1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.38 OF 2009 Sayed Baba @ Subhan S/o } Sayed Burhan, Age : 24 Years, } Occ. : Labour, R/o : Ner, } Tq. & Dist. Jalna, At present } Central Prison, Aurangabad. } ..... APPELLANT V E R S U S The State of Maharashtra } .... RESPONDENT Mrs. A.S.Mantri, Advocate for Petitioner. Shri. V.H.Dighe, A.P.P. for the State. [ CORAM : R.M.BORDE, J. ] DATE : 10/06/2009 ------------------------------------------------- ORAL JUDGMENT : 1. This is an Appeal by original accused raising exception to the Judgment and Order passed by the Additional Sessions Judge -2, Jalna on 2 19/11/2008 in Sessions Case No. 52 of 2008 holding the accused/ appellant guilty for commission of offence punishable under Section 307 of Indian Penal Code and directing him to undergo sentence of Rigorous Imprisonment for 10 years and to pay fine of Rs. 2,000/-, in default of payment of fine, to suffer Rigorous Imprisonment for 3 months. 2. The brief facts of the prosecution can be summarized as below. The accused was married to one Saida Sayed Baba. The marriage had taken place 3 months prior to the alleged incidence. The date and time of incidence is 8/1/2008 in morning at about 11.00 a.m. The victim Saida and her husband, accused/appellant herein were alone in the house. The accused picked up quarrel with Saida on account of her wearing Punjabi dress instead of saree. He questioned his wife as to why she wore Punjabi dress instead of saree. The wife explained that she would were saree later on. However, the husband was not in a mood to listen. He started assaulting her with fists blows and kicks. He suddenly picked up kerosene can, poured kerosene on her person and set her on fire. Saida raised hue and cry. The persons in the neighbourhood rushed and extinguished fire by showering water on her person. The accused thereafter made arrangement for reaching Saida to the Primary Health Centre in a jeep. The Doctors at Primary Health Centre advised that the 3 patient be shifted to Civil Hospital, Jalna for further treatment. Saida had sustained about 55 % to 60 % burn injuries as a result of alleged incidence. Her statement was recorded on 13/1/2008 by the police and thereafter Crime No. 6 of 2008 came to be registered at Maujpuri Police Station for the offence punishable U/s 307, 323, 504 of Indian Penal Code. The accused was arrested and after completing investigation, the police presented charge sheet in the Court of Judicial Magistrate (First Class), Jalna. The case being triable by the Court of Sessions, was committed to the Sessions Court. During course of trial, Charge was framed against accused for the offence punishable under Sections 307, 323, 504 of Indian Penal Code. The accused pleaded not guilty to the Charge and claimed to be tried. 3. In order to bring home the guilt of the accused, prosecution examined in all 9 witnesses. After recording evidence of the prosecution witnesses and the statement of accused under Section 313 of Code of Criminal Procedure, the learned Judge of the trial Court reached conclusion that the prosecution has proved the case and as such on conviction, the accused/appellant was sentenced to suffer imprisonment as stated above. 4. I have heard the arguments advanced by Mrs. A.S. Mantri, 4 counsel appearing for the accused/appellant and Shri. V.H. Dighe, Assistant Public Prosecutor for the State. With the assistance of the learned counsel appearing for the accused/appellant, I have scanned the prosecution evidence. The star witness in the matter is the victim herself i.e. P.W. 7 Saida W/o Sayed Baba. During her examination, she has deposed before the Court that her marriage with accused was solemnized some 11 months prior to recording her statement before the Court. Incidence had taken place at her matrimonial house at village Ner, Taluka and District Jalna. Her mother-in-law had gone out at the time of happening of incidence. The accused was at the residence. He asked his wife, P.W. 7 Saida, as to why she is not wearing saree and has put on Punjabi dress. The accused assaulted her by means of wooden rafter and hands. He thereafter brought a kerosene can, which was in the room, poured kerosene on her person and set her on fire by lighting match stick. She raised hue and cry and came out of the house. The neighbouring persons extinguished the fire by showering water on her person. She was thereafter shifted to Civil Hospital, Jalna. Accordingly, she was hospitalized in said hospital for about 4 months. The witness has further stated that her statement was recorded some 8 days after the incidence by the police in the hospital. She has admitted