Bombay High Court

Mohammad Ejaz Mohammad Osman vs The State Of Maharashtra on 10 September, 2024

2024:BHC-AUG:21275


                                                                        CriAppeal-289-2002
                                                   -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 289 OF 2002

                 Mohammad Ejaz s/o Mohammad Osman,
                 Age : 29 Years, Occ. : Service,
                 R/o Kiradpura, Aurangabad.
                 (At present in Central Prison,
                 Harsool, Aurangabad.)                              ... Appellant
                                                                   [Orig. Accused No.1]

                       Versus

                 The State of Maharashtra                           ... Respondent

                                                .....
                 Mr. Niraj Pradeep Chudiwal, Advocate for the Appellant (appointed)
                      Mrs. Chaitali Choudhari Kutti, APP for Respondent-State.
                                                .....


                                           CORAM :       ABHAY S. WAGHWASE, J.

                                           Reserved on        : 02.09.2024
                                           Pronounced on      : 10.09.2024


                 JUDGMENT :

1. The correctness of the judgment and order of conviction dated

16.05.2002 rendered by learned Additional Sessions Judge,

Aurangabad in Sessions Case No. 253 of 2000, convicting present

appellant for offence punishable under Sections 498-A and 306 of the

Indian Penal Code [IPC] is under challenge.

CriAppeal-289-2002

FACTUAL MATRIX

Prosecution version :

2. Deceased Shahana Begum was married to present appellant

and after marriage, she came to reside with her husband and in-laws.

Initially everything was smooth, but subsequently there was ill-

treatment at the hands of accused persons. They suspected her fidelity

and beat her. Two years after marriage, because of said ill-treatment,

she had consumed phenyl and therefore, was brought back by her

father PW5. After compromise, she came back to reside with husband

and in-laws, but again ill-treatment began. According to prosecution,

on 29.05.2000, husband beat her by suspecting her character. Finally,

getting fed up of the same, she immolated herself and suffered 92%

burns. PW3 Special Executive Magistrate recorded her dying

declaration on the strength of which, crime was registered.

3. Shahana Begum succumbed to the burns and therefore,

investigation was carried out by PW9, who, after gathering sufficient

evidence, chargesheeted accused persons for commission of offence

punishable under Sections 498-A and 306 of IPC.

CriAppeal-289-2002

4. Case being exclusively triable to the court of sessions, was on

the file of Additional Sessions Judge, Aurangabad, who commenced

trial vide Sessions Case No. 253 of 2000 on the charge of commission

of offences punishable under Sections 498-A and 306 of IPC. After

appreciating the oral and documentary evidence adduced by

prosecution, learned trial Judge, by judgment dated 16.05.2002,

acquitted accused nos. 2 and 3 from all charges, but convicted

husband i.e. present appellant for commission of offence punishable

under Sections 498-A and 306 of IPC, giving rise to the present

appeal.

SUBMISSIONS

On behalf of the appellant :

5. Criticizing the judgment of conviction, learned counsel for the

appellant pointed out that prosecution had miserably failed to bring

home the charges. According to him, neither ingredients for

commission of offence under Section 498-A, nor 306 of IPC, as

contemplated by law, are available in the prosecution evidence. He

pointed out that on the same set of evidence, accused nos. 2 and 3 are

already acquitted by learned trial court, but accused no.1 husband

alone is held guilty. He pointed out that apparently, deceased had CriAppeal-289-2002

suicidal tendency. Initially also she had attempted to end up her life

without any just and reasonable cause. He pointed out that even

regarding second episode of burns, husband appellant was not in the

house and it is so evident from the very dying declarations.

6. Challenging the veracity of dying declarations, learned counsel

for the appellant submitted that firstly, the dying declarations are

undated, and secondly, there is no endorsement of fitness of deceased

to give statement, that too when she had allegedly suffered 92%

burns. He took this Court through all three dying declarations

Exhibits 26, 35 and 39 and submitted that dying declarations are

recorded in Marathi whereas deceased was only conversant with

Urdu. There is no remark or statement in the dying declaration that

statement was read over to deceased. According to learned counsel,

this was fatal to the prosecution.

