1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 104 OF 2003 Abdul Jabbar Allabax Abdullanis Shaikh ] Prisoner No.1722, ] Kolhapur Central Prison, ] Kalamba, Kolhapur-416 007 ]..Appellant [Ori.Accused ] Vs. The State of Maharashtra ]..Respondent .... Ms. Anita Kuttikrishnan Advocate for Appellant Mr. H.J.Dedhia APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JUNE 18, 2010 ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1 This appeal is directed by the appellant-original accused against the judgment and order dated 12.7.2002 passed by the learned 2 Additional Sessions Judge, Greater Bombay in Sessions Case No. 299 of 2000. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay a fine of Rs. 1000/- in default RI for one month. 2 The prosecution case briefly stated, is as under: Appellant was residing in a hut at Wadala along with his wife Farida (deceased) and children. The appellant was addicted to liquor and he used to illtreat his wife. On 2.11.1999 at about 00.30 hours the accused came home in an inebriated state, he started abusing his wife and expressed suspicion about her character and he started beating her. He dragged her to the `Mori ’ in the house and made her sit there. He then poured kerosene from the kerosene can on her and threw a lit match-stick on her person. Farida caught fire. Immediately thereafter, the accused threw water on Farida and tried to extinguish the fire. On hearing cries of Farida, neighbours gathered at the spot. Farida was shifted to hospital. There her statement (Exhibit-7) came to be recorded by PW 1 PSI Thomre. Her statement (Exhibit-13) was also recorded by S.E.M. PW 3 Smita Kadam. 3 Farida succumbed to her injuries on 3.11.1999. Farida had 3 sustained 79% burn injuries. Dead body of Farida was sent for post mortem. After completion of investigation, the charge sheet came to be filed against the appellant under Section 302 of the IPC. 4 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. 5 We have heard the learned counsel for the appellant and the learned APP for the State. The appellant has filed this appeal through jail. The matter was allotted to Mr. Shaikh Zakir Hussain from the legal aid panel. However, on 14.6.2010 and 15.6.2010, he did not remain present, hence, on 16.6.2010 this Court requested advocate Ms. Anita Kuttikrishnan to appear for the appellant. Ms. Anita Kuttikrishnan agreed to appear in the matter. 6 After giving our anxious consideration to the facts and 4 circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Additional Sessions Judge and the evidence on record, we are of the opinion that the leaned Sessions Judge was right in coming to the conclusion that the appellant set his wife Farida on fire, however, for the reasons stated below by us, the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge requires to be partly modified. 7 The prosecution case is mainly founded on the two dying declarations of Farida i.e. Exhibit-7 and Exhibit-13. Exhibit-7 was recorded by PW 1 PSI Thomre and Exhibit-13 was recorded by Special Executive Officer PW 3 Smita Kadam. 8 PSI Thomre has stated that on 2.11.1999, he was attached to Matunga Police Station. At about 12 mid night, he received a telephone message from duty constable at K.E.M. Hospital that a woman was admitted in K.E.M. Hospital with burn injuries. He disclosed the name of the woman to be Farida Jabbar Shaikh. On receiving message, PSI Thomre went to K.E.M. Hospital. He met the Medical Officer on duty. He made enquiries with the Medical Officer whether the patient was in a fit condition to give her statement. Doctor replied in the affirmative. The 5 Doctor went with him to Farida. Thereafter, PSI Thomre made enquiries with Farida as to how she sustained burn injuries. Farida informed PSI Thomre that after she finished her cooking, her husband came home in an inebriated condition. She further disclosed that she had been to Muscat about one year prior to the incident and the appellant used to suspect her character. Her husband used to quarrel with her as he suspected her character. Her husband made her sit near “Mori ” in the house and poured kerosene on her person and set her on fire with match stick. She started crying due to burns. Her husband tried to extinguish the fire and in the process he also sustained burn injuries. Thereafter, she was taken to K.E.M. Hospital. 9 PW 3 Smita Kadam is the Special Executive Officer. PW 3 has stated that on 2.11.1999 she received request from Matunga Police Station to record statement of injured Farida Shaikh in K.E.M. Hospital. On reaching the hospital, she met the Doctor and Doctor was told about the purpose for which she had come to hospital. She asked the Doctor whether the patient was in a fit condition to give statement. The Doctor informed her that the patient was conscious and in a fit condition to give a statement. Accordingly, Doctor gave endorsement. PW 3 Kadam has also stated that she also confirmed the fact that the patient was 6 conscious and able to give her statement. Thereafter, she made enquiries with patient Farida as to how she sustained burn injuries. Farida disclosed that her husband was addicted to liquor and he always used to harass and torture her. Her husband used to suspect her character. She further stated that on the day of the incident also, he raised quarrel on this count, he poured kerosene on her person and set her on fire. 10 PW 6 Dr.Purnima Aiya was attached to K.E.M. Hospital. She has stated that on 2.11.1999 she was on duty in K.E.M. Hospital. She attended to Farida on that day and treated Farida. She stated