State Of Maharshtra Through Pso, ... vs Firoz Sheikh S/O Wajir Sheikh
2022 Latest Caselaw 6846 Bom

                              1               40.APEAL.157-2012 JUDGMENT.odt




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


             CRIMINAL APPEAL NO. 157 OF 2012


     State of Maharashtra,
     through Police Station Officer,
     Police Station Saoli,
     District Chandrapur.                            APPELLANT


       Versus

     Firoz Sheikh S/o Wajir Sheikh
     Aged abut 36 years, Occ. Driver,
     R/o Saoli, Tahsil : Saoli,
     District : Chandrapur.                         RESPONDENT


-----------------------------------------------
Mr. Amit R. Chutke, A.P.P. for the Appellant/State.
Mrs. Sonali Saware/Gadhawe, Advocate for the Respondent.
-----------------------------------------------


                   CORAM : AVINASH G. GHAROTE, J.

                   DATED    : 19th JULY, 2022.


ORAL JUDGMENT :-


           Heard    Mr.    Chutke,      learned     APP         for      the

appellant/State and Mrs. Saware, learned appointed counsel for
                                  2                 40.APEAL.157-2012 JUDGMENT.odt




the respondent.



2.         The    appeal     questions       the     judgment             dated

17.10.2011, passed by the Ad-hoc Assistant Sessions Judge-2,

Chandrapur, whereby the respondent/accused has been

acquitted of the offence punishable under Sections 498-A and

306 of the Indian Penal Code.

3. The relationship between the deceased Mumtaz and

that of the accused was of husband and wife. The incident is

dated 04.10.2010, when it is alleged that at about 08.00 p.m.

the accused came to the house under the influence of liquor,

quarreled with his wife, and assaulted her mercilessly. The wife

could not bear the ill-treatment, and therefore, poured kerosene

on her person and set herself ablaze. The neighbors who were

residing in the same locality i.e. PW-2/Maya Nimgade

(page 26), her husband Bhimrao, Maya Burle, Firoza - sister of

the accused, who were standing on the terrace saw smoke

coming out of the window and therefore rushed down.

PW-2/ Maya poured water on the person of Mumtaz and all of

them took her down and carried her on the motorcycle of one 3 40.APEAL.157-2012 JUDGMENT.odt

Boliwar to Primary Health Centre Vyahad. Since the doctor was

not present there, they took her to the General Hospital,

Gadchiroli in the car of Shri Kadukar, at which time the mother

of the injured was also summoned and was accompanying

them. Mumtaz was admitted in the General Hospital for about 7

days where she was treated by a Medical Officer (not

examined). Her dying declaration is claimed to have been

recorded on 05.10.2010 at Exh. 49 (page 82) by PW-9, the

Executive Magistrate - Shashikant Channawar (Exh.48/page

78). Prior to the recording of the dying declaration, Mumtaz

was examined by Dr. Kannake, the Medical Officer, General

Hospital Gadchiroli, who after examining Mumtaz, certified her

to be fit to give a statement (not examined). Earlier to that, her

statement was recorded by the A.S.I. at the Government

Hospital, Gadchiroli, at Exh.44 (page 72) by PW-8 Chokha

Baliram Khobragade (page 69). Mumtaz succumbed to her

injuries on 11.10.2010. The post mortem was conducted in

which the cause of death is stated to be Aspiration pneumanitis

with septicemia shock with septicemia secondary to burn. The

post mortem report indicates, that deceased Mumtaz had

suffered around 60% mixed type of burn injuries. The 4 40.APEAL.157-2012 JUDGMENT.odt

charge-sheet was thereafter filed.

4. In the trial, the prosecution has examined total 10

witnesses, out of which PW-2 Maya Nimgade, PW-3 Jaheda

Shaikh, PW-5 Saieda Pathan (mother of deceased), PW-6 Riyaz

Sikandarkhan Pathan (maternal uncle of deceased) and PW-9

Shashikant Channawar (Executive Magistrate who recorded the

dying declaration) are material. Out of these witnesses, PW-2

Maya Nimgade, PW-3 Jaheda Shaikh, who were the neighbours

of the deceased have turned hostile. PW-1 is the panch witness

for the spot panchnama and the seizure and has only proved the

seizure of the burnt saree from the spot. He however has turned

hostile in respect of the spot panchnama and seizure of other

articles. PW-4 Maroti Umap is the person who has registered the

offence and prepared the spot panchnama, PW-7 Hirasingh

Aade is the Investigating Officer who has filed the charge-sheet,

PW-8 Chokha Khobragade is the Assistant Sub Inspector who

has recorded the statement of the deceased (Exh.44/page 72)

and send the requisition to PW-9 for recording the dying

declaration. PW-10 Madhukar Meshram is the Head Constable

who has recorded the earlier complaint filed by the deceased 5 40.APEAL.157-2012 JUDGMENT.odt

against her husband.

5. It is therefore to be seen whether the allegations

that there was a quarrel between the deceased and her husband

on 04.10.2010 between 08.00 to 08.30 p.m. is spelt out.

