Masoodali Sadikali And Another ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1051 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                        CRIMINAL APPEAL NO.75/2015


 1. Masoodali Sadaikali,
    aged 36 years, Occ. Service.

 2. Sadikali Asadali,
    aged 65 years, Occ. Household.

      Both r/o Akot, Tq. Akot.  Dist. Akola
      (Presently in Central Jail, Amravati.)                 .....APPELLANTS
                         ...V E R S U S...

      The State of Maharashtra, through
      P.S.O. P. S. Hiwarkhed, Dist. Akola.                   ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. R. M. Daga, Advocate for appellants. 
 Mr. S. D. Shirpurkar, A.P.P. for respondent.
 -------------------------------------------------------------------------------------------

                                CORAM:-  B. P. DHARMADHIKARI AND
                                            V. M. DESHPANDE, JJ.
                                DATED :-    MARCH 27, 2017

 JUDGMENT (Per : V. M. Deshpande, J.)

1. The appellant Masoodali is the son of appellant

Sadikali. They are convicted by the Additional Sessions Judge,

Akot on 21.01.2015 in Sessions Trial No.18/2012. By the said

judgment, they are convicted for the offence punishable under

Section 498-A and were directed to suffer rigorous imprisonment

for three years and to pay a fine of Rs.2,000/- by each of them and

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in default to undergo further rigorous imprisonment for three

months. They were also convicted for the offence punishable

under Section 302 of the Indian penal Code and were directed to

suffer imprisonment for life and to pay a fine of Rs.3,000/- by each

of them and in default to undergo further rigorous imprisonment

for six months.

2. The prosecution case, as it was disclosed during the

course of the trial, is as under:

Rizwana, the deceased was married with the appellant

no.1 in the year 2008. The appellant no.1 is a teacher serving at

Zilla Parishad School at Panaj. According to the prosecution case,

the appellant and other co-accused used to harass the deceased on

the ground that at the time of marriage, sufficient dowry was not

given and therefore they used to make a demand of Rs.60,000/-.

The parents of the deceased being poor were unable to fulfill the

monetary lust of the appellants and other co-accused.

It is the further case of the prosecution that on

23.04.2012, the appellants poured kerosene on her person and set

her ablaze. She sustained severe burn injuries and, therefore, she

was initially taken to the hospital at Akot, thereafter, she was

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shifted to Akola. On getting information about the admission of a

burn patient, Naib Tahsildar Tulshiram Rathod (PW4) was asked

by the police authorities to record statement of Rizwana.

Accordingly, Tulshiram Rathod visited the hospital and after

getting the certification from the doctor who was attending

Rizwana that she is in a condition to give statement, recorded her

statement which is at Exh.-142.

Subsequently, Rizwana was shifted to Shriram Hospital,

Akola for better treatment. The intimation of admission to Shriram

Hospital was given to Police Station Civil Lines, Akola by the said

hospital vide Exh.-116. After her admission at Shriram Hospital,

Shriram Raut, another Executive Magistrate and Naib Tahsildar

(PW3) was asked to record the statement of Rizwana and

accordingly, he recorded the statement which is at Exh.139.

On the basis of the statement (Exh.-139), an offence

was registered against the appellants and others vide Crime

No.85/2012 for the offence punishable under Section 307, 498-A

read with 34 of the IPC at Police Station, Akot. The printed FIR is

at Exh.-152.

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3. While taking the treatment at Shriram Hospital on

27.04.2012, Rizwana expired. The death summary is at Exh.-118.

Thereafter, a Murg was registered at Police Station Civil Lines,

Akola vide AD No.0/12 and it was then intimated to the Police

Station, Akot. Therefore the offence was converted into an offence

punishable under Section 302, 498-A read with 34 of the IPC.

Initially, the investigation was carried out by Vijay Kapde (PW5).

He prepared the spot panchanama, Exh.112.

4. The investigation was made over to Sonali Gulhane API

(PW6). On 24.04.2014, she recorded the statement of witnesses.

She caused arrest of the appellants. The arrest panchanama of the

appellant no.1 is at Exh.-130 and the arrest panchanama of

appellant no.2 is at Exh.131. They were arrested on 28.04.2012.

She seized their clothes emitting smell of Kerosene on 28.04.2012

under seizure memos Exh.-115 and Exh.-114 respectively. She

sent all muddemal articles to the chemical analyzer and after

completion of the investigation, she found that sufficient material

is collected to send the accused persons for trial and therefore she

filed final report in the Court of Judicial Magistrate First class,

Akot.

