cria642.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.642 OF 2009 1) Shaikh Latif s/o. Shaikh Abbas, Age-30 years, Occu:Nil, 2) Shaikh Kalu @ Aashid s/o Shaikh Abbas, Age-27 years, Occu:Nil, Both R/o-Kasar Galli, Chaklamba, Tq-Georai, Dist-Beed. ...APPELLANTS. VERSUS 1) The State of Maharashtra. ...RESPONDENT. ... Smt. Sadhana S. Jadhav Advocate for Appellants. Shri.N.H. Borade, A.P.P. for Respondent. ... CORAM: NARESH H. PATIL AND A.V. POTDAR, JJ. DATE : 10TH MARCH, 2011. JUDGMENT [PER NARESH H. PATIL, J.] : 1. The Appellants were charged for an offence punishable under Section 448 read with 34 of Indian Penal Code, Section 504 read with cria642.09 2 Section 34 of Indian Penal Code and Section 302 read with Section 34 of Indian Penal Code, on 29th July, 2009, by Additional Sessions Judge-I, Beed in Sessions Case No.66 of 2009. 2. The prosecution case is that deceased Malanbee, wife of Shaikh Najir, was residing adjacent to the residential house of the Appellants at village Chaklamba, Tq-Georai, Dist- Beed. The prosecution alleges that on 27th March, 2009, boundary wall in between the house of the deceased and the Appellants was being constructed. The Appellants objected to the said construction at about 10.00 p.m. and started abusing the deceased and her husband. The work of construction had started at about 9.00 p.m. The Appellants had grievance that the deceased and her husband were constructing the wall in the premises occupied by the Appellants. The Appellants are sons of brother of Shaikh Najir, who is husband of the deceased. There was a quarrel between them prior to 15 days cria642.09 3 before the alleged incident. It is alleged that at that time the Appellants, poured kerosene on the person of the deceased Malanbee and set her ablaze. The Appellant No.2 Kalu @ Aashid s/o Shaikh Abbas had caught hold deceased and Appellant No.1 Latif s/o Shaikh Abbas set the deceased ablaze with the help of a match stick. According to the prosecution, husband of the deceased, at that time, was not present as he had gone to inform the father of the deceased, who stays in the same village. After sometime, husband of deceased reached the spot and tried to extinguish the fire. The Appellants ran away after the incident. It is alleged that PW-6 Laila, daughter of deceased too tried to extinguish the fire. Thereafter deceased Malanbee was taken in a Jeep by her husband, brother, sister in law, to medical hospital at Beed and was admitted in the said hospital. 3. The prosecution case is that between the cria642.09 4 night of 27th and 28th March, 2009, dying declaration of deceased Malanbee was recorded at 00.40 a.m. PW-9 Dr. Appasaheb Dadasaheb Bagalene examined the deceased at 00.10 hours on 28th March, 2009 in the mid-night and found her to be conscious and oriented. The doctor had put the endorsement at 00.35 a.m. to that effect. After recording the dying declaration, thumb impression of left hand of the deceased was obtained. The Medical Officer again made an endorsement at the end of the dying declaration that the patient was conscious and oriented. This dying declaration is at Exhibit 46. 4. The second dying declaration was recorded, according to the prosecution, by Special Judicial Magistrate, Beed. The Medical Officer had put an endorsement of patient being conscious and oriented and was able to give statement on 28th March, 2009 at 00.35 a.m. After recording the statement, the Medical Officer again put an cria642.09 5 endorsement to the effect that the patient was conscious and oriented. The Medical Officer signed the statement along with the Special Judicial Magistrate. The said dying declaration is at Exhibit 31. 5. According to PW-7 Swarnamala Ramkisan Panhalkar, who performed postmortem on the dead body of Malanbee, the deceased had received 100% burns. 6. It is the case of the prosecution that First Information Report was registered on the basis of the statement given by deceased Malanbee. PW-5 Balaji Baburao Jadhav, A.S.I., who was attached to Police Chowky in Civil Hospital, visited the burn ward and thereafter recorded the statement of deceased Malanbee. A.S.I. Jadhav thereafter issued a request letter to Special Judicial Magistrate Shri. Walewadikar and requested him to record dying declaration of cria642.09 6 Malanbee. Accordingly it was recorded. Carbon copy of the dying declaration recorded by Special Judicial Magistrate, was forwarded to the Police Station, Chaklamba and on the basis of which Crime No.27 of 2009 was registered. The case was taken up for investigation by A.P.I. Mr. Ghuge. The Investigation Officer recorded panchnama of place of incident in presence of panchas on 29th March, 2009 and in the process, seized kerosene can, match box with match stick, pieces of burnt skins and Saree, from the place of incident. The statements of the witnesses were also recorded. Accused Latif was arrested on 29th March, 2009 and the accused Kalu was arrested on 3rd April, 2009. The clothes of accused Kalu were seized in presence of panchas. The seized articles were sent to Chemical Analyser. The police filed charge- sheet in the Court of J.M.F.C. Georai. The case was committed to the Sessions Court. The charge was framed against the Appellants on 29th July, 2009, to which they pleaded not guilty and claimed cria642.09 7 to be tried. 