{"id":97829,"date":"2009-11-30T00:00:00","date_gmt":"2009-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/road-vs-state-of-maharashtra-on-30-november-2009"},"modified":"2018-05-16T21:09:50","modified_gmt":"2018-05-16T15:39:50","slug":"road-vs-state-of-maharashtra-on-30-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/road-vs-state-of-maharashtra-on-30-november-2009","title":{"rendered":"Road vs State Of Maharashtra on 30 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Road vs State Of Maharashtra on 30 November, 2009<\/div>\n
Bench: A. P. Lavande, Prasanna B. Varale<\/div>\n
                                                  1\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n\n\n\n\n                                                                                  \n                      NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                          \n                        CRIMINAL APPEAL NO. 88 OF 2004.\n\n    Mohd. Farroque s\/o Moh. Munshi,\n    aged about 44 years, Occupation\n    Teacher, R\/o Firdos Colony, Hiverkhed\n\n\n\n\n                                                         \n    Road, Akot, District Akola, presently\n    at Central Prison, Amravati.            ... APPELLANT\n\n                                            VERSUS\n\n\n\n\n                                           \n    State of Maharashtra, \n    through Police Station Officer,\n    Police Station, Akot, Akola.                           ... RESPONDENT\n                         \n                                     ....\n    Shri A.M. Ghare, Advocate for the appellant.\n    Shri J.B. Jaiswal, Additional Public Prosecutor for the respondent.\n                                     ....\n      \n\n\n                                                     CORAM : A.P. LAVANDE AND\n   \n\n\n\n                                                                 PRASANNA B. VARALE, JJ.\n<\/pre>\n
    DATE OF RESERVING JUDGMENT  : 13TH NOVEMBER, 2009.\n<\/p>\n
    DATE OF PRONOUNCING JUDGMENT : 30TH NOVEMBER,2009<\/p>\n
    JUDGMENT : (Per Prasanna B. Varale, J.)<\/p>\n
                 Being aggrieved by the judgment and order dated 30 th <\/p>\n
    January,   2004   passed   by   the   First   Ad   hoc   Additional   Sessions <\/p>\n
    Judge,   Akola   in   Sessions   Trial   No.   226   of   1998   convicting   the <\/p>\n
    appellant   for  the  offence  punishable  under   Sections  498-A  and <\/p>\n
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\n                                            2<\/span><\/p>\n
    302 of the Indian Penal Code and sentencing him to undergo RI <\/p>\n
    for one year and to pay fine of Rs. 500\/-, in default of payment of <\/p>\n
    fine,   to   suffer   further   RI   for   two   months   and   to   undergo <\/p>\n
    imprisonment for life and to pay a fine of Rs.500\/- and in default <\/p>\n
    of payment of fine to undergo RI for two months, respectively; the <\/p>\n
    appellant has preferred the present appeal.\n<\/p>\n
    2.<\/p>\n
               The case of the prosecution in brief is as under :-\n<\/p>\n
               The   appellant\/accused   is   charged   for   committing <\/p>\n
    murder of his wife Rukhsana Parveen.   She was married  to the <\/p>\n
    appellant\/accused on 09.06.1991 and started cohabiting with the <\/p>\n
    appellant at Akot.  Right from the first year of the marriage itself, <\/p>\n
    the appellant\/accused started ill treating his wife on demand of <\/p>\n
    money.   Though some amount i.e. Rs.20,000\/- was given by the <\/p>\n
    brother of Rukhsana to the appellant\/accused, he again started <\/p>\n
    asking   for   money.     For   the   demand   of   money,   the   appellant\/ <\/p>\n
    accused was prosecuted for the charge of offence under Section <\/p>\n
    498-A of the  Indian Penal Code and because of intervention  of <\/p>\n
    elderly person, the matter was compromised between the parties.\n<\/p>\n
    An agreement to that effect was recorded.  On the fateful day i.e. <\/p>\n
    on   19.05.1998,   Rukhsana   visited   the   house   of   her   brother   Syed <\/p>\n
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\n                                              3<\/span><\/p>\n
    Ejajali   and   requested   her   brother   for   payment   of   Rs.5,000\/-   as <\/p>\n
    directed   by   the   appellant\/accused.     Rukhsana   told   her   brother <\/p>\n
