1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 249 OF 2010 Bhrat Uttamrao Dhole ...petitioner Versus The State of Maharashtra and another ...Respondents ..... Mrs. A.N. Ansari, advocate for the petitioner Mr. N.R. Shaikh, A.P.P. for respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 11TH JUNE, 2010 PER COURT:- 1 Heard learned counsel for the respective parties. 2 Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3 The petitioner stands convicted for the offence punishable under Section 302 of I.P.C. in Sessions Case No. 31 of 1990 by the learned III Additional Sessions Judge, Parbhani. The judgment was delivered by the learned Sessions Judge on 21.8.1990. Learned A.P.P. has made available copy of the judgment and also has supplied it to the 2 counsel appearing for the petitioner Mrs. Ansari. Counsel appearing for the parties point out facts, which were brought before the Sessions Court in Sessions Case No. 31 of 1990. Name of deceased person in the case on hand was Sonabai. We have seen the facts, which are mentioned by the learned Sessions Court. Suffice it to note that the date of incident is 17.12.1989. It was alleged by the prosecution that on the date of the incident, present petitioner poured kerosene on the person of Sonabai and set her on fire. Deceased Sonabai was rushed to the hospital. Her dying declaration was recorded, offence was registered, investigated and ultimately charge sheet was filed in the Court of learned J.M.F.C. In para 1 of the judgment, the learned Sessions Judge has observed that the prosecution had alleged the motive behind the crime is that the deceased Sonabai had undergone an operation for tubectomy without the permission of the present petitioner. 4 Mrs. Ansari, learned counsel for the petitioner forcefully argued that it is a case of simple burning. The learned Sessions Judge has observed that offence under Section 302 of I.P.C. is proved. The allegation of the prosecution that Sonabai was set on fire is accepted and ultimately the trial court has recorded the finding that the offence punishable under Section 302 is established and that is the reason the petitioner is convicted and undergoing the conviction, as recorded by the trial Court. Mrs. Ansari, learned counsel submits that there is no 3 finding recorded by the trial Court in its entire judgment that crime alleged to have been committed by the present petitioner, was with premeditation and exceptional violence or perversity, as mentioned in the guidelines 1(e). Copy of guidelines is placed on record/annexed with the writ petition. The guidelines are dated 16.11.1978. It is further submitted that present case cannot be said to have governed by clause 1(e). According to her, exceptional violence or with perversity is the condition precedent for applying such guidelines. Such should be finding recorded of the trial Court. If such findings are recorded against the person charged with offence, in that circumstances, only it can be said that the case of the person is governed by clause 1(e). Mrs. Ansari, learned A.P.P. points out various paragraphs from the judgment of the learned Sessions Judge in support of her submissions. 5 Mr. Shaikh, learned A.P.P. In support of the order impugned in this petition took us through the various paragraphs of the judgment delivered by the trial court. His emphasis is mainly on paragraph No. 17 and 36 to 38. According to him, this petition is devoid of substance. 6 This petition is filed by the petitioner before us under Article 226 of the Constitution of India. In other words, we are not sitting in appeal against the conviction or acquittal recorded by the competent Court. The order passed by the respondent authorities in view of the 4 guidelines of 1978 is challenged before us. Nature of order is quashi judicial though it is passed by the respondent. There is no dispute that the application/request of the petitioner has been considered by the authority concerned. Mrs. Ansari, learned counsel seriously disputes the application of guidelines 1(e) made by the authorities. This court while taking judicial review of the administrative or quashi judicial order is concerned with the procedure undergone. In other words, this Court really is not concerned with the decision taken by the authorities concerned. These are limitations of judicial review of this Court under Article 226 of the Constitution. Keeping in mind this limitation, now we turn to appreciate the submissions advanced on behalf of the parties. 7 In para 15 of the judgment, the learned Sessions Court has referred to oral evidence of witness Tulsabai, 80 years old lady. It has been observed by the learned Sessions Court that on the date of incident, witness Tulsabai was present in the hotel. Indisputably, hotel was being run by the deceased Sonabai. According to the trial Court, this witness has stated that there was quarrel between the accused i.e. present petitioner and deceased Sonabai. The ground for quarrel was demand of money by the petitioner. Tulsabai tried to convince both of them not to quarrel but the attempt was proved to be futile. She left the hotel at 7.00 p.m. and went to the house of her daughter, who was residing in the same village i.e. village Pathri, District Parbhani. Learned Judge has also referred to cross examination of this witness 5 Tulsabai. According to learned Judge, status of Sonabai as legally wife or otherwise is not material. Learned Judge, however, observed that nothing is elicited in the cross examination of witness Tulsabai to disbelieve her statement that present petitioner accused