Sy Jabbar S/O Sy Hussain vs The State Of Maha
2017 Latest Caselaw 8020 Bom

                                      1          Cr Appeal 680 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 680 of 2002


     Syed Jabbar s/o Syed Hussain,
     Age 33 years,
     Occupation : Labourer,
     R/o Jafrabad, Taluka Jafrabad,
     District Jalna.                           ..    Appellant.

             Versus

     The State of Maharashtra.                 .. Respondent.

                                     ----

     Shri. G.A. Kulkarni, Advocate, holding for Shri. R.S.
     Deshmukh, Advocate, for appellant.

     Shri. S.J. Salgare, Additional Public Prosecutor, for
     respondent.

                                     ----

                                Coram:      T.V. NALAWADE &
                                            S.M. GAVHANE, JJ.

                 Judgment reserved on :         25 September 2017

                 Judgment pronounced on : 11 October 2017


     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed against the judgment and

order of Sessions Case No.21/1999 which was pending in

the Court of the learned 2 nd Additional Sessions Judge,

2 Cr Appeal 680 of 2002

Jalna. The appellant-accused is convicted and sentenced

for an offence punishable under section 302, Indian Penal

Code. Both the sides are heard.

2) In short, the facts leading to the institution of

the appeal can be stated as follows :

The deceased Taherabe was a daughter of Abdul

Khan Pathan. She was given in marriage to the brother of

present appellant-accused more than 2 years prior to the

date of the incident. The deceased was living with her

husband and one issue in a room of the house. The

brothers of the husband of the deceased were living in

separate rooms in the vicinity. Even the house of the

father of the deceased was in the vicinity of this place and

the brothers of the deceased were living with her father,

Abdul Khan.

3) The incident in question took place on 10-10-

1998 at about 9.00 p.m. Husband of the deceased was not

at home and he had left after taking dinner. The present

appellant was present in his house and his sister Yasmin

was also present. Yasmin was living with her parents. On

3 Cr Appeal 680 of 2002

that date there was some altercation between the

deceased and Yasmin. Due to quarrels which the deceased

had with Yasmin, the appellant became angry. He first

gave abuses to the deceased and then set her on fire after

pouring kerosene on her person. When she started

shouting, persons in the vicinity rushed and they

extinguished the fire. She was shifted to Civil Hospital

Jalna. In the Civil Hospital her statement was recorded as

dying declaration by Police Head Constable Kadam. On

the basis of this statement, the crime came to be

registered for offences punishable under sections 307,

504 and 34 of Indian Penal Code. On the next day, on the

requisition given by police, the Executive Magistrate

recorded her dying declaration after midnight hours of

the night between 10 and 11 October 1998. Both, Kadam

and the Executive Magistrate Nandedkar had obtained

opinion of the doctor of the Civil Hospital about fitness of

the deceased before recording the dying declaration.

4) P.S.I. Khedkar who was attached to Jafrabad

Police Station took over investigation of CR No.46/1998

which was registered on the basis of aforesaid statement

4 Cr Appeal 680 of 2002

of the deceased. During course of investigation spot

panchanama was prepared which was of the room where

the deceased was living. Statements of some witnesses

came to be recorded who were father and brothers of the

deceased. Taherabi succumbed to the injuries on 15-10-

1998. The offence was converted to make it one under

section 302 IPC and statements of some witnesses were

again recorded. Inquest panchanama was prepared and

the dead body was referred for post mortem examination.

The doctor who conduced post mortem examination gave

opinion that the death took place due to cardiac

respiratory arrest due to septicemia and shock due to 97%

superficial to deep burns. Charge-sheet came to be filed

against the present appellant only. Charge was framed for

offence of murder. The prosecution examined in all 8

witnesses. The accused took defence of total denial.

During statement given under section 313 of the Code of

Criminal Procedure he contended that he was not at home

and his wife also sustained burn injuries when she was

making attempt to extinguish the fire. He has examined

three witnesses in defence including one doctor who had

given treatment to his wife on the burn injuries.

