Ramija Ayyub Bagwan Vs the State of Maharashtra

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION

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 APPEAL NO.860 OF 2003

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 Ramija Ayyub Bagwan ]
 Aged 25 yrs. Occ: Housewife ]
 residing at Bagwan Nagar, ]
 Mulegaon Road, Solapur ]
 (presently lodged at Yerwada]
 Central Prison, Pune.] ]..Appellant
 [Ori.Accused No.5]
 Vs.

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 The State of Maharashtra ]..Respondents

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 Mr.A.P.Mundargi, Sr.Advocate with Mr.P.R.
 Arjunwadkar Advocate for the Appellant
 Mr.M.S.Mhambre APP for State

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 WITH
 APPEAL NO.1338 OF 2003

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 1. Yunnus Rahimbaksha Bagwan]
 @ Durugkar, Age 24,Occ: ]
 Mechanic ]
 2. Ayyub Rahimbaksha Bagwan ]
 Aged 29 yrs. Occ:Service ]
 residing at Bagwan Nagar ]
 Mulegaon Road, Solapur ]
 [presently lodged at ]
 Yerwada Central Prison, ]
 Pune.] ]..Appellants
 [Ori.Accused Nos.
 1 and 2]
 Vs.

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 The State of Maharashtra ]..Respondents

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 Mr.A.P.Mundargi, Sr.Advocate with Mr.P.R.
 Arjunwadkar Advocate for the Appellants
 Mr.M.S.Mhambre APP for State

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 CORAM: R.M.S.KHANDEPARKAR, AND
SMT.V.K.TAHILRAMANI, JJ.

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 DATE : SEPTEMBER 06, 2007

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ORAL JUDGMENT [PER SMT.V.K.TAHILRAMANI, J.]:

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 1. By Criminal Appeal No. 860 of 2003, the
 appellant-Ramija Ayyub Bagwan (original accused
 No.5 in Sessions Case No.252 of 2002), and by
 Criminal Appeal No. 1338 of 2003, the appellant
 No.1-Yunnus Rahimbaksha Bagwan @ Durugkar and
 appellant No.2-Ayyub Rahimbaksha Bagwan (original
 accused Nos.1 and 2 in Sessions Case No.252 of
 2002), have challenged the judgment and order dated
 9th May, 2003 passed by the learned IVth Additional
 Sessions Judge, Solapur. By the said judgment and
 order, all the three appellants were convicted for
 the offence punishable under Section 302 r.w. 34
 of IPC and sentenced to R.I. for life and fine of
 Rs.500/- each. They are also convicted for the
 offence punishable under Section 498-A r.w. 34 of
 IPC and sentenced to R.I. for one year and to pay
 a fine of Rs.500/- each. Both the sentences were
 directed to run concurrently. However, the learned
 Judge has acquitted all the three appellants of the

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 charge under Section 304-B r.w. 34 of IPC. It may
 be stated here that the original accused Nos.3,4
 and 6 were acquitted of all the charges levelled
 against them.

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 2. The prosecution case briefly stated, is as
 under:

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 . The deceased Rihana was married to original
 accused no.1 Yunnus Rahimbaksha Bagwan. Their
 marriage took place on 19th May, 2002.
 Appellant-Ayyub Bagwan is the brother of accused
 no.1 Yunnus Bagwan. Appellant Ramija is the wife
 of Ayyub. The appellants and deceased Rihana were
 all residing together. It is the prosecution case
 that demand of Rs.50,000/- was made by the accused
 persons from Rihana and her parents for running
 garage. As the demand was not met, the accused
 persons abused and beat Rihana and on 23rd
 September, 2002 at 7 a.m. the accused caught hold
 of Rihana, poured kerosene on her and set her on
 fire. Rihana sustained 93% burn injuries. Her
 dying declarations (Exhibits 31 and 46) came to be
 recorded in the Hospital. Thereafter, Rihana died
 on 27th September, 2002. After completion of

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 investigation, charge sheet came to be filed. In
 due course, the case was committed to the Court of
 Sessions for trial.

