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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 88 OF 2004.
Mohd. Farroque s/o Moh. Munshi,
aged about 44 years, Occupation
Teacher, R/o Firdos Colony, Hiverkhed
Road, Akot, District Akola, presently
at Central Prison, Amravati. ... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station, Akot, Akola. ... RESPONDENT
....
Shri A.M. Ghare, Advocate for the appellant.
Shri J.B. Jaiswal, Additional Public Prosecutor for the respondent.
....
CORAM : A.P. LAVANDE AND
PRASANNA B. VARALE, JJ.
DATE OF RESERVING JUDGMENT : 13TH NOVEMBER, 2009.
DATE OF PRONOUNCING JUDGMENT : 30TH NOVEMBER,2009
JUDGMENT : (Per Prasanna B. Varale, J.)
Being aggrieved by the judgment and order dated 30 th
January, 2004 passed by the First Ad hoc Additional Sessions
Judge, Akola in Sessions Trial No. 226 of 1998 convicting the
appellant for the offence punishable under Sections 498-A and
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302 of the Indian Penal Code and sentencing him to undergo RI
for one year and to pay fine of Rs. 500/-, in default of payment of
fine, to suffer further RI for two months and to undergo
imprisonment for life and to pay a fine of Rs.500/- and in default
of payment of fine to undergo RI for two months, respectively; the
appellant has preferred the present appeal.
2.
The case of the prosecution in brief is as under :-
The appellant/accused is charged for committing
murder of his wife Rukhsana Parveen. She was married to the
appellant/accused on 09.06.1991 and started cohabiting with the
appellant at Akot. Right from the first year of the marriage itself,
the appellant/accused started ill treating his wife on demand of
money. Though some amount i.e. Rs.20,000/- was given by the
brother of Rukhsana to the appellant/accused, he again started
asking for money. For the demand of money, the appellant/
accused was prosecuted for the charge of offence under Section
498-A of the Indian Penal Code and because of intervention of
elderly person, the matter was compromised between the parties.
An agreement to that effect was recorded. On the fateful day i.e.
on 19.05.1998, Rukhsana visited the house of her brother Syed
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Ejajali and requested her brother for payment of Rs.5,000/- as
directed by the appellant/accused. Rukhsana told her brother
that for the marriage of the daughter of sister of the
appellant/accused, the appellant asked her to get Rs.5,000/- from
her brother and as such she asked for the said amount from Syed
Ejajali. As Syed Ejajali was not having money, he was unable to
accede to the request of his sister. Rukhsana left the house of her
brother on the same day i.e. 19.05.1998 and returned to her
matrimonial house which is at a distance of 20 kms. from the
house of her brother. It is further the case of the prosecution that
in the intervening night of 19th and 20th May 1998, Rukhsana
Parveen was burnt. She was taken to Akola Hospital for treatment
as she had received 90 per cent of burn injuries. A requisition was
forwarded to Special Judicial Magistrate for recording the dying
declaration of Rukhsana and the Special Judicial Magistrate
further obtaining the certificate of fitness of Rukhsana from the
Medical Officer recorded the statement (dying declaration) of
Rukhsana which is at Exh.58 (1,3 and 4). In the said dying
declaration, Rukhsana stated that while igniting mosquito coil,
she was subjected to accidental fire. The Police Authorities of
Police Station Kotwali, Akola registered a crime as 0/98. The
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initial papers were then forwarded to Shri L.J. Shinde, PSI (PW-12)
who was attached to Police Station, Akot and Shri Shinde, on
receiving the papers, registered the offence vide Crime No.
125/1998 under Sections 307 and 498A of the Indian Penal Code.
