The State of Maharashtra, Through Police Station Offcer, City Police Station, Beed v. 1. Moijoddin Shaikh alias Murshid s/o Mehumuddin Shaikh, Age 72 years, Occu. Nil, R/o
Case Details
-1- ALS-117-2019 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY STATE NO.117 OF 2019 The State of Maharashtra, Through Police Station Offcer, City Police Station, Beed. Versus 1. Moijoddin Shaikh alias Murshid s/o Mehumuddin Shaikh, Age 72 years, Occu. Nil, R/o Kamwada, Near Miliya School, Beed. 2. 3. 4.
Legal Reasoning
Nasrin Fatema alias Munni w/o Moijoddin Shaikh, Age 70 years, Occu. Household, R/o as above. Shaikh Asma d/o Shaikh Moijoddin, Age 29 years, Occu. Household. R/o as above. Nurusba wlo Liyakat Ali Baig, Age 33 years, Occu. Household. R/o Sayyad Ali Nagar, Telgaon Road, Beed. … Applicant (Orig. Informant) … Respondents (Orig. Accused) … Mr. A. V. Deshmukh, APP for Applicant - State ... CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATED : 14th JULY, 2023 ORDER (PER ABHAY S. WAGHWASE, J.) : 1. By invoking section 378(1)(b) of the Code of Criminal -2- ALS-117-2019 Procedure, prosecution is keen in questioning the judgment and order of acquittal passed by learned Additional Sessions Judge, Beed in Sessions Case No.142 of 2017 by which present respondents are merely held guilty for the offence punishable under sections 498-A read with section 34 of IPC and rather came to be acquitted from charges under section 302 read with section 34 of Indian Penal Code (IPC), hence the instant application for leave. 2. Learned APP would point out that deceased was married with one Shaikh Mobin who is son of respondent nos.1 and 2 on 18.11.2015. Initially, everything was smooth, but after two months of cohabitation, there was demand of dowry and on failure to meet the same, she was subjected to ill treatment. Deceased used to regularly inform her parents and family members about the treatment mated out to her. Learned APP pointed out that whenever husband went out for driving, he being a driver, mother- in-law used to subject her to ill-treatment. That, on 23.02.2017, according to prosecution, father-in-law and mother-in-law ignited her, causing her 44% of burns. That, during her treatment, she had given dying declarations. On the basis of dying declaration, crime was registered and it was investigated. Said dying declarations inspires confdence. That, witnesses who are -3- ALS-117-2019 immediate neighbours and who had reached the scene of occurrence and had seen deceased infames, are examined by prosecution. Thus, it is submitted that, there is both voluntary and credible dying declarations apart from testimonies of independent witnesses who are neighbours. That, such evidence itself was suffcient to implicate the accused. However, learned APP submitted that, learned trial Judge has failed to appreciate the dying declarations and such evidence in proper perspective and had erred in holding that case of prosecution is not proved beyond reasonable doubt. Statements of authorities who have recorded dying declarations and have deposed to that extent is also not appreciated by the learned trial Judge. That, learned trial Judge has held that prosecution failed to bring home the charges under section 302 of IPC and merely convicted accused persons for offence under section 498-A of IPC. Therefore, while concluding it is submitted that, such fndings are as a result of improper appreciation and therefore, State is desirous of challenging the said judgment and order and hence leave is prayed for. 3. We have gone through the record before us. It seems that in all 12 witnesses were examined by prosecution and there are two dying declarations (Exh.63 and 67). -4- ALS-117-2019 The status of the witnesses are as under : PW1 Pandharinath, panch to inquest panchanama; PW2 Sunil, police offcial, who registered crime on the basis of dying declaration handed over by Naib Tahsildar; PW3 Mujafarkhan, panch to spot panchanama; PW4 Shaikh Noor, father of deceased; PW5 Saifkhan, neighbour, witness who shifted deceased to hospital on 23.02.2017; PW6 Jalindar, Naib-Tahsildar, who recorded dying declaration; PW7 Babruwan, Police Offcer; PW8 Deepashri, doctor who gave ftness certifcate; PW9 Eknath, autopsy doctor; PW10 Maroti, PW11 Ashok and PW12 Suleman Ahmed Ali, police offcials. 4. First dying declaration is at Exh. 67 and it seems to be recorded on 25.02.2017 at around 4:00 p.m. The substance of this dying declaration is that deceased demanded mobile from her parents-in-law to enable her to talk with her parents. Parents-in- law allegedly said that they are going to leave her, and therefore, there was quarrel, and then she alleged that, mother-in-law went inside the house and returned with kerosene can and poured kerosene over her person. While she was attempting to fee, she happened to fell down, and thereafter, father-in-law ignited match stick and threw it on her. It seems that on the strength of such dying declaration (Exh.67), crime is registered. -5- ALS-117-2019 Second dying declaration at Exh.63 appears to be recorded at 5:30 p.m. i.e. one and half hours after frst dying declaration. While answering question regarding occurrence, she allegedly informed that, she wanted to have a talk with her father and she sought mobile from her parents-in-law but, according to her, they both started quarreling with her and both poured kerosene and she was set on fre by father-in-law. 5. Scribes to both dying declarations are examined by prosecution. Naib Tahsildar has admitted that when dying declaration was recorded, relatives were present in the ward around the deceased. Apparently, dying declarations are recorded on 25.02.2017 in spite of incident of fre taking place on 23.02.2017. Therefore, dying declarations are not recorded promptly and are recorded after two days of admission. 6. Evidence of only relative i.e. PW4 Shaikh Noor – father, on scrutiny shows that in spite of claiming to have received oral dying declaration, he has not on his own lodged FIR. His evidence shows that, there are material omissions and improvements in his version. Immediate neighbours who rushed to rescue deceased are not examined. Therefore, in our opinion, for above reasons, case of -6- ALS-117-2019 prosecution comes under shadow of doubt. As stated above, the dying declarations are recorded during presence of relatives and therefore tutoring cannot be ruled out. Therefore, in our opinion, learned trial Judge has committed no error in disbelieving the dying declarations and the case of prosecution. 7. Taking into account the quality of material and evidence, we too are of the opinion that, no purpose would be served by granting leave. Hence, fnding no merits in the application the same is hereby rejected. (ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.) Tandale