Anwarkhan s/o Sandukhan Pathan vs The State of Maharashtra

This Appeal is directed against the Judgment and order dated 11th May, 2001, passed by the Additional Sessions Judge, Aurangabad in Sessions Case No.317 of 2000 thereby convicting accused/ Appellant Anwarkhan s/o Sandukhan Pathan for the offence punishable under Section 302 of the Indian Penal Code (for short "I.P. Code") and sentencing him to suffer imprisonment for life and to pay fine of Rs.1000/, and in default, to suffer further simple imprisonment for five months, and further convicting him for the offence punishable under Section 498A of the I.P. Code and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.500/, and in default, to suffer simple imprisonment for three months.

The prosecution case, in brief, is as under: A) Deceased Zakiyabee married with accused Anwarkhan 2 and 1/2 years prior to her death. She was daughter of PW3 Khairunnisa Begum and PW4 Bashirkhan, resident of village Kaelgaon, TqSillod, and after marriage she was residing with accused at village Chawkawadi, TahsilAurangqbad. It is the case of the prosecution that after marriage Zakiyabee could not bear any child for about 2 and 1/2 years and therefore accused was disliking her. The accused started torturing Zakiyabee by beating her and was also asking her to bring the sum of Rs.4000/for purchasing a moped. The behaviour of accused was indifferent, even when there was marriage of younger sister of Zakiyabee.

B) It is the case of the prosecution that, on 4th June, 2000, at about 7.00 a.m. accused prepared himself for going to his regular labour work in quarry, and at that time deceased Zakiyabee requested him, not to go for work on that day. On this, accused told deceased that he will not listen to her, she would go for work and she may do whatever she wants. Deceased replied that she will not do anything. Thereafter accused Anwarkhan inquired with deceased Zakiyabee, whether she would die if he goes on work on that day. Zakiyabee answered him that, there was no reason for her to die and why she should die. On hearing such reply from deceased Zakiyabee, accused got enraged, he then took can of kerosene and poured it on the person of Zakiyabee and set her on fire. Accused was standing there till Zikayabee caught fire all around. It is the case of the prosecution that Zakiyabee then came out of house and some persons gathered there and extinguished the fire. Thereafter Zakiyabee was shifted to hospital at Aurangabad.

C) After Zakiyabee was shifted to hospital at Aurangabad, police attached to Government Medical College Hospital, recorded a medicolegalcase on the basis of information given by motherinlaw of Zakiyabee and communicated it to concerned police station at Phulambri. Police from the Police Station Phulambri immediately visited Zakiyabee and her statement was recored by A.S.P., PW8 Vishwas Nangre Patil. Her statement also got recorded through Executive Magistrate, Shashikant Bomble, wherein aforesaid allegations were recited by the deceased. The police had even got videography of the statement which deceased had made to Executive Magistrate and police.

D) Initially, PW3 Khairunnisa and PW4 Bashirkhan were informed that deceased sustained burn injuries on account of the flaringup of the stove, but when they visited the hospital, deceased made statement before them that it was the accused who had poured kerosene on her person and set her on fire. Deceased was alive till 8th June, 2000, and ultimately succumbed to the burns. PW6 Dr. Tapse conducted the postmortem and found that deceased had about 71% burn injuries, and her injuries and death was on account of "septicemic shock", due to burns.

E) Meanwhile ASP Nangre Patil had already registered the offence on the basis of the statement given by deceased, under Section307 of the I.P. Code. He also effected panchnama of the spot. After the death of the deceased, investigation was converted to one under Section302 of the I.P. Code, and after completion of all the formalities, accused came to be chargesheeted for aforesaid offences.

F) A charge Exhibit3, for an offence punishable under Sections 498A, 302 of the I.P. Code was framed against the accused and the same was explained to him. The accused pleaded not guilty and claimed to be tried. The defence of accused is that he never illtreated his wife Zakiyabee and she sustained burn injuries on account of the flaringup of the stove, and he has been falsely implicated in this case by the parents of Zakiyabee.

After recording the evidence and conducting full fledged trial, the trial Court convicted accused for the offence punishable under Section 302 of the I.P. Code and sentenced him to suffer imprisonment for life and to pay a fine, as aforestated. The trial Court also convicted accused for the offence punishable under Section 498A of the I.P. Code and sentenced him to suffer rigorous imprisonment for two years and to pay fine, as aforestated. Hence this Appeal by the accused.

