The State Of Maharashtra vs Shaikh Musa Shaikh Vajir & Ors
2017 Latest Caselaw 5279 Bom

                                        (1)                         Cri.Appeal No. 333/01


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO.  33
                                             3
                                                OF 2001
                                                       

          The State of Maharashtra
          Through Police Station,
          Chikalthana, Dist. Aurangabad.                     ..  Appellant.

                           Versus

 1.       Shaikh Musa s/o Shaikh Vajir
          Age : 19 years, occu. : agri.,
          R/o Chikalthana, Dist. Aurangabad

 2.       Shaikh Vazir s/o Shaikh Anwar
          (Abated since died).

 3.       Habibabegum w/o Shaikh Vazir
          Age : 55 years, occu. : agri.,
          R/o as above.

 4.       Shaikh Hussain s/o Shaikh Vazir
          Age : 20 years, occu. : agri.,
          R/o Chitegaon, Taluka and
          District Aurangabad.                               ..  Respondents.

                                   ***
 Mr. S.J. Salgare, A.P.P. for the appellant/State.
 Mrs. R.S. Kulkarni, Advocate for respondent Nos.1, 3 & 4
 (Appointed by the Court).
 Appeal is abated against respondent No.2 as per order of
 this Court dated 24.07.2017.
                                   ***

                                            CORAM : T.V. NALAWADE &
                                                         SUNIL K. KOTWAL,JJ. 

DATED : 31-07-2017.

(2) Cri.Appeal No. 333/01

JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This appeal is filed by the State against the

judgment and order of acquittal dated 17.04.2001 passed by

Additional Sessions Judge, Aurangabad in Sessions Case No.

392/1999, acquitting the original accused Nos.1 to 4 of the

offences punishable under Sections 302, 306 and 498-A read

with Section 34 of the Indian Penal Code (For short "I.P.C.").

2. Respondent Nos.1 to 4 are the original accused

persons. Respondent No. 2 Shaikh Vazir s/o Shaikh Anwar died

during pendency of the appeal and appeal against him is

abated.

3. Facts leading to institution of this appeal are that

accused Nos.1 to 4 were prosecuted for the offences punishable

under Sections 498-A, 302 and 306 read with Section 34 of

I.P.C. Prosecution case, in brief, is that Zakira Begum w/o

Shaikh Musa (hereinafter referred as "deceased") married to

accused No.1 prior to one year from the date of incident.

Accused No.2 is father and accused No.3 is mother as well as

accused No.4 is brother of accused No.1.

(3) Cri.Appeal No. 333/01

4. After marriage, for about one month accused treated

deceased properly and thereafter they started ill-treatment to

her over the demand of cupboard and an amount of Rs.

15,000/- for renovating their house. Accused used to tell the

deceased that she was black and they did not want to keep her

and they want to divorce her. Deceased informed her parents

about this ill-treatment whenever she visited her parental

house. Deceased also informed her uncle Shaikh Mansoor

Shaikh Gafoor about the ill-treatment given to her for demand

of accused persons. The parents of the deceased could not

fulfill the demand of accused persons, and therefore, the ill-

treatment continued.

5. On 01.08.1999 at about 9.00 p.m. Shaikh Mansoor

(PW-6) was informed that the deceased had sustained burn

injuries and she had been hospitalized. Therefore, Shaikh

Mansoor (PW-6) visited the hospital and inquired with the

deceased, who was admitted in the hospital for treatment. She

disclosed that on the date of incident accused had beaten her,

abused her for not fulfilling the demand and thereafter accused

(4) Cri.Appeal No. 333/01

Nos.1, 2 and 4 caught hold her while accused No.3 pored

kerosene on her body and set her ablaze. Shaikh Mansoor (PW-

6) immediately informed the parents of deceased about the

occurrence. The parents of deceased (PW-3 & PW-4) reached to

M.G.M. Hospital, Aurangabad around midnight on 02.08.1999

at about 1.00 hour. When Shaikh Shamsuddin (PW-3) and

Sabera Begum (PW-4) inquired with their daughter, she

informed them about the above-said occurred incident. By that

time, Police Station Chikalthana was informed by the Medical

Officer, M.G.M. Hospital, Aurangabad about the injured

deceased vide letter (Exh.9). On the next day morning Head

Constable R.K. Meher (PW-1) visited M.G.M. Hospital at about

10.15 a.m. and gave letter (Exh.10) to Medical Officer to

ascertain whether the deceased was conscious and oriented.

