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2019 Supreme(Bom) 2310
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
T.V. Nalawade, M.G. Sewlikar, JJ.
Feroj Mohammad Shaikh - Appellant
Versus
State Of Maharashtra, Through Police Station - Respondent
Criminal Appeal No. 460 of 2015
Decided On : 13-12-2019
G.R. Syed, Advocate, D.R. Kale, Advocate
The dying declaration was voluntary and truthful, and the deceased was in a sound state of mind to give the declaration, despite sustaining burn injuries. The motive for the commission of the offence was established, and the accused's subsequent actions did not mitigate his culpability.
Headnote:
Dying Declaration - Murder - Section 32 of the Evidence Act - The dying declaration was voluntary and truthful, and the deceased was in a sound state of mind to give the declaration. The percentage of burns is not a determinative factor for deciding whether a person having burns is mentally and physically sound to give a dying declaration. The motive for the commission of the offence was the refusal of the deceased to give money for drinking liquor. The accused had the knowledge that in all probability death will be caused or it will cause such bodily injury as is likely to cause death. The appeal is dismissed.
Fact of the Case:
The deceased sustained burn injuries after the accused demanded money for drinking liquor, which led to a quarrel and the accused setting her on fire. The dying declaration and oral dying declaration implicated the accused in the crime. The accused was convicted under Section 302 of the I.P.C.
Finding of the Court:
The prosecution established beyond reasonable doubt that the death of the deceased was homicidal, caused by the accused setting her on fire after dousing her with kerosene. The accused's subsequent act of pouring water on the victim cannot be treated as a mitigating circumstance.
Issues: The main issues were the admissibility and reliability of the dying declaration, the presence of motive, and the accused's subsequent actions after setting the victim on fire.
Ratio Decidendi: The dying declaration was voluntary and truthful, and the deceased was in a sound state of mind to give the declaration. The percentage of burns is not a determinative factor for deciding whether a person having burns is mentally and physically sound to give a dying declaration. The motive for the commission of the offence was the refusal of the deceased to give money for drinking liquor. The accused had the knowledge that in all probability death will be caused or it will cause such bodily injury as is likely to cause death.
Final Decision: The appeal is bereft of any merit and hence dismissed. The conviction recorded by the learned Additional Sessions Judge is just and proper, and no interference is called for in the order of the learned Additional Sessions Judge.
JUDGMENT
M.G. Sewlikar, J. - This appeal is preferred by the appellant being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Osmanabad whereby the appellant has been convicted of the offence punishable under Section 302 of the I.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for one year. The appellant and his mother accused no.2-Bilkis Mohammad Shaikh have been acquitted of the offence punishable under Section 498-A read with Section 34 of the I.P.C. Accused No.2-Bilkis has also been acquitted of the offence punishable under Section 302 of the I.P.C. The State has not challenged the acquittal of accused no.2 under Section 302 and 498-A read with Section 34 of the I.P.C.
2. The prosecution case can be briefly stated as under:
3. Shahanaj, the deceased, married the appellant Feroj Mohammad Shaikh about seven years before the incident in question. They have a son and a daughter out of the wed-lock. The said Shahanaj was treated well till the birth of the daughter. After one year of the birth of daughter, accused no.2 who is the mother in law of the deceased-Shahanaj, started causing mental illtreatment to the deceased. She used to pass sarcastic remarks at her. The appellant Feroj developed an addiction to alcohol. He would demand money from Shahanaj for consumption of liquor. He would abuse and beat Shahanaj if she refused to oblige him. The appellant sent the deceased-Shahanaj to her maternal place when the daughter of Shahanaj who was one year old and she was asked to bring Rs.10,000/- from her father. Since the financial condition of the father of the deceased-Shahanaj was precarious she could not fulfill the said demand, as a result of which she had to stay with her father for one year. The father of the deceased-Shahanaj raised the said amount of Rs.10,000/- by taking hand loan and doing labour work and paid the said amount to accused no.2-Bilkis. Thereafter the deceased-Shahanaj started co-habiting with the appellant. After two three months again the appellant Feroj started demanding Rs.10,000/- from the deceased-Shahanaj to be brought from her father for re-payment of personal loan obtained from a finance company. The father of the deceased-Shahanaj fulfilled the said demand also. Despite that the appellant-Feroj once again started demanding Rs.10,000/- from Shahanaj to be brought from her father.
4. It is the further case of the prosecution that on 16.02.2013 at about 10.00 pm he got a call from his niece Shabana from Government Hospital, Osmanabad informing that Shahanaj had sustained burn injuries. The father of the deceased-Shahanaj along with Ex-Sarpanch of the village Umakant Kadam reached Civil Hospital, Osmanabad at 2.00 am and noticed that Shahanaj was fully burnt. He asked Shahanaj as to how the incident took place. Shahanaj told him that at about 9.00 pm in the night of Saturday accused Feroj demanded money from her for drinking liquor. She refused to give money and further stated that she would not give money to him in future also, owing to which a quarrel ensued between her and appellant-Feroj and accused no.2-Bilkis. Thereafter, appellant-Feroj abused her, poured kerosene on her person. At that time accused-Bilkis was instigating the appellant to kill the deceased. The appellant-Feroj set her on fire by lighting the match stick. Both the accused went out and came back after five minutes. On hearing her screams wife of landlord and Shabana came there and tried to extinguish the fire. She was taken to a hospital by rickshaw. On 17.02.2013 at about 11.00 am Shahanaj breathed her last.
5. According to the prosecution, on 16.02.2013 Shahanaj was admitted in burn ward of Civil Hospital, Osmanabad. The deceased-Shahanaj gave dying declaration to police head constable-Hanmant Kolangade (PW-3) B.No. 808 between 9.10 am and 9.35 am on 17.02.2013. Dr. Bharat Thadkar (PW-2) examined her. The deceas
