Dismissed

Shaikh Juned Shaikh Moti Manuri and Anr. v. the State of Maharshtra Anr.

Bombay HC6 Aug 2013APEAL/334/2011

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against conviction for murder and cruelty under IPC Sections 302 and 498A. The court upheld the trial court's finding that the appellants abused and set fire to the deceased, relying on medical evidence of consciousness and sister's testimony, rejecting the alibi and variance pleas.

What did the court decide?

The criminal appeal was dismissed. Bail bonds of appellant No.2 were cancelled with a fresh bond granted for four weeks.

Shaikh Juned Shaikh Moti Manuri and Anr. Vs the State of… — Dowry and Cruelty | Bombay HC (2013)

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1 Cr Appeal 334 of 2011

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Criminal Appeal No.334 of 2011

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1. Shaikh Juned Shaikh Moti Mansuri Age 25 years, Occupation : Labour, R/o Rajeev Gandhi Nagar, Khultabad, District Aurangabad.

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Julekha Begum w/o Sk. Moti Mansuri Age 42 years, Occupation :L Household, R/o As above. .. Appellants.

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Versus

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The State of Maharashtra. .. Respondent.

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Shri. Satej S. Jadhav, Advocate, for the appellants.

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Smt. A.V. Gondhalekar, Additional Public Prosecutor, for the respondent.

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CORAM: NARESH H PATIL & A.I.S. CHEEMA, JJ.

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Judgment reserved on : 25^th July 2013

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Judgment pronounced on : 6^th August 2013

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JUDGMENT (Per Naresh H Patil, J.) :

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Appellant No.1-Sk. Juned Sk. Moti Mansuri,

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husband of the deceased Heena Begum was convicted for an offence punishable under sections 302 and 498A read

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with 34 of the Indian Penal Code. He was sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/in default, to suffer simple imprisonment for one year for the first offence and further sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.5,000/in default, to suffer simple imprisonment for nine months for the second offence. Both the substantive sentences were directed to run concurrently. The appellant No.2Julekha Begum w/o Sk. Moti Mansuri was convicted for an offence punishable under section 498-A rad with 34 of the IPC and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/- in default, to suffer simple imprisonment for nine months. Both the appellants have questioned in this appeal the judgment and order dated 12-5-2011 passed by the Additional Sessions Judges-2, Aurangabad in Sessions Case No.394 of 2009.

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In brief, the prosecution case is that deceased Heena Begum and PW-3 Raziabegum were married to two real brothers i.e. appellant No.1 and his brother Shaikh Nawab Mansuri. Both were residing in the same house at village Gajgaon, Taluka Gangapur, District Aurangabad.

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The appellant No.1 had a doubt on the character of the deceased. He used to abuse her on the ground that the deceased did not conceive child out of their relationships. The deceased was three months’ pregnant at the time of the incident. Appellant No.1-Juned also ill-treated the deceased saying that her father forced him to marry her. He was in the habit of coming late at night hours to his house. Appellant No.2 Julekha Begum was also harassing the deceased saying that she was not good looking and was of black complexion. The deceased was threatened by appellant No.2 that they would perform second marriage of appellant No.1. Four months prior to the incident grandmother of PW-3 Raziabegum died at Kannad. The father of the deceased had come to take both the daughters. At that time the appellants told father of the deceased that they shall not bring the daughters back to the matrimonial home. The deceased and her sister, PW-3 Raziabegum resided at the parental house for one and half months. Thereafter the appellants, Nasiruddin, Nawaz came to meet father of the deceased and, it seems that, after some deliberations both the sisters were taken back and brought to their matrimonial home though with

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reluctance of the sisters. One of the neighbours, namely Thorat Mama, also convinced the sisters and cautioned the appellants that they should not ill-treat them.

