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2018 DIGILAW 692 (GUJ)

Mohammad Riyaz Mansuri v. State Of Gujarat

2018-05-07

A.S SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT & ORDER : A.S. Supehia, J. 1. By way of this appeal, filed under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the appellants-accused have challenged the judgment and order of conviction dated 29.06.2012, passed by learned 4th (ad-hoc) Additional Sessions Judge, Surat, (hereinafter referred to as the "trial court"), rendered in Sessions Case No.228 of 2009, whereby the trial court convicted the appellants-accused under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") and sentenced to suffer imprisonment for life. However, the trial court acquitted the appellants-accused herein of the charges for the offence punishable under section 498A of the IPC and sections 3, 5 and 7 of the Dowry Prohibition Act, 1961. 2. On 03.08.2009, a complaint came to be lodged by deceased-Tarabegum @ Shabana Begum w/o Mohammad Riyaz Masuri Mohammad Sirajuddin Mansuri before the Limbayat Police Station, inter alia, stating that her marriage was solemnized with accused No.1-Mohammad Riyaz Mansuri Mohammad Sirajuddin Mansuri of village Gajiyapur before five years in the year 2004. She was having four children. Out of them three children had died due to miscarriage and presently, her son-Mohammad Varis Mansuri, aged about two years, is alive, who is staying with her. When they came to Surat, the accused caused physical and mental harassment to her and pressurized her to bring color television and motorcycle from her parental home. On 03.08.2009, at about 10.30 hours in the morning, when she was doing cooking, at that time, her husband as well as her mother in law started tormenting her by asking her to bring the television and motorcycle from her parental home. When she responded by saying that from where her parents would bring the same, at that time, both her husband and her mother-in-law got provoked; her husband started beating her, and her mother- in-law poured kerosene on her from the stove, while her husband caught hold of her. Thereafter, her husband ignited match stick and set her ablaze. She has stated that as her body is entirely burnt in the said incident, a 108 ambulance was called; she was admitted at the Smimer Hospital. She has specifically stated that she is lodging the present complaint in presence of her uncle-Mohammad Mumtaj Ali and presently, her condition is normal. Thereafter, her husband ignited match stick and set her ablaze. She has stated that as her body is entirely burnt in the said incident, a 108 ambulance was called; she was admitted at the Smimer Hospital. She has specifically stated that she is lodging the present complaint in presence of her uncle-Mohammad Mumtaj Ali and presently, her condition is normal. Accordingly, a complaint was lodged by the Limbaya Police Station and the same was registered being I-C.R.No.220 of 2009 for the offence under sections 498A, 304B and 114 of the IPC and sections 3, 5 and 7 of the Dowry Prohibition Act. 3. Upon registering the offences under sections 498A, 304B and 114 of the IPC and sections 3, 5 and 7 of the Dowry Prohibition Act against the accused, the investigating officer has carried out the investigation and after following the due procedure of law, a charge-sheet came to be filed before the learned 9th Additional Chief Judicial Magistrate, Surat. Since, the case was exclusively triable by the court of Sessions, after providing papers under section 207 of the Code to the accused, the same was committed to the Sessions Court under section 209 of the Code. The same was registered as Sessions Case No.228 of 2009. The charges vide Exh.4 under sections 498A, 304B and 114 of the IPC and sections 3, 4 and 7 of the Dowry Prohibition Act were framed. The statements of the accused were recorded vide Exh.5 and 6. Thereafter, the learned Additional Public Prosecutor, filed an application vide Exh.8 to add section 302 of the IPC in the charges. Accordingly, the charge was altered to section 302 of the IPC, as the death of the victim-Tarabegum has been occurred. The plea of the accused-appellants were recorded under section 313 of the Code. The accused-appellants pleaded not guilty to the charges and claimed to be tried. 4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 20 witnesses as well as produced 26 documentary evidences. 5. At the end of the trial and after recording the statements of the accused under section 313 of the Code and hearing the arguments on behalf of the prosecution and the defence, the trial court passed the judgment and order as above. 6. 5. At the end of the trial and after recording the statements of the accused under section 313 of the Code and hearing the arguments on behalf of the prosecution and the defence, the trial court passed the judgment and order as above. 6. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the trial court, the appellants-accused have preferred the present Criminal Appeal. 