7. The prosecution examined PW-5 Balaji Baburao Jadhav, who was attached to police chowky in Civil Hospital, Beed. PW-5 Jadhav deposed before the Court that he recorded statement of Malanbee, obtained thumb impression at the end of endorsement and the endorsement of the Doctor that she was conscious while recording the statement. He also signed the statement, which is at Exhibit 46. He stated that contents of the statement were true. PW-5 Jadhav thereafter requested Special Judicial Magistrate through a letter, to record dying declaration. In the cross-examination of this witness, he deposed that he started recording statement at 00.10 a.m. on 28th March, 2009 and completed recording at 00.30 hours. The witness personally went to bring Special Judicial Magistrate on motorcycle and brought him on the vehicle within half an hour. He further stated that Malanbee was completely burnt. According to cria642.09 8 this witness, he was not present when Special Judicial Magistrate recorded statement of Malanbee. 8. PW-2 Digambar Narharrao Walewadikar was Special Judicial Magistrate at the relevant time. He was examined by the prosecution. He deposed before the Court that on getting request from Police Chowky Amaldar of Civil Hospital, Beed on 28th March, 2009, he recorded statement of Malanbee after getting endorsement of the doctor that the patient was conscious and was able to speak. He asked the relatives of Malanbee to leave the room and accordingly they left the place. He introduced himself to Malanbee and her statement was recorded according to the say of Malanbee, by the witness. The contents of the statement were read over to Malanbee and she admitted the contents and thereafter he obtained thumb mark of her left hand on the statement. The Medical Officer thereafter put an endorsement that cria642.09 9 Malanbee was through-out conscious while giving dying declaration and accordingly signed the statement. The Special Judicial Magistrate also signed the statement and affixed his stamp. In the cross-examination of this witness, he deposed that PW-5 Jadhav himself took him on motorcycle to the hospital. They reached hospital within 10 minutes. Witness had experience of recording dying declarations from last 21 years and he had recorded more than 100 dying declarations, according to him. The dying declaration was not recorded in question and answer form. The witness stated that he did not send the dying declaration to the Judicial Magistrate immediately as he was himself Magistrate. He denied the suggestion that Malanbee was not in a condition to speak when she reached hospital. He admits that he did not obtain attestation to thumb mark of Malanbee. The witness volunteers that he himself was Magistrate and therefore attestation was not required. Both these witnesses stated that Malanbee had stated that cria642.09 10 Appellant No.2 had caught hold her and Appellant No.1 set her on fire by pouring kerosene on her person. 9. The prosecution examined PW-1 Yunuskhan Pathan, brother of deceased Malanbee. In examination-in-chief he deposed before the Court that on 27th March, 2009 he was at his residence and at about 10.00 p.m. Shaikh Najir came to him and told that quarrel was going on between his wife and Appellants on account of construction. Shaikh Najir had came on bicycle to take him. Thereafter he followed Najir. Mother and wife of this witness too thereafter followed them. Witness stated that after he reached the spot, he found his sister Malanbee in burnt condition in house and daughter of Malanbee, namely Laila and husband of Malanbee were seen throwing water on the person of deceased Malanbee. The witness enquired as to what had happened, to which she was told that there was quarrel on the ground of cria642.09 11 construction and Shaikh Latif brought kerosene in the can from house and poured the same on her person, while accused Kalu had caught hold of her hands. The deceased stated that accused Latif set her ablaze with the help of match stick. This witness was cross-examined. He deposed that he did not try to extinguish fire. About 15 to 20 persons gathered there till that time. At the time of incident, Najir, his wife Manabee and his daughter Laila were at their house. There are other houses surrounding the house of Najir. The witness denied the suggestion that Malanbee was not in a position to speak when he went there. 