1 APEAL 449-02 Judgment.doc-205
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.449 OF 2002
Siraj Abdul Kadar Momin. ]
Age – 46 years, Occ. – Service, ]
R/at – Shahir Anna Bhau Sathe Nagar, ]
Colony No.6, Ganjpeth, Pune – 411 042. ] … Appellant /
(Orig. Accused)
Versus
The State of Maharashtra. ] … Respondent
Mr. Abhaykumar Apte for Appellant.
Mr. Rajan Salvi, APP for State.
CORAM :- SARANG V. KOTWAL, J.
DATE :- 08 MAY, 2018
JUDGMENT :-
1. The Appellant has preferred this Appeal challenging the
Judgment and Order dated 31/07/1999 passed by the Additional
Sessions Judge, Pune, in Sessions Case No.464 of 1998. By the said
impugned Judgment, the learned trial Judge has convicted the
Appellant for commission of the offence punishable under Section 307
of the IPC and he was sentenced to suffer R.I. for seven yeas to pay
fine of Rs.500/- and in default to suffer R.I. for three months. The
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Appellant was also convicted for the offence punishable under Section
498A of the IPC and he was sentenced to suffer R.I. for three years
and to pay fine of Rs.300/- and in default to suffer R.I. for two
months. Both the sentences were directed to run concurrently and the
Appellant was granted set off for the period already undergone in
custody during trial.
2. The prosecution case pertains to the incident dated
05/08/1998 when the Appellant had poured sulphuric acid on the
person of his wife Jahira. In the process, some acid was spilt on their
two children Gufran and Asifa. The accused himself had suffered burn
injuries in the process. This incident was a fallout of a strained
relationship between the Appellant and his wife. They had got
married in the year 1977 and had five children from their marriage.
The Appellant was working with the Fire-Brigade at Pune. The
Appellant got addicted to liquor and stopped attending his work since
January 1998. The Appellant used to demand money from Jahira and
there used to be frequent quarrels between them. The Appellant used
to harass her and always used to demand money. This conduct of the
Appellant had made her life miserable.
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3. Since one month prior to August 1998, the Appellant had
started residing separately. On 04/08/1998, the Appellant came to
the house where Jahira and their children were residing in Colony
No.6, Annabhau Sathe Nagar, Ganj Peth, Pune. He picked up quarrel
and demanded money. On Jahira’s refusal to make payment, he
demanded Talaq and and asked her to come to his Advocate’s office.
Jahira did not pay any heed to his demands. On 05/08/1998 at about
12.30 p.m., the Appellant again went to Jahira’s house and picked up
quarrel. The Appellant started abusing her. Jahira wanted to go to
market to buy vegetables. As she bent down to pick up her bag, the
Appellant poured concentrated sulphuric acid on her which he had
brought in a plastic can. In the process, some portion of the acid was
spilt on their children Gufran and Asifa and on the Appellant himself.
Jahira started shouting. The Appellant ran away from the spot.
Gufran went running to Khadak Police Station. PSI Mane who was on
duty, immediately came to the spot of incident. By that time, Jahira
was removed to Sassoon Hospital by the neighbours. PSI Mane sent
Gufran and Asifa to the hospital with a yadi for treatment. PSI Mane
went to Sassoon Hospital and recorded Jahira’s statement which was
treated as the FIR. The offence was registered vide C.R.No.147 of
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1998 at Khadak Polilce Station under Sections 498A, 307, 323 and
506 of the IPC. Special Judicial Magistrate was requisitioned to
recorded the statement of Jahira. Accordingly he recorded her
statement. The Appellant was arrested on the same day at 3.30 p.m.
He was also referred to Sassoon Hospital for treatment as he had
suffered burn injuries. PSI Mane then conducted the spot
panchanama. The clothes of the victims as well as the acid mixed
earth from the spot were collected and seized. The articles were sent
for chemical analysis. The clothes of the accused were sealed and
they were also sent for chemical analysis. The statements of various
witnesses were recorded and on completion of the investigation, the
charge-sheet was filed.
