IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 502 of 1998 with CRIMINAL APPEAL No 542 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE D.K.TRIVEDI and Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 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? @ MOHAMMED ISMAIL @ HAJI ABDUL KADAR SHEIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 502 of 1998 MR MM TIRMIZI for appellant No. 1 Mr.B.Y.Mankad , learned Addl.P.P. for Respondent No. 1 2. Criminal Appeal No. 542 of 1998 Mr.B.Y.Mankad, learned Addl.P.P. for appellant No.1 NOTICE SERVED for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI and MR.JUSTICE H.H.MEHTA Date of decision: 24/07/2002 COMMON ORAL JUDGEMENT (Per : MR.JUSTICE D.K.TRIVEDI) 1. The appellant accused has challenged the order of conviction and sentence recorded by the learned Addl. City Sessions Judge, Court No.11, Ahmedabad City on 3.4.98 in Sessions Case No.180/97 wherein the learned trial Judge has convicted the accused for the offence punishable under Section 304 Part II of I.P.C. and ordered to suffer R.I. for 7 years and a fine of Rs.1000/-- in default accused has to undergo R.I. for one month by preferring Criminal Appeal No.502/98. While Criminal Appeal being Criminal Appeal No.542/98 is filed by State of Gujarat challenging the order of acquittal of the accused under Section 302 of the I.P.C. passed by the learned trial Judge in the aforesaid Sessions case on 3.4.98. 2. As the judgment under challenge is common, wherein the accused has challenged the order of conviction and sentence while the State has challenged the order of acquittal passed by the learned trial Judge acquitting the accused from the offence under Sec.302 of the I.P.C., accordingly both the Appeals were notified for admission and as per order dated 21.12.98 notice was issued to the accused in jail and the notice of Appeal was duly served to the accused in jail. It is further found that when the said notice was received back, there is nothing to indicate that whether the accused has requested to represent through his own lawyer or he has requested for providing legal aid. Accordingly when the matter was before us, as per order dated 23.7.2002 we have directed the jail authority to produce accused Mohammed Ismail Alias Haji Abdul Kadar Sheikh before this court as the State has challenged the order of acquittal passed against the said accused. In view of the order of production of the accused, accused was brought by the jail authority before us and we have informed the accused that the State has challenged the order of acquittal and the notice in the said Appeal was duly served on him in the jail and we have also shown the notice, which was acknowledged by him by putting his signature, and on seeing the said notice he had identified his signature on the said notice and he has further confirmed that he has not made any request to the jail authority for engaging his private advocate or for providing legal assistance from the State. According to him, he has challenged the order of conviction by filing Appeal through private advocate and he has further stated that Mr. Tirmizi, learned advocate, will represent him in the said Appeal and accordingly Mr. Tirmizi has also agreed that he will represent the accused in both the Appeals. 3. During hearing Mr. Tirmizi, learned advocate, has taken us through the paper book consisting of oral and documentary evidence recorded during the trial as well as the judgment under challenge. It is his contention that the learned trial Judge was not right in accepting the prosecution case and further that the learned trial Judge has failed to take into consideration the defence put forward by the accused. He next urged that the learned trial Judge has also committed error in relying upon the dying declaration of the deceased recorded by the Executive Magistrate, in view of the fact that deceased Madinaben had burn injuries to the extent of 95% and considering the extend of such burn injuries, Madinaben could not be in a position to narrate or give dying declaration before the Executive Magistrate and according to Mr. Tirmizi that relying upon such dying declaration, the learned trial Judge has committed error and the order passed by the learned trial Judge convicting the accused for the offence under Section 304 Part II of the I.P.C. deserves to be set aside. 4. On the other hand, Mr. Mankad, learned Addl.P.P. has vehemently urged that in view of the dying declaration of Madinaben recorded by the Executive Magistrate, the learned trial Judge was not right in acquitting the accused from the offence under Section 302 of the I.P.C. and according to him the order of acquittal of the accused from the offence under Section 302 of the I.P.C. deserves to be set aside and the accused is responsible for the said offence. Mr. Mankad has also while arguing before us taken us through the observations made by the learned trial Judge while acquitting the accused from the offence under Section 302 of the I.P.C. etc. It is his contention that as per the prosecution case the accused had on the previous day of the incident threatened Madinaben and Madinaben had approached the sister of the accused and she alongwith her sister in law had returned and went to the house and at that time accused had assaulted deceased Madinaben and dragged her in the kitchen and poured kerosene on her and ignited her with the result that Madinaben had sustained burn injuries and Madinaben was taken by her husband at the Hospital for treatment and during treatment she has succumbed to her injuries on 14.2.97. Mr. Mankad has vehemently urged while referring to the complaint filed