Bombay High Court
Ajay Hiraman Katare vs State Of ... on 30 March, 2017
Bench: B.P. Dharmadhikari
1 30032017 judg. apeal 291.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.291 of 2003
Ajay s/o Hiraman Katare,
Aged about 23 years, Occ.-Private Work,
R/o.-Bhangaram Ward, Bhadrawati,
Distt. Chandrapur. .... Appellant.
-Versus-
The State of Maharashtra,
Through Police Station Officer,
Police Station Bhadrawati. .... Respondent.
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None for appellant.
Shri S.D. Sirpurkar, Addl.PP for respondent.
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Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 30
March, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The present appeal is directed against the judgment and order
of conviction passed by the Additional Sessions Judge, Chandrapur
dated 30-04-2003 in Sessions Case No.15 of 1998, by which the
appellant is convicted for the offence punishable under Section 302 of
the Indian Penal Code [for short, "I.P.C"] and is directed to suffer
imprisonment for life. The appellant is further convicted for the offence
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punishable under Section 448 of the I.P.C and on that count he is
directed to suffer rigorous imprisonment for three months and to pay a
fine of Rs. 500/- and in default of payment of fine to undergo further
rigorous imprisonment for 15 days.
2] When this matter was called for final hearing, the counsel for the
appellant chose not to remain present before the Court. The matter
being old one and Thursday is specifically allotted for final hearing of
old matters, we proceeded with the matter.
We have heard Shri S.D. Sirpurkar, the learned Additional Public
Prosecutor for the State and with his assistance we have gone through
the record and proceedings.
3] According to the learned Additional Public Prosecutor, the
appeal has no merit and is required to be dismissed inasmuch as
according to him the learned Judge of the trial Court has rightly relied
on the dying declaration (Exhibit-41) of deceased Amina Khatoon and
has rightly convicted the appellant. He, therefore, submits that the
appeal be dismissed.
A charge was framed against the appellant and his brothers
Arvind and Vinod by the learned Additional Sessions Judge.
According to the charge, on 01-11-1997 at 12.00 o'clock in the noon,
the appellant poured kerosene on Amina Khatoon and set her ablaze.
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The learned Judge framed charge against the appellant for the offence
punishable under Sections 302, 307, 452 of the I.P.C. At the same
time the learned Judge also framed charge under Section 506 read
with Section 34 of the I.P.C against the appellant and his two brothers.
A further charge of abetment was also framed against the brothers of
the appellant to commit the murder of deceased.
4] By impugned judgment the learned Judge of the trial Court
acquitted the brothers of the appellant. He also acquitted the appellant
for the offence punishable under Section 506 read with Section 34 of
the I.P.C. However, convicted him for the offence punishable under
Sections 302 and 448 of the I.P.C.
5] Shri Kapildeo Shukla (PW-7) was Police Station Officer of Police
Station Bhadrawati in the year 1997. (PW-6) Mohd. Muktar Abdul Latif
was PSI in the said Police Station. On 01-11-1997, when both these
officers were present in the Police Station, Vilas Gawande (PW-4)
came to the Police Station along with one Sunil and informed that one
woman is burnt in Bhangaram Ward. They disclosed the name of the
said woman as Amina Khatoon. The said information was taken in
the station diary (Article-E).
6] Thereafter (PW-6) Mohd. Muktar Abdul Latif and (PW-7)
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Kapildeo Shukla went to the spot. On the spot they noticed that Amina
Khatoon was lying in a injured condition. She was taken to the
hospital. According to (PW-7) Kapildeo Shukla he gave requisition
(Exhibit-48) to the doctor to examine the patient, doctor examined her
and issued the Injury Certificate.
7] Thereafter (PW-6) Mohd. Muktar Abdul Latif sought opinion of
the doctor about the condition of the patient as to whether she could
give her statement. The said request to the doctor is available on
record at Exhibit-40.
According to the prosecution, doctor examined Amina Khatoon
and gave a certificate that she is in a condition to give her statement.
On getting such certificate from the doctor (PW-6) Mohd.
Muktar Abdul Latif proceeded to record the statement of Amina
Khatoon in presence of two panchas. After recording Amina
Khatoon's statement her thumb impression was obtained on the same.
The dying declaration is available on record at Exhibit-41.