that the patient had sustained 79% burns. Farida personally gave history to the Doctor that her husband had set her on fire. The papers containing the history and treatment papers are at Exhibit-20. The Doctor has stated that she also gave her endorsement on the dying declaration that at the time of recording dying declaration, the patient was conscious and she was in a fit condition to give her statement. She has identified this endorsement given by her on the dying declaration. Not only there is evidence of Dr. Aiya which shows that Farida was conscious and in a fit condition to give her statement. The evidence of Doctor also shows that Farida had informed her that her husband had set her on fire which has 7 been noted down by the Doctor as history in the medical papers. Doctor Aiya is an independent witness. She has deposed about the oral dying declaration made to her by Farida. We see no reason to disbelieve the testimony of Dr. Aiya. This witness as well as PW 1 Thomre and PW 3 Kadam have also not been shaken in their cross-examinations. Hence, we have no hesitation in relying on the testimony of these three witnesses. The evidence of PSI Thomre, Special Executive Officer Ms. Kadam and Dr. Aiya clearly brings out the complicity of the appellant in the crime. Their evidence clearly brings out the fact that it was the appellant who poured kerosene on his wife Farida and set her on fire. We find no good reason to discard the two dying declarations given by the deceased regarding the actual occurrence and the oral dying declaration to Dr. Aiya. 11 Ms. Kuttikrishnan submitted that the act of the appellant would not fall under Section 302 of IPC but it would at the most fall under Section 304-II of the IPC. She submitted that the appellant had no intention to cause death of Farida. In support of her contention, she has placed reliance on the dying declaration Exhibit-7 recorded by PSI Thomre as well as Exhibit-13 recorded by Special Executive Officer. In dying declaration Exhibit-7 Farida has stated that her husband tried to 8 extinguish the fire on her body. Ms. Kuttikrishnan further submitted that the incident had occurred during the course of a sudden quarrel and the fact that the appellant immediately threw water on the body of Farida, shows that he had no intention to kill Farida. The fact that the appellant sustained burns while trying to extinguish the fire, is also supported by the evidence of PW 1 PSI Thomre. PW 1 Thomre has stated that the appellant was admitted in the male burns ward. The appellant was admitted in the hospital on the same day as Farida came to be admitted in hospital. He came to be discharged from the hospital on 7.12.1999. This is clear from the evidence of PW 7 PI Sonawane who has stated that the appellant was discharged from the hospital on 7.12.1999 and he came to be arrested on 8.12.1999. Ms. Kuttikrishnan submitted that the evidence shows that while extinguishing the fire, the appellant had also sustained severe burn injuries which can be seen from the fact that he was admitted in the hospital from 2.11.1999 to 7.12.1999 that is for a period of more than a month. 12 No doubt, the evidence on record clearly shows that it was the appellant who set Farida on fire. However, the question remains that in the facts and circumstances of this case, what is the nature of the offence proved against the appellant? It is an admitted case that the 9 appellant had a quarrel with his wife Farida. Thereafter, he set her on fire. However, immediately after Farida caught fire, he frantically poured water on her to save her and while doing so, he also sustained severe burn injuries. This conduct cannot be seen divorced from the totality of the circumstances. Very probably the appellant would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die, he would not have immediately thrown water on her in an effort to rescue her. His efforts to rescue her were such that he also sustained severe burns, so much so that he was required to be hospitalized for more than a month. In view of the evidence on record, we are inclined to think that all that the accused thought of was to inflict burns and not kill her but unfortunately the situation slipped out of his control and it went to a fatal extent. We stand fortified in taking this view by observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan reported in (2000) 10 S.C.C. 324 on which Ms. Kuttikrishnan has placed reliance. In the said case also similar facts arose and the Supreme Court held that the case would not be covered by Section 302 of IPC but it would be covered by Section 304-II of IPC. 13 In view of the above facts and circumstances, we alter the 10 conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. Both sides conceded that the appellant is continuing in jail. We impose a sentence of rigorous imprisonment for the period already undergone by the appellant i.e. about ten years and six months. The appellant be released forthwith if not required in any other case. The conviction and sentence imposed by the learned Additional Sessions Judge for Greater Bombay by judgment and order dated 12.7.2002 passed in Sessions Case No.299 of 2000, is accordingly modified. 14 Before parting with this judgment, we wish to place on record our appreciation for the able assistance rendered by the learned advocate Ms. Kuttikrishnan who even at a very short notice, was throughly prepared and very ably conducted the matter. Legal fees of Ms. Kuttikrishnan be paid as per Rules. 15 Appeal partly allowed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]