    that   for   the   marriage   of   the   daughter   of   sister   of   the <\/p>\n
    appellant\/accused, the appellant asked her to get Rs.5,000\/- from <\/p>\n
    her brother and as such she asked for the said amount from Syed <\/p>\n
    Ejajali.   As Syed Ejajali was not having money, he was unable to <\/p>\n
    accede to the request of his sister.  Rukhsana left the house of her <\/p>\n
    brother   on   the   same   day   i.e.   19.05.1998   and   returned   to   her <\/p>\n
    matrimonial   house   which   is   at   a   distance   of   20   kms.   from   the <\/p>\n
    house of her brother.  It is further the case of the prosecution that <\/p>\n
    in   the   intervening   night   of   19th  and   20th  May   1998,   Rukhsana <\/p>\n
    Parveen was burnt.  She was taken to Akola Hospital for treatment <\/p>\n
    as she had received 90 per cent of burn injuries.  A requisition was <\/p>\n
    forwarded to Special Judicial Magistrate for recording the dying <\/p>\n
    declaration   of   Rukhsana   and   the   Special   Judicial   Magistrate <\/p>\n
    further obtaining the certificate of fitness of Rukhsana from the <\/p>\n
    Medical   Officer   recorded   the   statement   (dying   declaration)   of <\/p>\n
    Rukhsana   which   is   at   Exh.58   (1,3   and   4).     In   the   said   dying <\/p>\n
    declaration,   Rukhsana   stated   that   while   igniting   mosquito   coil, <\/p>\n
    she   was   subjected   to   accidental   fire.     The   Police   Authorities   of <\/p>\n
    Police   Station   Kotwali,   Akola   registered   a   crime   as   0\/98.     The <\/p>\n
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\n                                              4<\/span><\/p>\n
    initial papers were then forwarded to Shri L.J. Shinde, PSI (PW-12) <\/p>\n
    who   was   attached   to   Police   Station,   Akot   and   Shri   Shinde,   on <\/p>\n
    receiving   the   papers,   registered   the   offence   vide   Crime   No. <\/p>\n
    125\/1998 under Sections 307 and 498A of the Indian Penal Code.\n<\/p>\n
    The   printed   FIR   was   prepared.     Shri   Shinde   took   over   the <\/p>\n
    investigation   and   proceeded   with   the   investigation.     The <\/p>\n
    information   was   immediately   forwarded   to   the   brother   of <\/p>\n
    Rukhsana   namely   Syed   Ejajali   through   Shri   Nadeer   Shah   who <\/p>\n
    went   on   motor   cycle   to   inform   Syed   Ejajali.     On   receiving   the <\/p>\n
    information,   Syed   called   one   Shoiab   Ali   and   along   with   him <\/p>\n
    proceeded to Akot Primary Health Center.  On reaching Akot, an <\/p>\n
    information   was   received   that   the   lady   was   shifted   to   Akola <\/p>\n
    Hospital for medical treatment and as such Syed immediately left <\/p>\n
    for Akola.  Syed Ejajali reached Akola in the morning at 06:00 a.m. <\/p>\n
    on   20.05.1998.     Syed   Ejajali   visited   his   sister   Rukhsana   and   on <\/p>\n
    enquiry Rukhsana told him that her husband set her on fire and <\/p>\n
    he pressurised her to give dying declaration to the effect that she <\/p>\n
    was   burnt   by   accidental   fire   while  igniting   mosquito   coil.     She <\/p>\n
    further informed Syed Ejajali that her husband further threatened <\/p>\n
    her that if she refused to give statement as per his will, he would <\/p>\n
    kill both children.  She further told Syed Ejajali that on the ground <\/p>\n
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\n                                              5<\/span><\/p>\n
    that  she  failed  to  bring  money, the  appellant\/accused  beat  her <\/p>\n
    and   poured   kerosene   on   her   person   and   set   her   on   fire.     Syed <\/p>\n
    Ejajali made a request to police authorities by an application to <\/p>\n
    record   the   dying   declaration   of   his   sister.     The   second   dying <\/p>\n
    declaration   (Exh.37)   was   recorded   by   the   Special   Judicial <\/p>\n
    Magistrate, Akola on 20.05.1998 at about 8 o’ clock.   In the said <\/p>\n
    dying declaration, Rukhsana stated that she was set on fire by her <\/p>\n
    husband on the ground of non payment of money.   PW-12 Shri <\/p>\n
    Shinde, Investigating  Officer  took  various  steps  of  investigation <\/p>\n
    such as drawing of spot panchnama, recording the statements of <\/p>\n