                                        5       Cr Appeal 680 of 2002

     5)               The trial Court has believed the evidence given

on the two recorded dying declarations and also oral

dying declarations on which evidence is given by father

and other relatives of the deceased.

6) When death takes place due to burn injuries the

death can be accidental, suicidal or homicidal. Due to this

probability, the surrounding circumstances need to be

considered by the Court when the case rests only on the

statements given by the deceased which are admissible

under section 32 of the Evidence Act.

7) The first dying declaration was recorded by

Kadam (PW 5), Police Head Constable in the Civil Hospital

between 11.15 p.m. and 11.30 p.m. on 10-10-1998, the

date of the incident. The incident had taken place at

about 9.00 p.m. Kadam (PW 5) has given evidence that

before recording the statement of the deceased he

obtained opinion of Dr. Paritkar about the fitness of the

deceased and when the doctor gave opinion that she was

fit, he recorded the statement. He obtained thumb

impression of the deceased on the statement and obtained

6 Cr Appeal 680 of 2002

endorsements of the doctor on the statement to the

aforesaid effect. This document is given exhibit 28.

8) The contents of Exhibit 28 show that the

deceased disclosed as follows :-

(i) Her husband was not at home at 9.00 p.m. and she was alone in the room. Nothing is mentioned in Exhibit 28 about the issue when the deceased had a child.

(ii) Accused gave abuses to her on the ground that she had picked up quarrels with his sister Yasmin and then poured kerosene on her person and pushed her towards electric stove.

(iii) Due to electric stove her clothes caught fire.

9) Nandedkar (PW 6) who recorded the second

dying declaration has deposed that he obtained the

opinion of Dr. Paropkari regarding the fitness of the

patient and when the doctor gave opinion that she was fit,

he recorded the statement between 00.05 hours and 00.35

hours of the same night. He has deposed that he obtained

thumb impression of the deceased on the statement and

7 Cr Appeal 680 of 2002

obtained endorsements of the doctor regarding fitness of

the patient. The dying declaration is proved at Exhibit 33.

10) The contents of Exhibit 33 are as under :-

(i) On 10-10-1998 at about 9.00 p.m. she had quarrel with present appellant as Yasmin instigated the accused.

(ii) During quarrel the appellant poured kerosene on her person and set fire to her by using a burning piece of paper.

(iii) Her husband was not at home and her in-laws were present in other room.

(iv) She shouted when her clothes caught fire and due to that her in-laws rushed to her room and they extinguished the fire.

(v) There was dispute between the appellant and her family as her daughter aged about one and half years used to enter the house of the appellant and due to that there used to be frequent quarrels.

                                           8         Cr Appeal 680 of 2002

     11)              There is evidence of oral dying declaration

given by Abdul Khan (PW 1), father of the deceased. He

has deposed that on that night when one lady Ashu Begum

informed him that his daughter had sustained burn

injuries, he went to her matrimonial place. He has

deposed that when he inquired with the daughter she

disclosed that there was harassment to her from her

sister-in-law and the present appellant-accused and on

that date there was quarrel between her and her sister-in-

law. He has deposed that she disclosed that her sister-in-

law and the present appellant poured kerosene on her

person and set her on fire. He has given evidence that he

and his son shifted the deceased Taherabi to Government

Hospital. Even if the other circumstances like some

omissions with relation to the previous statement are

ignored it can be said that, this dying declaration is not

consistent with the aforesaid two recorded dying

declarations. PW 1 has deposed against the sister-in-law

of the deceased also by saying that she was also involved

in the incident in which fire was set to the deceased.

                                       9       Cr Appeal 680 of 2002

     12)              Inayat Khan (PW 2), brother of the deceased,

has given evidence which is similar to the evidence of PW

1. He has also deposed that the deceased disclosed that

present appellant and her sister-in-law poured kerosene

on her person and she was set on fire. These oral dying

declarations are not consistent with the recorded dying

declarations.

