The State of Maharashtra vs Sayed Isak Sayed Razzak Inamdar

S.S. Shinde, J.—The appellant State has filed this Appeal, assailing the Judgment and Order dated 19th April, 1995 by the 2nd Additional Sessions Judge, Osmanabad in Sessions Case No. 164/1994, thereby acquitting the respondents.

In nutshell, the facts of the case are as under:

The prosecution witness No. 4 Ajimnisa Mahboob Pasha Kazi was having two daughters namely Bijani and Zarina. Bijani was her elder daughter, who was given in marriage at Solapur. Her younger daughter Zarina was married on 16.06.1993 with accused Rajak. After marriage, she was residing in matrimonial home. After marriage, Zarina came to her mother for Ramjan festival. At that time, she did not complain against accused. After her stay for 15 to 20 days with her mother, she returned to her matrimonial home. There was Khatma ceremony at the house of Vijani i.e. sister of Zarina at Solapur. For that ceremony PW-8 Nasiruddin went to bring Zarina. At that time, accused persons asked Nasiruddin to take back goods given to Zarina in her marriage. The said fact was told by Nasiruddin to the mother of Zarina.

It is further case of the prosecution that, 09.06.1994, mother of Zarina learnt Zarina is burnt and admitted in Government Hospital at Solapur. She went with her family members and relatives to meet Zarina. She was in serious condition, unable to talk and was on the verge of death. On the next day, Zarina could speak. She stated to her mother that, all the accused by pouring kerosene on her person set her ablaze and by closing the door of the house from outside, they went away.

On 10.07.1994, Police Officer took PW-6 Suresh Gaydhankar, working as Magistrate to Hospital for recording dying declaration of Zarina. Her dying declaration was recorded at Exh.33 in which according to the prosecution, she stated that, accused persons committed her murder by putting her on fire. The investigation was done by the Sadar Bazar Police Station, Solapur. Thereafter, papers were sent to the Naldurg police Station, same were received by the said Police Station on 11th July, 1994 and on the basis of said papers, crime No. 117/1994 was registered with the Naldurg Police Station. After investigation, charge sheet was filed before the Judicial Magistrate First Class, Tuljapur u/s 302 r/w. 498A of Indian Penal Code and Judicial Magistrate First Class, by an order dated 7th November, 1994 committed case to the Sessions Court, Osmanabad. The charge was framed against the accused at Exh.9 u/s 302, 498-A, 342 r/w. Section 34 of Indian Penal Code. All the accused pleaded not guilty to the said charges. They were tried. During trial, the prosecution examined in all 10 witnesses. The statements of accused were recorded u/s 313 of Criminal Procedure Code and after full-fledged trial, the accused were acquitted. Hence this Criminal Appeal.

The learned Additional Public Prosecutor invited our attention to the contents of the dying declaration at Exh.33 and also to the evidence of prosecution witnesses and in particular evidence of PW-7 Dr.Dnyanedra Ravindra Sharma, the evidence of I.O., PW-9 and also the evidence of other witnesses including PW-4 mother of the deceased. He further invited our attention to the evidence of PW-6 Suresh Gaydhankar, who was working as Magistrate during said period and recorded the dying declaration of the deceased at Exh.33.

Upon careful perusal of the dying declaration at Exh.33 from the original record, it appears in the said dying declaration that, there is no endorsement to the effect that, the contents of the said dying declaration were read over to the Zarina [deceased], which is the most important requirement as held by the Supreme Court in case of Shaikah Bakshu and Others Vs. State of Maharashtra, The Supreme Court in para No. 8 observed that:

"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 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".

If the contents of the dying declaration at Exh.33 are read in its entirety, it appears that, overact is attributed not only to the husband Rajak but father in law, mother in law, sister in law and brother in law. It is stated in the dying declaration that, since she is not conceiving child, father in law, mother in law, sister in law and the husband started ill-treating the deceased. On 9th July, 1994 at about 4.00 a.m. the husband poured kerosene at the place where she was sleeping and set her on fire then husband told her not to shout and he left to home. When she was trying to go out of the house, other family members closed the door from the outside and therefore, she could not go outside.

