Bombay High Court

Anwarkhan Sandukhan Pathan vs The State Of Maharashtra on 7 July, 2017

Bench: S.S. Shinde

                                                                 cria294.01
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.294 OF 2001


 Anwarkhan s/o Sandukhan Pathan,
 Age-25 years, Occu:Labourer,
 R/o-Chawkawadi, 
 Tq. &  Dist-Aurangabad.
                                 ...APPELLANT 
        VERSUS             

 The State of Maharashtra,
 Through Government Pleader,
 High Court of Judicature
 of Bombay, Bench at Aurangabad.   
                                 ...RESPONDENT

                      ...
    Mr. D.S. Bharuka Advocate for  Appellant.
    Mr. P.G. Borade, A.P.P. for Respondent.       
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 30TH JUNE, 2017.

DATE OF PRONOUNCING JUDGMENT: 07TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

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Judgment and order dated 11th May, 2001, passed by

the Additional Sessions Judge, Aurangabad in

Sessions Case No.317 of 2000 thereby convicting

accused/ Appellant - Anwarkhan s/o Sandukhan

Pathan for the offence punishable under

Section 302 of the Indian Penal Code (for short

"I.P. Code") and sentencing him to suffer

imprisonment for life and to pay fine of

Rs.1000/-, and in default, to suffer further

simple imprisonment for five months, and further

convicting him for the offence punishable under

Section 498-A of the I.P. Code and sentencing him

to suffer rigorous imprisonment for two years and

to pay fine of Rs.500/-, and in default, to suffer

simple imprisonment for three months.

2. The prosecution case, in brief, is as

under:-

A) Deceased Zakiyabee married with accused

Anwarkhan 2 and 1/2 years prior to her death. She

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was daughter of PW-3 Khairunnisa Begum and PW-4

Bashirkhan, resident of village Kaelgaon, Tq-

Sillod, and after marriage she was residing with

accused at village Chawkawadi, Tahsil-Aurangqbad.

It is the case of the prosecution that after

marriage Zakiyabee could not bear any child for

about 2 and 1/2 years and therefore accused was

disliking her. The accused started torturing

Zakiyabee by beating her and was also asking her

to bring the sum of Rs.4000/- for purchasing a

moped. The behaviour of accused was indifferent,

even when there was marriage of younger sister of

Zakiyabee.

B) It is the case of the prosecution that,

on 4th June, 2000, at about 7.00 a.m. accused

prepared himself for going to his regular labour

work in quarry, and at that time deceased

Zakiyabee requested him, not to go for work on

that day. On this, accused told deceased that he

will not listen to her, she would go for work and

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she may do whatever she wants. Deceased replied

that she will not do anything. Thereafter accused

Anwarkhan inquired with deceased Zakiyabee,

whether she would die if he goes on work on that

day. Zakiyabee answered him that, there was no

reason for her to die and why she should die. On

hearing such reply from deceased Zakiyabee,

accused got enraged, he then took can of kerosene

and poured it on the person of Zakiyabee and set

her on fire. Accused was standing there till

Zikayabee caught fire all around. It is the case

of the prosecution that Zakiyabee then came out of

house and some persons gathered there and

extinguished the fire. Thereafter Zakiyabee was

shifted to hospital at Aurangabad.

C) After Zakiyabee was shifted to hospital

at Aurangabad, police attached to Government

Medical College Hospital, recorded a medico-legal-

case on the basis of information given by mother-

in-law of Zakiyabee and communicated it to

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concerned police station at Phulambri. Police from

the Police Station Phulambri immediately visited

Zakiyabee and her statement was recored by A.S.P.,

PW-8 Vishwas Nangre Patil. Her statement also got

recorded through Executive Magistrate, Shashikant

Bomble, wherein aforesaid allegations were recited

by the deceased. The police had even got video-

graphy of the statement which deceased had made to

Executive Magistrate and police.