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 3. Charge under Sections 498-A, 302 r.w. Section
 34 of IPC came to be framed against the appellants
 and three other accused persons including accused
 Rahimbaksha and accused Noorjanha who are the
 father-in-law and mother-in-law of deceased Rihana
 respectively. Alternatively, charge under Section
 304-B r.w. 34 of IPC came to be framed against all
 the accused persons. All the accused pleaded not
 guilty to the said charges and claimed to be tried.
 The defence of the accused is that of total denial
 and false implication. After going through the
 evidence adduced by the prosecution, the learned
 Sessions Judge convicted the appellants as stated
 in paragraph 1 above. Hence, this appeal.

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 4. We have heard Mr.A.P.Mundargi, learned Senior
 Advocate for the appellants and Mr.Mhambre, the
 learned APP for the State. We have also perused
 the judgment and order passed by the learned Addl.
 Sessions Judge, as well as record pertaining to the
 present case. After carefully considering the

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 evidence on record, we are of the opinion that both
 these appeals deserve to be allowed.

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 5. As far as the involvement of appellants is
 concerned, even as per the prosecution case, the
 only material against them is two dying
 declarations (Exhibits 31 and 46). It may be
 stated here that all the material and relevant
 witnesses including the relatives of the deceased
 P.W.3 Khairunissa, mother of deceased Rihana and
 P.W.4 Ruksana, sister of deceased Rihana, have
 turned hostile. Thus, it is seen that the case is
 solely dependent on the two dying declarations.
 The first dying declaration (Exhibit 31) was
 recorded by P.W.9 Special Judicial Magistrate
 Mr.Mane. The said dying declaration was recorded
 on 23rd September, 2002 at 11.40 a.m. The second
 dying declaration was recorded by P.W.10 P.S.I.
 Garad on 23rd September, 2002 at 12.15 p.m. As far
 as these two dying declarations are concerned, we
 have noticed that there are major discrepancies in
 the two dying declarations. In the dying
 declaration (Exh.31), Rihana has stated that at 7
 a.m. her brother in law Ayyub, her husband Yunnus
 and her Jethani Rehmu caught her and poured

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 kerosene on her and thereafter, Rehmu set her on
 fire. She has stated that the quarrel took place
 because her husband was asking to get Rs.50000/-
 from her parents to set up a garage. However, in
 the second dying declaration (Exh.46) she has
 stated that at 7 a.m. Rammu raised quarrel with
 her stating that she could not do the household
 work properly. At that time, her brother in law
 and husband Yunnus came there. They caught hold of
 her and thereafter Rammu poured kerosene on her
 person and her sister in law Rehana (original
 accused no.6) set her on fire with the help of
 match stick. Thus, in the dying declaration
 (Exh.46) the role of pouring kerosene is attributed
 solely to Rammu and act of setting her on fire is
 attributed to the sister in law (Rehana Gilani) of
 the deceased Rihana whereas in the dying
 declaration (Exh.31), she has stated that Ayyub,
 Yunnus and Rehana poured kerosene on her person and
 Rehana set her on fire. This dying declaration is
 totally silent in respect of her sister in law
 Rehana. Thus, in respect of role attributed to the
 accused persons, there is major discrepancy in both
 the dying declarations. Moreover, in the dying
 declaration Exh.46, mention is made of one "Rammu"

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 whereas in the dying declaration Exh.31 mention is
 made of one "Rehmu". There is no material to show
 that "Rammu" and "Rehmu" is one and the same
 person.

