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2020 DIGILAW 726 (BOM)

Nashir v. State Of Maharashtra

2020-05-29

M.G.SEWLIKAR, T.V.NALAWADE

body2020
JUDGMENT M.G. Sewlikar, J. - Being aggrieved by the judgment and order dated 09.10.2013, passed in Sessions Case No. 126/2013, by the learned Additional Sessions Judge, Osmanabad, whereby accused Nos. 1 and 2 have been convicted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and each of them has been sentenced to rigorous imprisonment for life and to pay fne of Rs. 5,000/- each, in default to suffer rigorous imprisonment for six months. Accused Nos. 1 and 2 are also convicted under Section 498A read with Section 34 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for two years and to pay fne of Rs. 1,000/- each, in default to suffer simple imprisonment for six month. 2. The facts leading to this appeal are that accused No. 1(appellant No. 1) is the son of accused No. 2 (appellant No. 2). The deceased Samina was the wife of accused No.1. It is the case of the prosecution that the deceased Samina was married to accused No. 1 in the year 2006. The deceased Samina had fled a criminal case against the appellants under Section 498A of the Indian Penal Code. Compromise was arrived at between her and the appellants about 2 1/2 months prior to the incident. In terms of the compromise, the deceased Samina had come back to her matrimonial home and resumed cohabitation with the appellants at Khamaswadi, Tq. Kallam. 3. It is the case of the prosecution that on 25.10.2012, accused No. 2 Hanifa with the help of neighbours brought the deceased Samina to Civil Hospital, Osmanabad, as the deceased Samina had suffered burn injuries. After admission of the deceased Samina in Civil Hospital, Osmanabad, intimation was given to the police about admission of deceased Samina in Civil Hospital, Osmanabad on account of burn injuries. Accordingly, PW 2 ASI Vitthal Atkure went to the hospital. He met Dr. Ramdhave (PW 3) and recorded dying declaration of the deceased Samina. The deceased Samina stated in her dying declaration that accused Nos. 1 and 2 had a quarrel with her on domestic chores owing to which, they poured kerosene on her person and set her on fre. This dying declaration was recorded on 25.10.2012. Second dying declaration was recorded by ASI Kamble on 26.10.2012. In the second dying declaration also, she repeated the same incident. 1 and 2 had a quarrel with her on domestic chores owing to which, they poured kerosene on her person and set her on fre. This dying declaration was recorded on 25.10.2012. Second dying declaration was recorded by ASI Kamble on 26.10.2012. In the second dying declaration also, she repeated the same incident. Dying declaration dated 25.10.2012 (Exhibit 14) was treated as First Information Report and accordingly, offence under Sections 307, 498A read with Section 34 of the Indian Penal Code was registered against the appellants. The deceased Samina breathed her last on 31.10.2012 and thereafter, offence was converted into Sections, 302, 498A read with Section 34 of the Indian Penal Code. 4. After registration of the crime, spot panchanama (Exhibit 24) was prepared on 26.10.2012. The clothes of the deceased were seized during spot panchanama. Statement of the witnesses were recorded. Seized articles were sent to Chemical Analyser for analysis. Charge-sheet was submitted before the learned Judicial Magistrate, First Class, Osmanabad who committed the same to the Court of Session, Osmanabad in usual manner. 5. Charge was framed by the learned Additional Sessions Judge, Osmanabad at Exhibit 5. It was read over and explained to the accused-appellants to which they pleaded not guilty and claimed to be tried. Their defence is of total denial. It is the defence of the accused/appellant No. 1 as revealed from cross examination and from the statement under Section 313 of the Code of Criminal Procedure that at the time of the incident he was out of station and he came to know in the afternoon that the deceased Samina had set herself on fre. The deceased Samina did not regain consciousness. 6. It is also the defence of accused No. 1 that at the time of the incident, he had gone to Salegaon for selling milk as he is a milkman. In the afternoon, he came to know that the deceased set herself on fre. She did not regain consciousness. It is the defence of accused No. 2 Hanifa that PW 9 Khairunbee had called her for lunch and at the time of the incident, she was in the house of Khairunbee. She went back home on learning that there was commotion in the house and she noticed that Samina was burning. She took her to the hospital. 7. It is the defence of accused No. 2 Hanifa that PW 9 Khairunbee had called her for lunch and at the time of the incident, she was in the house of Khairunbee. She went back home on learning that there was commotion in the house and she noticed that Samina was burning. She took her to the hospital. 7. The learned Additional Sessions Judge, Osmanabad, on appreciation of the entire evidence tendered before him, came to the conclusion that the deceased Samina was subjected to ill-treatment. He also came to the conclusion that the dying declaration given by the deceased was truthful and voluntary and can be relied upon. Accordingly, the learned Additional Sessions Judge recorded conviction and sentenced the accused/appellants hereinabove stated. This order is impugned in this appeal. 