AKBAR ASHRAF KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the judgment and order dated 9-10-1992 passed by the Additional Sessions Judge, Sangli in Sessions Case No. 2/1992 convicting and sentencing him to undergo life imprisonment under Section 302 of the Indian Penal Code and to further pay a fine of Rs. 5000/- and in default of payment of fine to suffer further imprisonment for a period of 2 years rigorous imprisonment has come in appeal before us.

(2.) THE prosecution case in brief, as emerging from the recitals contained in the evidence of the solitary eye-witness of the incident Mehboobsab Maulali Saunur and the dying declaration of the victim, in brief, runs as follows : pw 5 (Mehboobsab Maulali Saunur) was the son of the deceased Shamshad. Shamshad's husband, as it emerges from the evidence on record, was a habitual thief and at the time of the incident was undergoing imprisonment. The prosecution case is that the appellant developed illicit relations with Shamshad. He used to frequently visit her room situated at Taluka Miraj, District Sangli, and within a short period started sleeping and dining along with her. Some days preceding the incident the appellant and Shamshad reached one of the daughters and younger son (of Shamshad) viz. , Reshma and Abdul, to village Mulgund where the sister of the husband of Shamshad was living. Hence along with Shamshad was only her minor daughter by name Salma and son Mehaboobsab (PW5 ). The evidence is that the aforesaid son of Shamshad was aged about 101/2 years at the time of the incident.

(3.) ON the date of the incident, that is, on 28/11/1991 at about 11. 30 a. m. the appellant is alleged to have visited the room of Shamshad and demanded a sum of Rs. 1000/- from her. She refused to give the amount on the ground that she was not possessed of the same. The appellant however, persisted with the demand resulting in a furious quarrel between him and Shamshad. All of a sudden the appellant is alleged to have lifted a kerosene canister which was lying on the floor of the house and poured the kerosene from the same on the person of Shamshad and ignited her by fire by throwing a lighted match-stick on the clothes she was wearing. The result was that clothes of Shamshad caught fire and in a desperate attempt to save herself she ran outside the room. She is alleged to have been screaming for help. Some of the neighbours who gathered there threw buckets full of water on her person. Someone informed the local police station. The police took Shamshad in a precariously injured condition to Civil Hospital, Sangli, where she was medically examined by Dr. Ramchandra Hindurao Madane (PW 2 ). At about 3. 30 a. m. the police sent a written information (Exhibit 12) to Shri M. S. Koshti (PW 1), Executive Magistrate, to record the dying declaration of Shamshad. On the aforesaid request Shri Koshti came to Civil Hospital Sangli. There at about 3. 45 p. m. Dr. Madane (PW 2) certified that Shamshad was in a fit medical condition to give a dying declaration; that certificate is at Exhibit 13. Pursuant to that certificate the dying declaration of Shamshad was recorded by Shri Koshti. However, after the recording of the dying declaration no endorsement was given by the doctor to the effect that the victim was in a fit condition throughout the time she made the dying declaration. That dying declaration is a short one and therein she is alleged to have stated as follows : "akbarne muche rakhel dalke jalaya baki muche kuchbhi malum nahin. " the victim is alleged to have succumbed to her injuries at 8 p. m. the same day.