Mr. Bharuka, learned counsel appearing for the Appellant invites our attention to the notes of evidence and submits that both the dying declarations of deceased Zakiyabee, one recorded by the police officer and another recorded by Executive Magistrate, are not inspiring confidence as those are recorded one after another and looking to the condition of Zakirabee, she was not in such a condition to give statements one after another. As per the medical evidence, she has sustained 71% burns and thus the condition of the victim was not good and she was not in a position to give such statements. The learned counsel states that, as per the prosecution case deceased Zakiyabee requested her husband not to go for labour work on that day and on such trifle ground quarrel took place and accused poured kerosene on the person of Zakiyabee and set her on fire. Therefore, he submits that the prosecution story is not believable. It has been argued by the learned counsel that the trial Court has not properly appreciated the evidence brought on record. There was no evidence brought on record by the prosecution to prove alleged demand, harassment and illtreatment. The inconsistent dying declarations should not have been accepted. The dying declarations were not free from doubt and therefore the conviction could not have been based upon such doubtful dying declarations. Therefore he submits that the Appeal may be allowed.

As against this, learned A.P.P. appearing for the State, argued that both the dying declarations are consistent. In both the dying declarations, Zakiyabee clearly stated that, on account of quarrel on trifle ground, her husband poured kerosene on her person and set her on fire. The evidence of mother and father of deceased is consistent. The findings recorded by the trial Court are in consonance with the evidence brought on record by the prosecution. Therefore, he prayed that the Appeal may be dismissed.

To prove the offence under Section 498A of the I.P. Code, the prosecution has relied upon the oral evidence of PW3 Khairunnisa Begum Bashirkhan Pathan and PW4 Bashirkhan, i.e. mother and father of deceased Zakiyabee. In this respect, the prosecution has also relied upon the two dying declarations given by deceased Zakiyabee.

The prosecution examined PW3 Khairunnisa Begum w/o Bashirkhan Pathan. She deposed that about 2 and 1/2 years prior to the incident, marriage of her daughter Zakiyabee was solemnized with accused. After marriage, Zakiyabee was residing at Chaukawadi. One year after marriage, accused started torturing Zakiyabee by demanding money. She further deposed that whenever Zakiyabee was visiting her house, Zakiyabee was narrating her that accused used to beat her by demanding money. She used to convince her daughter, so also she used to had convince accused. Death of Zakiyabee took place 2 and 1/2 years after marriage. She deposed that Zakiyabee might have visited on two occasions to her. She deposed that when Zakiyabee was beaten by accused, she told that accused was beating her and demanding Rs.4000/. . During the course of crossexamination of PW3 Khairunnisa, she was unable to tell on what occasions and dates Zakiyabee had visited their house. She stated that there used to be quarrel between husband and wife on trifle reasons. She stated that police had recorded her statement after the incident. She had told police that accused was demanding Rs.4000/. She was unable to tell, why the same was not written in her statement. She further stated that she had also told police that the main reason of quarrel was money. She was unable to tell why the same was not recorded in her statement.

The prosecution examined PW4 Bashirkhan Rajekhan. He deposed that her daughter Zakiyabee was married with accused Anwar prior to three years. One year after marriage accused Anwar started beating Zakiyabee. Accused started cursing her wife that she was not bearing any child. This continued for 2 to 4 months. Thereafter his daughter came to his house on the occasion of festival and she narrated about the behaviour of accused. He convinced her. He had also convinced accused. Thereafter Zakiyabee went with accused and stayed there for 3 to 4 months. She again visited Kelgaon and that time she complained against accused that he was again beating her and also demanding Rs.4000/for purchasing a moped. He deposed that he could not fulfill the demand as there was marriage of his younger daughter Shabana. He deposed that in marriage function of his younger daughter Shabana also, the behaviour of accused was not proper. . During the course of crossexamination, PW4 Bashirkhan stated that there was no grievance of Zakiya about living standard, income and the work which she had to do at the house of accused. He stated that he told to police that accused was demanding Rs.4000/for purchasing a moped, but he was unable to assign any reason why the said part of his statement was omitted by the police. He admitted that he made no mention of the behaviour of the accused at the time of marriage of Shabana, in his police statement.

