Bakshu and Ors Vs. State of Maharashtra  Insc 716 (21 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
CRIMINAL APPEAL NO. 833 OF 2007 (Arising out of S.L.P. (Crl.) No.6002 of
2006) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Divison Bench of the
Bombay High Court, Aurangabad Bench.
Conviction of the appellants under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (in short the 'IPC') was confirmed while setting aside
the conviction and sentence relatable to offence punishable under Section 498-A
IPC read with Section 34 IPC. All the appellants were convicted by learned 1st
Additional Sessions Judge, Parbhani in Sessions Trial No. 214/2001.
3. Prosecution version as unfolded during trial is as under:
Rubina (hereinafter referred to as 'deceased') was married to appellant No.1
Sk. Bakshu about 8 days prior to the alleged incident, which took place on
19.8.2001 at about 4 p.m. in the house of the appellants. While the deceased
was staying in the house of her in-laws, the appellant No.2-Janubai Shakur,
sister in law of the deceased and appellant No.3 Safirabi Sk.
Wahed, mother in law of the deceased caught hold of her and her husband, the
appellant no.1 Sk. Bakshu by pouring kerosene on her person, set Rubina on
fire. The deceased suffered burn injuries. While she was burning, her father in
law extinguished the fire by pouring water on her. Thereafter, the neighbours
had brought the deceased to the Civil Hospital, Parbhani. Court witness Dr.
Bhagwan Dhutmal was on duty and after examining the patient, he started
Radhakishan Katare (PW-3), who was working as ASI in Police Out Post in
General Hospital. Parbhani, secured the MLC Certificate from the medical
officer concerning the deceased Rubina, which is at Exhibit 13. After
ascertaining from the medical officer regarding consciousness of the patient to
make a declaration, Radhakishan (PW-3) recorded statement of the deceased on
the same day i.e. 19.8.2001 at 6 p.m. The said dying declaration is at Exhibit
31. Thereafter, a letter was addressed to PW1- Naib Tahsildar for recording
dying declaration of Rubina and on receipt of intimation, Narhari Pandit. Naib
Tahsildar (PW-1), proceeded to the hospital. After ascertaining the physical
and mental condition of the patient from the medical officer, the Naib
Tahsildar recorded statement of Rubina at 7-15 p.m. which is at Exhibit 26. The
medical officer Dr. Bhagwan endorsed on both the dying declarations to the
effect that the patient was conscious oriented in time and space and was able
to make a statement.
The first dying declaration (Exh.31) was recorded between 6 p.m. to 6-10
p.m. and the second dying declaration (Exh.26), which was recorded by Naib
Tahsildar was between 7-15 to 7- 30 p.m. on the same day i.e. 19.8.2001. The
deceased died at 8-30 p.m. on 19.8.2001. According to the post mortem report,
the deceased had suffered 67% burn injuries. The post mortem of the deceased
was conducted by Dr. Ashok Janapurkar (PW-2). The post mortem report is at
The cause of death, according to the medical officer, was due to cardio
respiratory failure due to superficial deep 66% burns.
Anil Gaikwad (PW-6) conducted the investigation of the case.
He had drawn spot panchnama and recorded statements of witnesses. All the
appellants were arrested on 20.8.2001. The clothes of appellants were also
seized. The seizure panchnamas are at Exhibits 42, 43 and 44. On 21.8.2001,
viscera and articles seized on the spot were sent to Chemical Analyser, whose
report is Exhibit 15. In viscera, no poison was detected. Kerosene was detected
on the clothes of accused, which were seized. After completion of
investigation, the charge-sheet was filed. The case was committed by JMFC,
Parbhani, to the Court of Sessions for trial. The charges in Exhibit 10 were
framed and the appellants were tried before the Court, to which they pleaded
not guilty and came to be tried.
The prosecution examined 6 witnesses. In their statement u/s 313 of Cr.P.C.
the appellants denied the incident in question and alleged that the witnesses
were demanding money and for that reason, they are deposing falsely. The
prosecution examined 6 witnesses and Dr.
Bhagwan Pandit was examined as Court witness.
4. Placing reliance on the dying declarations purportedly to have been made
by the deceased, the trial court found the appellant guilty and convicted them
and imposed imprisonment for life and to pay a fine of Rs.100/- for the
offences punishable under Section 302 read with Section 34 IPC. In respect of
offence relatable to Section 498A read with Section 34 IPC custodial sentence
of 3 years and fine of Rs.100/- with default stipulation were imposed.
5. In appeal, it was urged that the dying declarations are totally
unreliable. The alleged place of occurrence has been differently stated. No
explanation has been offered as to why there was necessity of recording two
Though there was clear evidence of tutoring, the trial court did not attach
any importance and there has been suppression of the station diary entry. All
these go to show that prosecution has concocted a false case. The State's
response was that after analyzing the evidence in detail conviction has been
6. The High Court confirmed the view of the trial court holding that the
dying declaration was credible and cogent.