13) The evidence of PW 1 and PW 2 shows that they

learnt about the incident from third persons and then they

went to the matrimonial house of the deceased. The

evidence of PW 2 shows that when he rushed to home

after learning of the incident he saw that a jeep was

already hired for shifting the deceased and it was parked

in front of his residential place. Though not specifically

deposed by these two witnesses, it can be said that the

relatives on parents side of the deceased like PW 1 and

PW 2 had shifted the deceased to Civil Hospital and from

that moment they were in the company of the deceased.

14) Sk. Fattu (PW 4) is examined to give evidence

that he had heard altercations going on between deceased

Taherabe and present appellant when he was at the back

10 Cr Appeal 680 of 2002

side of his house and he had tried to convince the

appellant not to quarrel. He has deposed that after 15 to

20 minutes of his return to his house, he heard shouts

and so he again rushed to the spot and at that time he saw

that Taherabe was completely burnt. In the cross

examination of this witness it is brought on the record

that he had stated before police that he went to the house

of the deceased only when he saw crowd gathered in front

of that house. Similarly, some omissions which amount to

contradiction from the evidence of PW 1 and PW 2 were

pointed out to them and they are duly proved in the

evidence of investigating officer Khedkar (PW 7). Before

police PW 1 in the statement dated 12-10-1998 had stated

that even after learning about the incident he had not

gone to the matrimonial house of the deceased and he had

stayed at home with children. PW 2 had stated before

police that when he learnt about the incident he had

directly come to the residential place and the deceased

was already brought there. These omissions can be

ignored and the remaining evidence like the evidence

given on the dying declarations can be analysed and

appreciated.

                                              11          Cr Appeal 680 of 2002

     15)              The evidence of aforesaid three witnesses does

not show that they had seen the appellant in that house

when they reached the house of deceased after learning

about the incident. The evidence on the record and even

the dying declarations show that the in-laws of the

deceased and even her sister-in-law, who could have been

made accused, were at home, at the residential place but

they are not examined as witnesses by the prosecution.

Thus, there is only evidence of dying declaration to show

that the appellant was present there. It was 9.00 p.m. and

even the husband of the deceased was not at home and so

it was necessary for the prosecution to show that anybody

had seen the appellant in the vicinity of the house of the

deceased or at least in his own room situated in the same

campus when they rushed to the spot after learning about

the incident. If the in-laws of the deceased had

extinguished the fire and the deceased had no grievance

against the in-laws, they could have given information

about the starting of the incident and also about

extinguishing fire by somebody or by them. In the first

dying declaration nothing was disclosed as to who had

extinguished the fire. All these circumstances are relevant

12 Cr Appeal 680 of 2002

but there is no evidence given by the prosecution on such

circumstances.

16) The spot panchanama is proved in the evidence

of one Pathan (PW 3). The spot panchanama at Exhibit 25

and the evidence of Pathan show that the size of the room

where the deceased was living was 10×15 ft (in the

substantive evidence the size is given as 10×10 ft) and

this room had roof of six tin-sheets. In the map this house

is shown separate from the remaining portion of the house

and that map is proved as Exhibit 38 in the evidence of

the Investigating Officer (PW 7). There are houses of

Mohd Azam and others in the vicinity. Those neighbours

are also not examined. Thus, there is no convincing

evidence which can be called as independent with the

prosecution to show that immediately after hearing the

shouts of the deceased, persons who rushed to the spot

had seen the accused on the spot or in the vicinity of the

spot of offence. These circumstances can be used against

the prosecution as it indicates that the prosecution

avoided to lead such evidence.

