MEHTABBI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal by appellant-original accused is directed against an order of conviction dated June 27, 1978, passed by the learned Additional Sessions Judge, Aurangabad, sentencing her under section 302 of the Indian Penal Code to suffer rigorous imprisonment for life.

(2.) Brief facts leading to this appeal are that the accused Mehtabbi wife of Khajamiya has living with her son and daughter-in-law, Aziza, in the village Padegaon in the district of Aurangabad. The deceased Aziza was married with the son of the accused, Mansur Khan, hardly one and a half month before the date of the incident. On May 13, 1977 at about 11-30 or so in the morning, Aziza was burnt in the house belonging to the accused. It is the prosecution case that the accused Mehtabbi poured kerosene oil on the person of Aziza and set fire the deceased by lighting a matchstick and left the said house immediately. The place where the deceased Aziza and the accused were living at the material time was owned by Masur Khan, husband of the deceased. The said house is a tin shed. The said house has two doors, one, from the western side and the other from the eastern side. The western side door was closed from inside. The eastern side door was simply closed. The deceased received burn injuries and, therefore, started shouting from the said room where she caught the fire. One Lakharam (P.W. No. 1), who was standing in front of the office of the Gram Panchayat at village Padegaon, heard the shouts coming from the direction of the said house. The house is hardly about ten paces from the Gram Panchayat office. Lakharam (P.W. No. 1) rushed towards the house and having found that the western side door is closed, entered the house from the eastern side door where he saw some children had gathered. Lakharam (P.W. No. 1) pushed the door and saw Aziza wife of Mansur Khan crying and struggling. She had caught fire and her clothes were burning. He called one Reshmabai for help. He also poured a bucket full of water on the person of the deceased Aziza and the fire was extinguished. Aziza is said to have fallen down on the ground. Among other persons who had gathered in front of the said house, Mansur Khan, husband of the deceased, and one Maqbool were also present. It is further the case of the prosecution that Lakharam (P.W. No. 1), Maqbool and Mansur Khan, husband of the deceased, managed to take the victim in a rickshaw to the Medical College Hospital, which is popularly known as Ghati Hospital. Aziza was firstly admitted to a casualty ward. An entry was made in the case papers that she was brought to the casualty ward at 1-35 p.m. It is then, she was taken to Ward No. 14. It appears, the doctor who was in charge of the casualty ward informed the Police Constable, who was attached to the said Medical College Hospital to record medico-legal cases. The said Police Constable is Madhukar Ganpat Botke (P.W. No. 10). Botke noticed burn injuries on the person of Aziza. He questioned her as to how they were caused. It is his say that she replied that at about 11-30 a.m. her mother-in-law had set her on fire. The name of the mother-in-law was also disclosed to him. On getting the replies, he made an entry in his diary. The said entry is produced by the prosecution at Exh. No. 25. After taking the said entry, Police Constable Botke (P.W. No. 10) informed to the Cantonment Police Station on phone about the condition of Aziza. One Police Constable by name Patil received the phone and gave it to Head Constable Shivsing Sandusing Rajput, who was in charge of the Cantonment Police Station at the material time. Police Constable Botke gave a message to the said Rajput that Aziza had received burn injuries and that she was admitted to the hospital. He also informed the Head Constable that he had taken the medico-legal case entry bearing No. 672. Whatever information was given by Police Constable Botke (P.W. No. 10) to Head Constable Rajput was reduced in writing by Head Constable Rajput in the station diary. After taking entry in the station diary, Head Constable Rajput handed over the charge as Police Station Officer to Head Constable Pardeshi and immediately rushed to the Medical College Hospital at Aurangabad. He reached the hospital somewhere about 2 p.m. He came to know that Aziza was in Ward No. 14. He was told by the doctor that it was necessary to record a dying declaration. At this stage it is necessary to mention that Dr. Ayyar also examined Aziza in Ward No. 14. Dr. Ayyar enquired the patient about the history of the case. Deceased Aziza narrated the history of the case. Dr. Ayyar reduced the said history of the case in the medical papers which are at Exh. No. 14. It is the prosecution case that Head Constable Rajput tried to find out an Executive Magistrate in order to record a dying declaration but he was unsuccessful. Ultimately, he himself recorded the dying declaration of the deceased Aziza in the presence of the doctor. The said dying declaration is at Exh. No. 28. The said dying declaration is also countersigned by Dr. Ayyar. It is thereafter, Head Constable Rajput went to the Cantonment Police Station where Head Constable Pardeshi was acting as a Police Station Officer. On May 13, 1977, at about 5 p.m., Head Constable Pardeshi received a complaint lodged by Head Constable Rajput. The said complaint is at Exh. No. 20. On the basis of the said complaint, an offence was registered under section 307 of the Indian Penal Code against the accused.

(3.) As the Sub-Inspector of Police was on leave, Head Constable Pardeshi took over the investigation and on the same day he went to village Padegaon at the spot. A panchanama of the scene of offence was drawn by him in the present of Lakharam (P.W. No. 1) and one Ranuba. Two empty bottles smelling of kerosene, burnt remains of a saree, one match box and hair bunches were found lying on the spot. They were all seized under the said spot panchanama which is at Exh. 6. All articles seized under the said panchanama are Article No. 1 in the case. The Investigating Officer thereafter recorded the statement of six of seven witnesses. When the Head Constable was at village Padegaon, news of Azizas death in the Ghati Hospital at Aurangabad reached to him. He, therefore, immediately went to the hospital. The dead body was already removed to morgue from Ward No. 14. The concerned nurse had taken the clothes on the person of the dead body and she handed over the same to the Investigation Officer. The said clothes consisted of a burnt saree, two petty coats and a brassiere. They were all seized under a panchanama in the presence of panch witnesses which is at Exh. 22. The clothes attached under the said panchanama are Articles Nos. 2 to 5 in the case.