Abeda Kasam Tadvi vs State Of Maha
2024 Latest Caselaw 25644 Bom

Bombay High Court

Abeda Kasam Tadvi vs State Of Maha on 10 September, 2024

2024:BHC-AUG:21323

                                                -1-                 Cri.Appeal.387.2004

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 387 OF 2004

              Abeda Kasam Tadvi,
              Age : 70 years, Occu. : Nil.,
              R/o. Marul, Tal. Yawal,
              Dist. Jalgaon.                                        ... Appellant.

                     Versus

              The State of Maharashtra                              ... Respondent.

                                               ...
                Mr. Vilas P. Sawant, Advocate for Appellant (Appointed through
                                          Legal Aid)
                 Mrs. Chaitali Chaudhari - Kutti, APP for Respondent - State.
                                               ...

                                              CORAM : ABHAY S. WAGHWASE, J.
                                     RESERVED ON : 05 SEPTEMBER, 2024
                                  PRONOUNCED ON : 10 SEPTEMBER, 2024

              JUDGMENT :

1. In this appeal, there is challenge to the judgment and

order of conviction rendered by learned 2nd Additional Sessions

Judge, Jalgaon in Sessions Case No. 73 of 2003 recording guilt of

the appellant for offence punishable under section 307 of Indian

Penal Code (IPC).

FACTUAL MATRIX

2. In short case of prosecution is that, present appellant is

mother-in-law of victim Madina wife of accused no.2. It is

prosecution version that, husband and mother-in-law subjected

-2- Cri.Appeal.387.2004

victim to cruelty, they disliked her because of her dark

complexion. On 23.03.2003, mother-in-law picked up quarrel with

daughter-in-law victim as sugar container was not found. After the

quarrel and abuses, she poured kerosene on victim and ignited her.

She was taken to the hospital and on examination, she was found

to have suffered 38% burns. On her report, crime and offence was

registered.

After investigation, appellant mother-in-law and

husband were charge-sheeted and tried by learned 2 nd Additional

Sessions Judge, Jalgaon for offence punishable under sections 307,

498A and 504 of IPC.

On appreciation of evidence, learned trial Judge

acquitted husband accused no.2, but convicted present appellant

mother-in-law for offence punishable under section 307 of IPC, vide

judgment and order dated 23.04.2004. Hence, the appeal.

SUBMISSIONS

On behalf of Appellant :-

3. Learned counsel Shri Sawant for appellant would point

out that, at the time of incident, appellant was around 70 years of

age. As on today she is over 90 years of age. He pointed out that,

there were no quarrel or incineration as alleged. Rather according

to him, victim PW2 Madina suffered accidental burns while

-3- Cri.Appeal.387.2004

cooking. That, except testimony of victim, which is full of material

omissions and contradictions, there is no supportive or

corroborative piece of evidence. He pointed out that, there is no

material about an attempt to commit murder. That, only upper

limbs/extremities are affected. Therefore, according to him, charge

itself was misplaced. He pointed out that, neighbours and

independent witnesses have not supported prosecution, however,

still learned trial court has accepted prosecution version and

recorded guilt. According to him, no sound reasons are assigned

for justifying conviction. In the alternative, he submitted that,

considering appellant to be over 90 years of age as on today, she

may be let off on sentence already undergone.

On behalf of Prosecution :

4. Per contra, learned APP, who supported the conviction

submitted that, victim herself has stepped in the witness box. She

has narrated that she was maltreated and appellant disliked her

because of her dark complexion. That, it amounted to mental

cruelty. That, on the day of incident, appellant picked up quarrel

on petty count, but poured kerosene and set victim daughter-in-law

on fire. Only because of timely intervention and medical aid, victim

could survive. Learned APP pointed out that, learned trial court

has acquitted husband as no role was attributable to him and this

-4- Cri.Appeal.387.2004

itself shows that, there is proper appreciation. Considering the

nature of offence, she prays to dismiss the appeal.

EVIDENCE ON RECORD.

5. PW1 Sharifa, neighbour did not support the

prosecution.

PW2 Madina victim, who deposed at Exh.30, narrated

the incident dated 23.03.2003, in which appellant allegedly poured

kerosene and set her on fire by use of firewood, resulting into

burns.

