IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No 1 of 2001 with CRIMINAL APPEAL No 555 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE M.C.PATEL and Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ STATE OF GUJARAT Versus MOHMMED MATIN HABIB ANSARI -------------------------------------------------------------- Appearance: 1. Criminal Confirmation Case No. 1 of 2001 MR AD OZA, PP, for Petitioner No. 1 MR DEEPAK M SHAH for Respondent No. 1-2 2. Criminal Appeal No. 555 of 2001 MR DEEPAK M SHAH for Petitioner No. 1 MR AD OZA, PP, for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.C.PATEL and MR.JUSTICE A.L.DAVE Date of decision: 20/08/2002 C.A.V. JUDGEMENT (Per : MR.JUSTICE A.L.DAVE) 1. An incident occurred on May 14, 2000 at about 11.30 hours at 70, Pujari'ni Chali, Chartoda Kabrastan area of Gomtipur, Ahmedabad, in which five persons lost their lives out of burn injuries suffered by them. Out of the five persons who lost their lives, one was Sajidabanu, aged 26 years; her three children named Nesreenbanu, Nazreenbanu and Talseembanu aged 5, 4 and 2, respectively; and her brother-Izhar Ahmad, aged 22 years. A First Information Report was lodged with Gomtipur Police Station vide C.R. No.I 86/2000 by Taiyabali Ansari, husband of Sajidabanu implicating his own father-Mahmad Mateen Habeeb Ansari and his brother-Narulen alias Pappu Mahmad Mateen Ansari, alleging that they had poured kerosene on the victims, locked them in the house and set the house on fire. The motive attributed to the accused persons was a family property dispute. On basis of that F.I.R., investigation was made and charge sheet came to be filed in the Court of learned Metropolitan Magistrate for offences punishable under Sections 302 read with 34, 120-B and 506(2) read with 34 of Indian Penal Code. The case was committed to the City Sessions Court and registered as Sessions Case No.297 of 2000. The learned Additional City Sessions Judge, Court No.7, Ahmedabad, recorded a conviction for both the accused persons for the offence of murders under Section 302 read with 34 of I.P.C. in Sessions Case No.297 of 2000 on July 10, 2001. After hearing the accused persons on question of quantum of punishment, as required under Section 235(2) of the Code of Criminal Procedure, the learned Additional City Sessions Judge found that the case fell in the category of rarest of rare cases where capital punishment would be the only appropriate punishment and, therefore, awarded the same on both the accused persons, subject to confirmation by this Court, as required under Section 366(1) of the Code of Criminal Procedure. 1.1 The said judgment and order of the learned Additional City Sessions Judge, Ahmedabad, recording conviction and inflicting capital punishment has given rise to Confirmation Case No.1 of 2001. 1.2 Aggrieved by the said judgment and order, the convicts have preferred Criminal Appeal No.555 of 2001. 2. The Registry, after complying with the procedural requirements, placed these matters for final hearing. Since both the matters arise out of the same judgment and order, they are heard together and decided by this common judgment. 3. In order that the contentions raised before us by the parties may be appreciated in their proper perspective, it would be appropriate if the facts of the case are substantially stated. Mohmad Mateen Habeeb Ansari, who was accused No.1 and Narulen alias Pappu Mahmad Mateen Ansari, who was accused No.2 before the Sessions Court, have preferred the appeal as appellants No.1 and 2 respectively. They are referred to in this judgment as "appellant No.1 and appellant No.2" respectively. 4. As per the prosecution case, appellant No.1 is a native of Ramnagar, Moharabadashapur, District Jaunpur, Uttar Pradesh. He has shifted to Ahmedabad for last about 20 years and was staying at House No.7, Pujari'ni Chali, Opposite Chartoda Kabrastan, Gomtipur, Ahmedabad, with his family. He was engaged in tailoring work with Sentiment Tailors, situated at C.G. Road, Ahmedabad. He has two sons and three daughters, of which Taiyabali (the complainant) is the eldest. Younger to him is Narulen alias Pappu (appellant No.2). The three daughters are married and are staying at their matrimonial house. 4.1 Appellant No.2 was married to Zarina around 1999. 4.2 About 4-5 months prior to the date of incident, i.e. May 14, 2000, as per the case of the complainant, appellant No.1 had asked the complainant to leave the house and stay separately with his family or to go to the native place. This gave rise to a dispute in the family. The family was split into two factions. Appellant No.2, the younger brother, sided with the father-appellant No.1 and petty quarrels continued in the family on this count. 