7. On this count, learned counsel for the appellant takes recourse

to the following rulings of the Hon'ble Apex :

1. Laxman v. State of Maharashtra 2002 Cri.L.J. 4095.

2. P. Mani v. State of T.N. AIR 2006 SC 1319.

3. Kanti Lal v. State of Rajasthan AIR 2009 SC 2703.

CriAppeal-289-2002

4. Sanju alias Sanjay Singh Sengar v. State of M.P. AIR 2002 SC 1998.

5. State of Maharashtra v. Sanjay D. Rajhans AIR 2005 SC 97.

6. Tukaram Dashrath Padhen v. State of Maharashtra 2013 Cri.L.J. (NOC) 113 (Bom.) (Nagpur Bench).

7. Ashok Pandurang Jadhav v. State of Maharashtra 2011 (4) AIR Bom R 10.

8. Radhakisan Dhondiba Bhalekar v. State of Maharashtra 2018 (2) ABR (Cri) 269.

9. Arjun Uddhav Arbad v. State of Maharashtra 2017 (3) ABR (Cri) 65.

8. Learned counsel for the appellant next took this Court through

the observations of learned trial Court and would submit that there is

improper appreciation as, according to him, specific instances and

specific role of beating is not defined in the testimony of any of the

witnesses. There was no previous complaint of any sort at any place.

Moreover, according to him, on the day of burns, victim was at her

parents house and therefore there is no question of husband being

responsible for the burns. He pointed out that all such crucial aspects

are lost sight of by the learned trial Judge. Thus, according to him, on

mere allegation of suspicion of character and on the basis of omnibus

and general allegations, case of prosecution has been straightway

accepted without assigning appropriate and sound reasons, and CriAppeal-289-2002

therefore, according to him, such judgment being not sustainable in

the eyes of law, is required to be interfered with by allowing the

appeal and setting aside the impugned judgment.

On behalf of the respondent-State :

9. Per contra, supporting the judgment of conviction, learned APP

pointed out that there are three dying declarations which are

consistent. That, just before the incident of burns, husband had

beaten her. That, ill-treatment meted out to her was regularly

reported by deceased to her father and mother. That, they both are

examined by prosecution. Their statements are consistent. Only

because of suspicion of character and beating, deceased was forced to

commit suicide and there was no other reason. She pointed out that

required ingredients for attracting Section 498-A as well as Section

306 of IPC are readily available in the prosecution evidence and

therefore, according to her, learned trial court has not committed any

error. Rather, trial court's findings are infallible and do not warrant

any interference at the hands of this Court. Hence, she prays to

dismiss the appeal.

CriAppeal-289-2002

EVIDENCE BEFORE THE TRIAL COURT

10. Prosecution has examined 9 witnesses in support of its case.

Their role and status, and the sum and substance of their evidence

can be summarized as under:

PW1 Dr, Aparna, Medical Officer at MGM Hospital, deposed about admission of deceased on 20.04.1997 on the history of consumption of phenyl and she being treated from 20.04.1997 to 22.04.1997.

PW2 Dr. Jinturkar, autopsy surgeon, who, after conducting postmortem, gave percentage of burns to be 92% and cause of death to be "shock due to burns".

PW3 Sanjay, Special Executive Magistrate, who, on requisition from police, visited Sushrut hospital on 30.05.2000 and recorded her dying declaration Exhibit 26.

PW4 Iqbalbegum is mother of deceased. Sum and substance of her evidence is that accused persons doubted character of her daughter and beat her. Due to ill-treated at their hands, once she consumed poison, but was taken back by husband. Ill- treatment and beating continued and so she committed suicide on 01.06.2020.

CriAppeal-289-2002

PW5 Harunbaig is father of deceased. Sum and substance of his evidence is that after two to four months, accused persons doubted character of his daughter and she reported whenever she visited him. After two to three years, due to cruelty, she consumed poison. On 29.05.2000, husband took her back and later on they learnt about incident of burns suffered by her.

PW6 Sk. Roshan is the pancha to spot panchanama Exhibit 30.

PW7 Dr. Yelikar, who gave endorsement about fitness of patient before recording dying declaration by police.

PW8 A.S.I. Mundhe | are the Investigating Officers who and | recorded dying declarations Exhibits PW9 P.S.I. Dabhade | 35 and 39 respectively.

ANALYSIS

11. Here, there are two sets of evidence, first set - oral evidence

and second set - three dying declarations.

First, let us appreciate the oral evidence, i.e. of parents of

deceased.