D) Initially, PW-3 Khairunnisa and PW-4

Bashirkhan were informed that deceased sustained

burn injuries on account of the flaring-up of the

stove, but when they visited the hospital,

deceased made statement before them that it was

the accused who had poured kerosene on her person

and set her on fire. Deceased was alive till 8th

June, 2000, and ultimately succumbed to the burns.

PW-6 Dr. Tapse conducted the postmortem and found

that deceased had about 71% burn injuries, and her

injuries and death was on account of "septicemic

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shock", due to burns.

E) Meanwhile ASP Nangre Patil had already

registered the offence on the basis of the

statement given by deceased, under Section-307 of

the I.P. Code. He also effected panchnama of the

spot. After the death of the deceased,

investigation was converted to one under Section-

302 of the I.P. Code, and after completion of all

the formalities, accused came to be charge-sheeted

for aforesaid offences.

F) A charge Exhibit-3, for an offence

punishable under Sections 498-A, 302 of the I.P.

Code was framed against the accused and the same

was explained to him. The accused pleaded not

guilty and claimed to be tried. The defence of

accused is that he never ill-treated his wife

Zakiyabee and she sustained burn injuries on

account of the flaring-up of the stove, and he has

been falsely implicated in this case by the

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parents of Zakiyabee.

3. After recording the evidence and

conducting full fledged trial, the trial Court

convicted accused for the offence punishable under

Section 302 of the I.P. Code and sentenced him to

suffer imprisonment for life and to pay a fine, as

afore-stated. The trial Court also convicted

accused for the offence punishable under Section

498-A of the I.P. Code and sentenced him to suffer

rigorous imprisonment for two years and to pay

fine, as afore-stated. Hence this Appeal by the

accused.

4. Mr. Bharuka, learned counsel appearing

for the Appellant invites our attention to the

notes of evidence and submits that both the dying

declarations of deceased Zakiyabee, one recorded

by the police officer and another recorded by

Executive Magistrate, are not inspiring confidence

as those are recorded one after another and

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looking to the condition of Zakirabee, she was not

in such a condition to give statements one after

another. As per the medical evidence, she has

sustained 71% burns and thus the condition of the

victim was not good and she was not in a position

to give such statements. The learned counsel

states that, as per the prosecution case deceased

Zakiyabee requested her husband not to go for

labour work on that day and on such trifle ground

quarrel took place and accused poured kerosene on

the person of Zakiyabee and set her on fire.

Therefore, he submits that the prosecution story

is not believable. It has been argued by the

learned counsel that the trial Court has not

properly appreciated the evidence brought on

record. There was no evidence brought on record

by the prosecution to prove alleged demand,

harassment and ill-treatment. The inconsistent

dying declarations should not have been accepted.

The dying declarations were not free from doubt

and therefore the conviction could not have been

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based upon such doubtful dying declarations.

Therefore he submits that the Appeal may be

allowed.

5. As against this, learned A.P.P. appearing

for the State, argued that both the dying

declarations are consistent. In both the dying

declarations, Zakiyabee clearly stated that, on

account of quarrel on trifle ground, her husband

poured kerosene on her person and set her on fire.

The evidence of mother and father of deceased is

consistent. The findings recorded by the trial

Court are in consonance with the evidence brought

on record by the prosecution. Therefore, he prayed

that the Appeal may be dismissed.

6. To prove the offence under Section 498-A

of the I.P. Code, the prosecution has relied upon

the oral evidence of PW-3 Khairunnisa Begum

Bashirkhan Pathan and PW-4 Bashirkhan, i.e. mother

and father of deceased Zakiyabee. In this respect,

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the prosecution has also relied upon the two dying

declarations given by deceased Zakiyabee.