8] After recording her statement said PSI sent a letter to Tahsildar
to record her dying declaration. However, her statement could not be
recorded as she was referred to Civil Hospital, Chandrapur.
9] After recording her statement (PW-6) Mohd. Muktar Abdul Latif
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return to the Police Station and registered the offence vide Crime No.
177 of 1997 against the appellant and other accused for the offence
punishable under Sections 302, 452, 506 read with 34 of the I.P.C. In
the evening, he received information that injured expired in the
hospital. He handed over the further investigation to (PW-7) PSO
Kapildeo Shukla.
10] As Amina Khatoon died, the offence was converted into an
offence punishable under Section 302 of the I.P.C. PSO Shukla
arrested accused persons under arrest panchanama Exhibit-49. He
also recorded statement of witnesses. After completion of the
investigation charge-sheet was filed in the Court of law.
11] In order to prove the guilt of the accused persons, in all seven
witnesses were examined by the prosecution and also relied upon
various documents primarily the dying declaration of Amina Khatoon
recorded by (PW-6) Mohd. Muktar Abdul Latif.
12] Post mortem report Exhibit-56 shows that deceased suffered
90% burn injuries. The cause of death as mentioned in the post
mortem report is "shock due to 90% burning"
From the post mortem report it is clear that Amina Khatoon met
with her unnatural death due to burning.
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Burn injuries can be caused either accidental or in attempt to
commit suicide or forcibly a person setting to ablaze.
13] According to the prosecution the death of Amina Khatoon is
homicidal one and the appellant is perpetrator of the said crime. From
the line of the cross examination at the hands of the appellant and
other accused persons during trial or from their statement recorded
under Section 313 of the Code of Criminal Procedure, 1973, it is not
their case that Amina Khatoon got burn injuries either accidentally or
she committed suicide.
14] The question that is posed before this Court is whether the
appellant could be held responsible for causing burn injuries to Amina
Khatoon and is responsible for her death.
15] Admittedly, in the present prosecution case, nobody has seen
appellant poured kerosene on Amina Khatoon and setting her ablaze.
Thus, there is no ocular evidence in respect of the incident of burning
at the hands of the appellant as claimed by the prosecution.
16] It is also not the prosecution case that before Amina Khatoon
met with her death she made any oral dying declaration to any of the
prosecution witnesses.
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In view of the aforesaid, the entire prosecution case hinges on
the written dying declaration (Exhibit-41) recorded by (PW-6) Mohd.
Muktar Abdul Latif.
17] A conviction can be secured on the dying declaration alone, if
the Court finds the dying declaration to be wholly reliable. The maker
of the dying declaration is not available to test the veracity of the said
statement made to this crime. Therefore, it is the duty of the Court
while appreciating a written dying declaration to be extremely cautious
and the Court should examine the same with utmost care. It is the
abundant duty of the prosecution to prove that at the time of recording
of a dying declaration the declarant was in a fit mental condition to
give the statement. Further the dying declaration should be absolutely
free from any suspicious circumstance. These are the statements of
law enunciated by the catena of decisions of Hon'ble apex Court as
well of this Court.
18] Keeping in view of the aforesaid settled legal position, this Court
is called upon to scrutinize written dying declaration of Amina Khatoon
(Exhibit-41) to give an answer as to whether the said could be the
basis for securing and confirmation of the conviction as recorded by
the learned Judge of the Court below while re-appreciating the
prosecution case in the appeal.
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19] The prosecution examined in all seven witnesses. (PW-2)
Shahadatkhan examined as panch witness. He has supported the
prosecution insofar as spot panchanama (Exhibit-31) is concerned.
However, he did not support prosecution that in his presence any
articles were seized from the spot. (PW-3) Sulochana Bansod and
(PW-4) Vilas Gawande are the panch witnesses to dying declaration
(Exhibit-41). According to scribe (PW-6) Mohd. Muktar Abdul Latif,
the dying declaration of Amina Khatoon was recorded in presence of
these witnesses. These two witnesses flatly refused to support the
prosecution and therefore they were declared hostile. (PW-4) Vilas
Gawande also did not support the prosecution that he informed the
factum of burning of a lady to the Police. (PW-5) Ameena bi Sheikh
Bapu Miya a neighbour is also of no use for the prosecution as she
did not support the prosecution at all.