8. Heard Shri Ghanekar, learned counsel for the appellants and Shri Sangle, learned APP for the State. 9. Shri Ghanekar, learned counsel for the appellants argued that the accused-appellant No. 1 is a milkman and he had gone for distribution of milk in the morning and was not at home when the incident took place. He submitted that none of the witnesses had stated presence of appellant No. 1 at the time of the incident. He further contended that the dying declaration cannot be acted upon as it is suspicious and suffers from infrmities. He further submitted that accused No. 2 was having meal at the residence of witness Khairunbee. Witness Khairunbee also has stated to that effect. He submitted that this clearly shows that accused-appellant No. 2 was also not present at the spot of the incident. He argued that these circumstances clearly indicate that the dying declaration is tutored and therefore, no reliance can be placed on the dying declaration. He further submitted that there was no motive for the deceased to implicate accused in the case. He, therefore, prayed for allowing the appeal. 10. Shri Sangle, learned APP submitted that the dying declaration is truthful and inspires confdence. He submitted that the Medical Offcer was present throughout the recording of the dying declaration and therefore, the dying declaration inspires confdence. He submitted that Khairunbee has turned hostile as she has been won over by the accused and, therefore, admission given by her is of no consequence. He submitted that the dying declaration clearly implicates both the appellants. He submitted that the Medical Offcer was present throughout the recording of the dying declaration and therefore, the dying declaration inspires confdence. He submitted that Khairunbee has turned hostile as she has been won over by the accused and, therefore, admission given by her is of no consequence. He submitted that the dying declaration clearly implicates both the appellants. He contended that the deceased had fled a criminal case under Section 498A of the Indian Penal Code against the appellants which was compromised 2 1/2 months before the incident and she had resumed cohabitation with the appellants. Soon thereafter this incident took place. He contended that this clearly shows that the appellants had a motive to eliminate the deceased anyhow. He submitted that the conviction recorded by the learned Additional Sessions Judge, Osmanabad, is perfectly legal and proper and no interference is warranted. 11. It is not in dispute that the deceased Samina was the wife of the appellant No. 1 and daughter in law of appellant No. 2. It is also not disputed that the deceased sustained burn injuries on 25.10.2012 and she was admitted in the Civil Hospital, Osmanabad, by appellant No. 2. It is an admitted position that a criminal case was fled by the deceased against the appellants which was amicably settled and the deceased had resumed cohabitation with the appellants about 2 1/2 months prior to the incident. 12. Pw 1 is Medical Offcer Dr. Diggaj Ramesh Dapke Deshmukh. It has come in his evidence that the deceased had sustained 58% burns details of which are as under:- Upper Limb - Right - 05% Lower Limb - Left - 05% Chest & Abdomen - 12% Back - 03% Lower Limb - Right - 09% Lower Limb - Left - 18% -------------------- 58% According to the Medical Offcer, the cause of death was shock due to superfcial to deep injuries. 13. Prosecution case hinges upon dying declaration. Dying declaration was recorded by P.W. 2 ASI Atkure. He has stated that on receipt of intimation from the Civil Hospital, Osmanabad, he went there. He requested Dr. Ramdhave (PW 3) to examine the patient and to certify whether she was in a ft state of mind to give the dying declaration. Accordingly, the Medical Offcer Dr.Ramdhave examined the patient and told him that the patient was in a condition to give the statement. 14. He requested Dr. Ramdhave (PW 3) to examine the patient and to certify whether she was in a ft state of mind to give the dying declaration. Accordingly, the Medical Offcer Dr.Ramdhave examined the patient and told him that the patient was in a condition to give the statement. 14. It has further come in her evidence that he asked the patient her name and address and she told it as Samina Nasir Beg r/o Khamaswadi. On enquiry, the deceased told him that in the morning appellants No. 1 and 2 poured kerosene on her person and set her afre. Accordingly, he reduced the said dying declaration to writing and read over it to the deceased. Deceased admitted it to be correct and thereafter, he obtained her right hand thumb impression below her statement. Thereafter, he also signed the statement. 