7. Mr.Dave, learned advocate for the appellants-accused has submitted that the trial court has primarily recorded the conviction of the appellants by placing reliance on the dying declaration. He has contended that the same is doubtful since it does not reveal the language in which the questions were asked. He has submitted that there is a long duration between the incident and the recording of the dying declaration and hence, it is impossible for the deceased-complainant to be in a fit state of mind for giving the dying-declaration. He has submitted that the prosecution has not proved the case beyond reasonable doubt and if two opinions are possible in this case, then benefit should be given to the accused. He has submitted that since the deceased had died due to burn injuries, the conviction of the accused is required to be converted from section 302 to Section 304 Part-I of the IPC. In support of his submissions, learned advocate Mr.Dave has placed reliance on the judgment dated 23.06.2014, passed by this court in Criminal Appeal No.1409 of 2014. 8. Learned advocate Mr.Dave has vehemently contended that it was not possible that the deceased-complainant was conscious enough for recording her dying declaration since the medical case papers indicate that she received 92% to 96% burns injuries. Looking to the depositions of the doctors that she was half conscious, such a dying declaration could not have been recorded in the manner suggested by the executive magistrate. Mr.Dave has submitted that in any case the sentence or punishment is unjustified, excessive, too harsh or severe on the facts and circumstances of the case. 9. In the alternative, learned advocate Mr.Dave has submitted that looking to the entire evidence, the appellants cannot be convicted under section 302 of the IPC but he has to be given benefit of section 304 Part-I of the IPC and may be convicted for the offence referred to therein. 10. 9. In the alternative, learned advocate Mr.Dave has submitted that looking to the entire evidence, the appellants cannot be convicted under section 302 of the IPC but he has to be given benefit of section 304 Part-I of the IPC and may be convicted for the offence referred to therein. 10. Mr.Mitesh Amin, learned Public Prosecutor with Mr.L.B.Dabhi, learned Additional Public Prosecutor have supported the judgment passed by the trial court. He has submitted that the span of marriage is less than seven years and the demand of dowry is established. He has submitted that the dying declaration remains intact in which the deceased-complainant has categorically implicated the accused. He has submitted that initially, the history, was recorded by the accused-PW-5 as per the say of the accused-husband, who admitted the deceased-his wife in the hospital. Hence, in order to misguide the prosecution, he had given such history. He has submitted that there are two dying declarations in the present case, one in the form of FIR lodged by the deceased-complainant and the second is the dying declaration recorded by the executive magistrate and the same is produced Exh.26. Both the dying declarations implicate the accused. Both the dying declarations are not in any manner blemished with, tutoring and the same are trustworthy. He has submitted that Forensic Science Laboratory (F.S.L.) Report mentions the presence of kerosene at the scene of offence. He has submitted that scene of offence also reveals the presence of the iron stove whose cap was unlocked. He has also submitted that there is not a whisper about tutoring. Hence, the voluntary dying declaration made by the wife implicating the husband and her mother-in-law has to be believed. In this view of the matter, he has submitted that the judgment and order passed by the trial court may not be disturbed and the sentence imposed by the trial court may be confirmed. 11. In support of the judgment rendered by the trial court, learned Public Prosecutor, Mr. Mitesh Amin has contended that the findings of the trial court are well-founded as the trial court has carefully scrutinized the testimonies of the witnesses as well as the documentary evidence. He has stated that the accused have murdered the deceased by setting her on fire, after pouring kerosene on her body. Mitesh Amin has contended that the findings of the trial court are well-founded as the trial court has carefully scrutinized the testimonies of the witnesses as well as the documentary evidence. He has stated that the accused have murdered the deceased by setting her on fire, after pouring kerosene on her body. He has submitted that the act of the accused to set on fire the deceased was with intention and knowledge to cause her death and hence, the trial court is justified in convicting the accused for the offence under section 302 of the IPC. 12. Mr.Mitesh Amin, learned Public Prosecutor for the respondent-State vehemently submitted that the judgment and order recorded by the trial court deserves to be confirmed, as there