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The incident in question occurred on 11-6-2009 at about 1.00 a.m. in the midnight hours in the house of the accused situated at Rajiv Gandhi Nagar, Khultabad. On 11-6-2009 appellant No.1 was sleeping outside the house and the deceased was sleeping in the house in her room. At about 1.00 a.m. during night time deceased asked appellant No.1 to come inside house and sleep there. Thereafter appellant No.1 started giving abuses and raised issue of character of the deceased. He started beating the deceased and thereafter poured kerosene on the person of the deceased and set her on fire. Thereafter, appellant No.1 fled away by latching the door of the Wada from outside. On hearing shouts of the deceased, PW-3 Raziabegum, sister of the deceased, rushed to the spot and saw the deceased in burning condition. She had seen appellant No.1 running away from the house. PW-3 Raziabegum and her husband Nawaj tried to extinguish the fire. Neighbours also reached there. The deceased

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was taken to Ghati hospital. The parents of the deceased reached Ghati hospital at about 5.00 a.m.

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The prosecution evidence shows that the deceased made oral statement in respect of circumstances resulting in her death before her sister and parents. At about 10.00 a.m. on 11-6-2009 PW-5 Salim Pathan, Police Sub Inspector, Khultabad Police Station reached Ghati hospital and recorded dying declaration of the deceased (Exhibit 34). PW-5 thereafter issued a letter to the Special Executive Magistrate for recording statement of the deceased. The Special Executive Magistrate Shri. Nage recorded the statement at 12.45 p.m. Thereafter PSI Salim Pathan registered Crime No.89 of 2009 for offence punishable under sections 307 and 498A read with section 34 of the Indian Penal Code against the appellants on the basis of the dying declaration recorded by him.

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The investigating officer prepared panchanama of scene of offence, seized pieces of saree, petticoat which were in burnt condition, iron stove, match box in presence of the Panchas. Thereafter he recorded statements of witnesses. Deceased Heena Begum died on 14-6-2009

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while taking treatment. Inquest panchanama was prepared. The seized muddemal property was sent for the purpose of chemical analysis. After completing investigation charge sheet came to be filed. Charge was framed against the appellants by the Sessions Court. They pleaded not guilty.

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The prosecution examined six witnesses. There are two Court witnesses and the defence examined one witness.

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PW-1–Sayed Shabir Sayed Ahemad, is examined as spot Panch. The witness deposed in his examination-inchief that he went to the house of accused situated in Rajiv Gandhi Nagar. He saw one stove, match stick and clothes i.e. salwar, shirt and saree in burnt condition. Spot panchanama was prepared which bears his signature (Exhibit 19). He was shown muddemal property which he identified as articles 1 to 3. In the cross examination he did not support the contents of the panchanama saying that he did not know the contents of the panchanama and he only signed on the said panchanama.

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PW-2-Shaikh Raju Osman Mansuri is father of

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the deceased. He deposed before Court that, marriage of the deceased was solemnized with appellant No.1 on 10-10-2008. His daughter was residing jointly along with her husband, mother-in-law and sister-in-law. After the marriage the husband and the in-laws were demanding money from his daughter. She was being harassed. On the pregnancy of the deceased, the witness deposed that, appellant No.1 was doubting character of Heena saying that she did not conceive child out of their relationship. The appellants were instigating for termination of pregnancy with the help of injection. He deposed that the husband and the in-laws were saying that they would perform second marriage of appellant No.1. At about 3.30 to 3.45 a.m. on the date of the incident Shaikh Nawaj and Nasoriddin came to the house of the witness in a jeep. They informed that his daughter was admitted in Ghati hospital for the purpose of delivery. The father rushed to the hospital and went to Ward Nos.22-23. His wife was also with him. He saw his daughter with burn injuries.

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He deposed before Court that his daughter told him that appellant No.1 was sleeping outside. She requested

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him to come inside. He came inside, abused her and thereafter he poured kerosene on her person and set her on fire and went away. He further deposed that, sister Raziabegum and her husband Nawaj rushed to the spot and tried to extinguish fire by putting clothes on her person. According to the witness, the deceased was able to speak properly. After the death of the deceased her body was brought to village Gajgaon. The appellant No.1 did not come to attend the funeral ceremony.

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In the cross-examination the witness deposed that he did not lodge any report in respect of abuses hurled by appellant No.1 or ill-treatment given by him to the deceased. He had seen his daughter in serious condition. He was sitting along with his wife near his daughter. He further deposed that he lodged report against Nawaj and his family members for offence punishable under section 498-A read with 34 of the Indian Penal Code.

