Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 1950 (BOM)

Shaikh Bhikan Sk. Mohamad v. State of Maharashtra

2013-09-23

A.I.S.CHEEMA, K.U.CHANDIWAL

body2013
JUDGMENT K.U. CHANDIWAL, J. :- The appellant questions conviction recorded in Sessions Case No.89/2010 by learned Extra Joint Ad Hoc Additional Sessions Judge, Jalna, dated 30th June, 2011, directing him to suffer life imprisonment and to pay a fine of Rs.10,000/- in default, to suffer rigorous imprisonment for two years for offense punishable under Section 302 of IPC, and to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-; in default, simple imprisonment for six months, for offense under Section 504 of IPC. 2. Smt. Shakilabi (since deceased) married to the appellant before 18 years of the incident. She was second wife of the appellant. Appellant was suspecting her fidelity which gave rise to occasions for rancorous relations. In the night of 14.12.2009, at about 11 p.m. when deceased was at house, the appellant returned home under influence, altercation ensued between the couple. Appellant directed deceased to leave the house, refusal by deceased aggravated his anger and appellant took a kerosene can, doused kerosene on her person, lit a matchstick and set her ablaze. This was witnessed by Shaikh Shabbir, son of the couple (PW No.3) and a neighbour Shaikh Sikandar Shaikh Amir (PW No.4). Deceased was yelling and screaming, and hence PW No.3 Shaikh Shabbir put a quilt on her person, and extinguished the fire. Smt. Ruksana and PW No.4 Shaikh Sikandar removed her in a rickshaw to Civil Hospital, Jalna, where she was admitted. Her dying declaration was recorded by ASI Chandan Gulab Pawar (PW No.7) which he remitted to the concerned Police Station. Prior to that, he got ascertained about consciousness of the deceased to make a statement through PW No.5 Dr. Kirti Keshav Karadkar. Based on the dying declaration, PW No.6 PSI Wahidkhan Wajidkhan Pathan recorded crime vide No.I.220/2009 for offense punishable under Sections 307 and 504 of IPC. Further investigation was carried by PW No.9 Chandrakant Namdeo Dilpak, API. Spot Panchnama was drawn in presence of PW No.1 Babasaheb Karadkar and PW No.2 Vishnu Kashinath Veer. Statements of witnesses were recorded. During investigation and treatment, Shakilabi expired on 20.12.2009 at 3.30 p.m. Inquest panchnama of the dead body was drawn (Exh.10). Post mortem was carried by Dr. Kuril S.S., Medical Officer, Civil Hospital, Jalna. The death was due to 66 per cent burns. It was un-natural. The inquest panchnama (Exh. Statements of witnesses were recorded. During investigation and treatment, Shakilabi expired on 20.12.2009 at 3.30 p.m. Inquest panchnama of the dead body was drawn (Exh.10). Post mortem was carried by Dr. Kuril S.S., Medical Officer, Civil Hospital, Jalna. The death was due to 66 per cent burns. It was un-natural. The inquest panchnama (Exh. 10, post mortem notes (Exh.11) and arrest panchnama of the accused (Exh.12) dated 17.12.2009 are admitted by defense. 3. After completion of investigation, charge-sheet was filed before learned Judicial Magistrate, First Class, who committed the case to the Sessions Court. On 21.7.2010, charge was explained to the accused/appellant below Exh.6 for offense punishable under Sections 302 and 504 of IPC. His plea is at Exh.7 accused did not plead guilty and claimed to be tried. Accused asserted, total denial and alibi that, at the time of the incident, he was not present at the spot but away, at a distance of about 40 to 45 fts, at the house of Shaikh Sikandar Shaikh Hamid. He, having heard shouts, rushed to the house, noticed that his wife was standing, holding a Chaddar on her person. He went to call his son. His wife in burnt condition went in a Rickshaw to hospital. He went to hospital on 15.12.2009 where his in laws quarreled with him. He returned home. Thereafter, he was arrested on 17th Dec., 2009. 4. The Panch to the Spot Panchnama (Exh. 40) i.e. PW No.1 Babasaheb, PW No.2 Vishnu did not support prosecution and hence, panchnama was proved by PW No.9, investigating officer Chandrakant Dilpak. He had visited the spot of the incident on 15.12.2009 and recovered Articles 1 to 5, seized articles were sent to the office of the Chemical Analyzer, received report from the office of Chemical Analyzer (Exh.44). From the spot, rockel can, matchstick, burnt sticks, torn pieces of burnt clothes; soil mixed with kerosene and sample soil was taken charge. Dimensions and four boundaries of the house were recorded. Endorsement (Exh.40) also shows that on 15.12.2009, apart from PW No.9, Sub Divisional Police Officer, Partur, had also visited, verified the Panch and had made endorsement on the Panchnama. 