are relevant statements of the deceased in the form of FIR and dying declaration, relevant depositions of medical witnesses and material available on the record have supported the case of the prosecution. Reliance is placed by him on the testimony of PW-6 (Executive Magistrate), PW-7 (Doctor), and PW-3 (Scientific Officer-F.S.L) of the deceased for proving harassment and cruelty by the accused on the deceased. He has supported the judgment of the trial court by contending that the incident had taken place within a short span of marriage life of five years, and it is established on record that husband and mother-in-law of the deceased used to demand articles such as colour television and motor-cycle. Therefore, the trial court has rightly passed the judgment and order of conviction against present appellants-accused. 13. In view of aforesaid submissions, Mr.Mitesh Amin, learned Public Prosecutor for the respondent-State supported the judgment and order of the trial court and has submitted that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for by this court. He has therefore, urged that the criminal appeal is required to be dismissed and the impugned judgment and order passed by the trial court is required to be confirmed. 14. We have heard the learned advocate for the appellants-accused and the learned Public Prosecutor for the respondent-State and perused the material on record with their assistance. 15. The prosecution case entirely hinges on the dying declarations made by the deceased complainant. 14. We have heard the learned advocate for the appellants-accused and the learned Public Prosecutor for the respondent-State and perused the material on record with their assistance. 15. The prosecution case entirely hinges on the dying declarations made by the deceased complainant. In order to appreciate the rival contentions, it will be necessary to have a closer look at the testimonies of the witnesses in order to ascertain the sanctity of the dying declarations. PW-7, Dr. Kamal Amrutlal Aarkman is examined at Exh.28. In his deposition, he has stated that on 03.08.2009, when he was on duty, at that time, at about 11.30, one patient viz. Tarabegum Mohammad Iliyas was admitted in Casualty ward. He has given primary treatment in the casualty ward to her. Thereafter, she was shifted in the burns ward where he and his colleague Dr. Upendra treated her. Her history was recorded by Sandip Gupta in the casualty ward. He has stated that the patient had died due to 92% to 96% burns at about 11:40 hours in the night. Upon showing Exh.25-Police Yadi, he identified the endorsement of "Patient is Conscious" on it and also identified the signature of his assistant Dr. Upendrabhai Patel. In his cross-examination, he has stated that the patient was very serious. It is also deposed that when the patient was under his treatment, during that period, no government official had come to him to record her statement. Thus, from his testimony, it emerges that the deceased had received 90% to 96% burn injuries. 16. The next witness PW-5, Sandip Balkrushna Gupta, is examined at Exh.22. In his evidence, he has stated on 03.08.2009, at about 11:35 hours in the morning, when he was on duty at the Smimer Hospital, one patient-Tarabegum was brought by her husband-Mohammad Riyaz Mohammad Sirajuddin. He had given history before him that on 03.08.2009, at about 10:30 hours in the morning, at Ratanjinagar, Limbayat, the patient accidentally received the burns injuries while she was cooking on stove. In his evidence, he has stated that the patient was semi-conscious and had received 92% to 96% burns injury. Thus, from his evidence, it reflects that the history was given by the husband of the deceased-accused no.1 that on 03.08.2009, at about 10:30 hours in the morning, at Ratanjinagar, Limbayat, the patient accidentally received burns injuries while she was cooking on stove. Thus, from his evidence, it reflects that the history was given by the husband of the deceased-accused no.1 that on 03.08.2009, at about 10:30 hours in the morning, at Ratanjinagar, Limbayat, the patient accidentally received burns injuries while she was cooking on stove. Thus, it is evident from his testimony that the history was given by the husband of the deceased to the doctor. 