The then Medical Officer permitted Head Constable Meher (PW-

1) to record dying declaration of deceased as she was conscious.

Therefore, he recorded first written dying declaration (Exh.11)

of deceased on 02.08.1999 at about 10.15 a.m. Head Constable

Meher (PW-1) also issued letter (Exh.12) to Special Executive

Magistrate Shri Bomble (PW-2) requesting him to record dying

(5) Cri.Appeal No. 333/01

declaration of deceased. Accordingly, on 02.08.1999 at about

03.15 p.m. Special Executive Magistrate Shri Bomble (PW-2)

visited M.G.M. Hospital and after ascertaining that the deceased

was conscious and in a condition to give statement, recorded

second written dying declaration (Exh.14) of the deceased in

between 3.30 p.m. to 3.55 p.m. The first dying declaration

(Exh.11) obtained by Head Constable Meher (PW-1) was

treated as F.I.R. and accordingly Crime No. 81/99 under

Sections 498-A and 307 read with Section 34 of I.P.C. was

registered against accused at Police Station, Chikalthana.

6. During the course of investigation, A.S.I. Andhale

(PW-7) visited the spot, had drawn spot panchnama (Exh.22) in

presence of panchas, attached burnt pieces of clothes of the

deceased and recorded statements of witnesses. On 05.08.1999

at about 7.45 p.m. deceased succumbed to the burn injuries.

Accordingly, inquest panchnama (Exh.18) was drawn. Dr. S.P.

Tapse (PW-8) performed autopsy examination of the dead body

of deceased and issued postmortem notes (Exh.19). He opined

that the cause of death of deceased was "shock due to burns".

(6) Cri.Appeal No. 333/01

After completion of the investigation, charge-sheet was

submitted before Judicial Magistrate, First Class, Aurangabad

against the accused persons.

7. Offences punishable under Sections 302 and 306 of

I.P.C. being exclusively triable by the Court of Sessions, this case

was committed to Sessions Court, Aurangabad.

8. Charge (Exh.3) was framed against accused persons

for the offences punishable under Sections 498-A, 302 and 306

read with Section 34 of I.P.C. Charge was read over to accused.

Accused pleaded not guilty and claimed trial.

9. Prosecution examined total 10 witnesses. Defence

of the accused is of total denial.

10. After considering the evidence placed on record by

prosecution, the learned Sessions Judge, Aurangabad pleased to

acquit accused Nos.1 to 4 of the offences punishable under

Sections 498-A and 302, alternately under Section 306 read

(7) Cri.Appeal No. 333/01

with Section 34 of I.P.C. Therefore, this appeal arises.

11. Learned A.P.P. for the State placed reliance on three

oral dying declarations before the parents and uncle of the

deceased as well as two written dying declarations obtained by

Head Constable Meher (PW-1) and Executive Magistrate Shri

Bomble (PW-2). According to A.P.P., the learned trial Court

wrongly disbelieved the dying declarations on the ground of

possibility of tutoring.

12. In reply, learned Counsel Smt. Rashmi Kulkarni,

Advocate for the respondents supported the judgment of

acquittal on the ground that the prosecution cannot rule out the

possibility of tutoring by parental relatives of the deceased

before recording written dying declarations. She also pointed

out that the prosecution cannot establish that at the time of

recording the two dying declarations (Exhs. 11 and 14) the

deceased was in a fit state of mind to give the statement.

