the pot which was kept
outside the house and tried to extinguish the
fire.
13. Upon careful perusal of the dying
declaration at Exh.18 from the original
record, four thumb impressions are appearing
on the said dying declaration. The trial
Court has mentioned that there are three
267.2001 Cri.Appeal.odt
thumb impressions. But, it appears that the
said observation is not correct, and there
are four thumb impressions, which are clearly
visible. Admittedly, there is no endorsement
made by the Medical Officer while recording
the said dying declaration that Nurjahan was
in a fit mental condition and well oriented
to give such dying declaration. The time of
recording of the said dying declaration is
not mentioned. The said dying declaration
[Exh.18] is treated as FIR, and the time is
mentioned as 21.30 hours. Even if we consider
the endorsement at Exh.17 given by the
Medical Officer, the said endorsement was
given at 5.35 p.m. It is not clear from the
said document that as a matter of fact,
whether the Medical Officer actually examined
Noorjahan and then put his endorsement that,
she was in a fit mental condition to give
such dying declaration. Upon careful perusal
of the postmortem report, time of death is
267.2001 Cri.Appeal.odt
shown as 21.50 hours, it means the dying
declaration [Exh.18], which was treated as
FIR, was registered/recorded at 21.30 hours
i.e. 9.30 p.m., and thereafter within 20
minutes Nurjahan died. In the peculiar facts
of the present case, it will have to be held
that the dying declaration is surrounded by
suspicious circumstance inasmuch as there are
four thumb impressions appearing on the said
Dying Declaration. There is no endorsement of
the Medical Officer about her mental and
physical fitness to give such dying
declaration, and further there is no mention
of starting and ending time of recording of
such dying declaration. Dr.Nivrutti Wanole
[PW-1] has stated that Nurjahan sustained 90%
burn injuries, however, the postmortem
examination report shows 95% burn injuries.
14. The trial Court proceeded to accept
the evidence of other prosecution witnesses
267.2001 Cri.Appeal.odt
for the purpose of corroboration to the
contents of the dying declaration at Exh.18,
and concluded that the appellant is guilty
for the offence punishable under Section 302
of the IPC. In the dying declaration at Exh.
18, Nurjahan stated that Ashpak, son of
Nurjahan aged 3 years, was sleeping with her.
However, the prosecution examined Sk.Ayas
Sk.Chand as PW-3, another son of Sk.Chand,
who stated that at the time of incident he
was present in the house and saw that Aminabi
poured kerosene and set ablaze Nurjahan. In
the entire dying declaration, Nurjahan has
not mentioned the name of Sk.Ayas Sk.Chand.
In para 14, the trial Court observed that
'prosecution also heavily relied on the
evidence of Sk. Ayas [Ashpak] son of deceased
Nurjahan examined at Exh.14, who is 9 years
old. It appears that the trial Court got
confused in treating Sk. Ayas Sk.Chand and
Ashpak are one and the same child, whereas
267.2001 Cri.Appeal.odt
only the name of Ashpak is mentioned in the
dying declaration by Nurjahan. It has come on
record that Nurjahan had three children.
There is suggestion given to Sk.Ayas Sk.Chand
that at the relevant time he had gone to
school, however, he denied the said
suggestion. However, the answer given by Sk.
Ayas Sk. Chand [PW-3], clearly indicated that
at the relevant time he was school going boy,
and Ashpak whose name is mentioned in the
dying declaration by Nurjahan is another son.
It has come on record in the dying
declaration that at the relevant time the age
of Ashpak was three years. If we treat Ashpak
as eye witness, aged 3 years at the relevant
time, by any stretch of imagination his
statement could not have been recorded as eye
witness.
In order to find out whether really
Nurjahan stated the contents of the said
dying declaration, it is relevant to make
267.2001 Cri.Appeal.odt
reference to the cross examination of Sk.
Ayas Sk. Chand. In his cross examination he
stated that, it is true that his mother and
father did not like Aminabee coming to their
house for residence and there used to be
quarrel amongst them. On that day in the
morning his mother had quarrel with his
father; she was telling him to send Aminabee
to Kadrabad.