4. After filing of the charge-sheet, the case was committed to
the Court of Sessions for trial. The charges were framed on
13/04/1999 under Sections 498A and 307 of the IPC. In support of
its case, the prosecution examined PW 1 Prakash Vinayak Pawar as
the pancha who was present when the spot panchanama was carried
out. PW 4 Laxman Nagurao Raot was examined as the superior
officer of the Appellant and he has proved that the Appellant was
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remaining absent since January 1998. This witness also deposed that
the Appellant was addicted to liquor. PW 5 Vijayraj Bhurmal Oswal
had sold concentrated sulphuric acid to the Appellant in August 1998.
PW 6 Dr. Prakashchandra Roopchand Desnani produced the injury
certificate of the Appellant. PW 8 Dr. Manoj Shankat Todkar deposed
about the nature of injuries suffered by Jahira. PW 9 Dr. Naryan
Krishna Kamble deposed about the injuries suffered by Gufran and
Asifa. PW 7 PSI Suresh Shankar Mane had conducted major part of
the investigation. The main prosecution witnesses were PW 2 Jahira
who was the wife of the Appellant and had suffered major injuries.
PW 3 Asifa was the daughter of the Appellant who was an eye witness
and herself an injured in the incident. The defence of the Appellant
was that of the total denial. After recording the evidence, the
statement of the Appellant under Section 313 of the Code of Criminal
Procedure, 1973 was recorded and after hearing the arguments
advanced on behalf of both the parties; the learned trial Judge was
pleased to pass the Judgment and Order and convicted the Appellant
as mentioned above.
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5. I have heard Mr. Abhaykumar Apte, learned Counsel for
the Appellant. I have also heard Mr. Rajan Salvi, learned APP for
State. With their assistance, I have gone through the record and
proceedings and have also read the impugned Judgment.
6. As mentioned earlier, the prosecution case mainly relies
on the evidence of PW 2 Jahira and PW 3 Asifa. PW 2 Jahira Siraj
Momin, in her deposition, has stated about the past history. She was
married with the Appellant in the year 1977 and they had five
children. She has further deposed as to how the Appellant was
addicted to liquor and that he had stopped attending his work with
the Fire-Brigade department of the Corporation. She has deposed that
the Appellant used to demand money and on that count he used to
pick up quarrels with her. According to her, the Appellant had started
residing separately since one month prior to the incident dated
05/08/1998. PW 2 Jahira did not know where the Appellant was
residing during that period. On 04/08/1998, the Appellant came to
her and demanded money and when she refused to pay, the Appellant
threatened that he would divorce her by giving Talaq. On
05/08/1998 at about 12.30 p.m., the Appellant returned to her with a
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plastic bag containing a plastic can in his hand. At that time, PW 2
Jahira was about to go out of the house to purchase vegetables. The
Appellant picked up quarrel with her and when she bent down to pick
up a bag, he poured acid on her person from the can which he had
brought with him. She suffered burn injuries on her chest, back,
hands, ears, face, etc. Some part of the acid spilt on her children
Gufran and Asifa She has narrated further that the neighbours took
her to Sassoon Hospital where the police and the Special Judicial
Magistrate recorded her statement. The FIR lodged by this witness is
produced by the prosecution at Exh.11. She has stated that she was in
the hospital for about 10 days and that she has suffered permanent
damage to her skin. This witness has identified the articles i.e. her
clothes, quilt, bedsheets, plastic can etc. In her cross-examination, she
has stated that the Appellant had poured acid from the plastic can in a
white tin container and then threw it on her. She has deposed in her
cross-examination regarding the complaint which she had made
around May 1998 but the same complaint is not brought on record.
The statement recorded by the Special Executive Magistrate is
produced on record at Exh.12 but since Jahira had survived the
attack, her evidence assumes importance and the statement recorded
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by the Special Executive Magistrate is not as important at her
deposition in Court. Even in her statement before the Special
Executive Magistrate, she has categorically sated that the Appellant
himself had poured acid on her.
7. PW 3 Asifa Siraj Momin, in her deposition, has
corroborated the evidence of PW 2 Jahira in all material aspects. She
has stated that the acid fell on her hands and legs. At the time of the
incident, she was 13 years of age. She has further deposed that her
brother Gufran was not in a proper mental state to depose before the
Court.
8. Apart from these two important witnesses, the evidence of
the other witnesses is also important in this case. PW 1 Prakash
Pawar has proved the spot panchanama and has proved that the
articles were properly sealed by the police in his presence from the
spot. The articles were sent by the I.O. for chemical analysis. The CA
reports are produced on record at Exh.31 which show that the clothes
of the victims, hair of Jahira and the earth collected from the spot had
presence of sulphuric acid.
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9 APEAL 449-02 Judgment.doc-2059. PW 4 Laxman Raut was the superior officer of the
Appellant. He has deposed that the Appellant was absent from the
duty from January 1998. In the cross-examination, he has further
stated that the Appellant was addicted to liquor.
10. PW 5 Vijayraj Oswal is another important witness who had
sold acid to the Appellant in the first week of August 1998 i.e. just
before the incident dated 05/08/1998. The Appellant was
immediately arrested on that day. It means that the Appellant had
purchased sulphuric acid before the incident dated 05/08/1998. This
witness was knowing the Appellant as there were regular transactions
of sale of sulphuric acid between them. The Appellant was carrying
out a side business of polishing iron chains for which he needed
sulphuric acid. This witness has admitted that he had not issued any
receipt for this transaction.
11. PW 6 Dr. Prakashchandra Desnani has produced the
medical certificate in respect of the injuries suffered by the Appellant.
He has deposed that the Appellant had suffered the following injuries.
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10 APEAL 449-02 Judgment.doc-205(i) Superficial burn marks on right dorsom of the hand
posterior aspect of the wrist, 5 x 2 inches, skin blackish,
surrounding area reddish and swollen.(ii) Superficial burn marks on right forearm, upper third
medio-posteriority, 2.½ inches x 2 inches, skin blackish,
surrounding area reddish,(iii) Superficial two burn marks on right lateral side of
abdomen ½ x ¼ inch, ¼ x ¼ inch, skin blackish,
surrounding reddish, tenderness present.(iv) Contusion on right leg at junction of upper and middle
third anteriorly, 2.½ x 2 inch, skin bluish, tenderness
present.(v) Contusion on left leg anteriorly in middle third 2.½ x 2
inches, skin bluish, tenderness present.12. PW 9 Dr. Naryan Kamble has deposed about the injuries
suffered by Gufran and Asifa. Gurdan had suffered one burn injury
admeasuring 1 x ¼ cm whereas Asifa had suffered 21 superficial burn
injuries on her leg. PW 7 PSI Suresh Shankar Mane had conduced
major part of the investigation as mentioned earlier.
13. PW 8 Dr. Manoj Shankar Todkar is another important
witness in this case who has treated Jahira on her admission to
Sassoon Hospital. According to him, Jahira had suffered 31% burns.
This witness had noted down the history given by Jahira in the MLC
papers wherein she has clearly named the Appellant as the person
who had poured acid on her. Significantly, this witness has deposed
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11 APEAL 449-02 Judgment.doc-205that if emergency medical treatment was not given to Jahira, there
was likelihood of her succumbing to the burn injuries. She was
treated from 05/08/1998 to 14/08/1998 and she was discharged
against medical advice. He has deposed in the cross-examination that
the injuries sustained by her could have caused danger to her life and
if she was not treated in time, the burn injuries were sufficient in the
ordinary course of nature to cause her death.
14. After considering the evidence on record, I find that the
evidence given by PW 2 Jahira and PW 3 Asifa is wholly reliable.
They were the victims of the attack and had suffered injuries. PW 3
Asifa had fully corroborated the evidence of PW 2 Jahira. Their
evidence is also supported by the medical evidence. The other
circumstances of their clothes having been burnt due to presence of
sulphuric acid, is sufficiently established. The spot of the incident is
not in dispute. Therefore, the presence of the Appellant at the time of
the incident is properly established through their evidence. There is
nothing on record to doubt the veracity of their evidence. The
defence has not brought on record any circumstance to show that
these two witnesses were not telling the truth. Therefore, in my
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12 APEAL 449-02 Judgment.doc-205opinion, the learned trial Judge has not committed any error in
holding that the Appellant himself was the perpetrator of the crime in
question. The presence of the Appellant is established by another
circumstance and that is the injury suffered by himself. The
prosecution has proved that the Appellant himself had suffered burn
injuries during the incident. This is another strong circumstance
against the Appellant. The prosecution has brought on record the
motive behind this attack. PW 2 has given history of their strained
relationship. PW 2 and PW 4 have deposed that the Appellant was
addicted to liquor. PW 2 has stated that he was constantly demanding
money and on that count was harassing PW 2. The Appellant was
demanding that PW 2 should accede to his demand of getting divorce.
All these factors clearly show that the Appellant had motive to commit
this offence and had actually committed this offence.
15. Mr. Apte submitted that the prosecution has not examined
the independent witness Firozabai who wanted to go with Jahira to
purchase vegetables. The prosecution has also not examined Gufran
and therefore, adverse inference should be drawn. Mr. Apte further
submitted that the tin container which is referred to by Jahira in her
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13 APEAL 449-02 Judgment.doc-205deposition, was not seized from the spot and therefore, her story is
doubtful. I find no force in this submission because the prosecution
has proved its case beyond reasonable doubt through the evidence of
PW 2 Jahira and PW 3 Asifa. Since Jahira had bent down to pick up a
bag and at that time, the Appellant had poured kerosene on her,
therefore, she was not expected to see in exactly what manner the
acid was poured on her and therefore, the absence of a tin container
was not of much importance.
16. The nature of harassment described by PW 2 also proved
that the harassment and ill-treatment meted out by the Appellant to
her was of such an extent that it would clearly fall within the meaning
of 'cruelty' as mentioned under Section 498A of the IPC. PW 2 was
constantly being abused, threatened and finally was attacked by the
Appellant. A series of acts by the Appellant brings this offence within
the ambit of Section 498A of the IPC.
17. Insofar as the offence of Section 307 of the IPC is
concerned, in this regard, the evidence of PW 8 Dr. Manoj Todkar is
important. This witness had treated Jahira when she was admitted to
Sassoon Hospital. This witness has clearly stated that if emergency
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14 APEAL 449-02 Judgment.doc-205treatment was not given to her, there was strong likelihood that Jahira
would have succumbed to her injuries. The medical evidence shows
that she has suffered 31% burn injuries. This high percentage of
burns can be fatal in a given case. This witness has categorically
stated that the injuries were sufficient in the ordinary course of nature
to cause death. The Appellant was dealing with sulphuric acid and he
was fully aware of the consequences of pouring concentrated
sulphuric acid on any person. The Appellant had gone to Jahira's
house fully prepared by carrying concentrated sulphuric acid in a
plastic can. He had gone to her with a specific intention to cause this
attack. The Appellant was fully aware of the effect it could cause on a
person and he executed his plan. Therefore, it can safely be held that
the Appellant had all the intentions to commit murder of Jahira. He
committed this act with such intention and knowledge that by his act
he would have caused death of Jahira.
18. The learned trial Judge has taken into consideration all
these aspects and has given cogent reasoning while passing the
impugned Judgment and Order. Therefore, I see no reason in
interfering in her conclusion.
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15 APEAL 449-02 Judgment.doc-20519. Mr. Apte submitted that the incident has taken place
almost 20 years ago and the Appellant has undergone major portion
of his sentence and therefore, leniency should be shown to him.
However, looking at the nature of the offence, it is not possible to
reduce the sentence. The injuries suffered by Jahira have left
permanent marks not only on her person but also on her mind. Even
their children suffered burn injuries. The Appellant does not deserve
any sympathy for his act and therefore, I am not inclined to reduce the
sentence.
20. With the result of the above discussion, I find no merit in
the instant Appeal. The Appeal accordingly stands dismissed.
(SARANG V. KOTWAL, J.)
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