4.3 About two months prior to the date of incident, because of the quarrel on this count, Taiyabali constructed a wall dividing the house into two, providing him with a separate room. One room was occupied by the complainant, the other room continued to be in occupation of the appellants. The dividing wall was not from floor to floor, but was constructed half way and, therefore, it would be possible for a person to jump the wall and enter the other room. The ceiling to the house was made of steel sheets. After the said incident, brother-in-law of the complainant-Izhar Ahmad, aged 22 years, came from his native place in U.P. in search of employment to the house of the complainant and was staying with the complainant for about a month and a half prior to the incident. He was also engaged in stitching work. Despite this arrangement, the appellants used to pressurise the complainant and his family to vacate the house and threatened to set the house to fire. 4.4 About eight days prior to the incident, appellant No.1 had quarrelled with the wife of the complainant and her brother while the complainant was absent. When the complainant went to his father in the evening on that day to talk about the incident, appellant No.1 again quarrelled with him and insisted that the complainant should vacate the premises. On the next day, therefore, the complainant called Mohmad Aashiq Ansari, who happened to be the husband of the sister of appellant No.1, and other persons and, ultimately, a settlement was arrived at between the parties. Despite the settlement, both the appellants were quarrelling with the complainant and his family for vacating the house. 4.5 On the day of the incident, the complainant and his brother-in-law had taken a day off from the work. As per the complainant, they noticed that the appellants were discussing something inter se at a low voice. At about 10.45 hours, the complainant went to the shop of Barkatbhai, situated near Chartoda Kabrastan. At about 11.30, Sajidbhai (P.W.2) came running to him and informed that the appellants have set the house of the complainant to fire. Therefore, the complainant along with Barkatbhai rushed to the house and found that many people had gathered and the house was on fire and the neighbours were trying to put out the fire. It was noticed that brother-in-law of the complainant had sustained severe burns injuries and was made to sleep outside the house. The complainant and other persons rushed into the house and found that the wife of the complainant and the three daughters were also severely injured by burns. The injured were taken to the hospital. As per the say of the complainant in his complaint, he inquired of his brother-in-law as to how the incident occurred and his brother-in-law informed him that at about 11.30 hours, while they were watching the T.V. and both the appellants rushed to the house and poured kerosene on him as well as sister-Sajidaben and the three minior daughters of the complainant and, thereafter, went out of the house and closed the door from outside. They, therefore, raised shouts. About that time only, appellant No.2 hurled a burning cloth through the top of the dividing wall and they had, therefore, sustained burns injuries. 4.6 After the victims were taken to the hospital, the three minor daughters and the wife of the complainant expired, whereas brother-in-law of the complainant-Izhar Ahmad was in a serious condition. He prescribed medicines and advised that the pain killers be given after the dying declaration is recorded. The doctor recorded a history in the case paper to indicate that it was given by the patient as well as his brother-in-law, i.e. the complainant and it was indicated that the patient sustained homicidal burns by the father and brother of brother-in-law of the patient, i.e. Izhar Ahmad. 4.7 While Izhar Ahmad was being treated at the hospital, the police was informed and the police summoned the Executive Magistrate to record the dying declaration of Izhar Ahmad. The Executive Magistrate, reacting to the call, immediately went to the hospital and recorded dying declaration. Izhar Ahmad, in his dying declaration before the Executive Magistrate, reiterated that the appellants had poured kerosene and set them ablaze. It transpires from the evidence that, almost immediately after the dying declaration was concluded, the condition of Izhar Ahmad deteriorated and within a short time thereof, he succumbed to the injuries. 