1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.456 OF 1993 1 Dr. Imtiaz Ibrahim Kondkari 2 Mrs. Abida Ibrahim Kondkari (Since deceased appeal to the extent of Appellant No.2 abated as per Court’ Order dated 24.1.2011) Adults, residing at Flat No.20 at Haji Baug, Vakola Bridge, Santacruz (E), Bombay 400 056. ...Appellants. (Org. Accd. Nos.1and 2) v. The State of Maharashtra ...Respondents. Mr. S.V.Marwadi i/by M.S.Kadu ,advs. For the Appellants. Smt. G.P.Mulekar, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : FEBRUARY 23, 2011. ORAL JUDGMENT: 1 Accused Nos.1 and 2 have preferred this appeal against the judgment and order passed in Sessions Case No.687 of 1992 by the learned Additional Sessions Judge whereby both the accused were convicted of the offences under Sections 498A r/w section 34 of the I.P.C. While the accused no.1 Imtiaz was sentenced to undergo R.I. for four months and to pay fine of Rs.1,000/-, the accused no.2 was sentenced to undergo S.I. for two weeks and to pay a fine of Rs.100/-. 2 2 At the outset, accused no.1, who is appellant no.1 is husband of the deceased Waheeda. Accused no.2, i.e., the appellant no.2 was mother of the accused no.1. She is reported to be dead, therefore, the appeal to the extent of her conviction and sentence is abated. 3 Prosecution case, in brief, is that about 6 years prior to her death on 7.12.91, the deceased Waheeda was married to the accused no.1 . From this wedlock, they had three children. According to the prosecution, Waheeda was being illtreated and harassed by both the accused on the ground that she was lefty and she was from poor family. Accused no.1 and his wife Waheeda were living in one flat while accused no.2 and other members of their family were living in another flat, which is in front of the house of the accused no.1. However, mess was common. As Waheeda was lefty , she was not allowed to work in the kitchen. Accused no.1 was in love with one Akhtari and he also received letters from her. On being questioned about the said letters, the accused no.1 assaulted and beat Waheeda. Due to the continuous illtreatment by both the accused, her health deteriorated. She was also taken to Dr. Maqsood for examination and treatment and he opined that she was under mental tension. She used to visit brothers’ house frequently and complained about the illtreatment. On 7.12.1991 on telephonic message 3 from Waheeda, her maternal grandfather Mehmood went to meet her. At that time she started weeping and asked him to take her back. However, at that time, her husband was not present in the house and her mother-in- law did not allow him to take her, therefore, he did not take Waheeda with him but Waheeda warned him that it was her misfortune that she was not being taken away and they would hear something bad during the day. Thereafter, she committed suicide by immolating herself. Police and fire brigade reached the spot at about 3 p.m. Fire was extinguished and deadbody of Waheeda was taken to the hospital. Post Mortem report revealed that she had died due to 100% burns. F.I.R. was lodged by her brother P.W.7 Khalid and the offence came to be registered under Sections 306 and 498A of the I.P.C. Both the accused were arrested and after investigation chargesheet was filed. 4 Accused pleaded not guilty. On behalf of the prosecution in all eight witnesses were examined. Accused persons also examined three defence witnesses. After hearing the parties, the learned Additional Sessions Judge acquitted both the accused persons for the charges under Section 306 r/w section 34 of the I.P.C. but convicted them for the offences punishable under Section 498A r/w section 34 of the I.P.C. and sentenced them as stated above. 4 5 Heard the learned counsel for the parties. Perused the record and proceedings of the trial Court. 6 Out of the eight witnesses examined by the prosecution, P.W.1 Shahid and P.W.7 Khalid are brothers of the deceased Waheeda. P.W.2 Mehmood is their maternal grandfather, P.W.3 Hasina is wife of Sajid, another brother of the deceased Waheeda, Shahid and Khalid. From the evidence of these witnesses, it appears that Waheeda was married to the accused no.1 Dr. Imtiaz Kondkari about six years before her death. Since marriage, she was living with her husband in one flat while mother, father and other members of the family of the accused no. 1 were living in another flat opposite to his flat but the mess was common. From the evidence, it also appears that P.W.3 Hasina was brought as maid servant by the parents of the accused no.1 and on the suggestion of father of the accused no.1 and on intervention of Waheeda, P.W.3 Hasina was married to Sajid in the year 1990. Hasina was staying in the house of the accused no.2 while she was working as maid servant. From the evidence, it appears that Hasina as well as her husband and his brothers came from poor families. P.W.7 Khalid had also joined service of the accused no.1 and after some training started working as a compounder in the clinic of the accused no.1. He also used to stay in his 5 house. Evidence of these witnesses show that the deceased Waheeda was lefty. 