    witnesses, collecting  the other documentary  evidence etc.   Shri <\/p>\n
    Shinde had been to the Government Hospital, Akola and made a <\/p>\n
    request to Medical Officer to examine Rukhsana and to issue a <\/p>\n
    certificate that Rukhsana is in a position to make statement.  On <\/p>\n
    receiving the fitness certificate, Shri Shinde then proceeded and <\/p>\n
    recorded the statement of Rukhsana Parveen which is the third <\/p>\n
    dying   declaration   (Exh.55).     Rukhsana   succumbed   to   the   burn <\/p>\n
    injuries   on   31.05.1998   while   she   was   taking   treatment   in   the <\/p>\n
    Government Hospital.   After the death of Rukhsana, Shri Shinde <\/p>\n
    added offence under Section 302 of the Indian Penal Code and <\/p>\n
    after   completing   the   investigation,   submitted   the   charge   sheet.\n<\/p>\n
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\n                                             6<\/span><\/p>\n
    Since the offence under Sections 307 and 302 of the Indian Penal <\/p>\n
    Code were exclusively triable by the Sessions Judge, the case was <\/p>\n
    committed to the Sessions Judge, Akola.   The learned Judge, on <\/p>\n
    appreciation   of   the   evidence,   found   that   there   was   sufficient <\/p>\n
    evidence   to   hold   the   appellant\/accused   guilty   of   the   offence <\/p>\n
    punishable   under   Sections   498-A   and   302   of   the   Indian   Penal <\/p>\n
    Code and accordingly convicted him to suffer  RI for one year and <\/p>\n
    to pay fine of Rs. 500\/-, in default of payment of fine, to suffer <\/p>\n
    further RI for two months  and to undergo imprisonment for life <\/p>\n
    and to pay a fine of Rs.500\/- and in default of payment of fine to <\/p>\n
    undergo RI for two months respectively.\n<\/p>\n
    3.          Shri   A.M.   Ghare,   the   learned   Counsel   appearing   on <\/p>\n
    behalf   of   the   appellant\/accused   made   a   strong   attack   on   the <\/p>\n
    prosecution  evidence.   He further submitted  that except the so <\/p>\n
    called   dying   declarations,   there   is   no   evidence   brought   by   the <\/p>\n
    prosecution against the appellant\/accused.  The learned Counsel <\/p>\n
    further submitted that the case of the prosecution rests only on <\/p>\n
    circumstantial   evidence   and   in   view   of   the   settled   law,   the <\/p>\n
    prosecution has to prove the circumstances and the chain of the <\/p>\n
    circumstances   strong   enough   to   leave   every   hypothesis   of   the <\/p>\n
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\n                                             7<\/span><\/p>\n
    innocence of accused and on this touchstone if the prosecution <\/p>\n
    evidence  is looked  at, the prosecution  has utterly  failed and as <\/p>\n
    such submitted that the case requires interference at the hands of <\/p>\n
    this   Court.     Shri   Ghare   further   submitted   that   there   are   three <\/p>\n
    dying declarations on record.   The first Dying Declaration (Exh.\n<\/p>\n
    58)   which   was   recorded   by   the   Special   Judicial   Magistrate <\/p>\n
    immediately   after   the   incident   clearly   establishes   that   death   of <\/p>\n
    Rukhsana  was   accidental.     He further   submitted  that   the  other <\/p>\n
    two   dying   declarations   involving   the   accused   cannot   be <\/p>\n
    considered   for   more   than   one   reasons.     The   learned   Counsel <\/p>\n
    submitted   that   two   dying   declarations   involving   the <\/p>\n
    appellant\/accused  are under the pressure of PW-1 Syed Ejajali.\n<\/p>\n
    He   further   submitted   that   these   two   dying   declarations   cannot <\/p>\n
    stand in view of the judicial decisions also.\n<\/p>\n
    4.          Per   contra,   Shri   J.B.   Jaiswal,   the   learned   Additional <\/p>\n
    Public Prosecutor appearing on behalf of the respondent\/State, <\/p>\n
    supported   the   judgment   of   the   trial   Court.     Learned   APP <\/p>\n
    submitted   that   there   is   cogent   and   reliable   evidence.     He <\/p>\n
    submitted  that  the first dying  declaration  (Exh.58)  is under the <\/p>\n
    pressure of the appellant\/accused and as it was disclosed to PW-1 <\/p>\n
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\n                                             8<\/span><\/p>\n
