Bombay High Court
Khurshidabegum Sk Mahemood vs State Of Maha on 1 August, 2016
Bench: A.I.S. Cheema
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.726 OF 2003
Khurshidabegum W/o. Sk. Mahemood,
Age-55 years, Occu:Household
R/o-Badnapur, Dist. Jalna
(Presently in Yerwada Jail Pune)
...APPELLANT
ig (Ori. Accused No.1)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Joydeep Chatterji Advocate for Appellant.
Mr. K.S. Hoke Patil, A.P.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 13TH JULY,2016.
DATE OF PRONOUNCING JUDGMENT: 1ST AUGUST, 2016.
JUDGMENT :
1. The Appellant- original accused No.1 was
charged with offence punishable under Section
498-A read with Section 114, alternatively Section
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498-A read with Section 109 of Indian Penal Code,
1860 ("I.P.C." in brief). She was also charged
with offence punishable under Section 306 read
with Section 114, Section 106, Section 109 of
I.P.C. Alternatively charge was framed for offence
under Section 304-B read with 34 and Section 304-B
read with 114 of I.P.C. There was yet another
alternative charge under Section 498-A read with
114 of I.P.C. read with Section 4 of the Dowry
Prohibition Act, 1961. Along with her, the accused
No.2 arrayed was her son Shaikh Jumman. After the
trial before 3rd Additional Sessions Judge, Jalna,
the son got acquitted of all the Sections, while
the Appellant came to be convicted on 21st October
2003 for offence punishable under Section 306 of
I.P.C. and was sentenced to rigorous imprisonment
for seven years and fine of Rs.100/-, and in
default to suffer further rigorous imprisonment
for three months. She was acquitted of the other
offences with which she had been charged. Thus,
this Appeal.
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2. The case of prosecution, in brief, is as
follows:-
(A) On 1st November 1998 victim Shabana, the
wife of original accused No.2 - Shaikh Jumman was
admitted at Civil Hospital, Jalna with 96% burns.
The hospital authorities sent Medico Legal Case
(M.L.C.) Report to the police out-post and then
head constable Bhujangrao Mante (PW-5) went in the
hospital and asked the doctor to examine the
victim. Doctor examined and found the victim to be
conscious and in position to make statement and
the statement of the victim was recorded
(Exhibit 33 - first dying declaration) on 1st
November 1998 between 9.00 - 9.30 a.m. by PW-5
Bhujangrao Mante.
(B) In the first dying declaration Exhibit 33
the victim informed police that she got married
seven months back with accused No.2 - Shaikh
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Jumman. She gave details of the other brothers and
sisters of Shaikh Jumman and her mother-in-law
accused No.1 Khurshidabegum. She stated that on
1st November 1998 in the morning since 5.00 a.m.
her mother-in-law - Khurshidabegum was abusing
her. She had rushed against the person of victim
to beat her. In anger victim put kerosene
available in the house in a can on her person and
with the help of match stick put fire to her own
person. She stated that she had trouble from her
mother-in-law. The mother-in-law had been
harassing her and because of her trouble, on that
day of 1st November 1998 at about 7.00 a.m. she
poured kerosene on herself from can and with the
help of match stick has burnt herself. She added
that she has no trouble from her husband and when
she burnt herself, the mother-in-law said that let
her burn and so saying she had gone out. When she
shouted, people from the lane gathered and put out
the fire.
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(C) The dying declaration as above was
recorded by the head constable Bhujangrao Mante
and sent to police station Kadim Jalna, where
entry was taken at 0/1998 at 11.10 a.m. on 1st
November 1998 and the F.I.R. was forwarded to
police station Badnapur. At Badnapur, District
Jalna crime was registered as No.134/1998 on 2nd
November 1998 at 12.35 p.m.
(D) After PW-5 Bhujangrao Mante recorded the
first dying declaration, he sent note to Tahsildar
for recording of the dying declaration.
Consequently, Naib-Tahsildar Shyamrao Nandedkar
(PW-3) went to the Hospital and recorded the
second dying declaration of the victim vide
Exhibit 29 on 1st November 1998 between 9.50 -
10.20 a.m. after the doctor examined victim and
found the victim to be in fit and conscious
condition to make statement.