the contents narrated in the complaint, which is at Exh. 25. During cross examination, it was 5 suggested to her that she was preparing meals on Chulla, which is situated in the room and while preparing meals, he sprinkled kerosene and as a result thereof, there was blast in Chulla and she caught fire. The witness has denied the suggestion put to her during the cross examination in respect of causing accidental burns while preparing meals on Chulla . She has also denied the suggestion that the accused has not set her on fire. There is nothing in the cross examination to discredit the testimony of the victim. The ocular evidence of the victim, wife of the accused, is supported by the medical evidence. P.W. 6 Dr. Prashant Doke has been examined by the prosecution, who has proved the medical certificate dated 19/1/2008. The Medical Officer has stated in his deposition that the victim was admitted in the hospital on 8/1/2008 and he found some 55 % to 60 % burn injuries on her person. The injuries were found on cheek, neck , chest, back, abdomen, buttock and thighs. Injuries thus were spread not only on the frontal region of the body, but were also found on the back side. The case put up by the defence in respect of victim sustaining accidental burn while preparing meals, is falsified by the medical evidence. Had victim sustained accidental injuries as suggested by the accused, there was no chance for her sustaining injuries on the back as well as on buttock and thighs. The version put up by the victim herself, get support from the medical 6 evidence. 5. P.W. 3 Sk. Chand Pasha is examined by the prosecution. He is uncle of victim Saida. He has stated in the deposition that he came to Civil Hospital, Jalna after receiving information in respect of the incidence. He had been to Ward No. 58. He has stated that Saida was not in a position to talk and she had a talk with the witness only after 8 days of her admission in the said hospital. The witness has further deposed that Saida had disclosed to him as regards her quarrel with her husband, pouring of kerosene on her person by the accused and setting her on fire. He has also deposed about disclosure by Saida to him in respect of cause of the quarrel, which is stated as her to be putting on Punjabi dress on her person instead of saree. It has been vehemently contended by the counsel for the accused/appellant that there is delay in recording the statement of victim by the police. The delay appears to be explained by P.W. 3, who has stated that Saida was not in a position to talk when she was admitted in the hospital. 6. P.W. 8 Sanjay Gangadharrao Patil, A.P.I., has also given the explanation for delay in recording the statement of Saida. According to him, Dr. Doke had not informed the police about Medico Legal Case and, 7 therefore, there was delay in registering F.I.R. Thus, the delay occured in recording the statement of victim Saida and registration of crime has been explained by the prosecution. 7. The counsel for appellant has further drawn my attention to the fact that P.W. 1 Datta, P.W. 2 Shaikh Bashir, who are the neighbourers, have not supported the prosecution case. Although, P.W. 1 and P.W. 2 have turned hostile and did not support the prosecution case, has a little bearing on the p;rosecution case. At the time of incidence, victim Saida and her husband accused/appellant were the only persons present at the house. P.W. 1 and P.W. 2 are the neighbourers and naturally they are not expected to be aware as to what transpired between the husband and wife in the house. The most important aspect in the matter is the testimony of Saida, who is victim. Saida herself has stated about complicity of the accused. There is no reason for P.W. 7 Saida to depose against her own husband and more particularly in the background of solemnization of her marriage with the accused just 3 months prior to the incidence. The testimony of P.W. 7 Saida is corroborated by medical evidence and there is absolutely no reason to disbelieve the prosecution version in respect of complicity of accused in the alleged crime. The learned Judge of the trial Court has adopted correct approach in holding 8 accused guilty for the offence charged against him. There is no reason to cause any interference in the Judgment and Order delivered by the trial Court. There is no merit in the Appeal and the same deserves to be dismissed. The Appeal is thus dismissed. 8. Mrs. A.S.Mantri has assisted the Court in disposal of the matter as amicus curiae. The professional charges of the counsel quantified at Rs. 5,000/- (Rupees Five Thousand only). [ R.M.BORDE ] JUDGE knp/CRIAPL38.09