Crim.Appeal 312/09 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.312/2009 1] Mahetab s/o Akabar Bidre, age 43 yrs., occu.agri., 2] Madina w/o Mahetab Bidre, age 36 yrs., occu.agri., Both r/o Mir Mohalla, Aurad (S), Tq.Nilanga Dist.Latur. ...Appellants.. (Org.accused) Versus The State of Maharashtra. ...Respondent... ..... Smt.Sadhana S. Jadhav, Advocate for appellants. Shri N.H. Borade, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. JUDGMENT RESERVED ON 12.1.2011 JUDGMENT PRONOUNCED ON 25.01.2011 Crim.Appeal 312/09 - 2 - JUDGMENT (Per P.V. Hardas, J.) : 1] The appellants, who stand convicted for offence punishable u/ss.302 r/w 34 and 452 r/w 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/- with a default condition of undergoing further rigorous imprisonment for one month in the event of non payment of fine and rigorous imprisonment for one year and fine of Rs.500/- with a default stipulation of undergoing further rigorous imprisonment for one month in the event of non payment of fine, with a direction that the sentences shall run concurrently, by the Additional Sessions Judge, Nilanga, by judgment dated 8.5.2009, in Sessions Case No.24/2008, by this appeal challenge their conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: PW 12 Head Constable Lahu Kamble, who was attached to Udgir City Police Station, was posted at Gandhi Chowk Police Station on 17.5.2008. A wireless message was received on that day from Aurad Police Station and as per the wireless message, it was informed that one Sahera Faiyaz Bidre was admitted in hospital at Aurad with 73% burn injuries. A request was, therefore, made for recording her statement. PW 12 Head Constable Kamble was, therefore, assigned with recording of statement of the injured. The written direction to that effect is at Exhibit 48. Accordingly, PW 12 Head Constable Kamble recorded the statement of injured Sahera. The statement of Sahera came to be recorded at Crim.Appeal 312/09 - 3 - Exhibit 49. PW 12 Lahu Kamble also issued a letter to the Special Executive Magistrate, Latur, for recording the dying declaration of Sahera at Exhibit 33. The statement at Exhibit 49 was forwarded to Aurad Police Station along with the forwarding letter at Exhibit 50. PW 14 ASI Vasant Chavan, who was posted at Aurad Shahajani Police Station, was entrusted with the investigation of Crime No. 28/2008, which had been registered u/ss.307 and 452 r/w 34 of the Indian Penal Code on the basis of the statement of injured Sahera at Exhibit 49. Accordingly, on 18.5.2008, ASI Chavan visited the scene of the offence, which was the house of injured and drew the scene of the offence – panchanama at Exhibit 14. From the scene of the offence, he seized a partly burnt match stick, four pillows, burnt pieces of saree and partly burnt yellow colored mattress. PW 14 ASI Chavan arrested accused no.1 on 18.5.2008 and accused no.2 on 22.5.2008. Clothes on the person of accused came to be seized in the presence of panchas at Exhibits 40 and 41 respectively. Statements of witnesses came to be recorded on 22.5.2008. Meanwhile, it appears that injured Sahera had succumbed to her injuries and accordingly Section 302 of the Indian Penal Code came to be added. PW 7 Vikrant Gaikwad, Special Executive Magistrate, received the communication for recording the dying declaration of Sahera at Exhibit 33 and accordingly on 18.5.2008 at about 11-45 a.m., proceeded to the Civil Hospital, Latur, contacted the Medial Officer and requested her to ascertain if injured Sahera was in a fit condition to give her statement. Accordingly, he recorded the dying declaration of Sahera at Exhibit 35 and forwarded copy of the dying Crim.Appeal 312/09 - 4 - declaration to the Police, which is at Exhibit 36. PW 15 PI Kendre was entrusted with the investigation in respect of the said crime. PW 15 Kendre accordingly sent the seized property to the Chemical Analyser along with the requisition at Exhibit 38. Further investigation then came to be entrusted to Police Officer Shri Nalamwar. It appears that upon completion of the investigation, a charge-sheet against the appellants came to be filed. On committal of the case to Court of Sessions, the trial Court vide Exhibit 5 framed charge against the appellants for offences punishable u/s 452 r/w 34 and 302 r/w 34 of the Indian Penal Code. 3] In order to effectively deal with the contentions