When court is not supposed to provide legal aid to accused?

The learned Counsel for the appellants
submits that
the trial Court has failed to follow the mandate of section 304
of Cr.P.C., 1973 inasmuch as, the cross-examination of P.W.1
and P.W.2 is at the instance of the accused persons and not

by their lawyer. In fact, upon careful perusal of the original
record & proceedings, it appears that the cross-examination
of P.W.1 and P.W.2 was by the accused persons on 28th June,
2010. The original record shows that the Advocate for the
accused, on the same date, placed a pursis on record that
the accused have not given any instructions nor visited his
Accordingly, the Advocate filed ‘no instructions
office.

pursis’. The accused / appellants themselves proceeded to
cross-examine P.W.1 and P.W.2. It further appears that on
29th June, 2010, the accused persons filed an application
praying for engaging some other advocate.
Therefore, on
28th June, 2010 when the accused persons themselves cross-
examined P.W.1 and P.W.2, their advocate was on record, he
was not discharged and further prayer for engaging another
advocate was on next day i.e. 29.6.2010. Section 304 of the
Cr.P.C., was not rightly invoked by the trial Court since the
accused were represented by a pleader engaged by them.
Section 304 of the Code would come to the aid of the
accused when they are not represented by a pleader and
where it appears to the Court that the accused are not having
sufficient means to engage a pleader. Therefore, there is no
substance
in
the
contention
of
the
Counsel
for
the
appellants / accused that the Sessions Court should have
invoked the provisions of section 304 of Cr.P.C.

BENCH AT AURANGABAD.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPEAL NO. 477 OF 2011
Shaikh Rafiq Abdul Gafoor Shaikh,

VERSUS
The State of Maharashtra.

CORAM : S.S. SHINDE & V.M. DESHPANDE, JJ.

Pronounced on : February 21 2014.
Citation; 2014 CRLJ(NOC) 368 BOM


This appeal takes exception to the judgment and order
passed by the Sessions Judge, Aurangabad in Sessions Case
No.26 of 2008 decided on 30th July, 2011. By the impugned
judgment and order, the appellants herein i.e. Original
accused Nos.1 to 4 have been convicted for the offence

punishable under Section 302 r.w. 34 of IPC and each
accused has been sentenced to suffer Rigorous Imprisonment
for life and to pay fine of Rs.2000/- each and in default of
payment of fine, to suffer simple imprisonment for two
The accused / appellants No.1, 2 and 4 have
months each.
been convicted for the offence punishable u/s 498-A r.w. 34
of IPC and sentenced to suffer Rigorous Imprisonment for one
suffer simple imprisonment for one month. However, accused
/ appellant NO.3
has been acquitted of the offence
punishable u/s 498-A r.w. 34 of IPC.
year each and to pay fine of Rs.1000/- each, in default, to
2.
The prosecution case in nut shell is, as under:
The alleged incident has occurred on 27.10.2006 at
about 7 am in the house of the accused persons situated at

village Ranjangaon (Shenpunji). Accused No.1 is the husband
of the deceased. Accused No.2 is father-in-law, accused No.3
is brother-in-law and accused No.4 is mother-in-law of the
deceased.
The deceased was issue-less.
The accused
persons were giving ill-treatment to the deceased by saying
that accused No.1 wanted to perform second marriage. On
the date of incident the deceased and accused persons were

in the house. Accused persons have poured kerosene on the
person of deceased from plastic Can and they set her on fire.
The deceased sustained burn injuries due to such act of
accused persons.
The neighbour namely Ruksana Shabbir
Patel had seen the smoke coming out from the house of
accused by which she immediately rushed towards the house
of accused where she had seen accused persons while
leaving their house. The said witness has extinguished the
fire of deceased by pouring water and by means of pillow.
The witness namely Ruksana Patel has asked to the
deceased about the incident on which the deceased told that
her husband, in-laws and brother of her husband have poured
kerosene on her person and set her on fire. At the relevant
time somebody made phone call to the police about
happening of the said incident on which police constable Sk.
Majid Sk. Dagdu of MIDC Waluj Police Station came at the
house of accused at the instance of Police Head Constable

Police constable
in GHATI Hospital by their mobile van.
Dandge. The said police constable took away the deceased
Shaikh Majid asked the deceased about the incident on which
the deceased disclosed that accused persons have set her on
fire by pouring kerosene on her person.
Thereafter, the
deceased was admitted in Ward Nos.22 and 23 of GHATI
hospital. PSI Raosaheb Bavle came in GHATI Hospital. He

gave letter to the Medical Officer for obtaining his opinion as
to whether the said patient was able to make statement or
not, on which Medical Officer examined said patient at about
9 am and he gave opinion that the patient was in conscious
Thereafter, PSI
and fit condition to make statement.
recorded the dying declaration of deceased as per her say.
The parents of deceased had come in GHATI Hospital to see
their daughter and at the relevant time, the deceased had
made oral dying declaration before them that accused
persons have poured kerosene on her person and they have
set her on fire.
3.
On the basis of dying declaration of deceased, Crime
No.224/2006 punishable u/s 307 and 498-A r.w. 34 of IPC had
been registered against the accused persons.
The spot
panchanama of the scene of offence had been prepared. Sari
in burnt condition and plastic can
of kerosene had been

seized under the panchanama. That on 27.10.2006, the said
patient had died in the hospital while taking treatment PSI
Bavle prepared inquest panchanama over the dead body of
deceased. The statements of witnesses came to be recorded
by concerned Investigating Officer.
The accused persons
were arrested. The seized muddemal property had been sent
to Chemical Analyzer and after completion of necessary

investigation, charge-sheet came to be filed against accused
persons, charge was framed. Accused pleaded not guilty to
the charge and claimed to be tried. After trial, the accused
have been convicted and sentenced as mentioned above.
Hence, this appeal.
4.
The learned Counsel for the appellants made following
submissions:
a) The evidence of P.W.1 & P.W.2 does not prove the ill-
treatment and harassment allegedly meted out by the
accused persons at any point of time. The evidence of P.W.1
indicates that, on an inquiry at his instance, the deceased
had shown four fingers (as she was unable to speak), by
which he came to know that those four persons are the
accused who set her on fire.
Later on says that three
accused persons poured kerosene and accused No.1 set her