10. PW-6 Laila, daughter of deceased, was examined by prosecution. At the time of deposition of Laila in the Court, her age was stated to be 15 years. The Court put certain questions to her and thereafter administered oath to her. According to PW-6 Laila, at the time of incident, herself, her mother and father were at home. Some construction cria642.09 12 work was going on in their premises. The Appellants told that the work should not be continued. They had talk with her father and thereafter they started abusing. Her father left the place on bicycle to call her grandfather. She stated that thereafter accused Latif took out kerosene can and Kalu held hands of her mother. Thereafter Shaikh Latif poured kerosene on the person of her mother and set her ablaze by using a match stick. Thereafter they both ran away. She started crying. According to her, her father came on bicycle and tried to extinguish fire with the help of Godhadi. Her father also received some injuries on his hand and face. Thereafter her maternal uncle Yunus also came there. She stated that her mother told him that Kalu held her hands and Shaikh Latif brought kerosene can, poured kerosene on her person and set her ablaze. . In the cross-examination, the witness Laila deposed that she was educated upto 5th cria642.09 13 standard. She did not go to school thereafter. She admitted that there was quarrel with the accused 15 days prior to the incident, which was got settled mutually. The witness denied suggestion that her statement was read over to her by police persons on the day of deposition and volunteered that there was no question of reading the same as incident happened before her. She was not aware about the name of one mason but the other mason, who was working, was Rashid. The masons left the premises soon after the quarrel started. The witness did not receive any burn injuries. She stated that incident occurred inside the house. Kerosene can was kept in inner side of the room which was separated by a wall. She denied suggestion that due to quarrel, her mother set herself on fire. She further stated that as quarrel started, her mother told her father to call some persons. Ibrahimchacha and his son Ismail came there. Ibrahim asked mason why they did not construct the wall in straight line. The cria642.09 14 mason told that the wall was in straight line. When this discussion was going on, the witness was in the courtyard, at that point of time, her mother came out. Ibrahim told the mason to continue the work properly. She denied the suggestion that her mother was short tempered lady and she had tried to set herself on fire on 4-5 occasions earlier to the incident. 11. PW-3 Mehtab Pathan was a panch of the spot of incident. PW-4 Syed Shafiq was a panch, who was declared hostile. 12. PW-7 is Dr. Swarnamala Ramkisan Panhalkar, who conducted postmortem. She deposed that if a patient having 100% burn is admitted in the hospital, the duty medical officer first admits the patient and gives medicines like IV fluid i.e. saline, antibiotics and analgesic. Sedatives are not given. According to the Doctor, analgesic is given to minimize the pain. She cria642.09 15 denied suggestion that patients are given sedative. The cause of death according to the postmortem report Exhibit 49, is death due to burns. 13. PW-8 was Shivaji Bhimrao Ghuge, attached to police station, Chaklamba as A.P.I. who conducted investigation. In the cross-examination of this witness, he deposed that police station is at 10 to 15 minutes of walking distance from the place of incident. According to the witness, no investigation was conducted on 28th March, 2009. Though the investigation officer noticed that Shaikh Ismail, Shaikh Ibrahim and Shaikh Najir received burn injuries while extinguishing fire, he did not feel it necessary to send them for medical examination. He volunteers that the burn injuries were very minor and superficial. The witness could not state any exact reason for sending copy of F.I.R. to Court on 30th March, 2009. cria642.09 16 14. The defence had examined 4 witnesses. The defence witness No.1 was Shaikh Aasir @ Kalu, who is accused Appellant. He deposed before the Court that deceased Malanbee was his aunt. She had started construction of common wall and the same was not in straight line, therefore, he called Shaikh Latif, who told Malanbee's husband that wall was not in straight line and they should construct it straight. Shaikh Najir accepted the suggestion that it will be constructed in the morning. Ismail, Ibrahim and Nijamchacha had also come there. The masons were told accordingly, to which they replied that they had constructed wall as per the say of