Bombay High Court
Shaikh Aifaz Sk Mannan And Others vs The State Of Mah Ors on 16 April, 2016
Bench: I.K. Jain
1
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 265 OF 2002
(1) Shaikh Aifaz s/o Shaikh Mannan,
age 20 years, Occu. Labour,
R/o. Anand Nagar, Parbhani,
District Parbhani.
(2) Shaikh Altaf s/o Shaikh Mannan,
age 22 years, Occu. Labour,
R/o. as above.
(3) Nazirabee w/o Shaikh Mannan,
age 45 years, Occu. Household,
R/o. as above.
(4) Nasim Begum w/o Shaikh Altaf,
age 20 years, Occu. Household,
R/o. as above. ... APPELLANTS
(ORIG. ACCUSED)
V E R S U S
The State of Maharashtra,
Through Nalanpeth Police Station,
Parbhani. ... RESPONDENT
...
Mrs. A. N. Ansari, Advocate for Appellants.
Mrs. R. K. Ladda, APP for Respondent / State.
...
CORAM : INDIRA K. JAIN, J.
DATE : 16th April, 2016.
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ORAL JUDGMENT:
. This appeal is preferred by original Accused Nos.1 to 4
against the judgment and order dated 17th April, 2002 passed by the
learned Additional Sessions Judge, Parbhani in Sessions Case
No.205 of 2001. By the said judgment and order learned Additional
Sessions Judge convicted the Accused / Appellants under Section
307 and 498-A read with 34 of the Indian Penal Code as under:
Conviction under Sentence
Section
307 Rigorous Imprisonment for three years and
fine of Rs.1,000/- in default Simple
Imprisonment for two months.
498-A Rigorous Imprisonment for one year and fine
of Rs.500/- in default Simple Imprisonment for
one month.
2 For the sake of convenience Appellants shall be referred
in their original status as Accused as they were referred before the
Trial Court.
3 The gist of prosecution case as necessary to decide
present appeal may be stated as under :
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Complainant Mehrunissa is wife of Accused No.1 Shaikh
Aifaz. They were married before three months of incident. Incident
took place on 29th June, 2000. Accused No.2 Shaikh Altaf is
brother-in-law, Accused No.3 Nazirabi is mother-in-law of
Complainant and Accused No.4 Nasimbegum is wife of
Accused No.2.
4 It is the case of prosecution that initially for few days
Mehrunissa was treated well in her matrimonial house. After some
days Accused started ill-treating her on the grounds that she was not
liked by them and she should bring Rs.5,000/- from her parents.
Before eight days of incident Accused No.2 had beaten Complainant
stating that she was often going to her parents' house and residing
with them for long time. Before 5-6 days of incident Accused Nos.2
and 4 attempted to beat Complainant. Since then Mehrunissa and
Accused No.1 started residing in a separate room and Accused Nos.2
to 4 were residing in an adjoining room of the same house.
5 On 29th June, 2000 at around 09:30 p.m. Accused Nos.2
to 4 caught hold Mehrunissa and Accused No.1 poured kerosene on
her person and set her on fire. After setting her ablaze Accused came
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out of the house. Mehrunissa raised alarm so Accused entered the
house. After hearing shouts raised by victim neighbourers assembled
there. She was taken to Civil Hospital, Parbhani by Accused
Nos.2 and 3.
6 Dr. Ashok Manikrao Janapurkar was the medical officer
on duty at civil hospital. Mehrunissa was admitted in hospital. M.L.C.
was sent to Police Chauki in the Civil Hospital, Parbhani. Head
Constable Dilawarkhan Pathan was on duty. On receiving M.L.C. he
summoned Special Executive Magistrate for recording statement of
victim. Rajeshwar Ganpatrao Deshpande was Special Executive
Magistrate. At about 12:30 midnight he recorded statement of
Mehrunissa in hospital. Said statement was treated as FIR. Crime
No.92 of 2000 was registered at Nanalpeth Police Station, Parbhani.
7 Police Inspector D. M. Rathod took over investigation. He
visited spot and recorded spot Panchanama. Burnt clothes of victim
were seized. Her supplementary statement was recorded.