PW3 Abeda, mother of victim stated that, there was ill

treatment to her daughter, who reported whenever she came.

That, on the day of incident, she learnt that her daughter was

ignited by pouring kerosene.

PW4 Meharban, neighbour did not support the

prosecution.

PW5 Faruq, Police Head Constable, who recorded

statement of victim (Exh.31), which is made the basis of

registration of crime.

PW6 A.P.I. Jainarayan, who carried out investigation

and charge-sheeted accused.

                                        -5-                          Cri.Appeal.387.2004




                                  ANALYSIS

6. Evidence of victim PW2 Madina is crucial. Regarding

incident, she has deposed as under :-

"2. After marriage, I started residing with both accused at Marul. Then, after one year, I and accused no.2 went to reside at Surat. There, two sons and one daughter were born to me. The, when I was pregnant for 4th time, I came to Marul for delivery. I stayed at Marul for seven months. At that time, both accused used to say that they did not like me because I am black.

3. On 23.03.2003, at 11:00 a.m., there was quarrel between me and accused no.1, because the sugar which was brought by her was not found. At that time, accused no.1 poured kerosene upon me and lit me with burning fire-wood. So, I shouted and my brother-in-law, Meharban, came and extinguished the fire. I was then taken to Rural hospital. There, police came and took down my report. Report, now shown to me, is same, contents are true and correct. It bears my signature. It is at Exh.31."

7. Though mother PW3 Abeda alone supported

prosecution, she has mere hearsay information. Independent

witnesses, who are neighbours have not supported the prosecution,

but investigating machinery has drawn spot panchanama and has

also collected medical papers (Exh.35).

On scrutiny of spot, it is emerging that, incident has

taken place near chulha. Situation shown in the panchanama is

-6- Cri.Appeal.387.2004

that, there is half baked jawar roti on the pan. Victim's version is

that, around 11:00 a.m., there was quarrel between herself and

appellant because sugar brought by her was not found and

thereafter, she poured kerosene and she has specifically stated

that she was ignited by mother-in-law. Scene of occurrence at

Exh.26 shows that, near the chulha, there is half burn fire-wood

along with kerosene container/bottle.

8. Statement of victim shows that, it was recorded

promptly at hospital. Exh.35 carried following noting :-

"Burn on 23.03.2003 at around 11:00 a.m.; Quarrel with husband. Then burn by mother-in-law after pouring kerosene on her. 32 weeks pregnancy."

Above texts shows that, history is promptly noted i.e.

burns by mother-in-law after pouring kerosene. This Exh.35 is

prepared at 11:45 a.m. on 23.03.2023 i.e. immediately after the

occurrence and admission. Therefore, taking the testimony of

victim into account coupled with medical papers (Exh.35), there is

no hesitation to hold that mother-in-law appellant is solely

responsible for inflicting 38% burns. Therefore, charge and offence

stand proved.

-7- Cri.Appeal.387.2004

9. Submissions are made in the alternative that appellant

as on today over 90 years of age and at the time of incident, she

was over 70 years of age. Operative part shows that, after

conviction, she was behind the bar from 24.03.2003 to 15.07.2003

i.e. 3 months and 23 days, and therefore, considering the

circumstance, in which incident took place i.e. sudden quarrel

which flared up to pouring kerosene and also taking into

consideration the current age of the victim, sentence already

undergone would suffice and subserve the purpose of justice.

In view of above, substantive sentence is reduced to

period already undergone of around 3 months and 23 days. The

judgment and order of trial court is required to be modified to that

extent only. Hence, I proceed to pass the following order:

ORDER

I. The conviction of the appellant Abeda Kasam Tadvi for offence punishable under section 307 of IPC by learned 2nd Additional Sessions Judge, Jalgaon dated 23.04.2004 in Sessions Case No. 73 of 2003 is affirmed and hereby kept intact.

HOWEVER II. The sentence awarded to the appellant to suffer simple imprisonment for one year is hereby modified as under :

-8- Cri.Appeal.387.2004

"The appellant Abeda Kasam Tadvi is sentenced to suffer imprisonment already undergone by her."

III. Bail bond of appellant stands cancelled.

IV. It is clarified that rest of the operative order passed by the trial court is maintained.

V. The appeal is disposed of in the above terms.

(ABHAY S. WAGHWASE, J.)

Tandale