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Monday, April 10, 2017

“It is a settled law that the statement under Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him...” = whether in a case of this nature death sentence should be awarded. A life is at stake subject to human error and discrepancies and therefore the doctrine of ‘rarest of rare cases’, which is not res-integra in awarding the death penalty, shall be applied while considering quantum of sentence in the present case. Not so far but too recently, the Law Commission of India has submitted its Report No.262 titled “The Death Penalty” after the reference was made from this Court to study the issue of Death Penalty in India to “allow for an up-to-date and informed discussion and debate on this subject”. We have noticed that the Law Commission of India has recommended the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security). Today when capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law, we are not inclined to award the same in the peculiar facts and circumstances of the present case. Therefore, confinement till natural life of the accused respondent shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the present case.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NOS.865-866 OF 2013
      STATE OF MAHARASHTRA                              ...Appellant(s)
                                  :Versus:
      NISAR RAMZAN SAYYED                               ...Respondent(s)






                                  JUDGMENT
      Pinaki Chandra Ghose, J.
   1. These appeals have been directed against the judgment and order  dated
      19th March, 2012 passed by the High Court  of  Judicature  at  Bombay,
      Bench at Aurangabad, in Confirmation Case No.1 of 2011  with  Criminal
      Appeal No.584  of  2011,  whereby  the  conviction  order  dated  22nd
      September, 2011 passed by  learned  District  Judge-3  and  Additional
      Sessions Judge, Shrirampur, against the respondent herein was  quashed
      and set-aside. The Confirmation Case No.1 of 2011  was  filed  by  the
      State for confirmation of the death sentence awarded  to  the  accused
      respondent. The High Court, however, rejected the death  sentence  and
      acquitted the accused respondent.


   2. The brief facts leading to present criminal appeals may be  summarized
      as follows:
           Respondent Nisar Ramzan Sayyed got  married  with  one  Summayya
      (deceased herein) on 30.03.2007. After the marriage they were  jointly
      living with the respondent’s family  and  were  blessed  with  a  male
      child, namely Sayej who was three years old  on  the  fateful  day  of
      incident. The deceased was seven months pregnant at the  time  of  the
      incident. The respondent and his family members treated Summayya  well
      for  a  period  of  one  year  after  the  marriage.  Thereafter,  the
      respondent started ill-treating  her  on  the  pretext  of  demand  of
      Rs.50,000/-  for  purchasing  an  auto  rickshaw.  As  the   financial
      condition of the father of Summayya was poor, the  said  demand  could
      not be met. The respondent continued the act of ill-treatment with the
      deceased. On 29th October, 2010 at 5:00  a.m.  the  respondent  herein
      allegedly set the deceased on fire by pouring kerosene  oil  and  also
      threw the son (Sayej) on the burning body of  the  deceased.  Summayya
      and her son sustained burn injuries. Thereafter the deceased was taken
      to the hospital by the respondent but her son died on the spot due  to
      burn injuries. The deceased succumbed to her injuries on 3rd November,
      2010 after giving birth to a dead baby fetus.


   3. Law was set into motion against the respondent and his family  members
      when FIR No.I-227 of 2010 was lodged at Police Station Newasa  at  the
      instance of one Nisar Ashraf Pathan after registration  of  report  AD
      No.91 of 2010 under Section 174 of Code of Criminal Procedure. Learned
      Additional Sessions Judge while taking  cognizance  on  the  basis  of
      charge-sheet No.12 of  2011 received on 27.01.2011 initiated  Sessions
      Case No.18 of  2011  and  vide  his  judgment  and  order  dated  22nd
      September, 2011  convicted  the  respondent  herein  for  the  offence
      punishable under Sections 302 and 498-A of the Indian Penal Code, 1860
      and sentenced him to suffer death sentence and pay a fine of Rs.2000/-
      . Five other accused who were family members of the  respondent  were,
      however, acquitted from all the charges.


   4. The respondent herein preferred Criminal Appeal No.584 of 2011  before
      the High Court against the above-noted conviction order and the  State
      of Maharashtra filed Confirmation Case No.1 of 2011  for  confirmation
      of the death sentence awarded to the respondent by  the  Trial  Court.
      The High Court  vide  impugned  judgment  quashed  and  set-aside  the
      conviction  order   passed   against   the   respondent   herein   and
      consequently, the death  sentence  confirmation  case  was  dismissed.
      Hence, the present appeals before us by the State of Maharashtra.

   5. We have heard the learned counsel on both sides. On a perusal  of  the
      judgments passed by the High Court and the Trial Court, we  find  that
      in the present case there is no eye-witness of the  incident  and  the
      prosecution has been totally depending upon the dying declarations  of
      the deceased, namely, Summayya. There are three written and three oral
      dying declarations. Since there is no direct evidence but  only  dying
      declarations of the deceased and proof proffered by  the  prosecution,
      tested by  the  conventional  process  of  cross-examination  and  the
      standard yardsticks  of  credibility,  we  confine  ourselves  to  the
      contentious issue of acquittal order and its legality.

