Mohd.Anis Mohd.Ismail ... vs State Of ...
2017 Latest Caselaw 8555 Bom

 apeal262.02.J.odt                         1




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

                     CRIMINAL APPEAL NO.262 OF 2002

 1]       Mohd. Anis Mohd. Ismail Mallas
          (Manlas), Aged about 39 years,
          Occupation: Business.

 2]       Sou. Jaitunbi Ismail Mallas (Manlas),
          Aged about 66 years,
          Occu: Household Work.

          Both are resident of Yavatmal,
          Tq. And District Yavatmal.                        ....... APPELLANTS

                                   ...V E R S U S...

          The State of Maharashtra, 
          through P.S.O., Police Station,
          Yavatmal City, Yavatmal.                           ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.V. Sirpurkar, Advocate for Appellants.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 28.08.2017 DATE OF PRONOUNCING THE JUDGMENT : 09.11.2017

1] Challenge is to the judgment and order dated

24.05.2002 in Sessions Trial 32/1996 delivered by the 2nd

Additional Sessions Judge, Yavatmal, by and under which, the

appellants (hereinafter referred to as "the accused") are convicted

for offence punishable under section 306 read with section 34 of

the Indian Penal Code and are sentenced to suffer rigorous

imprisonment for five years and to payment of fine of Rs.500/-,

and are further convicted for offence punishable under section

498-A read with section 34 of the Indian Penal Code and are

sentenced to suffer rigorous imprisonment for three years and to

payment of fine of Rs.500/-.

2] Heard Shri S.V. Sirpurkar, the learned Counsel for the

accused and Shri A.V. Palshikar, the learned Additional Public

Prosecutor for the respondent/State.

3] Shri S.V. Sirpurkar, the learned counsel for the

accused submits that the judgment and order impugned is

manifestly erroneous and certain findings dangerously border on

perversity. The learned counsel would submit that the finding of

the learned Sessions Judge that the deceased Vakilabano

committed suicide, is against the weight of evidence. Au contraire,

the spot panchnama Exh.20 which was admitted by the defence in

response to notice given by the prosecution under section 294 of

the Code of Criminal Procedure, 1973 ("Code" for short) is

suggestive of the deceased suffering accidental burn injuries, is

the submission. Shri Sirpurkar, the learned counsel would further

submit, that if the death of Vakilabano is not proved to be

suicidal, the alleged oral dying declaration would not be

admissible under section 32(1) of the Indian Evidence Act, 1872.

In support of the said submission, the learned counsel would rely

on the judgment of the Hon'ble Supreme Court in Bhairaon Singh

vs. State of Madhya Pradesh, 2010 ALL SCR 213. Shri Sirpurkar,

the learned counsel would urge, that even otherwise, the

prosecution has failed to prove that the deceased Vakilabano was

subjected to cruelty within the meaning of explanation (a) and (b)

of section 498-A of the Indian Penal Code. The evidence on record

is too sketchy, vague and bereft of particulars to establish the

ingredients of section 498-A, is the submission. The failure to

examine Salim brother of the deceased who according to

P.W.2-Mariyambi is a direct witness to the cruelty to which the

deceased was subjected, for the reasons best known to the

prosecution, is near fatal, is the submission.

4] Per contra, Shri Palshikar, the learned Additional

Public Prosecutor would submit that the judgment impugned does

not suffer from any infirmity, legal or factual, and the marshaling

of evidence on record by the learned Sessions Judge and the

findings recorded, are unexceptionable.

5] Concededly, the deceased Vakilabano and accused

Mohd. Anis entered into matrimonial alliance on 30.05.1994.

The parental home of Vakilabano was situated in Darwha.

Vakilabano started residing with her husband Mohd. Anis at her

matrimonial home at Yavatmal.

The deceased resided at the matrimonial home for

five days, she was then escorted to parental home by her mother

Mariyambi, as per traditions, and she stayed at the parental home

for a month or thereabout. Vakilabano was escorted back to her

matrimonial home by her husband, elder brother's wife and

husband of sister-in-law and she stayed in her matrimonial home

for the next three months. The brother of Vakilabano, Salim,

escorted her to the parental home on the occasion of a religious

function known as "Gyarvi". The case of the prosecution, as is

unfolded through the P.W.1-Akbarman, is that during the period

when Vakilabano was residing at the parental home for three

weeks having come to attend the "Gyarvi" function, she disclosed

that her husband and mother-in-law used to beat her to coerce her

to bring Rs.25,000/- from her parents. Vakilabano further

disclosed that the accused husband used to threatened her that in

the event of failure to bring Rs.25,000/- from the parental house,

he would kill her. The disclosure was also that sometimes she was

not provided meals.

The case of the prosecution is that the father of

deceased Vakilabano, Akbarman sought the intervention of the

father of the accused Ismile Pahelvan who assured Akbarman that

he would counsel his son and that Vakilabano be sent to the

matrimonial home. Akbarman sent Vakilabano with her husband

accused Mohd. Anis to her matrimonial home, and 10 to 12 days

thereafter received a message that Vakilabano suffered extensive

burn injuries and was admitted in General Hospital, Yavatmal.