20] (PW-1) Sayyad Ahmad is the husband of deceased Amina
Khatoon. Admittedly on the day and the time of incident he was not
present in Bhadrawati and he was at Hinganghat. After returning
from Hinganghat at about 5.00 p.m. at Bus Station he got the
knowledge about the fact that his wife is admitted to the hospital and
thereafter he went to Police Station and after getting information from
the Police that his wife is shifted to Chandrapur he reached to
Chandrapur. There it was informed that his wife is expired. His
9 30032017 judg. apeal 291.03.odt
evidence shows that burial of his wife was performed at Rajura and
thereafter Police came to his house and spot panchanama was
prepared. The incident is dated 01-11-1997 and the spot panchanama
is drawn on 04-11-1997. Seizure memo Exhibit-43 though was not
proved by panch (PW-2) Shahadatkhan, it is proved by (PW-6) Mohd.
Muktar Abdul Latif. It shows that the seizure was done on 04-11-1997.
Seizure memo shows that from the spot a kerosene bottle and a tin
containing 500 ml. kerosene is seized.
Evidence of (PW-1) Sayyad Ahmad shows that there used to
be quarrel in his family and the family of the accused persons because
he has purchased the house from his landlord. His evidence shows
that proceedings under Section 107 of the Code of Criminal Procedure
were initiated against him for having quarrel with the family of the
accused. Though he claimed in his evidence that deceased was
beaten by the family members of the accused persons he chose not to
file any complaint against them. He being the Government servant.
From his evidence it is crystal clear that the family of the accused was
in cross terms with (PW-1) Sayyad Ahmad.
21] (PW-3) Sulochana Bansod and (PW-4) Vilas Gawande were
neither the relatives of the deceased or they were not concerned with
the deceased whatsoever in manner. (PW-4) Vilas Gawande plies
auto rickshaw. Though he denied the fact that he did not inform the
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Police about the incident of burning, the contemporary record in the
nature of station diary entry shows that, it is this witness who has
informed that Amina Khatoon is lying in burnt condition.
22] (PW-3) Sulochana Bansod was in Police Station Bhadrawati on
01-11-1997 for her personal work. Her evidence shows that there
(PW-7) PSO Shukla asked her to sign some papers, therefore, she
signed the papers without reading the same. Her statement under
Section 164 of the Code of Criminal Procedure was recorded on
13-11-1997. However, while deposing during trial she has denied her
statement.
23] (PW-6) Mohd. Muktar Abdul Latif is the scribe of dying
declaration (Exhibit-41). He has proved his memo given to doctor to
examine Amina Khatoon and give certificate about her fitness so as to
record her statement. The said requisition is at Exhibit-40. According
to the evidence of this scribe, doctor gave certificate that Amina
Khatoon is in a condition to give her statement and therefore he
proceeded to record her statement. As per the statement, on the day
of incident Amina Khatoon was alone in the house and her husband
was out of station. At 10.00 o' clock, in the morning, there was a
quarrel between her and the female members from the house of
Arvind over the issue of rubbish. That time Arvind exhorted
11 30032017 judg. apeal 291.03.odt
"lkyhyk ?kjkr tkowu uaxh d:u ekjk" Thereafter she was at house.
That time Ajay and Vinod also threatened to kill her. At 10.00 o' clock,
in the noon, Ajay (appellant) came to her house, took the kerosene
kept in her house, poured it on her person and set her ablaze by
igniting match stick. She raised shout and came to the front room and
fell down. Salim the one old lady extinguished the fire. Quarrel had
taken place with the members of the house of Mirabai and Sangita.
This is the statement given by Amina Khatoon to (PW-6) Mohd.
Muktar Abdul Latif, which was reduced into writing by him. After
recording the aforesaid statement, as per the evidence of (PW-6)
Mohd. Muktar Abdul Latif, the said was read over to her and thereafter
he obtained her thumb impression. According to evidence of (PW-6)
Mohd. Muktar Abdul Latif the statement was recorded in the presence
of (PW-3) Sulochana Bansod and (PW-4) Vilas Gawande. They also
signed the statement.
24] What is important to note is that the doctor who gave fitness
certificate is not examined by the prosecution. The learned Judge
has observed in the impugned judgment that though the summonses
were issued those were not served on him. According to the learned
Judge of the Court below non examination of the doctor is not fatal in
view of the decision of Hon'ble apex Court in the case of Laxman Vs
State of Maharashtra, reported at AIR 2002 SC 2973.