If the contents of the dying
declaration at Exh.18 are carefully perused,
it is mentioned that on 4th June, 1999, in the
morning at 5 a.m. i.e. the date of incident,
husband of Nurjahan namely Sk.Chand went to
attend his duty, since he was working as
driver, and only Nurjahan, children and
Aminabi were in the house. If the above-
mentioned portion of the cross examination of
Sk. Ayas Sk. Chand [PW-3] is taken into
consideration, he stated that on the date of
incident i.e. on 4th June, 1999, in the
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morning his mother had quarreled with his
father; in that case the statement appearing
in the dying declaration that father of PW-3
Sk.Chand and husband of Nurjahan went to
attend the duty at 5.00 a.m. does not appear
to be in conformity with the evidence of the
PW-3. Therefore, as already observed, the
dying declaration at Exh.18, which was
treated as FIR, was surrounded by the
suspicious circumstance, and therefore, the
trial Court ought to have been more careful
while scrutinizing the contents of the said
dying declaration and other evidence brought
on record by the prosecution.
15. Coming to the evidence of Sk.Chand
Sk.Osman, who was examined as PW-2. Even
according to the prosecution case he was not
present, and according to him, Nurjahan
orally told him about the said incident that
Aminabi poured kerosene on her person and set
her on fire. If we are not prepared to
267.2001 Cri.Appeal.odt
believe the dying declaration at Exh.18
itself, the alleged oral dying declaration
with Sk.Chand [PW-2] alone cannot form basis
to sustain conviction of the appellant. It is
also relevant to mention that during cross
examination of Sk. Chand [PW-2], he admitted
that Nurjahan had filed criminal case under
Section 498-A of the IPC against him, his
mother and sister. In that case, there was
compromise. Nurjahan had also filed
application for maintenance. The said
compromise was recorded in the year 1997. He
also stated that Aminabee never stayed with
him, when Noor Jahan was residing with him.
Only for last 8 days prior to the incident,
Noor Jahan and Aminabee resided together with
him. He also stated that he did not like
Aminabee coming to his house to reside. There
are certain suggestions given to him by the
defence that, due to his liking to Aminabee
in last 8 days preceding the date of
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incident, and sexual intercourse with her
during said period, Noorjahan picked up
quarrel with him. There was also suggestion
given to him that he sent Aminabee to the
Bazar and while Noor Jahan was alone in the
house, Nurjahan herself set her on fire,
however, he denied said suggestion. He denied
the suggestion that apprehending his
involvement in the crime, he gave name of
Aminabee before the Police, Doctor and the
Executive Magistrate. However, the fact
remains that to probabilise the defence taken
by the appellant, the said suggestion was
given by the defence.
Upon careful perusal of the entire
evidence brought on record, the prosecution
has not convincingly proved the presence of
the appellant in the house at the relevant
time. The evidence of Kamlabai Chandaliya
[PW-7] was fatal to the prosecution case
267.2001 Cri.Appeal.odt
inasmuch as she was residing in the same
locality just two houses away from the house
of Nurjahan at the relevant time. She stated
in her deposition that the incident took
place at about 2.00 p.m. She was at her
house. People started shouting that woman had
been burnt, then she came out of the house.
She was at her house. As nobody was taking
her to the Hospital, she took her to the
Ghati Hospital in a rickshaw. She stated that
she had no talk with that burnt woman on the
way to the Hospital. She did not ask her as
to how she burnt.
No doubt can be raised about
happening of such incident, and the fact that
Nurjahan sustained 95% burn injuries.
However, the real question is who was
responsible for the aforesaid incident. The
appellant has taken two fold defence; firstly
Nurjahan herself poured kerosene and set
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herself ablaze; and secondly, in order to
save himself Sk.Chand, he falsely implicated
the appellant Aminabi. In the said
background, it was fatal for the prosecution
to convincingly prove the presence of Aminabi
in the house at the relevant time, and
secondly, the evidence of Kamlabai [PW-7]
would have been turning point in the
prosecution case inasmuch as she would have
thrown light on the aspect; who is real
author of the said incident? It appears that
though she stated in her evidence that she
took Nurjahan to the Ghati Hospital in a
rickshaw, however, she stated that she had no
talk with Nurjahan on the way to the
Hospital, and Nurjahan did not tell her who
poured kerosene and set her ablaze. She
specifically denied suggestion that while she
was taking Nurjahan in auto rickshaw to the
Hospital, she asked Nurjahan as to how she
burnt, and that Nurjahan told that her co-
267.2001 Cri.Appeal.odt
wife burnt her. She specifically stated that
Nurjahan did not talk in the auto rickshaw.