The printed FIR was prepared. Shri Shinde took over the
investigation and proceeded with the investigation. The
information was immediately forwarded to the brother of
Rukhsana namely Syed Ejajali through Shri Nadeer Shah who
went on motor cycle to inform Syed Ejajali. On receiving the
information, Syed called one Shoiab Ali and along with him
proceeded to Akot Primary Health Center. On reaching Akot, an
information was received that the lady was shifted to Akola
Hospital for medical treatment and as such Syed immediately left
for Akola. Syed Ejajali reached Akola in the morning at 06:00 a.m.
on 20.05.1998. Syed Ejajali visited his sister Rukhsana and on
enquiry Rukhsana told him that her husband set her on fire and
he pressurised her to give dying declaration to the effect that she
was burnt by accidental fire while igniting mosquito coil. She
further informed Syed Ejajali that her husband further threatened
her that if she refused to give statement as per his will, he would
kill both children. She further told Syed Ejajali that on the ground
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that she failed to bring money, the appellant/accused beat her
and poured kerosene on her person and set her on fire. Syed
Ejajali made a request to police authorities by an application to
record the dying declaration of his sister. The second dying
declaration (Exh.37) was recorded by the Special Judicial
Magistrate, Akola on 20.05.1998 at about 8 o’ clock. In the said
dying declaration, Rukhsana stated that she was set on fire by her
husband on the ground of non payment of money. PW-12 Shri
Shinde, Investigating Officer took various steps of investigation
such as drawing of spot panchnama, recording the statements of
witnesses, collecting the other documentary evidence etc. Shri
Shinde had been to the Government Hospital, Akola and made a
request to Medical Officer to examine Rukhsana and to issue a
certificate that Rukhsana is in a position to make statement. On
receiving the fitness certificate, Shri Shinde then proceeded and
recorded the statement of Rukhsana Parveen which is the third
dying declaration (Exh.55). Rukhsana succumbed to the burn
injuries on 31.05.1998 while she was taking treatment in the
Government Hospital. After the death of Rukhsana, Shri Shinde
added offence under Section 302 of the Indian Penal Code and
after completing the investigation, submitted the charge sheet.
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Since the offence under Sections 307 and 302 of the Indian Penal
Code were exclusively triable by the Sessions Judge, the case was
committed to the Sessions Judge, Akola. The learned Judge, on
appreciation of the evidence, found that there was sufficient
evidence to hold the appellant/accused guilty of the offence
punishable under Sections 498-A and 302 of the Indian Penal
Code and accordingly convicted him to suffer RI for one year and
to pay fine of Rs. 500/-, in default of payment of fine, to suffer
further RI for two months and to undergo imprisonment for life
and to pay a fine of Rs.500/- and in default of payment of fine to
undergo RI for two months respectively.
3. Shri A.M. Ghare, the learned Counsel appearing on
behalf of the appellant/accused made a strong attack on the
prosecution evidence. He further submitted that except the so
called dying declarations, there is no evidence brought by the
prosecution against the appellant/accused. The learned Counsel
further submitted that the case of the prosecution rests only on
circumstantial evidence and in view of the settled law, the
prosecution has to prove the circumstances and the chain of the
circumstances strong enough to leave every hypothesis of the
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innocence of accused and on this touchstone if the prosecution
evidence is looked at, the prosecution has utterly failed and as
such submitted that the case requires interference at the hands of
this Court. Shri Ghare further submitted that there are three
dying declarations on record. The first Dying Declaration (Exh.
58) which was recorded by the Special Judicial Magistrate
immediately after the incident clearly establishes that death of
Rukhsana was accidental. He further submitted that the other
two dying declarations involving the accused cannot be
considered for more than one reasons. The learned Counsel
submitted that two dying declarations involving the
appellant/accused are under the pressure of PW-1 Syed Ejajali.
He further submitted that these two dying declarations cannot
stand in view of the judicial decisions also.
4. Per contra, Shri J.B. Jaiswal, the learned Additional
Public Prosecutor appearing on behalf of the respondent/State,
supported the judgment of the trial Court. Learned APP
submitted that there is cogent and reliable evidence. He
submitted that the first dying declaration (Exh.58) is under the
pressure of the appellant/accused and as it was disclosed to PW-1
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by the deceased that the threats were given by the accused that
the accused would kill the children of the deceased and as such
the first dying declaration (Exh.58) cannot be relied upon and
rightly kept out of consideration by the learned trial Court.
5. In view of the rival submissions made by the learned
Counsel appearing on behalf of the appellant and the learned APP
appearing on behalf of the respondent/State, we proceed to
consider the case at hand. It is true that the prosecution case
mainly relies on the dying declarations. From the perusal of
record, it is revealed that there are three written dying
declarations; whereas two oral dying declarations. The other part
of the evidence including certain documentary evidence with
which we shall deal at the later stage. The prosecution, to prove
Rukhsana Parveen died homicidal death, relied on the following
circumstances.