7. The prosecution examined PW-3 Khairunnisa

Begum w/o Bashirkhan Pathan. She deposed that

about 2 and 1/2 years prior to the incident,

marriage of her daughter Zakiyabee was solemnized

with accused. After marriage, Zakiyabee was

residing at Chaukawadi. One year after marriage,

accused started torturing Zakiyabee by demanding

money. She further deposed that whenever Zakiyabee

was visiting her house, Zakiyabee was narrating

her that accused used to beat her by demanding

money. She used to convince her daughter, so also

she used to had convince accused. Death of

Zakiyabee took place 2 and 1/2 years after

marriage. She deposed that Zakiyabee might have

visited on two occasions to her. She deposed that

when Zakiyabee was beaten by accused, she told

that accused was beating her and demanding

Rs.4000-/.

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. During the course of cross-examination of

PW-3 Khairunnisa, she was unable to tell on what

occasions and dates Zakiyabee had visited their

house. She stated that there used to be quarrel

between husband and wife on trifle reasons. She

stated that police had recorded her statement

after the incident. She had told police that

accused was demanding Rs.4000/-. She was unable to

tell, why the same was not written in her

statement. She further stated that she had also

told police that the main reason of quarrel was

money. She was unable to tell why the same was not

recorded in her statement.

8. The prosecution examined PW-4 Bashirkhan

Rajekhan. He deposed that her daughter Zakiyabee

was married with accused Anwar prior to three

years. One year after marriage accused Anwar

started beating Zakiyabee. Accused started cursing

her wife that she was not bearing any child. This

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continued for 2 to 4 months. Thereafter his

daughter came to his house on the occasion of

festival and she narrated about the behaviour of

accused. He convinced her. He had also convinced

accused. Thereafter Zakiyabee went with accused

and stayed there for 3 to 4 months. She again

visited Kelgaon and that time she complained

against accused that he was again beating her and

also demanding Rs.4000/- for purchasing a moped.

He deposed that he could not fulfill the demand as

there was marriage of his younger daughter

Shabana. He deposed that in marriage function of

his younger daughter Shabana also, the behaviour

of accused was not proper.

. During the course of cross-examination,

PW-4 Bashirkhan stated that there was no grievance

of Zakiya about living standard, income and the

work which she had to do at the house of accused.

He stated that he told to police that accused was

demanding Rs.4000/- for purchasing a moped, but he

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was unable to assign any reason why the said part

of his statement was omitted by the police. He

admitted that he made no mention of the behaviour

of the accused at the time of marriage of Shabana,

in his police statement.

9. Thus, after careful perusal of the oral

evidence of PW-3 Khairunnisa and PW-4 Bashirkhan,

it is clear that the allegations regarding

harassment, ill-treatment and demand are general

in nature. The prosecution witnesses have not

stated any specific incident or specific date when

such alleged ill-treatment was given by accused to

deceased Zakiyabee, and when such alleged demand

was made. If the evidence of both the prosecution

witnesses i.e. PW-3 and PW-4, on the point of

harassment, ill-treatment and unlawful demand is

considered in its entirety, it suffers from

omissions, exaggerations, contradictions and

improvements and makes it unbelievable to rely

upon the same. We will consider, in detail, both

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the dying declarations of Zakiyabee at later

stage. However, in this context, if we peruse both

the dying declarations of Zakiyabee, though she

has stated that her husband was abusing and

beating her intermittently, however there is no

whisper about the demand in both the dying

declarations and on the point of demand, both the

dying declarations are silent.

10. In the light of discussion in foregoing

paragraphs, the evidence brought on record by the

prosecution is too scanty and the same is not

sufficient to attract the cruelty as contemplated

under the provisions of Section 498-A of the I.P.

Code. In absence of proving an unlawful demand for

any property or valuable security or that on

account of failure by wife or any person related

to her to meet such demand, harassment on account

of same has not been proved by the prosecution in

as much as, as already observed Zakiyabee in her

both dying declarations at Exhibit-7 and

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Exhibit-22, has not stated single word about

unlawful demand of Rs.4,000/-. Therefore, the

harassment of the woman as contemplated under the

provisions of Section 498-A of the I.P. Code is

not proved by the prosecution. In that view of the

matter, a charge for the offence punishable under

Section 498-A of the I.P. Code shall automatically

fails. An earlier to the incident dated 4th June,

2000, admittedly, no any F.I.R./complaint was

filed against the Appellant by Zakiyabee

(deceased) or her parents, alleging an ill-

treatment or the harassment as contemplated under

the provisions of Section 498-A of the I.P. Code.

