Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 419 (BOM)

State Of Maharashtra v. Abdul Salim

2019-02-12

P.N.DESHMUKH, ROHIT B.DEO

body2019
JUDGMENT : Rohit B. Deo, J. These appeals question the judgment dated 6.12.2004 rendered by 3rd Adhoc Additional Sessions Judge, Chandrapur in Sessions Trial 113 of 1997, by and under which, Abdul Salim Abdul Gaffar - who shall be referred to as the accused hereinafter - is convicted of offence punishable under section 498A of Indian Penal Code ("IPC") and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs. 500 and is further convicted of offence punishable under section 304 part II of the IPC and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 1000/. The accused is assailing the conviction in Criminal Appeal 39 of 2005 and the State has preferred Criminal Appeal 123 of 2005 seeking conviction under section 302 of the IPC. 2. The case of the prosecution, as can be gathered from the final report under section 173 of the Criminal Procedure Code, 1973 and the evidence adduced by the prosecution, is thus: 2.1 Deceased Shahnaz Banoo was the wife of the accused. The deceased and the accused were residing at M.E.L. quarters, Chandrapur with their children. 2.2 The incident occurred at 0.10 A.M. on 7.11.1996. Shahnaz Banoo was sleeping and the accused came home intoxicated and abused and assaulted Shahnaz Banoo, who poured kerosene on her person in anger. Accused lighted a match stick and set her ablaze. Shahnaz Banoo, who suffered more than 90% burns was admitted in General Hospital, Chandrapur by the accused and her relatives. The accused himself extinguished the fire with the help of blanket. The police constable on duty at the hospital outpost, reported the incident to Ramnagar Police Station, Chandrapur pursuant to which report Crime 445 of 1996 was registered under section 498A and 307 of the IPC. 2.3 The Investigating Officer inspected the spot on 7.11.1996 and recorded the spot panchanama in the presence of panchas. Statement of witnesses were recorded. The Executive Magistrate, Chandrapur recorded the dying declaration of Shahnaz Banoo. Shahnaz Banoo succumbed to her injuries at 14.30 hrs on 8.11.1996 and offence under section 302 of the IPC, was additionally registered. The inquest panchanama was recorded and the dead body was sent for autopsy which was conducted by the Medical Officer of General Hospital, Chandrapur. The Executive Magistrate, Chandrapur recorded the dying declaration of Shahnaz Banoo. Shahnaz Banoo succumbed to her injuries at 14.30 hrs on 8.11.1996 and offence under section 302 of the IPC, was additionally registered. The inquest panchanama was recorded and the dead body was sent for autopsy which was conducted by the Medical Officer of General Hospital, Chandrapur. 2.4 Upon completion of the investigation, charge sheet was submitted in the Court of Chief Judicial Magistrate, Chandrapur who committed the proceedings to the Sessions Court. The trial Court framed charge under sections 498A and 302 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The text and tenor of the cross examination and the statement recorded under section 313 of the Code of Criminal Procedure, 1973 would reveal that the defence is of total denial and further that Shahnaz Banoo committed suicide. 3. The prosecution examined nine witnesses to bring home the charge. PW 1 - Pratibha Wasnik, who was residing in M.E.L. quarters with her husband, is examined to prove the ill-treatment meted out to the deceased. PW 1 - Pratibha Wasnik did not support the prosecution and nothing is brought out in her cross examination by the learned Additional Public Prosecutor to assist the prosecution. PW 2 - Shrihari Gajbe is examined to prove the dying declaration Exh. 16. PW 3 - Vasant Khanke who is examined to prove the spot panchanama Exh. 21 did not support the prosecution. PW 4 - Ramesh Belkhede is the other witness to the recording of spot panchanama who has proved Exh. 21. PW 5 -Noorjah Ali, the elder sister of the deceased is examined to prove that the deceased was subjected to cruelty, that the accused confessed the crime and that the deceased disclosed that she was burnt by the accused. The evidence as regards the extrajudicial confession has come on record by way of omission and the learned trial Court has rightly not relied on the extrajudicial confession. PW 6 - Kalim Khan is examined to prove oral dying declaration of Shahnaz Banoo that she was burnt by the accused. PW 7 - Narayan Daware is the Medical Officer who conducted the autopsy. PW 8 - Ravindra Kayande and PW 9 Vijay Kuhikar are the Investigating Officer. 4. We have heard learned counsel Ms. PW 6 - Kalim Khan is examined to prove oral dying declaration of Shahnaz Banoo that she was burnt by the accused. PW 7 - Narayan Daware is the Medical Officer who conducted the autopsy. PW 8 - Ravindra Kayande and PW 9 Vijay Kuhikar are the Investigating Officer. 