SHAIKH AFSAR SHAIKH AKBAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order of conviction and sentence recorded on22-11-1999 by the learned IInd Additional Sessions Judge, Aurangabad, in Sessions Case No. 215 of 1998. Both the appellants-original accused have been convicted for offence punishable under Section302 and 498-A read with Section34 of the Indian Penal Code ("code" for short ). For the first offence, each of the appellants has been sentenced to undergo life imprisonment and to pay fine of Rs. 1,000/- in default to undergo further rigorous imprisonment for six months and for the second offence each of them has been sentenced to suffer rigorous imprisonment for one year and to pay find of Rs. 500/- in default to suffer further rigorous imprisonment for three months.

(2.) THE prosecution story unfolds as follows : Tabassum - daughter of Mumtaz Begum wife of Shaikh Naimoddin - was married to appellant no.1 (original accused no.1) about one and half months before the incident. Appellant no.2 (original accused no.2) is the maternal aunt of accused no.1 and residing in the same locality at Aurangabad. Though the accused no.1 is a permanent resident of Kannad he was provided residential house by the in-laws and in the neighbourhood of Shaikh Habib (PW5) who is married to the elder sister of the deceased. Accused no.1 was working at a patrol pump at Aurangabad. Immediately after the marriage, the couple had stayed at Kannad for few days and thereafter they started residing in the house at Aurangabad. On 5-6-1998 between 8. 30 to 9 pm. the accused were in the house with the deceased. Accused no.1 stated that he did not like the deceased and therefore, she must leave his company and wanted the deceased to leave immediately to her monther's house which was in a different locality. THE deceased replied that often the accused no.1 was threatening on this count and therefore, she would call her mother. On this reply, the accused no.1 got angry, picked up kerosene can lying in the house, poured kerosene on the person of the deceased and the accused no.2 who was standing nearby lit match stick and set the deceased on fire. At the first instance PW5 Shaikh Habib saw the accused no.2 leaving the premises (Wada) and thereafter, he saw the accused no.1 latching his house from outside. He heard the shouts of the deceased and therefore, rushed towards his house and noticed that in the kitchen room the deceased was burning. He immediately went to his house, brought a quilt and covered the deceased with the same and thus, extinguished the fire. However, at this point the deceased had received almost 100% burn injuries. On hearing commotion the wife of PW5 Shaikh Habib, who is sister of the deceased. Khurshidappa and Anwariappa had come to the house and Khurshidappa and Shaikh Habib inquired the cause of fire. THE deceased informed them that it was the accused no.1 who first gave her kick blows and poured kerosene on her person and subsequently the accused no.2 lit the match-stick and set her on fire. A message was given to the parents of he deceased, they arrived within 15 to 20 minutes and by then, number of persons had gathered outside the house. THE deceased was taken to the hospital by her mother. Shaikh Habib (PW5) and she made a declaration to her mother on way to the Ghati Hospital. PW8 Dr. Subhash Mandale, Casualty Medical Officer admitted the deceased in the emergency ward, recorded the history regarding the cause of burn injuries at Exhibit 40 and sent the patient to Burn Ward Nos. 22-23. He noted that the patient had sustained 100% burn injuries. Intimation was given to the police vide Exhibit 34 regarding the burning of the deceased and to record dying declaration. PW6 Uttam Telure, Police Head Constable, made a station diary entry on the basis of the information given by the Police Head Constable Shri. Jadhav on phone (Exhibit 34) and subsequently intimation was passed on to PSI Madhav Patil (PW11) who took over the investigation. PW7 Shaikh Noor Ahmed Shaikh Sardar was the panch for the spot panchanama at Exhibit 37. PW3 Shriram Ingle, Special Executive Magistrate, recorded the dying declaration at Exhibit 27 and a copy of which was also produced at Exhibit 29. Subsequently PW11 Madhav also recorded his dying declaration at Exhibit 52 on the patient being in conscious and fit condition to make a statement as certified by Dr. Kavita Bukke (PW9 ). THE statements of the witnesses were recorded. Prior to that, Exhibit 52 dying declaration was recorded. Crime for offence punishable under Section307, 498-A read with section34 of the Code came to be registered. While under treatment, Tabassum died on the next day i. e. on6-6-1998 in the early hours. THErefore, the offence came to be converted under Section302 of the Code. Inquest at Exhibit 22 was drawn and the dead body was sent for post-mortem which was carried out by Dr. Kailash Zine (PW1), who signed the post-mortem notes at Exhibit 18 and the cause of death came to be recorded as shock due to burns".

(3.) MRS. Ansari, learned Advocate appearing for the appellants - accused, submitted that the prosecution had failed to prove its case on the basis of the circumstantial evidence and the dying declaration as relied by the trial Court cannot be accepted as reliable piece of evidence in support of the prosecution case. She submitted that the dying declarations recorded by PW3 Ingle suffered from major infirmities and the Medical Officer i. e. PW9 Dr. Kavita Bukke did not state that when PW3 Ingle had recorded the dying declaration she had endorsed about the patient being in fit condition. The oral dying declarations as purportedly made to Shaikh Habib and disclosed by Anwariappa as having been told in her presence to Khurshidappa could not be relied as they were either close relations or got up witnesses. There was no complaint made by the deceased prior to the date of the incident regarding ill-treatment or harassment by any of the accused. For the first time a complaint came to be made through the dying declarations. MRS. Ansari also urged before us that even otherwise if the prosecution case is taken as it is, there is nothing that has been proved against the accused. In a short span of married life i. e. one and half months the accused no.2 had nothing to do with the marital life of the couple when she was staying in her house in Qaisar colony. Her presence at the spot of the incident is not proved by reliable evidence and the circumstances relied upon by the prosecution do not establish her presence beyond doubt at the spot. There is no motive which could be attributed to accused no.2 as she is not a family member in the strict sense for the couple. It was lastly urged by the learned Counsel for the appellants that by taking into consideration the status of accused no.2 a sympathetic view is required to be taken by this Court in awarding the sentence.