Therefore, in our considered opinion, the findings

recorded by the trial Court in this regard are not

proper. The trial Court has not appreciated the

evidence in its proper perspective regarding the

offence punishable under Section 498-A of the I.P.

Code. Therefore the findings recorded by the trial

Court that offence under Section 498-A of the I.P.

Code is proved against the accused, are perverse

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and the same requires to be quashed and set aside.

11. The prosecution has examined PW-6 Dr.

Sunil Purshuram Tapse. He deposed that he

conducted postmortem on the dead body of Zakiyabee

on 8th June, 2000 at 10.00 a.m. along with Dr.

Yadav. He deposed that he has described the

details of burn injuries in Column No.17. The

patient received 71% burns. According to him, all

burn injuries were ante-mortem. As per his

opinion, death of patient was on account of

septicemic shock due to burn. In his cross-

examination, he stated that, it may be possible

that on pouring kerosene from head to toe, the

upper part may receive more burning than the lower

part of the body.

12. Now, we would like to consider the dying

declarations. PW-8 Vishwas Narayan Nangre Patil,

A.S.P., deposed that on 4th June, 2000 after he

took charge as in-charge of Phulambri Police

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Station, he learnt about registration of M.L.C. in

respect of a woman. Accordingly he visited Ghati

Hospital. He directed the inquiry officer to get

opinion of medical officer. He further deposed

that medical officer had opined that patient was

conscious and competent to give statement.

Thereafter he recorded statement of the victim,

Exhibit-22.

13. In first dying declaration Exhibit-22

recorded by PW-8 Vishwas Nangre Patil, Zakiyabee

stated that, she is resident of Chaukawadi, Tq. &

Dist-Aurangabad. Her parental house is at

Murdeshwar(Kelgaon), Tq-Sillod. Her marriage was

solemnized before two years with Anwarkhan

Sandukhan Pathan. She stated that in her family,

she has father-in-law, mother-in-law, brother-in-

law and two sister-in-laws who are married. Her

brother-in-law Firojkhan is residing at another

place for the purpose of taking education. After

her marriage for about one year her husband has

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treated her well. Thereafter her husband Anwarkhan

started beating her and abusing her

intermittently, on the trifle issues, and used to

ill-treat her mentally and physically. She stated

that she used to inform her father, mother,

brother and other relatives about the ill-

treatment given by her husband but every time

relatives from her parental house used to give her

understanding and used to send her to matrimonial

house. She stated that she has no complaint

against her father-in-law and mother-in-law. She

stated that on 4th June, 2000 (on the day of

incident) at 7.00 a.m. she was in the house along

with her husband. When her husband proceeded to go

for work on mine, she asked him not to go for work

on that day. At that time her husband said that he

would not listen her and he would go for work and

asked her, what she would do. She replied that she

would not do anything. Thereafter her husband

asked her, whether she will die and she replied

that, why she will die. Due to such reply, her

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husband got angry and he took out the kerosene can

and poured kerosene from it on her person and by

igniting match stick, he set her on fire. He stood

there. When she completely caught on fire, she

came out of the house crying. At that time, her

husband put bed on her person and extinguished the

fire. She stated that she received burns to her

mouth, neck, breast, both hands, stomach, back,

both the thighs and other parts of body.

Thereafter her father-in-law, mother-in-law and

others have admitted her in Ghati hospital,

Aurangabad and there she was taking treatment. She

further stated that her husband Anwarkhan, aged-25

years, beat and abused her on trifle ground and

ill-treated her mentally and physically and on the

day of incident i.e. on 4th June, 2000 in the

house at Chaukawadi, her husband poured kerosene

on her person and set her ablaze. She sustained

80% burns and her husband had tried to kill her.