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PW-3 is Raziabegum Shaikh Nawab Mansuri, whose evidence is crucial and significant in this case. She is sister of the deceased. Both the sisters were married to two real brothers. The witness was residing with the

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family of the deceased and her in-laws. She narrated the incident before Court. She blamed appellant No.1 for pouring kerosene on the person of the deceased and setting her on fire. She supported the prosecution case in respect of abuses and ill-treatment given by appellant No. 1 to the deceased. According to her, appellant No.1 had suspected the character of the deceased and went to the extent that the child in the womb of the deceased was not their child. According to this witness, at about 10 to 10.30 p.m. on the day of the incident appellant No.1 came in the house and had dinner. He slept on the mattress outside the Wada. Thereafter the witness and her husband went in their room for sleeping. The deceased Heena went in her room. At about 1 to 1.30 a.m. they heard shouts of the deceased. They came out and rushed to the room of the sister and they saw that she was in flames. She saw appellant No.1 running away from the room. Appellant No.1 had latched the door of the Wada from outside, according to the witness.

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In the cross-examination the witness deposed that appellant No.1 Juned was in habit to come home in late night hours. He used to wander along with his friends. On

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the day of the incident there was no quarrel between the deceased and appellant No.1. When she heard shouts of the sister she came out of her room immediately. The deceased also came out of her room in burning condition. The deceased was taken in a black & yellow jeep. Shaikh Nasoriddin was in the jeep. It took about one hour to reach Ghati hospital from Khultabad. The deceased was shouting due to pains and repeatedly saying “save me”. The witness did not put any question to the deceased about the happening of the incident on the way. The parents of the deceased reached the hospital at about 5.00 a.m. She deposed before Court that the deceased was critical on account of sustaining burn injuries. She was shouting till her parents reached there. The defence tried to bring on record certain omissions in respect of fleeing away of appellant No.1 from the spot and in respect of deceased being brought in a jeep to the hospital. An omission is brought on record in respect of statement made at the relevant time before the parents. The witness further deposed that she was along with the deceased till 13-6-2009. She denied suggestion that the deceased was not in a position to make statement and a false complaint

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has been lodged against the appellants.

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PW-4 is Navnath Asaram Thorat, who runs a cloth shop at village Gajgaon. He supported the prosecution case that both the sisters had come to Gajgaon and stayed with their parents for a period of one and half months. The deceased used to come to his house and inform that accused persons were abusing her raising suspicion about her character and saying that she was of black complexion and they did not like her. The deceased was not ready to go for cohabitation along with her husband on account of ill-treatment at the hands of the accused. After the witness and others convinced her, she went and started cohabiting with appellant No.1. The witness deposed that when he reached the hospital he asked the deceased as to how she sustained burn injuries on which the deceased told that her husband had slept outside and on her asking he came inside the house and started abusing her saying that she is of black complexion and her father had performed marriage with him forcibly. She was thereafter beaten and then he poured kerosene on her person from a stove and set her on fire. According

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to the witness, at the relevant time the deceased was talking properly.

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In the cross-examination certain questions were put in respect of relationship between the husband and the wife and her reaching to the Ghati hospital.

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PW-6 is Dr. Mihir Chandrana Navin who was working as Medical Officer in Ghati hospital Aurangabad on 11-6-2009. The deceased was admitted in the hospital. PSI Pathan had given a letter for obtaining his opinion. He examined the patient. According to the witness the deceased was conscious, oriented and was able to make statement. The doctor made endorsement accordingly which is at Exhibit 41.

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In his cross-examination he deposed that near about 25 to 30 patients were in Ward Nos.22-23. When he reached the patient at the relevant time near about 40 to 50 other persons were in the Ward. Five Doctors and 2 to 3 Nurses were in the said Ward. According to the Medical Officer he was not in a position to say how much percent volume of plasma was transfused at the relevant time to the deceased. He opined that, such type of patient may die

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due to cardio respiratory failure and septicemia. He made endorsement on Exhibit 33. At that time nobody was present there. He came to know that dying declaration was recorded at about 4 p.m. on that day. He denied the suggestion that he made false endorsement vide Exhibit 41 at the instance of PSI Pathan.

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The post mortem report was admitted by the defence which is at Exhibit 21. The opinion as to cause of death is “septicemic shock due to burns”. The post mortem report shows that the deceased had suffered 100% burn injuries in the following manner.

