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H vs Ig on 23 April, 2014

Bombay High Court H vs Ig on 23 April, 2014Bench: K.U. Chandiwal

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD ou

CRIMINAL APPEAL NO. 671 OF 2011 C

1] Raisoddin Mainoddin Kazi, age 25 years, occ. Labour,

r/o Dhakanwadi, Tq.Kaij,

Dist. Beed

At present Mahamadiya Colony, h

Beed …Appellant [Original Accused no.1]

VERSUS

ig

The State of Maharashtra, …Respondent H

…..

Shri R.G.Hange, advocate for the appellant Shri P.N.Mule, A.P.P. for respondent/State Shri N.L.Jadhav, Advocate Assist to P.P. y

…..

ba

CORAM : K.U.CHANDIWAL AND

V.M.DESHPANDE, JJ.

om

DATE OF RESERVING

THE JUDGMENT : 28.3.2014 DATE OF PRONOUNCEMENT

B

OF THE JUDGMENT : 23.4.2014 J U D G M E N T : (Per V.M.DESHPANDE, J.) 1] Original accused no.1, who is the husband of deceased Firdosbee is before this court, since ::: Downloaded on – 30/04/2014 00:24:15 ::: 2 cra671.11 rt

he is aggrieved by the judgment and order of conviction recorded against him by the Additional ou

Sessions Judge, Beed, dated 7.12.2011, in Sessions Case No. 92 of 2011, for the offence punishable C

under section 302 of the Indian Penal Code, by which he is sentenced to suffer rigorous h

imprisonment for life and to pay fine of Rs. ig

2,000/-, in default of payment of fine further to suffer rigorous imprisonment for six months. H

2] Shorn of details of the prosecution case y

can conveniently be stated as under :- ba

On 8.10.2010, Dr. Pravin Deshmukh (PW 7) om

was discharging his duties as Casualty Medical Officer at the Civil Hospital, Beed. At about 10.45 p.m. a burnt patient Firdosbee w/o Raisoddin B

Kazi was brought to the hospital by her relatives. Dr. Deshmukh, on examination and after giving preliminary treatment, filled M.L.C. Case paper and shifted patient to Burn Ward and he intimated the same to the police.

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On getting the M.L.C. Report from the Civil ou

Hospital, Vijay Jagtap (PW 4), a police Head Constable, who was posted at the Civil Hospital C

Police Chowky, rushed to the Hospital and requested the doctor to examine patient since he was h

intending to record her statement. PW 7 Dr. Pravin ig

Deshmukh accordingly examined patient Firdosbee and opined that she is in a fit condition to give H

her statement. Accordingly, Vijay Jagtap (PW 4) recorded her statement as per her version. The y

said statement was read over to her. The contents ba

of the same were admitted by Firdosbee to be true. He then obtained her thumb impression of right leg. om

The declaration is at Exh.32. On the basis of the same, it appears, the offence was registered vide Crime No. 120 of 2010 initially under Sections 498A B

and 307 of the Indian Penal Code. 3] In the mean time, on getting the information from police, Shankarrao Munde (PW 5), who at the relevant time was serving as the Naib ::: Downloaded on – 30/04/2014 00:24:15 ::: 4 cra671.11 rt

Tahsildar, also reached to the hospital along with the station officer. They went to the Casualty ou

room of the doctor. The Naib Tahsildar expressed his desire to record the statement of Firdosbee, C

and therefore, he asked the doctor to examine whether Firdosbee is in fit condition or not to h

give her statement. Dr. Pravin Deshmukh was the doctor.

ig

He again examined patient and gave his opinion that Firdosbee is in a fit condition to H

give her statement. Accordingly, her statement was recorded. The said statement is at Exh.36. y

ba

4] It appears from the record that the statement Exh.32 was first in time and the om

statement of Firdosbee, Exh.36 was recorded in between 11.40 to 12.00 mid night. In the mean time, when the information of receiving burn B

injuries was communicated to Shaikh Abdul Aziz Shaikh Abdul (PW 8), the father of Firdosbee, he along with his family members reached to the Hospital and they were allowed to enter the Burn Ward after 12.30 a.m. It is the case of the ::: Downloaded on – 30/04/2014 00:24:15 ::: 5 cra671.11 rt

prosecution that, that time Firdosbee made oral statement implicating the present appellant and her ou

in-laws. During treatment, Firdosbee died on 9.10.2010. Her body was sent for postmortem after C

the inquest. Inquest panchanama is at Exh.27. Dr. Jayshree Bangar (PW 2) performed autopsy and found h

that Firdosbee received 99% burn injuries, and ig

therefore, she gave cause of death as, death due to said 99% burn injuries . After the death, H

Section 302 of the Indian Penal Code was added. After the completion of the investigation, charge y

sheet was filed in the court of law. ba

5] The learned Additional Sessions Judge, Beed om

framed the charge. Father-in-law, mother-in-law, sister-in-law, two brothers-in-law, who were the original accused nos. 2 to 6 were charged for B

having committed an offence punishable under Section 498A r/w 34 of the Indian Penal Code. The present appellant, the husband of deceased, was charged for having committed the murder of his wife Firdosbee, and therefore, a ::: Downloaded on – 30/04/2014 00:24:15 ::: 6 cra671.11 rt

charge to that effect under Section 302 of the Indian Penal Code was framed against the present ou

appellant only.