14. PW-1 Shashikant Narayan Bomble is a

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Special Executive Magistrate. He deposed that on

4th June, 2000 he received request letter from

police to record statement of a woman with burn

injuries, who was admitted in Ghati hospital. He

visited the hospital, he inquired with the medical

officer attending the said woman, about the

consciousness state of the patient to give her

statement. Medical Officer then informed him that

patient is conscious and able to give her

statement. He thereafter recorded the statement of

the patient, which is at Exhibit-7.

15. The relevant portion of the dying

declaration Exhibit-7, recorded by the Special

Executive Magistrate, in vernacular, reads as

under:

" le{k fopkjY;k o:u eh tdh;k csxe Hkz- vUoj iBk.k tckc lkaxrs

dh] fnukad [email protected]@2000 jksth vankts 7-00 ,-,e- oktrk eh ekb;k ?kjkr

gksrs- ek>s irh [knk.koj dkeklkBh tk.;kl fu?kkys] rsOgk eh R;kauk

lkaxhrys dh] dkekoj tkow udk- rsOgk ek>s irh Eg.kkys eh rq>s ,sdr ukgh

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eh dkekoj tk.kkj- rq dk; dj'khy vls eyk cksyys] rsOgk eh dkgh

dj.kkj ukgh vls eh Eg.kkys] rsOgk irh Eg.kkys rq e:u tk'khy dk \

rsOgk eh Eg.kkys eh d'kkyk e:- rsOgk ekb;k irhl jkx vkyk o R;kus

?kjkr vlysyh jkWdsyus Hkjysyh dWu ?ksryh o R;krhy jkWdsy ekb;k

vaxkoj vksrys o R;kusp dkMh isVowu eyk isVowu fnys- eyk isVowu rks

frFksp mHkk jkfgyk- eh iw.kZ isVY;koj vksjMr ?kjkckgsj vkys rsOgk ekb;k

irhus ekb;k vaxkoj xks/kMh Vkd;wu eyk fo>foys- uarj eyk mipkjklkBh

ekb;k lklw] lkljs o irhus ?kkVh nok[kkuk vkSjaxkckn ;sFks vk.kwu nk[ky

dsys- lnjhy ?kVusP;k osGh ekb;k irh f'kok; brj dks.khgh uOgrs- ek>s

lklw] lkljs ckgsj xsys gksrs- ek>s yXu gksowu 2 o"kZ >kys vlwu ewyckG

dkgh ukgh- eyk ek>k uojk v/kqu e/kwu ekjgk.k o f'kohxkG djhr vls-

eyk ekb;k irh f'kok; brj dks.kkpkgh =kl ukgh- eyk ekb;k irhus

vaxkoj jkWdsy Vkdwu tkGys vkgs- eyk ek>k tckc okpwu nk[kfoyk vlrk

rks [kjk o cjkscj vkgs- eyk ejkBh cksyysys letrs- vlk tckc eh iw.kZ

'kq/nhoj o Lo[kq'khus] dqBY;kgh nMi.kk[kkyh u ;srk lkafxryk vkgs- tckc

fnukad 4&6&2000 jksth 1-55 ih-,e- oktrk lq: d:u 2-20 ih- ,e-

oktrk laifoyk-"

. The true translation of the dying

declaration Exhibit-7, recorded by the Special

Executive Magistrate, is as under:-

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"On asking personally, I Jakiya Begam w/o Anwar Pathan gives my statement that on 4th June, 2000 at about 7.00 a.m. I was in my house. My husband started to proceed to go for work on mine, when I told him not to go on work. Then my husband told me that he will not listen and he will go to work. He told, what I will do, then I told him that I will do nothing. Then husband asked me whether I will die? Then I told him why I shall die? Then my husband became angry and he took the kerosene can and poured the kerosene from that can on my person and he himself set me on fire, with match- stick. He stood there even after setting me on fire. When I completely caught on fire and came out of the house crying, then my husband put bed on my person and extinguished the fire. Thereafter my mother-in-law, father-in-law and husband took me to Ghati Hospital at Aurangabad and admitted me for treatment. At the time of incident, nobody was there except my husband. My mother-in-law, father-in-law were out of the house. Even two years after my marriage, I have