5. Mr. Dharurkar, learned appointed Advocate says, there was no prelude to the incident, no anger in the mind of the appellant to precipitate, to commit heinous offense. Endorsement (Exh.40) also shows that on 15.12.2009, apart from PW No.9, Sub Divisional Police Officer, Partur, had also visited, verified the Panch and had made endorsement on the Panchnama. 5. Mr. Dharurkar, learned appointed Advocate says, there was no prelude to the incident, no anger in the mind of the appellant to precipitate, to commit heinous offense. Death of Shakilabi has taken place after about six days owing to 66 per cent burns, therefore, the case could not attract ingredients of Section 300 of IPC to record conviction under Section 302 of IPC. He reiterates, that the case will come within exception (4) of Section 300 of IPC which conceive, “Exception 4.- Culpable homicide is not murder if it is committed without premeditation, in a sudden fight in a heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. “Learned Defense Counsel placed reliance to the judgment of the Hon'ble Supreme Court in the matter of Ankush Shivaji Gaikwad Vs. State of Maharashtra dated 3rd May, 2013 : [Criminal Appeal No. 689 of 2013 : 2013 ALLMR (Cri) 2221 (S.C.)] concerning impact of Section 357 of Cr.P.C. on awarding compensation and converting the case from Section 302 of IPC to Section 304 Part II of IPC. 6. Learned A.P.P. says, the dying declaration implicates her husband, the appellant. He knew consequences of dousing kerosene; still, burnt his wife by lighting a match stick. The endorsement on the dying declaration shows, the deceased was conscious at the time of making the statement. She has placed reliance to the judgment reported in AIR 2013 SC 341 : [2013 ALL SCR 654] (Ashabai Vs. State of Maharashtra) dealing with successive dying declarations, its reliability and effect. The Supreme Court has observed, no particular form or procedure is prescribed, nor it is required to be recorded only by a Magistrate. The Supreme Court has also observed, Doctors certificate as to fitness of the deceased to make declaration is not always necessary. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring and animosity and is not product of imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring and animosity and is not product of imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. She has also relied to the judgment in the matter of Bhargavan Vs. State of Kerala ( AIR 2004 SC 1058 ) : [2004 ALLMR (Cri) 2221 (S.C.)] dealing with interested witnesses. In AIR 2012 SC 2176 : [2012 ALLMR (Cri) 2077 (S.C.)] (Salim Gulab Pathan Vs. State of Maharashtra), the deceased who had 92 per cent burn injuries, made dying declaration and Supreme Court accepted the same. 7. The dying declaration of Shakilabi is at Exh.27 recorded by PSI, Police Station Ambad, which gave rise to registration of Crime dated 15.12.2009. It has an endorsement of Dr. Kirti Keshav Karadkar, Medical Officer, Civil Hospital, Jalna (PW No.5) at the time of commencement and end, certifying that the patient was fully conscious, and in a state of orientation to make a statement from beginning till completion of such statement. PW No.7 Chandan Gulab Pawar had recorded said dying declaration (Exh.27) which he has proved. It is in the evidence of PW No. 5 and PW No.7 that on 15.12.2009 while Shakilabi was at hospital, PW No.7 contacted hospital authorities, particularly PW No.5 and inquired whether Shakilabi was in a mental state to give statement. PW No.5 gave endorsement in writing before starting to record the dying declaration. Shakilabi informed, that in the night of 14.12.2009 at around 11 p.m., while she was at house, her husband came, he told, she is not good looking, and asked her to go away from the house. She argued as to why she should leave the house. On her denial, her husband told her, if she does not leave the house, he will pour kerosene on her person and will set her on fire. Her husband then sprinkled kerosene on her person and set her on fire. She was removed in an auto rickshaw by her step son and