6. The Postmortem Report (Exh.47) which is proved
through PW-10 Dr. Abhijeet Vaidya. In so far as the Postmortem
Report is concerned, PW-10 Dr. Vaidya deposed that he found the
following injuries on the dead body of the deceased:
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(i) Burn injury to head, neck and fact 2%.
(ii) Right upper limb 5%
(iii) Left upper limb 5%
(iv) Anterior trank of 2%
(v) Posterior trank 14%
(vi) Perineum 1%
(vii) Right lower limb 18%
(viii)
Left lower limb 18%
He further deposed that as per his opinion, the cause of death was
due to 77% burn injuries. Though this witness was subjected to
cross examination by the defence, nothing tangible was brought
on record. In view of the medical evidence on record, we find no
difficulty to hold that deceased Rukhsana died on account of burn
injuries suffered by her.
7. The next important question for our consideration is
about the complicity of the accused. The prosecution mainly
relies on the dying declarations i.e. Exhs.37 and 55. Exh.37 is the
dying declaration which is proved by the prosecution through
PW-11 Special Judicial Magistrate Ramesh Sawarkar. PW-11, in
his deposition, stated that he received requisition from the police
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authorities on 20.05.1998 for regarding dying declaration of
Rukhsana. He further deposed that on receiving the requisition,
he proceeded to the General Hospital, Akola and made a request
to the Medical Officer who was present on duty at the relevant
time for giving the certificate of fitness of the patient for making
dying declaration. PW-11 further stated that in view to verify, he
asked 2-3 questions to the patient so as to test whether the patient
was capable of making statement. He further stated that he
recorded the statement of patient as per her say, read over the
same to the patient and the patient admitted the correctness. He
further deposed that he obtained the thumb impression of the
patient and also made endorsement. The prosecution has also
placed on record the requisition (Exh.49). The other dying
declaration is Exh.55 which is proved through PW-12 (L.J.
Shinde). PW-12 who was the Investigating Officer, deposed that
he had been to the Government Hospital, Akola in the course of
his investigation. PW-12 further deposed that he made a request
to the Medical Officer so as to issue the certificate about the
fitness of Rukhsana and after receiving the certificat6e from
Medical Officer, he recorded the statement of Rukhsana as per
her say. He further deposed that the statement was read over to
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Rukhsana and she admitted that the statement was written as per
her say. He obtained the thumb impression of Rukhsana and
made his endorsement.
8. The learned APP submitted that these are the two dying
declarations which are of utmost importance so as to put the
prosecution case about the complicity of the appellant/ accused.
He further submitted that both these dying declarations give a
clear cut picture that it is the appellant/accused who set the
deceased Rukhsana on fire as deceased Rukhsana was unable to
bring money from her parents as per the directions of the
accused/appellant. Learned APP further submitted that the dying
declarations were recorded by the Special Judicial Magistrate and
the Investigating Officer respectively. He further submitted that
both the officers are the independent witnesses and after
verifying the fitness of the patient the statements are recorded.
Learned APP further submitted that there is no variance in both of
these dying declarations and submitted that in view of these
dying declarations the complicity of the appellant/accused is
proved by the prosecution.
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9. Shri A.M. Ghare, the learned Counsel for the appellant,
per contra, heavily attacked these two dying declarations. He
submitted that though these dying declarations were recorded
soon after the incident, there is an inherent defect in these dying
declarations. The learned Counsel further submitted that in view
of the judgment of this Court, these dying declarations are not
sustainable in the eyes of law. Shri Ghare placed reliance on the
judgment of this Court in the case of Deorao Sonbaji Bhalerao
and another .v. State of Maharashtra (reported in 2008 All MR
(Cri) 1921) and one of us (Justice A.P. Lavande) is a party to the
said judgment. This Court, while considering the issue in detail,
held that :
“Section 273 of Criminal Procedure Code reads thus :
“Except as otherwise expressly provided, all
evidence taken in the course of the trial or otherproceeding shall be taken in the presence of the
accused, or, when his personal attendance is
dispensed with, in the presence of his pleader.”