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no any issue. My husband used to beat and abuse me intermittently. I have no trouble from anybody except my husband. My husband poured kerosene on my person and burnt me. My statement has been read over to me, it is true and correct. I understand what is told in Marathi. This statement is given by me in complete consciousness, willingly without having pressure of anybody on me. The recording of statement was started at 1.55 p.m. and concluded at 2.20 p.m. on 4th June, 2000."

16. The prosecution has examined PW-5 Dr.

Sachin Jagannath Chavan. He deposed that he had

endorsed statement of deceased Zakiyabee, which

was recored by Special Executive Magistrate,

Aurangabad on 4th June, 2000. He deposed that

Exhibit-7 bears his endorsement to the effect that

patient was conscious and oriented and in a

position to give statement, which was recorded

between 1.55 p.m. to 2.20 p.m. Patient was able to

give her statement. After ascertaining health of

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patient, he made an endorsement. This witness was

cross-examined at length by the defence, however

nothing useful to the defence has been elicited

from his cross-examination.

17. Thus, if both the dying declarations of

deceased Zakiyabee are read conjointly, those are

consistent on material particulars. In both the

dying declarations, Zakiyabee stated that, after

quarrel on trifle ground, her husband poured

kerosene on her person and set her on fire. The

prosecution has proved both the dying declarations

at Exhibit-7 and Exhibit-22 respectively, by

examining relevant witnesses.

18. In this respect, PW-3 Khairunnisa Begum

w/o Bashirkhan Pathan deposed that on the day of

incident, her relative told her that her daughter

Zakiyabee was admitted in burn-ward at Ghati

hospital. She visited hospital. Her daughter was

totally in burnt condition. PW-3 Khairunnisa

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deposed that she made inquiry with her daughter as

to what has happened. Zakiyabee told her that,

accused wanted to go for doing labour work on a

quarry, and at that time Zakiyabee had prevented

him, saying that he should not go for work on the

quarry. Accused then inquired with her whether she

is likely to die if he goes to work on quarry.

That time Zakiyabee replied, why she should die.

There were some verbal exchanges between accused

and Zakiyabee and the accused went inside the

house, brought a kerosene can and poured the

kerosene on her person and set her on fire, due to

which she started burning. PW-3 further deposed

that till Zakiyabee died, she was attending her

for about three days. Zakiyabee died on 8th June,

2000.

. Thus, it is clear from perusal of

evidence of PW-3 Khairunnisa, that her evidence is

consistent. She deposed that her daughter had made

oral dying declaration before her that accused

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poured kerosene on the person of her daughter and

set her on fire.

19. PW-4 Bashirkhan Rajekhan deposed that on

the day of incident, he received a message that

accused had caused burn injuries to Zakiyabee. He

visited Zakiyabee in Ghati Hospital in burns ward.

Zakiya was having burn injuries all around her

body. He made inquiry with her as to how the

incident had taken place. That time she narrated

that she had requested accused not to go for work

on that day. Accused became angry and he started

abusing her and inquired as to why she was not

allowing him to go for work. Zakiyabee used to go

for labour work along with accused and on that

particular day she was not willing to go for

labour work and therefore she requested accused

not to go for labour work. Then Zakiyabee showed

her reluctance to go for work. At that time

accused inquired with Zakiyabee, whether she would

die if he attends the work. Zakiyabee replied, why

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she would die. Then accused said that if she is

not dying, he will make her die, and then poured

kerosene and set her on fire. When Zakiyabee came

towards the door, that time accused extinguished

fire by wrapping her with a quilt.

. Thus, it is clear from perusal of

evidence of PW-4 Bashirkhan, that the oral dying

declaration was made before him by his daughter

Zakiyabee.

