isarar Ahmed Fateh Mohamed Ansari Vs. State of Maharashtra - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 40,000/-,but due to poverty of her parents the demand of the accused was not satisfied. 40,000/- as it was not satisfied. the imminent disclosure of what had actually happened was made by rumana to her parents ruksana and alamgir as well as p. 14. his evidence clearly shows that when rumana was in burnt condition brought to the hospital by police and her father, he asked her about burn injuries and she informed that the burns were caused by her husband with kerosene. it must be noted that even assuming for a moment that parents had opportunity to tutor rumana to speak against the accused, still independent witness like surendra singh had no reason to state false against the accused. however, it is well settled that the dying declaration recorded by police personnel cannot be discarded on that ground alone as there is no requirement of law that dying declaration must necessarily be recorded by magistrate. the court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 2 ruksana has deposed about the demands of the accused and subjecting rumana to cruelty to get his demand satisfied. in our view, the evidence of ruksana, though she is mother of deceased rumana, and, therefore, was best witness, cannot be accepted for simple reason that the investigating officer has not recorded a statement under section 161 of cr. 10. in view of this evidential position, we are totally satisfied that the learned trial judge has rightly appreciated the evidence and, therefore, reasoning adopted and findings recorded by him deserve to be confirmed.p.v. kakade, j. 1. the appellant has preferred this appeal against the judgment and order dated 9th july, 1999 passed by special judge (atrocities on women) and additional sessions judge, thane in sessions case no. 232 of 1997, wherein the appellant was convicted for commission of offence punishable under sections 302, 304b and 498-a of the indian penal code. he was sentenced to suffer life imprisonment and to pay fine of rs. 100/- in default to undergo r.i. for one month on first count and again sentenced to suffer life imprisonment for second count but no separate sentence was passed for offence under section 498-a of the indian penal code. the substantive sentences were directed to run concurrently.2. the facts giving rise to the present case, in short, are thus-3. the accused was married to one rumana, who was the daughter of p.w. 2 ruksana and step-daughter of p.w. 4 alamgir, about three months before 2.2.1997. the spouses were co-habiting together in the house of the accused at handi compound, bhiwandi while the parents p.w. 2 ruksana and p.w. 4 alamgir of rumana were residing at azami nagar, bhiwandi. some days after the marriage, the accused started subjecting rumana to cruelty as he wanted to have rs. 40,000/ - from her parents to purchase a room. for that purpose he used to physically and mentally harass her. they had also approached her parents one month after the marriage to demand the amount of rs. 40,000/-, but due to poverty of her parents the demand of the accused was not satisfied. on the night between 1.2.1997 and 2.2.1997 the accused and rumana were in the home. the accused started harassing her with his demand of rs. 40,000/- as it was not satisfied. he picked up quarrel with her. at that time, rumana expressed her desire to go to the parental home. the accused took it offending. he poured kerosene on her and set her on fire. she shouted. the people in the vicinity gathered and one of them approached her parents and informed that rumana was burnt. her parents p.w. 2 ruksana and p.w. 4 alamgir rushed to the house of the accused. they found that rumana had sustained burns. the accused was also present there. at that time rumana told that the accused had set her on fire after pouring kerosene. the parents took rumana to indira gandhi memorial hospital, bhiwandi where the medical officer p.w. 1 g.a. khan was on duty. at that time, 3.15 a.m., the medical officer asked rumana about the history behind the burns and at that time rumana told him that her husband-accused isarar ansari caused the burns with kerosene. the medical officer examined rumana and found that she had sustained 99% burns. her body was smelling of kerosene. she was conscious and able to talk. then he gave information to bhoiwada police station about the burnt rumana taken to the hospital.in response to the message received from the igm hospital, p.s.i. p.w. 7, d.s. jadhav, who was on duty in bhoiwada police station, immediately rushed to the hospital. he got confirmed from the medical officer that rumana was conscious and in a condition to talk. thereafter, he recorded statement of rumana in presence of the medical officer dr. khan. he obtained her thumb impression below the statement and also signed the statement. he also obtained the endorsement of the medical officer on the statement. the endorsement was to the effect that the patient was conscious and it was given in his presence. then, p.s.i. carried the statement to bhoiwada police station and registered a crime c.r. no. i-8/97 under section 307 of the indian penal code against the accused at 4.30 a.m. he further entrusted investigation to police inspector, bhaskar bhangale. during the course of the investigation he visited the place of the occurrence and drew the panchanama of the spot. in which course various incriminating articles were seized. he arrested the accused at 9.00 a.m. on 2.2.1997. he sent the accused for medical examination. in the meantime, burnt rumana was transferred from igm hospital, bhiwandi to j.j. hospital, mumbai for further treatment. where p.s.i., p.w. 9 s.b. irani recorded statement of rumana in presence of the medical officer, p.w. 8 dr. h.g. shenoy, after getting confirmed that she was conscious and fit to give the statement. he carried the statement to j.j. marg police station, mumbai. despite medical treatment rumana succumbed to