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2007(2) Supreme 49
SUPREME COURT OF INDIA
(From Bombay High Court)
C.K. Thakker and Lokeshwar Singh Panta, JJ.
Sayarabano @ Sultanabegum—Appellant
versus
State of Maharashtra—Respondent
Criminal Appeal No. 141 of 2006
Decided on 8-2-2007
Counsel for the Parties :
For the Appellant : S.V. Deshpande, Advocate.
For the Respondent : Sushil Karanjkar and V.N. Raghupathy, Advocates.
Held : From the evidence, it is proved that on August 13, 1998, after the incident took place, the family members of the appellant took the deceased to the hospital. The record revealed that before few days of the incident, the deceased had been brought to her marital home. Before that, she was beaten by the appellant. She left marital home and went to parental home. It is also in the evidence that the deceased was beaten by her mother-in-law and two instances had been cited. Obviously, therefore, on August 13, 1998, when the deceased was taken to hospital by her mother-in-law – appellant, who insisted not to give the name of any of the family members of the appellant, the deceased had no courage to name her. In the circumstances, she stated that it was merely an accident. But, after her parents came, she could state true facts, the Special Judicial Magistrate was called again and the second dying declaration was recorded.(Para 13)
The Trial Court as well as the High Court considered both the dying declarations of the deceased Halimabi and both the Courts held the second dying declaration true and inspiring confidence having disclosed true facts so far as the incident was concerned. Ill-treatment towards the deceased was clearly established and completely proved. The evidence of PW2 – father as well as PW3 – mother of the deceased was clinching on the point. Both the Courts were right in holding that nothing could be elicited from the cross-examination of those witnesses. It, therefore, cannot successfully be contended that the only cause of throwing burning lamp on the deceased by the appellant was getting up late in the morning by the deceased and not performing Namaz. Even prior to that incident, the appellant used to beat the deceased and on the fateful day, it was an excuse to kill the daughter-in-law by the mother-in-law.(Para 13)
In the case on hand, there is ample evidence to show that even prior to the incident in question, the appellant used to beat the deceased and ill-treat her. It is in the light of the said fact that other evidence requires to be considered. In our view, both the Courts were right in relying upon the second dying declaration of the deceased treating it as true disclosure of facts by the deceased Halimabi. In the light of the evidence of parents of the deceased (PW2 and PW3), Dr. Kishore (PW6) and Special Judicial Magistrate (PW5), it cannot be said that the Courts below had committed any error and the conviction deserves to be set aside.(Para 15)
JUDGMENT
C.K. Thakker, J.—This appeal is filed by the appellant who was convicted by the Sessions Judge, Beed in Sessions Case No. 17 of 1999 decided on July 25, 2000 and confirmed by the High Court of Judicature at Bombay (Aurangabad Bench) on October 17, 2005 in Criminal Appeal No. 348 of 2000 for an offence punishable under Section 302 of the Indian Penal Code (‘IPC’ for short).
2. The prosecution case against the appellant was that Halimabi, daughter of PW 2 – Shaikh Bademiyan, resident of Mandula, Taluka Georai was married to one Shaikh Latif of Beed one year prior to the incident which took place on August 13, 1998. After the marriage, the deceased Halimabi came to reside at her matrimonial home situated at Mominpura of village Beed. She was residing in the said house with her husband Shaikh Latif, the appellant-accused Sayarabano – her mother-in-law, Shaikh Rafiq – her father-in-law, Shaikh Shakil – her younger brother-in-law and his wife Taslim.
3. According to the prosecution case, the deceased Halimabi was being ill-treated by her mother-in-law-appellant herein. At the instance of the appellant, husband of the deceased Halimabi used to beat her. About a month prior to the incident, the accused had beaten the deceased on two occasions, once with a stick and again with a steel instrument. The deceased disclosed the fact about the said beating to her parents as well as her uncle. Resultantly, PW3 – Bismillahbi mother of the deceased Halimabi had come to Beed and had taken deceased to her house at Mandula. About eight days prior to the incident, the brother of deceased Halimabi had again brought the deceased back to her husband’s place and had returned to the village.
4. On August 13, 1998, the appellant-accused started a quarrel with the deceased Halimabi and abused her over the fact that she had not got up early in the morning for Namaz. At that time, the deceased Halimabi was standing at a place where a burning lamp was hung on the nail in the wall. The husband as well as father-in-law of the deceased had gone to the Masjid for Namaz. In the house, apart from the deceased and the appellant-accused, brother-in-law of the deceased – Shaikh Shakil and his wife Taslim were present. During the course of quarrel, the appellant-accused poured kerosene from the lamp on the deceased, due to which, the deceased caught fire and suffered burn injuries on her back, stomach and breast. She started screaming in pain. Her brother-in-law Shaikh Shakil put out the fire by pouring water and removed her clothes. Meanwhile, her husband had come and the deceased was taken to hospital.
5. The record indicates that when Halimabi was brought to the hospital, the history recorded accidental burns. She was taken to the hospital at 10.30 a.m. on August 13, 1998. Between 1.30 and 1.50 p.m. on the same day, Abdul Rashid – Special Judicial Magistrate, Beed (PW5) was called by the police and dying declaration of deceased Halimabi was recorded by him. In that dying declaration, deceased Halimabi stated that while opening the door, her hand hit the kerosene lamp which was kept on the pillow and fell on her and she sustained injuries. In other words, according to the said dying declaration, the deceased caught fire accidentally when she came into contact with the lamp. She absolved all the inmates of her husband’s family of any wrong-doing or connecting with her catching fire. On the next day i.e., on August 14, 1998, at about 1.45 p.m., however, again PW5 – Special Judicial Magistrate was called for the purpose of recording dying declaration of deceased Halimabi. In the said dying declaration, she stated that on the previous day i.e. on August 13, 1998, her mother-in-law (appellant) started abusing her for not going for Namaz by getting up late. At that time, in the house, kerosene lamp was hung on the wall near which the deceased was standing. Her husband as well as her father-in-law had gone for Namaz and in the house, deceased Halimabi, her mother-in-la
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