2006 ALL MR (Cri) 1039
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

J.N. PATEL AND R.C. CHAVAN, JJ.

State Of Maharashtra Vs. Basharat Ali Sayed Afsar Ali

Criminal Appeal No. 116 of 1996

10th October, 2005

Petitioner Counsel: Mr. A. G. MUZUMDAR
Respondent Counsel: Mrs. R. A. WASNIK

Criminal P.C. (1973), S.386 - Evidence Act (1872), Ss.31, 32 - Appeal against acquittal - Interference with findings in appeal - High Court must be extremely slow - Trial Court rejecting dying declaration on wrong grounds - High Court can interfere with order of Trial Court. Penal Code (1860), Ss.300, 302.

The court of appeal should be extremely slow in disturbing the findings recorded by the trial Judge, who has the benefit of hearing the evidence in person. But, the evidence tendered in this case no doubt shows that the trial Judge was completely off the mark in concluding that the dying declarations of victim were tutored or unworthy of belief. A person in expectation of death is unlikely to inculpate an innocent person. It is not shown that she had been subjected to such cruelty by her husband that out of vengeance she would implicate her husband. It is also not shown that relatives of victim had any serious dispute with the accused or that the accused had so seriously harmed them that they would want to implicate the accused falsely. It should be seen that victim had consistently stated only good things about her parents-in-law which shows that she is not stating anything out of vengeance. [Para 23]

Since the reasons given by the trial Judge for rejecting the account of the incident given by victim, far from being impressive, are based on incorrect comprehension of the evidence tendered, it has to beheld that the trial Judge erred in concluding that the prosecution failed to prove that the accused was the author of the burn injuries which led to the death of victim. Instead, it could be held that evidence fully establishes that the accused was the author of burn injuries which led to victim's death. The extent of burns leaves no doubt about the intentions of the accused in subjecting the victim to such severe burns. Therefore, in the circumstances it has to be held that the accused is guilty of murder of his wife. [Para 24]

JUDGMENT

R. C. CHAVAN, J. : - By this appeal, the State challenges the acquittal of the respondent recorded by the learned Additional Sessions Judge, Akola for offences punishable under sections 498-A and 302 of the Indian Penal Code.

The facts which led to the prosecution of the respondent are as under :

2. Accused Basharat Ali, whose two earlier marriages had been dissolved, took the victim Halimabi, who too was a divorce, as his third wife on 2nd January, 1992. It is the prosecution case that the accused used to ask for money whenever they visited the house of the parents of Halimabi. Halimabi had complained that she was ill-treated by the accused in order to extract money. However, no report was lodged. On 10th March, 1994 the accused Basharat Ali set Halimabi on fire after pouring kerosene on her person. She sustained 92% burns and was admitted to the General Hospital at Murtizapur. Police caused the dying declaration to be recorded by the Executive Magistrate of Murtizapur. Halimabi succumbed to her injuries on 14th March, 1994. She had disclosed not only to the Executive Magistrate but also to her relatives that the accused had set her on fire. The police performed the inquest on the body of Halimabi and sent it for post mortem examination. They recorded the statement of the witnesses, collected the incriminating articles, sent them to the Forensic Science Laboratory and on completion of investigation sent a charge-sheet to the J.M.F.C. Murtizapur who committed the case to the Court of Sessions at Akola.

3. The learned Additional Sessions Judge to whom the case was assigned charged the respondent for offences punishable under sections 498-A and 302 of the Penal Code. The accused pleaded not guilty and hence was put on trial. In its attempt to bring home the guilt of the accused the prosecution examined in all 8 witnesses. The defence of the accused is that of denial. Upon considering of the prosecution evidence in the light of the defences raised the learned Additional Sessions Judge proceeded to acquit the respondent for both the offences punishable under sections 498-A and 302 of the Penal Code. Aggrieved thereby the State has appealed.

4. We have heard Advocate Mr. Muzumdar learned Additional Public Prosecutor for the State of Advocates Mrs. Wasnik had been appointed by the Legal Services Authority to represent the respondent who did not engage an advocate though duly served. With the help of both learned counsel, we have re-appraised the entire evidence in order to examine the correctness of the findings recorded by the learned trial Judge.

5. There is no dispute that the victim Halimabi met with her death on account of 92% burn injuries sustained by her. The inquest panchanama at Exhibit 18, the inquest report at Exhibit 19, death intimation at Exhibit 15 and notes of post mortem examination at Exhibit 23 conclusively establish this fact. The question is only as to who was the author of the burn injuries sustained by Halimabi which led to her death.

