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2017 Supreme(Bom) 870
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE & S.M. GAVHANE, JJ.
Aminabi w/o. Shaikh Chand – Appellant
VERSUS
State of Maharashtra – Respondent
CRIMINAL APPEAL NO.267 OF 2001
Decided On : 07-07-2017
For the Appellant :Mr. Vijay Sharma, Advocate
For the Respondent: Mr. S.D. Ghayal, APP
The dying declaration must be rendered voluntarily and truthfully, and the evidence brought by the prosecution must be cogent, convincing, and sufficient to uphold a conviction.
Headnote:
Dying Declaration - Criminal Law - Indian Penal Code - Section 302, Section 307 - The judgment discusses the legal infirmities in the dying declaration, the lack of endorsement by the Medical Officer, and the suspicious circumstances surrounding the case. The court found that the evidence brought by the prosecution was not cogent, convincing, and sufficient to uphold the conviction of the appellant. The appeal was allowed, and the appellant was acquitted from all charges.
Fact of the Case:
The appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code for allegedly setting the deceased on fire. The prosecution's case was based on the dying declaration of the deceased.
Finding of the Court:
The court found that the dying declaration suffered from legal infirmities and was surrounded by suspicious circumstances. The evidence brought by the prosecution was not sufficient to uphold the conviction of the appellant.
Issues: The main issue was the reliability of the dying declaration and the sufficiency of the evidence brought by the prosecution to prove the guilt of the appellant.
Ratio Decidendi: The court held that the dying declaration must be rendered voluntarily and truthfully, and the lack of endorsement by the Medical Officer about the mental and physical fitness of the deceased raised doubts about the reliability of the dying declaration. The court also emphasized the need for cogent and convincing evidence to uphold a conviction.
Final Decision: The appeal was allowed, and the appellant was acquitted from all charges. The fine amount deposited by the appellant was ordered to be refunded, and any bail bond was cancelled.
S.S.Shinde, J.
1. This Appeal is filed by the appellant-accused, challenging the judgment and order passed by the Sessions Judge, Aurangabad, on 21st June, 2001 in Sessions Case No.278 of 1999, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default to suffer R.I. for 15 days.
2. The prosecution case in nutshell is as under:
The deceased Nurjaha Begum, who is the informant in the present case, was residing at Bharatnagar, Garkheda, Aurangabad. She was residing there with her husband, namely Shaikh Chand, who was a truck driver, and three children, and second wife of her husband Aminabi. She married with Sk. Chand about ten years back before the incident, and they were residing at Bharatnagar, Garkheda since about one year prior to the incident. About three years back, her husband married with Aminabi without her knowledge. But she was not pulling on well with Aminabi. Therefore, Aminabi was residing at her parental place. About 15 days prior to the incident, which took place on 4th June, 1999, father of Aminabi had reached to her house, and since that time Aminabi was residing there. Since the time she came to Aurangabad she was picking up quarrels with her, and her husband Sk. Chand. She wanted that her husband should give money to her, and not to Nurjahabegum.
On 4th June, 1999, her husband Sk. Chand left the house in the morning for duty, and Aminabi and her children were in the house. At about 2.00 p.m., she along with her minor son Ashpak were sleeping on the bedstead in the house, and Aminabi was sleeping on the floor, and when she was about to fall asleep, she felt kerosene dropping on her face. Therefore, she opened her eyes and saw that Aminabi was pouring kerosene from the aluminium Can on her person. When she tried to get up, Aminabi ignited a match stick and threw it on her person, as a result of which her saree caught fire, and when she was burning she ran out of the house and herself poured water from the pot which was kept outside the house. There was nobody to put off the fire. Thereafter, she was taken to Ghati Hospital, Aurangabad, by one Sk. Gulab and two women from the neighbourhood and then she was admitted in the Hospital. Her son Ashpak also sustained burn injuries and was also treated in the Hospital. When she was admitted in the Hospital, her complaint was recorded and offence at Mukundwadi Police Station as Crime No.77/1999 under Section 307 of the IPC was registered.
The Police Head Constable Kachru Namdeo Chavan, who was attached to Mukundwadi Police Station, went to the Ghati Hospital, Aurangabad, and requested the Doctor to certify whether the patient Nurjaha was in a position to give statement, and the Doctor certified that she was in a position to give statement. Thereafter, he recorded the complaint on 4th June, 1999, which is the FIR in the present case. He obtained her thumb impression on the said complaint. Thereafter, the Special Executive Magistrate, Mr.Magan Pawar, was also requested to record dying declaration of Nurjahan. The Special Executive Magistrate, Mr.Magan Pawar, recorded her dying declaration after obtaining certificate from the Medical Officer at 8.30 p.m. on 4th June, 1999.
3. The Investigating Officer Sadanand Wayasepatil, who was attached to Chavani Police Station on 4th June, 1999, received message that burning incident had taken place at Bharatnagar, Garkheda, Aurangabad, and directed the PSI Thakare to visit the spot and make inquiry. He also received phone message from PSI Thakare that the patient was serious and directed him to record her dying declaration. Before he reached Ghati Hsopital, the Special Executive Magistrate had already recorded her dying declaration and in the meantime he was required to go to bandobast and on returning home at 11.00 p.m. he received message that burnt woman died in the Hospital. So the section which