Malanbee. At that point of time, Malanbee started abusing. They left the spot and went in the lane. Still Malanbee continued to abuse them for 10 minutes and thereafter she went in the room blaming her husband that he was not saying anything to the Appellants. According to him, witness Laila also went in the house. cria642.09 17 Thereafter they heard cry of Laila from a distance of 100 ft. They saw Najir going out. Najir came along with his brother in law. Thereafter some people brought vehicle. This witness denied that there was dispute between himself and Malanbee except the dispute of wall. On behalf of the State, the witness was cross-examined. The witness deposed that there were 8 to 9 houses of Mohammedan community nearby his house. They were constructed in mud. 15. DW-2 Ibrahim Shaikh Mohammad stated that when the masons were constructing the wall, the Appellants called Najir and told him that the wall was not constructed in straight line. Initially Najir refused but subsequently agreed. The masons thereafter constructed the said wall straight. Malanbee suddenly went in the house and set herself ablaze by pouring kerosene on her person. Najir, Laila tried to extinguish fire. His son Ismail had come to the spot, who too received cria642.09 18 injuries while trying to extinguish the fire. He took Ismail to nearby hospital. The witness was deposing for the first time before the Court. 16. DW-3 is Shaikh Nijam. According to him, Malanbee was his neighbour. He stated that there was dispute between accused persons and Malanbee on the issue of construction of wall. He further stated that Malanbee went in the house and thereafter he saw fire in the house. Ismail and Najir tried to extinguish the fire and thereafter Malanbee was taken to the hospital. 17. DW-4 Shaikh Najir is husband of the deceased Malanbee. The witness deposed in his examination-in-chief that on the date of incident, they were constructing a common wall and the accused were telling them to stop construction of wall as it was encroachment on their side. The work was stopped and his uncle Shaikh Ibrahim was called. The dispute was settled and thereafter cria642.09 19 construction of wall was started. After the dispute was over, Najir himself, Appellants and Ibrahim went out at a distance of about 10 ft. Thereafter his wife Malanbee and daughter Laila went inside the house and within 2-3 minutes, Laila came running towards him. Laila informed that mother got herself burnt ("ÞvEekus flyxk ds fy;k"). The witness stated that he himself and Ismail immediately went in the house and tried to extinguish the fire. He suffered burn injuries on face and hand. Ismail suffered injuries on his leg. The witness immediately rushed to his father- in-law's house to call him. Witness admits that Malanbee was short tempered lady and Appellants have no concern with the death of Malanbee. Witness further deposed that Malanbee threatened him 2-3 times earlier to the incident that she would set herself on fire. On the day of incident too, Malanbee threatened him that she would pour kerosene on her person and set herself ablaze. The witness was cross examined. He stated that it was cria642.09 20 not true that he went to call his father-in-law and thereafter accused Kalu caught hold hands of his wife and Latif poured kerosene on her person and set her ablaze. He admitted that Appellants are sons of his real brother. 18. DW-5 is Shaikh Ismail Shaikh Ibrahim. He deposed that there was a quarrel three days prior to the death of Malanbee. In respect of the incident, the witness stated that Malanbee's daughter Lalia was there when he reached the spot. Laila was telling that her mother poured kerosene on her person and set herself ablaze. 19. The learned counsel Smt. Sadhana Jadhav submitted that the doctor who admitted the deceased Malanbee was not examined. The case papers in respect of the treatment were not proved, not exhibited. Considering the evidence that the deceased had received 100% burn injuries and mental and physical condition of the deceased, cria642.09 21 the deceased must not have been in a position to make statements to two different persons, i.e. one A.S.I. PW-5 Balaji Jadhav and another to Special Judicial Magistrate. The patient must have been given pain killers and sedatives because the patient was suffering from 100% burn injuries. The learned counsel submitted that there is variance in the two dying declarations, in respect of presence of masons, presence of neighbours. The counsel submitted that the time of requisition issued to the Special Judicial Magistrate is not brought on record. Attestation of thumb impression of Malanbee was not made when the Special Judicial Magistrate claims to have recorded the statement. The statements of deceased, according to the counsel, are