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The learned Magistrate found that the offence is

exclusively triable by the Court of Sessions and, therefore, on

30.07.2012, committal order was passed and the case was listed in

the Court of Additional Sessions Judge, Akot.

5. The learned Additional Sessions Judge framed the

charge against the appellants and one Kamrunnisa and Mohd.

Sadique, sister in law and brother in law of the deceased. All the

accused persons denied the charge and claimed that they be tried.

6. In order to bring home the guilt of the accused persons,

the prosecution examined in all six witnesses and also mainly

relied on two dying declarations recorded by the Naib Tahsildar.

The learned Judge of the Court below, after

appreciating the evidence brought on record, found that the

charge against the original accused nos. 3 and 4 is not proved and,

therefore, they were acquitted. As observed in the opening

paragraph of this judgment, the learned Judge of the Court below

was of the view that the prosecution was successful in bringing

home the guilt of the appellants.

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7. We have heard Mr. R. M. Daga, learned counsel for the

appellant and Mr. S. D. Shirpurkar, learned A.P.P. for the State.

With the able assistance of the learned counsel, we have gone

through the record and proceedings.

8. According to the learned counsel for the appellants, the

conviction cannot be sustained inasmuch as according to him, both

the dying declarations are seriously flawed and those cannot be

the basis for conviction. He submitted that the other prosecution

witnesses did not support the prosecution and, therefore, they

were declared hostile. He also pointed out that the Chemical

Analyzer's report absolves the appellants. He relied on the

following judgments:

(i) Maruti Rajhunath Kendre ..v.. State of Maharashtra; 2014 ALL MR (Cri) 3831.

(ii) Mahesh Vasant Salunke ..vs.. The State of Maharashtra; 2014 ALL MR (Cri) 3882.

(ii) Vinod s/o Baburao Umredkar & Ors. ..vs.. The State of Maharashtra; 2017 ALL MR (CRI) 543

9. Per contra, it is the submission of the learned A.P.P.

that the dying declarations can safely be relied upon as in both the

drying declarations, the deceased has attributed role against the

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appellant no.1 in respect of pouring of Kerosene and at least

giving a beating to her at the hands of the appellant no.2. He

submitted that therefore, the appeal be dismissed.

10. Rabiyabee (PW1) is mother of the deceased. Her

evidence is of no use to the prosecution as she has flatly denied

the fact that any oral dying declaration was made to her by her

daughter Rizwana. Similar is the case in respect of Shirin (PW2),

who is neighbour of the deceased.

11. Admittedly, there is no eye witness account in respect

of the prosecution case. Once it is found that when there is no

evidence in respect of the oral dying declaration, the only evidence

that is available on record is the two written dying declarations

recorded by the two different Executive Magistrate.

12. The dying declaration, first in point of time is Exh.-142.

This dying declaration is recorded by Tulshiram Rathod (PW4).

On 23.04.2012, Tulshiram (PW4) was discharging his

duties as Naib Tahsildar at Akola. A police personnel came to him

along with a memo requesting him to record the statement of an

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injured. Rizwana was admitted in the District Hospital, Akola.

Therefore, Tulshiram went to the Government Hospital. On

reaching to the hospital, he visited the doctor and requested him

to examine the patient and give his opinion as to whether the

patient is in a fit condition to give statement. The requisition,

which he has given to the Doctor is at Exh.-141. Thereafter,

according to the evidence of Tulshiram (PW4), the doctor

examined the patient and certified that she is in a fit condition to

give her statement. Armed with such a certificate, he introduced

himself to Rizwana and informed her that he wishes to record her

statement. According to the evidence of Tulshiram Rathod,

Rizwana, upon inquiry disclosed to him that on 23.04.2012 at

about 12.30 when she was present in the house of her husband

Masoodali (appellant no.1) and her father in law Sadikali

(appellant no.2) poured Kerosene on her and set her ablaze. The

neighbours extinguished the fire. She was set ablaze by her

husband after he returned from the school. The Naib Tahsildar,

thereafter took the right toe impression on her statement.

Thereafter, the doctor again examined her, gave certificate that

during the recording of the dying declaration, the patient was

conscious and was physically and mentally fit.