17. Pw-6, Zarin Humayu Mirza, Executive Magistrate, Surat, is examined at Exh.24. In her evidence, she has deposed that she has recorded the dying declaration of the deceased-Tarabegum. She has received the Police Yadi from the Limbayat Police Station and accordingly, she went to the hospital for recording the statement of Tarabegum. In her evidence, she has emphatically stated that on 03.08.2009, at about 18:25 hours, she went to the Smimer Hospital, Shara Darwaja, Surat for recording the statement of the victim-Tarabegum. On being asked as to where she resides, she stated that at Ratanjinagar, Limbayat, Surat. On being asked about the incident, she stated that between 10.00 a.m. and 10.30 a.m., her husband and her mother-in-law set her on fire after pouring kerosene on her body. Thereafter, her husband and her relatives admitted her in the hospital for treatment. In her evidence, she has stated that she finished the recording of the statement of patient-Tarabegum at about 18:50 hours. In her cross-examination, it is elicited that in the yadi sent of Police Sub-Inspector (Exh.25), it was mentioned in it that on 03.08.2008, at about 10:30 hours, the patient received the burns injuries for unknown reason. It is elicited that prior to recording of the dying declaration, she has not taken any endorsement from the doctor regarding the condition of the patient whether she is conscious and is able to give answers to her questions. She has further stated that when she disclosed her identity, the patient had accordingly given the reply. Hence, she felt that the patient was in conscious condition. It is further elicited from her cross-examination that she had asked the patient in both the languages i.e. Hindi and gujrati and accordingly, after recording the dying declaration, she had taken the thumb impression of the patient on it. Thus, from the deposition of the executive magistrate, it is elicited that she has not taken the endorsement of any doctor regarding the condition of the patient. Thus, from the deposition of the executive magistrate, it is elicited that she has not taken the endorsement of any doctor regarding the condition of the patient. However, her deposition reveals that after ascertaining that the patient was in conscious condition and was fit in responding to her question, the dying declaration was recorded. Accordingly, the deceased-complainant had given the replies to her questions implicating the present appellants-accused. 18. Another witness PW-16, Nitinkumar Dayaram Patel, Scientific Officer, F.S.L. Laboratory, Surat, is examined at Exh.44 on behalf of the prosecution. In his evidence, he has stated that he visited the scene of occurrence where he found one iron stove with the cap lying nearby it. It is also stated by him that beside the stove, there was charcoal-furnace on which rice cooker was kept. There was kerosene on the floor. There was presence of burnt match-stick and the match box at the scene of offence. Thus, through the testimony of this witness, the presence of uncapped kerosene iron stove is established from the scene of offence. Nothing adverse is elicited in his cross-examination. 19. The investigation officer (PW-20), who has recorded the F.I.R has been examined at Exh.55. He has deposed that on 03.08.2009, he was informed by the Police Sub-Inspector, Padvina at 16:00 hours that the deceased had regained consciousness, and hence, he rushed to the Smimer Hospital to record her complaint and she had accordingly narrated the incident involving the accused, her husband and her mother in law. In his cross-examination, it is elicited that he had not met any doctor before recording the complaint. He has stated that since he had received the vardhi about the consciousness of the deceased and, on the instructions of his superior, he had gone to record the complaint. He has denied the suggestion that the deceased was not in conscious state. He has also denied the suggestion that the complaint was given by her nephew-Mumtaz. He has also admitted that he had not made an endorsement about the known language of the complainant. From the overall testimony of this witness, it emerges that though the same is blemished with minor flaws, the same is trustworthy and credible. 20. The prosecution has placed reliance on the dying declarations in the form of complaint-Exh.56 recorded on 03.08.2009 and another dying declaration (Exh.26) recorded by the executive magistrate for proving the charge against the accused. From the overall testimony of this witness, it emerges that though the same is blemished with minor flaws, the same is trustworthy and credible. 20. The prosecution has placed reliance on the dying declarations in the form of complaint-Exh.56 recorded on 03.08.2009 and another dying declaration (Exh.26) recorded by the executive magistrate for proving the charge against the accused. Both the dying declarations implicate the accused. Nothing adverse suggesting anything contrary which affects the sanctity of the dying declarations has been brought out by the defence. It is also not alleged that the dying declarations suffer from any tutoring. The dying declarations implicating the husband and mother-in-law by the deceased-complainant are found to be voluntary without being influenced by anyone. The contention raised by the learned advocate for the appellant that the dying declaration recorded by the executive magistrate is liable to be ignored since as per the deposition of the executive magistrate (PW6), she has not ascertained the physical condition of the deceased-complainant from the doctors does not merit acceptance since it is settled law that, if the person, who is recording the dying declaration is of the opinion that the person, who is deposing is in fit and conscious state to give the same, then such dying declaration cannot be discarded on the ground that it is not certified by the doctors. 