Sharif Shah vs State Of Madhya Pradesh

This criminal appeal has been filed under Section 374 of the Criminal Procedure Code being aggrieved by judgment and sentence dated 30.06.2006

passed by the Additional Sessions Judge, Ganj Basoda in Sessions Trial No.71/05, whereby the appellant has been convicted and sentenced under

Section 302 of the Indian Penal Code (for short IPC) to undergo rigorous imprisonment for life and fine of Rs.5,000/- and in default of fine, two

months'Â rigorous imprisonment.

As per the prosecution story, wife of the appellant Parveen and son of the appellant Shamim were brutally murdered by pouring kerosene oil and

putting them on fire due to greed for additional dowry, resulting in death of Parveen and Shamim and since Parveen was pregnant a foetus baby was

also killed.

As per the prosecution story on 12.01.2004, Parveen was admitted to Government Hospital, Basoda at about 4.10 PM alongwith Shamim, aged 03

years with 90% and 70% burn injuries respectively. On 12.01.2004 itself, dying-declaration (Ex.P/8) was recorded by Dr. B.P. Khare (PW5), in

which the deceased narrated that she is resident of Idgah Road, Basoda and the name of her husband is Sharif. When she was asked that how she

has sustained burn injuries, she said that two persons had put her on fire. They were beating her for last two days. When names of these two persons

were asked, she named three persons, namely, mother-in-law, Sharif and Mehboob. When reasons for such incident was asked, the deceased

narrated that this was done due to some second woman. When the name of such second woman was asked, she said that ask him only. Thereafter,

Parveen was asked as to how she was burnt, she said that oil was put on her and thereafter she was burnt. When doctor asked her that if she wants

to say anything else, she said that her brother-in-law (Dewar) said that he will not keep her and keep second one as she is moneyed person, whereas

you are poor. She said that sister-in-law (Jethani) said that do not keep her. They used to call for money. She said that Rs.30,000/- were paid. There

was demand for Rs.20,000/- more and since that demand was not fulfilled, she was put on fire. In this background and on the basis of said dying-

declaration recorded by the doctor, the appellant has been convicted under Section 302 of IPC.

Appellant submits that he has been falsely implicated and the learned Sessions Court has failed to appreciate the evidence on record inasmuch as

DW1 Smt. Savitri Chandel, Staff Nurse, categorically denied that dying-declaration of Parveen Bi was taken in her presence by the duty Doctor B.P.

Khare (PW5).

It is further submitted that the prosecution had examined several witnesses, but the story of demand for dowry has not been proved from the

statements of any of the witnesses. Learned counsel submits that FIR (Ex.P/34) was recorded on 12.01.2004 at 21.45 hours, wherein names of all the

family members have been included, but the statements of the witnesses Ex.D/1, D/2 and D/3 were recorded on 14.03.2004, i.e., after more than two

months of the date of the incident.

Learned counsel for the appellant submits that in Ex.D/1, case diary statement, Shakeena Bi wife of Rafique Khan and mother of deceased

Parveen has categorically mentioned that no demand for dowry was made by Sharif and his family members. She further stated that Parveen was

kept well for 5-6 months, thereafter demand for dowry in the form of TV, Almirah, etc. was made. It is further mentioned in this statement that

Parveen was dropped at her mother's place by her mother-in-law somewhere in September-October, 2003 and Parveen had informed that Sharif was

arrested as there was a warrant against him. Thereafter, mother of Sharif demanded Rs.10,000/-, but her son had given Rs.1,000/- at Basoda. She

further deposed that before Nafees could reach there, Sharif was released and Rs.1,000/- were given to Sharif. She further submitted that about

one and half month's ago, Sharif had taken Parveen to Basoda, when Parveen had informed that she is being harassed for dowry. Similarly, Nafees,

brother of Parveen, also gave statement on the same lines, but did not corroborate version of Parveen that Rs.30,000/- were given and there was

demand for Rs.20,000/- more.Â

Salamat Shah (PW4), who is the author of Ex.D/3 and whose statement was recorded on 03.05.2004, deposed that he was informed that Sharif had

married some other woman and further he had heard from Rafique that Parveen's brotherin-law, sister-in-law, mother-in-law and husband were

harassing her for dowry and she died because of burn injuries.