6. It was feebly suggested by the learned counsel for the respondent that Halimabi might have committed suicide. Drawing our attention to the evidence of Halimabi's brother Ayubkha who was examined as PW 2 learned counsel pointed out that Halimabi had attempted to commit suicide by jumping in a well even during her first marriage to one Kadirbaig. PW 2 Ayubkha's statement to this effect in para 7 of his deposition would only show that Halimabi was not treated well by her first husband and so that marriage was also dissolved. I cannot be said on the basis of this statement of Ayubkha that Halimabi had suicidal tendencies. It may be seen that Halimabi was married to the respondent on 2nd January, 1992 and is not shown to have attempted to commit suicide during over two years of cohabitation with the respondent till the incident dated 10th March, 1994. Therefore, merely because she had attempted to commit suicide during first 15 days of her first marriage it does not follow that she has any suicidal tendencies, in order to infer that even the incident dated 10th March, 1994 may be a suicide.

7. Though PW 2 Ayubkha has stated about petty demand of the accused of Rs.1000/- or Rs.500/- 4 or 5 times after the marriage they did not seem to be related to dowry. It is not the case of the prosecution that the accused had made a demand of a particular sum or told the victim that unless she brings that sum, she will not be treated well. In any case, since there is no previous report about any such demands having led to any physical assault in the past, the learned trial Judge rightly concluded that offence punishable under section 498-A of the Penal Code is not made out. This does not however lead to an inference that the accused was innocent of the other crime too.

8. Of the 8 prosecution witnesses examined, PW 1 Habibsha is a panch who proved the panchanama of spot at Exhibit 27. PW 4 Abdul Gaffar with whose mediation marriage was settled states about the harassment of the victim at the hands of the accused as reported to him by the victim. PW 2 Ayubkha , PW 3 Imdadkha are brother and father of the victim. They state after they learnt of the incident they went to see the victim at the house of accused and in the hospital respectively where she told them that the accused abused the victim on the incidental evening, the victim broke her fast and offered her prayers and when she was getting up after prayers, the accused poured kerosene on her person and set her on fire with a match stick, went out and closed the door. The versions of both the witnesses is cohesive.

9. PW 6 Abdul Jabir stated that he had gone to the shop of PW 2 Ayubkha where Ayubkha told him of the telephonic message that Halimabi was burnt. Abdul Jabir accompanied Ayubkha to the house of the accused where Halimabi was lying in the verandah. Abdul Jabir also stated that Halimabi told them that the accused had set on fire and had left home by closing and bolting the door.

10. PW 5 Dr. Vivek Phadke was serving in General Hospital at Murtizapur on the incidental day. He stated that the Executive Magistrate Shri. Laxman Khumkar had come to the hospital to record the dying declaration of the victim. He stated that he examined the patient at the request of the Executive Magistrate and found her to be fully conscious. Accordingly, Dr. Phadke issued a certificate at Exhibit 33. Thereafter Shri. Khumkar recorded the dying declaration in his presence. He again examined the patient and recorded that she was fully conscious throughout. This certificate is at Exhibit 34.

11. Dr. Phadke stated in his cross-examination that the patient was brought to the hospital at 7.30 p.m. According to this Medical Officer, he had informed the police station. The patient had been referred to the Civil Hospital at Akola late that night because her condition was serious. He stated about the treatment which he gave to the victim. At that time he had assessed the burns at 96 % but denied that the patient was in a semi-conscious state. He stated that the patient was fully conscious.

12. PW 7 Shri. Laxman Khumkar was serving as a Executive Magistrate at Murtizapur on 10th March, 1994. At the time when he gave his evidence on 28th November, 1994 he had retired. He stated that he had received a requisition for recording the dying declaration at 10.35 p.m. vide Exhibit 39. He contacted the Medical Officer who came across the witness in the ward. Then the Magistrate changed his version and claimed that he first recorded the dying declaration and then searched for the Medical Officer who was in his office and asked the Medical Officer to issue a certificate. The witness claimed that the Medical Officer was annoyed and asked as to why Shri. Laxman Khumkar recorded the dying declaration without obtaining his certificate. Then, according to Mr. Khumkar, Dr. Dhavle came there and asked the first Medical Officer i.e. Dr. Phadke to issue a certificate. Then the first Medical Officer issued two certificates. He proved the dying declaration recorded by him at Exhibit 40. The witness stated that the victim was speaking incoherently while giving her statement. It may be seen that in the Marathi version of the deposition of Shri. Khumkar the expression used is that the victim was faltering, no incoherent ("D[×e~l"). The witness was declared hostile, but, stuck to his guns and stated that the victim gave her statement as per the instructions given by her relatives and denied that the Medical Officer was present at the time of recording of the dying declaration.