CriAppeal-289-2002

ORAL EVIDENCE

12. PW4 Iqbalbegum, mother of deceased, who is examined at

Exhibit 27, initially deposed about marriage of her daughter with

accused, for some time husband treating her daughter well, however,

thereafter, she being ill-treated. She deposed that accused nos. 1 to 3

along with mother-in-law of her daughter were beating her by

doubting her character and they were saying that she was having

illicit relations with somebody. When her daughter came home, she

disclosed this fact to her. After two years of marriage, she stated that,

due to ill-treatment, her daughter consumed poison. After spending

five days in the hospital, she was brought to her house for about two

months. Matter was compromised and her daughter went to cohabit

with accused no.1. After some days, again ill-treatment started.

Regarding incident, she deposed as under :

"On the day of incident, at about 3.10 p.m., accused no.1 had been to my house with deceased Shahana. Shahana told me that accused nos. 1 to 3 beat her and they were taking doubt on her character. After 10 minutes, accused no.1 took away deceased at his house. Thereafter, we came to know that deceased had committed suicide. After we came to know the incident, we had been to M.G.M. Hospital. We have seen the deceased Shahana in burnt condition. By seing us the accused persons left the hospital.

CriAppeal-289-2002

Thereafter we have taken the deceased at Sushrut hospital at Bansilal Nagar, Aurangabad. At Sushrut hospital, on enquiry deceased told me that she was illtreated by accused nos. 1 to 3 and her mother-in-law, and therefore, she committed suicide. On 1.6.2000 deceased died in the hospital.

While under cross, she is unable to give time and date of her

daughter being beaten by accused persons. She admitted that after

every 15 days to 1 month, her daughter was coming to her house and

she was reached by accused no.1 and taken away after some time.

She also admitted that some months before the incident, her daughter

was doing tailoring work. Material omission is brought to the extent

that "on the day of incident, accused no.1 along with deceased had

been to her house and her daughter disclosed her about beating to

her". Rest is all denial.

13. PW5 Harunbaig, father of deceased, who is examined at Exhibit

28, deposed that after marriage, for about two to four months,

deceased was treated well. Thereafter, accused nos. 1 to 3 were

taking doubt on her character. On that count, accused no.1 used to

beat deceased. That, whenever deceased came to the parents' house,

she disclosed the ill-treatment. According to him, sometimes they CriAppeal-289-2002

were keeping daughter to their house, but accused no.1 was

threatening to kill her sons. Three years back, his daughter had

consumed phenyl because of ill-treatment meted out to her. That,

after spending 5 to 6 days in MGM, his daughter was brought to the

house and kept for three months. After compromise before panchas,

his daughter was sent to the house of accused no.1, but ill-treatment

was continued from accused persons. Regarding the incident, he

deposed as under :

"On 29.05.2000, accused no.1 had been to my house with deceased Shahana at around 3.30 p.m.. By leaving Shahana in my house, accused no.1 went away. Accused no.1 was standing outside my house. Accused no.1 has taken away deceased at 4.00 p.m. from my house. Now says after 5 to 7 minutes of stay of Shahana at my house, accused no.1 has taken away her. At about 7.00 p.m. I came to know about the incident. Thereafter my wife has admitted deceased to Sushrut hospital by taking her from M.G.M. hospital. On inquiry, deceased Shahana told me that she was having ill- treatment from accused nos. 1 to 3. She further told me that after leaving my house on 29.05.2000, accused no.1 has beaten her and therefore, she committed suicide."

In cross, omission is brought that accused nos. 2 and 3 were

taking doubt on the character of his daughter. That, accused no.1 had CriAppeal-289-2002

been to his house with Shahanabegum at about 3.30 p.m. on

29.05.2000. Rest is all denial.

14. On analyzing the evidence of parents, i.e. PW4 and PW5, they

both are found to be deposing about proper treatment for some time

after marriage, but there was said to be ill-treatment thereafter.

According to mother, all accused beat her daughter after doubting her

character. Whereas, according to father, only accused no.1 husband

beat her by doubting her character. Therefore, they are not consistent

on the point of beating due to suspicion of character. Thus, general

allegations are levelled against all in-laws. Regarding visit of deceased

on 29.05.2000, material omission is brought that on said date,

accused brought deceased to their house and she told that she was

beaten by husband that day. For said reasons, oral evidence of parents

is not consistent and also carries material omission regarding beating

on the day of episode of burns.