    by the deceased that the threats were given by the accused that <\/p>\n
    the accused would kill the children of the deceased and as such <\/p>\n
    the   first   dying   declaration   (Exh.58)   cannot   be   relied   upon   and <\/p>\n
    rightly kept out of consideration by the learned trial Court.\n<\/p>\n
    5.          In view of  the rival submissions made  by the learned <\/p>\n
    Counsel appearing on behalf of the appellant and the learned APP <\/p>\n
    appearing   on   behalf   of   the   respondent\/State,   we   proceed   to <\/p>\n
    consider the  case  at  hand.   It is true that  the prosecution  case <\/p>\n
    mainly   relies   on   the   dying   declarations.     From   the   perusal   of <\/p>\n
    record,   it   is   revealed   that   there   are   three   written   dying <\/p>\n
    declarations; whereas two oral dying declarations.  The other part <\/p>\n
    of   the   evidence   including   certain   documentary   evidence   with <\/p>\n
    which we shall deal at the later stage.  The prosecution, to prove <\/p>\n
    Rukhsana Parveen died homicidal death, relied on the following <\/p>\n
    circumstances.\n<\/p>\n
    6.          The   Postmortem   Report   (Exh.47)   which   is   proved <\/p>\n
    through PW-10 Dr. Abhijeet Vaidya.  In so far as the Postmortem <\/p>\n
    Report is concerned, PW-10 Dr. Vaidya deposed that he found the <\/p>\n
    following injuries on the dead body of the deceased:\n<\/p>\n
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\n                                           9<\/span><\/p>\n
    (i)        Burn injury to head, neck and fact               2%.\n\n\n\n\n                                                                         \n    (ii)       Right upper limb                                 5%\n\n\n\n\n                                                 \n    (iii)      Left upper limb                                  5%\n\n    (iv)       Anterior trank of                                2%\n\n\n\n\n                                                \n    (v)        Posterior trank                                  14%\n\n    (vi)       Perineum                                         1%\n\n\n\n\n                                     \n    (vii)      Right lower limb                                 18%\n\n    (viii)\n                      \n               Left lower limb                                  18%\n\n<\/pre>\n
    He further deposed that as per his opinion, the cause of death was <\/p>\n
    due to 77% burn injuries.   Though this witness was subjected to <\/p>\n
    cross examination by the defence, nothing tangible was brought <\/p>\n
    on record.  In view of the medical evidence on record, we find no <\/p>\n
    difficulty to hold that deceased Rukhsana died on account of burn <\/p>\n
    injuries suffered by her.\n<\/p>\n
    7.         The   next   important   question   for   our   consideration   is <\/p>\n
    about   the   complicity   of   the   accused.     The   prosecution   mainly <\/p>\n
    relies on the dying declarations i.e. Exhs.37 and 55.  Exh.37 is the <\/p>\n
    dying   declaration   which   is   proved   by   the   prosecution   through <\/p>\n
    PW-11 Special Judicial Magistrate Ramesh Sawarkar.   PW-11, in <\/p>\n
    his deposition, stated that he received requisition from the police <\/p>\n
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\n                                               10<\/span><\/p>\n
    authorities   on   20.05.1998   for   regarding   dying   declaration   of <\/p>\n
    Rukhsana.  He further deposed that on receiving the requisition, <\/p>\n
    he proceeded to the General Hospital, Akola and made a request <\/p>\n
    to the Medical Officer who was present on duty at the relevant <\/p>\n
    time for giving the certificate of fitness of the patient for making <\/p>\n
    dying declaration.  PW-11 further stated that in view to verify, he <\/p>\n
    asked 2-3 questions to the patient so as to test whether the patient <\/p>\n
    was   capable   of   making   statement.     He   further   stated   that   he <\/p>\n
    recorded the statement of patient as per her say, read over the <\/p>\n
    same to the patient and the patient admitted the correctness.  He <\/p>\n
    further   deposed   that  he  obtained  the  thumb  impression  of  the <\/p>\n
    patient and also made endorsement.   The prosecution has also <\/p>\n