13. It is this evidences of Shri. Khumkar which seems to have influenced the learned trial Judge in recording the acquittal of the respondent. In para 9 of his judgment (at page seven in the original) the learned trial Judge observed that according to him, the medical certificate were recorded after the dying declaration was recorded by the Executive Magistrate because in the words of the learned Judge :

"Otherwise the first certificate at Ex.33 appearing at the top of the dying declaration could not have produced down by the left side of the dying declaration."

14. We are afraid that the learned trial Judge did not give thought to the manner in which contents of Exhibits 33, 40 and 34 which are on one sheet of paper were filled up. If according to the learned Judge endorsement by Dr. Phadke was made after the dying declarations was recorded one inch space, in which this certificate is recorded below the name of the victim and above the title "dying declaration", would not have been there. If the theory that the medical certificate was endorsed after the dying declaration was recorded is to be reconciled with the space in which the certificate is endorsed it would imply that the Executive Magistrate had deliberately left this space in order to have the certificate endorsed subsequently, which would amount to fabricating a false document. The only portion of the certificate Exhibit 33 which projects down on the left side is the date and time. It may be seen that the date is just on the left hand side of the initials of the doctor and below the date the doctor has put time as 11.10 p.m. The doctor cannot surely be blamed if the Executive Magistrate did not start the next line after the line in which time of 11.10 p.m. was mentioned. It may be seen that answer to question no.4 recorded by the Executive Magistrate is scribbled in a manner which would show that the Executive Magistrate had filled up the subsequent part first and then filed in the answer to question no.4. Thus, rather than the doctor making the endorsement on the certificate subsequently, the possibility of the Executive Magistrate having recorded the statement after preparing a format leaving limited space for recording answers appears stark.

15. If the Executive Magistrate Shri. Khumkar is permitted to say that he obtained the signature of the doctor afterwards, he would be guilty of having fabricated a false document. When he states that certificates were obtained afterwards, contradicting what PW 5 Dr. Phadke had stated, it would imply that Shri. Khumkar had deliberately made a false statement before the Court, presumably since he had retired in the meantime.

16. Shri. Khumkar had gone on to state that Halimabi had given the statement as tutored by her relatives. In that case, as a responsible Magistrate it was necessary to make a note of this fact also below the dying declaration.

17. PW PSI Kumar Suroshe was serving as a P.S.O. at Police Station, Mana. He stated that on 10th March, 1994 at about 9 to 9.30 p.m. a woman who had sustained burns had been brought to the Police Station Mana and he had recorded her oral report as per her say. Thus it is not that somebody else had given the report on behalf of Halimabi to the police. PW 8 Suroshe had proved of Halimabi's own F.I.R. at Exhibit 42. In this F.I.R. also Halimabi had stated that the accused poured kerosene over her person and set her on fire by match stick and left the house. She stated that she started shouting whereupon her parents in law came and poured water on her person and extinguished the fire. PSI Suroshe states that after obtaining the thumb mark of the victim he had also chalked an occurrence report Exhibit 43. PSI Suroshe denied that he scribed the report as per say of Halimabi's brother or that Halimabi was not in a position to speak at the time of the incident/

18. It may be seen that the victim's brother PW 2 Ayubkha had already reached the house of the accused where their sister lay in an injured condition. He had taken her to the police station from were she was taken to the hospital. If he had to tutor Halimabi as to what she should say to the police, he had ample opportunity to do so even before they reached the police station and in any case before the Executive Magistrate arrived at the scene. The volte face by PW 7 Executive Magistrate about the dying declaration appears to have been the result of his intervening retirement from civil service which emboldened him to brazenly admit dereliction of duties. Whether the certificate of the doctor was recorded before the dying declaration was made or after it, Shri. Khumkar does not state that the victim was not conscious or not fit to make a statement. He only states that the victim was tutored by her relatives to make a statement indicating her husband. If the victim could be tutored it would follow that she was conscious.

19. It may thus be seen that apart from the oral accounts of the incident given by the victim to her brother PW 2 Ayubkha, father PW 3 Imdad Kha and PW 6 Abdul Jabir the victim had consistently stated before the PSI and the Executive Magistrate that accused had poured kerosene on her person and set her on fire. In the face of this consistent version of the victim it is difficult to comprehend as to what prevailed on the learned Additional Sessions Judge to reject the account of the incident given by the victim.

20. PW 2 Ayubkha stated that the accused was present when he reached the house of the accused, Kadar Ali brother of accused was also sitting outside when Ayubkha took Halimabi in a jeep to the Mana Police Station. It was suggested in cross to PW 2 Ayubkha that he, his father and Halimabi wanted that the accused should sell his property and migrate to Jamthe the place where Ayubkha was residing. The witness denied this suggestion. Thus, it is not that the accused did not have any grievance about Halimabi and her relatives.