C

6] All the accused persons abjured their guilt and claimed for their trial. h

7]

ig

The prosecution examined various witnesses and relied upon several documents, such as dying H

declarations, spot panchanama, seizure memos, Chemical Analyser’s report, etc. The learned y

Additional Sessions Judge, Beed found that the ba

prosecution has failed to prove the guilt against the original accused nos. 2 to 6, and hence, om

acquitted them for the offence punishable under Section 498A of the Indian Penal Code. It is to be noted, the court below has also rejected the so- B

called oral dying declaration alleged to have been given to the prosecution witness, however, the learned court below found that the prosecution has proved the guilt of the appellant, as the court below was of the view that the dying declarations ::: Downloaded on – 30/04/2014 00:24:15 ::: 7 cra671.11 rt

Exhs. 32 and 36 are free from tutoring and free from any suspicious circumstances, and therefore, ou

based the conviction of the appellant on the basis of said two dying declarations. It is against this C

conviction and finding recorded against the appellant by the learned Additional Sessions Judge, h

Beed, the appellant has approached this court. ig

8] We have heard Shri R.G.Hange, learned H

counsel for the appellant and Shri P.N.Mule, learned Additional Public Prosecutor for the y

respondent. With their assistance, we have perused ba

the entire record of the prosecution case made available before us.

om

9] According to the learned counsel for the appellant, the prosecution has failed to prove its B

case beyond reasonable doubt. According to the learned counsel, from the attending circumstances, it is clear that the dying declarations Exhs. 32 and 36 cannot be made basis for recording conviction. The learned counsel pointed out ::: Downloaded on – 30/04/2014 00:24:15 ::: 8 cra671.11 rt

various infirmities in the investigation. He further submitted that it is really doubtful as to ou

whether PW 4 Vijay Jagtap, the police Head Constable and PW 5 Shankarrao Munde, Naib Tahsildar C

had really recorded the dying declarations of deceased Firdosbee.

h

10]

ig

Alternatively, a submission is made by him that the present case cannot be termed as a case of H

homicidal death amounting to murder under Section 300 of the Indian Penal Code and the case would y

fall under Section 304 Part I if not under Section ba

304 Part II of the Indian Penal Code. He relied upon following two reported judgments of Division om

Bench of this court.

(1) 2011 (2) Bom.C.R.(Cri.) 601 [Mohammed Kasam Rajmani Shaikh vs State of Maharashtra]

B

(2) 2012 (3) Bom.C.R.(Cri.) 501 [Ravindra Premdas Dhoke & anr. vs State of Maharashtra]

He also relied upon a reported judgment of the Hon ble Apex Court in the case of State of Rajasthan vs Santosh Savita [2013 AIR SCW ::: Downloaded on – 30/04/2014 00:24:15 ::: 9 cra671.11 rt

5056], and prayed that the conviction of the ou

appellant under Section 302 of the Indian Penal Code cannot sustain in the eye of law. C

11] Per contra, the learned Additional Public Prosecutor submitted that the court below has h

rightly recorded the conviction. He submitted that ig

the dying declarations Exhs. 32 and 36 are rightly made basis by the court below to convict the H

appellant. No fault can be found in that behalf. According to him, the appeal deserves dismissal. y

ba

12] As per prosecution case, especially from the evidence of Shaikh Abdul Aziz Shaikh Abdul Gani om

(PW 8), the father of the deceased, the marriage of Firdosbee was performed with the appellant on 23.11.2009. At the time of marriage, appellant was B

doing furniture business under the name and style, Guljar Furniture Works at Barshi Naka, Beed. Though he denied the suggestion that daily business of the shop of the appellant was upto Rs.40,000/- to Rs.50,000/-, but he admitted that it must have ::: Downloaded on – 30/04/2014 00:24:15 ::: 10 cra671.11 rt

been in the range of Rs.4,000/- to Rs.5,000/- per day. Thus, it is clear that the financial position ou

of the appellant was sound. From his evidence, it is clear that his daughter was residing in joint C

family with the appellant. His evidence would reveal that appellant and his father admitted h

Firdosbee in the hospital of Dr. Dhoot on 6.10.2010 ig

and that time she was pregnant. She was discharged from the hospital on 8.10.2010. After the H

discharge from the hospital at 6.00 p.m. on the said date, both appellant and his daughter y