Thus, after careful perusal of the oral evidence of PW3 Khairunnisa and PW4 Bashirkhan, it is clear that the allegations regarding harassment, illtreatment and demand are general in nature. The prosecution witnesses have not stated any specific incident or specific date when such alleged illtreatment was given by accused to deceased Zakiyabee, and when such alleged demand was made. If the evidence of both the prosecution witnesses i.e. PW3 and PW4, on the point of harassment, illtreatment and unlawful demand is considered in its entirety, it suffers from omissions, exaggerations, contradictions and improvements and makes it unbelievable to rely upon the same. We will consider, in detail, both the dying declarations of Zakiyabee at later stage. However, in this context, if we peruse both the dying declarations of Zakiyabee, though she has stated that her husband was abusing and beating her intermittently, however there is no whisper about the demand in both the dying declarations and on the point of demand, both the dying declarations are silent.

In the light of discussion in foregoing paragraphs, the evidence brought on record by the prosecution is too scanty and the same is not sufficient to attract the cruelty as contemplated under the provisions of Section 498A of the I.P. Code. In absence of proving an unlawful demand for any property or valuable security or that on account of failure by wife or any person related to her to meet such demand, harassment on account of same has not been proved by the prosecution in as much as, as already observed Zakiyabee in her both dying declarations at Exhibit7 and Exhibit22, has not stated single word about unlawful demand of Rs.4,000/. Therefore, the harassment of the woman as contemplated under the provisions of Section 498A of the I.P. Code is not proved by the prosecution. In that view of the matter, a charge for the offence punishable under Section 498A of the I.P. Code shall automatically fails. An earlier to the incident dated 4th June, 2000, admittedly, no any F.I.R./complaint was filed against the Appellant by Zakiyabee (deceased) or her parents, alleging an illtreatment or the harassment as contemplated under the provisions of Section 498A of the I.P. Code. Therefore, in our considered opinion, the findings recorded by the trial Court in this regard are not proper. The trial Court has not appreciated the evidence in its proper perspective regarding the offence punishable under Section 498A of the I.P. Code. Therefore the findings recorded by the trial Court that offence under Section 498A of the I.P. Code is proved against the accused, are perverse and the same requires to be quashed and set aside.

The prosecution has examined PW6 Dr. Sunil Purshuram Tapse. He deposed that he conducted postmortem on the dead body of Zakiyabee on 8th June, 2000 at 10.00 a.m. along with Dr. Yadav. He deposed that he has described the details of burn injuries in Column No.17. The patient received 71% burns. According to him, all burn injuries were antemortem. As per his opinion, death of patient was on account of septicemic shock due to burn. In his crossexamination, he stated that, it may be possible that on pouring kerosene from head to toe, the upper part may receive more burning than the lower part of the body.

Now, we would like to consider the dying declarations. PW8 Vishwas Narayan Nangre Patil, A.S.P., deposed that on 4th June, 2000 after he took charge as incharge of Phulambri Police Station, he learnt about registration of M.L.C. in respect of a woman. Accordingly he visited Ghati Hospital. He directed the inquiry officer to get opinion of medical officer. He further deposed that medical officer had opined that patient was conscious and competent to give statement. Thereafter he recorded statement of the victim, Exhibit22.

In first dying declaration Exhibit22 recorded by PW8 Vishwas Nangre Patil, Zakiyabee stated that, she is resident of Chaukawadi, Tq. & DistAurangabad. Her parental house is at Murdeshwar(Kelgaon), TqSillod. Her marriage was solemnized before two years with Anwarkhan Sandukhan Pathan. She stated that in her family, she has fatherinlaw, motherinlaw, brotherinlaw and two sisterinlaws who are married. Her brotherinlaw Firojkhan is residing at another place for the purpose of taking education. After her marriage for about one year her husband has treated her well. Thereafter her husband Anwarkhan started beating her and abusing her intermittently, on the trifle issues, and used to illtreat her mentally and physically. She stated that she used to inform her father, mother, brother and other relatives about the illtreatment given by her husband but every time relatives from her parental house used to give her understanding and used to send her to matrimonial house. She stated that she has no complaint against her fatherinlaw and motherinlaw. She stated that on 4th June, 2000 (on the day of incident) at 7.00 a.m. she was in the house along with her husband. When her husband proceeded to go for work on mine, she asked him not to go for work on that day. At that time her husband said that he would not listen her and he would go for work and asked her, what she would do. She replied that she would not do anything. Thereafter her husband asked her, whether she will die and she replied that, why she will die. Due to such reply, her husband got angry and he took out the kerosene can and poured kerosene from it on her person and by igniting match stick, he set her on fire. He stood there. When she completely caught on fire, she came out of the house crying. At that time, her husband put bed on her person and extinguished the fire. She stated that she received burns to her mouth, neck, breast, both hands, stomach, back, both the thighs and other parts of body. Thereafter her fatherinlaw, motherinlaw and others have admitted her in Ghati hospital, Aurangabad and there she was taking treatment. She further stated that her husband Anwarkhan, aged25 years, beat and abused her on trifle ground and illtreated her mentally and physically and on the day of incident i.e. on 4th June, 2000 in the house at Chaukawadi, her husband poured kerosene on her person and set her ablaze. She sustained 80% burns and her husband had tried to kill her.