concocted and therefore implicit reliance cannot be placed on those dying declarations. It was further submitted that considering the facts of the case, the age of PW-6 Laila, daughter of the deceased, it could be gathered that she could be tampered, as at the cria642.09 22 time of incident, she was residing with her maternal uncle. Even though relying evidence of solitary witness, order of conviction could sustain but in the facts of the case, corroboration was necessary. The counsel submitted that, this is one of the exceptional cases, where the defence examined five witnesses including husband of the deceased, who did not support the case of prosecution. According to the counsel, deceased was a lady with short tempered nature. In past too deceased had threatened that she would set herself on fire. There used to be quarrels in between the Appellants and Malanbee as they were adjacent neighbours. It is true that Appellants are closely related to the husband of Malanbee. There was no motive for the Appellants to commit crime, neither there could have been any intention to commit murder of the deceased. The counsel submits that as dying declaration do not inspire confidence, considering physical and mental condition of the deceased, the version of the cria642.09 23 prosecution, is required to be discarded. It was submitted that First Information Report was sent to the Court three days after its recording. There is no explanation for the same. There was no investigation conducted on 28th March, 2009. There is no explanation of the prosecution on that count. There are serious lacunas in the prosecution case, which has caused serious prejudice to the Appellants. 20. Shri. Borade, learned A.P.P. appearing on behalf of the State submitted that they have proved recording of dying declarations. The dying declarations, according to the A.P.P., were promptly recorded and they are reliable. Evidence of DW-6 Laila, daughter of deceased, was trustworthy. She was natural witness. She had seen the incident and the offence being committed. The A.P.P. submitted that the prosecution has proved the case beyond reasonable doubt and the Appellants have been rightly convicted and cria642.09 24 sentenced by the trial Court. 21. We have perused the original record, the evidence and the Judgment and order of the trial Court. 22. Considering the facts of the case, the record and submissions advanced, we find that two dying declarations recorded, one by PW-5 A.S.I. Balaji Baburao Jadhav, and another by PW-2 Special Judicial Magistrate, are required to be closely scrutinized. From the evidence on record, it is clear that the prosecution has not led any evidence in respect of the steps taken soon after the patient was admitted in the hospital. We do not find evidence on record, as to what treatment was given to the patient and effect of medicines administered to the deceased if any. There is no denial, that deceased Malanbee suffered 100% burn injuries. She must be in a serious physical and mental condition. We have closely seen and perused cria642.09 25 the original statements of Malanbee, recorded by PW-5 Balaji Baburao Jadhav and PW-2 Walewadikar, Special Judicial Magistrate. We are not convinced that Malanbee, who was suffering from 100% burn injuries, would be in a position to give continuously two statements. Considerable time must have been consumed in recording of these two statements. Attestation of thumb impression was also not taken. It is true that the medical officer had put endorsement of Malanbee being conscious and oriented on both the dying declarations, in the beginning and even at the end of recording of the same. It is settled principle that if the dying declaration inspires confidence, order of conviction could sustain, by placing reliance on the same. But in the facts of the case and the evidence brought on record, we do not find that the dying declarations inspire confidence. They are not fully reliable for convicting the Appellants for a serious offence punishable under Section 302 of the Indian Penal Code. cria642.09 26 23. Another important piece of evidence is of PW-6 Laila, who is daughter of deceased. At the time of deposition before the Court, she was staying with her maternal uncle. Though she was minor, the Court after putting her some questions, had administered oath to her. She had clearly stated before the Court that the Appellants were responsible for the death of her mother, as they had poured kerosene on the person of her mother and set her on fire. The incident was narrated in detail. She stated that accused Kalu held hands of her mother and accused Latif poured kerosene, which was lying in a can in the house of Malanbee, and set her on fire. The witness in the cross- examination, stated that she is going to marry