Criminal Appeal No. 432 of 2005. Case: Sheikh Rashid Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 432 of 2005 |
| Counsel | For Appellant: S. G. Loney, Adv. and For Respondents: R. S. Nayak, A.P.P. |
| Judges | P. V. Hardas , J. and S. B. Deshmukh, J. |
| Issue | Evidence Act (1 of 1872) - Sections 3, 6, 118; Indian Penal Code (45 of 1860) - Section 300 |
| Citation | 2012 CriLJ 1352 |
| Judgement Date | October 04, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
S. B. Deshmukh, J.
1. The appellant, who stands convicted for the offence punishable under Sections 302 and 498A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of ` 5000/- with default stipulation (for the offence under Section 302, IPC) and for three years rigorous imprisonment and to pay fine of ` 1000/- with default stipulation (for the offence under Section 498A, IPC), is in appeal under Section 374 of the Code of Criminal Procedure. The Judgment of conviction and sentence has been rendered by the 5th Additional Sessions Judge, Nagpur in Session Trial No. 67/98 on 9-8-2005.
2. Prosecution case, briefly stated, is that, on 15-8-1997 Shaikh Ibrahim lodged an oral report at Police Station, Narkhed that his sister-in-law viz. Rehana died on account of burn injuries at her house in zopadpattti Narkhed, which was reduced into writing by P.S.I., Mahatale. The First Information Report lodged by Shaikh Ibrahim has set the criminal law in motion. Initially, accidental death was registered. Mr. Mahatale- P.S.I., went to the spot of occurrence. He found one woman was lying burnt and dead inside the house. This was a house of appellant, who is hereinafter referred to as 'accused'. The dead woman Rehana was his wife. A small boy viz. Irshad - son of deceased and accused, was present. He told to P.S.I., Mahatale that accused poured kerosene upon the person of his mother (Rehana) and went away. He also disclosed that before this also his father had beaten his mother. P.S.I., Mahatale, took down the report of the small boy Irshad, obtained thumb impression of Irshad and he went back to the Police Station, Narkhed and registered crime No. 200/97. Printed FIR was prepared by him. He has reported the matter to the Police Inspector at Narkhed Police Station. Two constables were deputed to guard the dead body of Rehana. On the next day i.e. 16-8-1997 P.S.I., Mahatale again went to the spot along with the panch witnesses and Shaikh Ibrahim - the first informant. Scene of offence panchanama was drawn. One kerosene oil can having some kerosene, simple earth, kerosene mixed earth, match box, ash, broken bangles and one empty kerosene can were seized under the seizure panchanama. Inquest panchanama was also held on the dead body. The dead body of Rahana was forwarded for autopsy along with the letter. Mr. Mahatale - P.S.I., recorded the statements of the witnesses. The accused was arrested. The clothes on the person of the accused, were seized by drawing the panchanama. Incriminating articles were forwarded to the chemical analyser. In the meanwhile, post-mortem was conducted on the dead body by the Medical Officer. The post-mortem report was obtained by the Police. Investigation carried out, revealed that deceased Rehana was subjected to ill-treatment by the accused. Earlier, at the instance of deceased Rahana Crime No. 172/97 was registered against the accused under Sction 498A, IPC at the Police Station, Narkhed. It was revealed during the course of investigation that on the date of the incident, accused set her on fire pouring kerosene on her person. Rehana had sustained 100% burn injuries and succumbed to burn injuries. On satisfaction that there is sufficient evidence against the accused for commission of an offence punishable under Section 302 of IPC, charge-sheet (Exh. 11) was presented before the learned Judicial Magistrate, First Class, Narkhed against the accused.
The learned Judicial Magistrate, First Class, Narkhed, committed the case to the Court of Session.
After committal of the case, learned 6th Additional Sessions Judge, Nagpur (P. R. Bora, J.) framed charge on 19-6-2002 against the accused for the offence punishable under Section 302, IPC to which the accused pleaded not guilty and claimed to be tried.