                                            13         Cr Appeal 680 of 2002

     17)              In the first dying declaration the deceased

disclosed that electric stove was on and her clothes

caught fire due to electric stove. Though in the second

dying declaration she disclosed that a piece of burning

paper was used to set her on fire and kerosene was

poured on her person prior to that, the spot panchanama

at Exhibit 25 does not show that panchas had smell of

kerosene in the room. They noticed water inside of the

room showing that the fire was extinguished by using

water in the room. One tin box of kerosene was available

in room having smell of kerosene but there was no

kerosene inside of the tin box. Under the spot

panchanama only one article, the aforesaid tin box was

taken over. The evidence does not show that the clothes of

the deceased were taken over or pieces of partly burnt

clothes of the deceased which could have been found on

the spot were taken over and they were sent to C.A. office.

There is virtually no explanation on these circumstances.

If kerosene was used for setting fire to the deceased in

ordinary course police would have collected relevant

articles or at least the clothes of the deceased and the

clothes could have sent to C.A. office. The evidence of the

14 Cr Appeal 680 of 2002

investigating officer shows that no such attempt was made

and there is no explanation to that lacuna.

18) There is one more circumstance in the spot

panchanama. This document (Exhibit 25) shows that out

of aforesaid six tin-sheets used for the roof, one tin sheet

of western side appeared to be removed. There was

electric stove inside of the room and the fire had not

reached to other articles. No explanation is given by any

witnesses of the prosecution on this circumstance. It was

necessary for police to find out as to why and who had

removed the tin-sheet of room where the incident had

taken place. If it was removed in the past for some other

reason, that explanation also could have been given. The

prosecution has not given that explanation and the

defence has used that circumstance in defence and the

evidence is given through defence witnesses on that

circumstance. Shahinbi (DW 2), wife of the appellant, is

examined as a defence witness. She can be called as

interested witness but in ordinary course police ought to

have recorded her statement as she was living by the side

of the room of the deceased. She has deposed that her

15 Cr Appeal 680 of 2002

house is situated at a distance of 30 to 40 feet from the

house of the deceased and after starting of the fire they

noticed that door of the room was closed from inside and

due to that Gaffar, other brother of the accused lifted the

tin sheet of the room for entering in the room. She has

deposed that after opening of the door by Gaffar, the

deceased who was in flames came out and she virtually

fell on her. She has deposed that due to this she sustained

burn injury as her clothes also caught fire. In the cross-

examination, the learned APP suggested her that she fell

on the person of the deceased or the deceased had caught

hold of her. These suggestions show that the State is not

disputing that this lady was present at the place of the

incident at the relevant time. Defence has examined Dr.

Chavan (DW 3) to prove that this lady had sustained burn

injuries and the extent was 8 to 10% over back and 3 to

5% burns on right forearm. This witness had examined

DW 2 at about 12.30 p.m. on 11-10-1998. The certificate

issued by this doctor is proved at Exhibit 56. In view of the

aforesaid circumstances this Court holds that the State

has not disputed that this witness was present there and

she had sustained burn injury in the incident. It was

16 Cr Appeal 680 of 2002

necessary for the State to get examined DW 2 and explain

the injuries on the person of this lady but the defence was

required to examine the witnesses to bring this evidence

on record.

19) The defence has examined one Mohd Naim

(DW 1) who has given evidence that he is immediate

neighbour of the deceased. He has deposed that he was

present when Gaffar lifted the tin-sheet from the roof of

the house of the deceased when there was fire and after

entering the room he opened the door of the house by

removing latch from inside. He has given evidence that

deceased came outside when she was in flames and she

fell on the wife of the appellant, accused. He has given

evidence that his cousin Mohd Azam was also present on

the spot. The house of Mohd Azam is shown in the map

which is already mentioned by this Court. This witness is

cross-examined by the learned APP but in the evidence of

this witness also it was not brought on the record that

accused was present there at the relevant time.