P.W.1-Akbarman and Mariyambi rushed to the General Hospital,

Yavatmal and reached at 10:00 p.m. or thereabout. The health of

Vakilabano had deteriorated, Akbarman made inquiries with

Vakilabano. She told her father Akbarman that had the demand of

Rs.25,000/- been fulfilled, she would not have faced such a

situation. Vakilabano left for heavenly abode in the early morning

of 11.12.1994. Akbarman lodged report in the evening on

11.12.1994 (Exh.37) which was reduced to writing and the

printed F.I.R. (Exh.38) is duly proved by Akbarman who is

examined as P.W.1.

The culmination of investigation led to submission of

the charge-sheet in the Court of Judicial Magistrate First Class,

Yavatmal who committed the case to the Sessions Court.

The accused abjured guilt and claimed to be tried. The defence, as

is discernible from the statement recorded under section 313 of

the Code and the trend and tenor of the cross-examination is that

Vakilabano suffered accidental burn injuries.

6] Concededly, the Investigating Officer who is

examined as P.W.3-Suresh Ingle admits that he did not make any

investigation to ascertain whether the death could be accidental.

The spot panchnama Exh.20 records that the upper portion of the

burner of the stove is broken. A plastic can of 5 liters capacity

filled with kerosene is found hung on nail at the height of 5 feet or

thereabout from the floor on the south east corner of the kitchen.

The spot panchnama does not record any visible sign or trace or

residue of kerosene on the floor of the kitchen where deceased

Vakilabano is said to have committed suicide by pouring kerosene

on her person. The learned counsel for the accused is justified in

submitting that the possibility of accidental death is a real

possibility and cannot be excluded from consideration. The spot

panchnama, which is not in dispute, records that the upper

portion of the burner of the stove is broken and the can containing

kerosene is hung on the nail at height of 5 feet from the floor.

Concededly, other than the said can there is no other container

noticed on the sport from which the deceased could have poured

kerosene on her person.

7] It is with some regret, that I am constrained to

observe, that the consideration of the central issue by the learned

Sessions Judge, is most unsatisfactory. The learned Sessions

Judge, excludes the possibility of the deceased suffering accidental

burn injuries, thus:

"20. After having taken stock of rival contentions on the aspect in question and the evidence on record it would be seen that the defence has not disputed the spot panchnama which is at Exh.P-20. It is also not disputed that the victim had sustained 100% burns. It has been suggested and elicited during the cross- examination of the complainant P.W.1 Akbarman that the residential house of the accused is part and parcel of one huge residential building surrounded by

residential house of many persons and nearabout five to seven families and residing there. It is obvious as contended by the learned counsel for defence that the investigating agency has not brought on record anything regarding the presence of the accused at the said place at the time of incident. The spot panchnama Exh.P-20 and the per centage of burns sustained by the victim coupled with the fact brought on record during the cross-examination that the residential house of the accused is part and parcel of his building wherein nearabout five to seven families are residing, it is difficult to accept the defence suggested in the matter that the stove was burst while cooking and therefore it was merely an accident at the time of cooking. To reiterate, the defence has not disputed the spot panchnama Ex.P-20 and the memorandum of post mortem examination. Under these circumstances this court is of the opinion that the prosecution in the background of prosecution case set out against the accused through the parents of the victim has been successful to establish suicidal death of the victim Vakilabano. I have, therefore, recorded my decision in the affirmative against the relevant point."

I am afraid, from the discussion reproduced supra, it

is difficult to comprehend as to what has weighed with the

learned Sessions Judge in rejecting the submission that accidental

death is a real possibility and at any rate is an alternate

hypothesis, the benefit of which must necessarily go to the

accused.

8] In the light of the discussion supra, I have no

hesitation in recording a finding that the prosecution did not

establish that the deceased Vakilabano committed suicide.

If the death of Vakilabano is held not be suicidal, the

disclosures made by her including the oral dying declaration

would be hear say evidence and not admissible under section

32(1) of the Indian Evidence Act. Insofar as offence punishable

under section 498-A of IPC is concerned, the cause of death or the

circumstances leading to death, would not be in issue, and the

disclosures purportedly made by the deceased Vakilabano to her

relatives would be inadmissible in view of the law enunciated by

the Hon'ble Supreme Court in the relevant observations of which

judgment read thus:

"4. The legal position relating to the admissibility of evidence under section 32(1) has come up for consideration before this court time and again. It is not necessary to multiply the authorities in this regard as reference to a three judge Bench decision of this court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984)4 SCC 116:[2009 ALL SCR(O.C.C.) 281], will suffice. Regarding the application of rule under section 32(1) Evidence Act, Fazal Ali, J. culled out the legal position as follows:

"(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of

death, or exhibits circumstances leading to the death. In this respect as indicated above, the Indian Evidence Act, in view of the peculiar condition of our society annd the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice".

"(2)The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32".