Kamlabai [PW-7] should have been first person
to whom Nurjahan ought to have narrated the
incident. Kamlabai [PW-7] also denied
suggestion that she saw Aminabee coming out
from the house at the relevant time.
Therefore, the evidence of Kamlabai [PW-7]
assumes importance, since she was an
independent witness.
Upon careful perusal of the evidence
of Kacharu Chavan [PW-4], he was working as
Police Head Constable at the relevant time.
In his deposition he stated that the Doctor
made endorsement on the letter itself
certifying that Nurjahan was in a position to
make statement, and the name of the said
Medical Officer is Pramod Salve. It is not
clear from the evidence of Kacharu Chavan
[PW-4] that as a matter of fact that, whether
267.2001 Cri.Appeal.odt
Doctor Pramod Salve really examined Nurjahan
before giving endorsement. Admittedly, the
said Medical Officer Pramod Salve is not
examined by the prosecution. He [PW-4] also
admitted in his cross examination that three
thumb impressions are seen on the statement
of Nurjahan at Exh.18. As first two thumb
impressions were not properly impressed,
third thumb impression was taken. However, he
admitted that he did not mention on the
statement that as earlier thumb impressions
were not properly impressed, third thumb
impression was taken. Therefore, the evidence
of Kachru Chavan [PW-4], who recorded the
statement at Exh.18, clearly shows that he
obtained three thumb impressions of Nurjahan.
Though he obtained endorsement of the Medical
Officer at 5.35 p.m. it is not clear whether
that Medical Officer really examined
Nurjahan. Even in his evidence Kachru Chavan
[PW-4] has not stated that he satisfied
267.2001 Cri.Appeal.odt
himself by putting certain questions to
Nurjahan that she was in a fit mental and
physical condition and was oriented to give
such dying declaration. It creates doubt in
the mind that, whether Nurjahan was really in
a fit mental and physical condition to give
such dying declaration. The defence taken by
the appellant cannot be said to be
improbable.
16. In the light of the discussion in
the foregoing paragraphs, we are of the
considered view that, the trial Court while
recording the findings of conviction of the
appellant has not correctly appreciated that,
the dying declaration at Exh.18 was
surrounded by the suspicious circumstance,
and there is no endorsement by the Medical
Officer about mental and physical fitness of
the Nurjahan to give such dying declaration.
17. In the light of the discussion in
267.2001 Cri.Appeal.odt
the forgoing paragraphs, we are of the view
that, the evidence brought on record by the
prosecution, to uphold the conviction of the
appellant, is not cogent, convincing and
sufficient. In the case of Mehiboobsab
Abbasabi Nadaf V. State of Karnataka1, the
Supreme Court held that conviction can
indisputably be based on a dying declaration.
But before it can be acted upon, the same
must be held to have been rendered
voluntarily and truthfully. The Division
Bench of the Bombay High Court in the case of
Manik Vanaji Gawali V. State of Maharashtra2
has taken a view that even if a certificate
by an expert about fitness of state of health
is placed on record, such certificate by
itself will not prove the fact represented
therein, rather it will have to be proved by
the medical witness by stepping into witness
box. In that view of the matter, the benefit
1 [2007] 13 SCC 112
2 2013 Cri.L.J. 972
267.2001 Cri.Appeal.odt
of doubt will have to be given to the
appellant accused.
18. For the reasons afore-stated, we
allow the Appeal, and quash and set aside the
impugned judgment and order of conviction and
sentence dated 21st June, 2001 passed by the
Sessions Judge, Aurangabad in Sessions Case
No.278/1999, and acquit the appellant from
all charges. Fine amount deposited, if any,
by the appellant shall be refunded to her.
Bail bond, if any, shall stands cancelled.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