7 There is no dispute that on 7.12.1991 in the afternoon Waheeda suffered 100% burn injuries at her house and died. As soon as fire in her house was seen, fire brigade as well as police reached there. Evidence of P.W.5 Jaywant Tawade Fire Station Officer shows that when he alongwith his staff and the fire tender reached at the spot, he found that there was fire in a flat on the 4th floor of the building. Flames were coming out from all the sides of the said flat. According to him, when he and his staff reached to the flat, he found that the the door of the flat was broken and he was told that it was broken by the members of the public. This evidence indicates that the door of the flat was closed from inside when the fire had taken place. After the fire was extinguished, completely burnt deadbody of Waheeda was found. Spot Panchanama, Ex.9, which was admitted by the defence, reveals that deadbody was lying on the floor in the bedroom. In the kitchen, there was one empty plastic can smelling of kerosene. It was lying on the ground in front of the kitchen platform. It was smelling of kerosene. Another can containing some kerosene was lying properly under the rack of the kitchen platform. Several other articles in the house were burnt. It 6 appears that the deceased must have immolated herself after pouring kerosene from the can. The trial Court acquitted the accused for the offences punishable under Section 306 of the I.P.C. and, therefore, now the prosecution evidence will have to be examined only to find whether she was being illtreated with cruelty by the accused persons. 8 P.W.1 Shahid deposed that whenever she came to visit them they found that her health was deteriorating and they used to ask her about her marital life. In the beginning, she used to avoid saying anything about the marital life. About 4-5 months after the marriage she was complaining that she was under tension. One day she told that her mother in law, accused no.2 used to criticise her and would not allow her to enter into kitchen or to cook food on the ground that she was lefty. Accused no.2 also used to express dissatisfaction about the marriage of the accused no.1 with Waheeda saying that the accused no.1 Imtiaz being Doctor could have married to a girl from wealthy family. She always used to condemn Waheeda as she was from poor family. Waheeda also told her brother Shahid that accused no.2 used to instigate accused no.1 by making false complaints to him about Waheeda and thereupon, accused no.1 used to beat her. P.W.1 Shahid deposed that he had asked her as to why she was not talking freely about behaviour of her mother in 7 law with her husband or father in law but she was not willing to speak because she apprehended that her complaints would spoil family life and also because father-in-law did not want to interfere in the matters. He admitted in the cross-examination that there was never any demand of dowry, etc. from the accused persons. From the evidence of these persons, it is clear that P.W.1 Shahid , P.W.7 Khalid, their brother Sajid and their whole family came from poor strata and, therefore, accused persons, who were financially well to do could have no expectation from them nor they made any demand on that ground. On the other hand, P.W. 2 Mehmood maternal grandfather of Waheeda admitted in the cross- examination that accused no.1 used to give them money. It shows that not only accused persons had employed P.W.3 Hasina wife of Sajid and P.W.7 Khalid, they also used to provide financial aid to them. 9 Evidence of P.W.2 Mehmood also reveals that accused nos.1 and 2 used to quarrel with the deceased Waheeda and used to illtreat her and beat her frequently. Accused no.1 used to complain that the deceased was not match for him as she was lefty. Accused persons did not like her and they used to insult her and harass. P.W.2 Mehmood admitted in the cross-examination in his statement before the police he had stated that the deceased had not made any complaint to him personally. From this it 8 is clear that neither Mehmood P.W.2 was eye witness of any illtreatment nor the deceased herself had made any complaint before him about the illtreatment at the hands of the accused persons. Therefore, evidence of P.W.2 Mehmood about the illtreatment appears to be hear-say. 10 Evidence of P.W.3 Hasina shows that for about two years before her marriage with Sajid on 11.2.1990, she was living at the house of the accused no.2 as maid servant. During that period she had occasion to see marital life of the accused no.1 and Waheeda. She deposed that their marital life was not happy and the accused used to harass and illtreat Waheeda on the ground that she was from poor family and was lefty. She claimed that she had seen the accused no.1 beating her. In the cross-examination P.W.3 Hasina admitted that the accused no.2 used to criticize her, i.e., Hasina also