4. We have heard learned counsel Ms. Sonali Saware for the accused and learned Additional Public Prosecutor Shri A.D. Sonak, for the State and with their able assistance, we have scrutinized the evidence on record and the reasons recorded by the learned trial Court. Both the learned counsel Ms. Sonali Saware and learned Additional Public Prosecutor Mr. A.D. Sonak are in unison in the submission that in so far as the charge under section 302 of the IPC is concerned, the edifice of the prosecution case are the dying declarations. Ms. Sonali Saware, would submit that the dying declarations on record must be discarded for reasons more than one. The learned counsel Ms. Sonali Saware would submit that it is irrefutable that the deceased was in no condition to make a voluntary and truthful statement. Ms. Sonali Saware submits that the dying declaration Exh. 16 recorded by PW 2 - Shir Shrihari Gajbe suffers from several infirmities and the oral dying declarations made to PW 5 - Noorjaha Ali and PW 6 Kalim Khan do not inspire confidence firstly as the deceased was in no position, physically and mentally, to make the disclosure and secondly the fact that neither PW 5 - Noorjaha or PW 6 Kalim Khan narrated the disclosure to the doctor or the police constable at the hospital outpost renders the discloser extremely doubtful. Ms. Sonali Saware then submits that the evidence on cruelty is too shaky and fragile to be the basis of conviction under section 498A of the IPC. Per contra, the submission of the learned Additional Public Prosecutor Mr. A.D. Sonak is that the trial Court has correctly arrived at the finding that the deceased was subjected to cruelty and that she was set ablaze by the accused and having arrived at such finding, the trial Court committed serious error in convicting the accused under section 304 part II of the IPC. The accused deserves to be convicted under section 302 of the IPC, is the submission. The accused deserves to be convicted under section 302 of the IPC, is the submission. 4.1 Dying declaration is admissible under section 32(1) of the Indian Evidence Act which carves out an exception to the rule against the admissibility of hearsay evidence, the veracity of which is not tested by cross examination. The juristic justification is that a person who is facing eminent death would not meet the almighty with a lie in his mouth. A person on death bed is ordinarily not expected to indulge in false implication or falsehood. The sanctity of the dying declaration is juristically explained by the maxim "Nemo moriturus praesumitur mentire". It would be apposite to refer to the following observations of the Hon'ble Apex Court in Kundula Bala Subrahmanyam v. State of Andhra Pradesh reported in (1993) 2 SCC 684 : "18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross examination, it is not credit worthy, Under Section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same". 4.2 It would further be fruitful to notice the observations of the Hon'ble Apex Court in Amol Singh v. State of M.P. reported in 2008 (5) SCC 468 which read thus: "8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanya v. State of A.P. [ (1993) 2 SCC 684 ]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances. 9. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances. 9. It is to be noted that the High Court had itself observed that the dying declaration (Exh.P11) scribed by the Executive Officer, (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW 8) in so far as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire." 5. The legal position that conviction can rest solely on the dying declaration is too well settled to warrant a reference to the plethora of precedents. Equally well settled is the legal position that if the conviction is to rest solely on dying declaration, the conscious of the Court must be satisfied that the maker of the dying declaration was in a fit condition to give the statement, the statement is voluntary and truthful and is free from any apparent infirmity such as embellishments. 6. We may now examine the evidence on record to ascertain whether the prosecution has proved that Shahnaz Banoo was in a fit physical and mental condition to give the statement. 