1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 1280 OF 2003 IN SESSIONS CASE NO. 496 OF 2000 Badruddin Zakir Niyaz Khan ] Convict No. C/1758 ] Residing at Kolhapur Central Prison, ] Kalamba, Kolhapur ] ]..Appellant [Ori. Accused ] Vs. The State of Maharashtra ] ]..Respondent [ Ori. Complainant ] .... Mrs. Latika Nevrekar Advocate appointed for Appellant Mr. Rajesh More APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 08, 2010 ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 The appellant-original accused has challenged the judgment and order dated 4.10.2002 passed by learned Additional Sessions Judge for Greater Bombay in Sessions Case No. 496 of 2000. By the 2 said judgment and order, the learned Judge convicted the appellant under section 302 of I.P.C. and sentenced him to life imprisonment and to pay a fine of Rs.5000/- i/d RI for one month. 2 The prosecution case briefly stated, is as under: PW 8 Khan Bahadur Mohd. Jama was residing at Anjuman Chawl at Sion, Mumbai. Sairabanoo (deceased) was his eldest daughter. She was first married to one Imanullah from whom, she had one daughter. However, when her daughter was one year old, Imanullakhan gave talaq to Sairabanoo. After that she came to reside with her father PW 8 Khan. One Shabbir used to often visit PW 8 Khan Bahadur. He suggested the name of the appellant for marriage with Sairabanoo. As Shabbir was a religious person and he told that accused was a good person, believing him, they got Sairabanoo married to the appellant four months prior to the incident. After marriage Sairabanoo resided with the accused in his house. For a couple of months, the appellant behaved properly. However, after sometime, it was revealed that the appellant had been married 2 to 3 times earlier. The appellant used to get married and after 4 to 5 months, he used to assault the wife and throw her out of house. It was also revealed that the appellant was habituated to drinking and he had no permanent job. The appellant used 3 to harass and assault Sairabanoo. On 1.5.2000 at about 10.30 p.m. smoke and fire was seen coming out from the roof of the house of the accused. This was noticed by PW 1 Mohd. Yasin who was neighbour of accused. Mohd. Yasin immediately rushed to the house of the accused. He found the door locked from inside and he heard a female voice shouting “Bachav Bachav ” from inside the house. PW 3 Isratali Khan was also residing near the house of the accused. He heard noise of someone shouting and went towards the house of the accused, where he heard sound of one lady saying “Bachav Bachav ”. He noticed that it was the house of the appellant and people were trying to open the door and they were shouting “open open ” but nobody opened the door from inside. PW 3 Isratali told PW 1 Mohd. Yasin to go to the police chowky and bring police. Accordingly, PW 1 Mohd. Yasin came back with two constables. The door was forced open. At that time, appellant was seen trying to hide Sairabanoo who was in burnt condition under a cot. The appellant started abusing PW No.1 for calling the police. The witnesses saw that the room was full of kerosene and water. One small child i.e. daughter of the deceased from her first marriage was also present in the house. The constables took Sairabanoo to Sion Hospital and got her 4 admitted. They also informed her father PW 8 Khan Bahadur about this fact. On hearing the news, PW 8 Khan Bahadur rushed to Sion Hospital. PW 9 PI Pandurang Daji Salunkhe was on duty on 1.5.2000 as Station Head of Antop Hill Police Station. He received telephone message to the effect that Sairabanoo was admitted in burnt condition in hospital and since her husband had burnt her she was brought by constable More and neighbours to the hospital. At the hospital, PW 7 Dr. Kaushik Joshi examined Sairabanoo. Sairabanoo was found to have sustained 90 to 95% burn injuries. Sairabanoo informed him that her husband set her on fire. Dr. Joshi noted it in the medical papers Exh. 19. The services of PW 5 Special Executive Officer Shelar came to be requisitioned for recording dying declaration of Sairabanoo. She recorded dying declaration of Sairabanoo (Exh.13) on which Dr.Joshi gave his endorsement (Exh.21) that Sairabanoo was in a fit condition to give her statement. After PW 5 Shelar recorded dying declaration (Exh.13), PW 9 PSI Salunkhe recorded the dying declaration of Sairabanoo (Exh.20). He recorded dying declaration after taking the endorsement of Dr. Joshi that Sairabanoo was in a fit condition to give her statement. On the basis of statement of Sairabanoo given to him, he registered the offence vide CR No. 166 of 2000 under Section 307 of IPC. Thereafter investigation commenced. Sairabanoo expired on 5.5.2000 hence, the 5 offence came to be converted into 302 of IPC. After completion of investigation charge sheet came to be filed against the appellant. 3 Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4 After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties and the judgment delivered by the learned Additional Sessions Judge, we are of the opinion that the judgment and order passed by the learned Additional Sessions Judge does not call for any interference. 