21. In the present case, the dying declaration does not suffer from any infirmity and the same is found worthy of being relied for conviction. Most of the witnesses examined on behalf of the prosecution have turned hostile to the case of the prosecution. We have also examined the yadi produced at Exh.25. The same is sent by the Police Sub-Inspector, Limbayat Police Station to the executive magistrate. The same bears the endorsement of the doctor "patient is conscious: and the time recorded is 04.00 p.m. It also bears the endorsement that "received on 03.08.2009, 18.00 p.m.". Accordingly, the executive magistrate, after receiving the yadi, has recorded the dying declaration (Exh.26). The time of recording the dying declaration shows that it is recorded between 18:25 to 18:50 hours. Thus, from the aforesaid documentary evidence, it reveals that the deceased-complainant was conscious at 04:00 p.m. and accordingly, the executive magistrate (PW-6) has recorded the dying declaration of the deceased-complainant at "18.25 hours". The time of recording the dying declaration shows that it is recorded between 18:25 to 18:50 hours. Thus, from the aforesaid documentary evidence, it reveals that the deceased-complainant was conscious at 04:00 p.m. and accordingly, the executive magistrate (PW-6) has recorded the dying declaration of the deceased-complainant at "18.25 hours". Hence, from the deposition of the executive magistrate as well as documentary evidence, it reveals that at the time of giving the dying declaration the deceased-complainant was in conscious state and accordingly, she was in a fit state of mind to give answers to the question put by (PW-6) the executive magistrate. 22. Reliance placed by the learned advocate for the appellants on the judgment dated 23.06.2014 passed in Criminal Appeal No.1409 of 2009 cannot rescue the appellants-accused since the deceased in that case survived for 20 days and died due to septicemia, whereas in the present case, the deceased has died within 12 hours after the incident took place. The span of marriage undisputedly is less than seven years. 23. The Supreme Court in the case of Lakhan Vs. State of Madhyapradesh, (2010) 8 SCC 514 , in which it was clearly mentioned that only on the basis of the dying declaration, the accused may be convicted. The Apex Court has observed thus: "In view of the above, the law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. 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 scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance." 24. 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 scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance." 24. Even though most of the witnesses examined on behalf of the prosecution turned hostile to the case of the prosecution, there are other documentary as well as oral evidence available on the record of the case in the form the of the dying declaration, F.I.R. evidence of the doctor and the investigating officer etc. which bring home the charges levelled against the accused. 25. We are, therefore, of the considered opinion that the prosecution has successfully established the authenticity of the dying declarations. The findings recorded by the trial court in convicting the accused of the charges leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed. We are in complete agreement with the reasonings given and the findings arrived at by the trial court. No interference is warranted with the judgment and order of the trial court. 26. In view of the above discussions, we are of the opinion that the trial court has committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed. 27. In the result, the appeal fails and is accordingly, dismissed. The judgment and order dated 29.06.2012 passed by learned 4th (ad-hoc) Additional Sessions Judge, Surat, rendered in Sessions Case No.228 of 2009 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. Record and proceedings be sent back to the concerned trial court, forthwith. FURTHER ORDER After the judgment was pronounced and signed, learned advocate Mr. Dave, while placing reliance on the judgment dated 19.04.2016 passed in Criminal Appeal No.1194 of 2011 has requested to make suitable observations apro pos the life imprisonment awarded to the appellant-accused and also for reviewing his case by the appropriate authority. We are not inclined to make any observation since the issue is well settled by the Apex Court in the case of Bhaikhon @ Bakul Borah Vs. We are not inclined to make any observation since the issue is well settled by the Apex Court in the case of Bhaikhon @ Bakul Borah Vs. State of Assam, (2013) 10 JT 373 , wherein the Apex Court has held life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India, and it is left upon the discretion of the authorities to exercise such power in appropriate case.