   6. From a perusal of the records of the Courts  below,  we  have  noticed
      that there are three written dying declarations  viz,  Exhibit  No.61,
      Exhibit No.67 and Exhibit No.73, recorded before PW8–Dr.Prabhakar, PW7-
      ASI Argade  and  Circle  Inspector,  respectively.  Three  oral  dying
      declarations were given before PW-1, PW-2 and PW-3, respectively.  The
      role attributed to accused No.1 (respondent herein) is  consistent  in
      all the dying declarations whereby  it  has  been  proved  beyond  all
      reasonable doubt that the respondent herein had poured kerosene on his
      wife and set her on fire in their house itself during early  hours  of
      29th October, 2010. The demand of an amount of Rs.50,000/- by  accused
      No.1 was also reiterated by the deceased in  her  dying  declarations.
      The Medical Officer gave his opinion in the letter issued  by  PW7-ASI
      Argade, inquiring about the conscious mental  state  of  the  deceased
      while stating the cause of the burn injuries on the victim  wife.  The
      Trial Court has rightly relied on the judgment passed by this Court in
      Satish Ambanna Bansode Vs. State of Maharashtra, (2009)  11  SCC  217,
      wherein  this  court  reiterated  the   principles   governing   dying
      declaration  which  had  been  elaborately  discussed  in  an  earlier
      decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18.
      Relevant part of the relied judgment is reproduced herein below:
           “14…. (i) There is neither rule of  law  nor  of  prudence  that
           dying declaration cannot be acted  upon  without  corroboration.
           [See: Munnu Raja v. State of M.P. (1976) 3 SCC 104]
           (ii) If the court is satisfied that  the  dying  declaration  is
           true and  voluntary  it  can  base  conviction  on  it,  without
           corroboration. [See: State of U.P. v. Ram Sagar Yadav  (1985)  1
           SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
           (iii)  The  court  has  to  scrutinise  the  dying   declaration
           carefully and must ensure that the declaration is not the result
           of tutoring, prompting  or  imagination.  The  deceased  had  an
           opportunity to observe and identify the assailants and was in  a
           fit state to make the declaration. [See: K. Ramachandra Reddy v.
           Public Prosecutor (1976) 3 SCC 618].
           (iv) Where a dying declaration is suspicious, it should  not  be
           acted upon without corroborative evidence. [See: Rasheed Beg  v.
           State of M.P., (1974) 4 SCC 264.]
           (v) Where the deceased was unconscious and could never make  any
           dying declaration the evidence  with  regard  to  it  is  to  be
           rejected. [See: Kake Singh v. State of M.P.,  (1981)  Supp.  SCC
           25.]
           (vi) A dying declaration which  suffers  from  infirmity  cannot
           form the basis of conviction. [See: Ram  Manorath  v.  State  of
           U.P., (1981) 2 SCC 654.]
           (vii) Merely because a dying declaration does  not  contain  the
           details as to the occurrence, it is not  to  be  rejected.  [See
           State of Maharashtra v.  Krishnamurti  Laxmipati  Naidu,  (1980)
           Supp. SCC 455.]
           (viii) Equally, merely because it is a brief  statement,  it  is
           not to be discarded. On  the  contrary,  the  shortness  of  the
           statement itself guarantees truth. [See: Surajdeo Ojha v.  State
           of Bihar, (1980) Supp. SCC 769]
           (ix) Normally,  the  court  in  order  to  satisfy  whether  the
           deceased was in  a  fit  mental  condition  to  make  the  dying
           declaration looks up to  the  medical  opinion.  But  where  the
           eyewitness said that the deceased was in  a  fit  and  conscious
           state to make the dying declaration, the medical opinion  cannot
           prevail. [See: Nanhau Ram v. State of  M.P.,  (1988)  Supp.  SCC
           152.]
           (x) Where the prosecution version differs from  the  version  as
           given in the dying declaration, the said declaration  cannot  be
           acted upon. [See: State of U.P. v.  Madan  Mohan  (1989)  3  SCC
           390.]
           (xi) Where there are more than one statements in the  nature  of
           dying declaration, the one  first  in  point  of  time  must  be
           preferred. Of course, if the plurality of the dying  declaration
           could be held to be trustworthy  and  reliable,  it  has  to  be
           accepted.  [See:  Mohanlal   Gangaram   Gehani   v.   State   of
           Maharashtra, (1982) 1 SCC 700.]”