Upon careful perusal of the dying declaration at Exh.33, it appears that, there is signature and stamp of the Executive Magistrate Shri Suresh Gaydhankar. Before his signature in vernacular, it is written in ''Samaksha'', it means in presence of him. That also creates doubt that whether the said dying declaration is recorded by Shri Suresh Gaydhankar himself or some other person. On careful perusal of the said dying declaration, it appears that, thumb impression on the said dying declaration is not attested. Upon perusal of the dying declaration at Exh.33, it appears that, the writing of the said document and signature of the Executive Magistrate is quite different also ink used for writing of the statement and signature is also quite different.

As already observed, there is no endorsement on the said dying declaration that, the contents of the dying declaration were read over to the Zarina and those were as per her narration.

PW-4 Ajimnisa Mahboob Pasha Kazi, mother of the deceased in her evidence, stated that, Zarina told her that all accused by pouring kerosene on Zarina, set her on fire and by closing door, they went away. In fact, the said version of Zarina to PW-4 runs contrary to the dying declaration at Exh.33 inasmuch as in the said dying declaration before the Magistrate, Zarina told that her husband poured kerosene and set her ablaze and other family members did not allow him to come out from the house. However, there is no role attributed to other family members'' so far actual incident of pouring kerosene and setting her ablaze. Therefore, there is total contradiction between two versions. PW-8 Nasir in his evidence stated that Zarina was his cousin sister on coming to know that Zarina is hospitalized, he went to Solapur. He saw Zarina, she was in serious condition. On first day, she did talk. On next day, he asked Zarina how she is burned, she told that, at about 4.00 a.m. her husband poured kerosene and set her on fire and closed the door of that room from outside, and she was inside that room. Therefore, in the alleged oral dying declaration to PW-8 by Zarina, there is no mention of name of father in law, mother in law, brother in law or sister in law. This oral dying declaration given to PW-8 by the deceased Zarina attributes role only to husband. Therefore, if the dying declaration at Exh.33 and two oral dying declarations of PW-4 and PW-8 are considering, the total contradictory versions, are stated in three dying declarations. Therefore, none of the dying declarations inspires confidence so as to reverse the acquittal of the respondents.

The respondent Sayyed Isak in his statement recorded u/s 313 of the Criminal Procedure Code, while answering question No. 9, whether Zarina was in a position to speak in Hospital stated that she was not in a position to speak.

The Investigation Officer in his cross examination stated thus:

"This offence was registered first by Sadar Bazar Police Station, Solapur. Alongwith Exh.33, I received report of Police Chowki, Solapur. From that report it transpired there was quarrel from deceased and her husband on account of sound of tape recorder and therefore she committed suicide. I did not enquire with police persons who gave report of suicidal report alongwith Exh.33. I did not record statement of Dr.Deshpande whose name is mentioned in the report sent to me by Solapur police. I did not recover case papers about examination of Zarina by Dr.Deshpande. Alongwith Ex.33 I received report dated 9.7.94. I received other report from P.S.Solapur on 15.7.94. I did not record statement of the person who sent me this report."

PW-10, Special Executive Magistrate in his deposition stated that, he did not record dying declaration of Zarina Begum. In his cross examination, he stated that when he want to record dying declaration of Zarina at Hospital, at Solapur, 5 to 50 relatives of Zarina were present there. He further stated that, patient was not in a position to speak.

It is not necessary for us to go into the greater detail, since in our opinion findings recorded by the trial Court are in consonance with the evidence brought on record and there is no perversity as such. In order to ascertain whether the findings recorded by the trial Court while passing acquittal order are in consonance with the evidence brought on record or otherwise, upon independent scrutiny of the entire evidence, we find that the view taken by the trial Court is probable and in consonance with the evidence available on record. Therefore, we have no hesitation to hold that findings recorded by the trial Court and acquittal order passed upon the said findings, deserves no interference, hence the following order:

The appeal is dismissed. The Judgment and Order dated 19.04.1995 passed by the 2nd Additional Sessions Judge, Osmanabad in Sessions Case No. 164 of 1994 is hereby confirmed.

The bail bonds of the respondent Nos. 1 to 5 stand cancelled.