SHAIKH AMJAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellants - convicts are hereby invoking Sec. 374 of the Code of Criminal Procedure (Cr.P.C.) for assailing judgment and order of conviction passed by the learned Additional Sessions Judge, Basmath in Sessions Trial Case no.16 of 2015 by which they are held guilty for the offence under Sec. 302 read with 34 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life.

(2.) Prosecution was launched against appellants on the basis of dying declaration (Exh.28) given by deceased Ajmeri. While undergoing treatment in burns ward in Civil Hospital, she gave statement that appellants herein poured kerosene and set her on fire. It is stated in the dying declaration that on 6/4/2015, her mother- in-law came to house of her sister-in-law at Basmath. On that day, her husband went to house of her sister-in-law and therefore, she went there to call her mother-in-law and her husband for taking dinner. At that time, her mother-in-law abused and beat her. It is alleged that Asina, mother-in-law (appellant No.5) caught hold of her hair and Ajmad Shaikh, her brother-in-law (appellant No.1) slapped her. At that time, her sister-in-law Naseem Ajmad Shaikh (appellant No.2) brought one liter bottle of Kerosene from house and poured on her person and the other brother-in-law, Usman Daud (appellant No.4) brought a match box and ignited her. On the basis of her such statement, crime was registered initially for the offence under Ss. 307, 323, 504 read with 34 of the IPC. As she succumbed to the burns, crime was converted into Sec. 302 of IPC and accordingly, accused were chargesheeted, tried and held guilty by the learned trial Judge.

(3.) Taking exception to the judgment and criticizing the evidence, learned Counsel for the appellants would submit that there is total non-application of mind and failure to appreciate evidence and to consider and apply settled legal position. He pointed out that firstly dying declarations are not recorded promptly and secondly dying declarations were recorded when relatives were around the patient and therefore, the said dying declarations are unworthy of credence. He pointed out that even dying declarations were narrated in Hindi language but the same are noted in Marathi language, which is in translated form and therefore, it is his submission that veracity of the dying declarations also comes under shadow of doubt. He pointed out that alleged occurrence has taken place on 6/4/2015, whereas dying declarations are recorded on the next day i.e. almost after more than 12 to 14 hours. Taking us through the spot panchanama and evidence of prosecution, he would question as to whether the said spot, which is shown to be house of deceased, could at all be really the spot of incident as according to him, prosecution evidence suggests that deceased had been to house of accused which is away from her own house. He invited our attention to medical papers which show that occurrence has taken place in the house of deceased. Therefore, there is confusion as to whether alleged incident took place. For said reason, even spot panchanama also comes under shadow of doubt. He took us through the evidence of prosecution and would submit that witnesses are not consistent.