ablaze. Contrary to above, evidence of P.W.2 indicates that,
the deceased was able to speak & all four accused persons
have set her ablaze.
b) The evidence of P.W.4 that the accused persons fled
away from the spot of incident after setting her ablaze is
apparently false and unbelievable inasmuch as, Exh.59 MLC

letter clearly indicates that appellant No.2 i.e. Father-in-law
of the deceased had admitted the deceased in the GHATI
Hospital. The evidence of P.W.4 to the effect that “ ... It is
not correct to say that the in-laws of Farzana have taken
away her in the hospital and they have admitted Farzana in
the hospital” is clearly falsified in view of the letter of MLC
dated 27.10.2006 Exh.59. The evidence of P.W.4 is liable to
be discarded in view of the fact, that the same is contrary to
the evidence of P.W.3 and the same is intended to take
revenge of accused Nos.2 and 4, they being on inimical terms
with the P.W.4.
Moreover, all the accused persons were
present post-incident in the GHATI hospital. The learned trial
Court has completely disregarded the evidence indicating the
conduct of the appellants after the occurrence of the incident
i.e. their presence in the hospital after the incident, in view of
the peculiar facts and circumstances of the case.

c) The prosecution has not satisfactory explained the
delay, that occasioned in registering the crime despite the
fact, that the alleged dying declaration Exh.58 has been
recorded at 9 a.m. on 27.10.2006.
Perusal of the cross
examination of P.W.1 indicates that the culpability of the
incident on the fateful day has been shifted from one
accused to the other i.e. At a point of time the appellants No.

1 is blamed and at another point of time the appellant No.2.
The evidence of P.W.6 indicates that the said witness could
not tell as to whether the said patient was having blood or
liquid plasma and further whether the said patient was in
critical condition or not.
d) Perusal of the spot panchanama Exh.33 indicates the
presence of dough of wheat and the same was not seized
while preparing the panchanama.
The evidence of P.W.7
indicates about presence of dough of wheat while preparing
the spot panchanama Exh.33.
Thus, the incident has
occurred due to explosion and flaring up of stove while
preparing the food and therefore, the prosecution theory is
liable to be discarded.
e) As per evidence of P.W.7 deceased was moaning and
crying and therefore, it is doubtful as to whether the

statement of the deceased at Exh.58 could be recorded.
Although possible, P.W.7 has failed to secure the presence of
the Executive Magistrate for recording the dying declaration,
though the presence of Executive Magistrate could have
been availed and therefore, Exh.58 cannot be relied on. The
letter to record the dying declaration of the deceased is
received by the executive magistrate on 28.10.2006 and the

same is not exhibited, but is a part of record.
f) Moreover, the learned trial Court has failed to follow
the mandate of section 304 of the Criminal Procedure Code,
1973 inasmuch as, cross-examination of P.W.1 and P.W.2 is
at the instance of the accused persons and not by their
lawyer.
There is nothing on record to indicate, that the
learned trial Court had informed the accused persons of their
right to free legal aid as mandated by Section 304 of the
Cr.P.C. and denial by the accused persons to avail the same.
Thus, the same has entailed in ensuring fair trial to the
accused persons and therefore, the impugned judgment and
order of conviction is liable to be quashed and set aside,
submits the learned Counsel for the appellants.
5.
Learned Counsel for the appellants pressed into service
exposition of this Court in case of Dinesh Gopal Bhure vs

State of Maharashtra 1 and submits that if the victim is not
in a position to speak and when taken to hospital was in
unconscious state, in the said circumstances, alleged dying
declaration cannot be the sole basis for conviction.
It is
further submitted that the dying declaration is required to be
recorded by the Magistrate.
Absence of evidence to the
effect that condition of victim was so precarious that

Magistrate could not be summoned for, the prosecution is
bound to offer explanation or state something on record
He further invited our
about the condition of the patient.
attention to the judgment of the Supreme Court in case of
Meera vs State of Rajasthan 2 and in particular, Head
Note (A) and (B) thereof. He submits that if there is room for
doubt in that case, benefit of doubt should be extended to
accused – appellants. He invited our attention to para 19 of
the said judgment.
The learned Counsel for appellants invited our attention
to the judgment of the Apex Court in case of K.Ramchandra
Reddy and another vs. The Public Prosecutor 3 and in
particular, Head Notes (A) and (B) thereof. It is submitted
that if two views are possible on the basis of the evidence on
1 2003 CRI.L.J.3083.
2 2004 CRI.L.J.5038.
3 1976 CRI.L.J.1548(1).

is
record, the view which is favourable to the accused
required to be affirmed. He further invited our attention to
the judgment of this Court in case of Waman s/o Gulab
Kadam & Ors. Vs State of Maharashtra 4
and in
particular para 21 thereof and also the judgment of this Court
in case of Ashok
Pandurang Jadhav vs. State of
Therefore, the Counsel for the appellants submits
ig
thereof.
Maharashtra 5 and in particular, para 22, 23, 26, and 27
6.
that appeal deserves to be allowed.
The learned APP appearing for the State invited our
attention to the impugned judgment and order and also the
evidence on record and submits that the impugned judgment
and order is in consonance with the evidence brought on
record. It is submitted that there is dying declaration at Exh.
58 recorded by the Police Station In-charge.
There is
endorsement of the doctor that patient is conscious and
stable state of mind to give statement. It is submitted that
the said statement was read over to the deceased Farzana
and she stated that the same is correct. It is submitted that
there is corroboration to the dying declaration at Exh.58 by
oral dying declaration of Farzana to P.Ws.1, 2 and 4 and also
P.W. 5.
The medical evidence unequivocally indicates that
4 2011 ALL MR (Cri) 3334.
5 2011 ALL MR (Cri) 2105.

