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2014 Supreme(Bom) 1360
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
A.I.S. CHEEMA, J.
Shaikh Asif Ismail - APPELLANT
VERSUS
The State of Maharashtra - RESPONDENT
CRIMINAL APPEAL NO.228 OF 2000
Decided On : 10th July, 2014
Shri R.B. Dhaware, Advocate holding for
Shri U.S. Malte, Advocate for appellant
Shri G.R. Ingole Patil, A.P.P. for respondent
Headnote:EVIDENCE ACT, 1872 - Section 32 - Dying declaration. - Where dying declarations recorded by ASI and Special Executive Magistrate, neither read over nor admitted by victim to be correct therefore such dying declarations not credible. - The evidence of PW 7 also does not claim that after the dying declaration was recorded, it was read over to the victim and that the victim admitted the contents to be correct. In Exhibit 32, there is a last line added that the contents of the dying declaration were correct. However, it is not recorded in the dying declaration that it was read over and admitted by the victim to be correct.
Indian Penal Code, 1860 - Section 306 - Conviction for abetment of suicide. - Since contents of dying declaration not disclosed alleged offence of abetment to commit suicide hence conviction of accused under Section 306, IPC cannot be sustained. - The victim and the accused were not married. If he was suspecting, she had the option to walk out of the relationship. According to the victim, she was residing with the accused as a lover. The dying declaration claims that there was quarrel in the afternoon at about 3.30 p.m. and then after going home, also on the count of accused suspecting that the victim was involved with one Iqbal, the quarrel continued. The dying declaration claims that, the victim told accused that if he is suspecting her, she will pour-kerosene on herself (in Exh. 15 difference is that she stated that if he is suspecting her, she will burn herself) and so saying, she poured kerosene on herself. When she poured kerosene on herself, the accused did not stop her. She claimed that, because of this, she took a match stick and put fire to Punjabi dress which she was wearing. If this is so, it does not attribute any act of goading, urging, provoking or inciting or encouraging the victim to commit suicide. May be the accused, due to the quarrel, was angry and when the victim had demonstrated that she may commit suicide, he did not react, but these facts do not indicate that he had the mens rea to instigate the victim to commit suicide. This can be appreciated from the fact that when the victim did put fire to herself, the accused tried to put out the fire and in the process, suffered burn injuries and then took her to the hospital. There is evidence of PW 3 examined ’S’ on 23.1.1995 who had suffered burns to the extent of 18% and had issued certificate Exhibit 17. No doubt in the cross-examination it was tried to be suggested that there could be other person by name ’S’ and the accused tried to disconnect himself from the incident, but then there is evidence also of PW 2 Salve that when she went to the hospital, the accused was also present there. The trial Court has found that the accused had tried to extinguish fire of the victim, but could not save her life. If the dying declarations are accepted, they will show that the accused did try to save the victim. It shows that, he did not have any mens rea for abetting suicide. There was a quarrel and victim appears to have reacted by pouring kerosene on herself and putting fire to herself. She herself stated that, due to the act of suspicion, she embarked upon the act of putting fire to herself. It cannot be said that, abetment to commit suicide has been established.
The prosecution has established the case against the appellant-accused. Unable to agree with the trial Courts regarding the acceptance of the dying declarations. The trial Court did not consider that even if the dying declarations were to be accepted, whether the offence was spelt out or not. Initial inaction of the accused in the given situation cannot be construed as abetment. The subsequent conduct in the course of incident as appearing from the dying declaration absolves the accused of any mens rea that she should commit suicide.
1. This appeal is by original accused (hereinafter referred to as “accused), who has been convicted by 5th Additional Sessions Judge, Ahmednagar, on 19.5.2000 in Sessions Case No.80/1999, for offence under Section 306 of the Indian Penal Code (IPC for short) and has been sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs.1000/-, in default to suffer further rigorous imprisonment for two months.
2. The case of prosecution in brief is that :- (a) A.S.I. Laxman Kusalkar (P.W.7) of Kotwali Police Station, Ahmednagar, on 22.1.1995, received phone call from Civil Hospital, Ahmednagar that one Shabana Hamji Shaikh (hereinafter referred to as “victim) with burns was admitted to the hospital. This A.S.I. went to the hospital and after completing formalities, recorded the statement of Shabana, which was recorded as her dying declaration (Exhibit 32). On the same day, yet another dying declaration of Shabana was recorded by Special Executive Magistrate (P.W.2) Ruth w/o Shivaji Salve. In the dying declarations, in substance, Shabana (an unmarried woman) had informed that she was in love with the accused Shaikh Asif Ismail and both of them were residing together in a room in Pawarwada, Sherkar Lane, Maliwada. She informed that, she was working in a telephone booth of one Mande (P.W.5) and at about 3.30 p.m. on that day, her lover (accused) Asif had come and he had seen one Iqbal in the telephone booth. Accused alleged that the victim had some affair with that other person, and started quarreling. They later went home, but on the same count, there was further quarrel. She told her lover that if he suspects her, she will burn herself and so saying, she put kerosene on herself, but her lover did not stop her and so, by match stick, she burnt herself. Her lover had then tried to put out fire and brought her to hospital. (b) On 23.1.1995, Head Constable Thaknath Jawale (P.W.8) received the dying declaration recorded by the Executive Magistrate and A.S.I. Kusalkar and he prepared spot panchanama and from the spot, seized articles like stove, burnt petticoat, match box and burnt match stick. He then gave report to P.S.I. Sonawane (P.W.4). (c) The victim passed away while in the hospital on 24.1.1995 at about 8.00 p.m. Head Constable Jawale then gave report (Exhibit 9) and A.D. No.4/1995 under Section 174 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) was registered at 10.10 p.m. P.S.I. Benjamin Sonawane (P.W.4) prepared inquest panchanama (Exh. 10) and post mortem of the body was got done. The post mortem report (Exh. 24) showed 99% burns were there and she died due to the burn injuries. Statements of witnesses were recorded and thereafter P.W.4 Sonawane lodged complaint which was registered as F.I.R. (Exhibit 20) and crime was registered as 37/1995 under Section 306 of the Indian Penal Code against accused. P.S.I. Sonawane completed investigation and filed charge sheet in the Court of Chief Judicial Magistrate, Ahmednagar.
3. The offence being Sessions triable, the matter came to be committed to the Court of Sessions. Charge was framed against the appellant/ accused under Section 306 of the IPC. Prosecution brought on record evidence of 8 witnesses. The defence of the accused is of denial.
4. The trial Court, after considering the oral and documentary evidence, accepted that the dying declarations were duly recorded and held that, the accused was responsible for abetment of suicide by the victim and consequently, convicted the appellant/ accused. In the present appeal, grounds have been raised, and the learned counsel for appellant/ accused argued that, abetment to commit suicide has not been established. The dying declarations did not attribute any act to accused of instigating the victim to commit suicide. The dying declarations were not duly established and evidence was not properly appreciated. The victim was not in any physical or mental condition to give statement. The dying declaration re