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 6. Mr.Mundargi has submitted that both the dying
 declarations are not free from doubt. From the
 evidence of P.W.11 Satish Tak, it is seen that
 Special Judicial Magistrate P.W.9 Mr.Mane has
 recorded the dying declaration (Exh.31) without
 getting the patient Rihana examined from the Doctor
 to ascertain whether she was in a fit state to give
 her statement. Dr.Tak has clearly stated that the
 Magistrate came to the hospital and met him. The
 Special Judicial Magistrate informed him that he
 was to record the dying declaration of Rihana. He
 went along with the Magistrate to the burn ward and
 Magistrate started recording dying declaration of
 the patient. Thereafter, he (Dr.Tak) made an
 endorsement after completion of the statement that
 the patient was conscious and in a position to give
 a statement. Thus, it is seen that prior to
 recording of dying declaration, the Doctor had not
 examined the patient and ascertained whether she

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 was in a fit state to give her statement. It is
 also pertinent to note that the Doctor except for
 saying that he gave endorsement on the dying
 declaration, does not remember any of the details
 of what happened on that day. The Doctor has
 clearly stated that he was unable to state the MLC
 number of the patient, the Doctor who attended the
 patient, for how long the patient was in the
 casualty ward. He has also stated that he had gone
 through the medical papers but he does not know the
 contents thereof. Thus, except for the Doctor
 stating that he gave endorsement, the Doctor was
 unable to give any answer in relation to the
 patient and her treatment. As observed earlier by
 us, the endorsement of the Doctor on the dying
 declaration recorded by the Special Judicial
 Magistrate Mr.Mane has been taken after the dying
 declaration was recorded. Looking to all these
 aspects, we do not find it safe to rely on this
 dying declaration.

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 7. As far as dying declaration (Exh.31) recorded
 by Special Judicial Magistrate Mr.Mane is
 concerned, he has stated that he recorded the dying
 declaration in two copies. He put one copy in an

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 envelop and sealed it in the hospital itself. One
 copy of the dying declaration remained with him.
 He could not trace out the second copy which was
 with him. Hence, he brought to the Court a xerox
 copy. It is his case that he obtained xerox copy
 of the dying declaration from his second copy which
 was the carbon copy. However, he does not remember
 the date when he obtained the xerox. It is not
 understood as to what was the reason for him for
 obtaining xerox copy from the carbon copy and as to
 what were the circumstances that prompted P.W.9
 Mane to take out xerox copy from the carbon copy of
 the dying declaration. It is only the xerox copy
 which is before the Court and the carbon copy has
 not been brought before the Court. This raises
 doubt about this dying declaration. Moreover,
 requisition letter (Exhibit-30) was given to
 Special Judicial Magistrate to record the dying
 declaration. In the said letter, it is clearly
 mentioned that the patient had committed suicide.
 This also raises further doubt in our mind about
 the dying declarations.

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 8. As far as the other dying declaration (Exh.46)
 which was recorded by P.W.10 P.S.I. Garad is

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 concerned, he has stated that the dying declaration
 is not in his handwriting. However, he has not
 stated who has recorded the dying declaration and
 why it was recorded by somebody else. Moreover, as
 observed earlier by us, there is material
 discrepancy between both the dying declarations.
 Taking into account, the cumulative effect of the
 discrepancies and lacunae in both the dying
 declarations, we do not find it safe to rely on the
 said dying declarations. Besides the dying
 declarations, there is no other material against
 the appellants. In such case, the appellants
 deserve to be given benefit of doubt. In this view
 of the matter, the appellants deserve to be
 acquitted.

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 9. Appeal is therefore, allowed. Judgment and
 Order dated 9.5.2003 delivered by IVth Additional
 Sessions Judge, Solapur in Sessions Case Nos.252 of
 2002 thereby convicting appellants for the offence
 punishable under Sections 302, 498-A r.w. 34 of
 IPC is quashed and set aside. The appellants are
 acquitted of the said charges. Appellant in Appeal
 No.860 of 2003 is on bail. Her bail bonds shall
 stand cancelled. The appellants in Criminal Appeal

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 No.1338 of 2003, who are in jail, shall be released
 forthwith if not required in any other case. Fine
 amount if paid, shall be refunded to the
 appellants.

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 [ R.M.S.KHANDEPARKAR, J.]

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 [ SMT.V.K.TAHILRAMANI,J.]

Ramija Ayyub Bagwan v. the State of Maharashtra

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Ramija Ayyub Bagwan v. the State of Maharashtra

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