Sk. Mehboob S/O Sk. Mastan (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8667 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.605 OF 2014


 Sk. Mehboob s/o Sk. Mastan,
 Aged about 40 years, 
 Occupation - Labouror, 
 R/o Arni, Tq. Arni, District - 
 Yavatmal.                                                      ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O., P.S. Arni, 
 Tq. Arni, District - Yavatmal.                                 ....       RESPONDENT

 ______________________________________________________________

             Ms. F.N. Haidari, Advocate for the appellant, 
             Ms. Ritu Kaliya, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 14 NOVEMBER, 2017.

th

ORAL JUDGMENT :

Exception is taken to the judgment and order dated

29-4-2013 in Sessions Trial 23/2005 delivered by the learned

Additional Sessions Judge, Darwha, District Yavatmal, by and under

which the appellant (hereinafter referred to as the "accused") is

convicted for offence punishable under Section 498-A read with

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Section 34 of the Indian Penal Code and is sentenced to suffer rigorous

imprisonment for one year and is further convicted for offence

punishable under Section 306 read with Section 34 of the Indian Penal

Code and is sentenced to suffer rigorous imprisonment for seven years.

2. The accused faced trial alongwith his mother Malanbi w/o

Sk. Mastan. The mother of the accused is also convicted under

Sections 498-A and 306 of the Indian Penal Code. However, the

learned Sessions Judge was pleased to sentence her only to undergo

rigorous imprisonment for one day, which punishment she presumably

underwent and has not challenged the conviction and sentence.

3. Heard Ms. F.N. Haidari, learned Counsel for the appellant

and Ms. Ritu Kaliya, learned Additional Public Prosecutor for the

respondent.

4. The learned Counsel Ms. F.N. Haidari canvassed the

following submissions :

(a) The learned Sessions Judge committed serious error in not

appreciating that the dying declaration Exhibit 57 is unreliable and

untrustworthy.

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          (b)      If   the   dying   declaration   Exhibit   57   is   kept   out   of   the

consideration, there is virtually no evidence on record to suggest that

the deceased was subjected to cruelty within the meaning of Section

498-A, Explanation (a) or Explanation (b) of the Indian Penal Code.

(c) The evidence of P.W.3 Sheikh Wajir, the neighbour of the

accused and P.W.5 Bugabi Mumtazali, sister of the deceased is too

sketchy and general to be of any assistance to the prosecution in

proving offence under Sections 498-A and 306 of the Indian Penal

Code.

5. Per contra, Ms. Ritu Kaliya, learned Additional Public

Prosecutor would submit that the learned Sessions Judge committed no

error in marshalling the evidence on record and coming to the

conclusion that the offence under Sections 306 and 498-A of the Indian

Penal Code is proved. The dying declaration is implicitly reliable, is the

submission. Both P.W.3 Sheikh Wajir, neighbour and P.W.5 Bugabi

Mumtazali, sister of the deceased are in unison in stating that the

accused used to consume liquor and harass the deceased, is the

submission of the learned Additional Public Prosecutor.

6. Concededly, Shama Parvin set herself a fire at 11-00 p.m.

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on 02-12-2004 and expired at 1.55 p.m. on 05-12-2004 while

undergoing treatment at Rural Hospital Arni.

7. The marriage between the deceased Shama Parvin and the

accused axiomatically was solemnised more than seven years prior to

the death since the eldest of the four daughters born from the wedlock

was aged 7 to 8 years as on 05-12-2004. The dying declaration Exhibit

57 is recorded by P.W.2 Arvind Bhagat between 1.05 a.m. and 1.15

a.m. on 03-12-2004. Ms. Haidari, learned Counsel would invite my

attention to the fact that P.W.2 Arvind Bhagat received the requisition

to record the dying declaration at 12-55 hours, he reached the hospital

at 1.00 hours, secured the fitness certificate of the medical practitioner

at 1.05 hours and commenced and completed the recording at 1.15

hours. The effort is to demonstrate that the time line is sufficient to

cloud the dying declaration with suspicion. Ms. F.N. Haidari, learned

Counsel then invites my attention to the fact that the dying declaration

purports to bear the left hand thumb impression of the deceased. The

learned Counsel submits that concededly both the thumbs of the

deceased suffered 100% burns since the post-mortem Exhibit 127

records that both right upper limb and left upper limb suffered 9%

burn injuries with no spared area. 9% burn injuries on the right upper

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limb or left upper limb correspond to 100% burns, according to Modi's

medical jurisprudence, is the submission. Ms. F.N. Haidari, learned

Counsel invites my attention to the following observations of the

Hon'ble Supreme Court in the case of State of Punjab v. Gian Kaur

and another reported in AIR 1998 SC 2809 :

"5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found evidence of Dr. Ajay Sahni - P.W.1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."