had visited Hotel and quarreled with Sonabai as she had deposed before the Court. The Court further observed that the Court was not interested to find out in whose names lease of hotel was granted and how much amount of rent was agreed. The learned Judge further observed that defence raised by the present petitioner in the Sessions Case that he was incidentally present at S.T. stand of Pathri and rushed to the spot for extinguishing the fire on the person of Sonabai, was not genuine and acceptable. It has been also observed in concluding para 15 of the judgment that according to Tulsabai, accused person had not severe relationship with Sonabai till the date of incident. Such relationship, it is mentioned in other portion of the judgment, was illicit relationship. Mr. Shaikh, learned A.P.P. also points out para 16 from the judgment that the learned Judge has made reference to the evidence of witness Bainabai, sister of deceased Sonabai. According to that witness, occurrence took place in between 10.00 p.m. to 2.70 p.m. Occurrence was reported by one Mazid. Information received was that Sonabai was lying in burnt condition in front of her hotel. Witness Bainabai claimed that she went to the spot with her mother Bakula and 6 brother Shiva. Deceased Sonabai made oral deposition that Bharat i.e. petitioner accused had set her on fire on the allegations that she had illicit relations with others and had fled away. In para 17, learned Judge has referred to the statement of the petitioner under Section 313 of Cr.P.C. It is claimed by the petitioner in his statement under Section 313 that he left Sonabai in burnt condition only at the permission of her relatives. It was almost cruel for the petitioner to leave Sonabai in burnt condition unattended, specially as he had close intimacy with her for quite a long time. The learned Judge concluded para 17 with observation that it is evident that Bharat fled away from the spot to avoid consequences. 8 Mr. Shaikh, learned A.P.P. as earlier observed by us, has also pointed out observation of the learned Judge from para Nos. 36 to 38. In para 37, it is observed that the burn injuries were 65%. In para 38, it has been observed that the petitioner accused has deliberately chosen to set Sonabai on fire, sleeping in a polyester Saree on a Bench. What is important is to note is that learned Judge has observed that , “This act on the part of the accused, only indicates that he knew that his act was so imminently dangerous that it must in all probability, cause death, or such bodily injury as was likely to cause death. 9 It has been also pointed out to us from the judgment that 7 accused/petitioner had prior to one year of the incident had married with one woman viz. Jayashree. He was leading his matrimonial life with Jayashree. He was having illicit relationship with deceased Sonabai. He kept visiting Sonabai at Pathri. He was suspecting that Sonabai was keeping alleged illicit relations with others. We are not deciding the appeal or any other proceeding but these are the observations made by the learned Sessions Judge in his judgment. While appreciating the submissions advanced by the counsel for the parties we have seen all these observations to find out whether the case on hand can be said to be governed by clause 1(e) that the crime is committed with exceptional violence or with perversity. The violence according to counsel Mrs. Ansari must have been observed prior to commission of crime in question. She has argued that learned Judge did not observe that it is case of dismembering of organs of deceased Sonabai. The nature of offence according to her is only putting deceased Sonabai on fire and beyond that nothing. Violence contemplated under guideline 1(e) according to her is not observed anywhere in his judgment by the trial Court neither it can be said to be a case of perversity. 10 It is true that the allegation of the prosecution and finding of the trial court is pouring of kerosene and setting deceased Sonabai on fire by the accused. But this matter does not rest upon only on act of pouring kerosene and setting deceased Sonabai on fire. The material 8 brought on record and observations made by the trial court has been considered by us. Learned Judge did observe that hapless lady was in sound sleep at the relevant time. She was left in burnt condition by the petitioner-accused. According to learned Judge this is remarkable circumstance. In our opinion, if human person, who has sustained burn injury either by accident or otherwise, if noticed by other human person, first expectation is to shift such person to the nearest hospital available in the area. At this stage, we shall make reference to judgment of supreme Court in the matter of Permanand Katara Vs. Union of India and others, reported in AIR 1989 SC 2039. In para 16, on the background facts of the case the Hon’ble Supreme Court has observed that “there is also no doubt that the effort to save the person should be the top priority not only of the medical professional but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an incident or a situation (emphasis supplied).” 11 All in all, we are not able to accept the submissions of learned counsel Mrs. Ansari that this case is either of clause 1(c) or (1) (d) of the guidelines. It is a case covered by clause 1(e) of the guidelines. In our view, there is no perversity in the order impugned and the authorities concerned has legally and justifiably passed the order impugned. The petition stands dismissed. Rule discharged. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/ 9