Firdosbee had been to his house and after taking ba

tea they proceeded to their house. om

13] From the evidence of Vijay Jagtap (PW 4), a police Head Constable, it is clear that on getting information about the admission of Firdosbee in B

burnt condition, he proceeded to the hospital, met with Dr.Pravin Deshmukh (PW7) and expressed his desire to record her statement. The doctor examined Firdosbee and gave endorsement that she is conscious to give statement. Not only that, Vijay ::: Downloaded on – 30/04/2014 00:24:15 ::: 11 cra671.11 rt

Jatgap (PW 4) gave his identity to Firdosbee and disclosed his intention to record her statement ou

about the happening of the things. She answered to the questions put to her by him by giving her name, C

the name of her husband, period of marriage and also gave the names of her in-laws. She also h

informed that her father is working as a private driver.

ig

About the main incident, she disclosed that H

on 8.10.2010 at about 10.30 p.m. when she was in her house, appellant came and at that time she y

intimated to him that she want to reside separately ba

and she do not want to reside in the said house. According to the evidence of Vijay Jatgap (PW 4), om

Firdosbee further disclosed to him that upon that the appellant abused her and assaulted her and then Firdosbee questioned as to why since last two B

months she is being beaten, the appellant poured kerosene on her person and set her ablaze. The evidence of Vijay Jagtap (PW 4) would reveal that thereafter the statement was read over to her. She admitted contents of the said statement as true. ::: Downloaded on – 30/04/2014 00:24:16 ::: 12 cra671.11 rt

Then he obtained thumb impression of her right leg. ou

14] From the entire evidence relating to dying declaration (Exh.32), it is very clear that the C

said dying declaration was recorded by the scribe after ascertaining the fact that the declarant is h

in a condition to give her statement. Exh.36

ig is the another dying declaration recorded by Shankarrao Munde (PW 5), who at the H

relevant time was the Naib Tahsildar. The record would reveal that prior to recording of the said y

statement of Firdosbee, Shankarrao Munde obtained ba

opinion in writing about the fitness of Firdosbee and it was given by Dr.Pravin Deshmukh (PW 7). om

After obtaining such certificate, Shankarrao Munde proceeded to record the dying declaration of Firdosbee, and accordingly the dying declaration B

was recorded and read over to Firdosbee. From both the afore said dying declarations, it is clear that at 10.30 in the night of 8.10.2010 when the appellant returned to his house, that time the deceased picked up a ::: Downloaded on – 30/04/2014 00:24:16 ::: 13 cra671.11 rt

debate with him that she is not ready to reside in the said house. Obviously, it shows that she was ou

not ready to reside in a joint family. It appears from those statements of Firdosbee that she C

insisted that the couple should reside separately. h

15] Asking the appellant by the deceased to reside

ig

separately from his family and his subsequent act, cannot be termed that he was having H

any intention, since there is absolutely no motive attributed to him. However, it appears that the y

said incident has occurred in a spur of moment on ba

the provocation on the part of the deceased that the appellant shall reside separately from his om

parents. In that behalf, it will be useful to reproduce paragraph 10 of the reported case of Mohammed Kasam Rajmani Shaikh :- B

10) However, there is no evidence on record that prior to the incident, the accused had either ill-treated or harassed the deceased. There was no case of any matrimonial disputes. By taking the prosecution case as it is, the incident had happened in the sudden quarrel between the spouses. The deceased asked for money to buy the medicine and the accused avoided to ::: Downloaded on – 30/04/2014 00:24:16 ::: 14 cra671.11 rt

give. She, therefore, got fed up and asked him whether he wanted his wife to die. At that moment, the accused got ou

annoyed, lost his control and poured kerosene on her person. The burning matchstick was thrown by the accused on the deceased. It was also established C

that the accused was at the spot because his shirt was found with kerosene residues and obviously he tried to extinguish the fire along with the neighbours. He also got her h

admitted in the hospital with the help of the neighbours.

ig The medical papers also indicated that the accused was with the patient while admitting her. These circumstances proved that there H

was no premeditation or any motive attributable to the accused to cause the death of his wife. There was no preparation with in intention to cause the death of Shabinabanu. The incident y

had taken place at the spur of the moment and in the head of the anger ba

and, therefore, the offence would not come within the ambit of section 302 of IPC. In our opinion, Exception 4 to Section 300 of the IPC would be om

attracted in the instant case and it is not a case of culpable homicide amounting to murder. At the same time when the accused poured kerosene and threw a burning matchstick on the B

person of his wife, he was aware that his acts were likely to cause the death of his wife. Hence, the offence would fall under section 304 (Part I) of IPC. We, therefore, hold the accused guilty of the offence punishable under section 304 (Part I) of IPC.