before the police in the earlier in point of time stating that Madinaben was being abused by the accused even on the previous day as well as on the day of incident and the complaint also highlighted about the motive for committing such offence. It is the contention of Mr. Mankad that as found from the evidence of the Executive Magistrate, who has recorded the dying declaration of the deceased in the Hospital, he had ascertained from the Doctor about the consciousness of the injured Madinaben and it is further found from the evidence of the Executive Magistrate that while recording such dying declaration he has taken all precautions by not keeping any relative or the police person nearby injured Madinaben and the dying declaration of Madinaben was recorded in question - answer form and Madinaben has in her dying declaration stated about the manner in which her husband had beaten her by dragging her in the kitchen and at the instance of the husband she has sustained burn injuries. According to Mr.Mankad, the learned trial Judge ought to have held that in view of the evidence led by the prosecution, the accused has committed offence punishable under Section 302 of the I.P.C. 5. To examine the contentions raised before us by Mr. Tirmizi and Mr. Mankad, learned Addl.P.P., it is necessary for us in brief to refer to the prosecution case as well as the defence put forward by the accused. It is an admitted fact that the accused and Madinaben had married to each other 5 years prior to the incident. It is also found from the evidence that Madinaben had three children out of the earlier marriage and after giving divorce to her husband, she married to the appellant accused Mohammed Ismail Alias Haji Abdul Kadar Sheikh. After her marriage with Mohammed Ismail they had three children and all the three children, Madinaben and her husband were staying together. The house in which they were residing, is belonging to deceased Madinaben. It is also found from the evidence that the marriage of Madinaben with accused was a love marriage. The incident in question had occurred on 8.2.97. Prior to the said date, namely, on 7.2.97 in the night at 11 '0' clock, deceased Madinaben had misplaced Rs.10/-- given by the accused and when said amount was demanded, she could not give the same. Accused had accordingly beaten Madinaben at night and the accused also gave threat to burn her. Accordingly on the next day morning i.e. on 8.2.97 at 9.0 A.M. she approached her sister in law Rashidaben to persuade her brother and thereafter Madinaben returned to her house with Rashidaben. At that time accused was present at the house and he assaulted Madinaben in the presence of Rashidaben. Rashidaben tried to intervene but she was also beaten. Thereafter, the accused pushed Madinaben inside the house and poured kerosene on her and ignited match stick. Madinaben cried. Rashidaben, her sister in law, tried to wrap Rajai to save her and 4 to 5 persons of Maholla also came on the spot. Madinaben fell unconscious. Thereafter, she was removed to Civil Hospital, Ahmedabad for treatment. Doctor has started treatment. From the Hospital a Vardhi was sent to Rakhial Police Station and on the basis of Vardhi, Police recorded the complaint of Madinaben and the offence was registered. Investigating Agency has issued yadi to the Executive Magistrate for recording the dying declaration and accordingly the Executive Magistrate has on the basis of the Yadi sent to him, reached at the Hospital. He contacted the Medical Officer to find out whether Madinaben is in a position to give dying declaration and on getting Certificate from Medical Officer that Madinaben is in a fit condition to giver her dying declaration, he had recorded the dying declaration after following the procedure for recording such dying declaration. Prior to recording of the dying declaration by the Executive Magistrate, the complaint of Madinaben was recorded by the Police and on the said complaint, the investigation had proceeded further. The accused was also arrested and he was having injury, as according to the accused at the time of the incident when he tried to save her, deceased Madinaben had given bite. The arrest of the accused was affected. Police has also recorded the statements of witnesses. Panchanama of the scene of offence was also drawn by securing the presence of Panchas. The cloth worn by the accused which were found in the room were also seized under Panchanama. The muddamal, which was recovered, was sent to Forensic Science Laboratory for investigation. Madinaben died in the Hospital during treatment on 14.2.97. On getting the information, the inquest panchanama was draw and on completion of the investigation, the charge sheet was filed against the accused for the offences punishable under Sections 307 and 498-A of the I.P.C. We may also observe that as Madinaben had died on 14.2.97, the offence under Section 302 of the I.P.C. was added. 6. The prosecution had in all examined 12 witnesses, including the persons from the Investigating Agency and the Doctor attached to the Hospital as well as the Panch witnesses. P.W.2 Rashidaben, real sister of the accused, has not supported the prosecution case and at the request of the learned P.P. she was treated as hostile. 