SECOND SET - DYING DECLARATIONS

15. On appreciating the dying declarations which are Exhibits 26,

35 and 39 respectively, the same are recorded by PW3 Sanjay -

Special Executive Magistrate and two Police Officials i.e. PW8 ASI CriAppeal-289-2002

Mundhe and PW9 PSI Dabhade, respectively. Before appreciating the

credibility and veracity of dying declarations, it would be fruitful to

give brief account of settled position on the point of manner of

appreciation of dying declaration, more particularly, when they are

plural in number.

16. Here, there are three dying declarations. Therefore, it can be

said that there are multiple dying declarations. In such contingency,

some judicial precedents need to be dealt and discussed here.

Very recently, the Hon'ble Apex Court in the case of Abhishek

Sharma v. State (Govt. of NCT of Delhi) reported in 2023 INSC 924,

while deciding Criminal Appeal No. 1473 of 2011, in para 8 discussed

its own previous rulings and observations therein which are borrowed

and reproduced as under :

"8.1 This Court in Kamla v. State of Punjab [ (1993) 1 SCC 1, AIR 1993 SC 374] has held:

"5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 Cri LJ 106] ). The ratio laid down in this case has been referred to CriAppeal-289-2002

in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

8.2. In State of Punjab v. Parveen Kumar [AIR 2005 SC 1277, 2005 (9) SCC 769], this court further observed:

"10. .... The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this court could have considered such corroborative evidence to test the truthfulness of the dying declarations..."

8.3. In Amol Singh v. State of M.P. [AIR OnLine 2008 SC 62, 2008 (5) SCC 468], CriAppeal-289-2002

"13. ... However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

8.4. Faced with multiple dying declarations, this Court in Lakhan v. State of M.P [2010 (8) SCC 514] observed-

"21. ... In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

This judgment was also referred to by this court recently in Makhan Singh v. State of Haryana (2022) SCC OnLine SC 1019 (2-Judge Bench).

CriAppeal-289-2002

8.5. In Ashabai v. State of Maharashtra [(2013) 2 SCC 224 (2- Judge Bench)] the court observed:-

"15. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other."

8.6. In Jagbir Singh v. State (NCT of Delhi), [2019 (8) SCC 779, AIR 2019 SC 4321] the following principles were observed:

31. A survey of the decisions would show that the principles of declarations can be culled out as follows: ....

31.6. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.

31.7. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying CriAppeal-289-2002

declaration is to be relied on unless it be shown that they are unreliable;

31.8. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier.

There may be more than two."

8.7. In Uttam v. State of Maharashtra, [(2022) 8 SCC 576 (2- Judge Bench)] this court observed:

"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of CriAppeal-289-2002

the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion."

In para 9, the principles that emerged on consideration of

above rulings, which is observed, is reproduced as under :

"9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;

9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.

CriAppeal-289-2002

9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

9.5 Each declaration must be scrutinized on its own merits.

The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc."

17. Having discussed above settled legal position, it would be

further desirable to even reproduce the translated version of dying

declarations at Exhibits 26, 35 and 39 in chronology. On careful

scrutiny, it is emerging that deceased Shahanabegum suffered burns

on the afternoon of 29.05.2000, but Exhibits 26 and 35 are shown to

be recorded on 30.05.2000. Admittedly, time of recording both is not CriAppeal-289-2002

reflected on either of dying declarations. Whereas, third dying

declaration Exhibit 39 is recorded on 31.05.2000.

Dying Declaration Exh. 26 Date: 30/5/2000

Statement

I, Shahanabegum W/o Mohmed Ezaz, age- 22 yrs., occupation-household, R/o Kiradpura, in front of Barkat grocery shop, Aurangabad.

Upon asking I do hereby state that, I got married five years ago with Mohmed Ejaz s/o Osman, R/o Kiradpura as per Muslim customs. I have two sons.

How the incident took place: - Yesterday on 29/05/2000 in the afternoon my husband quarreled with my by doubting my character. He abused me and beat me with slaps and fist blows. So, I went to the house of my sister-in-law Saliha and stayed in her house. Later, around 3 p.m., my husband brought me to our house and then he went out to the shop. My husband Mohmed Ejaz and my father-in-law Mohmed Osman used to harass me by raising doubts on my character. As I could not bear the harassment, so in the fit of the anger I poured kerosene on my person from the plastic canister and set myself ablaze at around quarter past three to half past three. At that time my mother-in-law Khalidabi and my sister-in-law Munnibi were present at home and my husband, father-in-law and CriAppeal-289-2002

brother-in-law had went out. While I was burning, my mother-in-law and sister-in-law did not extinguish the fire. As the burns were causing more pain, I poured water on my person and extinguished the fire. After some time, my husband Md. Ejaz came home, and he took me to the M.G.M hospital for the initial treatment and thereafter he admitted me in Sushrut Hospital. At present I am undergoing treatment at Sushrut Hospital.