A dying declaration recorded by a Magistrate is not
recorded in the presence of the accused. But Sec.32(1) of
the Evidence Act makes the same relevant and can be
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proved by evidence and sanctity given to it is embodied
in the maxim nemo moriturus praesumitur mentire, i.e. a
man will not meet his make with lie in his mouth. That is
why tests of oath and cross-examination are dispensed
with. But then relevancy in evidence and proof by
evidence are different things. Where accused is called
upon to defend a charge under Sec.302, I.P.C., the
burden of proof in the absence or presumption of law
never shifts onto him. It ever remains on the prosecution
which has to prove the charge beyond all reasonable
doubt. The said traditional legal concept remains
unchanged even now. In such a case, the accused can
wait till the prosecution evidence is over and then show
that the prosecution has not proved particular material
facts through its prosecution witnesses who failed to
describe the names and role of the accused in the offence
of murder as told by the dying man to such a witness or a
Magistrate who recorded the dying declaration. By
merely exhibiting the document of dying declaration its
contents and in particular the names of the offender/s
and the role played by them in committing the offence of
murder is not proved unless such witness or Magistrate
vouchsafes before the trial court as to whom did the
dying person named offenders. In Narbada Devi Gupta
Vs. Birendra Kumar – AIR 2004 SC 175 : [2004(5) ALL
MR (S.C.) 51], the apex court in paragraph 16 held thus :
“The legal position is not in dispute that mere
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production and marking of a document as exhibit by
the Court cannot be held to be a due proof of its
contents. Its execution has to be proved by
admissible evidence that is by the `evidence of those
persons who can vouchsafe for the truth of the facts
in issue’. The situation is, however, different where
the documents are produced, they are admitted by
the opposite party, signatures on them are also
admitted and they are marked thereafter as exhibits
by the Court.”
10. The learned Counsel for the appellant submitted that in
view of the judgment of this Court, both these dying declarations
cannot be relied upon and they will have to be kept out of
consideration. We find considerable merit in the submission of
Shri Ghare. In view of the decision of this Court in Deorao’s case
(cited supra), we are not in a position to place reliance on the two
dying declarations. The dying declaration (Exh.58) is the dying
declaration wherein Rukhsana gave the account of accidental fire
and she has submitted that nobody is responsible for the said
incident. The learned Counsel further submitted that in view of
this dying declaration which is recorded immediately after the
incident, there is no material against the appellant on record to
connect with the crime. We are not in agreement with the
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submission of Shri Ghare in view of the testimony of PW-1 Syed
Ejajali and PW-2 Rehana Parveen . PW-1 Syed Ejajali deposed
that since the marriage of his sister with the appellant in the year
1991, the appellant was ill treating his sister and was asking for
money. He has deposed that he paid an amount of Rs.20,000/- to
the appellant and thereafter the appellant maintained his sister
properly for some period. Syed Ejajali further deposed that the
appellant/accused again started ill treating his sister on the count
of demand of money. He further deposed that because of beating
and demand of money, the appellant was prosecuted for the
charge under Section 498 of the Indian Penal Code. He further
deposed that in view of the intervention of some elderly person
such as Firoz Ali Asif Ali, the matter was compromised and an
agreement to that effect was recorded. The agreement is placed
on record. Perusal of the agreement shows that the appellant
assured in the said agreement that the matter is compromised
between Rukhsana and the appellant. It was further assured by
the appellant that he would not beat or harass Rukhsana in future
and also he would not demand anything from her. Syed Ejajali
further deposed that in view of the compromise, his sister started
residing with the appellant but there was no change in the
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approach of the appellant. He further deposed that on 19.05.1998
Rukhsana visited him and requested for Rs.5,000/- as directed by
the appellant but as he was not having the amount he was unable
to give amount and Rukhsana returned back to her matrimonial
home. He further deposed that on the very day, at the late hours
i.e. 03:00 a.m., he received phone about burning of his sister and
he immediately rushed to Akola Hospital. He further deposed
that on his visit, Rukhsana told him that a declaration is made by
her on the pressure of her husband. She further told to Syed
Ejajali that her husband (appellant) told her to give a statement
that she was burnt by accidental fire while igniting mosquito coil
and if she did not state as per his wishes, he would kill her kids.
