FARROQUE ALIAS MUNSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 30th January, 2004 passed by the First Ad hoc Additional Sessions Judge, Akola in Sessions Trial No. 226 of 1998 convicting the appellant for the offence punishable under Sections 498A and 302 of the Indian Penal Code and sentencing him to undergo RI for one year and to pay fine of Rs. 500/, in default of payment of fine, to suffer further RI for two months and to undergo imprisonment for life and to pay a fine of Rs.500/and in default of payment of fine to undergo RI for two months, respectively; the appellant has preferred the present appeal.

(2.) The case of the prosecution in brief is as under :The appellant/accused is charged for committing murder of his wife Rukhsana Parveen. She was married to the appellant/ accused on 09.06.1991 and started cohabiting with the appellant at Akot. Right from the first year of the marriage itself, the appellant/accused started ill treating his wife on demand of money. Though some amount i.e. Rs.20,000/was given by the brother of Rukhsana to the appellant/accused, he again started asking for money. For the demand of money, the appellant/ accused was prosecuted for the charge of offence under Section 498A of the Indian Penal Code and because of intervention of elderly person, the matter was compromised between the parties. An agreement to that effect was recorded. On the fateful day i.e. on 19.05.1998, Rukhsana visited the house of her brother Syed Ejajali and requested her brother for payment of Rs.5,000/as directed by the appellant/accused. Rukhsana told her brother that for the marriage of the daughter of sister of the appellant/accused, the appellant asked her to get Rs.5,000/from her brother and as such she asked for the said amount from Syed Ejajali. As Syed Ejajali was not having money, he was unable to accede to the request of his sister. Rukhsana left the house of her brother on the same day i.e. 19.05.1998 and returned to her matrimonial house which is at a distance of 20 kms. from the house of her brother. It is further the case of the prosecution that in the intervening night of 19th and 20th May 1998, Rukhsana Parveen was burnt. She was taken to Akola Hospital for treatment as she had received 90 per cent of burn injuries. A requisition was forwarded to Special Judicial Magistrate for recording the dying declaration of Rukhsana and the Special Judicial Magistrate further obtaining the certificate of fitness of Rukhsana from the Medical Officer recorded the statement (dying declaration) of Rukhsana which is at Exh.58 (1,3 and 4). In the said dying declaration, Rukhsana stated that while igniting mosquito coil, she was subjected to accidental fire. The Police Authorities of Police Station Kotwali, Akola registered a crime as 0/98. The initial papers were then forwarded to Shri L.J. Shinde, PSI (PW12) who was attached to Police Station, Akot and Shri Shinde, on receiving the papers, registered the offence vide Crime No. 125/1998 under Sections 307 and 498A of the Indian Penal Code. The printed FIR was prepared. Shri Shinde took over the investigation and proceeded with the investigation. The information was immediately forwarded to the brother of Rukhsana namely Syed Ejajali through Shri Nadeer Shah who went on motor cycle to inform Syed Ejajali. On receiving the information, Syed called one Shoiab Ali and along with him proceeded to Akot Primary Health Center. On reaching Akot, an information was received that the lady was shifted to Akola Hospital for medical treatment and as such Syed immediately left for Akola. Syed Ejajali reached Akola in the morning at 06:00 a.m. on 20.05.1998. Syed Ejajali visited his sister Rukhsana and on enquiry Rukhsana told him that her husband set her on fire and he pressurised her to give dying declaration to the effect that she was burnt by accidental fire while igniting mosquito coil. She further informed Syed Ejajali that her husband further threatened her that if she refused to give statement as per his will, he would kill both children. She further told Syed Ejajali that on the ground that she failed to bring money, the appellant/accused beat her and poured kerosene on her person and set her on fire. Syed Ejajali made a request to police authorities by an application to record the dying declaration of his sister. The second dying declaration (Exh.37) was recorded by the Special Judicial Magistrate, Akola on 20.05.1998 at about 8 o' clock. In the said dying declaration, Rukhsana stated that she was set on fire by her husband on the ground of nonpayment of money. PW12 Shri Shinde, Investigating Officer took various steps of investigation-such as drawing of spot panchnama, recording the statements of witnesses, collecting the other documentary evidence etc. Shri Shinde had been to the Government Hospital, Akola and made a request to Medical Officer to examine Rukhsana and to issue a certificate that Rukhsana is in a position to make statement. On receiving the fitness certificate, Shri Shinde then proceeded and recorded the statement of Rukhsana Parveen which is the third dying declaration (Exh.55). Rukhsana succumbed to the burn injuries on 31.05.1998 while she was taking treatment in the Government Hospital. After the death of Rukhsana, Shri Shinde added offence under Section 302 of the Indian Penal Code and after completing the investigation, submitted the charge sheet. Since the offence under Sections 307 and 302 of the Indian Penal Code were exclusively triable by the Sessions Judge, the case was committed to the Sessions Judge, Akola. The learned Judge, on appreciation of the evidence, found that there was sufficient evidence to hold the appellant/accused guilty of the offence punishable under Sections 498A and 302 of the Indian Penal Code and accordingly convicted him to suffer RI for one year and to pay fine of Rs. 500/, in default of payment of fine, to suffer further RI for two months and to undergo imprisonment for life and to pay a fine of Rs.500/and in default of payment of fine to undergo RI for two months respectively.

(3.) Shri A.M. Ghare, the learned Counsel appearing on behalf of the appellanb/accused made a strong attack on the prosecution evidence. He further submitted that except the so called dying declarations, there is no evidence brought by the prosecution against the appellant/accused. The learned Counsel further submitted that the case of the prosecution rests only on circumstantial evidence and in view of the settled law, the prosecution has to prove the circumstances and the chain of the circumstances strong enough to leave every hypothesis of the innocence of accused and on this touchstone if the prosecution evidence is looked at, the prosecution has utterly failed and as such submitted that the case requires interference at the hands of this Court. Shri Ghare further submitted that there are three dying declarations on record. The first Dying Declaration (Exh. 58) which was recorded by the Special Judicial Magistrate immediately after [ the incident clearly establishes that death of Rukhsana was accidental. He further submitted that the other two dying declarations involving the accused cannot be considered for more than one reasons. The learned Counsel submitted that two dying declarations involving the appellant/accused are under the pressure of PW1 Syed Ejajali. He further submitted that these two dying declarations cannot stand in view of the judicial decisions also.