Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 761 (JK)

STATE v. FAZAL HUSSAIN

2017-08-29

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Aradhe, J. In this Criminal Acquittal Appeal, the appellant has assailed the validity of judgment dated 22.02.2005 by which the respondents have been acquitted in respect of offences under Sections 302/498-A/34 of RPC. It is pertinent to mention at the outset that during the pendency of the appeal, respondent No.1, namely Fazal Hussain, father-in-law and respondent No.3, namely Mst. Shaheen Akhter, sister-in-law of the deceased have expired. Thus, the appeal survives only against respondent No.2, namely Mst. Safail Bano, mother-in-law of the deceased. 2. Prosecution case in brief is that deceased Gulseem Akhter made a statement before the police authorities on 26.02.2000 that she was married to one Barkat Hussain two years ago and out of the wedlock, one child was born, who was about 10 months old. It was further stated that her mother-in-law told her that she has done black magic on her daughter which was denied by her. On the next day, when she got up in the morning and when her husband had gone to answer the call of nature, her mother-in-law started fighting with her and thereafter, her mother-in-law caught hold of her and poured kerosene oil on her and her sister-in-law also caught hold of her and her mother-in-law set her ablaze. The husband extinguished the fire and advised her not to take his mother's name and he will provide the medical treatment to her. The aforesaid incident took place on 06.02.2000 and the victim Gulseem Akhter expired in the hospital on 02.03.2000. On the basis of the aforesaid statement, the police carried out the investigation and filed the charge sheet against the respondents. The trial Court vide impugned judgment has acquitted the respondents of the offences alleged against them. 3. The prosecution in order to prove its case examined Mohd Gani PW-1, Javid Iqbal PW 2, Haji Mohd Farooq PW-3, Dr. Mehmood Hussain, PW4 and Dr. Seema Abrol PW-5. It is also pertinent to mention here that in the instant case two, dying declarations were recorded by the Investigating Officer. The 1st dying declaration was recorded on 06.02.2000, whereas the 2nd dying declaration was recoded by the Investigating Officer on 26.02.2000. In the 1st dying declaration, the deceased had not implicated the respondents, whereas in the 2nd dying declaration, she named the respondents. 4. Mr. The 1st dying declaration was recorded on 06.02.2000, whereas the 2nd dying declaration was recoded by the Investigating Officer on 26.02.2000. In the 1st dying declaration, the deceased had not implicated the respondents, whereas in the 2nd dying declaration, she named the respondents. 4. Mr. Amit Chopra, learned Government Advocate submitted that the trial Court ought to have relied on the 2nd dying declaration and to have held respondent No.2 guilty of commission of offences. It is further submitted that in view of threat of divorce being given by the husband of the deceased, she did not name the accused persons in the 1st dying declaration. It is also submitted that the conviction can be based on the dying declaration. In support of his submissions, learned Government Advocate, has relied upon a judgment of Hon'ble Supreme Court in case titled Kushal Rao v. The State of Bombay, AIR 1958 SC 22 and Division Bench Judgment of this Court in the case of Dharmej Singh v. State, 2005 (2) Crimes 322. 5. We have considered the submissions made by learned Government Advocate and have carefully perused the record. 6. In the first dying declaration which was recorded by the Investigating Officer on 06.02.2000, the deceased had stated that she caught fire accidentally. The record shows that the statement was recorded after obtaining certificate that the deceased was in a fit condition to give the statement and the 1st dying declaration recorded on 06.02.2000 bears the thumb impression of the deceased. However, in the 2nd dying declaration, which was recorded on 26.02.2000 by the Investigating Officer, the respondents have been roped in. It is pertinent to mention here that the deceased from the date of incident was alive almost for a period of one month. 7. The Supreme Court in case of Dalip Singh v. State of Punjab, AIR 1979 SC 1173 as well as in case of Smt. Laxmi v. Om Parkash, 2001 Cri.L.J. 3302 (SC) has deprecated the practice of dying declaration being recorded by the Investigating Officer and has urged the Investigating Officer to avail of the services of Magistrate for recording the dying declaration, if it is possible to do so. In the instant case, as has been stated supra, the deceased was alive after the date of incident almost for a period of one month. In the instant case, as has been stated supra, the deceased was alive after the date of incident almost for a period of one month. No explanation has been offered on behalf of the prosecution as to why the 2nd dying declaration was not got recorded by the Magistrate. It is also pertinent to mention here that scribe to the document in question i.e. the 2nd dying declaration, namely Jagdish Narain has not been examined. The 2nd dying declaration does not bear the thumb impression of the deceased, whereas in the 1st dying declaration, her thumb impression appears. The prosecution has examined Haji Mohd Farooq PW3 to corroborate the prosecution case in respect of dying declaration. However, the aforesaid witness in his statement recorded under section 161 of Cr.P.C., 1973 has not mentioned that the deceased in his presence had told that her mother-in-law and sister-in-law have burnt her. It is also pertinent to mention here that sister-in-law of the deceased is an invalid and she walks on her hand and legs and cannot walk without any support. Thus, the dying declaration in the facts situation of the case does not inspire confidence and the conviction in the peculiar facts situation of the case cannot be based solely on the dying declaration. 8. The trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. (See Ram Swaroop and others v. State of Rajasthan (2004) 13 SCC 134 , Vijay Kumar v. State by Inspector General (2009) 12 SCC 629 and Upendra Pradhan v. State of Orissa (2015)11 SCC 124 ). 9. From the perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeals fails and is hereby dismissed. 10. Registry to sent back the record of the trial Court.