Therefore, yesterday as I had quarreled with my husband, namely Mohmed Ejaz and he used to harass me by raising doubts on my character and beat me up. Therefore, I got angry and poured kerosene on my person and set myself ablaze. My husband and father-in-law used to harass me by raising doubts on my character.

Hence this statement. [ Left toe impression] sd/-

30.05.2000 Sanjay Kashinathrao Jaibahar [Special Executive Magistrate]

Dying Declaration Exhibit 35 Dt. 30.05.2000 Statement

Myself Shahana Begum w/o Mohmed Ejaz, r/at Kiradpura, Near Barkat Grocery Shop,Aurangabad.

I do hereby state in person that, I am residing at the CriAppeal-289-2002

above-mentioned place, my parents are residing at Roshan Gate. I am married 5 years ago to Mohmed Ejaz s/o Mohmed Osman from Kiradpura according to Muslim customs and have two children.

Yesterday on 29.05.2000 while at home in the afternoon, I had a quarrel with my husband. So, he abused, slapped and beat me with fist blow. So, I went and sat at the home of my sister in-law, namely Saliha. At around 3.00 O'clock my husband brought me to our house from my sister-in-law's house and he went outside to the shop. As my husband and father-in-law, Mohmed Osman used to harass me by raising doubts on my character and yesterday they quarreled with me and beat me up, so in the fit of the anger I poured kerosene on my person from the canister and set myself ablaze at around quarter past three to half past three. At that time my mother-in-law Khaledabi and my sister-in-law, Munnibi were present at home. They did not extinguish the fire. As the burns were causing more pain, I poured water on my person and extinguished the fire. After some time, my husband Mohmed Ejaz came home and at first, he took me to the M.G.M hospital for the initial treatment and thereafter he admitted me in Sushrut Hospital.

Therefore, yesterday I had quarreled with my husband namely Mohmed Ejaz s/o Mohmed Osman and he beat me up; similarly, as my husband Mohmed Ejaz and my father-in-law Mohmed Osman used to harass me by CriAppeal-289-2002

raising doubts on my character. Therefore, as I could not bear the harassment, I got angry and poured kerosene from the canister on my person and set myself ablaze. At present I am undergoing treatment at Sushrut Hospital, Aurangabad. Hence, you are requested to take action against my husband and father-in-law.

The above statement of mine is written as per my say and it is correct and true.

    Before me                                Statement by
    Sd/-                                     Sd/-
    ASI                                      Left Toe Impression.
    Jinsi, Police Station,Aurangabad



Dying Declaration Exhibit 39
                                           31/5/2000
                                           Sushrut Hospital A'bad.

                               Statement

I, Shahana Begum w/o Mohmed Ejaz, Age -22 years, Occupation- Household, R/o. Kiradpura, Near Barkat Grocery Shop, Aurangabad.

I do hereby state in person that, I am residing at the above-mentioned place. My parents reside at Roshan Gate. I got married before 5 years ago with Md. Ejaz s/o. Osman from Kiradpura as per Muslim customs. I have two children; one is 4 years old and the other is 2 1/2 years old.

CriAppeal-289-2002

The day before yesterday i.e. on 29/5/2020 in the afternoon while I was at home my quarrel took place with my husband namely Md. Ejaz. He abused me and beat me with slaps and fist blows. So, I went to the house of my sister-in-law Saliha, who lives next door, and stayed in her house. Around 3 p.m., my husband brought me from the house of my sister-in-law Saliha to our house and then he went to the shop. My husband, father-in-law, and elder sister-in-law Munnibi used to harass me by raising doubts on my character and abuse me in filthy language. As day before yesterday my husband quarreled with me and beat me up, I got angry and around three or quarter past three o'clock in the afternoon I poured kerosene from the canister on my person and set myself ablaze. At that time my mother-in-law Khalidabi and my elder sister-in-law Munnibi were present at home, and they did not extinguish the fire. As the burns were causing more pain, I poured water on my person and extinguished the fire. After some time, my husband Md. Ejaz came home, and he took me to the M.G.M hospital for the initial treatment and thereafter he admitted me in Sushrut Hospital.