death is homicidal. The deceased died due to 100% burns. In
explanation
has
been
offered
the statement of the accused u/s 313 of Cr.P.C., no
as
to
under
what
circumstances, Farzana died at their house. It is submitted
that all the accused persons were sharing common intention.
Accused No.1 wanted to marry second time and, therefore,
all the accused are equally responsible for the death of
The learned APP invited our attention to the
judgment of
ig
Farzana. 
Supreme
Court
in
case
of
Amarsingh
Munnasingh Suryawanshi vs. State of Maharashtra 6
and submitted that minor contradictions in deposition of the
prosecution witnesses would not wipe out the version of the
victim in the dying declaration. It is submitted that when the
accused No.1 has taken a plea of alibi that he was in
company, he should have proved the same. He also invited
our attention to the another judgment of the Supreme Court
in case of Ramawati Devi vs. State of Bihar 7 and
submits that dying declaration recorded before the Police
Officer is admissible and can be relied for conviction. It need
not be recorded before the Magistrate.
Therefore, learned
APP relying upon the record and proceedings and also the
reasons recorded in the impugned judgment, submits that
the appeal is devoid of any merits and same may be
6 2008 ALL MR (Cri) 324 (S.C.).
7 AIR 1983 SC 164(1)

dismissed.
Since this is first appeal, we would like to re-appreciate
entire evidence on record.
The prosecution examined in all seven witnesses so as
7.
P.W.1 Sk.

to prove its case against the accused persons.
Yousuf Sk. Gulab is father of the deceased, P.W.2 Shaminbee
w/o Sk. Yousuf is mother of the deceased, P.W.3 Bharat
Pandharinath Garad is a panch witness, P.W.4 Ruksana
Shabbir Patel is the neighbour, who rushed immediately
towards the deceased and at the relevant time, deceased
told her that accused persons have set her on fire by pouring
kerosene. P.W.5 Shaikh Majid Sk. Dagdu is Police Constable
of Begumpura Police Station, who had taken the deceased in
the Hospital at the relevant time. P.W.6 Dr.Prashant Sukesh
Meshram is the Medical Officer who has made endorsement
on the dying declaration of the deceased showing her mental
and physical
condition of the deceased
at
the relevant
time. P.W.7 Raosaheb Shrirang Bavle is the PSI attached to
the MIDC Police Station who had recorded dying declaration
and carried out investigation of the case.

Exh.58 is the dying declaration of the deceased dated
8.
27th October, 2006. Exh.33 is the spot panchanama, Exh.54
is the copy of the letter given to the Medical Officer for
obtaining his opinion about the mental condition of the
deceased, Exh.59 is the letter of MLC dated 27.10.2006. Exh.
60 is the report of Chemical Analyzer, Exh.61 is the copy of
the letter given to the Magistrate for adding section 302 in
It appears that the accused persons have admitted
9.

the alleged crime.
following documents in the evidence u/s 294 of the Code of
Criminal Procedure namely, Exh.31 Post Mortem notes of
deceased, Exh.34 is the medical case paper of Ruksana Patel
showing that she sustained burn injuries on her right wrist.
Exh.35 is the inquest panchanama of the dead body of the
deceased.
Post mortem notes of deceased at Exh.31 show that
the deceased had sustained 100% burn injuries as mentioned
in the P.M. Notes. The Medical Officer has given his opinion
that the probable cause of death is due to burns and as such
there is no much dispute about the same. The deceased had
made dying declaration before P.W.7 Raosaheb Bavle, PSI.
P.W.6 Medical Officer has stated in his evidence that at the

relevant time, he had examined the said patient and found
that she was in conscious and fit state of mind to make a
statement and P.W.7 had recorded the statement in his
presence.
P.W.4 Ruksana Shabbir Patel is the neighbour of the
As stated earlier, she rushed to the spot and
accused.
P.W. 1 Sk.Yousuf Sk. Gulab who is complainant and
10.

extinguished fire.
father of the deceased, in his deposition before the Court at
Exh.24 stated that he has four daughters and one son. The
deceased was his daughter.
Accused Shaikh Rafiq is
husband of his daughter. The marriage of Shaikh Rafiq with
his daughter was performed three years prior to date of
incident.
After marriage, his daughter was residing along
with the accused at Malegaon.
They stayed there for two
years and thereafter, they shifted to Ranjangaon, taluka and
Dist. Aurangabad. All the accused persons used to beat the
daughter of P.W.1. They were not allowing him to meet the
daughter since his daughter could not beget a child.
He
made a phone call to his daughter through coin box and at
the relevant time, his daughter told him about the ill-
treatment at the hands of accused persons.
She informed

him on phone that accused were giving ill-treatment to her.
On 27th October, 2006, he received a phone call from
Ranjangaon that his daughter Farzana sustained burn
injuries.
He received said phone call at about 8 a.m.
Thereafter he himself, his wife and brother and his neighbour
went in Ghat Hospital, Aurangabad. He made inquiry with his
daughter about the happening of the incident, on which, she

had shown her four fingers to P.W.1 by which, he understood
that four accused persons had set her on fire.
He further
p.m.
stated that on the same day, his daughter died at about 2
He further stated that he made inquiry with his
daughter at the relevant time and she disclosed that three
accused persons have poured kerosene on her person and
her husband set her on fire.
He identified the accused
persons present before the Court to be the same persons. In
his cross-examination by accused No.1, he has stated that it
is not true to say that accused No.1 has not set his daughter
on fire. In his cross-examination by accused No.2, he stated
that accused No.2 set her daughter on fire.
In his cross-
examination by accused No.3, he has stated that his
daughter had disclosed the names of accused persons by
showing four fingers. However, he specifically admitted that
his daughter did not disclose names of four persons. Accused
Nos.1 to 4 had come in the Hospital and on that basis he said

In cross-examination by
that they committed alleged crime.
accused No.4, this witness stated that it is not correct to say
that the accused persons have not killed his daughter. He
further denied the suggestion that there was no quarrel
between the deceased and accused persons.
He further
denied that his daughter was not ready to cohabit with the
accused No.1 and was not liking him. He has also denied the

suggestion that he threatened the accused by saying that he
11.
would prosecute them.
P.W.2 Shaminabee w/o Sk. Yousuf was examined at
Exh.25 before the Court.
Farzana was her daughter.
husband of her daughter.
She deposed that deceased
Accused No.1 Shaikh Rafiq is
Their marriage has been
solemnized prior to six years of the date of incident. More or
less, this witness like P.W.1 Sk. Yousuf stated in her evidence
that there was ill-treatment at the hands of the accused to
her daughter and further her daughter used to disclose about
the ill-treatment at the hands of her in-laws.
It further
appears that the said ill-treatment was on account that her
daughter (deceased) could not beget child. She has also
stated that they went to the hospital and made inquiry, on
which she stated that four accused persons poured kerosene
on her person and her husband set her on fire.