PW1 Sakeena has admitted that brother-in-law, sister-inlaw and mother-in-law of Parveen were not staying at Basoda. She also deposed that

Parveen had informed that her husband had come to take her back, when he had asked Parveen to come with him else he had threatened that he

would consume salphas and die. In para 9 of the cross-examination, she admitted that when her son had died, then Parveen had come to their house

alongwith Sharif. She also admitted that economic status of her family and that of Sharif is equivalent as they all are poor. In para 11 of the cross-

examination, she admitted that Mehboob shah (Jeth), his wife and Dewar are residents of Village Dehri. Her daughter and Sharif were residing at

Basoda. She further admitted that whenever her daughter used to get pregnant for 5-6 months, Parveen was left at her mother's place and was

always taken after delivery was performed.

PW2 Rashida Bi, aunt of Parveen, deposed that the accused persons had beaten her and had burnt her. Her hands and legs were fractured.

Learned counsel for the appellant submits that in postmortem report (Ex.P/4), there are no marks of any fractures in either hand or in the leg.

Therefore, the statement of PW2 is not reliable and she is in fact a hearsay witness.

It is further submitted that she admitted that there is a lot of tension in her mind and it is not functioning properly because her mother had died. She

further admitted that she is not sure whether Parveen was burnt in an incident or had burnt herself.

Learned counsel for the appellant has drawn attention towards statement of Nafees (PW3) and submitted that doctor had taken statement of

Parveen in front of this witness and then later said that statements were given to SDO (P). This witness further submitted that after burial of Parveen,

they had brought witnesses, in front of whom, Sharif had beaten their sister. She named such witness as Haseen son of Raees Khan. This witness

further admitted that her sister was suspecting Sharif that he has relations with another lady, though she was not unhappy with the said state of affairs

but had reconciled to the fact.

PW4 Salamat has submitted that he has heard that Sharif and householders had burnt Parveen. He admitted in para 9 that Sharif is related to him

and he is giving statement as has been asked by Rafique to depose.

PW5 Dr. B.P. Khare had admitted in his cross-examination that he has not mentioned any marks of injection etc. in his medical prescriptions and,

therefore, he is not in a position to inform as to whether there were such marks on the body or not. He admitted that in burnt body, there is deficiency

of fluid and he had taken statements after sending information to Police because condition of the patient was not such so as to warrant waiting for the

Police. He further admitted that as part of treatment of burn injuries, certain injections are given which causes sleep and patient is not in a condition to

give statements. He further admitted that since the deceased was conscious during statement and had not turned unconscious, therefore, such fact has

not been mentioned in the dyingdeclaration. In para 16, he admitted that except burn injuries, there were no other marks of injuries on her body. He

further admitted that the face of the deceased was also burnt.

Prosecution has examined PW7 Jagat Singh alias Pappu son of Shri Raghunath Singh, who has deposed that when Sharif's house had caught fire,

he himself, Sharif and Gajraj Singh were smoking bidi. After seeing the smoke, they had reached to the gate of the house and found the house to be

locked. When they entered the house, they saw that Sharif's wife and son had burnt, then Sharif ran and brought autorickshaw to take the injured

persons to the Hospital.

PW11 Samar Verma admitted that he is working as DSP Hoshangabad. FIR was lodged on 13.03.2004. Witnesses were available on the date of

the incident, but when they were asked to give statements, they said that statements will be given after performing last rites. He further admitted that

naksha-a-mauka was prepared at the instance of accused Sharif. He admitted that kerosene oil was not spread on the floor, but there was a spot on

the quilts and smell of a combustible material. He admitted that there is no copy of draft of FSL report in the record. He further deposed that the

statements of the witnesses were taken under Section 161, Cr.P.C. after two months of the incident and thereafter justified saying that when the

witnesses became available, their statements were taken.Â

Learned counsel for the appellant placing reliance on the statement of PW7 Jagat Singh alias Pappu submits that as per Jagat Singh, Sharif was

standing outside his house and when they had seen the smoke, Sharif had opened the latch and had gone to call auto-rickshaw to carry the bodies to

the Hospital. This witness was declared hostile, but in the cross-examination also he has not contradicted his stand that Sharif was not present at the

scene of incidence.

