Bombay High Court
Yusuf Farukh Songadiya vs The State Of Maharashtra on 21 January, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:2123-DB
Criminal Appeal No.1039 of 2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1039 OF 2024
Yusuf Farukh Songadiya,
r/o. Vakipada, Tq. Navapur,
Dist. Nandurbar ..Appellant
Vs.
The State of Maharashtra,
Through Police Station Officer,
Police station, Navapur,
Dist. Nandurbar ..Respondent
----
Mr.Prashant B. Jadhav, Advocate for appellant (appointed)
Mr.S.J.Salgare, APP for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : JANUARY 21, 2025
JUDGMENT (Per R.G.Avachat, J.):
-
The challenge in this appeal is to the judgment of
conviction and order of consequential sentence passed by learned
Addl. Sessions Judge, Nandurbar (trial court) in Sessions Case No.13 of
2018 on 29.02.2020. Vide the impugned order, the appellant has been
convicted for the offence punishable under Section 302 of Indian Penal
Code and therefore, sentenced to suffer imprisonment for life and to
pay a fine of Rs.1,000/- (Rupees One Thousand), with default
stipulation.
2 Criminal Appeal No.1039 of 2024
2. The facts, giving rise to the present appeal, are as
follows:-
The appellant married Shabana @ Pinky (deceased)
fifteen years prior to the date of incident. The couple was blessed
with three children. All of them would reside together at village
Wakipada, Tq. Navapur, Dist.Nandurbar. It was an interfaith
marriage. The parents of deceased - Shabana @ Pinky were
opposed to their marriage. They were residing in the nearby house
of the appellant. By 10.30 p.m. on 19.02.2018, a quarrel ensued
between the appellant and his wife - Shabana over marriage
invitation of one of their relations. The appellant was annoyed with
his wife. The quarrel got intensified. The appellant doused Shabana
@ Pinky with kerosene and set her ablaze. PW 3 - Roshni, their
daughter rushed to the grandparents' house to inform the same. All
of them came. Shabana @ Pinky was rushed first to Civil Hospital,
Navapur. As her condition deteriorated, she was shifted to Civil
Hospital, Dhule; but in vain. She breathed her last on 5 th day of the
incident, i.e. on 24.02.2018, in Dhule hospital.
3. A medico-legal case was registered. No sooner the
victim was admitted to the hospital, the police official (PW 7 -
3 Criminal Appeal No.1039 of 2024
Sangita Kadam, PSI) recorded her statement after having verified the
victim from the Doctor that she was conscious oriented to make a
statement. The statement of the victim was also recorded by the
Executive Magistrate the way it was recorded by the police official.
Both the statements of the victim became her dying declarations.
Based on her statement, crime, vide C.R. No.20 of 2018 was
registered, initially, for offence under Section 307 of Indian Penal
Code and on her demise, Section 302 of Indian Penal Code came to
be invoked.
4. The appellant was already arrested. Clothes on the
person of the deceased and the appellant were seized. The crime
scene panchnama (Exh.22) was drawn. A kerosene-can and other
articles were seized from the crime-scene. Statements of the
persons acquainted with the facts and circumstances of the case
were recorded. Upon completion of the investigation, charge sheet
was filed against the appellant.
5. Charge (Exh.6/c) was framed. The appellant pleaded not
guilty. His defence was of false implication on account of it was
interfaith marriage and his in-laws were opposed thereto. Whatever
dying declarations were given by the victim were pursuant to
4 Criminal Appeal No.1039 of 2024
tutoring by her mother and other relations. According to the
defence, the deceased would consume alcohol and under the
influence thereof, she set herself ablaze.
6. To bring home the Charge, the prosecution examined
eleven witnesses and produced in evidence certain documents. On
appreciation of the evidence in the case, the trial court convicted the
appellants and consequently, sentenced to the terms of
imprisonment, as stated above.
7. Learned counsel for the appellant took us through the
evidence on record and made submissions in consonance with the
defence, adverted herein above. According to him, the appellant
extinguished the fire by pouring water on the person of the
deceased. He then covered her with quilt. On arrival of his mother-
in-law, he rushed her to the hospital for treatment. Learned counsel
relies on the judgment of the Apex Court in the case of Kalu Ram
Vs. State of Rajasthan, (2000)10 SCC 324.