    placed   on   record   the   requisition   (Exh.49).     The   other   dying <\/p>\n
    declaration   is   Exh.55   which   is   proved   through   PW-12   (L.J.\n<\/p>\n
    Shinde).   PW-12 who was the Investigating Officer, deposed that <\/p>\n
    he had been to the Government Hospital, Akola in the course of <\/p>\n
    his investigation.  PW-12 further deposed that he made a request <\/p>\n
    to   the   Medical   Officer   so   as   to   issue   the   certificate   about   the <\/p>\n
    fitness   of   Rukhsana   and   after   receiving   the   certificat6e   from <\/p>\n
    Medical  Officer,  he recorded  the statement  of Rukhsana as per <\/p>\n
    her say.  He further deposed that the statement was read over to <\/p>\n
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\n                                             11<\/span><\/p>\n
    Rukhsana and she admitted that the statement was written as per <\/p>\n
    her   say.     He   obtained   the   thumb   impression   of   Rukhsana   and <\/p>\n
    made his endorsement.\n<\/p>\n
    8.          The learned APP submitted that these are the two dying <\/p>\n
    declarations   which   are   of   utmost   importance   so   as   to   put   the <\/p>\n
    prosecution case about the complicity of the appellant\/ accused.\n<\/p>\n
    He   further  submitted  that   both  these   dying  declarations  give  a <\/p>\n
    clear   cut   picture   that   it   is   the   appellant\/accused   who   set   the <\/p>\n
    deceased Rukhsana on fire as deceased Rukhsana was unable to <\/p>\n
    bring   money   from   her   parents   as   per   the   directions   of   the <\/p>\n
    accused\/appellant.  Learned APP further submitted that the dying <\/p>\n
    declarations were recorded by the Special Judicial Magistrate and <\/p>\n
    the Investigating Officer respectively.   He further submitted that <\/p>\n
    both   the   officers   are   the   independent   witnesses   and   after <\/p>\n
    verifying the fitness of the patient the statements are recorded.\n<\/p>\n
    Learned APP further submitted that there is no variance in both of <\/p>\n
    these   dying   declarations   and   submitted   that   in   view   of   these <\/p>\n
    dying   declarations   the   complicity   of   the   appellant\/accused   is <\/p>\n
    proved by the prosecution.\n<\/p>\n
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\n                                             12<\/span><\/p>\n
    9.         Shri A.M. Ghare, the learned Counsel for the appellant, <\/p>\n
    per   contra,   heavily   attacked   these   two   dying   declarations.     He <\/p>\n
    submitted   that   though   these   dying   declarations   were   recorded <\/p>\n
    soon after the incident, there is an inherent defect in these dying <\/p>\n
    declarations.  The learned Counsel further submitted that in view <\/p>\n
    of the judgment of this Court, these dying declarations are not <\/p>\n
    sustainable in the eyes of law.  Shri Ghare placed reliance on the <\/p>\n
    judgment of this Court in the case of  Deorao Sonbaji Bhalerao <\/p>\n
    and another .v. State of Maharashtra (reported in 2008 All MR <\/p>\n
    (Cri) 1921)  and one of us (Justice A.P. Lavande) is a party to the <\/p>\n
    said judgment.  This Court, while considering the issue in detail, <\/p>\n
    held that :\n<\/p>\n
          “Section 273 of Criminal Procedure Code reads thus :\n<\/p><\/blockquote>\n
             “Except   as   otherwise   expressly   provided,   all
\n             evidence   taken   in   the   course   of   the   trial   or   other <\/p>\n
             proceeding   shall   be   taken   in   the   presence   of   the
\n             accused,   or,   when   his   personal   attendance   is
\n             dispensed with, in the presence of his pleader.”<\/p><\/blockquote>\n
          A   dying   declaration   recorded   by   a   Magistrate   is   not
\n          recorded in the presence of the accused.  But Sec.32(1) of
\n          the   Evidence   Act   makes   the   same   relevant   and   can   be <\/p>\n
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\n                                       13<\/span><\/p>\n
     proved by evidence and sanctity given to it is embodied <\/p>\n
     in the maxim nemo moriturus praesumitur mentire, i.e. a
\n     man will not meet his make with lie in his mouth.  That is <\/p>\n