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(i) Head, neck face .. 9% (ii) Chest .. 9% (iii) Abdomen .. 9% (iv) Back .. 18% (v) Upper limb right .. 9% left .. 9% (vi) Lower limb right .. 18% left .. 18% (vii) perineum .. 1% .. 100% -----------

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Bhanudas Dattu Nage was examined as Court witness. He deposed in his examination-in-chief that he was working as Special Executive Magistrate in the month

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of June 2009 at Aurangabad. On 11-6-2009 he received a letter from Khultabad Police Station about recording of dying declaration of the deceased. On the same day he went to the Ghati hospital and visited Ward Nos.22-23. He ascertained as to whether the patient was in a position to make statement. The medical officer examined the patient and he made endorsement in his presence. Thereafter the witness enquired with the patient. He removed the relatives of the patient from the spot. He asked the name of the patient and informed her that he had come for recording her statement. He found that the patient was able to talk properly. She gave proper replies to his questions. Thereafter he recorded statement of the patient in question and answer form. The witness recorded her statement in his own handwriting. The witness asked questions to the patient in Hindi and the patient answered in Hindi. He recorded the same in Marathi language. He made endorsement to this effect on the document on which the dying declaration was recorded. The statement was read over to the patient and the patient admitted the contents. The witness thereafter obtained left hand thumb mark on the statement. He identified the statement which

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is at Exhibit 51. The witness produced copy of letter given to the medical officer on which endorsement was made by him. He had given original letter to the medical officer and he produced its copy on record. The said letter bears his signature. He proved the contents of the letter as correct which is at Exhibit 52. He was alone while recording the statement of the patient. He started recording statement of the patient at about 12.45 p.m. and completed the same at about 1.15 p.m. on 11-6-2009.

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In his cross-examination by the State the witness stated that it is not correct to say that the deceased has not stated before him that her husband ignited stick and gave the same in her hand and in the heat of anger she set herself on fire. The witness further stated that the deceased had stated before him that her husband set her on fire by means of a match stick.

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In the cross-examination conducted by the defence he deposed before Court the manner in which he recorded the statement, the condition of the Ward. He reiterated that he used to ask question in Hindi and recorded the answer in Marathi. The medical officer was not present

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there while the statement was being recorded. According to the witness, he did not feel it necessary to obtain signature of the doctor separately on Exhibit 52.

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The next Court Witness is Dr. Mihir Chandrana Navin who deposed before Court that the deceased was conscious, oriented and she was able to give statement. In respect of letter Exhibit 52 the witness deposed that the Special Executive Magistrate had kept the original of the said document with him and Exhibit 52 is a carbon copy. He was shown endorsement on Exhibit 52 in which he did not find his original signature. The witness asked one or two questions to the patient, examined her and thereafter made endorsement. He deposed that consciousness of patient is different from fitness of mind. According to him, after recording the statement of the deceased, the Special Executive Magistrate did not call him there.

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The defence witness is Syed Nasiruddin Syed who is neighbour of the appellants. He deposed before Court that at the time when the incident took place several persons had gathered there. He visited the spot. At the relevant time smoke was coming out from the

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house of the deceased. The deceased was seen in burning condition. He along with others tried to extinguish the fire. The deceased was covered with mattress. One woman Seema was present there. They changed the clothes of the deceased. According to the witness, appellant No.1 was not there. One Javed made a phone call to Juned and within ten minutes after the phone call appellant No.1 came to the spot. Thereafter, they took deceased to Ghati hospital. In the cross-examination by the State the witness deposed that sister of the deceased was residing in her husband's house. The incident occurred at about 1.00 a.m. during late night.

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PW-5 is Investigating Officer, PSI Salim Pathan. The witness claimed to have recorded dying declaration which is at Exhibit 34. The witness has supported the prosecution case. He rushed to Ghati hospital. The witness claimed that the deceased had deposed against the appellants. He recorded statement and read over contents to her which were admitted by her. He obtained left hand thumb impression of the deceased on the statement then put his signature. Thereafter he issued a

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letter to the Magistrate. The witness conducted the investigation and thereafter filed charge sheet.