13. No doubt, contention of learned A.P.P. is absolutely

correct that on the basis of dying declaration, conviction of the

(8) Cri.Appeal No. 333/01

accused can be based, provided that it is free from all

infirmities. There shall not be any possibility of tutoring, mis-

identity of the assailants or unstable mental condition of the

deceased.

14. In the case at hand, as per prosecution case itself the

first dying declaration (Exh.11) was recorded by Head

Constable Meher (PW-1) on 02.08.1999 at about 10.15 a.m.

and before recording that dying declaration, Shaikh Mansoor

(PW-6), Shamsuddin (PW-3) and Sabera Begum (PW4) met to

the deceased in M.GM. Hospital. These three witnesses

categorically deposed regarding their meeting with deceased in

M.G.M. Hospital prior to recording of dying declaration by Head

Constable Meher (PW-1). Therefore, prosecution witnesses

themselves have provided possibility of tutoring of deceased by

her parental relatives. On this count itself both written dying

declarations relied upon by the prosecution cannot be

considered as free from all infirmities.

15. Head Constable Meher (PW-1) deposed before the

(9) Cri.Appeal No. 333/01

Court all details regarding his visit to M.G.M. Hospital,

Aurangabad on 02.08.1999 at about 10.15 a.m. and regarding

recording of dying declaration (Exh.11) after obtaining

necessary permission from the Medical Officer on letter

(Exh.10). However, from his evidence it becomes clear that

before recording dying declaration he did not ask preliminary

questions to the deceased to satisfy himself that she was in a fit

state of mind to give the statement. From his cross-examination

it also emerges that he obtained the certificate of fitness of

deceased to give statement from Casualty Medical Officer

(C.M.O.) whose office is at the distance of 50 to 60 ft. from the

Ward where the deceased was admitted. He does not say that

at the time of recording dying declaration of deceased, C.M.O.

was present near the deceased to observe the condition of

deceased. Even this important witness nowhere deposed that

before recording of dying declaration the C.M.O. personally

examined the deceased and thereafter issued certificate

regarding fitness of deceased to give statement. Therefore, we

have no hesitation to hold that Head Constable Meher (PW-1)

did not take necessary precaution to confirm that at the time of

(10) Cri.Appeal No. 333/01

recording dying declaration of the deceased, she was in a fit

state of mind to give the statement. So also, Dr. M.R. Bagde

(PW-10), who was present in the Casualty Ward in M.G.M.

Hospital on 02.08.1999, has admitted in his cross-examination

that there was excessive loss of fluid due to burns to the

deceased and because of excessive loss of fluid, the mental

condition of the deceased was disturbed. This clear admission

of Dr. Bagde (PW-10) together with the above discussed

testimony of Head Constable Meher (PW-1) is sufficient to hold

that the prosecution failed to prove that at the time of recording

of dying declaration (Exh.11) of deceased by Head Constable

Meher (PW-1) the deceased was in a fit state of mind to give the

statement. Therefore, considering the possibility of tutoring as

well as unfit mental state of deceased to give statement, the

dying declaration (Exh.11) recorded by Head Constable Meher

(PW-1) deserves to be discarded.

16. Second dying declaration is recorded by Special

Executive Magistrate Shri Bomble (PW-2), who claims that on

02.08.1999 he visited M.G.M. Hospital, Aurangabad and

(11) Cri.Appeal No. 333/01

recorded dying declaration (Exh.14) of the deceased in between

3.30 p.m. to 3.55 p.m. However, the testimony of Shri Bomble

(PW-2) is of no help to the prosecution to prove second dying

declaration (Exh. 14) for the simple reason that in his entire

evidence he did not state as to exactly what statement was

given by deceased regarding the cause of burn injuries sustained

by her.