20) The aforesaid circumstances show that there is

no corroboration to the contents of both the recorded

17 Cr Appeal 680 of 2002

dying declarations. In the oral dying declarations there is

exaggeration which is already mentioned. When the

witnesses were available who could have described the

incident, they are not examined by the prosecution. The

evidence shows that there used to be frequent quarrels

between the deceased and the present appellant. Different

reasons are given for the quarrels in the two dying

declarations. It can be said that the deceased did not like

the present appellant. Thus, on one hand it can be said

that there is evidence on motive and on the other hand it

can be said that there is evidence to show that there was

reasons for falsely implicating the appellant.

21) It is true that dying declaration can be acted

upon without corroboration. This proposition is subject

condition that the Court needs to be satisfied that the

dying declaration is true and it was voluntarily given. It is

already observed that the witnesses like father and

brother of the deceased had shifted the deceased to the

hospital and there was possibility of tutoring the

deceased. Due to the inconsistencies in the two recorded

dying declarations already quoted, regarding the manner

18 Cr Appeal 680 of 2002

in which the offence committed is described and the

lacunae due to which the manner of the incident cannot

be believed, the dying declarations have become highly

suspicions. There is possibility that due to vindictiveness,

the appellant's name is mentioned in the dying

declarations. There is evidence that on that day there was

quarrels as mentioned in the dying declarations and the

deceased was feeling insulted and due to that there is

possibility that she took steps to commit suicide. There is

also possibility of sustaining of injuries accidentally as

there is no independent evidence to show that kerosene

was used. This Court holds that it was necessary for the

prosecution to have corroboration of independent

circumstance and as there is no such corroboration,

benefit of doubt needs to be given to the accused [reliance

is placed on the case reported as (2001) 5 SCC 254 - Uka

Ram vs. State of Rajasthan].

22) Learned Additional Public Prosecutor placed

reliance on the case reported as (1976) 3 SCC 618 (K.

Ramachandra Reddy v. The Public Prosecutor) and the

learned counsel for the appellant placed reliance on the

19 Cr Appeal 680 of 2002

case reported as AIR 1965 SC 939 (Thurukanni Pompaih

v. State of Mysore). In the case cited by the learned

Additional Public Prosecutor the Apex Court has laid

down that corroboration is not necessary to dying

declaration if accepted as true and voluntary. There is no

dispute over the proposition. In the other case cited by the

learned counsel for the appellant it is laid down that the

Court must be satisfied that the declaration is truthful and

to ascertain the reliability, the dying declaration needs to

be subjected to close scrutiny. The Apex Court has laid

down that as there is no opportunity to test veracity by

cross examining in such a case, it is the duty of the Court

to see and ascertain that the declaration is truthful. It is

observed that if the version of the deceased of the entire

occurrence is untrue, the Court may in the facts of that

case consider it unsafe to convict the accused on the basis

of the declaration alone without further corroboration.

There cannot be dispute over this proposition also. In view

of the facts of the present matter, this Court has

considered the surrounding circumstances and also the

inconsistencies in the recorded and the oral dying

declarations. This Court holds that due to the

20 Cr Appeal 680 of 2002

circumstances mentioned by this Court benefit of doubt

needs to be given to the appellant. The trial Court has

virtually not considered the aforesaid circumstances of the

matter and the trial Court has given conviction by

presuming that as there is evidence of dying declarations,

story given in the dying declarations needs to be believed.

The judgment and order of the trial Court cannot sustain

in law.

23) In the result, the appeal is allowed. The

judgment and order of the trial Court delivered in

Sessions Case No.21 of 1999 (by learned 2 nd Additional

Sessions Judge, Jalna) by which the appellant is convicted

and sentenced for offence punishable under section 302

of Indian Penal Code is hereby set aside. The appellant

stands acquitted of the offence for which he was charged

and tried.

24) The bail bonds of the appellant to continue for

a further period of three months to give opportunity to the

State to challenge the decision of this Court.

                 Sd/-                                       Sd/-
     (S.M. GAVHANE J.)                           (T.V. NALAWADE, J.)
     rsl