PW1 Shashikant Narayan Bomble is a Special Executive Magistrate. He deposed that on 4th June, 2000 he received request letter from police to record statement of a woman with burn injuries, who was admitted in Ghati hospital. He visited the hospital, he inquired with the medical officer attending the said woman, about the consciousness state of the patient to give her statement. Medical Officer then informed him that patient is conscious and able to give her statement. He thereafter recorded the statement of the patient, which is at Exhibit7.

The relevant portion of the dying declaration Exhibit7, recorded by the Special Executive Magistrate, in vernacular, reads as under: "VERNACULAR MATTER OMITTED"

. The true translation of the dying declaration Exhibit-7, recorded by the Special Executive Magistrate, is as under:

"On asking personally, I Jakiya Begam w/o Anwar Pathan gives my statement that on 4th June, 2000 at about 7.00 a.m. I was in my house. My husband started to proceed to go for work on mine, when I told him not to go on work. Then my husband told me that he will not listen and he will go to work. He told, what I will do, then I told him that I will do nothing. Then husband asked me whether I will die? Then I told him why I shall die? Then my husband became angry and he took the kerosene can and poured the kerosene from that can on my person and he himself set me on fire, with matchstick. He stood there even after setting me on fire. When I completely caught on fire and came out of the house crying, then my husband put bed on my person and extinguished the fire. Thereafter my motherinlaw, fatherinlaw and husband took me to Ghati Hospital at Aurangabad and admitted me for treatment. At the time of incident, nobody was there except my husband. My motherinlaw, fatherinlaw were out of the house. Even two years after my marriage, I have no any issue. My husband used to beat and abuse me intermittently. I have no trouble from anybody except my husband. My husband poured kerosene on my person and burnt me. My statement has been read over to me, it is true and correct. I understand what is told in Marathi. This statement is given by me in complete consciousness, willingly without having pressure of anybody on me. The recording of statement was started at 1.55 p.m. and concluded at 2.20 p.m. on 4th June, 2000."

The prosecution has examined PW5 Dr. Sachin Jagannath Chavan. He deposed that he had endorsed statement of deceased Zakiyabee, which was recored by Special Executive Magistrate, Aurangabad on 4th June, 2000. He deposed that Exhibit7 bears his endorsement to the effect that patient was conscious and oriented and in a position to give statement, which was recorded between 1.55 p.m. to 2.20 p.m. Patient was able to give her statement. After ascertaining health of patient, he made an endorsement. This witness was crossexamined at length by the defence, however nothing useful to the defence has been elicited from his crossexamination.

Thus, if both the dying declarations of deceased Zakiyabee are read conjointly, those are consistent on material particulars. In both the dying declarations, Zakiyabee stated that, after quarrel on trifle ground, her husband poured kerosene on her person and set her on fire. The prosecution has proved both the dying declarations at Exhibit7 and Exhibit22 respectively, by examining relevant witnesses.

In this respect, PW3 Khairunnisa Begum w/o Bashirkhan Pathan deposed that on the day of incident, her relative told her that her daughter Zakiyabee was admitted in burnward at Ghati hospital. She visited hospital. Her daughter was totally in burnt condition. PW3 Khairunnisa deposed that she made inquiry with her daughter as to what has happened. Zakiyabee told her that, accused wanted to go for doing labour work on a quarry, and at that time Zakiyabee had prevented him, saying that he should not go for work on the quarry. Accused then inquired with her whether she is likely to die if he goes to work on quarry. That time Zakiyabee replied, why she should die. There were some verbal exchanges between accused and Zakiyabee and the accused went inside the house, brought a kerosene can and poured the kerosene on her person and set her on fire, due to which she started burning. PW3 further deposed that till Zakiyabee died, she was attending her for about three days. Zakiyabee died on 8th June, 2000. . Thus, it is clear from perusal of evidence of PW3 Khairunnisa, that her evidence is consistent. She deposed that her daughter had made oral dying declaration before her that accused poured kerosene on the person of her daughter and set her on fire.