It will also be useful to reproduce paragraph 26 of the reported case of Ravindra ::: Downloaded on – 30/04/2014 00:24:16 ::: 15 cra671.11 rt

Premdas Dhoke :-

ou

26) The prosecution evidence itself suggests that accused No.1, who was drunk, after having altercation with deceased Purnabai, C

set her ablaze after pouring kerosene on her. There is absolutely no motive attributed to accused No.1 or accused No.2 for committing the crime and it appears h

that the incident occurred since accused No.1 was drunk and had an ig

altercation with the deceased. Therefore, in our considered opinion, the offence under sections H

304(I) and not 302 of IPC is made out against the accused no.1. y

16] In the present case, though there was a ba

charge of the illtreatment, the learned trial court has recorded a finding that the om

prosecution has failed to prove the said charge against all the accused persons including the B

present appellant. Thus, it is crystal clear from the quality of evidence brought on record by the prosecution that prior to the date of the incident, the deceased Firdosbee was not subjected to cruelty, either mentally or ::: Downloaded on – 30/04/2014 00:24:16 ::: 16 cra671.11 rt

physically, at the hands of the appellant. ou

In the present case, though the appellant along with the other persons were C

acquitted for the offence punishable under Section 498A r/w 34 of the Indian Penal Code, the State has not filed any appeal questioning h

their acquittal.

ig

The evidence of the father of deceased H

Firdosbee would reveal that a separate room was provided for his daughter and the appellant. y

Thus, it is clear that though the deceased was ba

required to reside in a joint family, however, a separate room was provided to her by in-laws. om

Further, following admissions given by PW 8 Shaikh Abdul Aziz Shaikh Abdul Gani will throw the light on the conduct of the appellant B

in relation to his wife deceased Firdosbee. (a) It is true that whenever she required medical treatment, she was taken to Dhoot hospital at Beed by the accused.

(b) It is true that she was treated in the same hospital in the ::: Downloaded on – 30/04/2014 00:24:16 ::: 17 cra671.11 rt

month of June, 2010.

ou

(c) It is true that she was admitted by accused no.1 in the said hospital on 6.10.2010.

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(d) It is correct that my wife and mother was staying with my daughter in the hospital while her hospitalization from 6.10.2010 to 8.10.2010.

h

(e) It igis correct that the required medicine were purchased by accused no.1.

H

(f) I had gone in the hospital on the 3 day.

rd

y

These above statements of fact made by ba

the father of the deceased clearly show that Firdosbee was being nicely treated by the om

appellant. In the light of the above, the statement made by deceased in Exhs. 32 and 36 that she was beaten by the appellants for last B

two months, appears to be her exaggerated version.

Therefore, it is very clear that the appellant was taking due care of the deceased. The father of the deceased himself has admitted ::: Downloaded on – 30/04/2014 00:24:16 ::: 18 cra671.11 rt

in his examination-in-chief itself that after ou

her discharge on 8.10.2010, the couple had been to his house, which can be seen from following C

evidence.

After discharge from hospital, my daughter and accused no.1 came to our home at about 6.00 p.m. h

Then both have taken tea, etc. and returned back to their home. ig

The main incident has occurred on the H

very same day at about 10.30 in the night when appellant came to his house, obviously, after y

closing his furniture shop. That time, it ba

appears that in view of the dying declaration of Firdosbee she picked up an issue with the om

appellant that she wish to reside separately and she is not ready to reside in the said house. This, on the part of the deceased B

appears to have enraged the appellant and in a heat of passion the appellant has indulged in pouring the kerosene and throwing a burning matchstick on his wife. However, at the same time when the appellant poured kerosene and ::: Downloaded on – 30/04/2014 00:24:16 ::: 19 cra671.11 rt

threw a burning matchstick on the person of his ou

wife, he was aware that it would cause death of his wife. Therefore, the offence would fall C

under Section 304 Part I of the Indian Penal Code.

h

17] In that view of the matter, we hold that ig

the accused is guilty of the offence punishable H

under Section 304 Part I of the Indian Penal Code. 18] The entire above discussion leads us to y

record a finding that the present appeal succeeds, ba

however, partly. The order of conviction and sentence, passed under Section 302 of the Indian om

Penal Code by the learned Additional Sessions Judge, Beed, on 7.12.2011 in Sessions Case No. 92 of 2011 is hereby quashed and set aside, and B

instead, the appellant/accused is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years. The fine amount as awarded by the court below is maintained. ::: Downloaded on – 30/04/2014 00:24:16 ::: 20 cra671.11 rt

Since the appellant is in jail from 9.10.2010, he is entitled to set off for the period ou

of jail from 9.10.2010 under Section 428 of the Code of Criminal Procedure Code. C

Appeal partly allowed.

h

(V.M.DESHPANDE, J.) (K.U.CHANDIWAL, J.) ig

dbm/cra671.11

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