but at the same time, she admitted that they used to provide good clothings and also good treatment. She used to sleep in the room of accused no.2 and her husband and she admitted that she did not hear any noise from the room of accused no.1 and Waheeda during any night. It shows that she had not heard any sound of quarrel or beating. Though she denied there was never any quarrel between them during day time. 11 Evidence of P.W.7 Khalid shows that since 1990 he had 9 started working as a compounder in the dispensary of the accused no.1. According to him, even before he joined the services with the accused no.1, Waheeda used to make complaints to his brothers and grandfather about the ill treatment and harassment at the hands of both the accused on the ground that she was lefty and from poor family. Besides this, he also deposed that accused no.1 had affair with a girl from rich family, who stayed in Dubai. Accused no.1 wanted to marry her. According to him, he used to sleep in the dispensary of the accused no.1 and after he started sleeping in the flat of accused no.1, he got hold of some letters written by fiancee of the accused no.1. He also read them and questioned accused about his affair with the said girlfriend but in the cross-examination he admitted that the said letters were not from any fiancee or girlfriend of the accused no.1. He admitted that letters were from his pen friends, who included boys as well as girls. It is material to note that according to him, Waheeda used to complain about the illtreatment to her brothers and grandfather but Khalid does not claim that she had ever complained before him about the ill treatment. In the F.I.R. in portion marked ‘A’ of the F.I.R., he stated before the police that during the last two years whenever Waheeda came to his house she used to tell about the beating by her husband, abuses and illtreatment. 10 However, he denied correctness of the portion marked ‘A’ in the F.I.R. 12 According to Khalid during the night in the month of August, when he was sleeping in a passage between two bedrooms, he heard some noise of pounding some object. At that time the door of the bed room was opened and his sister came out, she was weeping and she had swelling on her fore-head. He asked her about it and she told him that the accused had dashed her head against the wall accusing her of trying to defame his love. From this it appears that during that night some quarrel had taken place between Waheeda and her husband about her suspicion about his love with some other woman and possibly during that quarrel, accused pounded her head against the wall. According to P.W.7 Khalid when he asked accused no.1 about his conduct, accused no. 1 asked him not to interfere in his personal matters, therefore, he left that house alongwith his bag and baggage. Two days after that on getting telephonic message from Waheeda, he came back and took her to his house. During that period, he also took her to Habib Hospital of P.W.6 Dr. Maqsood, who examined her and prescribed some medicines. As per the evidence of Dr. Maqsood, she was complaining of severe headache but he did not find any physical symptom for the same. According to him, she was under some kind of tension and, therefore, he prescribed 11 anti-depressant medicines. Waheeda never came back to meet him for further treatment. According to P.W.7 Khalid after a few days, Waheeda returned to her husband’s house. Few days after that again he received a call from her and she told him that accused no.1 wanted to re-marry and give divorce to her. 13 P.W.2 Mehmood states that on the day of her death , he received telephonic call from her and he went to her house. From his evidence, it appears that he was sitting in the room of accused no.2 where he was also offered break-fast. Then Waheeda came out from her flat and he noticed that there was swelling on her fore-head. She had come with her bag of clothes and she told him that she wanted to come alongwith him for two days. However, permission was not granted by her in-laws as her husband was not present in the house, therefore, he did not take her with him. Because of this she was disappointed and later on at 4 p.m. he got the message that she had died. P.W.1 Shahid admitted that whenever she visited, she was well dressed and had ornaments on her person and there were no restrictions on her visits to brothers’ house or grandfather’s house. From this, it appears that generally there were no restrictions on her visits to brothers’ house, but P.W.2 Mehmood did not take her with him on that day because her husband was not present and 12 accused no.2 was not willing to give consent for her going. Even though he claims that he had seen some swelling on the fore-head of Waheeda, he did not state that Waheeda had made any complaint about quarrel, beating or illtreatment, during that visit, which was last before her death. 