(E) P.S.I. Pralhad Susar (PW-4) went to the
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spot and recorded panchnama on 3rd November 1998
between 9.30 - 10.15 a.m. As per the spot
panchnama recorded, from the spot burnt clothes
and plastic can smelling of kerosene were seized.
A.S.I. Walmik Avhade (PW-7) further investigated
crime. Statements of the witnesses were recorded.
The victim expired on 6th November 1998 and police
recorded her inquest panchnama (Exhibit 22) and
postmortem was got done on the same day
(Exhibit 23). After the investigation, charge-
sheet came to be filed. The prosecution brought on
record evidence of seven witnesses. The defence of
the accused in the trial Court is that of denial.
The trial Court, after considering the evidence,
convicted and sentenced the accused as mentioned
above.
3. I have heard learned counsel for the
Appellant-accused. It is stated that the evidence
of PW's 1 and 2 shows that the accused No.1 and
accused No.2 were residing separate. The dying
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declaration Exhibit 33 showed that the victim had
burnt herself in a fit of anger on spur of moment.
According to the counsel, there was no evidence of
persistent torture to tantamount to abetment. The
counsel referred to the evidence recorded and
submitted that the trial Court wrongly relied on
the evidence and the accused should have been
acquitted. It was alternatively argued that if the
conviction is maintained, the sentence may be
reduced, as the Appellant-accused is now around 70
years of age.
4. Against this, the learned A.P.P.
submitted that both the dying declarations on
record are consistent regarding the actual
incident. Both the dying declarations show that
the accused was continuously harassing the victim.
It is stated that even if PW-1, the hostile
witness, stated that the accused No.1 was residing
separate, there was no reason to disbelieve the
dying declarations which show that since the
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morning itself the mother-in-law was at the house
of the victim and was torturing the victim due to
which the victim committed suicide. According to
the A.P.P., the victim fairly stated that she had
no grievance against the husband. Although, she
referred to other brothers and sisters of her
husband, still she did not, in any manner
implicate anybody else. According to A.P.P., this
shows that the victim was fair in her statements
recorded as dying declarations and was not at all
tutored. The A.P.P. argued that the fact that
since the early morning the accused was abusing
and rushed against the victim to assault her,
shows that because of the abetment on the part of
this accused the victim committed suicide.
5. PW-1 Bibi w/o Shaikh Haroon, the mother
of victim turned hostile and did not support the
prosecution. Her evidence shows that the victim
Shabana was married to accused No.2 Jumman six
months before the incident. This mother of the
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victim tried to say that the victim was having
trouble of stomach-ache and she died of stomach-
ache. This is clearly not the case as can be seen
from the postmortem report Exhibit 23. It shows
that this witness, who was unfortunately mother of
the victim and who married off her minor daughter
of 17 years of age, has preferred to avoid
speaking the truth. I will ignore her admission in
cross-examination by the accused that at the
relevant time accused No.1 was not residing with
accused No.2 and that she was residing with her
another son. The learned A.P.P. rightly submitted
that the addresses given of both the accused are
of the same village and it hardly makes any
difference when the mother-in-law is staying in
the same neighbour-hood or same village and keeps
coming to make life miserable for the victim.
6. PW-2 Shaikh Matin was examined to prove
the spot panchnama Exhibit 26. The evidence of
PW-2 Shaikh Matin read with spot panchnama
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Exhibit 26 shows that at the spot in front there
was room of 10 ft. X 10 ft. Then there was open
space of 5 ft. X 8 ft. and it was followed by the
last room where the incident appears to have taken
place and where there were signs of burning and
clothes getting crumpled and where the plastic can
smelling of kerosene was found. In the cross-
examination, PW-2 Shaikh Matin stated that accused
No.1 was residing separate from her son, accused
No.2. He deposed that the incident took place in
the last room. He accepted the suggestion of the
accused that the can was found in the kitchen
which was on the front side. However, the incident
had occurred in November 1998 and this witness was
speaking before the Court after about five years,
in October 2003. The witness may have confused
himself regarding the suggestion which was put by
the accused. The spot panchnama read with the
evidence of head constable Pralhad Susar (PW-4)
shows that the police had reached the spot and did
this panchnama regarding the spot and the spot of
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incident was the last room of the house where the
can smelling of kerosene was found. The police
official denied that the plastic can, Article-1
which was before the Court was seized from the
kitchen room. Thus, the evidence shows that the
incident occurred in the last room of the house of
accused where there were signs of burning.