21. The witness denied another suggestion that the accused had left house at 4 p.m. to sell milk and returned home only at 9 p.m. If the accused had indeed gone to sell or deliver milk at the relevant time and was not present at the house, as claimed by him in response to Question Nos.15 to 21 of his statement under section 313 of the Code of Criminal Procedure, he could have examined at least some witnesses who had seen him away from the house during this period. It is incredible that in a small village, when wife of the accused sustains burns at 6.30 p.m. and when his in laws who were at another village Jamthe could reach the victim, her own husband could return home only at 10.30 p.m. If the accused did come at 9 p.m. (or 10.30 p.m. as stated in reply to question no.21 in statement under section 313 of the Code of Criminal Procedure) it too would be a circumstance indicative of his deliberately removing himself from the house. In small village when his parents and brothers were present when the incident occurred somebody would have definitely taken the trouble of informing the respondent if he was not at home this time wife had sustained burns and he would have reached the spot immediately. His very claim that he was away till 10.30 p.m. lends a ring of truth to what Halimabi has stated to her brother, father, PSI and the Magistrate.

22. It is indeed unfortunate that the learned trial Judge did not take into consideration the probabilities that emerged from the above facts bearing in mind the normal course of human conduct, and allowed himself to be swayed by the post retirement delinquency of the Executive Magistrate Shri. Khumkar in brazenly falsifying the statement which he has recorded. It is also unfortunate that the learned trial Judge did not note that the endorsement of the doctor at Exhibit 33 on the dying declaration is not in the margin but, is in main body of the document which falsifies the claim of the Executive Magistrate and corroborates the word of PW 5 Dr. Phadke. The consistent account of the manner in which the victim sustained injuries at the hands of the respondent did not deserve to be brushed aside by the learned trial Judge.

23. We are conscious that the court of appeal should be extremely slow in disturbing the findings recorded by the trial Judge, who has the benefit of hearing the evidence in person. But, the evidence tendered in this case leaves us in no doubt that the learned trial Judge was completely off the mark in concluding that the dying declarations of Halimabi were tutored or unworthy of belief. A person in expectation of death is unlikely to inculpate an innocent person. It is not shown that Halimabi had been subjected to such cruelty by her husband that out of vengeance she would implicate her husband. It is also not shown that Halimabi's relatives had any serious dispute with the accused or that the accused had so seriously harmed them that they would want to implicate the respondent falsely. It should be seen that Halimabi had consistently stated only good things about her parents-in-law which shows that she is not stating anything out of vengeance.

24. Since the reasons given by the leaned trial Judge for rejecting the account of the incident given by Halimabi, far from being impressive, are based on incorrect comprehension of the evidence tendered, we hold that the learned trial Judge erred in concluding that the prosecution failed to prove that the respondent was the author of the burn injuries which led to the death of Halimabi. Instead, we hold that evidence fully establishes that the respondent was the author of burn injuries which led to Halimabi's death. The extent of burns leaves no doubt about the intention of the accused in subjecting the victim to such severe burns. We therefore hold that the respondent is guilty of murder of his wife.

25. The conduct of the Executive Magistrate Shri. Khumkar is extremely distressing. It pains us to see a stipendiary Magistrate claiming to have allowed medical certificates to be subsequently endorsed in a solemn document like a dying declaration, only to help the defence, and, having no compunctions in making such a false statement before the Court only because he had retired from service, and felt that he was no longer accountable. Therefore, as we set aside the acquittal of the respondent, we direct the Registrar of this Court to issue a notice under section 340 of the Code of Criminal Procedure to the Executive Magistrate Shri. Khumkar to show cause as to why he should not be punished for offence of giving false evidence in Court punishable under section 193 of the Penal Code.

26. After considering the sentencing alternatives available under section 302 of the penal code and hearing both the learned counsel, we propose to inflict the minimum sentence prescribed for murder.

27. In the result, the appeal is partly allowed. The acquittal of the respondent recorded by learned Additional Sessions Judge of the offence punishable under section 302, IPC is set aside. The respondent Basharat Ali Sayed Afsar Ali is convicted of the offence punishable under section 302, IPC and is sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/- or in default to suffer R.I. for further period of six months. The respondent shall be entitled to have period of detention in custody set off against the sentence. The acquittal of the respondent for the offence punishable under Section 498-A, IPC is maintained. The respondent shall surrender to his bail before the Sessions Judge by 10th November, 2005 failing which the Session Judge shall taken steps to have the respondent arrested and committed to prison to serve the sentences.

Appeal partly allowed.