5. On basis of the complaint, the police investigated the case, filed charge sheet in the Court of learned Metropolitan Magistrate, who, in turn, committed the case to the City Sessions Court and Sessions Case No.297 of 2000 came to be registered. The charge was framed against the accused persons at Ex.1 and revised at Ex.9 for the offences punishable under Sections 302 read with Section 34, 120-B and 506(1) and 34 of the Indian Penal Code. The accused persons pleaded not guilty to the charge. They claimed to be tried by the Sessions Court and, after considering the evidence on record, as stated above, the learned Additional City Sessions Judge recorded a conviction and inflicted capital punishment. Thus, the case is before us. 6. Before proceeding to record the contentions raised before us, it would be appropriate to state certain factual aspects. 6.1 It was noticed by us that, though the Trial Court, while recording statements of the appellants under Section 313 of the Code of Criminal Procedure, had questioned the appellant about the recording of dying declaration, it had missed to put to the appellants the contents of the dying declaration so as to enable them to tender their explanation or defence and, therefore, they were summoned before this Court and specific questions were put to them indicating the contents of the dying declaration of Izhar Ahmad, recorded by the Executive Magistrate. The appellants asserted that the contents are no correct and they have been falsely implicated. 6.2 During the course of hearing and arguments, it was noticed by us that the name of the Investigating Officer was Ramanlal Bechardas Parmar. However, his evidence (Ex.56) as P.W.16 recorded on 18.6.2001 indicated his name as "Chimanlal Bechardas Parmar". This was brought to the notice of the learned Public Prosecutor, who was asked to make necessary inquiry and clarify the position. The Investigating Officer tendered an affidavit sworn by him and indicated that he had investigated the case and that his name is Ramanlal Bechardas Parmar. However, by a mistake that crept into the record of the Trial Court, his name is indicated as Chimanlal. By a separate order, we directed that the deposition given by the witness (P.W.16) may be read as given by Ramanlal Bchardas Parmar and not Chimanlal Bechardas Parmar. 6.3 It would also be appropriate to note that the appellants, as accused before the Trial Court, had requested for a defence counsel at the cost of the Government and they also made a similar prayer before this Court and the appeal is conducted by learned Advocate Mr. D.M. Shah, who has been appointed by this Court to represent the case of the appellants. For the State, learned Public Prosecutor Mr. A.D. Oza, assisted by Ms. Nandini Joshi, learned Additional Public Prosecutor, appeared. 7. Learned Advocate Mr. D.M. Shah for the appellants submitted that, if the evidence is considered, the whole case depends on the dying declaration alleged to have been made by deceased-Izhar Ahmad. Mr. Shah submitted that if the appellants are able to indicate that the dying declarations are doubtful and cannot be relied upon, they cannot be made basis of recording conviction. Mr. Shah submitted that if the evidence indicates that the dying declarations are recorded dehors the mandatory requirements, they could not have been relied upon by the Trial Court. Assailing the dying declaration (Ex.17), Mr. Shah submitted that, admittedly, the Executive Magistrate did not consult the doctor about the consciousness and fit state of mind of the declarant deceased-Izhar Ahmad at the time of recording the dying declaration. The dying declaration was recorded at 4.55 P.M., almost two hours after the certificate issued by the doctor at 3.00 P.M. on the Yadi to the Executive Magistrate that the patient is conscious and is able to give dying declaration. Mr. Shah submitted that there is evidence to indicate that the condition of the declarant would change every half an hour and, therefore, there is no medical evidence to indicate that the declarant was conscious and in fit state of mind to give dying declaration. Mr. Shah submitted that this becomes all the more important when, undisputedly, soon after the dying declaration was recorded, it is found that the patient's/declarant's condition deteriorated and he succumbed to the injuries within a short time. Mr. Shah relied on the decision in the case of Paparambaka Rosamma & Ors. v. State of Andhra Pradesh, AIR 1999 SC 3455. 7.1 Mr. Shah assailed the genuineness of the dying declaration on basis of the language employed in the dying declaration. He submitted that, as admitted by the Executive Magistrate, the dying declaration was recorded in the language in which it was given. He has drawn attention of this Court to the answer to the first question in question No.4 in the dying declaration (Ex.17). The answer is in third person singular. Mr. Shah submitted that, if it was an answer given by the deceased, it would have been in first person singular. Likewise, he had drawn attention to the answer to the last question in question No.4 of the dying declaration in respect of place and time of the incident, where it is recorded that the incident occurred at 11.30 hours on 14.5.2000 in the house situate in Pujari'ni Chali. Mr. Shah submitted that, if such question is put to a man in the condition in which the deceased was, ordinarily he would have said that the incident occurred "today at 11.30" instead of giving the date. Mr. Shah, therefore, submitted that this indicates that the dying declaration was recorded at the instance of or with the assistance of a third person and, therefore, it cannot be considered as a dying declaration of the deceased-Izhar Ahmad. 