7.
Regarding the first dying declaration
recorded, there is evidence of PW-5 head constable
Bhujangrao Mante. He has deposed that he was
posted at the civil hospital outpost at Jalna. He
received M.L.C. Report regarding victim being
admitted in injured condition. His evidence is
that he went to the burn ward and issued letter to
the medical officer whether the victim was in a
position to give statement. According to him, the
doctor gave in writing that the victim was in a
position to give statement. He states that then he
recorded the statement of the victim as per her
say. According to him, after recording the
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statement, the contents were read over to the
victim and thereafter he obtained thumb impression
of the victim on the statement and himself also
signed the same. He identified the thumb
impression of the victim on the document and
deposed that the statement also bears endorsement
of the doctor. The document has been proved at
Exhibit 33.
8. If the cross-examination of PW-5 is
perused, he was asked and he stated that he
started recording Exhibit 33 at 9.00 a.m. He
admitted that on Exhibit 33 there is only one
endorsement of doctor of the time of 9.30 a.m. He
accepted that on completing recording of
Exhibit 33 he obtained the endorsement of doctor.
He denied that the victim was not in a position to
speak as she had received 96% burns. The further
suggestions that Exhibit 33 was written on the say
of the relatives were also denied. It was denied
that the relatives were present when Exhibit 33
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was prepared. Perusal of Exhibit 33 shows that
this witness PW-5 Bhujangrao took endorsement of
the doctor about victim to be conscious and in a
position to give statement when he concluded the
recording of Exhibit 33. His evidence shows that
even before he started recording the statement, he
did take steps to get the patient checked from the
doctor if the patient was in a condition to make
the statement.
9. The evidence of PW-5 head constable
Bhujangrao Mante further shows that he had sent
letter to Tahsildar for getting recorded the dying
declaration through the revenue official. There is
evidence of PW-3 Shyamrao Nandedkar, the retired
Naib Tahsildar. He deposed that requisition was
received about recording of the dying declaration
and accordingly he visited the civil hospital. He
deposed that he met the medical officer and
requested that he wanted to record the dying
declaration of the victim. According to him, he
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requested the doctor to examine the victim to
ascertain whether she is conscious to give
statement. His evidence shows that doctor
accompanied him and inquired from the victim and
told this witness that the victim was conscious
and witness could record her statement. His
evidence shows that he then recorded the dying
declaration of the victim (Exhibit 29). According
to him, after recording the same, he took the
thumb impression of the victim on the statement
and also put his own signature. The witness
obtained the endorsement of the doctor on the
statement. PW-3 Shyamrao Nandedkar deposed that
the doctor put his endorsement at two places on
the statement. This witness produced the original
dying declaration Exhibit 29. His evidence is that
the dying declaration bears thumb impression of
the victim and endorsement of the doctor and that
the contents were correct.
10. In the cross-examination this PW-3
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Shyamrao Nandedkar was asked and he stated that he
had not brought document to show that he was
authorized to record the dying declaration. I find
that this is not material. He deposed that the
victim was under the supervision of D.M.O.
Poharegaonkar and this doctor put the endorsement
on Exhibit 29. He denied that the parents and
relatives of the victim were present near her cot
when he recorded the dying declaration. He deposed
that some portion of the face of the victim was
burnt. He however did not agree that victim was
not in a position to give statement. There are
further suggestions put to the witness, but he
denied the same.