     why tests of oath and cross-examination  are dispensed
\n     with.     But   then   relevancy   in   evidence   and   proof   by <\/p>\n
     evidence   are   different   things.    Where   accused   is  called
\n     upon   to   defend   a   charge   under   Sec.302,   I.P.C.,   the
\n     burden  of   proof   in  the   absence   or  presumption   of  law <\/p>\n
     never shifts onto him.  It ever remains on the prosecution <\/p>\n
     which   has   to   prove   the   charge   beyond   all   reasonable
\n     doubt.     The   said   traditional   legal   concept   remains <\/p>\n
     unchanged even now.   In such a case, the accused can
\n     wait till the prosecution evidence is over and then show
\n     that the prosecution has not proved particular material <\/p>\n
     facts   through   its   prosecution   witnesses   who   failed   to <\/p>\n
     describe the names and role of the accused in the offence
\n     of murder as told by the dying man to such a witness or a
\n     Magistrate  who   recorded   the   dying   declaration.    By <\/p>\n
     merely exhibiting the document of dying declaration its
\n     contents   and in particular the names  of the offender\/s
\n     and the role played by them in committing the offence of <\/p>\n
     murder is not proved unless such witness or Magistrate
\n     vouchsafes   before   the   trial   court   as   to   whom   did   the
\n     dying person named offenders.  In  Narbada Devi Gupta
\n     Vs. Birendra Kumar – AIR 2004 SC 175 : [2004(5) ALL
\n     MR (S.C.) 51], the apex court in paragraph 16 held thus :\n<\/p>\n
        “The   legal   position   is   not   in   dispute   that   mere <\/p>\n
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\n                                             14<\/span><\/p>\n
              production and marking of a document as exhibit by <\/p>\n
              the  Court   cannot   be held   to  be  a  due  proof  of   its
\n              contents.     Its   execution   has   to   be   proved   by <\/p>\n
              admissible evidence that is by the `evidence of those
\n              persons who can vouchsafe for the truth of the facts <\/p>\n
              in issue’.  The situation is, however, different where
\n              the documents are produced, they are admitted by
\n              the   opposite   party,   signatures   on   them   are   also <\/p>\n
              admitted and they are marked thereafter as exhibits <\/p>\n
              by the Court.”\n<\/p>\n
    10.         The learned Counsel for the appellant submitted that in <\/p>\n
    view of the judgment of this Court, both these dying declarations <\/p>\n
    cannot   be   relied   upon   and   they   will   have   to   be   kept   out   of <\/p>\n
    consideration.   We find considerable merit in the submission of <\/p>\n
    Shri Ghare.  In view of the decision of this Court in Deorao’s case <\/p>\n
    (cited supra), we are not in a position to place reliance on the two <\/p>\n
    dying declarations.   The dying declaration (Exh.58) is the dying <\/p>\n
    declaration wherein Rukhsana gave the account of accidental fire <\/p>\n
    and   she   has   submitted   that   nobody   is   responsible   for   the   said <\/p>\n
    incident.   The learned Counsel further submitted that in view of <\/p>\n
    this   dying   declaration   which   is   recorded   immediately   after   the <\/p>\n
    incident, there is no material against the appellant on record to <\/p>\n
    connect   with   the   crime.     We   are   not   in   agreement   with   the <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                            15<\/span><\/p>\n
    submission of Shri Ghare in view of the testimony of PW-1 Syed <\/p>\n
    Ejajali   and   PW-2   Rehana   Parveen   .    PW-1   Syed   Ejajali   deposed <\/p>\n
    that since the marriage of his sister with the appellant in the year <\/p>\n
    1991, the appellant was ill treating his sister and was asking for <\/p>\n
    money.  He has deposed that he paid an amount of Rs.20,000\/- to <\/p>\n
    the appellant and thereafter the appellant maintained his sister <\/p>\n
    properly for some period.   Syed Ejajali further deposed that the <\/p>\n
    appellant\/accused again started ill treating his sister on the count <\/p>\n
    of demand of money.  He further deposed that because of beating <\/p>\n
    and   demand   of   money,   the   appellant   was   prosecuted   for   the <\/p>\n