Drawing attention of this Court to the above narrations, the learned counsel for the appellant submits that inconsistency in the statements of the

witnesses, delay in recording statements of the witnesses and the fact that the prosecution witnesses have not corroborated the second part of dying-

declaration as regards demand of Rs.20,000/- and payment of Rs.30,000/- earlier, give sufficient ground to disbelieve the story of the prosecution as

far as demand of dowry is concerned.

It is further submitted that there is no material on record to substantiate that who were the persons who had poured the kerosene oil and burnt

deceased Parveen. Learned counsel for the appellant further submits that there is no mens rea to burn the son Shamim, who had sustained 70% burns,

which were ante-mortem in nature as is mentioned in Annexure P/5. It is further submitted that in fact Shamim was a male child and the appellant

would have burnt Parveen, his wife, then the boy Shamim would have protested and there would have been protest signs on the spot. Further it is not

the prosecution case that there were some persons who caught hold of the deceased persons and then someone had poured kerosene oil and then lit

the fire. This shows that the death was not homicidal but is suicidal.

Learned counsel for the appellant has also drawn attention of this Court to Ex.P/6 to show that as per the postmortem report, there was charring

of hair, face, head and neck with skin burn over chest, abdomen, both upper limbs, whereas left lower limb except part of foot and sole and right lower

limb had superficial skin burn, therefore, 92% burn injuries, as have been ascribed by PW5 caused to the body of Parveen, are co-related and it can be

conveniently said that the upper part including the face was so deeply burnt that it cannot be said that Parveen was in a position to give

dyingdeclaration.

It is apparent that in the dying-declaration (Ex.P/8), there is no mention of compose mantis by the doctor. Doctor has not tested the state of

compose mantis, i.e., soundness of mind, memory and understanding before recording statement of deceased Parveen. Doctor has only certified that

the patient was fully conscious to give any statement, but whether she was balanced, clear headed & sane, to give such statement has not been

certified by the doctor. In the present case, the inconsistency of the dying-declaration is to be examined and, therefore, this aspect of compose mantis

attains extra classification inasmuch as her statement as to show she had burnt, has to replies, namely, two persons put her on fire and consequently

she was being beaten for last two days. This “being beaten by last two days†is not corroborated by medical evidence Ex.P/6, wherein the doctor

has categorically mentioned that there were no other injury marks over the body. If she was being beaten for last two days, there was no reason for

absence of injury marks on the body.

When she was asked to give names of the persons who had put her on fire, she gave three names, but the prosecution has not proved the

presence of mother-in-law and Mehboob at the place of incidence. When she was asked for the reason for the incident, she stated that it is because

of another women, but she did not give name of any woman. On the contrary, PW3 Nafees has mentioned in his cross-examination in para 18 that he

had seen the other woman and Sharif had given name of such woman and Parveen was aware of such person. But even PW3 has not identified

this 'other woman'.

PW4 Salamat has deposed that Sharif had already kept second wife. When these statements are examined, then there is no reason for Parveen

not to give name of such second woman. Thus, the facts coupled with the evidence of Jagat Singh (PW7) that when Sharif's house had caught fire,

he, Sharif and Gajraj Singh were standing outside this house and they had seen smoke when Sharif had jumped in the house from the top and opened

latch and had brought the autorickshaw to take the burnt persons to the Hospital and also the fact that Sharif was available not only in the Hospital, but

also at the time of cremation as has been deposed by PW2 and PW3. The story of the prosecution that the death was homicidal and not suicidal, has

its own limitations.

As per the law laid down in the case of Bala Krushna Swan v. State of Orissa as reported in AIR 1971 SC 804, unjustified and unexplained long

delay on the part of the Investigating Officer in recording statements of material eyewitnesses during investigation of murder case will render

evidence of such witnesses unreliable.