6. PW-2 Maya Nimgade states that the accused was the

tenant in her husband's elder brother's house. She was also

residing in the same house in a different portion. The accused

along with deceased was residing in a separate portion of the

said house. She in her examination-in-chief states, that the

accused and his wife were residing properly in the house.

Though she has been declared hostile and has resiled from what

has been stated in her statement, specifically portion marked A

and B (page 53, 61 & 62), nothing has been brought out in her

cross-examination by the learned APP. In her cross-examination

by the counsel for the accused, she has stated that deceased

Mumtaz was hot tempered and used to pick up quarrels with

the neighbours due to her hot temper. In her evidence, it has

come on record, that there were several other persons who had

noticed the incident of fire coming from the house of the 6 40.APEAL.157-2012 JUDGMENT.odt

accused and had rushed to assist, namely her husband Bhimrao,

the sister of the mother of the accused, Maya Burle and Firoza,

one Boliwar, on whose motorcycle, the deceased Mumtaz was

carried to Primary Health Centre, Vyahad and so also Kadukar

in whose car Mumtaz was carried from Primary Health Centre,

Vyahad to General Hospital, Gadchiroli. However, what is

material to note is that none of these persons have been

examined by the prosecution.

7. PW-3/Jaheda stated, that the accused and Mumtaz

were residing properly and though she has also been declared

hostile, nothing has been brought out in her cross-examination

by the learned APP.

8. PW-5/Saieda is the mother of the deceased and

states that her daughter was subjected to ill-treatment at the

hands of the accused and the facts of ill-treatment were

narrated to her. She states that the accused used to beat the

deceased under the influence of liquor. Surprisingly, her

statement was not recorded by the Police and it is for the first

time that she was coming to the witness-box and deposing. She 7 40.APEAL.157-2012 JUDGMENT.odt

went to the Primary Health Centre, Vyahad after receiving

information and thereafter to General Hospital, Gadchiroli and

states that her daughter had told her that accused after closing

the door of the room had assaulted her, due to which she set

herself ablaze by pouring kerosene on her person. In her

cross-examination, she admits that between a husband and

wife, generally quarrels always take place on trifle domestic

matters and similar was the case between the accused and the

deceased. What is material to note is that PW-5 though claims

earlier incidences of harassment, however not a single incident

has been narrated by her in her evidence, which would indicate

absence of any serious dispute between the accused and his

wife. This position is further substantiated by her admission in

the cross-examination that she had not called any meeting in

order to resolve the alleged dispute between the accused and

his wife.

9. PW-6/Riyaz is the maternal uncle of the deceased

and claims, that since he had asked Mumtaz as to how she had

sustained burn injuries, she had told him that due to

harassment by her husband she had set herself on fire. In his 8 40.APEAL.157-2012 JUDGMENT.odt

cross-examination, he categorically admits that he had no idea

about the dispute between deceased Mumtaz and the accused

which would be unnatural for a person to be so closely related

to the deceased.

10. It is thus apparent, that the material witnesses, who

could have stated about the so called dispute or discord

between the accused and the deceased, as named by PW-2 in

her evidence, have not been examined and so also PW-2, PW-3

and PW-6 have denied any knowledge of any quarrels or

disputes between the accused and his wife. Thus there is no

history of any disputes or quarrels brought on record by the

prosecution, except for an earlier complaint by the deceased

made to PW-10 on 20.08.2010, which shall be dealt later on.

11. Even PW-2/Maya Nimgade, PW-3/Jaheda Shaikh

who are claimed to be on the terrace of the spot, do not claimed

to have heard any dispute or quarrel between the accused and

deceased at the relevant time on 04.10.2010. Thus the alleged

quarrel between the accused and deceased on 04.10.2010, does

not appear to have been established by the prosecution, from 9 40.APEAL.157-2012 JUDGMENT.odt

the material on record.

12. That takes me to the evidence of PW-9/Shashikant

Channawar, the Executive Magistrate, who has recorded the

dying declaration of the deceased on 05.10.2010 (Exh.49/page

82). What is material to note is that before recording the dying

declaration, Dr. S. Kannake is claimed to have examined the

deceased and opined that she was fit to give her statement.

However, Dr. Kannake has not been examined at all on account

of which the question of fitness of the deceased to record her

statement, becomes questionable. The evidence of PW-9 at

Exh. 48 (page 78) indicates, that before he went into the ward

where the deceased Mumtaz was admitted, the relatives of the

deceased Mumtaz were present at her side who were asked to

go out, prior to which Doctor is claimed to have examined

Mumtaz and given his opinion that she was fit to make a

statement. This would indicate, that the relatives of deceased

Mumtaz who were present in the ward were aware that at that

relevant time when they were present, the statement of Mumtaz

was about to be recorded.