      In our considered opinion the  High  Court  erred  in  acquitting  the
      respondent herein as the spot Panchnama, being  Exhibit-86,  was  duly
      proved by PW11-Investigating Officer of the case whereby  recovery  of
      kerosene mixed soil, burnt pieces of Saree and Blouse  etc.  etc.  was
      proved.


   7. We have also noticed that factum of pregnancy before death of deceased
      was also proved by PW9-Dr. Nitin Sudhakar Samudra. The typical conduct
      of the accused respondent  also  describes  his  guilty  intention  of
      neglecting his wife when she was on death bed as there is no  evidence
      on record to prove that the respondent got the  deceased  admitted  in
      Wadala Mission Hospital.  From  the  testimony  of  the  Investigating
      Officer during the cross-examination, it  has  been  proved  that  the
      height between floor and the roof of spot of incident is 13 to 14 feet
      and the roof is covered by dried sugarcane leaves which  were  put  on
      the plastic gunny bags. The Trial Court has rightly  appreciated  that
      it is not possible to cause any damage to the said  roof  due  to  the
      incident.


   8. Mr. Kunal A. Cheema,  learned  counsel  appearing  for  the  State  of
      Maharashtra contended that under these  circumstances  the  respondent
      and other accused had caused triple murder in one shot and taken lives
      of innocent and helpless persons, including a human being who had  not
      even seen the light of the  day.  It  was  further  submitted  by  the
      learned counsel that the officers of Executive Magistrate’s office are
      independent persons and as a matter of safety, the statements are kept
      in sealed condition to prevent tampering  or  manipulating  the  same.
      Therefore, there is no reason to doubt Ext.-61. Furthermore, once  the
      dying declarations are  duly  proved  and  it  is  admitted  that  the
      deceased and the minor child  were  in  the  custody  of  the  accused
      persons, it is for the accused to  show  that  facts  were  otherwise.
      Learned counsel further argued that the delay in registering  the  FIR
      was due to the fact that the incident happened in the jurisdiction  of
      different police stations and the  hospital  in  which  treatment  was
      given was in different jurisdiction, as could be seen  from  the  FIR,
      Ext.67 and Ext.61.


   9. Per Contra, Mr. Atul Babasaheb Dakh, learned counsel appearing for the
      respondent argued that albeit admittedly, the roof of  the  house  was
      made of sugarcane leaves, there were domestic  articles  and  utensils
      kept in the room of the accused. As per the arguments advanced by  the
      learned counsel for the respondent, the prosecution  failed  to  prove
      that the alleged incident took place in the house as there was no sign
      of burning on the roof (chhappar) of the house. The same was stated by
      PW10 – Police Head Constable who was the first  person  to  visit  the
      place of occurrence and this was corroborated  by  the  I.O.  who  had
      conducted spot  Panchnama.  It  was  further  argued  that  the  dying
      declaration Ext.-67 cannot be made admissible with regard to the place
      of occurrence because PW-10 in his statement has averred that the dead
      body of 3-year old son was found at a distance  of  200-250  ft.  away
      from the house of the accused. The learned counsel for the  respondent
      concluded his arguments by  submitting that  the  dying  declarations,
      which suffered from infirmity, cannot form the basis of conviction and
      in support of this he relied upon judgment of this Court  in  Surinder
      Kumar Vs. State of Haryana, (2011) 10 SCC  173,   wherein  this  Court
      observed:
           “28. Though there is neither rule of law nor  of  prudence  that
           dying declaration cannot be acted upon without corroboration but
           the court must be satisfied that the dying declaration  is  true
           and voluntary and in that  event,  there  is  no  impediment  in
           basing conviction on it, without corroboration. It is  the  duty
           of the court to scrutinise the dying declaration  carefully  and
           must ensure that the declaration is not the result of  tutoring,
           prompting  or  imagination.  Where  a   dying   declaration   is
           suspicious, it should not be acted  upon  without  corroborative
           evidence. Likewise, where the deceased was unconscious and could
           never make any declaration the evidence with  regard  to  it  is
           rejected. The dying declaration  which  suffers  from  infirmity
           cannot form the basis of conviction. All these  principles  have
           been fully adhered to by the trial court and  rightly  acquitted
           the accused and on wrong assumption the  High  Court  interfered
           with the order of acquittal.”