PW4 Bashirkhan Rajekhan deposed that on the day of incident, he received a message that accused had caused burn injuries to Zakiyabee. He visited Zakiyabee in Ghati Hospital in burns ward. Zakiya was having burn injuries all around her body. He made inquiry with her as to how the incident had taken place. That time she narrated that she had requested accused not to go for work on that day. Accused became angry and he started abusing her and inquired as to why she was not allowing him to go for work. Zakiyabee used to go for labour work along with accused and on that particular day she was not willing to go for labour work and therefore she requested accused not to go for labour work. Then Zakiyabee showed her reluctance to go for work. At that time accused inquired with Zakiyabee, whether she would die if he attends the work. Zakiyabee replied, why she would die. Then accused said that if she is not dying, he will make her die, and then poured kerosene and set her on fire. When Zakiyabee came towards the door, that time accused extinguished fire by wrapping her with a quilt. . Thus, it is clear from perusal of evidence of PW4 Bashirkhan, that the oral dying declaration was made before him by his daughter Zakiyabee.

Upon careful perusal of the entire evidence brought on record by the prosecution, it is clear that both the dying declarations i.e. at Exhibit7 and Exhibit22 are consistent and corroborates each other. The same are also corroborated by the oral testimony of PW3 Khairunnisa, mother of the deceased and PW4 Bashirkhan, father of the deceased. Dying declaration Exhibit7 is recorded by PW1 Shashikant Bomble, Special Executive Magistrate. PW5 Dr. Sachin Chavan deposed that he examined the patient, Exhibit7 bears his endorsement to the effect that patient was conscious and oriented and in a position to give statement, which was effected between 1.55 p.m. to 2.20 p.m. He further deposed that patient was able to give her statement and after ascertaining health of patient, he made an endorsement. Thus prosecution has duly proved the dying declaration Exhibit7, recorded by the Special Executive Magistrate. In view of the exposition of law by the Supreme Court in the case of Khushal Rao vs. State of Bombay, A.I.R. 1958 S.C. 22 (V 45 C 4), the dying declaration recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. Thus both the dying declarations are consistent, corroborated by the prosecution witnesses, and we do not find any reason to disbelieve the said dying declarations.

For the above reasons, we do not find any substance in this Appeal as regards the incident is concerned. The evidence does show that the victim suffered culpable homicide at the hands of her husband i.e. accused. The medical evidence shows that deceased sustained 71% burn injuries. In our considered view, the accused was the author of the burn injuries sustained to deceased Zakiyabee.

However, we find from the record that the marriage was prior to two years and in the morning hours on the day of incident, on the trifle ground quarrel took place between the couple. On the day of incident, when accused husband was intending to proceed for labour work, Zakiyabee requested him not to go for work on that day, and on that count there was some altercation between the couple. It appears that the accused, in the heat of passion took kerosene can and poured the kerosene on the person of Zakiyabee and set her ablaze. It has come on record that when Zakiyabee caught on fire, accused wrapped her by bed and extinguished the fire. Immediately thereafter accused himself along with others, took Zakiyabee to the hospital for treatment. Therefore, taking into consideration the attending circumstances and the fact that accused extinguished the fire soon after the incident and that there was no premeditation as such, we are of the view that Exception 4 to Section 300 of the I.P. Code applies to the facts of the present case and appropriate conviction should be under Section 304 Part II of the I.P. Code, instead of Section 302 of the I.P. Code.

For the reasons aforestated, we pass the following order:

O R D E R

(I) The conviction and sentence of the Appellant, for the offence punishable under Section 498A of the Indian Penal Code is set aside.

(II) The conviction and sentence of the Appellant, for the offence punishable under Section 302 of the Indian Penal Code, 1860 is set aside. Instead, the Appellant Anwarkhan s/o Sandukhan Pathan is convicted under Section 304 Part II of the Indian Penal Code, 1860 and for the said offence, the Appellantaccused is sentenced to suffer rigorous imprisonment for ten years (10 years) and to pay a fine of Rs.2000/( Rupees Two Thousand), and in default of payment of fine, to suffer further simple imprisonment for three months.

(III) The period of detention, if any, be given as setoff to the Appellant.

(IV) Appellantaccused Anwarkhan s/o Sandukhan Pathan shall surrender forthwith before the trial Court. The trial Court shall ensure that immediately Appellantaccused is sent to the prison to suffer the sentence awarded to him.

(V) Criminal Appeal is accordingly, partly allowed and stands disposed of.