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

5. Varadarajan, J. on the other hand referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence,(fourteenth edition) and Ratanlal Dhirajlal in their Law of Evidence (1982 Reprint). This is how A. Varadarajan, J. dealt with the admissibility of evidence under Section 32(1):

"....The position of law relating to the admissibility of evidence under Section 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, Fourteenth Edn. and Ratanlal and Dhirajlal in their Law of Evidence (1982 Reprint). Those propositions are based mostly on decisions of courts for which reference has been given at the end. They are these: Woodroffe and Amir Ali's Law of Evidence, Fourteenth Edn.:

"Page 937: Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross- examination. But where there are special circumstances which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a

second-hand source.

Page 941: What is relevant and admissible under clause (1) of this section (Section 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.

Page 945-946: A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. (AIR 1964 SC 900.) Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause. (ILR 1901 25 Bom.45.)

Page 947: Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words `resulted in his death' do not mean `caused his death'. The expression `any of the circumstances of the transaction which resulted in his death' is wider in scope than the expression `the cause of his death'. The declarant need not actually have been apprehending death. (AIR 1964 MP 30.)

Page 947: The expression `circumstances of the

transaction' occurring in Section 32, clause (1) has been a source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of Their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder.... But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.

Page 948: `Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in `circumstantial evidence' which includes the evidence of all relevant factors. It is on the other hand narrower than `res gestae'. Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or

otherwise and not directly to the occasion of death will not be admissible.

Page 949: The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. [(1939) 66 IA 66.] `Circumstances of the transaction which resulted in his death' means only such facts or series of facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence by Ratanlal and Dhirajlal (1982 Reprint)

Page 94: Circumstances of the transaction: General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible. [(1939) 66 IA 66] (18 Part 234.)

Page 95: Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant's death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the `circumstance' can only include the acts done when and where the death was caused....

Dying declarations are admissible under this clause."

"10. The only evidence to bring home charge under Section 498A, IPC, is that of PW-4 and PW-5. In their deposition PW-4 and PW-5 stated that their sister told

them that accused was torturing her as he wanted that her brothers arrange a job for him or the house at Ganj Basoda is given to him or a cash of Rs.1 lac is given to enable him to do some business. They deposed that as and when their sister come to their house, she would tell them that accused used to insert cloth in her mouth and give beatings for dowry. The trial court as well as the High Court relied on the evidence of PW-4 and PW-5 and held that charge under Section 498A, IPC, against the accused was proved. Apart from the statement attributed to the deceased, none of the witnesses had spoken anything which they had seen directly insofar as torture and harassment to Ranjana Rani @ Raj Kumari was concerned".

"11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under Section 498A, IPC. In our considered view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence".

The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498A simpliciter, the question of

death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted".

"12. We are fortified in our view by the decision of this Court in Inder Pal vs. State of M.P2. (2001) 10 SCC 736, wherein this Court considered the matter thus:

"4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498-A IPC. PW 1 father of the deceased and PW 8 mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of the appellant. PW 4 sister of the deceased and PW 5 a relative of the deceased have also spoken more or less on the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken of anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she got burns accidentally from a stove. If that be

so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due to commission of suicide".

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

9] In admissibility of the disclosures allegedly made by

Vakilabano apart, the oral dying declaration must be discarded as

untrustworthy. Concededly, an attempt was made by the

Executive Magistrate to record the dying declaration of

Vakilabano. The Doctor certified that Vakilabano was not in a fit

condition to give statement and the Executive Magistrate could

not record her dying declaration. The prosecution has not

examined any medical practitioner nor has produced on record

the treatment papers to suggest that the deceased Vakilabano was

in a fit physical and mental condition to make coherent and

truthful disclosures to her parents. The evidence on record would

suggest that the version of the parents of the deceased Vakilabano

that she told that had an amount of Rs.25,000/- been paid she

would not have faced such a situation, is highly suspicious, for

reasons more than one. The failure of P.W.1 and P.W.3 to report

the said information to the Police, whose presence in the Hospital

is admitted, the physical condition of Vakilabano who concededly

suffered 100% burns and who was found not fit to give statement

to the Executive Magistrate, the failure of the prosecution to

examine the Doctor and to prove the bed ticket which may have

thrown some light on the physical condition of the deceased at the

relevant time, cumulatively suggest that the oral dying declaration

is extremely doubtful and untrustworthy.

10] The oral dying declaration must be kept out of

consideration, and having done so, I find that there is absolutely

no cogent evidence on record on which the conviction under

section 498-A could have rested. The implication of the accused,

by the parents of the deceased, is a classical and often noticed

response of grieving and traumatized relatives to the death of the

near and dear one. The tendency to implicate the husband and

other relatives due to a perception that they may have been some

how or the other, responsible for the death of the sister or

daughter, is not unknown.

11] I am not persuaded to hold that the prosecution has

proved offence under section 306, 498-A read with section 34 of

the IPC much less beyond reasonable doubt. The judgment and

order impugned is set aside and the accused are acquitted of

offence punishable under section 306, 498-A read with section 34

of the IPC.

12] The bail bonds of the accused shall stand discharge.

13] Find paid by the accused, if any, be refunded.

  14]              The appeal is allowed.



                                                       JUDGE
NSN