15. Medical Offcer Dr. Ramdahve corroborated the testimony of PW 2. He stated that on the request of PW 2 ASI Atkure, he examined the patient and found her conscious and in a position to give the statement and accordingly, he made the endorsemen. After completing the dying declaration he again made the same endorsement. The contents of dying declaration are as under :- 16. This dying declaration is indistinct and vague. It does not specify as to who poured kerosene on the person of the deceased Samina and who ignited the match stick. This dying declaration indicates that both the appellants poured kerosene on her person and both the appellants ignited the match stick. It is diffcult to fathom that both the appellants would pour kerosene and both of them would ignite the match stick and set her on fre. Therefore, in the absence of specifc details about the role played by each of the accused, it cannot be said that the dying declaration is confdence inspiring. Therefore, because of vagueness of the dying declaration, implicit reliance cannot be placed on it. 17. Dying declaration further states that there was petty quarrel between the appellants and the deceased owing to which, she was set on fre. The dying declaration does not mention what was the nature of the quarrel nor the witnesses i.e. PW 4 Shaikh Jalal s/o Gulmahammad (father of the deceased) stated anything about it. 18. Since the dying declaration is not confdence inspiring, it will have to be seen whether there are any corroborative circumstances. The dying declaration does not mention what was the nature of the quarrel nor the witnesses i.e. PW 4 Shaikh Jalal s/o Gulmahammad (father of the deceased) stated anything about it. 18. Since the dying declaration is not confdence inspiring, it will have to be seen whether there are any corroborative circumstances. Prosecution tried to establish the presence of accused No. 1 at the spot by examining PW 7 Babasaheb Bakale, but he has turned hostile. Prosecution could not elicit anything from his cross examination. PW 9 Khairunbee is another witness who had reached the spot of the incident soon after the incident. She has also turned hostile. Thus, there is no evidence except the vague and indistinct dying declaration to indicate that accused No. 1 was present in the house at the time of the incident. 19. Prosecution could not produce any evidence to show that the accused No. 1 had taken the deceased to the hospital. It is not the case of the prosecution that appellant No 1 had, after commission of the offence, run away from the spot of the incident. PW 4 has admitted in the cross examination that accused No. 1 is a milkman and sells about 20 to 25 litres of milk per day. It is common knowledge that milk is distributed in the morning and in the evening. The time of the incident is 9.30 a.m. Therefore, absence of appellant No. 1 in the house at the time of the incident becomes more probable. PW 4 in the cross-examination states that when he reached the hospital, doctor, police, PW 9 Khairunbee and one Bakale were present near Samina. He does not say that appellant No. 1 was there near Samina or in the hospital at that time. Therefore, all these circumstances point towards absence of the accused at the time of the incident. 20. Absence of accused No. 1 and accused No. 2 at the spot of the incident is further strengthened by the fact that the clothes of accused Nos. 1 and 2 were not seized by the Investigation Offcers PW 10 and PW 11. No explanation is forthcoming from the prosecution about it. Therefore, on the background of the aforestated circumstances, only logical inference one can draw is that their clothes were not seized as they did not furnish any evidence of presence of kerosene particles. Had accused Nos. 1 and 2 were not seized by the Investigation Offcers PW 10 and PW 11. No explanation is forthcoming from the prosecution about it. Therefore, on the background of the aforestated circumstances, only logical inference one can draw is that their clothes were not seized as they did not furnish any evidence of presence of kerosene particles. Had accused Nos. 1 and 2 set the deceased on fre, in all probability, clothes of accused Nos. 1 and 2 would have had kerosene residues. Therefore, there are no corroborative circumstances indicating involvement of accused Nos. 1 and 2 in the alleged offence. 21. At the time of admission of the deceased in the Civil Hospital, Osmanabad, history was recorded by Dr. Mahesh Kanade. He was not examined either by the prosecution or defence. Therefore, he was summoned as the Court witness. He stated that deceased had given history of burn injuries. In the cross-examination by the accused, Dr. Kanade has stated that the deceased was under treatment of Dr. Karanjkar and Dr. Karanjkar had given injection Fortwin to the deceased. In the cross-examination by the learned APP he has stated that Fortwin was injected to the deceased. According to this witness, if Fortwin is injected, the patient sleeps for two to three hours. When a patient sleeps for two to three hours, it is diffcult to believe that the deceased was in a position to give dying declaration. Having regard to this, it is diffcult to accept that the deceased was in a sound state of mind while giving dying declaration. 22. Another form of evidence against the appellants is the oral dying declaration given to PW 4the father of the deceased. He has stated that the appellants were demanding Rs. 40,000/- from the deceased for purchasing motorcycle and she was subjected to beating on that count. She had fled a report in Police Station. About 2 1/2 months prior to the incident, both the appellants came to him and took the deceased Samina back for cohabitation on the assurance that they would maintain her well. 23. He has further stated that appellant No. 1 Nasir informed him on telephone that Samina was burnt. Therefore, he, his son and wife went to Khamaswadi. At Khamaswadi he learnt that Samina was taken to the hospital at Osmanabad. When he came to Osmanabad, he saw Samina in the hospital. 