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In the cross-examination the witness stated that he was alone while recording statement of deceased Heena Begum. He did not make inquiry with the deceased about the names of persons who had extinguished the fire. He did not inquire from the deceased in respect of clarification on different circumstances resulting in cause of death. He had asked questions to the deceased in Hindi and Marathi but reduced the statement in Marathi.

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The learned counsel for the appellants submitted that date of recording of first dying declaration which was recorded by the Police Sub Inspector Exhibit 34 is not mentioned. The doctor did not make any endorsement in respect of consciousness and fitness of the deceased on the second dying declaration (Exhibit 51).

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The endorsement of the doctor was made on the communication made by the Special Executive Magistrate addressed to the Doctor on 11-6-2009 (Exhibit 52). The Doctor made endorsement on 11-6-2009 that the patient was conscious and oriented (Exhibit 56). It was submitted

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that the deceased was not in a position to make dying declaration, written as well as oral as she suffered 100% burn injuries according to the post mortem report. On the way to Ghati hospital the deceased did not make any statement in respect of cause of injuries suffered to her sister or other persons who were in the jeep. This falsifies the theory of the prosecution that the deceased was in a position to make statement. The opinion of the Medical Officer was not obtained when the statement of the deceased was said to be recorded by the PSI. Therefore the first dying declaration casts doubt about the conduct on the part of the PSI. In respect of dying declaration (Exhibit 51) recorded by the Special Executive Magistrate the learned counsel submitted that questions were put to the deceased in Hindi and the statement was recorded in Marathi. Such a recording casts shadow on the prosecution case in respect of the correctness of the statement. In the facts of the case it is possible that the endorsement made about consciousness of the deceased must have been obtained later on to support the prosecution case. Considering the medical condition of the deceased she must not be in a position to make any

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statement. The learned counsel further vehemently submitted that both the dying declarations (Exhibits 34 and 51) are at variance, therefore, it would not be safe to convict the appellants. In the facts of the case in view of the variance in the dying declarations, both the dying declarations should be rejected and the benefit must go to the appellants. The counsel submitted that in one of the dying declarations i.e. Exhibit 51 the deceased stated that appellant No.1 handed over a burning matchstick to the deceased and instigated her that she should set herself on fire. The learned counsel Shri. Jadhav submitted that appellant No.1 was not present when the incident in question took place. His conduct has come on record which shows that he was habituated in coming home at late night hours. The prosecution has not discharged burden to establish that appellant No.1 was present in the house when the incident in question took place. The allegations of ill treatment, abuses and assault are denied by the defence. No sooner appellant No.1 was informed on phone about the incident in question he reached the spot which shows that appellant No.1 was not guilty. Regarding the allegations against appellant No.2 the counsel

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submitted that there is no convincing evidence on record. The learned counsel for the appellants has placed reliance on the following judgments in respect of appreciation of evidence regarding the cases based on circumstantial evidence and on the principle that suspicion is not substitute for proof.

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(1) Narendra Singh v. State of M.P., AIR 2004 SC 3249 .

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Para 30 reads thus :

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“ 30. It is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however, grave may be cannot take place of a proof. It is equally well-settled that there is a long distance between 'may be' and 'must be'”.

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(2) P. Mani v. State of Tamil Nadu, (2006) 3 SCC 161.

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In this case it is held that, suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which conviction may not be rested only on the basis thereof.

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(3) Ashraf Hussain Shah v. State of Maharashtra, 1996

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Cri.L.J. 3147. In this case, witness whose testimony was essential for unfolding of the narrative was not examined and further no explanation was given for not producing him. It was therefore held that the prosecution case got vitiated.

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The learned Additional Public Prosecutor

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submitted that the prosecution has led strong evidence against both the appellants. The couple got married in the year 2008. Both the sisters were residing in a Wada. The rooms of both the sisters were adjacent to each other considering the spot panchanama and the map of the house brought on record. The prosecution has placed on record the spot location where the incident in question took place. According to the learned Additional Public Prosecutor, the evidence of the sister of the deceased PW 3 Raziabegum is of vital significance. Though she is related to the deceased she is a natural witness on the spot. There was no reason for her to falsely involve the appellants. She is witness to the married life of her sister, deceased Heena Begum. She has supported the