    charge under Section 498 of the Indian Penal Code.   He further <\/p>\n
    deposed that in view of the intervention of some elderly person <\/p>\n
    such  as   Firoz  Ali   Asif  Ali, the  matter  was  compromised  and   an <\/p>\n
    agreement to that effect was recorded.   The agreement is placed <\/p>\n
    on   record.     Perusal   of   the   agreement   shows   that   the   appellant <\/p>\n
    assured   in   the   said   agreement   that   the   matter   is   compromised <\/p>\n
    between Rukhsana and the appellant.   It was further assured by <\/p>\n
    the appellant that he would not beat or harass Rukhsana in future <\/p>\n
    and also he would not demand anything from her.   Syed Ejajali <\/p>\n
    further deposed that in view of the compromise, his sister started <\/p>\n
    residing   with   the   appellant   but   there   was   no   change   in   the <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                              16<\/span><\/p>\n
    approach of the appellant.  He further deposed that on 19.05.1998 <\/p>\n
    Rukhsana visited him and requested for Rs.5,000\/- as directed by <\/p>\n
    the appellant but as he was not having the amount he was unable <\/p>\n
    to give amount and Rukhsana returned back to her matrimonial <\/p>\n
    home.  He further deposed that on the very day, at the late hours <\/p>\n
    i.e. 03:00 a.m., he received phone about burning of his sister and <\/p>\n
    he   immediately   rushed   to   Akola   Hospital.     He   further   deposed <\/p>\n
    that on his visit, Rukhsana told him that a declaration is made by <\/p>\n
    her   on   the   pressure   of   her   husband.     She   further   told   to   Syed <\/p>\n
    Ejajali that her husband (appellant) told her to give a statement <\/p>\n
    that she was burnt by accidental fire while igniting mosquito coil <\/p>\n
    and if she did not state as per his wishes, he would kill her kids.\n<\/p>\n
    Rukhsana further told to Syed Ejajali that she was beaten by the <\/p>\n
    appellant   on   the   ground   of   non   payment   of   amount   and <\/p>\n
    thereafter she was set on fire by pouring kerosene.  Though Syed <\/p>\n
    Ejajali was put to searching cross-examination, he was not shaken <\/p>\n
    at all.  The version of Syed Ejajali in clear terms discloses that the <\/p>\n
    first dying declaration of Rukhsana was under the pressure and <\/p>\n
    threat of the appellant\/accused.   This dying declaration has not <\/p>\n
    been   accepted   by   the   learned   trial   Court   and   the   learned   trial <\/p>\n
    Court has rightly held that the dying declaration which is given <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                          17<\/span><\/p>\n
    under threat and pressure of the appellant is not sustainable in <\/p>\n
    the eyes of law.  To connect the appellant\/accused with the crime <\/p>\n
    in question, in our opinion, the oral dying declaration made by <\/p>\n
    the deceased Rukhsana to her brother PW-1 Syed Ejajali is a very <\/p>\n
    important piece of evidence.  The oral dying declaration made to <\/p>\n
    PW-1 Sayed Ejajali is immediate disclosure which in no uncertain <\/p>\n
    terms discloses the motive behind the act i.e. the non payment of <\/p>\n
    the amount and the act of the accused i.e. setting Rukhsana on <\/p>\n
    fire.  This oral dying declaration to Syed Ejajali is supported by the <\/p>\n
    other dying declaration made to PW-2 Rehana Parveen, sister of <\/p>\n
    deceased.     Rehana,   in   her   substantive   evidence   deposed   that <\/p>\n
    when she had been to hospital on receiving a phone call from her <\/p>\n
    brother   about   Rukhsana   being   admitted   to   the   hospital,   she <\/p>\n
    attended her sister Rukhsana and had a talk with her.  She further <\/p>\n
    deposed that Rukhsana told her that she was set on fire on the <\/p>\n
    ground   of   non  payment  of  money.    The  omissions  which  were <\/p>\n
    tried to be brought on record by the defence are minor one and <\/p>\n
    they do not affect the credibility of these witnesses and as such <\/p>\n
    there is no reason to disbelieve the   versions of these witnesses.\n<\/p>\n
    PW-1   Syed   Ejajali   and   PW-2   Rehana   Parveen   are   the   reliable <\/p>\n
