State of Maharashtra vs Taslimoddin Yusufoddin Kazi

P.B. Varale, J.—By the present appeal, the appellant - State challenges the judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Pusad in Sessions Case No. 25/2005 thereby acquitting the accused/respondent herein of the offences punishable under Sections 498-A and 302 of the Indian Penal Code.

The prosecution case can be summarized as follow :

"One Rizawana Anjum Taslimoddin wife of the respondent was subjected to harassment, ill treatment and cruelty by her husband i.e. accused/respondent Taslimoddin. Accused on 4-4-2005 at about 8.00 p.m. to 8.30 p.m. set the deceased victim on fire. The victim of the incident received nearly 100% burn injuries."

On receiving the report through the Medical Officer who was attached to Rural Hospital, Pusad on 4-4-2005 i.e. P.W. 4 Dr. Meenal, Naib Tahasildar, Chandrakant Giri (P.W. 6) by attending Rural Hospital, Pusad and recording the dying declaration of victim Rizawana, forwarded the same to police authorities, Pusad. Head Constable Uttam Chavan (P.W. 10) proceeded to Hospital and he also recorded statement of Rizawana. Pramod Dongre, who had received dying declaration of victim recorded by P.W. 6, Chandrakant registered the offence under Section 307 of the Indian Penal Code vide C.R. No. 105/2005. Investigating agency was set in motion.

The necessary formalities of the investigation were conducted. The dead body of the victim was referred to the Autopsy Surgeon. Statements of some witnesses were recorded. The learned Sessions Judge on appreciation of the evidence arrived at a conclusion that the evidence brought before the Court by the prosecution was not sufficient enough to convict the accused and finding that the prosecution failed to prove its charges against the accused beyond reasonable doubt and the accused was entitled for benefit of doubt. In the result, the learned Additional Sessions Judge, Pusad acquitted the accused.

The learned Additional Public Prosecutor Shri Mirza for the State submits that the learned trial Court failed to appreciate the evidence in its proper perspective and arrived at an erroneous conclusion. He submitted that the material evidence in the form of dying declarations was presented before the Court. It is the submission of Shri Mirza that a person who is on deathbed would not speak lie and as such, dying declarations wherein the complicity of the accused is clearly revealed, ought not to have been discarded by the learned trial Court.

Per contra, Shri D.G. Patil, learned counsel for the respondent submitted that the dying declarations in more than one number suffered from infirmities and inconsistencies. He submits that the learned trial Court, on a proper appreciation of the material, arrived at just and proper conclusion. He submitted that neither any irregularity nor any perversity can be found in the view taken by the learned trial Court. He submits that on appreciation of the material, a just, probable and possible view is taken by the learned trial Court. In such a situation, no interference at the hands of this Court is warranted so as to set aside the findings of the trial Court. Thus, the learned counsel for the respondent supports the judgment and order challenged in the present appeal.

With the assistance of both the learned counsel, we have gone through the material. Insofar as the death of the victim is concerned, perusal of the material, namely in the form of inquest panchanama wherein it is noticed that a victim was burnt 90% and sustained burn injuries all over her body. The dead body was referred to the Autopsy Surgeon. It will be material to refer to the evidence of P.W. 5 Dr. Hemant Kukde. He states that he had conducted post mortem on the dead body of Rizawana. He further states that he found 91% burns on the dead body. He further states that he opined that Rizawana died due to shock and due to burn. The only question asked to this witness in the cross-examination is about the degree of burn injuries and P.W. 5 Dr. Hemant replied that the burn injuries noted in the post mortem were of third degree. Perusal of the post mortem report show that the injuries referred to in column No. 17 are :

"1. Superficial to deep burns present with margins inflamed, reddened, blisters present at places with ointment applied with greenish yellow discharge with foul smell at places with blacking over area spared.

Though an attempt was made to submit that Rizawana caught accidental fire as it reflects in the statement of the accused under Section 313 of Code of Criminal Procedure, the finding of gas cylinder and shegadi in the spot panchanama made the defence of the accused unacceptable. Thus, the material clearly established the fact of the victim dying homicidal death.