20. Upon careful perusal of the entire

evidence brought on record by the prosecution, it

is clear that both the dying declarations i.e. at

Exhibit-7 and Exhibit-22 are consistent and

corroborates each other. The same are also

corroborated by the oral testimony of PW-3

Khairunnisa, mother of the deceased and PW-4

Bashirkhan, father of the deceased. Dying

declaration Exhibit-7 is recorded by PW-1

Shashikant Bomble, Special Executive Magistrate.

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PW-5 Dr. Sachin Chavan deposed that he examined

the patient, Exhibit-7 bears his endorsement to

the effect that patient was conscious and oriented

and in a position to give statement, which was

effected between 1.55 p.m. to 2.20 p.m. He

further deposed that patient was able to give her

statement and after ascertaining health of

patient, he made an endorsement. Thus prosecution

has duly proved the dying declaration Exhibit-7,

recorded by the Special Executive Magistrate. In

view of the exposition of law by the Supreme Court

in the case of Khushal Rao vs. State of Bombay 1,

the dying declaration recorded by a competent

Magistrate in the proper manner, that is to say,

in the form of questions and answers, and, as far

as practicable, in the words of the maker of the

declaration, stands on a much higher footing than

a dying declaration which depends upon the oral

testimony which may suffer from all the

infirmities of human memory and human character.

1 A.I.R. 1958 S.C. 22 (V 45 C 4)

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Thus both the dying declarations are consistent,

corroborated by the prosecution witnesses, and we

do not find any reason to disbelieve the said

dying declarations.

21. For the above reasons, we do not find any

substance in this Appeal as regards the incident

is concerned. The evidence does show that the

victim suffered culpable homicide at the hands of

her husband i.e. accused. The medical evidence

shows that deceased sustained 71% burn injuries.

In our considered view, the accused was the author

of the burn injuries sustained to deceased

Zakiyabee.

22. However, we find from the record that the

marriage was prior to two years and in the

morning hours on the day of incident, on the

trifle ground quarrel took place between the

couple. On the day of incident, when accused

husband was intending to proceed for labour work,

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Zakiyabee requested him not to go for work on that

day, and on that count there was some altercation

between the couple. It appears that the accused,

in the heat of passion took kerosene can and

poured the kerosene on the person of Zakiyabee and

set her ablaze. It has come on record that when

Zakiyabee caught on fire, accused wrapped her by

bed and extinguished the fire. Immediately

thereafter accused himself along with others, took

Zakiyabee to the hospital for treatment.

Therefore, taking into consideration the attending

circumstances and the fact that accused

extinguished the fire soon after the incident and

that there was no premeditation as such, we are of

the view that Exception 4 to Section 300 of the

I.P. Code applies to the facts of the present case

and appropriate conviction should be under Section

304 Part II of the I.P. Code, instead of Section

302 of the I.P. Code.

23. For the reasons afore-stated, we pass the

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following order:-

O R D E R

(I) The conviction and sentence of the

Appellant, for the offence punishable

under Section 498-A of the Indian Penal

Code is set aside.

(II) The conviction and sentence of the

Appellant, for the offence punishable

under Section 302 of the Indian Penal

Code, 1860 is set aside. Instead, the

Appellant - Anwarkhan s/o Sandukhan

Pathan is convicted under Section 304

Part II of the Indian Penal Code, 1860

and for the said offence, the

Appellant-accused is sentenced to

suffer rigorous imprisonment for ten

years (10 years) and to pay a fine of

Rs.2000/- (Rupees Two Thousand), and in

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default of payment of fine, to suffer

further simple imprisonment for three

months.

(III) The period of detention, if any,

be given as set-off to the Appellant.

(IV) Appellant- accused Anwarkhan s/o

Sandukhan Pathan shall surrender

forthwith before the trial Court. The

trial Court shall ensure that

immediately Appellant-accused is sent

to the prison to suffer the sentence

awarded to him.