    witnesses.   In addition to the oral testimony of these witnesses, <\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                             18<\/span><\/p>\n
    the other material circumstance is the spot panchnama (Exh.30).\n<\/p>\n
    Spot Panchnama (Exh.30) is proved by prosecution through PW-4 <\/p>\n
    Ajay   Dhande   and   the   Investigating   Officer   L.J.   Shinde.     PW-4 <\/p>\n
    makes   a   mention   about   the   kerosene   lamp,   broken   bqangle <\/p>\n
    pieces, a kerosene can and stand of mosquito coil along with coil <\/p>\n
    and   match   box   on   the   spot   of   incident.     PW-12   Lalit   Shinde <\/p>\n
    deposed that there was a smell of kerosene on the earth of the <\/p>\n
    spot   of   incident.     In   our   opinion,   this   is   also   one   of   the <\/p>\n
    circumstances which advances the case of the prosecution.\n<\/p>\n
    11.         Perusal   of   the   statement   of   the   appellant\/accused <\/p>\n
    under Section  313 of the Code of Criminal Procedure  discloses <\/p>\n
    that though the appellant\/accused took the defence of the death <\/p>\n
    of   Rukhsana   as   an   accidental   death,   however,   the   presence   of <\/p>\n
    appellant\/acccused   is   not   disputed.     The   presence   of   the <\/p>\n
    appellant\/accused on the spot of incident at the relevant time is <\/p>\n
    also spelt out through PW-5 Sk. Gaffar and PW-6 Sk. Nadil.   The <\/p>\n
    omissions in respect of these witnesses are not on the material <\/p>\n
    aspects and they are minor omissions.\n<\/p>\n
    12.         Taking   overall   view   of   the   evidence   putforth   by   the <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                             19<\/span><\/p>\n
    prosecution,   in   our   considered   opinion,   the   prosecution   has <\/p>\n
    successfully proved the offence under Section 302 of the Indian <\/p>\n
    Penal Code against the appellant\/accused.  Insofar as the offence <\/p>\n
    under   Section   498-A   of   the   Indian   Penal   Code   is   concerned, <\/p>\n
    reliance   has   been   placed   by   the   prosecution   upon   the   oral <\/p>\n
    testimonies of PW-1 Syed Ejajali, PW-2 Rehana Parveen, sister of <\/p>\n
    deceased   and   the   documentary   evidence   in   the   form   of   the <\/p>\n
    agreement as well as one letter which was written to PW-1 Syed <\/p>\n
    Ejajali by her sister deceased Rukhsana, which is placed on record <\/p>\n
    by   the   prosecution   at  Exh.25  clearly   proves.    In   the  said  letter, <\/p>\n
    Rukhsana informed her brother in regard to the demand of the <\/p>\n
    appellant\/accused and the reply  given by Rukhsana that as the <\/p>\n
    house was constructed by her relatives they were not in a position <\/p>\n
    to   give   the   money.     She   further   informed   her   brother   that   she <\/p>\n
    asked her husband to sell her ear rings.   In view of the evidence <\/p>\n
    mentioned   above,   in   our   opinion,   the   prosecution   has <\/p>\n
    successfully  proved the charge under Section 498 of the Indian <\/p>\n
    Penal Code against the appellant\/accused.\n<\/p>\n
    13.         Taking   overall   view   of   the   evidence,   in   our   opinion, <\/p>\n
    there is no reason for us to interfere with the judgment and order <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:21:41 :::<\/span>
\n                                       20<\/span><\/p>\n
    passed by the learned trial Court.   The appeal lacks merit and is <\/p>\n
    accordingly dismissed.\n<\/p>\n
                 JUDGE                                              JUDGE\n\n\n\n\n                                               \n              \n           \n    *rrg.         \n\n\n\n\n                                \n                     \n                    \n      \n   \n\n\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 15:21:41 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Road vs State Of Maharashtra on 30 November, 2009 Bench: A. P. Lavande, Prasanna B. Varale 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-97829","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRoad vs State Of Maharashtra on 30 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/road-vs-state-of-maharashtra-on-30-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Road vs State Of Maharashtra on 30 November, 2009 - 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