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13. Another dying declaration is recorded by Shriram Raut

(PW3). This prosecution witness, on 23.04.2012 was serving as

Naib Tahsildar and Executive Magistrate at Akola. One police

constable Bhushan, B. No.1881 came to him with a memo for

recording the dying declaration of patient Rizwana Khatun who

was admitted in Shriram Hospital at Akola. The memo was

handed over to him at 11.15 p.m. Within 10 minutes, he reached

to Shriram Hospital and made inquiry with doctor. He asked the

doctor to examine Rizwana as her statement it to be recorded. The

doctor examined her, informed him that the patient is able to give

statement and accordingly he recorded the statement of Rizwana

Khatun. According to the statement given to Shriram Raut by

Rizwana, on 23.04.2012 at 12.00 O'clock, she was assaulted by

her husband and her father in law and thereafter her husband

poured Kerosene and set her ablaze. It is also stated in the

statement that they were continuously harassing her on the count

of demand of money. Further, since her parents were poor, they

were unable to fulfill the demand. It is also stated in her

statement that her sister-in-law Kamrunnisa and brother in law

Mohd. Sadik were also harassing her. After completion of the

statement, Shriram (PW3) read over the statement to Rizwana

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Khatun and thereafter he obtained her right toe impression. He

also states that the doctor also gave his certificate that the patient

was fit during the recording of the statement.

14. The conviction can be based on the dying declaration

and in a given case even without corroboration, provided that the

dying declaration is truthful, reliable, trustworthy and inspires

confidence.

15. What should be the approach of the Court when the

Court is called upon to appreciate the written dying declaration is

found in a reported case of Tukaram Dashrath Padhen & Ors.

..vs.. State of Maharashtra; 2012 ALL MR (Cri) 2754. In the

said judgment, this Court in paragraph no.24 has observed thus:

"24. When the Court is called upon to appreciate the evidence of written dying declaration, the Court has to be extremely cautious and examine with meticulous care the evidence regarding recording of the dying declaration. Merely because witnesses came forward and depose about the recording of the dying declaration, it should not impel the Court to immediately accept the dying declaration. It has to be remembered that the declarant is not available for cross examination and, therefore, the prosecution must prove, apart from the

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truthfulness of the contents, the factum of the recording of the dying declaration as well as the fact that the declarant was in a fit mental condition to give the statement. Once suspicious circumstances are found in the evidence, the Court should be extremely slow in placing implicit reliance on the dying declaration. It is to be remembered that the conviction can be recorded on the dying declaration alone if the court finds that the dying declaration to be wholly reliable. It is, therefore, necessary for the Court to scrutinize the evidence and place reliance on the dying declaration only if the evidence in respect of the recording of the dying declaration is of "sterling" quality. If there are suspicious circumstances the Court should reject the dying declaration and look for other evidences if it is available. Mechanical acceptance of the dying declaration de hors a meticulous scrutiny of the evidence relating to the recording of the dying declaration must be deprecated in the present case as we have pointed out in the light of circumstances stated by us, we do not find the dying declarations to be pieces of evidence which would inspire the confidence of the Court for implicit acceptance. The aforesaid dying declaration, therefore, will have to be left out of consideration."

16. Keeping in mind the aforesaid observations and the

principle to which the learned A.P.P. is not at all disputing, let us

scrutinize both the dying declarations.

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17. In both the dying declarations, though both the scribes

have stated that after reaching to the respective hospital, they

firstly asked the Doctor attending the patient to examine her and

give the certificate in respect of her fitness to give her statement

and after obtaining their certificate on the memo which they

handed over to the respective Doctor, they proceeded with the

recording of the dying declarations. The doctor at Civil Hospital,

Akola and Shriram Hospital, Akola whereat the deceased Rizwana

was admitted during the course of her treatment and when her

dying declarations were recorded, are not examined by the

prosecution. Thus, the certificates given by those two doctors are

not at all proved by the prosecution. Merely because the doctor is

not examined to prove the certificate, the dying declaration

recorded would not render a waste paper if the scribe before

recording of the statement of the patient was himself satisfied

about the fitness of such patient to give statement, is the law laid

down by the Constitution Bench of the Honb'le Supreme Court in

the case of Laxman .vs. State of Maharashtra; reported in 2002

(6) SCC 710.

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18. Insofar as the first dying declaration is concerned (Exh.-

140) the scribe is Tulshiram Rathod (PW4). Neither in Exh.142

nor in his substantive evidence, Tulshiram has stated that he

himself was satisfied regarding fitness of Rizwana in respect of

giving of her statement. In his evidence, he has stated that the

doctor examined the patient and gave certificate about her fitness.

In his substantive evidence, he merely stated that he introduced

Rizwana his purpose of visit and also asked her name and age. In

our view, in the absence of his positive evidence that he was also

satisfied with the mental and physical condition of Rizwana prior

to recording of her statement, in our view, the non examination of

the doctor who gave certificate is fatal to the prosecution.