Therefore, the day before yesterday as I had quarreled with my husband namely Mohmed Ejaz s/o Mohmed Osman and he beat me up; similarly, as my husband Mohmed Ejaz and my father-in-law Mohmed Osman, my elder sister-in-law Munnibi alias Surraya used to harass me by raising doubts on my character, beat me and abuse me. Therefore, I got angry and poured kerosene CriAppeal-289-2002

from the canister on my person and set myself ablaze. At present I am undergoing treatment at Sushrut Hospital, Aurangabad. Hence, you are requested to take action against my husband, father-in-law and elder sister-in-law.

My above statement is read over to me, and it is true and correct as per my narration.

Before.

Sd/ PSI, Dabhade, P.S. Jinsi 31.05.2000 [Translated by Senior Translator of this Establishment]

18. What is noticed from above dying declarations is that, firstly,

there is no prompt recording of dying declarations since afternoon of

29.05.2000 till noon time of 30.05.2000. As pointed out by learned

counsel for the appellant, on none of the three dying declarations

Exhibits 26, 35 and 39, time of its recording is reflected, and

surprisingly, on none of them there is certification of fitness of

Shahanabebum to give dying declaration. In the considered opinion of

this Court, it was crucial for the simple reason that she had suffered

over 92% burns and there was already delay in recording prompt

declaration. It is further surprising to note that PW3, who was at that

point of time, Special Executive Magistrate, was a tailor by

occupation. He claims that he received intimation from police at 4.00

to 4.30 p.m. on 29.05.2000 itself, but Exhibit 26 is recorded by him CriAppeal-289-2002

on next day and not on same day. In cross he has answered that when

he visited hospital, he learnt from police that patient was not in fit

condition to give statement and therefore he returned back. Police

were not at all competent to inform him regarding fitness of the lady

to give dying declaration. But it seems that believing police, he did

not record statement on 29.05.2000 itself. As pointed out, the lady

gave dying declaration in Urdu but this witness claims to have

translated it in Marathi. There is nothing to show that he was

conversant in Urdu so as to enable him to translate it in Marathi. As

stated above, he has admitted that he did not note the timing and

even did not take certification of doctor. Doctor PW7 has not stated

about visit of PW3 for recording any dying declaration as said doctor

only speaks about police approaching him. Such circumstances

compel this court to doubt the veracity of dying declaration.

19. As regards second dying declaration Exhibit 35 is concerned, it

is recorded by PW8 ASI Mundhe, who, in his evidence at Exhibit 33,

claims that after giving communication to Special Executive

Magistrate on 29.05.2000, he approached Sushrut Hospital. He claims

that the doctor on duty certified Shahanabegum to be fit to give

statement. Such certification is obtained on the carbon copy of

communication at Exhibit 34, but it carries date as 29.05.2000, CriAppeal-289-2002

however, dying declaration Exhibit 35 is surprisingly carrying date as

30.05.2000. Such material clearly suggest that documents are

prepared later on. Had PW8 issued letter to PW7 on 29.05.2000

which carries certification of doctor of same day, then, why dying

declaration was not recorded at that very time, is not explained by

prosecution or even this witness. Rather, he has identified statement

of deceased at Exhibit 35 which is apparently of 30.05.2000.

20. PW9 also has recorded 3rd dying declaration on 31.05.2000 and

the same is at Exhibit 39. PW9, in his evidence at Exhibit 37, deposed

about receiving case papers on 30.05.2000 but he appears to have

visited Sushrut Hospital, not on same day, rather on next day i.e. on

31.05.2000 and then recorded statement Exhibit 39. It is also

pertinent to note that certification is not on statement, rather on a

communication Exhibit 38 which is also a carbon copy of

communication to hospital authorities. Even time of recording dying

declaration Exhibit 39 is not reflected nor there is thumb impression

of deceased lady over it.

Above are the stark features emanating on meticulous

examination of Exhibits 26, 35 and 39. There is perfunctory or casual CriAppeal-289-2002

approach by investigating authorities in not recording dying

declaration promptly or with due care and caution.

