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CASE NO.: Appeal (crl.)  141 of 2006

PETITIONER: SAYARABANO @ SULTANABEGUM

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 08/02/2007

BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT

C.K. THAKKER, J.

       This appeal is filed by the appellant who was  convicted by the Sessions Judge, Beed in Sessions Case  No. 17 of 1999 decided on July 25, 2000 and confirmed  by the High Court of Judicature at Bombay (Aurangabad  Bench) on October 17, 2005 in Criminal Appeal No. 348  of 2000 for an offence punishable under Section 302 of  the Indian Penal Code (’IPC’ for short).         The prosecution case against the appellant was  that Halimabi, daughter of PW 2\027Shaikh Bademiyan,  resident of Mandula, Taluka Georai was married to one  Shaikh Latif of Beed one year prior to the incident which  took place on August 13, 1998. After the marriage, the  deceased Halimabi came to reside at her matrimonial  home situated at Mominpura of village Beed. She was  residing in the said house with her husband Shaikh  Latif, the appellant-accused Sayarabano\027her mother-in- law, Shaikh Rafiq\027her father-in-law, Shaikh Shakil\027her  younger brother-in-law and his wife Taslim.         According to the prosecution case, the deceased  Halimabi was being ill-treated by her mother-in-law- appellant herein. At the instance of the appellant,  husband of the deceased Halimabi used to beat her.  About a month prior to the incident, the accused had  beaten the deceased on two occasions, once with a stick  and again with a steel instrument. The deceased  disclosed the fact about the said beating to her parents  as well as her uncle. Resultantly, PW3\027Bismillahbi\027 mother of the deceased Halimabi had come to Beed and  had taken deceased to her house at Mandula. About  eight days prior to the incident, the brother of deceased  Halimabi had again brought the deceased back to her  husband’s place and had returned to the village.         On August 13, 1998, the appellant-accused started  a quarrel with the deceased Halimabi and abused her  over the fact that she had not got up early in the  morning for Namaz. At that time, the deceased Halimabi  was standing at a place where a burning lamp was hung  on the nail in the wall. The husband as well as father-in- law of the deceased had gone to the Masjid for Namaz. In  the house, apart from the deceased and the appellant- accused, brother-in-law of the deceased\027Shaikh Shakil  and his wife Taslim were present. During the course of  quarrel, the appellant-accused poured kerosene from the  lamp on the deceased, due to which, the deceased  caught fire and suffered burn injuries on her back,

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stomach and breast. She started screaming in pain. Her  brother-in-law Shaikh Shakil put out the fire by pouring  water and removed her clothes. Meanwhile, her husband  had come and the deceased was taken to hospital.         The record indicates that when Halimabi was  brought to the hospital, the history recorded accidental  burns. She was taken to the hospital at 10.30 a.m. on  August 13, 1998. Between 1.30 and 1.50 p.m. on the  same day, Abdul Rashid\027Special Judicial Magistrate,  Beed (PW5) was called by the police and dying  declaration of deceased Halimabi was recorded by him.  In that dying declaration, deceased Halimabi stated that  while opening the door, her hand hit the kerosene lamp  which was kept on the pillow and fell on her and she  sustained injuries. In other words, according to the said  dying declaration, the deceased caught fire accidentally  when she came into contact with the lamp. She absolved  all the inmates of her husband’s family of any wrong- doing or connecting with her catching fire. On the next  day i.e., on August 14, 1998, at about 1.45 p.m.,  however, again PW5\027Special Judicial Magistrate was  called for the purpose of recording dying declaration of  deceased Halimabi. In the said dying declaration, she  stated that on the previous day i.e. on August 13, 1998,  her mother-in-law (appellant) started abusing her for not  going for Namaz by getting up late. At that time, in the  house, kerosene lamp was hung on the wall near which  the deceased was standing. Her husband as well as her  father-in-law had gone for Namaz and in the house,  deceased Halimabi, her mother-in-law (appellant), her  sister- in- law Taslim and her brother- in- law        Shaikh Shakil were present. According to the deceased,  her mother-in-law (appellant) threw the kerosene lamp  on her, with the result both of her hands, entire back,  stomach and both sides of her chest were burnt and she  started screaming and crying. Her brother-in-law Shaikh  Shakil poured water on her and extinguished fire and  removed her clothes. She was then taken to the hospital.  She also stated that her marriage took place before 8 to  10 months and had no child. Her husband used to beat  after listening to his mother. She was asked to do entire  household work. In case she did not do work, her  mother-in-law used to abuse her.         In the light of the fact that in the previous dying  declaration, the deceased had not involved her mother- in-law and had described the incident as ’accidental’, the  Special Judicial Magistrate asked the deceased that  when he recorded her dying declaration on August 13,  1998, in the said statement, the deceased had stated  that she was hit by the kerosene lamp which fell on her  and she was burnt.  The Special Judicial Magistrate,  therefore, asked her as to why she was changing her  statement. The deceased replied that her mother-in-law  (appellant) told her not to give any statement against the  family members of her in-laws and that was the reason  why she had given the earlier statement.  But in fact, it  was her mother-in-law who threw kerosene lamp on her  and thus she was burnt. She also stated that her  mother-in-law was harassing her.         Ultimately, Halimabi died on August 20, 1998 at  about 7.00 p.m. On the basis of the second dying  declaration recorded by the Special Judicial Magistrate,  a case was registered by PW7\027PSI Sampat Shinde under  C.R. No.60 of 1998 at Peth-Beed Police Station. Initially,  the case was registered for an offence punishable under