19. Further, in his examination-in-chief, Tulshiram (PW4)

is silent that before recording statement of the injured, he ensured

that no relative is present near the injured. This assumes

importance when it is admitted by him in his cross-examination

that the relatives of the injured were present in the hospital.

20. Further, the perusal of the Exh.-142 shows that the

right toe impression is not found at the place where it should be

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but the said is found below, "जबबनन ससपलयबबबबत ववदकनय अधधकबऱयबसचच

izek.ki="

21. Insofar as the dying declaration Exh.-139 is concerned,

though Shriram Raut (PW3) has stated in his substantive evidence

that he got himself satisfied that she was able to talk and

thereafter he recorded her statement, in our view, is not sufficient

to hold that Shriram Raut's evidence could be accepted in that

behalf. The learned counsel for the appellants has rightly relied

on the decision in the case of Mahesh Vasant Salunke (supra).

Paragraph 30 of the said judgment reads as under:

"30. Reaching to the conclusion that the patient is fit to give his/her statement by the scribe is his subjective satisfaction. In order to reach that subjective satisfaction, the scribe must prove before the court clinchingly on what basis he reached to that subjective satisfaction.

From the perusal of Exh.39, there is nothing to show on what basis Police Head Constable Pandit Khairnar (PW 6) reached to such subjective satisfaction, nor in his substantive evidence before the court, did he gave any indication as to how he reached to the said conclusion. Merely that the scribe is saying that he was satisfied himself, in absence of any material on record, the court

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should not readily accept his such unfounded subjective satisfaction."

In the present case also, there is nothing in Exh.-139 to

show that on what basis Shriram Raut (PW3), reached to the

subjective satisfaction in respect of the fitness of the patient.

Further, in his substantive evidence before the Court, he has not

given any indication how he reached to the said conclusion.

Therefore, merely because Shriram Raut (PW3) is stating that he

was satisfied, in absence of any such thing on record, we are not

ready to accept his said unfounded subjective satisfaction.

Further, from the cross-examination it is clear that he

has heavily relied on the certification given by the doctor as can be

seen from the admission, which he has given in his cross-

examination which is reproduced hereunder:

"It is correct to say that the Doctor told me as she is able to give statement therefore I started recording of dying declaration."

The aforesaid facts clearly show that it is only because

the doctor has given certificate, he started recording her

statement. In our view, therefore, non examination of the doctor

to prove that the patient was fit to give her statement gives a fatal

blow to the prosecution case.

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Further, he has also admitted in his cross-examination

that except the matter written in the dying declaration, there was

no talk between him and Rizwana, the deceased, that shows that

before reaching to any conclusion about the fitness of Rizwana, he

had not put any questions to her.

Further, in his cross-examination, he has stated that

Rizwana was talking in Hindi and her statement was translated

into Marathi. Exh.-139 is totally silent that it translated from

Hindi to Marathi. It is also not the evidence of Shriram Raut

(PW3) that Rizwana accepted that the translation was a true

translation.

22. Exh.-139 is the post mortem report, column no.17,

shows that both right lower limb and left lower limb suffered 10%

and 11% burns, that means that they were completely charred.

However, examination of both dying declarations shows that right

toe impressions clearly show that it is having clear ridges and

curves. In our view this is also one of the suspicious circumstance.

23. The seized articles during the course of investigation

including the clothes of the appellants were sent to Chemical

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Analyzer for analysis. The report of the Chemical Analyzer is

available on record at Exh.-134. The said report shows that no

Kerosene residues were found on the clothes of the appellants.

24. It is the cardinal principle of criminal jurisprudence

that the prosecution is under an obligation to prove its case

beyond reasonable doubt and if there is any doubt then the

accused is entitled for the benefit of the said doubt.

25. In our view, the present case of is not proved by the

prosecution beyond reasonable doubt and there is a serious doubt

that at the time for recording of the statement, Rizwana was in a

fit condition to give her statement. Therefore, the appeal needs to

be allowed.

Hence, following order is passed.

                               ORDER
 (1)            The appeal is allowed.
 (2)            Judgment   dated   21.01.2015   delivered   by   the

Additional Sessions Judge, Akot in Sessions Trial No.18/2012 is set aside.

(3) The appellants are acquitted of the offences punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code.

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 (4)            The appellants be set free.
 (5)            As   the   appellant   no.2-Sadikali   Asadali   is   already

enlarged on bail, his bail bond is cancelled. (6) Appellant no.1-Masoodali Sadikali be released from jail forthwith, if not required in any other case. (7) Muddemal property be dealt with as directed by the trial Court, after appeal period is over.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale