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Siraj Abdul Kadar Momin vs The State Of Maharashtra on 8 May, 2018

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. 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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(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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that 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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opinion, 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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deposition, 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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treatment 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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19. 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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