Learned counsel for the appellant has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ganesh Bhavan Patel &

Another v. State of Maharashtra as reported in AIR 1979 SC 135, in which the Hon'ble Supreme Court has held that credibility of the prosecution

evidence becomes doubtful when there is inordinate delay in recording statements of the alleged eyewitnesses by the Investigating Officer and no

credibility explained of this delay was forthcoming. Although these witnesses were or could be available for examination when the Investigating

Officer visited the scene of occurrence or soon thereafter, but their statements were recorded on the following day. In such facts, the Hon'ble

Supreme Court held that such delay may not by themselves amount to a serious infirmity in the prosecution case, but they may assume such a

character if there are concomitant circumstances so to suggest that the Investigator was deliberately marking time with a view to decide about the

shape to be given to the case and the eyewitnesses to be introduced. Under such facts and circumstances, the Hon'ble Supreme Court noted that

another circumstance which enhanced the potentiality of delay as a factor undermining a prosecution case is the order of proprietary or sequence, in

which the Investigating Officer recorded the statements of witnesses. In the present case, the learned counsel for the appellant submits that instead of

recording the statements of those who were present at the scene of crime, the witnesses who had arrived later on, were examined first and they were

not the eye-witnesses to the incident, therefore, discarding the testimony of PW7, who is the first hand witness, is not correct and the trial Court

committed error in doing so.

Learned counsel for the appellant has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Badri v. State of

Rajasthan as reported in (1976) 1 SCC 442, wherein the ratio is that in absence of any corroboration if a witness, who is the only witness against

the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of

securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony.Â

Learned counsel for the appellant has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Shaikh Bakshu & Others

v. State of Maharashtra as reported in (2007) 11 SC 269, wherein the Hon'ble Supreme Court has held that discrepancy and infirmities in the dying-

declaration and conviction on the basis of dyingdeclaration make such conviction unsustainable. It is submitted that even there is no mention of the fact

that the dyingdeclaration was read over to the deceased and thereafter she had put her thumb impression on the dying-declaration.

These aberrations as pointed out by the learned counsel for the appellant are to be examined in the light of the provisions contained in Section 32

of the Evidence Act as to whether the dying-declaration inspires confidence so as to make it safe to act upon. For this purpose, help of the judgment

of the Hon’ble Supreme Court in the case of Nallapati Sivaiah v. Sub-Divisional Officer, Guntur as reported in AIR 2008 SC 19 can be taken,

wherein in para 39 it has been held that the questions whether it is safe to act upon a dying-declaration depends upon not only the testimony of the

person regarding dying-declaration - be it even a Magistrate but also all the material available on record and the circumstances including the medical

evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The Court must

satisfy to itself that the person making the dying-declaration was conscious and fit to make statement, for which purposes not only the evidence of

persons recording dying-declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be

taken into consideration.

In view of such judgment of the Hon’ble Supreme Court, it will not be out of place to appreciate the evidence of prosecution witness, namely,

PW7 Jagat Singh who has categorically deposed that he alongwith appellant Sharif and Gajraj Singh was standing outside the house of the appellant

and they were smoking bidi. They saw smoke coming out of the house of Sharif then they reached to the door when they found it to be locked. Sharif

had jumped and reached inside and opened the latch which took the witnesses inside where they saw the deceased wife and the deceased child under

burn injuries when the appellant had gone running and caught hold of an auto-rickshaw. The patients were taken to the Hospital in the said auto-

rickshaw. He denied the theory of second woman and in cross-examination he categorically deposed that when they reached inside the house of

Sharif, they did find nobody inside except Parveen and her son. He also admitted that Sharif had gone to the Hospital and he had accompanied Sharif

alongwith Gajraj. He further deposed that Parveen was not in a position to speak and there was no voice, therefore, there was no question of giving

any statement. He further submitted that from the time of admission till her death, they had not left the deceased even for a minute. Under such facts

and circumstances when this prosecution witness was neither declared hostile nor was re-examined by the prosecution, his evidence cannot be

doubted. This, however, creates sufficient suspicion about admissibility of the dying-declaration to be made sole basis of conviction as a reliable piece

of evidence. Under such circumstances, the issue of compose mentis also attains extra relevance in the present case.

Thus, the statement of PW7 coupled with incongruvance in dying-declaration as has been discussed above, renders this to be a fit case where the

appellant's conviction only on the basis of the dying-declaration deserves to be set aside. Therefore, this is a fit case to allow the appeal in the light of

the judgment of the Hon’ble Supreme Court in the case of Nallapati Sivaiah (supra). The appeal succeeds and is allowed. The appellant is in jail.

He be released forthwith.

Record of the trial Court be sent back.