examination-in-chief
that
the
In her cross-examination, she reiterated her version in
accused
persons
poured
kerosene and set her daughter on fire as, it was told by
Farzana to her.
She has denied the suggestion that her
daughter was residing at her house for the period of two
12.

months prior to incident.
P.W.3
Bharat
Pandharinath
Garad,
resident
of
Dattanagar, Ranjangaon, Taluka Gangapur was examined as
Panch witness to spot panchanama. In his evidence at Exh.
32 before the Court deposed that on 27th October, 2006 he
was called at the spot of offence by the police to act as
panch.
witness.
He stated that Dadarao Tarte was another panch
He had seen the spot of offence.
Room was
admeasuring 10 x 10 ft. One lady in burn condition was lying
there.
Kerosene can and one stove were there.
prepared panchanama.
Police
The said articles lying at the spot
were seized under the panchanama signed by this witness
and also other panchas. He identified the panchanama and
also his signature and also stated that colour of can was
white and he can identify the same if it is shown to him.
In his cross-examination, he stated that he is member

He
of Gram Panchayat of village Ranjangaon (Shenpunji).
further stated that the Wada (house) in which the incident
had taken place, is besides his shop. Immediately after the
incident, within five minutes he reached to the spot.
stated that the accused Shaikh Rafi q
and
accused
He
No.2
Shaikh Rashid used to leave their house during morning time
for the work. He further stated that he made phone call to

the police, on which, police van came there. Thereafter, in-
laws of the said lady came there. The body of the said lady
was covered by the clothes. Thereafter, said lady was kept in
police van in his presence.
Near about 30 minutes were
spent at the spot. It is stated by him that the said lady told
him that she sustained injuries due to flaring up of stove. He
further stated that they also noticed dough of wheat.
He
further stated that at the relevant time, accused No.2 Shaikh
Abdul Gafoor called his sons from the factory by making
phone call.
Thereafter, he sent the said lady in the vehicle
along with accused No.3 and 4.
13.
The prosecution witness No.4 is Ruksana Shabbir Patel.
In her deposition before the Court, she stated that she is
residing in the house of Shabbir Pathan as a tenant. At the
time of incident, the accused persons were residing in the
Wada of Bashir Pathan.
The incident occurred on 27th

October, 2006 at about 7 a.m. At the relevant time, she had
seen smoke coming out from the house of the accused. She
went towards house of the accused.
At the relevant time,
four accused who are before the Court and other two children
went away from the said house.
One dead body was in
burning condition. She brought water in a bucket from her
It was
house and extinguished fire of the said person.

Farzana who sustained burn injuries. She tried to extinguish
fire by means of pillow.
She asked Farzana as to what
happened, on which, Farzana told that her family members
set her on fire. Thereafter, police came there.
Thereafter,
she was covered with clothes and was taken in the vehicle to
the hospital. This witness was in the said vehicle. Farzana
was taken in GHATI Hospital.
14.
In her cross-examination, she stated that their houses
are adjacent to each other. Other six tenants were also
residing in the said Wada. This witness is residing in a
separate room as a tenant which is in front of house of the
accused. She shouted by saying smoke coming out of house
of the accused. She brought bucket of water from her house
for extinguishing fire of that lady. She stated that two to four
persons came for extinguishing the fire of the lady. However,
she is not able to remember names of those persons. She did

not tell names of the said persons even before the police.
She stated that more than 30 minutes were required for
sending the said lady in the hospital after noticing smoke
coming out of house of the accused. At the cost of repetition,
she further stated that she extinguished fire of that lady. She
further stated in cross-examination that Bharat Garad came
there. However, she stated that she is not aware whether
She has also narrated

Bharat Garad called vehicle there.
other details that police persons and other four – five persons
came there. She has specifically denied suggestion that she
is deposing falsely that on the date of incident she rushed
towards house of the accused by saying smoke coming out of
house of the accused and thereafter, she had extinguished
the fire of Farzana by pouring water. She specifically stated
that, it is not correct to say that she is deposing falsely that
at the relevant time, she had seen the accused persons going
away from their house. She has also specifically stated that
it is not correct to say that she is deposing falsely that she
did ask Farzana what happened on which she had stated that
her family members have set her on fire.
She specifically
stated that it is not correct to say that there were always
quarrels in between her and accused Nos.2 and 4.
She
specifically stated that it is not correct to say that she is
deposing falsely with intent to take revenge of accused Nos.2

She has denied every suggestion given by the
and 4.
defence that she was not present at the spot or she did not
accompany Farzana to the hospital.
Therefore, P.W.4
Ruksana’s cross-examination has not yielded any material
which could be said to be favourable to the defence. On the
contrary, in her cross-examination, she has reiterated her
The presence of this
statement in examination-in-chief.

witness at the spot is natural. This witness reached the spot
first in time and extinguished fire by pouring water on
She has specifically stated that four accused
Farzana.
persons to whom she identified beofre the Court and other
two children left the house when she went to the spot i.e.
House of Farzana and the accused wherein she saw Farzana
in burning condition and thereafter, she went to her house
and brought water so as to extinguish fire. The fact that she
was present at the spot, though denied by the accused in
their statement u/s 313 of Cr.P.C., it is evident from her
cross-examination that she was present on the spot. She was
examined by the doctor.
Exh.34 is injury certificate of
Ruksana P.W.4, which shows 2% superficial to deep burns
over right wrist.
Burn injuries on Ruksana’s right wrist lends
support to the prosecution story that Ruksana went to the
house of the accused and extinguished fire and she saw that
four accused along with two children left the house when she

went to the spot i.e. House of the accused. As already
observed, the accused persons have admitted the medical
case papers of Ruksana Patel (P.W.4) showing that she
sustained burn injuries on her right wrist. Said certificate is
at Exh.34. As already observed, her evidence in cross-
P.W.3’s evidence in examination-in-chief appears to be