Record shows that Exh. 25 is the charge framed on 19th July, 2004. This document shows that charge for the offence punishable under Sections 498 A and 302, IPC was framed against the accused by the Additional Sessions Judge, Nagpur (R. G. Deshmukh, J.). This charge was read over and explained to the accused in vernacular to which the accused denied and claimed to be tried and, therefore, was tried.
3. We have heard the learned counsel for the parties at great length.
4. Mr. Loney, learned counsel for the accused, made various submissions challenging the conviction and sentence by the learned trial Court. According to Mr. Loney, the learned counsel for the accused, the case of the prosecution revolves around the evidence of P.W. 1 Irshad - a child witness. His principal contention is that the evidence of child witness P.W.1 Irshad, ought not to have been accepted by the learned trial Judge. The contention of Mr. Loney, the learned counsel for the accused, has been refuted by the learned APP. According to him, Irshad was around ten years old on the date of recording his oral evidence before the Court and he was capable of understanding the sanctity of oath. In substance, he supported the Judgment of the learned trial Judge and evidence of P.W.1 Irshad.
5. To consider the submissions of the learned counsel, we shall first deal with the submissions of the learned counsel regarding appreciation of evidence of a child witness.
6. Mr. Loney, learned counsel appearing for the accused has admitted that on the date of occurrence i.e. on 15-8-1997 P.W.1 Irshad was 3 to 3? years old. Mr. Loney, learned counsel for the accused, in support of his submission, relied upon the Judgment of the learned Division Bench of Patna High Court in the matter of J. Lodhin v. State, reported in Patna Series, 217. We find that the appellant, in that case, was convicted for the murder of wife of Budharam Lodhi. The said murder was allegedly committed by another woman viz. Jalwanti Lodhin with a hammer (weapon) while deceased was asleep. Inquiry thereon on the lodgement of fard-beyan, under Chapter XVIII of the Code of Criminal Procedure, was conducted and ended in discharge of the accused. The said order was set aside by the Additional Deputy Commissioner of Singhbhum and accused therein was committed for trial. Fifteen witnesses were examined in the Court of Session. Learned Division Bench recorded that most important witness there, in that case, was Chanda (P.W.11) daughter of deceased and incidentally she was a sole eye-witness to murder of her mother. P.W.11 Chandra, in that case, was 6 or 7 years old. It has been noticed by the learned Division Bench of Patna High Court that Chanda (P.W.11) has gone back on her statement made before the committing Magistrate and has deposed that her mother fell down from the roof and died and that she had been threatened by the police to make statement against the accused. The learned Division Bench has made a remark, regarding this witness in that case, that the said witness is capable of making incorrect statement whenever she chose to do so. (Judgment of the Court, in that case, was wrote by Banerji, J.). With the assistance of Mr. Loney, learned counsel for the accused, we have seen the observations of the learned Division Bench at page 224 of the said Judgment, copy of which has been supplied to us by Mr. Loney. The Division Bench has appreciated the evidence of P.W.11 Chanda. That the said witness had given complete go-by to her previous statement and added that police had instructed her to say so. The very inconsistent and improbable statements were made by the witness and, therefore, were hardly reliable. Reference was made to Section 118 of the Evidence Act. The observation was that she was a competent witness to give evidence in Court, as it appears from her deposition. Reference was also made that the said child witness could understand the questions put to her and gave rational answers thereto. The Court made reference to its earlier judgment (1938) AIR (Patna) 153, 158, in the matter of Darpan Potdarin v. Emperor. It was held in that case that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated.The Court further observed that "I would rather go further and advise close scrutiny of the evidence of child witnesses before the same is accepted by a Court of Law". Another Judgment of the learned Division Bench of Lahore High Court in the matter of Abbas Ali Shah v. Emperor reported in (1933) AIR (Lah) 667 has been referred to. There it was observed...
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