21. On careful scrutiny of Exhibit 26, it is noticed that deceased

named husband alone for suspecting character and picking up quarrel

and beating her. In Exhibits 35 and 36, she merely informed that

there was quarrel between husband and wife, as such, reason stated

in Exhibit 26 about suspicion of character is not finding place in

Exhibits 35 and 39. It is also emerging from Exhibits 26, 35 and 39

that, after she was brought home back from his sister' place by

husband accused, he had left the house, as according to deceased, he

went to shop. Her such statement shows that husband was not

present around at the time of immolation. She categorically stated

that in rage of anger, she poured kerosene and incinerated herself.

22. Resultantly, on carefully analyzing and re-appreciating three

dying declarations, the distinct features which are emerging could be

summarized as, firstly, there is delay in recording dying declarations,

secondly, time of recording dying declaration is not appearing on any

of the dying declarations. Thirdly, none of the dying declarations

carry certification of doctor regarding fitness to give statement.

Exhibit 39 recorded by Investigating officer on 31.05.2000 also does CriAppeal-289-2002

not carry thumb impression. For such reasons, there is considerable

doubt about veracity and credibility of multiple dying declarations. In

view of deceased having suffered 92% burns, it is also doubtful

whether she was in capacity to give multiple dying declarations. On

this count, support can be taken of the judgment of Hon'ble Apex

Court in the case of Surinder Kumar v. State of Haryana (2011) 10

SCC 173.

23. There is conviction for offence under Section 306 of IPC. Before

attracting and applying said charge, it is bounden and statutory duty

of prosecution to establish that there was abetment, inducement,

instigation to commit suicide. Coupled with mens rea, positive role

must be shown to have been played by accused.

Law to the above extent is time and again dealt and discussed

in numerous judgments, including recent judgment of Kumar @ Shiva

Kumar v. State of Karnataka 2024 SCC OnLine SC 216, wherein, from

para 60 onwards, the Hon'ble Apex Court has discussed the legal

aspect of abetment to suicide, as to what amounts to abetment as

dealt under Section 107 of IPC and also, after discussing previous

legal pronouncements in M. Mohan v. State (2011) 3 SCC 626;

Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, Chitresh CriAppeal-289-2002

Kumar Chopra v. State (2009) 16 SCC 605; Amalendu Pal alias

Jhantu v. State of West Bengal (2010) 1 SCC 707; Rajesh v. State of

Haryana (2020)15 SCC 359 and State of West Bengal v. Orilal

Jaiswal (1994) 1 SCC 73, culled out a principle that in order to prove

guilt of accused for abetment to commit suicide, prosecution has to

prove :

(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

Referring to the case of Amalendu Pal (supra), it has been

observed in para 69 that :

69. ... this Court after referring to some of the previous decisions held that it has been the consistent view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the CriAppeal-289-2002

evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative to put an end to her life. It must be borne in mind that in a case of alleged abetment of suicide, there must be proof of direct or indirect act(s) of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the deceased to commit suicide, conviction in terms of Section 306 IPC would not be sustainable. Thereafter, this Court held as under:

13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."

24. To sum up, here it is emanating from oral evidence of parents

that husband suspected and doubted character of deceased and beat

her. But when such instances occurred, is not specified. There is

material omission regarding beating on the day of episode of burns.

As discussed in para 14, parents are not consistent on the point of

beating. Therefore, in the considered opinion of this Court, there is no CriAppeal-289-2002

convincing evidence on the point of subjecting deceased to mental

cruelty. Resultantly, he cannot be held guilty of commission of offence

under Section 498-A IPC. For above discussed reasons, as essential

ingredients for attracting Section 306 IPC are patently missing in the

prosecution evidence to hold him guilty for the same, he also deserves

to be acquitted from charge under Section 306 IPC.

25. In view of the above discussion, the following order is passed :

ORDER

I. The appeal is allowed.

II. The conviction awarded to the appellant-original accused no.1 by learned Additional Sessions Judge, Aurangabad in Sessions Case No. 253 of 2000 for offence under Sections 498-A and 306 of IPC on 16.05.2002 is hereby quashed and set aside.

III. The appellant stands acquitted of the offence punishable under Sections 498-A and 306 of IPC

IV. The bail bonds of the appellant stand cancelled.

V. Fine amount deposited, if any, be refunded to the appellant after the statutory period.

VI. It is clarified that there is no change as regards the order regarding disposal of muddemal.

CriAppeal-289-2002

VII. Fees of the counsel appointed to represent the appellant is quantified at Rs. 15,000/- [Rupees fifteen thousand only] to be paid by the High Court Legal Services Sub-Committee, Aurangabad.