8. Learned APP would, on the other hand, submit that the
act of the appellant in dousing his wife with kerosene by emptying
the kerosene can on her person, undoubtedly, indicates that his
5 Criminal Appeal No.1039 of 2024
intention was to do away with his wife. He then took us through the
dying declarations and the evidence of the Medical Officers, who had
examined the victim. He also took us through the evidence of the
children of the appellant and deceased, to submit that the trial court
has rightly convicted and consequently, sentenced the appellant.
He, ultimately, urged for dismissal of the appeal.
9. Considered the submissions advanced. Perused the
judgment impugned herein. Let us advert to the evidence on record
and appreciate the same.
10. Admittedly, it was an interfaith marriage of the appellant
and the deceased. The appellant is Muslim. The parents of the
deceased were opposed to the marriage. They, therefore, rarely
visited her residence. They were residing in the neighbourhood of
the appellant's residence at village Vakipada. The couple was
blessed with three children. The evidence on record admittedly
indicates that it was the second marriage of both appellant and the
deceased. It further indicates that the deceased was also
emotionally involved with a married man (Bhiku). She had even
lodged a criminal case against him for committing rape of her. The
matter was settled out of the court. Be that as it may.
6 Criminal Appeal No.1039 of 2024
11. The house, wherein the appellant along with his wife and
children were residing, was one-room premises. Bathroom thereof
was outside. The bed was there in the room. At about 10.30 p.m.,
quarrel ensued between the appellant and his wife (deceased) over a
marriage invitation card. The appellant got annoyed. He asked his
wife to tell him the date of marriage. She told him that being
illiterate, she was unable to give him the date. He got infuriated. He
poured kerosene on her person and set her ablaze.
12. PW 3 - Roshni, their daughter, immediately went to the
house of her grandparents. She related them the appellant to have
set her mother ablaze. All of them came. The deceased was,
initially, rushed to Civil Hospital, Navapur. As her condition
deteriorated, she was shifted to Civil Hospital, Dhule. She breathed
her last on 24.02.2018.
13. The post mortem examination report indicates that she
suffered 65% of burns. PW 10 - Dr. Kapileshwar conducted autopsy.
In his opinion, the deceased died of "septicemia due to burns". The
question is, whether the appellant is author of the crime. No sooner
Shabana @ Pinky was admitted to the hospital, M.L.C. was made.
The Doctor on duty (PW 6 - Dr. Rechal Valvi) examined her and found
7 Criminal Appeal No.1039 of 2024
her conscious oriented. He, therefore, certified the victim to be fit to
make oral statement. He gave his endorsement on the paper to the
police official (PW 7 - Sangita Kadam), who, in turn, recorded
statement of Shabana @ Pinky, which reads thus:-
दि १९ .०२ .२०१८ रोजी रात्री १०.३० वाजेचे सुमारास जेवण
करून मी, पती व मुले घरात बसलो असताना माझे पती याने मला
आमच्या नातेवाईकाची पत्रिका संदर्भात विचारणा केली. तेव्हा मी
लग्न पत्रिका पतीकडे दिली असता त्याने मला लग्नाची तारीख
विचारली. त्यावर मला वाचन येत नसल्याने मला नारीख सांगता
येणार नाही असे पतीस सांगितले असता त्याला त्याचा राग
आल्याने, त्याने मला शिवीगाळ करण्यास सुरवात केली. त्यावर मी
पतीस सांगितले कि मला शिवीगाळ करू नका. तेव्हा पती युसूफ
याने मला हाता बुक्क्यांनी मारहाण करण्यास सुरवात केली व मला
घराबाहेर काढू न दिले मग मी त्या गोष्टीचा प्रतिकार करून घरात
प्रवेश केला असता पती युसूफ यास जास्तच राग आल्याने त्याने
आमचे घरातील रॉकेलच्या ड्रम मधील रॉकेल माझ्या अंगावर ओतले
व मला पेटवून दिले. आग विझवण्यासाठी मी घरातील बाथरूम मध्ये
गेली व अंगावर पाणी टाकून आग विझवली. नंतर माझी मोठी मुलगी
रोशनी हिने माझी आई सुरख े ा किशोर नायक व वडील किशोर मागं
नायका याना बोलावून आणले. ....................
