The State Of Maharashtra vs Manjur Mahemood Sayyed & Ors
2017 Latest Caselaw 3745 Bom

                                    (1)                              criapl522.01

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO.522 OF 2001

The State of Maharashtra                              ..       Appellant

      Versus

1.    Manjur Mahemood Sayyed                          ..       Respondents
      Age-30 years, 

2.    Mumtaz Mahemud Sayyed,
      Age-48 years, 

3.    Shaikh Mahemood Sayyed,
      Age-28 years,

4.    Sayyad Mahemood Sayyad Sardar,
      Age-60 years, 

5.    Ajaj Karim Shaikh,
      Age-34 years, 

6.    Parvin Ajaj Shaikh,
      Age-30 years, 

      Accused Nos. 1 to 4
      R/o. Brahmni, Tq. Rahuri, 
      Dist. Ahmednagar

      Accused Nos. 5 and 6
      R/o. Zendigate, Ahmednagar


Mr.A.R. Borulkar, APP for the appellant/State
Mr.S.K. Shinde, Advocate for respondent No.1




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                                      (2)                               criapl522.01


                                     CORAM :  S.S. SHINDE &
                                              S.M. GAVHANE, JJ.

DATED : 29.06.2017

J U D G M E N T [PER: S.S. Shinde, J.]:-

. This appeal is filed by the State challenging

the judgment and order dated 27.08.2001 passed by the

Additional Sessions Judge, Ahmednagar in Sessions Case

No.142 of 1998, thereby acquitting all the accused for

the offences with which they were charged.

2. The prosecution case, in nutshell, is as under:-

A. It is the case of prosecution that deceased

Rizwana was a daughter of Shaikh Karim (PW-2). The

marriage of Rizwana took place with accused No.1 in the

year 1992. The matrimonial house of late Rizwana situates

at village Brahamni, Tq. Rahuri. However, deceased

Rizwana was practicing in the Court of Rahuri during her

life time.

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B.             After   the   marriage   she   had   gone   to   village 

Brahmani to her matrimonial house. All the accused nicely

treated late Rizwana initially after her marriage with

accused No.1. Late Rizwana being a practicing lawyer, she

started residing at Rahuri alongwith accused No.1 in a

rented house. Rizwana being lawyer always required to

have dialogues with her clients and other connected

persons to her profession. Accused No.1 therefore,

started to suspect the character of late Rizwana, since

she was all the while talking with her clients and press

reporters etc. It is alleged that on the aforesaid ground

often quarrel used to take place between late Rizwana and

accused No.1. Accused No.1 also used to beat late Rizwana

on the instigation of accused Nos. 2 to 6. It is alleged

that on 15.05.1998, in the noon time accused out of the

suspicion of the character of deceased firstly beat the

deceased with iron rod and then sprinkled petrol on her

person and set her on fire. Accused No.1 himself took

deceased Rizwana to the private dispensary of Dr. Anil

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Athare PW-9. Deceased Rizwana was hospitalized from

16.05.1998 till 22.06.1998 in the hospital of PW-9. On

16.05.1998 her first dying declaration came to be

recorded vide Exh.61. The said dying declaration was

forwarded to Rahuri Police Station for necessary action

by Tophkhana Police. The second dying declaration of

Rizwana also came to be recorded on 21.06.1998 vide Exh.

60, and same was forwarded to Rahuri Police Station for

information and necessary action. On the basis of dying

declaration Exh.60 offence came to be registered bearing

C.R. No. 131/1998 under Section 302 and 498-A of IPC

against all the accused. Meantime ASI Suresh Haribhau

PW-8 recorded the spot panchanama Exh.56 and while doing

so, he seized burnt petticoat, gown and bluish blanket

and tin container of the petrol. PW-11 received the

inquest panchanama, spot panchanama, dying declaration

recorded on 16.05.1998 and 21.06.1998. He arrested the

accused.PW-10 then sent the seized property to Chemical

Analyser, Aurangabad for the analysis and on completion

of investigation charge-sheet was filed. Meantime the map

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of the scene of offence vide Exh.39 came to be recorded.

Medical Officer Dr. Sharad PW-7 conducted the autopsy on

the dead body of Rizwana on 22.06.1998 and gave report

vide Exh.54 accordingly.

C. The offence being exclusively triable by the

Court of Sessions learned Magistrate committed the case

to the Court of Sessions.