Now, turning to ascertaining the complicity of the accused, we would assess the material in the form of dying declarations on which the prosecution placed heavy reliance. It is not in dispute that conviction can rest upon a dying declaration provided the same is reliable, trustworthy and inspires confidence. On this touchstone, now we will assess the dying declarations. There are two sets of dying declarations in the present matter. One set is of three dying declarations and other set is of two oral dying declarations. The first dying declaration is recorded by Police Head Constable Uttam Chavan, P.W. 10. It is stated in the declaration that on 4-4-2005, the victim, the accused and other family members had their dinner at about 8.00 p.m. The victim was making the minor child to sleep. The accused wanted the victim to satisfy his physical urge. The victim was unable to attend the accused immediately as she was making the child to sleep. The accused on account of her delay, gave fist blows on her head and face. Due to these blows, victim felt unconscious. The accused tied her legs by an electric wire and by pouring kerosene on her person, set her on fire. She further states that she gained consciousness after some time and found her neighbour Rehana Mehmood and her children near her. Rehana and her children poured water. Rehana then removed the wire. Thereafter the accused, Rehana and one Mujjamir, an auto driver shifted the victim in the hospital. She then states that prior to this incident also, the accused was beating her under the influence of liquor and was asking for an amount of Rs. 20,000/-. This dying declaration is rejected by the learned Court below on more than one grounds.

We have gone through the oral testimony of the witness P.W. 10, Head Constable, Uttam Chavan. Perusal of the record shows that though this witness deposed that he issued memo to the Doctor so as to issue the fitness certificate of the victim but the said memo is not produced on the record. The dying declaration bears no thumb mark or toe mark of the victim. P.W. 10, Head Constable, Uttam Chavan in his cross-examination deposed that he has not obtained the thumb impression of the victim Rizawana because her hands were totally burnt. He also admitted in the cross-examination that he neither read over the contents of her statement to her nor made any endorsement to the effect that the statement was read over to Rizawana and she admitted the contents of the same. Dr. Meenal Kutumbe who was attached to the Rurlral Hospital, Pusad at the relevant time as Medical Officer deposed that on 5-4-2005 at 10.30 p.m., patient Rizawana was admitted in the hospital with 100% burns. She gave information to P.S.O., City Police Station, Pusad under her signature. The said intimation under the signature of P.W. 4 Dr. Meenal is at Exhibit 35. P.W. 4, Dr. Meenal deposed that on the request of Executive Magistrate, she issued the fitness certificate of the victim for recording dying declaration. The said certificate is at Exhibit 36. The Executive Magistrate recorded the dying declaration. The said dying declaration i.e. the second dying declaration is at Exhibit 45. P.W. 4 Dr. Meenal Kutumbe deposed that after completion of the statement, she issued the second certificate of patient being conscious during the recording of the statement. The said certificate is Exhibit 37. In the dying declaration recorded by the Executive Magistrate, it is stated by the victim that she was beaten, she became unconscious, thereafter kerosene was poured and burning matchstick was stuck to her person. Then she states that the accused asked her to bring amount of Rs. 20,000/- from her father''s house. P.W. 4 Dr. Meenal Kutumbe who was subjected to cross-examination deposed that burns are most painful and third degree burns. Rizawana was injected intra venus fluid. She further deposed that it was her duty to see how the pains in third degree are reduced and that was done by her.

P.W. 6 Chandrakant Giri, the Executive Magistrate who was subjected to cross-examination deposed that he had asked the victim questions in Hindi and the dying declaration was taken in Hindi. He admitted in the cross-examination that he had not mentioned that he has asked the questions to the patient in Hindi. Perusal of the record shows that the dying declaration was recorded within span of five minutes. Perusal shows that recording of the dying declaration started at 00.55 Hrs. and concluded at 1.05 Hrs. The victim who had received severe burns to the extent of nearly 100% and the recording of dying declaration was completed within shortest span of 5 minutes. The third dying declaration is recorded by P.W. 1 Ajabrao Metange. In the said dying declaration, it is stated that on the earlier day i.e. on 4-4-2005, the accused beat the victim. He asked the victim to bring amount of Rs. 20,000/-. Then it is stated that after accused beat the victim, she became unconscious. The accused then poured kerosene on her person and set her ablaze. It is then stated that her son poured water and extinguished fire. It is then stated that thereafter the people of locality came there and they shifted the victim in the hospital at Pusad.