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prosecution case. Just because it has come on record that the deceased did not make any dying declaration to the witness on the way from Khultabad to Ghati hospital in the jeep it cannot be said that the evidence of the PW 3 Raziabegum is required to be discarded. This witness PW-3 Raziabegum had seen the deceased in burning condition. She is, in fact, the eye witness to the incident. The witness had seen appellant No.1 running from the spot of the incident. The learned APP submitted that both the dying declarations recorded were in normal course of events. Even if the deceased suffered 100% burn, in the medical terms the doctor has opined that the deceased was in a position to speak. The witnesses who recorded statement also stated that she was in a position to speak. The deceased gave oral dying declaration before her father and PW-5 Thorat which cannot be discarded. It was further submitted that in the facts of the case burden of appellant No.1 was heavy in the light of the provisions of section 106 of the Evidence Act which burden has not been discharged. The learned APP has emphasized on the statement of appellant No.1 recorded under section 313 CrPC, more particularly Question Nos.17,21 and 23. To

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Question No.49 appellant No.1 stated that he was falsely involved in the case. In the submissions of the learned APP the dying declarations are not at variance. Whatever alleged variance has been pointed out by the defence does not damage the consistency of the dying declarations. Both are trustworthy, reliable and made voluntarily by the deceased. The learned APP has placed reliance on the following judgments in support of her contentions.

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(1) Mannu Sao v. State of Bihar, (2010) 12 SCC 310.

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(2) Ashabai v. State of Maharashtra,2013 AIR SCW 333.

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We have perused the entire record, the reasoning of the trial court and considered the submissions advanced. We have perused the judgments cited supra. The evidence on record clearly established that the deceased was being ill-treated by appellant Nos.1 and 2. The deceased was abused saying that she was of black complexion. When the deceased was carrying 3-4 months' pregnancy appellant No.1 started suspecting her character and went on saying that he was not the father of the child in the womb. This certainly was bound to

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25 Cr Appeal 334 of 2011 seriously affect the relationship between the husband and the wife. The deceased must have suffered due to such allegations which could be well imagined. Both the sisters, the deceased and PW-3 were married to two real brothers. They were staying in the same Wada. The rooms of both the sisters were adjacent to each other. Therefore, the evidence of PW-3 in respect of day-to-day incidents of marital life, the behaviour of the appellants and sufferings of the deceased cannot be taken lightly just because PW3Raziabegum happens to be the real sister of the deceased. PW-3 is a natural witness who was present on the spot.

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Both the sisters were residing at their parental house. They were reluctant to come back to their matrimonial home. But due to intervention of some well wishers they were sent back for cohabitation. With this history and back ground the prosecution evidence needs to be appreciated.

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Appellant No.1 pleaded alibi . His defence was that, he was not present at the time of the incident. After receiving information on phone by the defence witness he

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reached the spot within ten minutes. To this, the explanation is that appellant No.1 was habitual to come home at late night hours. He was habituated to wander here and there. Such explanation would not be sufficient, in the facts of the case, to establish that appellant No.1 was not available in the mid night hours in the house. The appellants failed to discharge burden in accordance with the provisions of section 106 of the Evidence Act. It is settled principle that the prosecution is not absolved of its duty to prove the case beyond reasonable doubt but in case of this nature, there is more responsibility on the husband to explain the circumstances or to establish plea of alibi . Considering the statement made by appellant No. 1 under section 313 CrPC, we are not satisfied that appellant No.1 had discharged his duty to explain the circumstances resulting into death of the deceased. Burden cast upon him to explain the circumstances is very crucial to decide the fate of this case.

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Coming to acceptability of the dying declarations we find that both the dying declarations were recorded in normal course of events. On receiving

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information PSI Pathan reached Ghat hospital, recorded statement and thereafter intimated Special Executive Magistrate. The Police Sub Inspector ascertained the condition of the deceased for making statement. Both, the Special Executive Magistrate and the PSI deposed before the Court that they found that the deceased was in a position to make statement. We do not find any reason for the Special Executive Magistrate to make any false statement or create false document by recording a dying declaration. The Special Executive Magistrate was fair enough. On the dying declaration he made an endorsement that though he asked the question in Hindi and the deceased answered the same in Hindi he recorded the statement in Marathi.