23. He has further stated that appellant No. 1 Nasir informed him on telephone that Samina was burnt. Therefore, he, his son and wife went to Khamaswadi. At Khamaswadi he learnt that Samina was taken to the hospital at Osmanabad. When he came to Osmanabad, he saw Samina in the hospital. On asking Samina she stated that there was petty quarrel and her husband poured kerosene on her and her mother-in-law set her on fre with the help of match stick. 24. In the cross-examination, this witness has admitted that appellants have 2 1/2 acres irrigated land at village Khamaswadi. Appellant No. 1 is cultivating sugarcane crop in his feld and has 5 to 6 cows. He also admitted that accused No. 1 used to sell 20 to 25 litres of milk per day and his fnancial condition was good. He has further admitted in the cross-examination that there are in all four members in his family and all of them are doing labour work. They have no other source of income. 25. From the cross-examination of this witness, what emerges is that the fnancial condition of the appellants is good. Appellant No. 1 has 2 1/2 acres irrigated land and he was taking crop of sugarcane in his feld. He also had 5 to 6 cows and he used to sell 20 to 25 litres milk per day. This clearly shows that the fnancial condition of the appellants was sound. PW 4 also admitted that the fnancial condition of the appellants was good. When fnancial condition was good, the question arises as to why appellant No. 1 would demand Rs. 40,000/- from PW 4 when PW 4's fnancial condition is not good. He does labour work. In this view of the matter, it does not appeal to reason that appellants would have demanded Rs. 40,000/- from PW 4. Even the dying declaration does not say that appellants had demanded Rs. 40,000/- from the father of the deceased for purchasing motorcycle. As stated above, the cause for setting deceased on fre was a petty quarrel between the appellants and her. Therefore, it is diffcult to comprehend that the appellants would have made unlawful demand of Rs. 40,000/- from PW 4. Thus, there was no motive with the appellants to eliminate the deceased. 26. As stated above, the cause for setting deceased on fre was a petty quarrel between the appellants and her. Therefore, it is diffcult to comprehend that the appellants would have made unlawful demand of Rs. 40,000/- from PW 4. Thus, there was no motive with the appellants to eliminate the deceased. 26. So far as oral dying declaration given to PW 4 is concerned, as stated above, Court witness Dr. Kanade had stated that Fortwin was injected to the patient and a patient to whom Fortwin is injected sleeps for 2 to 3 hours. On this background, the oral dying declaration given to PW 4 also becomes doubtful. 27. The case of the prosecution is that the appellants were demanding Rs. 40,000/- and she was subjected to ill-treatment on account of non-fulflment of the same. As stated above, except the evidence of PW 4, there is nothing to show that appellants had demanded Rs. 40,000/- from him for purchasing motorcycle. As stated above, the fnancial condition of the appellants was good. As against this, fnancial condition of PW 4 is poor. Therefore, it is diffcult to accept that a person whose fnancial condition is sound would demand Rs. 40,000/- for purchasing motorcycle from a person who is hand to mouth. It does not appeal to reason. In this view of the matter, it cannot be accepted that the prosecution has proved that deceased was subjected to cruelty on account of non-fulflment of demand of Rs.40,000/-. 28. Having considered the entire evidence on record, it is diffcult to accept that appellant Nos. 1 and 2 had set the deceased on fre. Learned APP Shri Sangle argued that the Chemical Analyser's report shows presence of kerosene residues on the clothes of the deceased. He argued that this clearly shows that the deceased had been burnt by the appellants. This submission cannot be sustained. Evidence on record does not show presence of accused No. 1 and 2 at the spot of the incident. According to PW 9 Khairunbee, appellant No. 2 was at her house when the incident took place clothes of accused No. 1 and accused No. 2 were not seized. Therefore, the possibility of deceased setting herself on fre cannot be ruled out. All these circumstances point towards the possibility of suicide by the deceased. Therefore, accused No. 1 and Accused No. 2 are entitled to beneft of doubt. 29. Therefore, the possibility of deceased setting herself on fre cannot be ruled out. All these circumstances point towards the possibility of suicide by the deceased. Therefore, accused No. 1 and Accused No. 2 are entitled to beneft of doubt. 29. From the evidence discussed above, it cannot be said that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. Hence, we hold that the learned Court has committed error in recording conviction. In view of this, conviction cannot be sustained. Hence, the appeal is allowed. Conviction and sentence recorded by the learned Additional Sessions Judge, Osmanabad, is set aside. Accused Nos. 1 and 2 are acquitted of the offence punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code. Accused No. 1 and Accused No. 2 be set free forthwith if not required in any proceeding.