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Section 307 IPC but after the death of Halimabi it was  converted into an offence punishable under Section 302  IPC. The appellant was arrested on August 15, 1998.   The matter was committed to the Court of Session and a  charge was framed against the accused under Section  302 IPC.         To establish the case against the appellant, the  prosecution inter alia examined PW1\027Kisan Masruti  Golhar, Medical Officer, Civil Hospital, Beed, PW2\027 Bademiya\027father of the deceased, PW3\027Bismillabi\027 mother of the deceased, PW5\027Abdul Rashid, Special  Judicial Magistrate, Beed, PW6\027Dr. Kirshore Sirpurkar,  PW7\027PSI Sampat Shinde. The case of the appellant was  of total denial.         The Trial Court, on the basis of medical evidence  held that death of Halimabi was homicidal. As to the  culpability of the accused for an offence under Section  302, the Court held that in the light of the evidence of  father and mother of deceased Halimabi, it was clearly  established that the appellant\027mother-in-law of the  deceased was harassing Halimabi. The Trial Court also  observed that it was true that in the first dying  declaration, on August 13, 1998, the deceased did not  involve her mother-in-law but it was because of the fact  that she was asked by her mother-in-law not to implicate  any member of the family of the appellant. The Trial  Court noted that after the first dying declaration was  recorded, the parents and inmates of deceased Halimabi  had reached the hospital. The deceased could get  courage to state true facts and again the Special Judicial  Magistrate was called and the second dying declaration  was recorded on August 14, 1998 in which she disclosed  true and correct facts. The Trial Court also noted that  the Special Judicial Magistrate was conscious of the fact  that in the first dying declaration, she had not involved  any family members of her in-laws.  A specific question  was, therefore, put by him as to the reason why she had  done so and the deceased had replied that it was  because of her mother-in-law who asked the deceased to  do so. The Trial Court, therefore, held the conduct of  deceased Halimabi as natural and the second dying  declaration reliable which could be treated as basis for  holding the appellant guilty. The Trial Court also  observed that from the evidence of PW2\027father of the  deceased and PW3\027mother of the deceased, it was  proved that Halimabi was ill-treated by her in-laws, and  particularly the appellant\027mother-in-law. The Court  also observed that PW5\027Abdul Rashid (Special Judicial  Magistrate) had no axe to grind against the appellant.   PW5 stated that on being questioned, Halimabi stated on  August 14, 1998 that she was burnt by her mother-in- law (appellant) by throwing burning kerosene lamp on  her but she had not stated so in the previous dying  declaration because of the insistence of her mother-in- law. On the basis of evidence of parents of deceased  Halimabi and the second drying declaration, the Trial  Court convicted the appellant.         The appellant preferred an appeal and the High  Court confirmed the decision of the Trial Court observing  that on August 13, 1998, Halimabi could not name her  mother-in-law (appellant) as the deceased Halimabi was  brought to hospital by her in-laws; viz. the accused\027 mother-in-law and her sons. But, on the next day, she  was in a position to state correct fact and on being  satisfied about her physical condition as stated by