Rukhsana further told to Syed Ejajali that she was beaten by the
appellant on the ground of non payment of amount and
thereafter she was set on fire by pouring kerosene. Though Syed
Ejajali was put to searching cross-examination, he was not shaken
at all. The version of Syed Ejajali in clear terms discloses that the
first dying declaration of Rukhsana was under the pressure and
threat of the appellant/accused. This dying declaration has not
been accepted by the learned trial Court and the learned trial
Court has rightly held that the dying declaration which is given
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under threat and pressure of the appellant is not sustainable in
the eyes of law. To connect the appellant/accused with the crime
in question, in our opinion, the oral dying declaration made by
the deceased Rukhsana to her brother PW-1 Syed Ejajali is a very
important piece of evidence. The oral dying declaration made to
PW-1 Sayed Ejajali is immediate disclosure which in no uncertain
terms discloses the motive behind the act i.e. the non payment of
the amount and the act of the accused i.e. setting Rukhsana on
fire. This oral dying declaration to Syed Ejajali is supported by the
other dying declaration made to PW-2 Rehana Parveen, sister of
deceased. Rehana, in her substantive evidence deposed that
when she had been to hospital on receiving a phone call from her
brother about Rukhsana being admitted to the hospital, she
attended her sister Rukhsana and had a talk with her. She further
deposed that Rukhsana told her that she was set on fire on the
ground of non payment of money. The omissions which were
tried to be brought on record by the defence are minor one and
they do not affect the credibility of these witnesses and as such
there is no reason to disbelieve the versions of these witnesses.
PW-1 Syed Ejajali and PW-2 Rehana Parveen are the reliable
witnesses. In addition to the oral testimony of these witnesses,
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the other material circumstance is the spot panchnama (Exh.30).
Spot Panchnama (Exh.30) is proved by prosecution through PW-4
Ajay Dhande and the Investigating Officer L.J. Shinde. PW-4
makes a mention about the kerosene lamp, broken bqangle
pieces, a kerosene can and stand of mosquito coil along with coil
and match box on the spot of incident. PW-12 Lalit Shinde
deposed that there was a smell of kerosene on the earth of the
spot of incident. In our opinion, this is also one of the
circumstances which advances the case of the prosecution.
11. Perusal of the statement of the appellant/accused
under Section 313 of the Code of Criminal Procedure discloses
that though the appellant/accused took the defence of the death
of Rukhsana as an accidental death, however, the presence of
appellant/acccused is not disputed. The presence of the
appellant/accused on the spot of incident at the relevant time is
also spelt out through PW-5 Sk. Gaffar and PW-6 Sk. Nadil. The
omissions in respect of these witnesses are not on the material
aspects and they are minor omissions.
12. Taking overall view of the evidence putforth by the
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prosecution, in our considered opinion, the prosecution has
successfully proved the offence under Section 302 of the Indian
Penal Code against the appellant/accused. Insofar as the offence
under Section 498-A of the Indian Penal Code is concerned,
reliance has been placed by the prosecution upon the oral
testimonies of PW-1 Syed Ejajali, PW-2 Rehana Parveen, sister of
deceased and the documentary evidence in the form of the
agreement as well as one letter which was written to PW-1 Syed
Ejajali by her sister deceased Rukhsana, which is placed on record
by the prosecution at Exh.25 clearly proves. In the said letter,
Rukhsana informed her brother in regard to the demand of the
appellant/accused and the reply given by Rukhsana that as the
house was constructed by her relatives they were not in a position
to give the money. She further informed her brother that she
asked her husband to sell her ear rings. In view of the evidence
mentioned above, in our opinion, the prosecution has
successfully proved the charge under Section 498 of the Indian
Penal Code against the appellant/accused.
13. Taking overall view of the evidence, in our opinion,
there is no reason for us to interfere with the judgment and order
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passed by the learned trial Court. The appeal lacks merit and is
accordingly dismissed.
JUDGE JUDGE
*rrg.
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