6.1 PW 5 - Noorjah Ali states that the accused came to her residence with his daughter and told her that he had set afire the sister of the witness. PW 5 - Noorjah Ali then states that she and her husband went to the quarter of the accused and found her sister Shahnaz Banoo fully burnt and it was then that Shahnaz Banoo disclosed that she was burnt by the accused. It is elicited in the cross examination that Shahnaz Banoo was fully burnt and was covered with a mattress and that due to the burn injuries, she was suffering from severe pain, was crying loudly and was finding it difficult to talk. PW 7 -Dr. It is elicited in the cross examination that Shahnaz Banoo was fully burnt and was covered with a mattress and that due to the burn injuries, she was suffering from severe pain, was crying loudly and was finding it difficult to talk. PW 7 -Dr. Narayan Daware has deposed that the patient was admitted by him at 7.30 a.m. on 7.11.1996 with 92% burn injuries. It is elicited in the cross examination that the patient was not able to tell her name and that when she was admitted in the hospital, her relatives were present. PW 7 - Narayan Daware also conducted the autopsy and has proved post mortem report Exh. 29. The post mortem report discloses that the burn injuries were of 2nd and 3rd degree. The injuries to the person of the deceased, in terms of percentage, noted in column 17 of the post mortem, were thus: face .... 8% Front chest ....18% Back ....18% Right arm ....9% Left arm ...9% Right leg ....10% Left leg ....18% It is further elicited in the cross examination that considering the injuries suffered, the patient requires saline and oxygen for survival. 6.2 We have scrutinized the dying declaration Exh. 16 on record of the trial Court. We note that an endorsement and signature purporting to be of the doctor appears on the dying declaration. However, neither the name of the doctor nor the endorsement is legible. The doctor who is supposed to have certified the fitness of the patient to make the declaration, if at all, there is such a certification, is not examined. The dying declaration purports to bear the impression of thumb of the left foot of the deceased. Be it noted that as compared to the right foot, the left foot of the deceased, was more affected by the burn injuries. PW 2 - Shrihari Gajbe who recorded the dying declaration, is not in a position to state the name of the doctor who certified the fitness of the patient. PW 2 - Shrihari Gajbe has not recorded in the dying declaration nor has he deposed that he was satisfied that the patient was in a fit physical and medical condition to make the declaration. On holistic consideration of the evidence on record, it is difficult to record a finding with any degree of certainty that the patient was in a condition to make the dying declaration. 7. On holistic consideration of the evidence on record, it is difficult to record a finding with any degree of certainty that the patient was in a condition to make the dying declaration. 7. In the dying declaration at more than one place, the time and date is scored, which is admitted by PW 2 - Shrihari Gajbe. The dying declaration recorded purports to state that Shahnaz Banoo could not control her anger and poured kerosene on her person and was set ablaze with a lighted match stick by the accused. The dying declaration further records that it was the accused who poured water on the person of Shahnaz Banoo and extinguished the fire with a mattress and admitted Shahnaz Banoo to the hospital. However, in the deposition, PW 2 - Shrihari Gajbe states that Shahnaz Banoo disclosed that it was the accused who poured kerosene on her person and set her afire. It is more than apparent that PW 2 - Shrihari Gajbhe has endeavored to attribute a role to the accused which is not even attributed in the dying declaration Exh. 16. The evidence of PW 2 - Shrihari Gajbe is not free from doubt which is another circumstance for this Court to exercise utmost caution in assessing the probative value of the dying declaration recorded by the said witness. 8. In so far as the oral dying declarations said to have been made by Shahnaz Banoo to her elder sister PW 5 - Noorjah Ali and PW 6 - Kalim Khan, learned counsel Ms. Sonali Saware submits that the evidence as regards the oral dying declarations is fragile and not confidence inspiring. In the natural course, PW 5 - Noorjah Ali who is elder sister of the deceased and PW 6 - Kalim Khan who accompanied Shahnaz Banoo in the ambulance and both of whom were there when Shahnaz was admitted, would have narrated the incident as disclosed by Shahnaz Banoo either to the doctor or to the police constable on duty at the hospital. The failure to do so coupled with the nature and extent of the injuries suffered by Shahnaz Banoo impels us to discuss the oral dying declarations allegedly made by the deceased Shahnaz Banoo to PW 5 - Noorjah Ali and PW 6 - Kalim Khan. 9. The failure to do so coupled with the nature and extent of the injuries suffered by Shahnaz Banoo impels us to discuss the oral dying declarations allegedly made by the deceased Shahnaz Banoo to PW 5 - Noorjah Ali and PW 6 - Kalim Khan. 9. We are satisfied, that the prosecution has failed to clinchingly prove that the deceased was in a position to make the dying declaration and that the dying declarations made to PW 2 - Shrihari Gajbe (Exh. 16) is further voluntary and truthful. We note that PW 6 -Kalim Khan states that PW 2 - Shrihari Gajbe made in-quiries with Shahnaz Banoo in the presence of PW 6 - Kalim Khan. The suggestion of the defence to PW 6 - Kalim Khan that PW 6 - Kalim Khan and Isaq Ali (husband of PW 5 - Noorjah Ali) persuaded PW 2 -Shrihari Gajbe to record the dying declaration in a particular manner deserves due consideration in view of the several infirmities from which the evidence on record as to dying declaration Exh. 16 suffers. 