15.
examination is not shaken in any manner.
narration of conducting of spot panchnama and he was panch
However, in cross-examination, he
for spot panchanama.
stated that deceased Farzana told him that she burnt due to
explosion of stove. However, as it is evident from the spot
panchanama and recovery, which is established through
prosecution witness that there was recovery of kerosene can
and pieces of sari of the deceased. However, there is nothing
to indicate that the stove exploded and deceased died due to
accidental burns. It is also relevant to mention that kerosene
smell was coming from house of the accused. It is mentioned
in the spot panchanama, which is duly proved, that in the
said room i.e. house of the accused, there was strong smell
of kerosene. All three blades of ceiling fan appear to be
bended due to flames of fire. There are burnt and melted
pieces of nylon sari, stuck to the flooring of the room. Said
pieces of sari had smell of kerosene. There is one white 10

liter plastic can and upon opening its lid, it smells of
kerosene. There is smell of kerosene in the house. In the
house, there are household articles and in south corner, there
is dough of wheat in a still plate. The clothes in daily use in
the room appear blackish due to fire and walls around also
appear blackish.
purposes.
Afore
stated
contents
of
spot
investigation
Can and pieces of sari are seized for
ig
panchanama in vernacular are, as under:
[सदर रम मधये रॉकेलचा उग वास येत असून सदर खोलीतील िसिलग
फानचया पटटा ितनहीही आगीचया जवाला मुळे वाकलेलया िदसत आहे, खोलीत
फरशीवर नायलॉन साडीचे जळलेले तुकडे िवतळू न फरशीला िचकटलेले आहेत .
सदर तुकडाचा वास घेता रॉकेलचा येत आहे. तया बाजूलाच एक १० िलटरची
पांढरी पलाििटक कॅ न असून ितचे बुच उघडू न पाहता वास रॉकेलचा येत आहे.
घरात ससार उपयोगी सामान असून खोलीतील दििण कोपऱयात एका िटीलचया
ताटामधये गवहाची किणक ितमबलेली िदसत आहे. खोलीतील घरगुती वापराचया
कपडांना आगीचया जवालामुळे धुराने काळे झालेले िदसत आहे तसेच चौबाजुला
िितीपण धुरामुळे काळवडलेलया िदसत आहेत. तपासकामी कॅ न व साडीचे तुकडे
जप करणयात आलेले आहे.]
There is nothing to indicate that the stove exploded
and therefore, there was accidental fire and in said fire, the
deceased caught fire and died. Upon careful perusal of the

spot panchanama, it is abundantly clear that not only that
there was strong smell of kerosene but, even the ceiling fan
was damaged. As it has come in the evidence of P.W.4 that
she extinguished the fire by pouring water on Farzana that by
itself indicates that door of the room was open and in case of
accidental fire / burn, there might be an attempt on the part
of the deceased to come out of the room or she might have

shouted for help. Apart from that in case of accidental fire,
accused persons should have attempted to extinguish fire. It
has come in the evidence of P.W.4 Ruksana that when she
rushed to the spot, the accused persons four in numbers with
two children left the said house. Though P.W.3 Bharat Garad
has stated in his evidence that accused Nos.3 and 4 arrived
at the spot after he went to the spot. Their subsequent arrival
at the spot cannot be taken as they were not present on the
spot at the time of the incident. Since P.W.4 Ruksana in clear
words stated that when she reached the spot, accused
persons left the house. It has come in the evidence of P.W.4
that P.W.3 came to the spot when she extinguished fire.
Therefore, P.W.4 Ruksana reached the spot prior in time and
P.W.3 came later on.
Though it is stated by the P.W.3
Bharat Garad in his evidence that father of the accused Nos.1
and 2 called them on telephone and then they came to the
spot, the defence has not placed anything on record to

suggest that at the relevant time accused Nos.1 and 2 were
at their work place. It is true that the accused No.1 has taken
defence that at the relevant time, he was in the company.
When he has taken a specific plea that he was in company,
he should have led evidence to prove that at the relevant
time, he was in company or at his work place.
It cannot be
forgotten that the incident had taken place in the morning

hours at 7 a.m.,in the house of the accused and, therefore,
the facts which are within their special knowledge, they were
bound to explain / state in view of the provisions of Section
106 of the Indian Evidence Act.
However, they have not
offered any explanation about the burns sustained by the
deceased and her subsequent death.
Throughout their
statement under Section 313 of Cr.P.C., except denial, they
have not stated under
what circumstances, deceased
Farzana sustained burn injuries, in their own house.
16.
Though the accused in their statement u/s 313 of
Cr.P.C. have stated that P.W.4 Ruksana was not residing in
the same Wada, the presence of Ruksana at the spot has
been established.
Her presence has been established by
medical certificate showing that this witness suffered 2%
burns on her right wrist and P.W. 4 in her cross-examination
also has firmly stated that she went to
the spot and