10 40.APEAL.157-2012 JUDGMENT.odt

13. That apart, it has also come on record that

Dr. Kannake was present throughout the time when the

statement of deceased Mumtaz was recorded, however, why he

has not been examined both as a person who declared Mumtaz

to be fit to record her statement as well as the person before

whom the statement was recorded, is inexplicable.

14. It is also material to note that in the dying

declaration at Exh. 49 (page 82), there is a single line statement

by Dr. S. Kannake "fit for statement". The statement does not

indicate as to whether Mumtaz was in a fit state of mind

considering that she had sustained 60% burn injuries and had

around 14% injuries on the anterior trunk and 15% on the

posterior trunk, which included half of her neck and part of her

right jaw (page 39). It is thus apparent, that the statement by

Dr. Kannake "fit for statement" as recorded did not disclose that

Mumtaz was in a fit disposing state of mind to make a

declaration. The note appended underneath the dying

declaration also does not indicate that the Executive Magistrate

PW-9 found Mumtaz to be in a fit state of mind. What is also

material to note is that the answer to question No. 9 (page 83) 11 40.APEAL.157-2012 JUDGMENT.odt

as to whether the statement given by her is correct or not,

against which there is a blank.

15. Mrs. Saware, learned appointed counsel for the

respondent, has rightly placed reliance upon Paparambaka

Rosamma & Ors. Vs. State of Andhra Pradesh decided by the

Hon'ble Apex Court on 13.09.1999, in which it has been stated

that the opinion of the Doctor, should indicate a fit disposing

state of mind and in absence of such a certification, it would be

very much risky to accept the subjective satisfaction of a

Magistrate who opined that the injured was in a fit state of

mind at the time of making a declaration. In the instant case, in

absence of Dr. Kannake having been examined and in absence of

a statement even by the Executive Magistrate PW-9 that he

found Mumtaz to be in a fit disposing state of mind, placing

reliance upon the dying declaration at Exh.49, as the sole piece

of evidence, to convict the accused would clearly be risky.

16. Insofar as, the complaint dated 20.08.2010 is

concerned at Exh. 56 (page 95), an NC report was given. It

merely indicates, that there was some sort of quarrel between 12 40.APEAL.157-2012 JUDGMENT.odt

the accused and the deceased, in which it is alleged by the

deceased, that the accused had abused, assaulted and

threatened her. The occurrence report at Exh. 54 (page 91) does

not indicate either the nature of abuses, blows or threat which is

alleged to have been administered by the accused and is not of

much assistance, neither can it form the basis of the contention

that there used to be continuous quarrels, abuses and assaults

by the accused to the deceased, since that appears to be a

singular complaint. That apart, a compromise had taken place

in respect of the said incident which is dated 21.09.2010 at

Exh. 57 (page 97), which would indicate, that consequent

thereto they were cohabiting nicely without any quarrel

whatsoever. The said incident therefore, by itself, cannot form

the basis of a conviction.

17. The learned Court below, as is indicated by the

impugned judgment has rightly relied upon the fact, that

Dr. Kannake, who had declared Mumtaz fit, had not been

examined and so also there is no averment is the statement of

PW-9 that Mumtaz was in a fit disposing state of mind to give

statement. It has noted the evidence of PW-7 and PW-8 who 13 40.APEAL.157-2012 JUDGMENT.odt

also do not state that Mumtaz was in a fit disposing state of

mind to give statement. Though Mr. Chutke, learned APP for the

appellant/State has relied upon Ashabai and Anr. Vs. State of

Maharashtra, AIR 2013 SC 341 - para 12 and Gulzari Lal Vs.

State of Haryana, AIR 2016 SC 795, however the factual

position in the instant matter indicates, that neither PW-7

Hirasingh Raisingh Aade, the P.S.I who has recorded the

statement of Mumtaz at Exh. 36 and 37 (page 61) nor PW-8

Chokha Baliram Khobragade (page 69), the A.S.I. in-charge of

Police Chouki situated at General Hospital Gadchiroli who had

also recorded the statement of Mumtaz on 05.10.2010, indicate,

that they have found Mumtaz in a fit disposing state of mind to

give her statement. The evidence of PW-9 is also in the same

line and has already been discussed above. That apart, there is

no corroboration of the prosecution story regarding the

continuous quarrels, assaults and abuses claimed to have been

meted out by the deceased by the accused, and therefore, the so

called dying declaration, on its own, cannot be considered to be

sole basis to convict the accused, in the peculiar facts of the

instant case and the material brought on record by the

prosecution.

14 40.APEAL.157-2012 JUDGMENT.odt

18. It is therefore apparent, that the learned Court

below has correctly appreciated the evidence on record as well

as the effect and import of the absence of examining

Dr. Kannake and PW-7 and PW-8 also not recording any

statement of the deceased being in a fit disposing state of mind,

considering which, I do not see any reason to interfere in the

impugned judgment. The Appeal is therefore without any merit

and is accordingly dismissed with no order as to costs.

19. Fees of the learned counsel (Appointed) for the

respondent be paid by the High Court Legal Services

Sub-committee, Nagpur, as per rules.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:21.07.2022 14:32