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The next crucial and significant plea of the defence is regarding variance in the dying declarations. The plea of variance in the dying declarations is required to be considered in the peculiar factual background, the medical condition of the patient and the narration of the incident coupled with other relevant circumstances surrounding it. The plea of variance raised is in respect of

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the dying declaration recorded by the Special Executive Magistrate in question and answer form wherein the deceased stated that appellant No.1 handed over ignited match stick and forced her to set herself on fire after pouring kerosene on the person of the deceased. Whereas, in the dying declaration recorded by the police she made a statement that appellant No.1 poured kerosene on her person and set her on fire. In the facts of the case and the circumstances brought on record, considering the quality of evidence and the condition of the patient who suffered 100% burn injuries, we do not find that this could be a ground for discarding both the dying declarations in toto. We are, therefore, of the view that the prosecution evidence in respect of happening of the incident in question, recording of the statement of the deceased and the oral dying declaration are worth reliable though the deceased suffered 100% burn injuries. Considering the injuries on the different parts of the body and the medical opinion we are of the view that the deceased must be in a position to make statement. She was conscious, well oriented to make written as well as oral statement. It is a matter of record that deceased suffered burn injuries on

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11-9-2009 and she died on 14-9-2009. This also supports the prosecution case.

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Another aspect which needs to be considered is that the deceased was a pregnant lady. A mother would be very cautious about her child in the womb even if at times she was put under lot of mental pressure. A woman would be more concerned of her child in the womb than herself in such a situation. It is very unfortunate that in such an incident two lives have suffered. The appellant No.1 still pleads ignorance.

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The role of appellant No.2 has been well narrated by the prosecution. Appellant No.2 being an elder lady in the family ought to have been careful at the relevant moment. But her conduct contributed in commission of the offence. The trial Court has rightly convicted and sentenced appellant No.2 for an offence punishable under section 498-A read with 34 of the Indian Penal Code. We have perused the medical evidence, the report of the chemical analyzer, the spot panchanama and the inquest panchanama which support the prosecution case.

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We have perused the reasoning of the trial Court. We find that the trial Court has marshelled the evidence, discussed various case-law and reached appropriate findings which do not call for any interference by us.

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We may refer to the observations of the Apex Court in para 12 and 18 in the case of Ashabai v. State of Maharashtra, 2013 AIR SCW 333 :-

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“ 12. … As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on is own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.

¶118

“ 18. In spite of stringent legislations in order to curb the deteriorating condition of women across the country, the cases related to bride burning, cruelty, suicide, sexual harassment, rape, suicide by married women etc. have increased and are taking place day by day. A complete overhaul of the system is a must in the form of deterrent punishment for the offenders so that we can effectively deal with the problem. In the case on hand, Vandana died within 3 years of her marriage at the instance of her mother-in-law and sisters-in-law due to the harassment meted out to her because of her inability to conceive a child and she was poured kerosene and burnt to death. Even though, the mother-

¶119

31 Cr Appeal 334 of 2011

¶120

in-law, who also filed a separate appeal, died on 10.02.2012, in view of clinching evidence led in by the prosecution there cannot be any leniency in favour of the appellants, who are sisters-in-law of the deceased and at whose instance the deceased was burnt at the hands of her mother-in-law.”

¶121

In a reported judgment in the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710 the Apex Court observe din para 3 as under :-

¶122

“ 3. . . . . . The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. . . . . . “

¶123

For the reasons stated above we are of the view that there is no merit in this appeal. The appeal is dismissed. Bail bonds of appellant No.2 stand cancelled.

¶124

Sd/- Sd/- (A.I.S. CHEEMA, J.) (NARESH H PATIL, J.)

¶125

rsl

¶126

32 Cr Appeal 334 of 2011

¶127

After pronouncement of judgment, the learned counsel for the appellants prays for time to surrender to bail by appellant No.2. The learned Additional Public Prosecutor opposes the prayer. Appellant No.2 is granted four weeks time to surrender.

¶128

Sd/- Sd/- (A.I.S. CHEEMA, J.) (NARESH H PATIL, J.)

Shaikh Juned Shaikh Moti Manuri and Anr. v. the State of Maharshtra Anr.

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Shaikh Juned Shaikh Moti Manuri and Anr. v. the State of Maharshtra Anr.

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