Therefore, conviction for offence relatable to Section 302 read with Section
34 was maintained. But acquittal was recorded under Section 498-A read with
Section 34 IPC.
7. Stands taken before the High Court were reiterated in this appeal.
8. The dying declarations have been marked as Exh.26 and Exh.31. Exh. 26 was
claimed to have been recorded by the Naib Tehsildar (PW-1) between 7.15 and
7.30 p.m. while Exh.31 was purported to have been recorded by the Police
Officer (PW-3) at 6.00 p.m. In the Exh. 26, it was stated that the deceased did
not know name of the mother in law and that the A-2 and A-3 were residents of
Ramabai Nagar whereas the place where the alleged incident took place was
Panchsheel road. It was stated that the neighbour had taken deceased to
hospital. Police Officer (PW-3) stated that intimation regarding occurrence was
received at 6.30 p.m. vide Exh.30. Strangely, the dying declaration was
recorded even before the intimation had reached i.e. at 6.10 p.m. There was a
point raised about the number of marriages of the deceased. Interestingly, the
mother of the deceased supported the defence version. PW-3 in his evidence
stated that he had accompanied Naib Tehsildar (PW-1). According to Trial Court
and High Court the basic question was who recorded the dying declaration first.
So far as the dying declaration purported to have been recorded by Naib
Tehsildar (PW-1) is concerned, he has stated that one constable accompanied him
in the hospital. He did not say that police inspector PW-3, accompanied him
though PW-3 claimed it to be so. With reference to the Panchnama it appears
that no burn marks were found in the bed room on the other hand burn marks were
found in the kitchen. As noted above, Exh.30 shows that ASI had received
intimation at 6.30 p.m. Dying declaration shows it was recorded between 6.00 to
6.10 p.m. If the intimation was received at 6.30 p.m.
question of recording the dying declaration before that time does not arise.
The trial court accepted this position to be correct from the record. But it
made a new case that the time recorded to be 6.30 p.m. appears to be a mistake
made by ASI.
That was not the case of the prosecution and, in fact, PW-3 accepted that
the intimation was received at 6.30 p.m. and the dying declaration was recorded
later by the Naib Tehsildar. It has not been explained as to what was the
necessity of a second dying declaration, if there was already a dying
declaration in existence recorded by PW-3, who stated that he had accompanied
PW-1. PW-1 in his statement stated that on 19.8.2001, on the basis of a letter
requiring him to record dying declaration of the person who was admitted to the
hospital. He went to the hospital at 7.00 p.m., met the medical officer in the
hospital and thereafter he requested the medical officer to show the person to
him. The letter in question was not produced by him. The trial court came to
the conclusion that PW-3, the medical officer and the constable reached the Burns
Ward at about 7.10 p.m. As noted above, it was the evidence of PW-3 that he had
accompanied the Naib Tehsildar PW-1. Even if it is accepted as noted by the
trial court that the Naib Tehsildar has not produced the letter because it may
be misplaced but nothing prevented the prosecution to produce the copy of the
letter which was purportedly written to the Naib Tehsildar. No effort in that
regard has been made. The trial court and the High Court noted that the
condition of the deceased was very poor as was stated by the medical officer
and the condition was deteriorating since 6.10 p.m. The trial court, however,
held the dying declaration to be credible because the medical officer was
present when the dying declaration was recorded. There as no mention in the
dying declaration that it was read over and explained to the deceased. The
Trial court and the High Court concluded that even though it is not so stated,
it has to be presumed that it was read over and explained. The view is clearly
unacceptable. So far as the presence of the relatives and the tutoring aspect
is concerned, the High Court held that there cannot be a possibility of
tutoring Rubina for falsely implicating appellants in the offence because of
the promptness in recording the dying declaration by PW 1 and PW 3. The
conclusion is clearly based on surmises and conjectures. Another fallacy in the
conclusions of the High Court and the trial Court was that mere change the
place of occurrence as borne out in the dying declaration, as projected by the
prosecution with reference to the spot panchnama was not material. According to
the deceased, the occurrence took place in the bed room. It is to be noted that
no mark of burn injury was noticed in the bed room and they were noticed in the
kitchen. High Court noted even if spot of occurrence has not been correctly
stated by the deceased same is of no consequence. That certainly has effect on
the credibility of the dying declaration, contrary to what the High Court has
observed. Another aspect which assumes great importance is that in the dying
declaration the deceased stated that she was brought to the hospital by a
neighbour but the official records show that she was brought to the hospital by
the accused no.2 i.e. sister-in-law. It was categorically asked to the doctor
whether in the admission register it was recorded that the injuries were due to
the accidental burn. He stated that the witness has not gone through the
register of that date.
9. In view of the aforesaid infirmities the inevitable conclusion is that
the accusations of prosecution have not been established.
10. The judgment of the High Court cannot be maintained and the same is set
aside. The appeal is allowed. The appellants are acquitted of the charges. They
be set forth at liberty if not required in any other case.