Investigating Officer also recorded statements of other witnesses.
Seized clothes were sent to CA. After completing investigation
charge-sheet was submitted before Chief Judicial Magistrate,
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Parbhani who in turn committed the case for trial to the Court of
Sessions.
8 On committal of case Trial Court framed charge against
the Accused at Exhibit 8. Accused pleaded not guilty and claimed to
be tried. Their defence was of total denial and false implication.
Accused No.1 raised defence that while cooking Mehrunissa
sustained burns due to accidental fire.
9 To bring home guilt of the Accused prosecution examined
in all 10 witnesses. After going through the evidence adduced by
prosecution learned Trial Judge convicted and sentenced the
Appellants as stated hereinbefore. Hence this appeal.
10 Heard the learned counsel for parties. After giving
anxious consideration to the facts and circumstances of case,
submissions made on behalf of parties, reasonings recorded by Trial
Court and evidence on record for the below mentioned reasons this
Court is of the opinion that prosecution could not prove guilt of
Accused beyond reasonable doubt and Accused ought to have been
acquitted.
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11 Prosecution case is based on ocular evidence of victim
herself and circumstantial evidence brought on record through her
parents and neighbourers. Reliance is also placed on medical
evidence which indicates that at the time of occurrence of incident
Complainant sustained 59% burns.
12 PW-6 Complainant Mehrunissa is the star witness in this
case. She stated that her marriage with Accused No.1 was performed
before three months of incident. It can be seen from the evidence of
Mehrunissa that for one month after marriage she was treated well in
the family of Accused. All the Accused were jointly residing. She
stated that after one month of marriage Accused started ill-treating her
stating that she was not liked by them and she should bring
Rs.5,000/- from her parents. She then states that before eight days of
incident her brother-in-law Shaikh Altaf / Accused No.2 had beaten
her in her parents' house.
Regarding incident Complainant states that at about
09:00 to 09:30 p.m. all the Accused asked her to bring Rs.5,000/-.
She expressed her inability to bring money from her parents. She
says that initially she was beaten by her husband then Accused No.2
to 4 caught hold her, Accused No.1 poured kerosene on her person,
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ignited a match stick and set her on fire. She received burn injuries.
She shouted. Initially Accused Nos.2 to 4 went out of the house.
Neighbourers rushed to spot. She informed neighbourers that
Accused set her on fire. She stated that Accused Nos.2 and 3 took
her to hospital. In the hospital her statement was recorded. This
statement was treated as FIR and it was proved by witness
at Exhibit 27.
It appears from cross-examination of victim that her father
was a coolie. She had five sisters. Except one all were married. She
admitted that Accused Nos.1 and 2 were doing business of hand
pump. She was educated upto VIIth standard and her husband,
brother-in-law and mother-in-law were illiterate. She admits that at
the time of marriage Accused did not demand money and there was
no dispute. It is also brought on record in the cross-examination of
Mehrunissa that financial condition of her father was not sound. From
the facts elicited in her cross-examination it can be gathered that
financial position of Accused was comparatively good.
14 Regarding alleged demand of Rs.5,000/- Complainant did
not give material particulars viz. when demand was made, for what
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purpose money was demanded, where was the demand made etc. It
is significant to note that incident occurred just after three months of
marriage. On the say of Mehrunissa initially for one month she was
treated well in the matrimonial house. It also appears from her
evidence that often she was visiting her parents' house which was
near her matrimonial house and dispute had taken place on that
count. In this background it was necessary for Complainant to give
details regarding instances of demand of Rs.5,000/- and in the
absence of such details vague statement of Complainant and her
parents that there was demand of Rs.5,000/- and she was ill-treated
for non-fulfillment of demand, cannot be relied upon.
15 Further from the facts elicited in cross-examination of
Complainant it is clear that place of incident was a cooking place in
the same room in which husband and wife were residing. Admittedly
Accused Nos.2 to 4 were not residing in that room but residing in an
adjoining room. Their cooking place was separate. It is admitted by
PW-6 Mehrunissa that she was preparing food by using wooden
powder. For alighting fire place kerosene was required. A bottle of
180 ml. containing kerosene was used for igniting fire place and also
as night lamp. Except this one bottle no article was kept in the room
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containing kerosene. On going through spot Panchanama Exhibit 38
it can be seen that near fire place some utensils were found lying in
disorderly manner. It was a small room of hardly 8 x 10 sq. ft.
