IMAM BASHIR PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is yet another case where the married woman lost her life because of the burns at her matrimonial house and her husband is charged of murder. The 4th Additional Sessions Judge, Beed convicted under section 302 and 498-A of the I. P. C. and sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/-, in default to undergo R. I. for three months for the offence under section 302 and to undergo two years rigorous imprisonment and to pay fine of Rs. 1,000/-, in default to suffer R. I. for three months for the offence under section 498-A of the I. P. C. Shafiya Begum w/o Imam Bashir Pathan and her husband (accused-appellant) were both residing at Beed Sangvi, Taluka Ashti. It is alleged that in the evening of 12th September 1991 accused returned home and asked his wife Shafiya to bring Rs. 10,000/- from her parents, since the accused has received a call for recruitment in the army. It is alleged that the wife replied that since only 8 days before a sewing machine is purchased by her father and donated to her, looking to the financial condition of her father, he is not in a position to satisfy his further demand. It is alleged that thereafter accused told the wife that if you do not bring the money then she will face the consequences. Thereafter, he took a bottle full of kerosene and poured it on the person of Shafiya and set her on fire. She was taken to Primary Health Centre at Ashti and later removed to Civil Hospital at Ahmednagar in the early morning of 13th September 1991. While she was under treatment, she met with the death on 19th September in the Hospital. However, before her death, on 14th September, First Information Report was recorded by the Police head-constable Subhash Kisan Jagtap and her dying declaration is reduced to writing by Executive Magistrate Shri Thorat. Prosecution mainly relies on these two documents under section 32 of the Evidence Act. The defence has examined one Shamrao Ganpatrao Nagargoje, a police constable who is said to have recorded dying declaration at Ashti itself.

(2.) WHEN this appeal was heard by this Court on 26th February 1996 it was submitted by the learned Counsel for the appellant that the handwriting of the First Information Report reduced in writing by head-constable Subhash (P. W. 3) and that of dying declaration alleged to have been reduced in writing by Thorat (P. W. 8) appears to be one and the same and therefore, it needs to be examined by the handwriting Expert. This Court gave direction to the learned trial Judge to get an admitted hand-writing of Thorat -Executive Magistrate by dictating the contents of Exh. 33 (alleged dying declaration) and send that alongwith disputed documents to the handwriting expert. After this was done the record is again remitted to this Court.

(3.) IN a case where a woman dies at her matrimonial house, she is in a company adverse to her and in the circumstances the dying declaration assumes importance. If the dying declaration does not suffer from any infirmity and is found trust-worthy, the conviction can be based solely on such dying declaration. In such a case it is not proper to insist for any independent corroboration. However, the sanctity of a dying - declaration is dependent on circumstances surrounding it. The victim will not allow the real culprit to go scot-free and involve somebody who is innocent and in the expectation of the eminent death will have respect for truth. But the dying declaration should be free from any infirmity. Whenever a woman suffers from burns or other injuries and is taken to the Hospital, it is generally expected that the Doctor would ask for the history and would make a short note of the history on the case paper. This short note on the basis of information given either by the victim or by the near relations who have come to admit the victim, is first record of event. As soon as a person with severe burns is admitted in the Hospital, it is the duty of the Police machinery to see that the dying declaration is forthwith recorded. It is only when the persons competent to record dying- declaration are not available or the patient is not in a fit condition to make statement then only the dying declaration can wait. If there is long interval between the admission of the patient in the Hospital at the behest of the police machinery and the actual recording of the dying declaration then the possibility of the victim having been tutored cannot be ruled out. Such a delay in recording dying declaration will have to be explained by the prosecution. As pointed out by Supreme Court in (Rabi Chandra Pradhan and others v. State of Orissa) A. I. R. 1980 Supreme Court page 1738 recording of dying declaration should preferably be in question and answer form. Though it is not a legal mandatory requirement, it is to ensure that the exact words used by the victim while giving declaration are reduced in writing and there is no room for colouring. Secondly, it will have to be ensured that at the time of recording of the dying declaration (if it is recorded by a Magistrate) no person other than the Magistrate and the Medical Officer should be there near the person giving dying declaration. This is to assure that the patient is neither tutored nor detered. These are essentials to attach credibility to dying declaration. Dying declaration should not be easily brushed aside on any flimsy ground but at the same time if the surrounding circumstances make that declaration doubtful then it will not be safe to act on it.