extinguished the fire and Farzana told her that the accused
The
persons have poured kerosene and set her on fire.
defence Counsel did ask a question to this witness P.W.4 that
there were always quarrels in between her and accused Nos.
2 and 4 and the said suggestion was denied by her.
But,
giving such suggestion about quarrel between P.W.4 and
accused Nos.2 and 4, firmly established that this witness is
ig
residing in the same tenanted premises near house of the
accused. In her cross-examination, she has specifically
denied the suggestion of the defence that at the relevant
time she has not seen the accused leaving their house.
17.
P.W.5 Shaikh Majid Sk. Dagdu at the relevant time
working as Police Constable at Begumpura Police Station,
Aurangabad, deposed before the Court that on 26th October,
2006 during night time, he was attached to MIDC Waluj Police
Station.
He was available at police station till 5 a.m., on
27.10.2006. On that day, he went at Ranjangaon as per the
directions of Police Head Constable Dandge.
He saw that
persons had gathered at the house of Garad. One lady had
sustained burn injuries.
He had taken away her in Ghati
Hospital by mobile van. Said lady, on the way to hospital told
this witness that her husband, in-laws and brother-in-law
have set her on fire.
The said lady was able to talk while
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27
Doctor had asked her name on which, she had
No.22-23.
proceeding towards Aurangabad. She was admitted in Ward
disclosed her name. PSI Bavale recorded her statement.
In cross-examination, though he stated that there is no
mention in his statement that the said lady has made such a
has
proceeding
not
towards
been
proved
by
Aurangabad,
defence
this
through
ig
omission
while
statement
Investigating Officer.
This witness in cross-examination
further stated that, the Medical Officer was examining the
said patient in the said ward at the relevant time and he was
outside ward at that time. He has specifically stated that it is
not correct to say that the said Farzana had not disclosed her
name in his presence.
18.
Apart from evidence of P.W.5, it has come in the
evidence of P.W.1 and P.W.2 that when they reached to the
hospital, Farzana by showing four fingers indicated her father
that accused persons poured kerosene on her and set her on
fire.
P.W.2 mother of the deceased also deposed to that
effect.
The evidence of P.W.1 and P.W.2 shows that since
deceased Farzana was not able to beget a child, all the
accused persons ill-treated her.
Accused No.1 wanted to
marry second time and, therefore, all the accused persons ill-
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28
19.
treated Farzana.
Upon perusal of Column No.15 to 17 of the post-
mortem notes, it appears that deceased Farzana
following injuries:
ig
“Total 100% superficial to deep burns.
1) Head, neck, face
2) Anterior trunk
3) Posterior trunk
4) Right upper limb
5) Left upper limb
6) Right lower limb
7) Left Lower limb
8) Perineum
Total
suffered
: 9%
: 18%
: 18%
: 9%
: 9%
: 18%
: 18%
: 1%
:100%
Deep burns seen over anterior & posterior aspect of the
trunk; rest of the burns are superficial in nature. Vital
reaction present, skin peeled off at places, leaving
behind redden area.
Hairs burnt & singed e/o
vivisection mark on medial aspect of right ankle.”
20.
Upon careful perusal of the injuries suffered by the
deceased, it is abundantly clear that she suffered 100%
superficial to deep burn injuries on various parts of her body.
Probable cause of death has been stated as shock due to
burns.
21.
In her dying declaration at Exh.58 recorded on 27th
October, 2006 at 9 a.m., i.e. on the day of incident,
deceased Shaikh Farzana Sk. Rafiq stated that, she got
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29
She has no
married with Shaikh Rafiq before three years.
any child. Since she had no child, her husband, father-in-law,
mother-in-law and brother-in-law were telling her that her
husband i.e. Accused No.1 wants to perform second marriage
and they used to quarrel and ill-treat her.
On 27th October, 2006 at 7 a.m., when she was in her
ig
husband’s house, her husband, father-in-law, mother-in-law
and brother-in-law started quarreling with her saying that her
Rafiq,
husband wants to have second wife and husband
father-in-law Abdul, mother-in-law Amina and brother-in-law
Rashid poured Kerosene from a can on her person and set
her on fire and, therefore, she is burnt. Her husband, father-
in-law, mother-in-law and brother-in-law set her on fire with
an intention to kill her. The entire body is burnt and she has
complained against all the four accused.
Her statement is
read out to her and she stated the same to be correct.
On careful perusal of the said dying declaration, there
is endorsement at Exh.53 by Medical Officer to the effect that
‘the patient is conscious and in stable state of mind to give
valid statement. Statement is taken in front of me’. Below
this endorsement, there is signature of the doctor, date
27.10.06 ad time 9.00 a.m. Said dying declaration also bears
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30
22.
thumb impression of deceased Farzana.
P.W.6 Dr. Prashant Sukesh Meshram who was working s
Medical Officer at the relevant time in Ghat Hospital,
Aurangabad,
deposed
before
the
trial
Court
and
his
deposition is at Exh.52. He deposed that on 27.10.2006, he
working
as
medical
officer
at
GHATI
Hospital,
was
The patient namely Shaikh Farzana Shaikh
ig
Aurangabad.
Rafiq was admitted in burn ward.
He examined the said
patient. The said patient was in conscious and in state of fit
mental condition to make statement at the relevant time.
he
Accordingly,
signature.
made
endorsement
which
bears
The said endorsement is at Exh.53.
his
He
specifically stated that the statement of Farzana was
recorded in his presence.
He received letter of PSI MIDC
Waluj for recording statement. He identified the copy of the
said letter being the same, which is at Exh.54.
The learned Counsel for the appellants / accused
submitted that in cross-examination of this witness, he has
stated that he cannot tell whether the patient was in critical
condition or not, percentage of her burn injuries and
therefore, said witness is not believable and his evidence
deserves to be discarded. However, upon careful perusal of
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31
the cross-examination, this witness has specifically stated
patient.
that he spent 5 to 10 minutes for examination of the said
Apart from that, he has denied the suggestion that
he made said endorsement at the instance of the police
without examining the patient.
Therefore, it appears that