5 In order to prove its case, the prosecution has mainly relied on the evidence of PW 1 Mohd. Yasin and PW 3 Isratali who were neighbours of the accused and the deceased. Mohd. Yasin has stated 6 that he knew the accused as they were both residing in the same area. The house of the accused was just five feet away from the house of this witness. He has stated that the accused was married three times prior to his marriage with Sairabanoo (deceased). He has stated that Sairabanoo was a very religious lady and did Namaz. As the accused was addicted to drink and he had no permanent job, whenever, he fell short of money, he used to take money from his wife Sairabanoo who used to bring the money from her parents. If Sairabanoo refused to give money to the accused, he used to assault her. Mohd. Yasin has further stated that on 1.5.2000 at about 10.30 p.m. he saw smoke and fire coming out of the roof of the house of accused. Hence, he along with others went to the house of the accused. They found door was locked from inside. They heard voice of a female shouting “Bachav Bachav ” from inside the house. He along with others tried to open the door, but the door could not be opened, hence, Mohd. Yasin rushed to the police chowky which was nearby and called two police constables who were at the chowky. They came along with him to the house of the accused. They saw that people had gathered at the spot and they were trying to open the door. Thereafter, the door came to be pushed and opened. On opening the door they saw that the accused was trying to hide his wife under the bed in the room 7 and they noticed kerosene and water on the floor of the room. The wife of the accused was fully burnt and parts of her clothes were stuck to her body. Police covered that lady with bed sheet and took her to hospital. 6 PW 3 Isaratali was also residing in the same area as that of the accused. On the day of the incident, he was sitting in the house of his neighbour. At about 10 p.m. one boy came running there stating that “Angar Lagi Angar Lagi ”. He went towards the house from where they heard the sound of one lady shouting “Bachav Bachav ”. It was noticed that it was the house of the accused. The door of the house was closed. They saw smoke and fire coming out from roof of the house. They banged on the door and started shouting to open the door but the door was not opened. Then PW 3 Isratali told PW 1 Yasin to go to police chowky and call police constable. Yasin went to call police. Isratali further stated that they started beating on the door and tried to open it. Ultimately they managed to open the door and saw the accused trying to push his wife under a cot. As far as the evidence of both these witnesses PW 1 and PW 3 as reproduced herein above by us is concerned, it is not shaken in their cross-examination. Hence, we have no hesitation in relying on the evidence of these witnesses. The evidence of both these witnesses shows that only the accused and 8 deceased were at home along with a minor daughter. Sairabanoo was shouting for help. On opening the door they found that Sairabanoo had sustained burn injuries and the accused was trying to push her under the bed, so that people would not see that Sairabanoo had sustained burn injuries. The conduct of the accused is also material. Instead of being relieved that people had come to help, the accused abused PW 1 and asked him why he had called the police. If it was a case of accident, the accused would not have abused PW 1. This conduct also shows the guilt of the accused. 7 Sairabanoo was taken to Sion hospital and she came to be admitted on 1.5.2000 at 11.13 p.m. PW 7 Dr.Joshi was on duty at that time. He made enquiries with Sairabanoo who informed him that her husband had set her on fire at 10.30 p.m. This fact was noted by him in the treatment papers Exh.19. SEO and thereafter police made enquiry with him whether the patient was conscious and able to give a statement. He found the patient was conscious and in a fit condition to give her statement and accordingly gave his endorsements. PW 5 S.E.O. Shelar recorded dying declaration of Sairabanoo thereafter. PW 9 PSI Salunkhe recorded dying declaration of Sairabanoo. In both the dying declarations, Sairabanoo has stated that her husband set her on 9 fire. 8 The prosecution has also examined PW 8 Khan Bahadur who is father of Sairabanoo. He has stated that he got his daughter Sairabanoo married to the accused. After marriage, she went to reside with the accused. He stated that after marriage, he came to know that the accused did not have permanent job and was habituated to drinking liquor and he used to assault Sairabanoo. On 1.5.2000 at about 11.30 p.m. one neighbour who had telephone in his house, came and informed him that he received message that Sairabanoo had received burn injuries and she was admitted in Sion hospital. Hence, he along with his wife went to Sion hospital. They made enquiry with Sairabanoo. Sairabanoo informed them that the accused had come home drunk and when she questioned him about this fact, the accused poured kerosene on her person and set her on fire. 9 The learned counsel for the appellant submitted that the evidence of both PW 1 and PW 3 cannot be relied on as their evidence is absolutely contradictory. She has pointed out that PW 1 has stated that when they went to the room of the accused, they saw his daughter standing next to the cot whereas PW 3 has stated that daughter was 10 sleeping on the cot. She also drew attention to the evidence of PW 1 where he has stated that he came back with police constables and police constables broke open the door whereas PW 3 stated that he along with others broke open the door. However, we find that these are minor discrepancies and these discrepancies do not affect the prosecution case in any manner. Both these discrepancies which have been pointed out to us do not, in any way, affect the basic substratum of the prosecution case, that is, the accused set his wife Sairabanoo on fire. No other discrepancies have been pointed out to us so as to discredit the evidence of these witnesses. 10 Looking to the entire evidence on record, we find that the prosecution has proved its case against the appellant. Hence, appeal is dismissed. The judgment and order of conviction and sentence dated 4th October, 2002 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 496 of 2000, is confirmed. The appellant is in jail. He shall serve out the remaining sentence. [SMT.V.K.TAHILRAMANI,J. ] [SMT. RANJANA DESAI, J.]