advanced before us by the learned counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses. PW 12 Head Constable Kamble, who had recorded the first dying declaration at Exhibit 49, deposes about recording of the said dying declaration. In the dying declaration at Exhibit 49, Sahera had stated that on 17.5.2008 at about 7-30 a.m., while she was cleaning the house by a broom, quarrel had arisen between she and her sister in law. She further stated that her brother in law i.e. accused no.1 and his wife Madina – accused no.2 set her ablaze. She further stated that accused no.1 had poured kerosene on her while accused no.2 had set her ablaze. According to Sahera, the neighbours had poured water and had extinguished the flames. According to her, she was taken to hospital at Aurad for medical treatment. In cross examination, Head Constable Crim.Appeal 312/09 - 5 - Kamble has admitted that he had received the message at 10 a.m. He has further admitted that he had obtained the signature of father of Sahera as he wanted to know what statement was recorded. He has of course denied the suggestion that the statement of Sahera was recorded in the presence of her father. The endorsement of father of Sahera is to the effect that the aforesaid statement of Sahera at Exhibit 49 had been recorded in his presence and he has accordingly signed the endorsement. He has admitted portion marked ‘A’ in the statement of Sahera at Exhibit 49. 4] PW 7 Vikrant Gaikwad, Special Executive Magistrate, states about recording the statement of Sahera at Exhibit 34. He states that injured Sahera had stated that on 17.5.2008 at about 7-30 a.m., she was busy in doing household work and at that time, accused nos.1 & 2 came to her house and started abusing and beating her. According to her, because of the assault, she fell on the ground and thereafter accused n.1 took kerosene from the house of Sahera and poured it on her person and then accused no.2 set her ablaze by lighting a match stick. Sahera stated that she rushed out of the house in order to extinguish the fire, but a plastic mat was thrown on her person and because of the plastic mat, the flames were aggravated and thereafter she poured water from a cement tank and extinguished the flames. In cross examination, he has admitted that the Government had given him an identity card, but no letter prescribing his duties was issued. He has admitted that his appointment was for the period from 9.1.2004 to Crim.Appeal 312/09 - 6 - 8.1.2008. He has also admitted that he has not renewed the identity card. He has admitted that he along with PW 12 Head Constable Kamble had gone to the hospital. He has admitted that Police Constable stopped in the Police Chowki of the Civil Hospital, while he proceeded ahead. He has admitted that 7 to 8 persons were present in the room, but he does not know whether those persons were the relatives. He has admitted that he had not made any inquiry about the relatives of Sahera, who were about 5 to 6 in number near Sahera. He has denied the suggestion that Sahera had stated before him in Hindi while he had translated the statement in Marathi. He was recalled and he has admitted that he had not handed over the original dying declaration to the Police nor had he brought it with him when he had deposed earlier. He has admitted that the original dying declaration was in his custody. 5] Perusal of the evidence of PW 12 Kamble clearly indicates that father of Sahera i.e. PW 4 Mahetab Bholsure was present when the statement of Sahera at Exhibit 49 came to be recorded. In fact, the endorsement of PW 4 on the dying declaration is that the said dying declaration had been recorded in his presence. The dying declaration recorded by PW 7, according to us, suffers from the basic infirmity that PW 7 Vikrant Gaikwad was clearly not functioning as the Special Executive Magistrate on the date on which he recorded the dying declaration. The dying declaration by PW 7 Vikrant was recorded on 18.5.2008 at 12-30 p.m. while his appointment as the Special Executive Magistrate was for the period from Crim.Appeal 312/09 - 7 - 9.1.2004 to 8.1.2008. He has admitted that his appointment had not been renewed. We, therefore, find that no reliance at all can be placed on the dying declaration at Exhibit 49 as the same appears to have been tutored on account of presence of father of injured Sahera. The dying declaration recorded by PW 7 Vikrant Gaikwad also will have to be left out of consideration as the prosecution has not proved that on the day on which PW 7 Vikrant Gaikwad recorded the dying declaration, he was appointed as the Special Executive Magistrate and, therefore, empowered to record the dying declaration. 