P.W.6 Dr. Prashant Meshram not only carefully examined the
23.
ig
patient but, gave endorsement which bears his signature.
P.W.7 Raosaheb Shrirang Bavle, working as P.S.I. MIDC
Police Station at the relevant time, recorded the dying
declaration at Exh.58.
In his examination-in-chief, he stated that in the
Exh.57.
His evidence before the Court is at
month of October, 2006 he was working as P.S.I., MIDC Waluj
Police Station. On 27.10.2006 he went to GHATI hospital for
recording statement of patient namely Shaikh Farzana. He
gave letter to the medical officer for obtaining his opinion as
to whether the said patient was able to make a statement or
not. He was shown copy of the said letter and he stated that,
the said letter bears his signature and its contents are
correct. He specifically stated that, the doctor told him that
the patient is able to make statement.
He recorded
statement of the said Farzana in the presence of the doctor.
The said patient made a statement that she was not
begetting a child, due to which, she was ill-treated and all
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32
accused poured kerosene on her person and set her on fire.
He obtained an endorsement of the medical officer on her
statement. He obtained thumb impression of the patient on
the said statement. He specifically stated that he read over
the contents of the statement to the said patient on which
she had admitted its contents.
The medical officer has
examined the said patient. The statement of Farzana was
signature.
ig
shown to him. He stated that the said statement bears his
Its contents are correct.
He has reduced the
contents of the said declaration in writing as per the say of
the deceased. He further stated that he thereafter went to
He further stated about the preparation
the police station.
of spot panchanama. The spot of offence is the house of the
accused. He seized pieces of sari in burnt condition and a
plastic can of kerosene. The said spot panchanama is at Exh.
33. He further stated that on 27.10.2006 said patient died in
the hospital. He received MLC letter dated 27.10.2006 which
is at Exh.59.
Thereafter he went to GHATI hospital and
prepared inquest panchanama. He identified his signature on
inquest panchanama. He stated that the post-mortem on the
dead body of the deceased was carried out by the medical
officer. He further stated that he recorded statement of the
witnesses. He arrested the accused. He has also stated that,
seized muddemal
property was sent to the Chemical
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33
He produced
Analyzer by forwarding letter to that effect.
34 of IPC was added subsequently.
C.A. Report. He stated that offence punishable u/s 302 r.w.
This witness was cross-examined at length. According
to the learned Counsel for the accused, the dying declaration
recorded by this witness is not genuine and same cannot be
ig
relied upon to convict the accused. According to the defence
Counsel, this wittiness has admitted in his cross-examination
that when the dying declaration was recorded, the only
patient was there and the doctor was sitting 15 to 20 feet
away from the patient. It is further argued that this witness
has admitted that patient was in critical condition.
It is
further argued that this witness has stated that, he prepared
the letter to medical officer within one and half minute and
within 30 seconds, doctor told him to record the statement. It
is further submitted that this witness has not satisfied himself
that the deceased Farzana was in fit mental condition to give
statement.
In this respect, as rightly submitted by the learned APP
relying upon the exposition of the Supreme Court in case of
Amarsingh Munnasingh Suryawanshi (supra), that minor
contradictions in deposition are required to be ignored when
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34
there is an endorsement of the medical officer that patient
conscious and in a fit mental condition to give dying
declaration.
As already observed, P.W.6 Dr. Prashant
Meshram, medical officer in his statement has categorically
stated that he examined the patient for 5 to 10 minutes and
throughout recording the statement, he was present there.
Therefore, medical officer himself has examined the patient
ig
and found that the patient was in a fit mental condition to
give said dying declaration. Therefore, minor contradictions
effect
of
in the evidence of P.W.7 about timings would not nullify the
dying
declaration,
which
is
recorded
after
endorsement of the medical officer and also the said dying
declaration was read over to the patient and she admitted
the contents of the said dying declaration to be correct and
the same has been signed by the P.W.7 also.
In the said
dying declaration, in clear words, Farzana stated that all the
four accused persons poured kerosene and set her on fire
with an intention to kill her. She has also stated that all the
accused started quarreling by saying that accused No.1
wanted to perform second marriage and to have second wife.
The dying declaration clearly implicates all the accused and
attributes role to them that, they were sharing common
intention to kill deceased.
In the present case, there is
corroboration to the dying declaration by the evidence of
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35
P.W.4 Ruksana is the important witness,
P.Ws.1, 2 and 4.
who immediately rushed to the spot after seeing smoke
coming out of house of the accused and she saw that Farzana
was in burning condition. She brought water to extinguish
fire and there is immediate narration by Farzana to this
witness wherein she stated that all the four accused poured
kerosene and set heron fire. This witness has specifically
ig
stated that when she went at the spot, all the four accused
persons and two children left the house i.e. place of incident.
It appears that there was no attempt by any of the four
accused to extinguish the fire. The fact that P.W.4 Ruksana
sustained burn injuries to the extent of 2% as it is evident
from the medical certificate produced on record by the
prosecution, her presence on the spot was natural inasmuch
as she was residing in front of
the house of the accused.
Injury certificate of Ruksana is admitted by the accused. The
Chemical Analyzer’s report also supports the prosecution
case as kerosene residues were detected on the articles sent
i.e. Can and pieces of sari.
24.
The learned Counsel for the appellants
submits that
the trial Court has failed to follow the mandate of section 304
of Cr.P.C., 1973 inasmuch as, the cross-examination of P.W.1
and P.W.2 is at the instance of the accused persons and not