17. The Division Bench of this Court in the cases of;

(1) Deorao Sonbaji Bhalerao Vs State of Maharashtra (2008 ALL MR (Cri) 1921)

(2) Jivan Tulsiram Dhavali Vs State of Maharashtra (2008 ALL MR (Cri) 2018)

(3) Laxmibai Maruti Satpute Vs State of Maharashtra (2010 ALL MR (Cri) 182)

(4) Faizal Mohammed s/o Abdulla Banaim Vs State of Maharashtra ( 2010 ALL MR 2241)

held that it was incumbent on the Scribe to prove the contents

of dying declaration. In other words, it was incumbent for the

Scribe to state in his substantive evidence as to what was

narrated to him by the injured in respect of the injuries

sustained by the injured. In absence of such evidence, the

(12) Cri.Appeal No. 333/01

Division Bench has held that the dying declaration does not

stand proved. The ratio of above-said judgment is squarely

applicable to the facts of the present case. On this count alone

the second dying declaration (Exh.14) recorded by Special

Executive Magistrate Bomble (PW-2) has to be discarded.

18. No doubt, Shaikh Shamsuddin (PW-3), Sabera

Begum (PW-4) and Shaikh Mansoor (PW-6) have categorically

deposed before the Court that when they inquired with the

deceased in M.G.M. Hospital, that time she disclosed before

them all the above-said occurred incident that she was put on

fire by her mother-in-law and that time she was held by

remaining accused persons. However, these oral dying

declarations in presence of close relatives of the deceased

cannot be relied upon unless corroborated by other

circumstantial evidence. However, conduct of these parental

relatives is abnormal. Despite knowing occurrence, they did not

inform police or anybody as to what accused had done with

deceased.

(13) Cri.Appeal No. 333/01

19. In the case at hand, it is the case of the prosecution

that at the time of occurrence mother-in-law of the deceased i.e.

accused No.3 poured kerosene on the body of deceased and set

her ablaze. Dr. M.R. Bagde (PW-10), who was present in

M.G.M. Hospital when deceased was admitted in the said

hospital by her husband, has admitted in his cross-examination

that while examining the deceased he did not find kerosene

smell. Even Dr. Tapase (PW-8), who performed autopsy

examination of the dead body of deceased, has admitted that no

kerosene residues were found on the body of deceased. Even

postmortem notes (Exh.19) does not show that there was

kerosene smell with the body of deceased. Thus, the admissions

on record belied the prosecution theory that accused No.3

poured kerosene on the body of deceased and set her ablaze. On

the other hand, case paper of deceased shows that at the time of

admission and even thereafter for two times the deceased gave

history of injuries to her as burst of stove. Thus, the possibility

of accidental burns has been brought on record.

20. In the circumstances, the evidence placed on record

(14) Cri.Appeal No. 333/01

by the prosecution certainly falls short to establish the guilt of

the accused under Section 302 and 498-A, in the alternate

under Section 306 read with Section 34 of I.P.C. The learned

trial Court has assigned proper reasons while coming to the

conclusion of acquittal of accused. The view taken by the

learned trial Court is possible view, and therefore, judgment of

acquittal cannot be interfered in the present appeal.

Accordingly, we pass the following order.

                                      ORDER

         1.       Criminal   Appeal   No.           333/2001           stands 
                  dismissed.

2. The acquittal of the respondents in Sessions Case No. 392/1999 is confirmed.

3. Under Section 437-A of the Code of Criminal Procedure, accused No.1 Shaikh Musa s/o Shaikh Vazir, accused No.3 Habiba Begum w/o Shaikh Vazir and accused No.4 Shaikh Hussain s/o Shaikh Vazir shall furnish before the trial Court the bail bonds with surety for the amount of Rs. 5,000/- (Rupees Five Thousands) each to appear before the Supreme Court as and when notices are issued to them

(15) Cri.Appeal No. 333/01

in respect of any proceedings filed against this judgment and the said bail bonds shall remain in force for a period of six months from today.

4. Fees of learned Counsel Smt. Rashmi Kulkarni, Advocate appointed as amicus curie, is quantified at Rs. 4,000/-.

          ( SUNIL K. KOTWAL)                    ( T.V. NALAWADE)
               JUDGE                                    JUDGE
                                      ***
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