7.2 Mr. Shah assailed the dying declaration on another count also. He submitted that the Yadi which was sent to the Executive Magistrate left nothing for the Executive Magistrate to be done. The Yadi gives full details of the incident. Nothing is left for the declarant to declare and, therefore also, the dying declaration becomes doubtful. 8. As regards the history recorded by the doctor, Mr. Shah submitted that, if the case papers are seen, it is clear that the history is given not only by the deceased-Izhar Ahmad, but also by his brother-in-law, i.e. the complainant. It is not recorded in the words of the deceased by the doctor and, as such, it cannot be considered as a dying declaration. 9. Mr. Shah submitted that, as per the prosecution case, the complainant in his complaint has stated that Izhar Ahmad had made an oral dying declaration before him indicating the details of incident implicating the appellants. However, if the deposition of the complainant is seen, it is silent on this aspect. He is not confronted with his complaint by the prosecution. The Trial Court, however, considered this aspect while recording conviction, which is not proper. 9.1 Mr. Shah submitted that, as per the case of the complainant, he was informed by Mohmad Sadiq about the incident. However, if deposition of Mohmad Sadiq is seen, he does not claim to have witnessed the incident. He says that he reached the place of incident and found that the house was set ablaze and neighbours were trying to put off the fire. 9.2 Mr. Shah, therefore, urged that the whole case depends on the dying declaration recorded by the Executive Magistrate and that declaration being defective, as it is recorded in absence of a medical certificate about the consciousness and fit state of mind of the declarant, conviction could not have been recorded. He, therefore, urged that the appeal may be allowed. 10. By way of alternative submission, Mr. Shah submitted that the case before this Court cannot be considered as one falling in the category of rarest of rare cases where capital punishment is the only appropriate punishment. The appellants are not hardened criminals. They come from poor strata of the society, they are not educated and they have a family to look after. Confirming capital punishment would amount to punishing their family along with them. Mr. Shah submitted that, in a similar case, the Apex Court has also taken a view that capital punishment would not be appropriate. Mr. Shah, therefore, urged that, if the appeal is not accepted by this Court, the Confirmation case also may not be accepted and the capital punishment may be commuted to imprisonment for life. 11. Learned Public Prosecutor, Mr. A.D. Oza, while supporting the Confirmation Case and opposing the appeal, submitted that, if the deposition of Taiyabali (Ex.13) and his complaint (Ex.14), deposition of Dr. Nayak (Ex.41), deposition of the Executive Magistrate (Ex.16) and the dying declaration (Ex.17) are read together, it would make it amply clear the observation by the Trial Court that the deceased-Izhar Ahmad, the declarant, was conscious and was in fit state of mind to give the dying declaration. His version is consistent from the beginning. He says before the complainant in the same language as he has stated in the dying declaration before the Executive Magistrate and in the history given by him before the doctor. Only because the Executive Magistrate failed to obtain a certificate/endorsement of the doctor about the consciousness and fit state of mind of the declarant on the dying declaration, the dying declaration cannot be rendered unreliable and cannot be disbelieved. Mr. Oza submitted that, if the Executive Magistrate is himself satisfied about the fit state of mind, getting a certificate from the doctor that the declarant is conscious and fit to make declaration is only a rule of prudence and undue importance may not be given to this aspect of the dying declaration. He relied upon the decision of the Apex Court in the case of Koli Chunilal Savji & Anr. v. State of Gujarat, 1999(2) GLH 859. Mr. Oza submitted that, in the instant case, the dying declaration made by the deceased-Izhar Ahmad before the Executive Magistrate is preceded by the case history recorded by the doctor and the oral dying declaration by the deceased before the complainant and consistent version is coming as was the case before the Apex Court in Koli Chunilal Savji (supra). In that case, the Apex Court accepted the dying declaration in spite of the fact that the endorsement was not there on the dying declaration, but it was made on the Yadi. Mr. Oza submitted that the appeal, therefore, may be dismissed. 