D. On hearing the prosecution and the accused

charge at Exh.27 was framed and explained to all the

accused. They all pleaded not guilty and claimed to be

tried. The defence of the accused is that of total

denial. In addition to this it is their contention that

Rizwana caught fire due to burning of the stove while she

was cooking.

3. The learned APP appearing for the State invites

our attention to the contents of the dying declarations

and submits that in both the dying declarations, Rizwana

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stated that, husband Respondent No.1 used to suspect on

her chastity/character since 1993 and used to abuse her.

He used to suspect on account of interacting with her

clients. Learned APP submits that it is true that in

first dying declaration recorded on 16/05/1998 by the

Special Executive Magistrate, Ahmednagar at Exh.61 of

Rizwana, she stated that since respondent No.1/accused

No.1 used to suspect about her character, therefore, she

herself set her ablaze, and in second dying declaration

at Exh.60 which was recorded by the same Special

Executive Magistrate, Ahmednagar who recorded dying

declaration at Exh.61, she stated that her husband poured

petrol on her person and set her ablaze, and before

setting her ablaze, her husband abused her. However, the

main reason for such an incident was the conduct of the

husband to suspect the character of Rizwana and to ill-

treat her, as a result the said incident had taken place

in which she died.

4. The sum and substance of the argument of the

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learned APP is that the husband was responsible for the

death of Rizwana therefore, the view taken by the trial

Court was not plausible. Therefore, he submits that the

appeal may be allowed.

5. Learned counsel appearing for the respondents

(original accused) invites our attention to the contents

of dying declarations (Exh.60 and 61) and submits that

the dying declarations suffer from material

contradiction, in as much as in first dying declaration

(Exh.61) which was recorded by Special Executive

Magistrate on 16.05.1998, Rizwana stated that since the

accused No.1 Manjur Mahemood Sayyed used to suspect on

her character, therefore she herself set her ablaze.

However, in second dying declaration which was recorded

after gap of about one month i.e. on 21.06.1998, she

stated that her husband poured petrol on her person and

set her ablaze. Therefore, both the dying declarations do

not inspire confidence and therefore keeping in view said

material contradictions in two versions, the trial Court

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has rightly extended the benefit of doubt in favour of

the respondents and acquitted them. It is submitted that

in fact respondent Nos. 2 to 6 are concerned, there is no

any role assigned to them in both the dying declarations.

It is submitted that Bismilla Karim Shaikn (PW-6) mother

of Rizwan during her cross-examination admitted that

accused No.1 Manjur Mahemood Sayyed husband compelled her

daughter i.e. Rizwana to be in the legal practice.

Therefore, there was no question of ill-treatment or

suspecting the character of Rizwana on account of

interacting with the clients. It is submitted that it is

well settled that on appreciation of evidence if possible

view is taken by the trial Court, in that case though

another view may be possible, the same is no ground to

interfere in the order of acquittal. Therefore, learned

counsel appearing for the respondents prays that appeal

may be dismissed.

6. We have given careful consideration to the

submissions of the learned APP appearing for the

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appellant/State and counsel appearing for the respondents

and with their able assistance, we have perused the

evidence of the prosecution witnesses, medical evidence

and in particular two dying declarations at Exh.61 & 60

of Rizwana. Upon careful perusal of the evidence of

Medical Officer in his deposition he stated that he

examined the patient. She was admitted in hospital after

receiving letter from the Tofkahana Police Station. After

treatment on 22.06.1998 Rizwana died. He has also stated

about percentage of burn and other details. During his

cross-examination he denied suggestion that dying

declaration at Exh.61 was not recorded in his presence.

7. The prosecution examined Shaikh Karim Shaikh

Usman (PW-2)- father and Bismilla Karim Shaikh (PW-6)-

mother of deceased Rizwana. PW-2 Shaikh Karim Shaikh

Usman in his deposition stated that accused started

suspecting the character of Rizwana since 1993. On

suspicion, quarrel used to take place between them. PW-6

Bismilla Karim Shaikh mother of deceased Rizwana also

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stated in her examination-in-chief that accused No.1 used

to suspect about her character and also used to beat her,

and she came to know about the said ill-treatment from

her daughter that accused Nos. 2 to 6 used to tease her

on petty matters, whenever her daughter visited her

parental house she stated about such harassment by

respondent Nos. 2 to 6.