7. Liyakatali - P.W.7 examined by the prosecution has deposed that he is residing behind the Monogram Mill in Rangwala-ni Chali. He knows Madinaben as well as her husband - the present appellant. He has also identified the accused in the court. He deposed that accused had frequent quarrel with his wife Madinaben and accused had some ill relation with one Mehrunnissa, who was residing nearby the house of accused and on that count, the quarrel used to take place between them. On the day of incident, he was at his shop. His shop is situated about 20 ft. away from the house of accused. At that time it was 10 '0'clock. Even at that time there was a quarrel between the appellant and Madinaben. She was crying. People were shouting "Fire - Fire". He reached at the house of Madinaben and he saw Madinaben in burnt condition. In the cross-examination the witness has denied that he has no relation with father of deceased Madinaben and he is residing in Rangwala-ni Chali since 1970. He denied the suggestion that accused and Madinaben were staying with six children and further denied that there was quarrel between the deceased and accused on that count. He denied that because of the cry he has not gone to the house of Madinaben. He denied that he has no personal knowledge about the incident and the witness has also denied that there was no quarrel with him by the accused. He denied the suggestion that there was no ill relation between accused and Mehrunnissa and he is deposing falsely. 8. We are not referring to the evidence of real sister of appellant Rashidaben. However, at this juncture it is necessary for us to refer to her version before the court with regard to the incident. Rashiaben - P.W.2 had deposed that the deceased Madinaben had married to her brother Mohammed Ismail, who is accused in the present case. As she has not supported the prosecution by stating that the police has not made any inquiry in respect of the incident, she was treated as hostile witness and in the cross examination by the learned P.P., though admitted that the statement was recorded by the police, she has not supported such version, which she has given before the police. Though the witness has in term stated in her statement before the police and before the court,she has denied the contents of her statement. She had stated that on the day of incident at 9.0 A.M. Madinaben had come to her house and she has informed the story to her as well as to her husband that her husband has assaulted her on the previous day at about 11 P.M. There was some dispute on account of money and her husband had given threat to burn and accordingly she approached them to advice her husband. She alongwith Madinaben had come in rickshaw and at that time her brother had, in her presence, assaulted the deceased, during which she intervened and she was also beaten by her brother. Thereafter,her brother took Madinaben inside by giving force and she was asked to stand outside the house. There was cry and when she went inside the house, she saw Madinaben was burning. She accordingly put Rajai. She had also denied that she is deposing falsely to help her brother. As observed earlier, P.W.2, who is the real sister of accused, has not supported the prosecution. 9. As found from the evidence Madinaben was taken by her husband to Civil Hospital. Medical case papers show that on 8.2.97 at 11 A.M. she was taken to Civil Hospital and the history was conveyed by the appellant to the Doctor. History given by the appellant shows that in their house by pouring kerosene Madinaben at about 10.30 A.M. sustained burn injury. The medical case papers of Madinaben are at Exh.38. It is further found from the medical case papers that she was treated in the Civil Hospital and she died on 14.2.97 at night. When she reached at the Hospital Dr. Joshi attached to the Civil Hospital had informed the Constable attached to the Hospital and the Vardhi was given, which is at Exh.27. As found from the Vardhi Exh.27, the police was informed that as per the instruction given by Dr.Joshi from the Civil Hospital, one lady named Madinaben aged 30 years on 8.2.97 at about 10.30 A.M. for some reason in the house of her husband by pouring kerosene has sustained burn injury and brought in the Civil Hospital at 11 A.M. by her husband and the patient Madinaben has been referred to Burns Ward E/5 and to do needful in the matter. 10. P.W.9 Natvarlal Rathod has deposed that he was attached to Rakhial Police Statio as 2nd P.I. and when he was on duty on 8.2.97 P.S.O. Balwantbhai had given Vardhi and on the strength of the said Vardhi he had gone to Civil Hospital where he met Madinaben. She was found in burnt condition and she was completely conscious and she was talking. Question was put to Madinaben and accordingly he inquired with Madinaben. Madinaben gave complaint, which he has recorded. After recording the complaint, thumb impression of Madinaben was taken and he has also put the signature in the said complaint. The complaint of Madinaben was written by his Writer Constable and P.W.9 Rathod had also identified the hand writing of his Writer. The complaint filed by Madinaben was shown to the witness, which is at Exh.23. On seeing the said complaint Exh.23,he identified that the thumb impression was of Madinaben, which was put in his presence and he has also signed the said complaint. It is found from his deposition that he issued Yadi to the Executive Magistrate for recording the dying declaration of Madinaben. The witness has also while referring to the said yadi also identified the hand writing of Patel and also signature on the said Yadi of Patel. The Yadi was written by Patel in his presence and the contents thereof are also found to be true. Thereafter, from the Civil Hospital he went to the Police Station and he has submitted report to the P.S.O. for registering the offence. The report was prepared by him and also signed by him and the contents in the report was also found to be correct, which is also proved and the said report is at Exh.25. On the strength of the report submitted