12. As regards the confirmation of the capital punishment inflicted by the Trial Court, Mr. Oza submitted that there could not be a better case than this wherein capital punishment can be considered to be the only appropriate punishment. The appellants have, with premeditation, committed the crime while the complainant was away and his wife and three daughters and young brother-in-law were the only persons present in the house. For no tangible reason except that the appellants wanted the complainant and his family to leave the house, the offence is committed. The manner in which the offence is committed indicates that it is a case of pre-planned multiple murders. Kerosene is poured on the persons of the deceased and they they are locked in the house. Appellant No.2 hurls a burning cloth from the top of the dividing wall which, ultimately, sets the house to fire, so also the deceased persons. Three children, aged 5, 4 and 2, have lost their lives, a lady and a young man of 22 years have also lost their lives. Deceased-Izhar Ahmad was a recent arrival and had no enmity or dispute with the appellants. Likewise, the three children also could not have any dispute with the appellants. Despite this, they have been done to death by the appellants by setting them to fire. Mr. Oza submitted that the incident would certainly have shaken the conscience of the society as well as the Court. He, therefore, urged that the punishment inflicted by the Trial Court may be confirmed. 13. We have gone through the record and proceedings which is before us. The learned advocates have also taken us through the record and proceedings to emphasize their respective versions. 14. We find from the record and proceedings that the prosecution has examined 15 witnesses as stated below :- (1) P.W.1-Taiyabali Mohmad Mateen Ansari (Ex.13). (2) P.W.2-Mahmadsadiq Mahmadsabir Ansari (Ex.15). (3) P.W.3-Executive Magistrate, William Joseph Mekwan (Ex.16). (4) P.W.4-Mahmad Mansa Mahmad Ismail Ansari - Panch (Ex.18). (5) P.W.5-Hafij Mahmad Sharif Abdul Razak Qureshi Panch (Ex.19). (6) P.W.6-Abdul Hameed Allabaksh Shaikh - Panch (Ex.25). (7) P.W.7-Ashiqali Riyazahmad Shah - Panch (Ex.27). (8) P.W.8-Govindbhai Virchandbhai Patni - Panch (Ex.29). (9) P.W.9-Lalsing Pyaresing Rajput - Panch (Ex.31). (10) P.W.10-Muslimkhan Sharifkhan Pathan - Panch (Ex.32). (11) P.W.11-Dr. Harishchandra Gemarbha Jadav (Ex.34). (12) P.W.12-Dr. Shilpaben Kanubhai Yadav (Ex.39). (13) P.W.13-Dr. Nichhal Rajnikant Nayak (Ex.41). (14) P.W.14-P.S.I., J.B. Parmar (Ex.52). (15) P.W.15-Police Constable Rameshkumar Sakharam Gavade (Ex.54). (16) Police Insepctor Ramanlal Bechardas Parmar Investigating Officer (Ex.56). 14.1 It also appears that the prosecution has produced several documents in support of its case. The important being (1) F.I.R. by Taiyabali Mahmad Mateen Ansari (Ex.14); (2) Dying declaration of Izhar Ahmad Bashir Ahmad Ansari (Ex.17); Yadi to the Executive Magistrate (Ex.53); Medical case papers of Sharda Hospital in respect of deceased-Izhar Ahmad (Ex.43); Pachnama of physical condition of appellant No.1 (Ex.28); Arrest Panchnama of appellant No.2 (Ex.33); and Panchnama of condition of appellant No.2(Ex.62). 15. At the outset, what appears is that the appellant-original accused has not challenged the factum of homicidal death of the deceased persons seriously. The contentions raised before this Court spin around the validity of dying declaration and acceptability of dying declaration. However,it may be worthwhile to state that, as per the suggestions made during the cross-examination and the statement of the accused, an attempt is made to indicate that there was an accidental fire by short circuit. However, considering the evidence of witnesses as a whole and the contents of the Panchnama of the place of incident, it is amply clear that there cannot be any doubt about the fact that all the deceased persons have not met with an accidental death. P.W.11-Dr. Jadav, in deposition at Ex.34, has clearly stated in his examination-in-chief that the injuries were of the nature which would indicate that they are homicidal. He, however, admits in cross-examination that he cannot definitely opine whether the burns/fatal injuries accidental, suicidal or homicidal. Same is the opinion of