MUSHTAQ AHMED ISMAIL KADARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appeal is directed against the judgment dated 7th September, 2000 passed by the Additional sessions Judge for Greater Bombay in sessions Case No. 836 of 1998 convicting and sentencing the Appellant under Section 302 of the Indian Penal Code (hereinafter referred to as "ipc"). The Appellant has principally challenged the impugned judgment on the ground that the identity of the assailant has not been established by the prosecution and that he has been falsely implicated in the case.

(2.) The prosecution has claimed that the deceased Shalu Sudhakar Pagare had illicit relations with the Appellant. The appellant wanted her to sever her relationship with her husband and to live with him instead. The deceased refused the entreaties made by the Appellate. The Appellant was incensed and, therefore, emptied the can of kerosene on the victim and set her on fire. This incident occurred in the night of 2nd May, 1998. It is the case of the prosecution that the Appellant had sustained burn injuries on his face and hands for which he sought treatment from Dr. Mahesh Gajaria, PW-5 at about 1.15 a. m. on 3rd May, 1998. The deceased had left two dying declarations, naming one Mushtaq sayyed who resided at Millat Nagar as the perpetrator of the crime. She has also mentioned his telephone number in her two dying declarations. On this basis, the police arrested the Appellant after his discharge from the hospital where he was being treated. The Appellant was tried under Sections 302 and 449 of IPC. The Sessions Judge has held the Appellant guilty of the offence punishable under Sections 449 and 302 and has sentenced him to suffer rigorous imprisonment for life and a fine of Rs. 10,000/- in default to suffer further rigorous imprisonment for one year, on both counts.

(3.) Mr. Hudlikar, learned Advocate appearing for the Appellant, submits that the identity of the assailant has not been established. The dying declarations mention one Mushtaq Sayyed residing at Millat Nagar, having a telephone bearing No. 6318031. He submits that the Appellant's name is Mushtaq ahmed Ismail Kadari and, therefore, he has wrongly been implicated in the present case. He submits that the victim was residing at andheri along with her sister. The sister has not been examined by the prosecution although her statement has been recorded by the police. According to the learned advocate, she would have been able to throw some light as to whether the Mushtaq Sayyed mentioned in the dying declarations of the victim was indeed the Appellant. He also draws our attention to the fact that the investigation Officer, PW-9, has not cared to establish the identity of the Appellant to be that of the assailant by either ascertaining that the number mentioned in the dying declarations was indeed the telephone number of the Appellant who was residing at Millat nagar.