  10. Respondent herein in his statement under Section 313 of  the  Code  of
      Criminal Procedure, 1973 has stated about the threat by  his  wife  of
      committing suicide. He has further stated that he had made a complaint
      to Newasa  Police  Station.  However,  the  Trial  Court  has  rightly
      appreciated the evidence on record whereby it was proved from the N.C.
      Register of Newasa Police Station that no such complaint was lodged by
      the respondent herein during the relevant days. On  the  date  of  the
      incident the respondent and his deceased wife were in their house  and
      that the deceased met an unnatural death has been  proved  by  medical
      evidence. Under these circumstances  where  there  is  no  other  eye-
      witness to the incident, the  failure  on  the  part  of  the  accused
      respondent to explain how his pregnant wife and their minor child  met
      with unnatural death due to burn injuries  sustained  at  their  house
      leads to an inference which goes against the accused respondent.  This
      relevant proposition of law was discussed by this Court in the case of
      Swamy Shraddananda Vs. State of Karnataka,  (2007)  12  SCC  288.  The
      relevant part of the judgment is reproduced hereunder:
           “If it  is  proved  that  the  deceased  died  in  an  unnatural
           circumstance in her bed room, which was occupied only by her and
           her husband, law requires the husband to offer an explanation in
           this behalf. We, however, do not intend to lay  down  a  general
           law in this behalf as much  would  depend  upon  the  facts  and
           circumstances of each case. Absence of any  explanation  by  the
           husband would lead  to  an  inference  which  would  lead  to  a
           circumstance against the accused.”




  11. It is also discussed by this Court in the case of Munna Kumar Upadhyay
      Vs. State of Andhra Pradesh, (2012) 6 SCC 174 at para 73 as follows:
           “It is a settled law that the statement  under Section  313 CrPC
           is to serve a dual purpose, firstly, to afford to the accused an
           opportunity to explain his conduct and secondly to  use  denials
           of established facts as incriminating evidence against him...”




  12. Astonishingly we have found the dying  declarations  of  the  deceased
      with consistent allegations about demand of dowry and  modus  operandi
      of the offence which resulted into the death of the declarant and  her
      minor child. Before coming to the conclusion in the present  case,  we
      would like to emphasize on the  principle  enumerated  in  the  famous
      legal maxim of the Law of Evidence i.e.,  Nemo  Moriturus  Praesumitur
      mentire which means a man will not meet his maker with a  lie  in  his
      mouth. Our Indian Law also recognizes this  fact  that  “a  dying  man
      seldom lies” or in other words “truth sits upon the lips  of  a  dying
      man”. The relevance of this very fact, though  exception  to  rule  of
      hearsay evidence, has been discussed in  numerous  judgments  of  this
      Court including Uka Ram Vs. State of  Rajasthan,  (2001)  5  SCC  254;
      Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490;   Muthu  Kutty  &
      Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of Uttar
      Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010)
      8 SCC 514.


  13. The various circumstances pointing out to the guilt of the  respondent
      and respondent alone have been enumerated by us hereinbefore. From our
      discussions, it is evident that each of  the  circumstances  had  been
      established, the cumulative effect whereof would  show  that  all  the
      links in the chain are complete and the conclusion  of  the  guilt  is
      fully established. Therefore, in our considered opinion the respondent
      herein is guilty of the offence causing death of his pregnant wife and
      minor child.

  14. The next question, however, is as to whether in a case of this  nature
      death sentence should be awarded. A life is at stake subject to  human
      error and discrepancies and therefore the doctrine of ‘rarest of  rare
      cases’, which is not res-integra in awarding the death penalty,  shall
      be applied while considering quantum of sentence in the present  case.
      Not so far but too recently, the Law Commission of India has submitted
      its Report No.262 titled “The Death Penalty” after the  reference  was
      made from this Court to study the issue of Death Penalty in  India  to
      “allow for an up-to-date and informed discussion and  debate  on  this
      subject”. We have  noticed  that  the  Law  Commission  of  India  has
      recommended the abolition of death penalty for all  the  crimes  other
      than terrorism related offences and  waging  war  (offences  affecting
      National  Security).  Today  when  capital  punishment  has  become  a
      distinctive feature of death penalty apparatus in India which  somehow
      breaches the reformative theory of punishment under criminal  law,  we
      are not  inclined  to  award  the  same  in  the  peculiar  facts  and
      circumstances of the present case. Therefore, confinement till natural
      life of the accused respondent shall fulfill the requisite criteria of
      punishment in peculiar facts and circumstances of the present case.


  15. Hence, the judgment and order passed by High Court is hereby set aside
      and that of the Trial Court is restored with regard to  conviction  of
      the accused respondent. However, in  the  light  of  the  above  noted
      discussions, the death sentence awarded by the Trial Court  is  hereby
      modified to ‘life imprisonment’ which will mean imprisonment  for  the
      natural life of  the  respondent  herein.  The  criminal  appeals  are
      allowed accordingly in the afore-stated terms.
                       . . . . . . . . . . . . . . . .
                                 . . . . .J
                                                  (Pinaki Chandra Ghose)






                        . . . . . . . . . . . . . . .
                                . . . . . .J
                                                  (Rohinton Fali Nariman)
      New Delhi;
      April 07, 2017.

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