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CASE NO.: Appeal (crl.)  833 of 2007

PETITIONER: Shaikah Bakshu and Ors

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.  833        OF 2007 (Arising out of S.L.P. (Crl.) No.6002 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Divison  Bench of the Bombay High Court, Aurangabad Bench.   Conviction of the  appellants under Section 302 read with  Section 34 of the Indian Penal Code, 1860 (in short the ’IPC’)  was confirmed while setting aside the conviction and sentence  relatable to offence punishable under Section 498-A IPC read  with Section 34 IPC.  All the appellants were convicted by  learned 1st Additional Sessions Judge, Parbhani in Sessions  Trial No. 214/2001.   3.      Prosecution version as unfolded during trial is as under:

Rubina (hereinafter referred to as ’deceased’) was married  to appellant No.1 Sk. Bakshu about 8 days prior to the alleged  incident, which took place on 19.8.2001 at about 4 p.m. in the  house of the appellants. While the deceased was staying in the  house of her in-laws, the appellant No.2-Janubai Shakur,  sister in law of the deceased and appellant No.3 Safirabi Sk.  Wahed, mother in law of the deceased caught hold of her and  her husband, the appellant no.1 Sk. Bakshu by pouring  kerosene on her person, set Rubina on fire. The deceased  suffered burn injuries. While she was burning, her father in  law extinguished the fire by pouring water on her. Thereafter,  the neighbours had brought the deceased to the Civil Hospital,  Parbhani. Court witness Dr. Bhagwan Dhutmal was on duty  and after examining the patient, he started treatment.  Radhakishan Katare (PW-3), who was working as ASI in Police  Out Post in General Hospital. Parbhani, secured the MLC  Certificate from the medical officer concerning the deceased  Rubina, which is at Exhibit 13. After ascertaining from the  medical officer regarding consciousness of the patient to make  a declaration, Radhakishan (PW-3) recorded statement of the  deceased on the same day i.e. 19.8.2001 at 6 p.m. The said  dying declaration is at Exhibit 31. Thereafter, a letter was  addressed to PW1- Naib Tahsildar for recording dying  declaration of Rubina and on receipt of intimation, Narhari  Pandit. Naib Tahsildar (PW-1), proceeded to the hospital. After  ascertaining the physical and mental condition of the patient  from the medical officer, the Naib Tahsildar recorded  statement of Rubina at 7-15 p.m. which is at Exhibit 26. The

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medical officer Dr. Bhagwan endorsed on both the dying  declarations to the effect that the patient was conscious  oriented in time and space and was able to make a statement.  The first dying declaration (Exh.31) was recorded between 6  p.m. to 6-10 p.m. and the second dying declaration (Exh.26),  which was recorded by Naib Tahsildar was between 7-15 to 7- 30 p.m. on the same day i.e. 19.8.2001. The deceased died at  8-30 p.m. on 19.8.2001. According to the post mortem report,  the deceased had suffered 67% burn injuries. The post  mortem of the deceased was conducted by Dr. Ashok  Janapurkar (PW-2). The post mortem report is at Exhibit 28.  The cause of death, according to the medical officer, was due  to cardio respiratory failure due to superficial deep 66% burns.  Anil Gaikwad (PW-6) conducted the investigation of the case.  He had drawn spot panchnama and recorded statements of  witnesses. All the appellants were arrested on 20.8.2001. The  clothes of appellants were also seized. The seizure  panchnamas are at Exhibits 42, 43 and 44. On 21.8.2001,  viscera and articles seized on the spot were sent to Chemical  Analyser, whose report is Exhibit 15. In viscera, no poison was  detected. Kerosene was detected on the clothes of accused,  which were seized. After completion of investigation, the  charge-sheet was filed. The case was committed by JMFC,  Parbhani, to the Court of Sessions for trial. The charges in  Exhibit 10 were framed and the appellants were tried before  the Court, to which they pleaded not guilty and came to be  tried.

The prosecution examined 6 witnesses. In their  statement u/s 313 of Cr.P.C. the appellants denied the  incident in question and alleged that the witnesses were  demanding money and for that reason, they are deposing  falsely. The prosecution examined 6 witnesses and Dr.  Bhagwan Pandit was examined as Court witness.

4.      Placing reliance on the dying declarations purportedly to  have been made by the deceased, the trial court found the  appellant guilty and convicted them and imposed  imprisonment for life and to pay a fine of Rs.100/- for the  offences punishable under Section 302 read with Section 34  IPC.  In respect of offence relatable to Section 498A read with  Section 34 IPC custodial sentence of 3 years and fine of  Rs.100/- with default stipulation were imposed.       5.      In appeal, it was urged that the dying declarations are  totally unreliable. The alleged place of occurrence has been  differently stated.  No explanation has been offered as to why  there was necessity of recording two dying declarations.   Though there was clear evidence of tutoring, the trial court did  not attach any importance and there has been suppression of  the station diary entry. All these go to show that prosecution  has concocted a false case.  The State’s response was that  after analyzing the evidence in detail conviction has been  recorded.        

