SHAHRUKH SALIM PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellants - husband, mother-in-law and sister of husband are taking exception to the judgment and order of conviction passed by the learned District Judge-1 and Additional Sessions Judge, Newasa dtd. 3/5/2016 in Sessions Case No.140 of 2014, by which all three stood convicted for offence under Sec. 302 read with 34 of the Indian Penal Code (IPC) and thereby came to be awarded imprisonment for life and to pay fine of Rs.20,000.00 each, in default to suffer further rigorous imprisonment for one year.

(2.) Dying declaration recorded by the PW1 Gorakshnath Ghugarkar, Special Executive Magistrate was made the basis of registration of FIR bearing crime no.I-183 of 2014. Deceased Parveen gave dying declaration on 28/6/2014 that husband (accused no.1), mother-in-law (accused no.2) and sister in law (accused no.3) were continuously ill-treating her. On 28/6/2014 in the morning, sister-in-law Samina poured kerosene, while mother-in-law caught-hold of her in presence of husband who was instigating and abusing her. Sister-in-law Samina ignited matchstick and set her on fire. Brother-inlaw Alim rushed to her rescue and extinguished the fire and thereafter, husband took her to the hospital. On the strength of above dying declaration, crime came to be registered at Newasa Police Station and after investigation accused were charge-sheeted and made to face trial before learned District Judge-1 and Additional Sessions Judge, Newasa who on appreciating the oral and documentary evidence including two dying declarations accepted the case of prosecution as proved and convicted all three appellants as stated above.

(3.) Learned Advocate for the appellants would submit that case is based on circumstantial evidence and there is no direct eye witness account. According to him, prosecution examined eight witnesses and has heavily relied on two dying declarations. According to him, both the dying declarations are inconsistent and therefore, ought not to have been relied and accepted by the learned trial Court. Learned Advocate brought to our notice the degree and percentage of burns and would submit that at the threshold it is doubtful whether the deceased was fit and mentally stable to give dying declaration and that too not one but two dying declarations. He pointed out that here prosecution had utterly failed to establish very motive behind the alleged burns. Pointing out that alleged occurrence had taken place at around 06:00 a.m. to 06:30 a.m., it is stated that first dying declaration is recorded after almost 12 hours, whereas second dying declaration is recorded after two days of recording of the first dying declaration and therefore, according to him when it has come on record that parents and relatives of deceased are around, possibility of tutoring for false implication cannot be ruled out. He emphasized that infact no role whatsoever is attributed to the appellant husband nor there is any evidence to suggest as to what preceded the alleged incident of burns. It is his submission that burns are accidental. He pointed out that while answering questions posed under Sec. 313 of the Cr.P.C., explanation has been given that there was stove explosion resulting into accidental burns. It is next submitted that there is no evidence about involvement of above persons in incinerating deceased Parveen. He also questioned the thump impression purported to be of deceased Parveen pointing out that medical evidence clearly suggested that even palms were affected by burns. In support of submission that both dying declarations are inconsistent, he pointed out that the first dying declaration at Exh.29 is rather cryptic and short but second dying declaration at Exh.48, recorded after two days, has detail narration raising doubt about its authenticity. It is also pointed out that in first dying declaration at Exh.29 presence of accused is marked but it is not so in second dying declaration at Exh.48. He pointed out that learned trial Court had already acquitted accused persons from charges under Sec. 498-A of the IPC and therefore, learned trial Judge ought not to have held accused persons guilty for the offence punishable under Sec. 302 of the IPC. In the last limb of his argument, he submits that except two dying declarations, which are inconsistent and not voluntary one, there is no iota of evidence against accused or regarding their involvement in the burns suffered by deceased Parveen and so he prays to allow the appeal.