10. The other issue involved in the present appeal is whether the prosecution has proved beyond reasonable doubt that deceased Shahnaz Banoo was subjected to cruelty within the meaning of section 498A of the IPC. Section 498A of the IPC reads thus: "498A. Husband or relative of husband of a woman subjecting her to cruelty -Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to file. Section 498A of the IPC reads thus: "498A. Husband or relative of husband of a woman subjecting her to cruelty -Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to file. Explanation - For the purpose of this section, "cruelty" means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable scrutiny or is on account of failure by her or any person related to her to meet such demand.)" 10.1 For the purposes of section 498A of the IPC, cruelty is statutorily defined to mean such will full conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or harassment, where the harassment is with a view to coerce the women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by the woman or any other person related to her to meet such demand. 10.2 It is well settled, and we need not burden the judgment with the plethora of authorities enunciating the law, that the cruelty which the prosecution must establish to bring home charge under section 498A of the IPC is graver than the cruelty which may constitute a matrimonial offence or which may furnish a ground for claiming relief under a matrimonial law. Cruelty is statutorily defined. The use of the expression will full brings into play an element of mens rea. Cruelty is statutorily defined. The use of the expression will full brings into play an element of mens rea. The will full conduct must be of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) or harassment, where the harassment is with a view to coerce the women or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by the woman or any other person related to her to meet such demand. 10.3 Axiomatically, the conduct must be will full, persistent and continuous. Behavioural aberrations which may constitute cruelty for the purposes of matrimonial law may not constitute cruelty for the purposes of section 498A of the IPC. The explanation (b) of section 498A taken within its sweep harassment, with a view to coerce the women or her relatives to full fill an unlawful demand. The legislative intent is that the harassment must be actuated by an intention of coercing the woman or her relatives to full fill an unlawful demand. The prosecution is obligated to prove not only that a demand was made but to further prove that the demand was accompanied by harassment or ill-treatment. 10.4 The evidence of PW 5 - Noorjah Ali, who attempted to over implicate the accused by introducing the theory of extra judicial confession in the evidence must be tested with caution. Her deposition is that Shahnaz Banoo was beaten by the accused under the influence of liquor and the intent was to pressurize her to bring dowry. The evidence is bereft of particulars. Irrefutably, the incident occurred 3 years after the marriage and there is no evidence to show that such demand was made by the accused proximate in point of time to the incident. PW 5 - Noorjah Ali is silent on the time and period and nature of the demand and has only deposed that the demand was of dowry. The evidence on record does not clinchingly establish that the accused subjected Shahnaz Banoo to cruelty within the meaning of sub section (a) and (b) of section 498A of the IPC and the intent was to pressurize or force the deceased or her family members to full fill the unlawful demand of dowry. 11. The evidence on record does not clinchingly establish that the accused subjected Shahnaz Banoo to cruelty within the meaning of sub section (a) and (b) of section 498A of the IPC and the intent was to pressurize or force the deceased or her family members to full fill the unlawful demand of dowry. 11. In the light of the discussion supra, we are not persuaded to uphold the conviction of the accused under section 498A and section 304 part II of the IPC we allow Criminal Appeal 39 of 2005 and direct the acquittal of the accused for offence punishable under section 498A and 304 part II of the IPC. The accused is in jail. He be released forthwith unless his custody is required in any other crime. 12. Criminal Appeal 123 of 2005 preferred by the State is dismissed. 13. The fees of the learned appointed counsel Ms. Sonali Saware, is quantified at Rs. 7,000/.