SHAIKH MAZHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant has been convicted by the learned Sessions Judge, Parbhani in Sessions Trial No.23 of 2013 on 31/1/2015 after holding him guilty of committing offence under Ss. 302 and 498-A of Indian Penal Code (for short "IPC") and he has been sentenced thus :-

(2.) The learned Advocate for the appellant submitted that there is no dispute that the appellant got married to deceased Nagma Begum about one and half year prior to FIR dtd. 19/10/2012. At the time of incident, the appellant and deceased were the only persons, who were residing in Amin Colony at Parbhani. Her matrimonial home was at Pingli. The charge levelled against the appellant is that he had subjected deceased to cruelty by making unlawful demand of Rs.1,00,000.00 for purchasing auto rickshaw since two months after the marriage till her death and on 18/10/2012, he murdered deceased by setting her to fire. The FIR has been lodged by the father of the deceased i.e. P.W.2 Shaikh Wahab. According to him, deceased Nagma had talked to him eight days prior to the incident informing about the harassment and then a day before the incident also, she had given a telephonic call to the father informing about the threat that was given by the appellant. The incident is alleged to have been occurred around 9 to 10 p.m. on 18/10/2012. Prosecution has examined in all 11 witnesses to bring home the guilt of the accused, whereas the accused has examined two witnesses in defence. P.W.1 Salid Ahemad Khan and P.W.6 Taufique Ahmad Khan are stated to be the witnesses who had extinguished the fire and according to the prosecution, P.W.1 Salid had seen appellant - Mazhar coming out of the house while running and he had a white Can in his hand. P.W.2 Shaikh Wahab is the father of the deceased and P.W.4 Syed Abrar is the uncle of the deceased. P.W.5 Mirza Nafiz Baig and P.W.10 Taslim Begum are the husband and wife who had given one of their room adjacent to their house on rent to appellant and his deceased wife Nagma. It is also the case of the prosecution that a day prior to the incident, Nagma had given call to her parents from the mobile of P.W.5 - Mirza Nafiz Baig. P.W.8 Mohd. Afzal Abdul Wahab is the brother of the deceased. P.W.9 Mohasin Ahmad Khan is the panch witness in whose presence the appellant has given memorandum and discovered the plastic Can containing kerosene. Other witnesses are the panch witnesses or the police persons including the Investigating Officer. The defence witness D.W.1 Ayub Khan is the employer of appellant and D.W.2 Dr. Aziz Quadri is the Medical Practitioner, who runs hospital in the name as Mental Health Center with whom deceased Nagma had taken treatment.

(3.) The learned Advocate for the appellant has further submitted that P.W.2 Shaikh Wahab - father of the deceased has admitted that his several relatives reside in the same colony i.e. Amin Colony. Then it is surprising as to why deceased had not conveyed about the alleged cruelty to those relatives. It has been contended that the appellant was subjecting her to cruelty by making demand of Rs.1,00,000.00 for purchase of auto, however, it can be certainly said that auto rickshaw cannot be purchased only with the amount of Rs.1,00,000.00, it requires more amount. Secondly, the father of the deceased accepts that the appellant never drove auto rickshaw in the past. Then it is hard to believe that the appellant would have demanded amount for purchase of such vehicle and would have subjected deceased to cruelty. The father admits that deceased was mentally disturbed and was taking treatment. Therefore, the possibility of commission of suicide by her cannot be ruled out. P.W.1 - Salid as well as P.W.6 - Taufique have stated that they were required to break upon the zinc sheets of the house to go inside and then they had extinguished the fire. However, the spot panchanama and other documents do not support the same. The possibilities are created that when the house was closed from inside and people were required to broke upon the zinc sheets to make way for extinguishing the fire, then it is a case of suicide. None of them have made a specific statement that there was ladder put to the house from outside. The husband and wife i.e. the landlord and the landlady have tried to contend that on telephone call Nagma had informed about the ill-treatment to her father, however, the police have not collected the call details, mobile numbers etc. to support the oral contention. From the testimony of D.W.2 Dr. Quadri, it can be seen that deceased was taking treatment for her mental illness. The learned Trial Court ought to have considered properly the effect of such treatment and the substance in the defence that has been raised. Only interested witnesses have been examined by the prosecution and, therefore, the conviction awarded to the appellant is illegal and it deserves to be set aside.