by their lawyer. In fact, upon careful perusal of the original
record & proceedings, it appears that the cross-examination
of P.W.1 and P.W.2 was by the accused persons on 28th June,
2010. The original record shows that the Advocate for the
accused, on the same date, placed a pursis on record that
the accused have not given any instructions nor visited his
Accordingly, the Advocate filed ‘no instructions
office.

pursis’. The accused / appellants themselves proceeded to
cross-examine P.W.1 and P.W.2. It further appears that on
29th June, 2010, the accused persons filed an application
praying for engaging some other advocate.
Therefore, on
28th June, 2010 when the accused persons themselves cross-
examined P.W.1 and P.W.2, their advocate was on record, he
was not discharged and further prayer for engaging another
advocate was on next day i.e. 29.6.2010. Section 304 of the
Cr.P.C., was not rightly invoked by the trial Court since the
accused were represented by a pleader engaged by them.
Section 304 of the Code would come to the aid of the
accused when they are not represented by a pleader and
where it appears to the Court that the accused are not having
sufficient means to engage a pleader. Therefore, there is no
substance
in
the
contention
of
the
Counsel
for
the
appellants / accused that the Sessions Court should have
invoked the provisions of section 304 of Cr.P.C.

The accused No.1 in his statement recorded u/s 313 of
25.
37
Cr.P.C., though denied that P.W.4 Ruksana was not residing
in the said building near the house of the accused, it has
come on record that Ruksana was residing near house of the
accused. The suggestion given by the defence Counsel that
she had some dispute with the accused Nos.2 and 4 is
ig
suggestive of the fat that Ruksana was residing near the
house of the accused. The fact that she sustained burn
injuries also unequivocally demonstrates that she was
residing there and she extinguished fire. The accused No.1
while answering question No.11 stated that at the relevant
time, he was in the company. It means that he was at his
work place. Except saying so, he did not led any evidence or
place on record any document showing that on the date of
incident, at the relevant time, he was in company. On the
contrary, evidence of P.W.4 Ruksana unequivocally indicates
that when she went to the spot, all the four accused persons
with two children left the house. When it was contention of
the accused No.1 that he was in company at the relevant
time, it was for him to establish and prove that fact. The spot
of the incident is the house of the accused and incident had
taken place at 7 a.m., and therefore, the accused persons
were bound to offer explanation.
However, none of the
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38
None of the
accused has stated anything in that respect.
accused has taken defence specifically that Farzana died due
to accidental burns. The case in hand is not a case of suicidal
death. From medical evidence, it is clearly established that
death is homicidal one.
The accused No.2 Shaikh Abdul
Gafoor s/o Shaikh Babamiya, while answering question No.8
that P.W.3 Bharat Garad was a panch witness and he had
ig
seen spot of offence, kerosene can, stove, room admeasuring
10x10 ft., and one lady in burnt condition was lying there.
What he has to say. To this, this accused replied that it is
correct. That clearly establishes that spot of offence was the
house of the accused. The question NO.11 i.e. Further it has
come in her (P.W.4 Ruksana) evidence that at relevant time
you accused along with others including two daughters went
away from the house. One dead body was lying in burning
condition there. She has brought water in the bucket from
the house and she has extinguished the fire of Farzana.
What you have to say about it?
While answering this
question, the accused No.2 stated, “we were there.” While
answering question No.29, this accused stated that the
deceased was not liking her husband. Mother of Farzana had
quarreled with his wife. His son was not talking properly i.e.
“totara” and further stated that they are poor. Except this,
this accused has not stated anything about the incident. This
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39
accused has specifically admitted their presence at the spot
26.
while answering Question No.11.
Accused No.3 Shaikh Rasheed s/o Shaikh Abdul Gafoor,
in his statement u/s 313 of Cr.P.C., except denial, has not
stated anything.
ig
Accused No.4 Shaikh Ameenabi w/o Shaikh Abdul
Gafoor in her statement u/s 313 of Cr.P.C., while answering
question No.29 stated that they have not done anything. She
(deceased) was not liking her husband.
27.
It appears from perusal of the original record that a
letter was written by the Police Inspector, MIDC Waluj Police
Station to the Taluka Executive Magistrate on 27th October,
2006 requesting therein for recording statement of the
deceased.
Though it is contended by the Counsel for the
appellants / accused that the accused No.1 was residing in a
separate room and accused Nos.2 and 4 were residing in a
separate room and accused No.3 was residing in separate
room, the fact remains that the said rooms are in the same
building. It appears that there are in all six rooms. Out of
that, three rooms are occupied by the accused / appellants.
Upon careful perusal of statements of all the accused u/s 313
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40
of the Code, it appears that all the adverse circumstances
28.
were put to them.
Upon considering the evidence on record in its entirety,
it appears that the spot of incident was house of the accused,
the incident had taken place at 7 a.m. There was recovery of
burnt pieces of sari and kerosene can from the spot. Spot
ig
panchanama has been proved by the prosecution through
P.W.3 and the Investigating Officer. Upon careful perusal of
the spot panchanama, it is crystal clear that there was strong
smell of kerosene. Even the ceiling fan was damaged / burnt.
It is a fact that
The victim sustained 100% burn injuries.
Ruksana P.W.4 was residing as a neighbour of the accused
and she immediately rushed to the spot seeing smoke
coming out of house of accused and extinguished the fire by
pouring water on the person of deceased, she noticed all the
accused persons along with two children left the house when
she went to the spot of incident, there is nothing on record
indicating that the accused persons tried to extinguish fire
and in the statement of one of the accused u/s 313 of Cr.P.C.,
it has come on record that they were present on the spot.
The defence of the accused No.1 that he was in company,
has not been proved except bare statement u/s 313. On the
contrary, the evidence on record unequivocally indicates that
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41
all the accused persons left the spot with two children as
stated by P.W.4 Ruksana. The presence of Ruksana at the
spot was natural she being neighbour of the accused.
The victim was taken by police van in which she made
oral dying declaration to P.W.5. In the hospital, by showing
P.W.2 also deposed that the victim has
ig
set her on fire.
four fingers, she communicated by gesture that four accused
narrated her the incident. P.W.3 has been examined only as
a panch witness. The evidence of P.W.6 and P.W.7 proves
the dying declaration at Exh.58.
There is endorsement of
P.W.6 at Exh.53 on Exh.58 that the patient was conscious and
in a fit mental state to give statement. He has stated that for
5 to 10 minutes, he examined the patient and thereafter,
endorsement was given by him and accordingly, in his
presence
the Investigating Officer
declaration.
recorded the dying
Though, there are minor contradictions in the
evidence of the Investigating Officer i.e. P.W.7, those minor
contradictions would not nullify the version in the dying
declaration that the accused persons poured kerosene on the
person of the victim and set her on fire with an intention to
kill her.
The contents of the dying declaration and other
evidence placed on record by the prosecution would
unequivocally indicate that the accused persons
were
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42
sharing common intention and, therefore, each of the
death of the deceased Farzana.
accused was responsible for the commission of offence and
The medical evidence
unequivocally indicates that death of deceased is homicidal.
The Chemical
Analyzer’s
report
lends
support to
the
prosecution case that kerosene residues were detected on
There is cogent, convincing
pieces of sari and plastic can.
ig
evidence on record in the form of dying declaration of the
deceased Farzana. We are fully aware about the parameters
laid down by the Supreme Court in case of Khushalrao vs
State of Bombay 8 while appreciating evidence in the form
of dying declaration.
In the present case, there is enough
corroboration to the dying declaration in the form of oral
dying declaration made by the deceased to P.W.1 and P.W.2
and even P.W.5.
The medical evidence also corroborates
version of the prosecution.
29.
Therefore, upon re-appreciating the entire evidence,
we are of the view that the prosecution has established the
case beyond reasonable doubt. The view taken by the Addl.
Sessions Judge Court, Aurangabad is in consonance with the
evidence on record.
The Sessions Court has properly
appreciated the evidence and reached to the correct
8 AIR 1958 SC 22.
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43
conclusion to convict the appellants / accused for the offence
punishable u/s 302 r.w. 34 of IPC and other offences alleged
against them.
30.
Therefore, the inevitable conclusion is that the appeal
ig
sans merits. Criminal Appeal stands dismissed.
[V.M. DESHPANDE, J]
[ S.S. SHINDE, J ]
.....
Kadam/*.
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