P.W. 1 Ajabrao Metange admitted in his cross-examination that on receiving the memo, Exhibit 18, he had been to the hospital. He deposed in the cross-examination that he made no enquiry with Dr. Khodve whose name was reflected in the memo nor he felt it necessary to meet Dr. Khodve. He states in the cross-examination that he was not knowing about Dr. Thakur who was in-charge of the burn ward. He then states that he had not put any specific question to get clarification from the victim about the ambiguous statement made by the victim. The witness states that he had obtained the left thumb impression of the victim on the dying declaration and attested it. On bare perusal of third dying declaration, on the backdrop of the testimony of the witnesses, namely Police Head Constable, the Executive Magistrate and the Naib Tahsildar, it clearly reveals that these dying declarations suffered from inconsistencies and basic infirmities. There is material variance on all the aspects in these dying declarations. In one dying declaration, the story of the accused being enraged by delay of victim in attending the accused is referred to whereas there is no such reference in other dying declarations. In one dying declaration, the victim states of presence of one Rehana and her attempt to extinguish the fire whereas in another dying declaration, it is stated that her children by pouring water extinguished the fire. In the third dying declaration, it is stated that her son poured water on her person and extinguished the fire. The evidence of the Medical Officer shows that the victim was subjected to medical treatment so as to reduce her pains. On the backdrop of these facts, the learned trial Judge was justified in observing that if the victim was provided medical treatment to reduce the pains, she must have been provided some pain-killer and as such, there was every possibility of victim being not in conscious and in fit state of mind to give declaration. On the backdrop of the material, it would clearly established that the so called written dying declarations failed to inspire confidence and the same are wholly untrustworthy.

It will be also material to note that in one of the dying declarations, the victim refers to an attempt of extinguishing the fire by one Rehana. This witness Rehana Mehmood was examined by the prosecution and she turned hostile.

It also creates doubt on the aspect when the Police Head Constable who recorded the dying declaration which is first in point of time states that he has not obtained the thumb impression of the victim as her whole body was subjected to burns whereas in one of the dying declarations, Naib Tahsildar who recorded dying declaration states that he obtained the thumb impression of the victim. Perusal of the inquest panchanama Exhibit 27 shows that palms were shrinked and both the hands of the victim were fully burn. It further show that hands of victim were subjected to burn injury to the extent of removal of skin layer. Thus, this is an additional circumstance creating doubt over the written dying declarations.

Now we will consider the oral dying declarations. On perusal of the version of the witnesses, namely, the father of the victim and the sister of the victim to whom the alleged oral declaration is made, it reveals that there is a vast variance even in these two oral declarations. The father of victim, P.W. 2 Jannuralkhan deposed that on receiving telephone call that Rizawana was set on fire, he rushed to the hospital. He states further that Rizawana told him that the accused was demanding Rs. 20,000/- and the accused beat her, poured kerosene and set her on fire. In the cross-examination of this witness, omissions are brought on record on the aspect of witness giving Rs. 3,000/- on one occasion to the accused through Rizawana. The omission was also brought to the effect that on account of the accused and his maternal uncles visiting this witness and giving assurances and on the assurances, the father i.e. Jannuralkhan sending his daughter Rizawana with the accused. The omission was also brought on the aspect of the accused subjected to vice of liquor after 5-6 years of the marriage. P.W. 3, sister of the victim gives a totally exaggerated version and omission was brought on record on the aspect of the witness stating that the accused caused a cut injury to the victim on her nose and omission was also brought on the aspect of the accused giving an ice-cream to the victim Rizawana and after eating ice-cream, Rizawana became unconscious. Thus, these two so called oral dying declarations are also wholly insufficient to inspire confidence. No reliance can be placed on such untrustworthy dying declarations. Perusal of the material also shows that the investigation was carried in casual manner. The material shows that the dying declaration refers to electrical wire whereas the Investigating Officer deposed before the Court that he has described in the panchanama that the wire is nylon wire whereas it was in fact an electrical wire. The perusal of the C.A. report shows that the material forwarded for chemical analysis was partly burnt nylon wire. The so called recovery of the clothes of the accused having kerosene residues and treating the same material as an incriminating material against the accused is also highly criticized by the learned Sessions Judge and on perusal of the material, we find that the learned Sessions Judge was right in criticizing the said material.

It will not be out of place to refer to the judgment of this Court reported in Suresh Dodorkar (Sonar) Vs. State of Maharashtra, This Court observed that in cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of the material aspects of the incident. Consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself. It further observed that if in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected.

Considering all these aspects, we find that the learned Sessions Judge has appreciated the evidence in its proper perspective and arrived at just and proper conclusion. We see no reason to cause any interference in the judgment and order passed by the learned Sessions Judge. The appeal is, thus, being wholly meritless, deserves to be dismissed and the same is, accordingly, dismissed.