the burns. on 5.2.1997 the offence against the accused was converted into section 302 of the indian penal code along with other counts. the post-mortem examination was conducted and the burn injuries were found sufficient in ordinary course of nature to cause death. the articles seized in the course of the investigation were sent for examination to the chemical analyser, whose report was received, which is part of the record. on completion of the investigation the charge-sheet was sent to the court of law. the learned magistrate committed the case to the court of sessions.4. the learned sessions judge framed the charges against the accused. the accused pleaded not guilty. the defence of the accused is that of total denial of any criminal liability. according to the defence, the burns suffered by rumana were totally accidental and in fact the accused tried to extinguish the fire with which his hands were burnt. the prosecution led its evidence at length. on which basis, the learned trial judge came to the conclusion that the evidence on record was sufficient to bring home the guilt and, therefore, proceeded to convict and sentenced the accused in aforesaid manner.hence the appeal.5. we have heard mr. indrajit kulkarni, the learned counsel for the appellant and mr. shaikh, the learned a.p.p. for the state at length. we have also perused the entire evidence on record.6. as can be seen from the entire evidence on record it is seen that several dying declarations which came to be recorded in the course of the investigation, and, therefore, it would be just and proper on our part to appreciate the evidence pertaining to such declaration in order to ascertain whether those declarations and other circumstantial evidence on record are sufficient to bring home the guilt of the impugned offence.it is not in dispute, from the available evidence, that rumana suffered 99% burn injuries. the learned trial judge has categorically examined the evidence on record in order to come to the conclusion that it was homicidal death and not accidental death as sought to be suggested on behalf of the defence. as noted earlier this is a case involving three written dying declarations of rumana besides her oral dying declaration before her parents, which was immediately made after the incident. the first dying declaration came in the form of oral dying declaration. the imminent disclosure of what had actually happened was made by rumana to her parents ruksana and alamgir as well as p.w. 3 surendra singh, who had reached the scene. ruksana in her deposition has stated that when she inquired with rumana as to how she sustained burns, rumana informed her that it was the accused who had picked up quarrel with her saying that they would not paying money and, therefore, poured kerosene upon her and set her on fire. similar is the version of p.w. 3 surendra singh, who has stated that he reached on the scene when he heard the commotion. p.w. 4 alamgir, father of rumana, has also deposed in the same fashion. it is significant to note that p.w. 3 surendra singh is an independent witness, who had just reached the scene of incident out of curiosity and came to know about the facts and has deposed in plain manner. therefore, the oral dying declaration made to all these three witnesses provided due corroboration to the written dying declarations made by rumana on three occasions till her death.7. the written dying declaration, according to the prosecution, first in time is the history recorded by dr. khan when rumana was taken to igm. hospital, bhiwandi. medical officer khan was on duty as a medical officer on the night between 1.2.1997 and 2.2.1997 in the said hospital and examined rumana and issued medical certificate vide ex. 14. his evidence clearly shows that when rumana was in burnt condition brought to the hospital by police and her father, he asked her about burn injuries and she informed that the burns were caused by her husband with kerosene. the history was accordingly recorded by the witness dr. khan which in our considered view, would amount to dying declaration under the law. it must be noted that the medical officer had no grudge against the accused and, therefore, his evidence is totally trustworthy especially when he has recorded in his certificate to the effect that rumana was conscious and was able to speak while he recorded history. therefore, we have no hesitation to accept the history recorded by dr. khan to be the first dying declaration of rumana attributing the crime squarely to the accused person.the second dying declaration comes by way of statement recorded by the police which was ultimately treated as fir on which basis the offence was registered against the accused. this statement ex, 40 is recorded by p.s.i. jadhav, p.w. 7 of bhoiwada police station shortly after burnt rumana was removed to igm hospital bhiwandi during night. perusal of the said statement also shows that rumana had attributed the entire acts of pouring kerosene and setting her on fire to the accused. furthermore she has also given the reason why she had been set on fire i.e., unfulfilled monetary demands. this statement, which assumes legal status of dying declaration after the death of rumana was also recorded by the concerned psi after confirming from the medical officer dr. khan that rumana was conscious and able to talk. therefore, from the evidence of psi and medical officer it is clear that after burnt rumana was taken to the hospital the medical officer informed the police station about the burnt rumana and in response thereto psi rushed to the hospital immediately on the same night. both the witnesses deposed in one voice that rumana was conscious and was in condition to talk. the statement is also seen to be recorded in presence of medical officer and thumb impression of rumana was obtained on the statement after it was completed and the police officer had signed it as proof of attestation. thereafter the medical officer made his endorsement on the statement itself to show