6] Prosecution has examined PW 4 Mahetab Bholsure, father of deceased Sahera, who states that deceased Sahera was his daughter, who had been married to PW 11 Faiyaz Bidre about 11 to 12 years prior to the incident and was residing with her husband and her children at Aurad. PW 4 Mahetab states that his house is at a distance of 100 ft. from the house of Sahera. He has further stated that the house of Sahera is adjacent to the house of the accused. He has further admitted that that accused no.1 is the cousin of PW 11 Faiyaz. In respect of the incident, he states that on the day of the incident at about 6-30 a.m., he was present in the house and at 6-30 a.m., accused no.2 Madina came to his house and abused him. She also threatened that she would see to his daughter. He states that after some time, his son in law PW 11 Faiyaz came to his house in order to invite him for dinner on that day. Just as Faiyaz was doing out of the house, they heard cries that Sahera had been burnt. Accordingly, PW 11 Faiyaz Crim.Appeal 312/09 - 8 - rushed to his house and PW 4 Mahetab followed him. Others also wwere present at the scene of the offence and Sahera informed him that accused nos.1 & 2 had poured kerosene on her and had set her on fire. He states that Sahera was taken to the Primary Health Centre at Aurad and he also accompanied Sahera and thereafter Sahera was shifted to Latur and was admitted in the Civil Hospital. In cross examination, he has admitted that since her marriage, Sahera and PW 11 Faiyaz were residing in that room. He has admitted that he does not know the reason of quarrel between the son of Sahera and the son of the accused. He has denied the suggestion that relations between Sahera and her husband PW 11 Faiyaz were strained and because of that, Sahera had committed suicide. He has further admitted that on the day of the incident, Sahera had come to his house enquiring if accused no.2 had come to his house. Sahera had come to his house just five minutes prior to the arrival of PW 11 Faiyaz. He has admitted that a day prior to the incident, he had seen Sazida, sister of PW 11 Faiyaz, in the house of PW 11 Faiyaz. He is ignorant if daughter of Sazida was also residing with Sazida in the house of Faiyaz. He has admitted that about 100 persons were present in the lane and he had seen accused nos.1 & 2 there. Omission has been duly proved that he had not stated that on the day of the incident, accused no.2 Madina had come to his house and had abused him. He was asked a question whether he had stated in his previous statement as to Sahera had told him and he wad answered by stating that Sahera had narrated the incident in general to all and not specifically to him. Crim.Appeal 312/09 - 9 - 7] Prosecution has examined PW 10 Chandsab, a neighbour, who states that on the day of the incident, he was proceeding to his grocery shop and he had heard people stating that Sahera had set herself on fire. Hearing this, he also went to the house of Sahera and he noticed that husband of deceased had lifted her and was going towards the hospital. He states that at that time, deceased Sahera had stated that she was set on fire by accused nos.1 & 2 because of prior quarrel. In cross examination, he has admitt5ed that Sahera had made the statement in Hindi. Prosecution has examined PW 11 Faiyaz, husband of deceased Sahera. He has admitted that Sahera was educated upto 7th Standard and she could sign in Urdu as well as in Marathi. He states that accused no.1 is his cousin while accused no.2 is wife of accused no.1 and their house is adjacent to his house. He states that on 17.5.2008, at about 7-30 a.m., he had arranged lunch at his house and accordingly had gone for extending invitation. He further states that at about 7-15 a.m., he was in the house of his father in law PW 4 Mahetab and when he had just come out of his house, he had noticed some commotion. Prior to going to the house of his father in law, he had noticed that a quarrel was going on between Sahera and accused no.2. He states that he had returned home and had noticed Sahera