The crime was registered based on this statement. Learned counsel
pointed out that someone else had given the statement because it
bears the signature of some other person also.
14. The Investigating Officer, thereafter, availed services of
the Executive Magistrate (PW 9 - Gopal Patil), who, after having
verified the victim to be fit to make a statement, recorded her
8 Criminal Appeal No.1039 of 2024
statement (Exh.49). We do not propose to reproduce the same since
it is consistent with the FIR-cum-dying declaration (Exh.39). Before
recording the second dying declaration (Exh.49), the Executive
Magistrate had verified the victim was conscious oriented. The
Medical Officer on duty (PW8 - Dr. Mangala) certified the victim to be
fit to make a statement. As such, both the statements of the victim
have been duly proved, which are consistent with each other. They
are, however, silent to narrate the role of the appellant, which has
come on record through the evidence of the children of the appellant
and the deceased, besides the evidence of the mother of the
deceased.
15. PW 1 - Samir was 12 years old son of the appellant and
the deceased. PW 2 - Rohit was 15 years old son; while Roshni was
10 years old daughter. All the three children gave evidence
consistent with the incident narrated by the victim. The evidence of
these three children, who were found to be competent witness,
testified in one voice that it was the appellant who doused their
mother with kerosene and then set her ablaze.
16. PW 3 - Roshni immediately rushed to her grandmother
(PW4), who, in turn, arrived at the appellant's house. The appellant
9 Criminal Appeal No.1039 of 2024
was present. All of them rushed Shabana (deceased), first, to the
Civil Hospital, Navapur. As her condition deteriorated, she was
shifted to the Civil Hospital, Dhule. As such, the act of dousing with
kerosene and setting Shabana @ Pinky on fire by the appellant has
been duly proved. The question is, whether it is an offence
punishable under Section 302 of I.P.C. or somewhat lesser offence.
17. In the case of Kalu Ram (supra), it has been observed
thus:-
Penal Code, 1860-Ss.300 Exception 4, 304 Part II and 86 -
Culpable homicide not amounting to murder - appellant in
a highly inebriated condition demanding ornaments from
deceased wife and on her refusal he getting infuriated - He
then doused her with kerosene and wanted her to die and
gave her a matchbox - On her failure to strike the
matchstick, he took the matchbox and ignited one
matchstick setting her ablaze, but finding the flames flaring
up he pouring water to save her - Held, appellant had not
intended to cause the injuries to the deceased which she
sustained due to his act - Hence conviction altered from
S.302 to S.304 Part II.
18. Admittedly, the incident occurred as a result of the
quarrel between the appellant and his wife. The appellant was
infuriated. He doused his wife with kerosene and set her ablaze.
She rushed out of the house. He followed her. All the three children,
referred to herein above, testified that it was the appellant who
10 Criminal Appeal No.1039 of 2024
extinguished the fire by pouring water on the person of their mother.
He then brought a quilt from the room and covered the same around
her person and made her lie on the cot. On arrival of her mother-in-
law, he joined them to take her to the hospital. The aforesaid act of
the appellant indicates that he wanted his wife (deceased) to be
saved.
19. In view of the observations of the Apex Court in the case
of Kalu Ram (Supra), we find that in the facts and circumstances of
the case, the appellant had no intention to do away with his wife.
Knowledge of consequence of his act has, however, to be attributed
to him. It would, therefore, be the offence under Section 304 Part II
of I.P.C.
20. In view of the above, the appeal partly succeeds.
Hence, the following order:-
(i) The appeal is partly allowed.
(ii) The order dated 29.02.2020, passed by learned Addl.
Sessions Judge, Nandurbar (trial court) in Sessions Case No.13 of
2018, convicting and sentencing the appellant for the offence
punishable under Section 302 of Indian Penal Code, is hereby set
aside.
11 Criminal Appeal No.1039 of 2024
Instead, the appellant is convicted for the offence
punishable under Section 304 Part II of Indian Penal Code and
therefore, sentenced to suffer rigorous imprisonment for a period of
eight years and to pay a fine of Rs.2,000/- (Rupees Two Thousand).
In default of payment of fine, he shall suffer rigorous imprisonment
for two months.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
...........
KBP