A sketch annexed to spot Panchanama shows that in the same room
there was a cot, burnt pieces of clothes, bottle and bangles lying. It is
admitted by Complainant that her bangles were not broken. Accused
have raised a defence that for cooking food Mehrunissa was igniting
fire place and that time she was caught by fire. Except evidence of
Mehrunissa there is no other evidence to indicate that Accused set
her on fire. Neighbourers have been examined. They do not support
prosecution case.
16 So far as PW-8 Sk. Rasool father and PW-9 Pyarmbee
mother of Mehrunissa are concerned, they have also not given details
of instances regarding alleged demand of money. Prosecution has
also placed reliance on the evidence of PW-7 Devaibai who is
neighbourer of parents of Complainant. According to PW-7 Devaibai
before eight days of incident hand pump was to be installed at the
house of Zebunnisa. Accused Nos.1 and 2 were to install hand
pump. She stated that Accused came to the house of Complainant.
That time Accused Nos.1 and 2 have beaten Mehrunissa by iron rod
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and she had seen that incident. She further states that as Mehrunissa
stayed at her parents' house for 7-8 days she was beaten by Accused
Nos.1 and 2. Mehrunissa had become unconscious after she was
beaten by Accused. Neither Mehrunissa nor her parents have ever
stated that she was beaten by Accused No.1 before eight days of
incident nor they stated that iron road was used for alleged beating.
They have come with a case that Accused No.2 who is brother-in-law
had beaten Mehrunissa on the count that she was often visiting her
parents' house and not returning to her matrimonial home for longer
time. It is thus apparent that PW-7 Devaibai had made material
improvements and it would be risky to place reliance on her
testimony.
17 Accused have not seriously disputed that Mehrunissa
sustained 59% burns. Evidence of PW-1 Dr. Ashok Janapurkar
indicates that injuries mentioned in Exhibit 19 were possible due to
bursting of stove while sitting near the stove. From the certificate it
can be seen that superficial deep burns were sustained by victim to
her anterior and posterior trunk and right and left limbs. If at all
Accused have attempted to set her on fire she would not have
sustained burns on lower part of body but in normal course on upper
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part of body. This also creates doubt regarding case of prosecution
that Accused No.1 poured kerosene and with the aid of other Accused
set her on fire.
18 Further it is significant to note that statement of victim
Exhibit 27 was treated as dying declaration by the Trial Court and
based on such statement conviction was recorded. Victim had
survived in this case. So her statement recorded by Special
Executive Magistrate cannot be treated as dying declaration under
Section 32 of the Indian Evidence Act and at the most statement
could be used as her previous statement for proving contradictions
and omissions. The approach of the Trial Court in respect to
Exhibit 27 statement is thus found contrary to law.
19 Be that as it may, from the evidence of victim, her
parents, neighbourers, medical evidence and facts elicited in
cross-examination as well as factual position brought on record
through scene of occurrence Panchanama this Court finds that
prosecution could not prove the guilt of Accused beyond reasonable
doubt. The conviction and sentence of Appellant is unsustainable in
law. Hence the following order -
913 CRI.APPEAL.265.02.odt
O R D E R
I. Criminal Appeal No.265 of 2002 is allowed.
II. The judgment and order dated 17th April, 2002
passed by the learned Additional Sessions Judge,
Parbhani in Sessions Case No.205 of 2001
convicting Appellants for the offences punishable
under Sections 307 and 498-A read with 34 of the
Indian Penal Code is set aside.
III. Appellants are held not guilty of the offences
punishable under Sections 307 and 498-A read
with 34 of the Indian Penal Code and are acquitted
of said charge.
IV. Bail bonds of Appellant stand cancelled.
V. Fine if paid shall be refunded to the Appellants.
[ INDIRA K. JAIN, J. ]
ndm