14 If evidence of all these witnesses is read in its totality, it appears that the main grievance was against her mother in law. As stated by P.W.1 Shahid, accused no.2 used to criticise Waheeda on the ground that she was lefty and, therefore, she was not allowed to enter into kitchen or to cook food. Accused no.2 had expressed her dissatisfaction about the marriage of the accused no.1 with a girl from poor family. His evidence also shows that due to instigation by the accused no.2 by making false complaints, accused no.1 used to beat hear. This was sum and substance of the cruel treatment. I have already pointed out that evidence of P.W.7 Khalid that accused no.1 was in love with some other girl and he used to get love letters from his fiancee is not reliable in view of his own admission in the cross-examination that the letters were from his pen friends. It does not indicate that accused no.1 was in love with some other girl and that was the cause of illtreatment. If accused no.1 wanted to marry some other girl and to give divorce to Waheeda, legally he could not be stopped from the same because parties are Muslim and 13 under the Muslim Law in certain circumstances the husband can divorce to his wife and also enter into marriage with another woman. Not only this a Muslim man is permitted by the Muslim law to have four wives at a time. It is possible that accused no.1 wanted to marry some other woman and, therefore, Waheeda might be under tension and as a result of the same, she committed suicide. However, suicide can not be related to the cruelty at the hands of her husband on this count. 15 On behalf of the accused persons, three defence witnesses were examined. Out of them D.W.2 Yusuf and D.W.3 Libiyar are neighbours of the accused. According to them, relations between the accused and the deceased Waheeda were very cordial. She used to go out alongwith her husband and mother in law. If their evidence is believed, it is difficult to understand why she finally committed suicide by immolating herself. 16 On taking into consideration whole of the evidence, it appears that accused no.1, on certain occasions used to beat his wife due to instigation by his mother, who possibly was giving him false reasons for the same but at the same time, it has to be borne in mind that as admitted by P.W.1 Shahid, Waheeda was not willing to speak out openly even with her husband on that subject and, thereafter she never tried to 14 clear mind of her husband about the instigations by his mother. Had she opened up and talked to him, possibly accused no.1 would have understood real facts and would have desisted towards the illtreatment to the wife. Even then beating of Waheeda by the accused no.1 could not be justified, even though it was because of the instigation by his mother. Therefore, in my opinion, accused no.1 was rightly convicted for the offences under Section 498A but these circumstances will have to be borne in mind while considering the point of sentence. 17 The trial Court found that the accused no.1 and Waheeda were blessed with three children. After death of wife, accused no.1 was required to look after their children as well as his old parents. Incident is of 1991 and period of almost 20 years has passed. Now his parents are no more and children are also grown up. He was aged about 33 years in 1993 now his age must be 51 years. He committed certain wrongs in his young age as he was misled and instigated by his mother. Therefore, in my opinion, no purpose of the justice will be served by sending him to jail. The learned counsel for the accused no.1 points out that he was in custody for about one week after his arrest in this case. 18 Taking into consideration all the facts and circumstances the appeal filed by the accused no.1 Dr. Imtiaz is partly allowed. While his 15 conviction for the offences under Section 498A is maintained, he is sentenced to imprisonment as already undergone and to pay fine of Rs. 10,000/-, in case of failure to pay fine, he shall undergo R.I. for three months. He is allowed to deposit the fine amount within two weeks from this date. (J.H. BHATIA,J.) 16 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.456 OF 1993 1 Dr. Imtiaz Ibrahim Kondkari 2 Mrs. Abida Ibrahim Kondkari (Since deceased appeal to the extent of Appellant No.2 abated as per Court’ Order dated 24.1.2011) Adults, residing at Flat No.20 at Haji Baug, Vakola Bridge, Santacruz (E), Bombay 400 056. ...Appellants. (Org. Accd. Nos.1and 2) v. The State of Maharashtra ...Respondents. Mr. S.V.Marwadi i/by M.S.Kadu ,advs. For the Appellants. Smt. G.P.Mulekar, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : FEBRUARY 23, 2011. P.C. 1 For the reasons recorded separately in the judgment, appeal filed by the accused no.1 Dr. Imtiaz is partly allowed. While his conviction for the offences under Section 498A is maintained, he is sentenced to imprisonment as already undergone and to pay fine of Rs. 10,000/-, in case of failure to pay fine, he shall undergo R.I. for three 17 months. He is allowed to deposit the fine amount within two weeks from this date. (J.H. BHATIA,J.)