The evidence of Shaikh Karim Shaikh Usman (PW-2)

and Bismilla Karim Shaikh (PW-6) was recorded so as to

prove the charge for the offence punishable under Section

498-A of the IPC. However, the trial Court upon

appreciation of their evidence observed that Bismilla

Karim Shaikh (PW-6) in her cross-examination stated that

she insisted her daughter to quit from the legal

profession, but accused No.1 i.e. her husband, compelled

Rizwana to be in the legal practice. The trial Court

discarded the evidence of both the witnesses on the

aspect of ill-treatment and harassment. Admittedly,

during the period of six years of the marital tie of

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respondent No.1 and deceased Rizwana, nothing is brought

on record to suggest that, there was any complaint filed

by the Shaikh Karim Shaikh Usman (PW-2) or Bismilla Karim

Shaikh (PW-6) or Rizwana making grievance about such

alleged ill-treatment or harassment.

8. As already observed, two dying declarations of

Rizwana were recorded, one at Exh.61 by the Special

Executive Magistrate on 16.05.1998. The said dying

declaration was recorded on second day of the incident.

While answering question No.10 i.e. "who set you on fire

or ablaze?" she replied "my husband suspects on my

character and beats me hence I ablaze myself." However,

in the said dying declaration in reply to question No.12

that "why she decided to set her ablaze?" She stated

that, since her husband used to suspect about her

character and used to abuse her, she set herself ablaze.

She also stated the date and time of the incident.

However, while answering question No.14, she stated that

her husband extinguished the fire and also taken her to

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the hospital.

. Second dying declaration Exh.60 was recorded on

21.06.1998. In the said dying declaration in reply to

question no.14, she stated that her husband extinguished

the fire and taken her to hospital. Both the dying

declarations are recorded by the same Special Executive

Magistrate. Upon careful perusal of the dying declaration

at Exh.61, there is endorsement of the Medical Officer

that patient was conscious oriented and in position to

give the statement. The said endorsement was given on

16.05.1998 at about 02.00 pm. However, upon careful

perusal of the dying declaration at Exh.60 there is no

endorsement of the Medical Officer that patient i.e.

Rizwana was conscious oriented and in position to give

the statement. Upon careful perusal of both the dying

declarations, the statement of Rizwana so far as the

actual incident is concerned, as already observed, in

second dying declaration there is substantial

improvement. In first dying declaration she stated that

( 13 ) criapl522.01

she herself set ablaze. In second dying declaration she

stated that her husband poured petrol on her person and

set her ablaze. Therefore, there was material

improvement. The trial Court upon appreciation of the

entire evidence brought on record and in particular the

contents of both the dying declarations, reached to the

conclusion that the dying declarations do not inspire

confidence. So far as respondent Nos. 2 to 6 are

concerned, there are no any specific allegations/role

assigned in both the dying declarations and therefore,

the trial Court granted benefit of doubt to the

respondents/accused. Upon independent scrutiny of the

evidence brought on record and in particular dying

declarations at Exh.61 and 60, we are of the considered

view that both the dying declarations do not inspire

confidence so as to reverse the order of the acquittal

passed by the trial Court and convict the respondents.

The dying declaration recorded at Exh.61 was prior in

time. The said dying declaration was in question-answer

form and was recorded by Special Executive Magistrate and

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there is also endorsement by the Medical Officer that

Rizwana was conscious, oriented and in position to give

the statement. In second dying declaration, the said

endorsement of the Medical Officer is not there. Be that,

as it may, on scrutiny of contents, both the dying

declarations do not inspire confidence.

9. In the light of discussion in forgoing

paragraphs, in our considered view, the prosecution has

utterly failed to prove the case against the respondents.

The view taken by the trial Court is a plausible and in

consonance with the evidence brought on record. Even if

for a moment it is assumed that, an another view is

possible on the strength of evidence brought on record by

the prosecution, the same is no ground to interfere in

the order of acquittal when plausible view has been taken

by the trial Court.

10. In the light of discussion in forgoing

paragraphs, an inevitable conclusion is that, the appeal

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filed by the State shall fail. Accordingly, the criminal

appeal stands dismissed. Bail bonds, if any, shall stand

cancelled.

         [S.M. GAVHANE, J.]                     [S.S. SHINDE, J.]

VishalK/criapl522.01