Criminal Appeal No. 174 of 2011. Case: Hamid Kadir Shaikh Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 174 of 2011 |
| Counsel | For Appellant: Joydeep Chatterji, Adv. and For Respondents: B. V. Wagh, Addl. Public Prosecutor |
| Judges | P. V. Hardas, J. and A. V. Potdar , J. |
| Issue | Evidence Act (1 of 1872) - Section 32; Indian Penal Code (45 of 1860) - Section 300 |
| Citation | 2013 CriLJ 109 |
| Judgement Date | April 18, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
Hardas, J.
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The appellant, who stands convicted for an offence punishable under Sections 498-A, 342 and 302 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs. 2,000/-, in default of which to undergo further R.I. for six months; R.I. for one year and to pay fine of Rs. 1,000/-, in default of which to undergo further R.I. for six months and imprisonment for life and to pay fine of Rs. 2,000/-, in default of which to undergo further R.I. for six months, with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Ahmednagar, by judgment dated 7.2.2011, in Sessions Case No. 171 of 2009, by this appeal questions the correctness of his conviction and sentence.
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Facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus:-
P.W.1 Gorakshanath Ghugarkar, who was working as a Special Judicial Magistrate, received a communication at Exh.10 on 7-5-2009, at about 10.30 a.m. requesting him to record the dying declaration of Bashira, wife of the appellant. He accordingly proceeded to the Civil Hospital and contacted P.W.9 Dr. Suvarnamala Bangar and requested her to ascertain the condition of Bashira to give her statement. Accordingly, P.W.9 Dr. Bangar examined injured Bashira and opined that she was in a fit condition to give her statement. An endorsement was accordingly made on the paper on which the dying declaration was to be scribed. P.W.1 Gorakshanath thereafter introduced himself to Bashira and ascertained for himself that Bashira was in a fit condition to give her statement and accordingly recorded the statement of Bashira at Exh. 11. As per Exh.11 Bashira had stated that the appellant, who was suspecting her fidelity, poured kerosene on her and set her ablaze. The said dying declaration was thereafter forwarded by P.W.1 Gorakshanath to the police station. P.W.6 Police Head Constable Abdul Raje, who was attached to the Pathardi police station, received a sealed envelope from the Police Officers of the Tophkhana police station and on the basis of the dying declaration of Bashira, recorded by P.W.1 Gorakshanath, registered an offence vide Crime No. 102 of 2009, under Sections 498-A, 307, 323, 504 and 506 of the Indian Penal Code. After registration of the offence, the investigation was handed over to P.W.8 Budhiraj Sukale.
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P.W.8 P.S.I. Sukale, who was attached to the Pathardi police station, was entrusted with the investigation of Crime No. 102 of 2009. He accordingly proceeded to the scene of the incident and drew the scene of the incident panchnama in the presence of panch witnesses at Exh.16. From the scene of the offence half burnt clothes of injured, one plastic drum smelling of kerosene, one match box, five match-sticks and one burnt match-stick were seized. Statements of witnesses were recorded and search for the accused was commenced. On 9.5.2009, the appellant/accused was arrested in the presence of panchas under arrest panchnama at Exh.28. Meanwhile, it appears that injured Bashira succumbed to her injuries, i.e. on 11.5.2009 and accordingly the inquest panchnama of the dead body of Bashira was drawn in the presence of panchas at Exh. 18. With the permission of Judicial Magistrate Section 302 of the Indian Penal Code was added. Statements of other witnesses were recorded and the dead body of deceased Bashira was referred for post-mortem examination. The seized articles were thereafter sent to the Chemical Analyzer under requisition at Exh.30. The report of the Chemical Analyzer is at Exh.31. Further to the completion of investigation a charge-sheet against the appellant was submitted.
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On committal of the case to Court of Session, trial Court vide Exh.4 framed charge against the appellant for offence punishable under Sections 498-A, 302 and 342 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined nine witnesses. The defence of the appellant is of denial and...
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