co-wife of her husband. She was brought to Civil Hospital, Jalna, where she was admitted. Afore referred dying declaration is proved by these two witnesses. Her husband then sprinkled kerosene on her person and set her on fire. She was removed in an auto rickshaw by her step son and co-wife of her husband. She was brought to Civil Hospital, Jalna, where she was admitted. Afore referred dying declaration is proved by these two witnesses. It has no spices to disbelieve it; it was in a natural sequence and phenomenon, first in point of time, demonstrated by the maker. It could not be said, she was influenced by her relations and it had an impact of tutoring. Evidence of PW No.5 satisfies judicial conscience to accept that deceased was in a fit mental condition to make the dying declaration. This is more supported by Police Officer. Shakilabi, deceased, was at the bank of her death, when every hope of this world had gone, her motive to falsehood was silenced and she was certainly in a state of predominant consideration to speak true events. The evidence also does not suggest that prior to her making the statement, she had promptings from close parental relations. There was a proper and adequate communication in clear tone and tune made by Shakilabi to two independent persons. We have no hesitation to accept the dying declaration for its truthfulness, mental condition of Shakilabi to make such statement. 8. Let us now turn to surrounding circumstances to the dying declaration. The appellant, her husband asserts that at the material time on 14.12.2009, he was at the house of one Sikandar Shaikh Amir, at a distance of 40 to 45 fts., away. Having witnessed commotion, he rushed to his house. He says, his wife was standing, holding a Chaddar on her person. He went ahead to call his son. He saw his wife in burnt condition, and went in an auto rickshaw to hospital. On 15.12.2009 i.e. next day, he went to attend the hospital. This conduct of appellant belies ordinary human behaviour and more leans to disbelieve his defense than to act. When he certifies to be present, at the time of the incident, it was expected of him, even as an ordinary human being, to have coordinated shifting his wife, who was in a critical condition, to an hospital, for immediate medical assistance. There could not be any other chicanery to accept a prevention to move forward for appellant. When he certifies to be present, at the time of the incident, it was expected of him, even as an ordinary human being, to have coordinated shifting his wife, who was in a critical condition, to an hospital, for immediate medical assistance. There could not be any other chicanery to accept a prevention to move forward for appellant. He even did not inform the Police about burning of his wife. 9. On analytical study of the dying declaration, we have no hesitation to place reliance to it, to accept about its genuineness, voluntary character thereof and the deceased in a close situation of her impending death. Deceased was not under impulse or was not auditory but she was clear in her tune even if she was in a depressing phase owing to stoical phase of her life. 10. Death of Shakilabai to be unnatural is not in controversy, in the light of the inquest panchnama (Exh.10, post mortem report (Exh.11) having not been disputed. The theory of accidental burns is ruled out from the dying declaration (Exh.29) supported by panchnama of spot (Exh.40). Even if the panchs PW Nos. 1 and 2 did not support the prosecution, however, it will not defuse and deflate evidentiary value of the spot panchnama proved by PW No.9 investigating officer. 11. PW No.3 Shaikh Shabbir Shaikh Bhikan, son of the deceased and the appellant, did not support the prosecution. This is, one way, a natural phenomenon, as the witness was in a situation of quandary as, at one side was his father and on the other, his mother who had already succumbed; he chose normal, right path, to stand by his father who was alive and a mentor in his life. PW No.3 did not dispute the events in the night at 11 p.m. to 11.30 p.m., having taken place in the house, where appellant had quarrel with his mother. The appellant was under influence. Appellant asked his mother to go away from the house. He changed his version, to say that his father/appellant left the house. He went to sleep, deceased was waiting for the appellant near hearth and she took a can of