ANWAR NOORMOHMAD SAICHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant - Anwar Noormohmad Saicha by this Criminal Appeal has challenged the impugned judgment and order dated 29-10-1991 rendered in Sessions Case No. 37/91 by the learned Additional Sessions Judge Jamnagar wherein he on being tried for the alleged offence of murdering his wife Mariam came to be convicted for the same and sentenced to suffer RI for life and to pay a fine of Rs. 500.00 in default to undergo further RI for six months etc.

(2.) Few Relevant Facts : According to the prosecution the incident in question wherein Bai Mariam aged 20 was burnt to death by her husband (present appellant) took place on 1-3-1991 at about 15-00 hours at her matrimonial residence situated at Jodia Bhunga Jamnagar. It appears that the appellant married to Mariam around two years prior to the date of the incident and had one daughter out of the said wedlock. It further appears that at the initial stage the relations between the appellant and his wife were quite sweet and cordial but thereafter since last about four months prior to the date of the incident the appellant has started suspecting the character of Mariam as having illicit affairs with other persons. Because of this reason bitterness between the spouses increased recurring quarrels ensued and the married life started drifting towards the devastating end. It further appears that due to these quarrels down and dejected Mariam often used to go away to her parents house where her brothers viz. Ilias Issa and Jaffar Issa consoling her pursuaded to return to her matrimonial home. Unfortunately as it would have been on 1-3-1991 at 15-00 hours a quarrel once again erupted between the spouses wherein the appellant gave a stick blow on the leg of Mariam and on she falling down he poured kerosene over her and set her at fire. On hearing the screams some neighbours rushed to the place where Mariam was found lying in a burnt condition. Thereafter she was removed by the appellant to Irvin Hospital Jamnagar where she came to be admitted and examined by Dr. Bharatbhai Tolaram Shangtani (PW-25 Ex. 61). In case papers (Ex. 62) prepared at 15-20 hours it has been stated by Dr. Shangtani to quote - History given by the patient herself. H/o. burnt with kerosene and was aflamed at 3-00 p.m. Brought by her husband. This Dr. Shangtani further while giving evidence before the court has deposed to quote - I on seeing the case papers say that she (Mariam) has given history that at about 3-00 p.m. she was set at fire by kerosene and that her husband had brought her to the hospital. Not only that but the Head Constable Lilavatibehn Bhimji (PW-31 Ex. 84) who was on duty at Irvin Hospital when she saw Mariam she was found burnt all over her body and she was conscious and was able to speak. On making inquiry by the said Lilavatibehn as to how she got burns Mariam informed that her husband had set her at fire. This particular information was also reduced into writing and entered into MCL case Register which is produced at Ex. 85. It further appears that Lilavatibehn informed the concerned PSI that Mariam has been admitted in the hospital in the burnt condition alleging that she was set to fire by her husband (appellant herein) by pouring kerosene over her. The said report is produced at Ex.66. Pursuant to the said report Ex. 66 PSI V. D. Vyas (PW-28 Ex. 70) went to the hospital and recorded the FIR Ex. 71 given by Mariam at 17-00 hours. In the said FIR Ex. 71 Mariam in terms has alleged that kerosene was poured over her and thereafter she was set at fire by the appellant. It further appears that Lilavatibehn had also sent Yadi to the Executive Magistrate for recording the dying declaration. The said Yadi is produced at Ex. 24. Thereafter the Executive Magistrate Dharmendra S. Shukla (PW-4 Ex. 23) recorded the dying declaration of Mariam on the very day at 18-00 hours. According to Mr. Shukla he on reaching Irvin Hospital contacted Dr. Shangtani and obtained the certificate as to whether Mariam was conscious and in a fit state of mind to give her dying declaration. It was Dr. Shangtani who introduced Mariam to him. At that time Mariam was lying in the bed and on making inquiry regarding her name etc. she gave her name as well as the names of her husband and father her age her occupation etc. Whatever questions were asked to Mariam were replied and were accordingly taken down by the Executive Magistrate Mr. Shukla in his own handwriting. Mr. Shukla has further stated that in the dying declaration Ex. 25 Mariam had stated before him that because of the suspicion her husband had beaten her and thereafter pouring kerosene over her match-stick was applied setting her at fire. Below this dying declaration Ex. 25 there is right hand thumb impression of Mariam which has been duly identified by the Executive Magistrate by placing his signature.

(3.) At the Trial the appellant pleaded not guilty and claimed to be tried. The defence of the appellant was that of total denial alleging that he was falsely implicated. The Trial Court after duly appreciating the prosecution evidence brought on the record and mainly accepting and relying upon the oral as well as the written dying declaration convicted and sentenced the appellant as stated above in Para-1 of this order giving rise to the present appeal.