Criminal Appeal No. 456 of 2006. Case: Abdul Riyaz Abdul Bashir Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 456 of 2006 |
| Counsel | For Appellant: Anil Mardikar, Adv. and For Respondents: M. K. Pathan, A. P. P. |
| Judges | P. V. Hardas , J. and Mrs. Sadhana S. Jadhav, J. |
| Issue | Evidence Act (1 of 1872) - Section 32 |
| Citation | 2012 CriLJ 3277 |
| Judgement Date | March 06, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
Smt. Sadhana S. Jadhav, J.
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The appellant herein was convicted by 2nd Ad hoc Additional Sessions Judge, Achalpur in Sessions Case No. 57/2005 for an offence punishable under Section 302 of IPC and sentenced to suffer imprisonment for life and to pay fine of ` 500/- in default further simple imprisonment for three months by a judgment and order dated 9.8.2006. Five persons including the appellant were tried in Sessions Trial No. 57/2005 for offence punishable under Section 302 read with 34 of IPC and Section 498-A read with 34 of IPC. However, original accused Nos. 2 to 5 are acquitted by the Sessions Court of all the charges levelled against them. Being aggrieved by the said judgment and order, the appellant herein has preferred the present criminal appeal.
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The prosecution case is that the appellant was married to Nargis on 21.5.2003. Initially for some period, the couple was residing in a joint family. However, Nargis had complained to her parents that she was being ill-treated by her family members and, therefore, the parents had requested the appellant to reside separately. The appellant had obliged and ever since then the couple was residing separately from the other family members. The prosecution has alleged that three days prior to 15.1.2005 Nargis had been to her maternal house to fetch ` 1500/- for accused No. 1. However, her parents could not arrange for more than ` 1000/- and, therefore, she returned to her matrimonial abode with ` 1000/-. The accused were annoyed with her and, therefore, they picked up a quarrel with her on the said count. According to the prosecution, all the accused persons had asked Nargis to leave her matrimonial house. However, she declined and retorted. Thereafter original accused No. 4 exhorted the present appellant to eliminate Nargis and, therefore, the accused/appellant gave a can of kerosene to Nargis. Nargis poured kerosene on her person. On second thoughts, when she was changing her clothes soaked with kerosene, the appellant struck a match-stick and set her ablaze as a result Nargis sustained burns. She was taken to Sub-District Hospital, Achalpur by her husband i.e. the present appellant. The general condition of Nargis was serious and, therefore, she was referred to Civil Hospital at Amravati. The Medical Officer had given intimation to the Police about the admission of Nargis in burns. The Police then requisitioned the services of an Executive Magistrate to record the dying declaration of Nargis. The Executive Magistrate namely Ku. Vaishali Pathare (PW8) recorded the dying declaration of Nargis which is at Exh.63. On the basis of the said dying declaration, Crime No. 11/2005 was registered against the accused for offences punishable under Sections 307, 498-A read with 34 of IPC. Nargis succumbed to the burn injuries on 18.1.2005 in Civil Hospital at Amravati. The offence was then converted to Section 302 of IPC. On 20.1.2005 the accused were arrested. Investigation was set in motion. After completion of investigation, charge-sheet was filed on 19.4.2005 against all accused for offence punishable under Sections 302, 498-A read with Section 34 of IPC. The case was committed to the Court of Sessions and registered as Sessions Trial No. 57/2005. The prosecution examined nine witnesses to bring home the guilt to the accused. The accused examined defence witness Kazi Sayyed Fasihuddin who had performed marriage of the accused with the deceased. The defence witness has been examined to demonstrate before the Court that the signature on the dying declaration is different from the signature appearing on the Nikahnama which is at Exh.82.
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PW1 Shamsad Bano is the neighbour of the appellant at village Bramhanwada Thadi. According to her Nargis was illtreated by the accused persons and intermittently she could hear the quarrels between the accused and the deceased. On 15.1.2005 at about 6 p.m., she had seen flames emanating from the house of the accused. She also heard the cries "Bachav-Bachav" and therefore, she came out of her house and saw that Nargis had sustained burn injuries and the appellant was taking her to the hospital in an autorickshaw. In the cross-examination, PW1 has admitted that at the time of incident she was washing clothes in the Courtyard of her own house. Her testimony to the effect that she had heard the cries of Nargis to save her is elicited as an omission. She had seen the appellant taking Nargis to the Hospital. The very fact that hearing of cries is elicited as an omission, it will have to be presumed that no such cries were heard by anybody.
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PW2 Sk. Sharafat is the brother of deceased Nargis. He resides at village Palaspur. PW2 has deposed before the Court that three days prior to 15.1.2005, Nargis had visited her matrimonial house and had informed the family members that she was sent by her husband...
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