1 Cri-Appeal-216-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 216 OF 1993 Mr. Ibrahim Nabi Sayyed, ) Age about 31 years, Occ. Labourer, ) residing at Vadgaon, Budruk, Taluka Haveli,) Pune. ).. Appellant (Orig. accused) Versus State of Maharashtra .. Respondent Mr. Ganesh Bhujbal, Advocate, for the appellant. Ms. A.T.Javeri, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 10th February, 2011. JUDGMENT: 1. The appellant/accused has preferred this Appeal challenging the judgment and order dated 5.3.1993 passed by the Additional Sessions Judge, Pune, in Sessions Case No.38/1992, whereby he was convicted for the offence punishable under Section 306 and 498A of IPC and was sentenced to R.I. for three years and to pay fine of Rs.3,000/- and to undergo R.I. for one year with fine of Rs.1,000/- respectively. 2 Cri-Appeal-216-93.sxw 2. Prosecution case, in brief, is that the accused and deceased Farida were married about four years prior to her death on 1.9.1991. It was a second marriage of the accused. Out of this wedlock, they had two sons. The accused was addicted to liquor and under influence of liquor he used to beat and ill-treat his wife Farida. Her father Hamjehan (PW-4) had on several occasions tried to advise the accused against ill-treatment. His neighbours also intervened, but there was no effect. Finally, being fed up of cruel treatment by the husband, Farida poured kerosene and set herself ablaze. Due to 100% burns, she died. The information of the incident was given to her father by one Hasan Shaikh. Police Patil of Vadgaon, where the incident occurred, also informed the police at Haveli Police Station. Police went to the spot and recorded spot panchnama and seized certain articles. On next day, FIR lodged by Hamjekhan was recorded and offence was registered under Sections 306 and 498A of IPC, After investigation, the charge-sheet was filed against the accused. 3. According to the accused, he was falsely implicated in this case and Farida had caught fire due to short-circuit of T.V. 4. Heard the learned Counsel for the accused/appellant and the learned APP for the State. Perused the record and proceedings of the trial Court. 3 Cri-Appeal-216-93.sxw 5. Evidence of PW-4 Hamjekhan shows that deceased Farida was married to the accused on 20.3.1988. She died due to the burn injuries on 1.9.1991. It means she died just 3½ years after the marriage. Certain documents were admitted on behalf of the accused in response to the notice under Section 294 Cr.P.C. Inquest panchnama Exhibit 7, spot panchnama Exhibit 8, post- mortem report report Exhibit 9 are the admitted documents. It is an admitted fact that she had suffered 100% burn injuries and had died due to the burn injuries as opined by the autopsy surgeon in the post-mortem report. The spot panchnama Exhibit 8 shows that in the room, where the incident had occurred, curtains were found burnt. There was a T.V. kept on a stand and the T.V. had become blackish due to smoke. The screen and the articles lying on the T.V. had also become blackish. Similarly, southern wall below the T.V. stand had also become blackish. The wires of Antenna and T.V. were burnt and were hanging. On the basis of this material, the learned Counsel for the appellant contended that it was a case of short-circuit and Farida had caught fire accidentally. However, on careful perusal of the panchnama, this contention appears to be without any basis. The panchnama also shows that there was one wet partially burnt quilt lying near the cupboard and it was smelling kerosene. One burnt and broken match box was also lying there. One plastic can, without a lid, containing some kerosene was lying 4 Cri-Appeal-216-93.sxw outside the room. If it would be a case of accidental fire due to short-circuit, there was no reason for presence of kerosene on the quilt which was partly burnt and which might have been used for the purpose of extinguishing fire. Similarly, the presence of plastic can containing kerosene lying outside without a lid also indicates that after pouring kerosene, the can must have been thrown out. The presence of partly burnt match box and sticks indicate that she was set to fire with the match stick after pouring kerosene. The learned Counsel for the accused could not give any plausible explanation about the presence of kerosene on the partly burnt quilt as well as presence of partly burnt and broken match box and the plastic can containing kerosene lying at a short distance. These circumstances go to indicate that it was not the accidental fire but a case of suicide. 6. Besides the evidence of PW-4 Hamjekhan, who is father of the deceased, there is also evidence of PW-1 Ranjana, PW-2 Malti and PW-5 Rashida, the younger sister of the deceased to show that the accused was in the habit of abusing and beating Farida. He was addicted to liquor and used to beat his wife. PW-1 Ranjana and PW-2 Malti are the neighbours of PW-4 Hamjekhan at at Ganesh Nagar, Pune. The deceased was living with her husband at Village Vadgaon Budruk. According to these witnesses, whenever Farida used to go to her parents' place, she used to tell these witnesses about the beating and ill- 5 Cri-Appeal-216-93.sxw treatment at the hands of her husband. Nothing has come on record to disbelieve these witnesses. Evidence of PW-3 Sayrabanu is material to show the habit of the accused. Sayrabanu was the first wife of the accused. According to her, she was married to the accused on 11.9.1983. She lived with her husband only for 8 months. Even though she as pregnant, the accused used to beat and ill-treat her under the influence of liquor. According to her, he also used to pour kerosene on her person, to threaten her that he would kill her. According to her, she was driven out from the house and thereafter she was living with her parents. Shortly after she was driven out, she gave birth to a child. The accused had sent notice Exhibit 17 to her whereby he informed that he was giving divorce to her. There is no explanation from the accused as to why his first wife Sayrabanu was deposing falsely against him. 7. Taking into consideration the evidence of the above referred witnesses, it is established by the prosecution that the accused was addicted to liquor and under influence of liquor, he used to beat his first wife. Not only that, he continued that habit even after the second marriage and thus he treated his second wife Farida with cruelty which led her to commit suicide. Farida committed suicide by immolating herself within 3½ years after marriage. Cruelty is defined in the explanation to Section 498A as a willful conduct which is of such 6 Cri-Appeal-216-93.sxw a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life,limb or health. accused used to wilfully consume alcohol and then used to abuse and beat his wife regularly. Such conduct was likely to drive the wife to commit suicide and therefore he is guilty of subjecting his wife to cruelty. Under Section 113A of Evidence Act, if it is shown that a woman had committed suicide within a period of seven years after marriage and that her husband or relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the circumstances of the case, that suicide had been abetted by her husband or by such relative of her husband. In view of the facts and circumstances of the present case, it may be presumed that the accused had abetted Farida to commit suicide. Therefore, I hold that the prosecution has proved the charges under Sections 498A and 306 of IPC against the accused. In view of the nature of offence, I do not see any reason to interfere in the sentence awarded by the trial Court. 8. Therefore, the Appeal stands dismissed. The accused to surrender before the trial Court within four weeks to undergo the sentence. (J.H.BHATIA,J.) 7 Cri-Appeal-216-93.sxw