lying in the courtyard having sustained burns. He states that he brought one blanket and extinguished the fire by covering the blanket on her person. Sahera had informed him that she was set ablaze by accused nos.1 & 2 because of the quarrel between the children. He states that Crim.Appeal 312/09 - 10 - thereafter he and his father in law took Sahera to Civil Hospital at Latur. On way to Latur, Sahera had also disclosed to them that she was set ablaze by accused nos. 1 & 2. In cross examination, he has denied the suggestion that he used to assault Sahera after consuming liquor. He has admitted that on the earlier day, his sister Sazida had come to his house along with her daughter and had halted in the night of 16.5.2008. He has admitted that Sazida and her daughter were in his house. In cross examination, omission has been duly proved that he had not stated in his previous statement that a quarrel was going on between Sahera and accused no.2 when he had left the house. He has admitted not to have stated in his earlier statement that Sahera had informed him that she was set ablaze by the accused. 8] The evidence in respect of the oral dying declaration is extremely cryptic. PW 4 Mahetab states that he had followed his son in law and was present when a disclosure was made. PW 11 Faiyaz does not refer to the presence of PW 4 Mahetab. Omission has been proved in the previous statement of PW 11 Faiyaz that he had not stated in his previous statement as to what Sahera had stated to him. Evidence of PW 11 Faiyaz in respect of the oral declaration also does not inspire confidence since we do not find the evidence of PW 4 Mahetab, father of Sahera and PW 11 Faiyaz, husband of Sahera, inspiring the confidence of the Court in respect of the oral dying declaration. If at all oral dying declaration had been made to PW 4 Mahetab and PW 11 Faiyaz, we find it difficult to believe that none of them would have lodged a report with the Police immediately. The dying Crim.Appeal 312/09 - 11 - declaration at Exhibit 49 came to be recorded on the next day i.e. practically after 24 hours. For 24 hours, neither PW 4 Mahetab nor PW 11 Faiyaz took any steps at informing the Police about the disclosure made by injured Sahera. We also find it difficult that accused nos.1 & 2 would remain present at the scene of the offence in the mob of about 100 people, who had assembled in front of the house of deceased. 9] Post mortem on the dead body of deceased Sahera was performed by PW 13 Dr.Pradip Dhele. Dr.Dhele had noticed that Sahera had sustained 76% burns. He opined that Sahera had died due to septicemic shock due to 76% burns. The post mortem report is at Exhibit 52. The other witnesses viz. PW 1 Matin Ahmed and PW 2 Mohd.Hanif are in respect of the inquest panchanama at Exhibit 12 and the scene of the offence – panchanama at Exhibit 14. Prosecution has also examined PW 5 Yusufmiya in respect of the oral dying declaration. PW 5 Yusufmiya states that on hearing the cries, he rushed to the house of Sahera and had heard Sahera stating that accused nos.1 & 2 poured kerosene and had set her ablaze. He claims that he had heard the deceased saying so when PW 11 Faiyaz had lifted Sahera. Curiously, neither PW 4 Mahetab nor PW 11 Faiyaz referred to the presence of PW 5 Yusufmiya. In any event, we find that the oral dying declarations are in direct conflict with the written dying declarations. As pointed out by us above, since we find that the oral dying declarations made to PW 4 Mahetab and PW 11 Faiyaz themselves are doubtful, the oral dying declarations Crim.Appeal 312/09 - 12 - alleged to have been made to the neighbours can not garner any support to the prosecution case. 10] After giving an anxious consideration to the submissions advanced before us by the learned counsel for the parties, according to us, prosecution has failed to prove the offence against the accused beyond reasonable doubt and, therefore, the accused, according to us, would be entitled to be given the benefit of doubt. 11] Accordingly, the criminal appeal is allowed and conviction and sentence of the appellants-accused is hereby quashed and set aside. The appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants-accused, be refunded to them. Since the appellants-accused are in jail, they be released forthwith, if not wanted in any other case. (A.V. POTDAR, J.) (P.V. HARDAS, J.) ndk/mab