that rumana was conscious and statement was recorded in his presence. it is to be noted that rumana was in igm hospital, bhiwandi for a period of 30-45 minutes. thereafter she was referred to jj. hospital mumbai. this is the reason why the police thought it fit to record her statement as there was no time to call the special executive magistrate to record dying declaration of rumana. at any rate, on perusal of the evidence of surrounding circumstances, there cannot be any doubt whatsoever about the authenticity and genuine nature of the during declaration, which was treated as fir on which basis the offence was registered by bhiwandi police.8. the third dying declaration was recorded at j.j. hospital while rumana was moved there from bhiwandi. it was recorded by psi p.w. 9 irani from j.j. marg police station after rumana was transferred to that hospital at 5.00 a.m. on 2.2.1997. from the evidence of psi irani and the medical officer p.w. 8 from j.j. hospital it is seen that the psi recorded rumana's statement in the presence of dr. shenoy and that too after the medical officer had examined and found rumana was conscious and in a condition to give statement. perusal of all these statements, therefore, leave no doubt whatsoever that the author to the crime is none else than the accused. mr. kulkarni the learned counsel for the appellant tried to assail the dying declarations on several grounds. it was submitted on behalf of the appellant that so far as first dying declaration i.e., history recorded by dr. khan was concerned, there was every possibility for the parents of rumana to tutor her to give false statement. we prefer to disagree with this proposition. it must be noted that even assuming for a moment that parents had opportunity to tutor rumana to speak against the accused, still independent witness like surendra singh had no reason to state false against the accused. moreover, subsequent dying declarations are consistent with each other, leaving no doubt whatsoever about its authenticity. it was further submitted on behalf of the appellant that the subsequent two dying declarations were recorded by the police officers and not by special executive magistrate and, therefore, those are doubtful in nature. however, it is well settled that the dying declaration recorded by police personnel cannot be discarded on that ground alone as there is no requirement of law that dying declaration must necessarily be recorded by magistrate. in this regard we may mention the observations made by the apex court in a recent case p.v. radhakrishna v. state of karnataka, iv : 2003crilj3717 , thus-'the situation in which a person is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. it is for this reason the requirements of oath and cross-examination are dispensed with. besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. such a power is essential for eliciting the truth as an obligation of oath could be. this is the reason the court also insists that the dying should be of such a nature as to inspire full confidence of the court in its correctness. the court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. the court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. the rule requiring corroboration is merely a rule of prudence.'therefore, if we follow the guideline given by the apex court in this regard we have no hesitation whatsoever to hold that the evidence of declarations in this case is trustworthy and sufficient to inspire confidence to bring home the guilt and base the conviction thereon and coming to the conclusion that the appellant had committed murder of his wife rumana.9. let us now turn to the charge framed against the appellant under section 498-a r/w section 304b of the indian penal code. in view of the allegations of the prosecution, it appears from the evidence on record, that it is the prosecution case that accused was a greedy person and insisted his wife rumana to bring rs. 40,000/- from her parents to purchase a room and as his demand was not fulfilled he used to quarrel with her and to beat her and finally set her on fire after pouring kerosene on her. in order to bring home the guilt for these charges the prosecution has relied upon the evidence of p.w. 2- ruksana and p.w. 4 alamgir, the parents of rumana, along with the dying declaration exh. 50. p.w. 2 ruksana has deposed about the demands of the accused and subjecting rumana to cruelty to get his demand satisfied. in our view, the evidence of ruksana, though she is mother of deceased rumana, and, therefore, was best witness, cannot be accepted for simple reason that the investigating officer has not recorded a statement under section 161 of cr.p.c. and, therefore, the defence would not be in a position to test the authenticity of her testimony before the court. however, the evidence of p.w. 4 alamgir, father of rumana, is sufficient to establish that the accused was making demand of rs. 40,000/- and he used to approach him to demand the money, and on non-payment of the money he harassed rumana physically and mentally. this evidence is supported by the contents of dying declaration exh. 50 recorded in j.j. hospital, mumbai wherein she has clarified that the demand of rs. 40,000/- made by the accused and non-fulfilment of the said demand the accused picked up quarrel and used to beat her. the cumulative effect of this evidence is sufficient to show that the cruelty as contemplated under section 498-a is established and since the accused subjected rumana to cruelty and since rumana died within seven years after her marriage and soon before her death she was subjected to cruelty, presumption under section 113-b of indian evidence act has to be drawn to hold that the accused caused dowry death of rumana.10. in view of this evidential position, we are totally satisfied that the learned trial judge has rightly appreciated the evidence and, therefore, reasoning adopted and findings recorded by him deserve to be confirmed.in the result the appeal stands dismissed.