11. It cannot be said that PW-5 head
constable Bhujangrao Mante who recorded the first
dying declaration Exhibit 33 or PW-3 Shyamrao
Nandedkar who recorded the second dying
declaration Exhibit 29, have been shattered in any
manner in the cross-examination. If the second
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dying declaration Exhibit 29 is perused, in this
dying declaration also, which was recorded hardly
after a gap of 20 minutes of recording of first
dying declaration, victim stated here that her
mother-in-law was quarreling with her since
morning for petty reasons. She stated that the
mother-in-law used to beat her and abuse her daily
and earlier had given her lot of trouble. Her
marriage had taken place about six months back.
Her parents are from Jalna. Because of the daily
beating by the mother-in-law, on that day at about
7.00 a.m. she had poured kerosene on her person
from can and using match stick burnt herself.
Victim further stated that at that time her
mother-in-law was in the house but she walked
away. In this dying declaration, victim referred
to the presence of her sister-in-law Sajja Begum
also who had come for delivery to be present, but
stated that they all went away. Here also this
victim claims that her husband is driver and had
gone for driving and was not present. She again
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added that she has no trouble from her husband.
She mentioned that people from the lane put out
the fire and she has been brought to the hospital
with the help of her brother-in-law Shaikh
Manjoor. She mentioned that in the house she was
living with her husband and mother-in-law. The
dying declaration records that it was read over
to the victim and then she had put thumb
impression as it was correct.
12. Thus, if both the dying declarations are
seen, the victim was consistent that due to
constant trouble from her mother-in-law who used
to beat her, and on the day of incident also due
to the trouble starting since early morning, she
got fed up and burnt herself. The victim did not
try to implicate anybody else and it shows that
she had no intentions to unnecessarily trouble the
relatives. There is a ring of truth surrounding
the dying declarations and it appears that the
trial Court rightly relied on these dying
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declarations to convict this accused. The
postmortem report Exhibit 23 shows that this
victim died due to the extensive burns. The trial
Court rightly convicted this accused for offence
punishable under Section 306 of I.P.C. Due to the
mother PW-1 turning hostile, other Sections were
not proved and there being no Appeal against
acquittal on those counts, I need not discuss
those aspects.
13. In the trial Court when the matter had
come up, the Appellant - accused was 55 years of
age. At the time of sentence, she had pleaded for
leniency being old lady. Trial Court accepted that
she was old lady and it was first offence, which
were treated as mitigating circumstances and took
lenient view. Under Section 306 of I.P.C. it was
possible for the trial Court to sentence the
accused to direct imprisonment for ten years but
the trial Court sentenced her to only seven years
of imprisonment.
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14. The Judgment of conviction and sentence
was passed on 21st October 2003. Now it is July
2016. The learned counsel for the Appellant
vehemently submitted that the Appellant - accused
is now around 70 years of age and is not keeping
good health. He prayed for further leniency on the
count of sentence.
15. Old age by itself is no reason for
leniency when it is juxtaposed with crime
concerned. However looking to the extreme old age
of the Appellant - accused and passage of so much
time, some more leniency can be shown to the
Appellant - accused. Sentence can be converted to
simple imprisonment instead of rigorous
imprisonment due to age of accused. However, I
cannot forget the victim while doing justice. The
victim is not standing before the Court. The
record shows that her unconcerned mother like PW-1
married her off when she was still a minor and she
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was put into a married life where the accused
constantly mentally and physically torturing her.
While reducing the sentence of imprisonment, I
cannot make it a sentence for name-sake. If it is
necessary to look at the accused while passing the
sentence, it is also necessary to look at the
offence committed by the accused and the victim
who lost life in her prime.
16. I thus, proceed to pass the following
order:
O R D E R
(I) The Appeal of the Appellant against
conviction under Section 306 of the
Indian Penal Code, 1860 is dismissed.
(II) However, the sentence of
imprisonment as imposed by the trial
Court is reduced from seven years to four
years (4 years) of simple imprisonment
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and fine of Rs.100/- (Rupees Hundred). In
default of payment of fine she shall
further suffer simple imprisonment for
three months.
(III) The Appeal is accordingly
disposed of.
[A.I.S. CHEEMA, J.]
asb/JUL16