The learned Counsel would submit that the left hand

thumb impression which is purportedly appearing on the dying

declaration has clear ridges and curves which ipso facto renders the

dying declaration suspect.

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Ms. F.N. Haidari, learned Counsel invites my attention to

the following observations of the Division Bench of this Court in Abdul

Riyz Abdul Bashir vs. State of Maharashtra reported in 2012 ALL

MR (Cri) 2188.

"8. On perusal of Exh.63, it appears that in column no. 2 the deponent had given the detailed narration of the incident and has stated that her mother-in-law had exhorted her husband to eliminate Nargis. Nargis got enraged and doused herself with kerosene and when she was changing her clothes, her husband ignited the match-stick and because the neighbours had raised the cries, her husband attempted to extinguish the fire. In column no.5, it is stated that she had sustained burn injuries to her face, both hands, chest and back. The reply to column no.7 is also stated. However, column no.8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent. The said column is left blank. To rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct. The said column cannot be treated as an empty formality since the deponent is not available for cross-examination. Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the Court. It, therefore, appears that the statement was never read over to the deceased and there is no endorsement to that effect. When the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. In fact the said column is

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blank and, therefore, the said fact cannot be assumed. The learned counsel for the appellant has relied upon the judgment of the Apex Court reported in (2008) 1 Supreme Court Cases (Cri) 679 - Shaikh Bakshu and others .vs. State of Maharashtra wherein it is held by the Apex court that "there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained". The Apex Court has held that the said view is unacceptable. The learned counsel for the appellant has also relied upon the judgment reported in 2004 ALL MR (Cri) 3220 in the case of Shivaji Tukaram Potdukhe .vs. State of Maharashtra wherein it is held that "when the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration cannot be made foundation for sustaining the conviction". We have observed that it is doubtful whether the signature on Exh.63 is that of deceased Nargis since the accused by taking recourse to Section 155 of the Indian Evidence Act has examined an independent witness who has deposed that the signature on the Nikahnama was made by Nargis in his presence and, therefore, in the present case we find that the written dying declaration at Exh.63 cannot be made the sole basis for recording the conviction. Notwithstanding the fact that it was recorded by the Magistrate, the discrepancies in the written dying declaration are such that they would not inspire the confidence of the Court."

8. The submission of the learned Counsel Ms. F.N. Haidari is

that the dying declaration Exhibit 57 must be discarded on the short

ground that there is no endorsement that the dying declaration was

read over to the maker and the contents accepted to be true. In

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response, the learned Additional Public Prosecutor Ms. Ritu Kaliya

would submit that the format of the dying declaration incorporates a

statement that the dying declaration was read over and accepted to be

correct in contents.

9. Ms. F.N. Haidari, learned Counsel is justified in contending

that the dying declaration Exhibit 57 must be discarded. Concededly,

both the upper limbs of deceased Shama Parvin suffered 100% burns.

The ridges and curves of the dying declaration appearing on the dying

declaration are clear. The printed format incorporates a statement that

there was no relative present, that the dying declaration was read over

and accepted to be correct. But then, the fact that the printed form

incorporates such statement would not ipso facto prove that the dying

declaration was, as a fact read over to the maker and accepted to be

correct. While P.W.2 Arvind Bhagat who recorded the dying

declaration states that the dying declaration was read over and

accepted to be correct, such an independent endorsement, other than

the typed/printed statement is absent.

10. The sister of the deceased Bugabi who is examined as

P.W.5 states in the examination-in-chief that the accused used to drink

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liquor and used to quarrel with the deceased. This solitary statement

takes the case of the prosecution nowhere. Au contraire, P.W.5 Bugabi

admits in the cross-examination :

"It is true to say that my sister was not having ill-treatment on

the part of the accused."

The only other witness who is examined to prove cruelty is

P.W.3 Sheikh Wajir who has deposed that the deceased disclosed that

the accused used to drink and harass her and that she was not provided

food. The details of the harassment are not forthcoming. That apart, it

is extracted in the cross-examination that P.W.3 Sheikh Wajir did not

have friendly relations with the deceased. The witness does not have

any daughter of the age of the deceased. In the teeth of the admission

of P.W.5 Bugabi, the sister of the deceased, that the deceased was not

ill-treated, the version of P.W.3 Sheikh Wajir that certain disclosures

were made by the deceased to him, is extremely doubtful.

11. The learned Counsel Ms. F.N. Haidari is justified in urging

that if the dying declaration is kept out of the consideration, there is

absolutely no evidence worth the name to bring home the charge under

Section 498-A or 306 of the Indian Penal Code against the accused. I

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have already recorded a finding, that the dying declaration is not

confidence inspiring and must be kept out of consideration.

12. The judgment and order impugned is set aside. The

accused is acquitted of the offence punishable under Sections 498-A

and 306 read with Section 34 of the Indian Penal Code. The bail bond

of the accused shall stand discharged.

JUDGE adgokar