12 30032017 judg. apeal 291.03.odt
25] Merely because the doctor is not examined and the certificate of
fitness is remained to be proved that by itself does not render the dying
declaration as a waste paper. If the scribe himself at the time of
recording of the dying declaration of the declarant is satisfied that the
declarant is in a condition to give the statement is the law laid down by
the Constitution Bench of the Hon'ble apex Court is in Laxman's case.
26] (Exhibit-41) has no noting or nothing can be gathered from the
said document that before recording statement of Amina Khatoon
scribe (PW-6) Mohd. Muktar Abdul Latif was satisfied himself about
the mental condition or her fitness to give statement. Even from the
witness box he was completely silent that he himself was satisfied
about the fitness of deceased that she was in a condition to give her
statement. He states that after giving memo Exhibit-40 to doctor, the
doctor examined the deceased and gave certificate about her fitness
and therefore he proceeded to record her statement. Thus, it is clear
that, insofar as the fitness of deceased he fall back only on the opinion
given by the doctor. In that view of the matter, it was imperative on the
prosecution to procure the presence of doctor and prove the fitness
certificate. According to us, the learned Judge of the Court below has
wrongly applied the law laid down by the Hon'ble apex Court in
Laxman's case cited supra, by holding that when police officer has
stated that Medical Officer had given opinion that deceased was in a fit
13 30032017 judg. apeal 291.03.odt
condition to give statement therefore merely because doctor is not
examined it is not fatal to the prosecution.
27] (PW-3) Sulochana Bansod was in Police Station for her personal
work. There was no occasion for her to accompany the Police either
to the spot of incident or to the hospital. Further (PW-6) Mohd. Muktar
Abdul Latif the scribe is completely silent that he took her to the
hospital, therefore her presence in the hospital became doubtful. In
that view of the matter her evidence that her signatures were obtained
in Police Station is required to be accepted.
28] (Exhibit-43) the seizure memo shows that from the spot one
kerosene bottle and a tin containing 500 ml. kerosene is seized. The
seizure memo is dated 04-11-1997. The incident occurred on
01-11-1997. The evidence of (PW-1) Sayyad Ahmad and evidence of
(PW-7) Kapildeo Shukla shows that on 04-11-1997 there was a lock
to the house and it was opened. Evidence of (PW-1), in our view,
completely destroys the case in respect of seizure of kerosene from
the spot. In his examination-in-chief itself he has stated as under : -
"Sometimes when cylinder was not available we used
to cook food on stove. But at the time of incident there
was no kerosene in our house. Articles shown to me
are not the articles seized from my house. i.e. bottle
containing kerosene and tin container".
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Thus, it is crystal clear from the aforesaid statement made by
the prosecution witness that, there is a serious doubt about the
truthfulness of the prosecution case insofar as the aforesaid articles.
29] The post mortem report (Exhibit-56) shows that right upper
arm and left upper arm were burnt to 9 % each. Column no.17 of the
post mortem report shows that both palms of deceased were burnt.
Looking to the percentage of burns of the upper arm, it is clear that,
both the hands of the deceased were completely charred. However,
perusal of Exhibit-41 which is having thumb impression of Amina
Khatoon shows that the thumb impression available on dying
declaration (Exhibit-41) is having clear curves and ridges. In our
view, the said is one of the suspicious circumstances. Further the
thumb impression is also not below Exhibit-41 but it is in the side
margin.
30] In our view, the prosecution has utterly failed to prove that at the
time of recording statement in statement Exhibit-41 that Amina
Khatoon was in a condition to give her statement. On the
re-appreciation of the entire evidence, we are of the view that the
prosecution has not proved its case beyond reasonable doubt.
According to us, it is a fit case wherein benefit of doubt will have to be
extended in favour of the appellant. Accordingly, the same is given in
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favour of the appellant. Consequently, we pass the following order :-
ORDER
(i) Criminal Appeal No.291/2003 is allowed.
(ii) Conviction of the appellant-Ajay Hiraman Katare for an
offence punishable under Section 302 and 448 of the
Indian Penal Code is quashed and set aside. He is
acquitted therefrom.
(iii) Bail Bonds of the appellant stands cancelled.
(iv) Muddemal property be dealt with as directed by the trial
Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