6.      The High Court confirmed the view of the trial court  holding that the dying declaration was credible and cogent.   Therefore, conviction for offence relatable to Section 302 read  with Section 34 was maintained.  But acquittal was recorded  under Section 498-A read with Section 34 IPC.    

7.      Stands taken before the High Court were reiterated in  this appeal.          8.      The dying declarations have been marked as Exh.26 and

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Exh.31. Exh. 26 was claimed to have been recorded by the  Naib Tehsildar (PW-1) between 7.15 and 7.30 p.m. while  Exh.31 was purported to have been recorded by the Police  Officer (PW-3) at 6.00 p.m.  In the Exh. 26, it was stated that  the deceased did not know name of the mother in law and that  the A-2 and A-3 were residents of Ramabai Nagar whereas the  place where the alleged incident took place was Panchsheel  road. It was stated that the neighbour had taken deceased to  hospital.  Police Officer (PW-3) stated that intimation regarding  occurrence was received at 6.30 p.m. vide Exh.30.  Strangely,  the dying declaration was recorded even before the intimation  had reached i.e. at 6.10 p.m.  There was a point raised about  the number of marriages of the deceased.  Interestingly, the  mother of the deceased supported the defence version.  PW-3  in his evidence stated that he had accompanied Naib Tehsildar  (PW-1). According to Trial Court and High Court the basic  question was who recorded the dying declaration first.  So far  as the dying declaration purported to have been recorded by  Naib Tehsildar (PW-1) is concerned, he has stated that one  constable accompanied him in the hospital.  He did not say  that police inspector PW-3, accompanied him though PW-3  claimed it to be so.  With reference to the Panchnama it  appears that no burn marks were found in the bed room on  the other hand burn marks were found in the kitchen. As  noted above, Exh.30 shows that ASI had received intimation at  6.30 p.m.  Dying declaration shows it was recorded between  6.00 to 6.10 p.m.  If the intimation was received at 6.30 p.m.  question of recording the dying declaration before that time  does not arise.  The trial court accepted this position to be  correct from the record.  But it made a new case that the time  recorded to be 6.30 p.m. appears to be a mistake made by ASI.   That was not the case of the prosecution and, in fact, PW-3  accepted that the intimation was received at 6.30 p.m. and the  dying declaration was recorded later by the Naib Tehsildar.  It  has not been explained as to what was the necessity of a  second dying declaration, if there was already a dying  declaration in existence recorded by PW-3, who stated that he  had accompanied PW-1. PW-1 in his statement stated that on  19.8.2001, on the basis of a letter requiring him to record  dying declaration of the person who was admitted to the  hospital.  He went to the hospital at 7.00 p.m., met the  medical officer in the hospital and thereafter he requested the  medical officer to show the person to him. The letter in  question was not produced by him. The trial court came to the  conclusion that PW-3, the medical officer and the constable  reached the Burns Ward at about 7.10 p.m.  As noted above, it  was the evidence of PW-3 that he had accompanied the Naib  Tehsildar PW-1.  Even if it is accepted as noted by the trial  court that the Naib Tehsildar has not produced the letter  because it may be misplaced but nothing prevented the  prosecution to produce the copy of the letter which was  purportedly written to the Naib Tehsildar. No effort in that  regard has been made. The trial court and the High Court  noted that the condition of the deceased was very poor as was  stated by the medical officer and the condition was  deteriorating since 6.10 p.m. The trial court, however, held the  dying declaration to be credible because the medical officer  was present when the dying declaration was recorded.  There  as no mention in the dying declaration that it was read over  and explained to the deceased. The Trial court and the High  Court concluded that even though it is not so stated, it has to  be presumed that it was read over and explained. The view is  clearly unacceptable.  So far as the presence of the relatives  and the tutoring aspect is concerned, the High Court held that  there cannot be a possibility of tutoring Rubina for falsely

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implicating appellants in the offence because of the  promptness in recording the dying declaration by PW 1 and  PW 3. The conclusion is clearly based on surmises and  conjectures.  Another fallacy in the conclusions of the High  Court and the trial Court was that mere change the place of  occurrence as borne out in the dying declaration, as projected  by the prosecution with reference to the spot panchnama was  not material. According to the deceased, the occurrence took  place in the bed room.  It is to be noted that no mark of burn  injury was noticed in the bed room and they were noticed in  the kitchen. High Court noted even if spot of occurrence has  not been correctly stated by the deceased same is of no  consequence.  That certainly has effect on the credibility of the  dying declaration, contrary to what the High Court has  observed. Another aspect which assumes great importance is  that in the dying declaration the deceased stated that she was  brought to the hospital by a neighbour but the official records  show that she was brought to the hospital by the accused no.2  i.e. sister-in-law. It was categorically asked to the doctor  whether in the admission register it was recorded that the  injuries were due to the accidental burn.  He stated that the  witness has not gone through the register of that date.   

9.      In view of the aforesaid infirmities the inevitable  conclusion is that the accusations of prosecution have not  been established.                                                                   10.     The judgment of the High Court cannot be maintained  and the same is set aside.  The appeal is allowed. The  appellants are acquitted of the charges.  They be set forth at  liberty if not required in any other case.