by him, the offence was registered at Rakhial Police Station and further investigation of the case was handed over to Desai, Senior Police Inspector. In cross examination it is found that whenever any Message is received in the police station, entry is always made in the Vardhi Book and further admitted that Vardhi Book is always maintained and kept by P.S.O. He has also brought the Vardhi Book in the court and in respect of the incident, Vardhi was found and the same was received at 11.15 A.M. It is further found from the cross examination that on the strength of the Vardhi he reached the Civil Hospital at 11.35 and went to the Burns Ward and approached the nurse. When he reached near Madinaben on the Burns Ward nearby her husband, Aisabibi and one person was present. He did not inquire with the accused about the burn injuries found on Madinaben. He has started inquiring with Madinaben. He has admitted that Madinaben had sustained burn injury. However, she was in a position to speak. He denied that Madinaben has not stated anything in respect of the incident and further denied that no complaint was given by Madinaben. He has further denied that the complaint was given by her brother, who was present at that time. As found from the evidence of P.W.9 Rathod, who is 2nd P.I. attached to Rakhial Police Station, on getting the Vardhi from the Hospital he immediately rushed to the Civil Hospital and inquired about Madinaben and Madinaben was found in the Burns Ward and he recorded the complaint of Madinaben and Madinaben also put her thumb mark on the said complaint and he has also signed the said complaint as the complaint was given before him. 11. The complaint of Madinaben is at Exh.23, wherein Madinaben has in detail given background about her family members and also her marriage to the accused, which has taken place before 5 years. She has disclosed that from her marriage with accused, they have one son and two daughters. Elder daughter is Salma aged 13, son Sadiq aged 9 and daughter Sabana 7 years and all the three children are staying with her mother. After taking divorce with the earlier husband, she got married to Mohammed Ismail - the present accused and from their marriage she delivered two daughters and one son, namely, Sahnoor aged 5, Nenoor aged 3 and youngest son aged 1 year. After her marriage, all the three children with her husband were staying in the house belonging to her. Her husband was not doing any work and her husband was selling liquor and he also used to beat her. Her husband has also developed illicit relation with Mehrunnissa, the daughter of Vahadbhai, who was residing nearby their house and he was intent to marry her and for that accused was giving ill treatment to her. While referring to the incident of previous day i.e. on 7.2.97,she described that her husband came at about 11 '0' clock at night and the amount of Rs.10/-- given by her husband were not found and her husband has demanded back the said money for which she has not paid and accordingly her husband gave kick and fist blows. She remained in the house and her husband had also given threat that "I will kill you by giving burns". Accordingly on the next day morning i.e. on 8.2.97 due to threat given by her husband, she approached at the house of Rashidaben at 9 A.M. and requested her to advice her brother. She has gone to the house of Rashidaben situated at Millatnagar Shah Alam. At that time Rashidaben as well as her husband Gullu were present. Rashidaben had accompanied her and they had gone to the house in rickshaw. At that time her husband was present in the house. Her husband has in presence of his sister has assaulted her, during which Rashidaben had intervened. Her husband has assaulted her and dragged her inside the house. Her husband has taken out kerosene from the Kerba and poured the same on her and ignited the match stick, because of which she cried. Rashidaben has came to help and also threw Rajai. Other persons from the vicinity had also gathered. This incident had occurred at about 10 or 10.15 A.M. Due to burn injury, she became unconscious. On the previous day, because of the fight with her husband, she had also given bite on the left hand palm. After sustaining burn injuries, the other sister of accused Ashabibi and her husband had taken her to Civil Hospital. In the complaint she has disclosed that the incident took place at about 10.10 A.M. because of the ill relation with Mehrunnissa, who was residing nearby her house and accused intended to marry her, for which accused was giving ill treatment and poured kerosene on her and she had sustained injury and her husband has committed attempt to murder. The complaint Exh.23 is recorded in the first in point of time when she was taken to the Civil Hospital by her husband and his sister. 12. We have already discussed the evidence of P.W.9 Rathod, who has recorded the complaint of Madinaben on receiving the Vardhi from the Hospital and he rushed at the Hospital at 11.15 A.M. So complaint was given by Madinaben at the earliest in point of time and it was recorded by P.W.9 Rathod. Motive suggested in the complaint is the ill relation of the husband with Mehrunnissa, who was residing nearby their house and even the accused was assaulting and giving ill treatment as the accused intended to marry Mehrunnissa and further highlighted the previous day incident, which has occurred on 7.2.97 she had also stated in the complaint that because of the incident which has occurred on the previous day she had given bite on the left hand palm of her husband and on the next day morning at 9 A.M. she had approached Rashidaben, the sister of the accused and