kerosene, shouted and set herself on fire. He does not dispute, he wrapped his mother in a Shawl and removed her to Civil Hospital, Jalna, in an auto rickshaw. He changed his version, to say that his father/appellant left the house. He went to sleep, deceased was waiting for the appellant near hearth and she took a can of kerosene, shouted and set herself on fire. He does not dispute, he wrapped his mother in a Shawl and removed her to Civil Hospital, Jalna, in an auto rickshaw. Portion marked A - B, in his statement under Section 161 of Cr.P.C. was shown to him which he disputed. Same has been proved by PW No.9 investigating officer below Exh.41. Thus, PWNo.3 has resiled from his statement. PW No.4 Shaikh Sikandar is a neighbour. He does not dispute of the incident but claimed, he does not know as to how Shakilabi expired. His statement was confronted to him at portion marked A - B which is proved by PW No.9 investigating officer Dilpak at Exh.42. 12. Chemical Analyzer's report at Exh.44 dated 24th Feb., 2010, is in conformity to the letter of the investigating officer dated 11th Jan., 2010, in Crime No.220/2009 which establishes that the can containing kerosene, control earth record positive for kerosene, partially burnt pinkish coloured blouse piece and petticoat piece was positive for kerosene. 13. Cumulative reading of dying declaration, spot panchnama, inquest panchnama, post mortem report and PW No.3, analyze that at the relevant time, on 14.12.2009, the appellant was at the house, he doused kerosene on the deceased and set her to fire. He was conscious that putting kerosene to the person of his wife and igniting a matchstick and igniting her has the resultant effect of death. It cannot be said that appellant did not nourish any intention; the intention is demonstrated writ large with sufficiency of the knowledge of effect and result of the act complained of. The bodily injury which the appellant intended to inflict was sufficient in the ordinary course of nature to cause death. The appellant knew that it was so eminently dangerous that dousing kerosene and lighting a matchstick will, in all situations, result in causing death of Shakilabi. 14. We do not agree to the insistance of Mr. Dharurkar, learned Counsel, to accept the case in Exception (4) of Section 300 of IPC and to avail benefit thereof, to the appellant. The appellant knew that it was so eminently dangerous that dousing kerosene and lighting a matchstick will, in all situations, result in causing death of Shakilabi. 14. We do not agree to the insistance of Mr. Dharurkar, learned Counsel, to accept the case in Exception (4) of Section 300 of IPC and to avail benefit thereof, to the appellant. We are conscious, all fatal injuries resulting in death cannot be termed as cruel or unusual for the purpose of extending benefit of Exception (4) to Section 300 of IPC, however, whether such injuries were in a heat of passion, upon a sudden quarrel, followed by a fight, also needs to be evaluated. The appellant, had regular skirmish with his second wife Smt. Shakila. He used to enter into bickering with her; root cause in his mind, was about chastity or fidelity. He even disliked her. This is demonstrated in Exh.27, the dying declaration. It was not in a heat of anger, suddenly that he got enraged. He knew, dousing of kerosene will have its adverse impact associated with lighting a matchstick but he, his wife having refused to leave the house, threatened her with dire consequences, ensured to douse and set her ablaze. This was not a confound state of mind but a willful act with its consequences, consciously aware and with an intention of causing such bodily injury to cause death. We do not propose to alter conviction from Section 302 of IPC to Section 304 Part II thereof. We hold, the accused/appellant, in a fully conscious state of mind, committed culpable homicide amounting to murder punishable under Section 302 of IPC and also insulted his wife, to ensure provocation at the relevant time. 15. Before parting, we appreciate the strenuous efforts put in by Mr. Dharurkar, to swim against the tide, to persuade us, either for acquittal or for bringing the case under Section 304 Part II of IPC. We recommend his professional fees at Rs.10,000/- (Rs. ten thousand), to be released. Criminal Appeal (No.415/2011) is dismissed. Inform the appellant/accused who is in jail. Appeal dismissed.