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PW6\027Dr. Kishore, PW5\027Abdul Rashid (Special Judicial  Magistrate) again recorded the dying declaration which  inspired confidence. Accordingly, the High Court  dismissed the appeal filed by the appellant.  The  appellant has come to this Court against the said order.         We have heard the learned counsel for the parties.         The learned counsel for the appellant contended  that both the Courts have committed an error of law in  relying upon the second dying declaration. It was  contended that the first dying declaration was correct  and the deceased had stated true facts in the said  declaration. It was also stated that after parents of the  deceased had come to the hospital, they had persuaded  the deceased to involve and implicate the appellant and  that is how the second dying declaration was recorded  which could not have been relied upon. It was also  submitted that no motive was established by the  prosecution inasmuch as only thing stated by the  deceased in her dying declaration was that she had got  up late in the morning and could not go for Namaz. For  such a trivial matter, no person would kill another  person. It was, therefore, submitted that the appeal  deserves to be allowed by setting aside the order passed  by the Trial Court and confirmed by the High Court.         The Pubic Prosecutor for the State, on the other  hand, supported the order of conviction and sentence  passed by the Trial Court and confirmed by the High  Court. He submitted that the conduct of the deceased  Halimabi was natural. She was believed by both the  Courts. It was obvious that on August 13, 1998, she was  pressurised by her mother-in-law for not giving name of  her assailant.  Moreover, she was surrounded by her in- laws and nobody from her parental family was present. It  was only after her family members had come that she  got courage to narrate true facts and that is how on  August 14, 1998, second dying declaration was given by  her which inspired confidence and both the Courts  believed it. It was also submitted that from the evidence  of parents of the deceased, it was clearly proved that she  was ill-treated and was frequently beaten by the  appellant. Instances were also cited which went to show  that the appellant was cruel to the deceased. The  counsel also stated that both the Courts were right in  observing that Special Judicial Magistrate was an  independent witness and when on the basis of his  evidence, a finding of guilt of the appellant was recorded,  no interference is called for. He, therefore, submitted  that the appeal be dismissed.         Having heard the learned counsel for the parties, in  our opinion, the Courts below were right in convicting  the appellant. From the evidence, it is proved that on  August 13, 1998, after the incident took place, the family  members of the appellant took the deceased to the  hospital. The record revealed that before few days of the  incident, the deceased had been brought to her marital  home. Before that, she was beaten by the appellant. She  left marital home and went to parental home. It is also in  the evidence that the deceased was beaten by her  mother-in-law and two instances had been cited.  Obviously, therefore, on August 13, 1998, when the  deceased was taken to hospital by her mother-in-law\027 appellant, who insisted not to give the name of any of the  family members of the appellant, the deceased had no  courage to name her. In the circumstances, she stated  that it was merely an accident. But, after her parents

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came, she could state true facts, the Special Judicial  Magistrate was called again and the second dying  declaration was recorded. From the evidence of PW1\027 Dr. Kishan\027Medical Officer, it was clear that total burns  were about 57%. It is also in evidence of PW6\027Dr.  Kishore that the deceased was "in a position to make  statement". He, therefore, accompanied Special Judicial  Magistrate to the ward of Halimabi and her dying  declaration was recorded. He also stated that he was  present throughout till the statement of Halimabi was  recorded by the Special Judicial Magistrate and when it  was over, he put endorsement on the paper given by  Special Judicial Magistrate. The Trial Court as well as  the High Court considered both the dying declarations of  the deceased Halimabi and both the Courts held the  second dying declaration true and inspiring confidence  having disclosed true facts so far as the incident was  concerned. Ill-treatment towards the deceased was  clearly established and completely proved. The evidence  of PW2\027father as well as PW3\027mother of the deceased  was clinching on the point. Both the Courts were right in  holding that nothing could be elicited from the cross- examination of those witnesses.  It, therefore, cannot  successfully be contended that the only cause of  throwing burning lamp on the deceased by the appellant  was getting up late in the morning by the deceased and  not performing Namaz. Even prior to that incident, the  appellant used to beat the deceased and on the fateful  day, it was an excuse to kill the daughter-in-law by the  mother-in-law.         The learned counsel for the appellant strongly  relied upon a decision of this Court in Lella Srinivasa  Rao v. State of A.P., (2004) 9 SCC 713. In that case, the  sole basis for recording the conviction was dying  declarations. Two dying declarations were recorded  which were inconsistent.  In absence of any other  evidence, this Court held that it was not safe to act only  on inconsistent dying declarations and convict the  accused.          In our opinion, criminal cases are decided on facts  and on evidence rather than on case law and precedents.  In the case on hand, there is ample evidence to show  that even prior to the incident in question, the appellant  used to beat the deceased and ill-treat her. It is in the  light of the said fact that other evidence requires to be  considered. In our view, both the Courts were right in  relying upon the second dying declaration of the  deceased treating it as true disclosure of facts by the  deceased Halimabi. In the light of the evidence of parents  of the deceased (PW2 and PW3), Dr. Kishore (PW6) and  Special Judicial Magistrate (PW5), it cannot be said that  the Courts below had committed any error and the  conviction deserves to be set aside.

       For the foregoing reasons, in our opinion, the  appeal deserves to be dismissed and is accordingly  dismissed.