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2016 Supreme(Bom) 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
A.I.S. Cheema, J.
Khurshidabegum W/o. Sk. Mahemood - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 726 of 2003
Decided On : 01-08-2016
For the Appellant : Mr. Joydeep Chatterji
For the Respondent: Mr. K.S. Hoke Patil
The main legal point established in the judgment is the reliance on dying declarations and the consideration of mitigating circumstances in sentencing.
Headnote:
498-A - Offence under Section 498-A read with Section 114, alternatively Section 498-A read with Section 109 of Indian Penal Code, 1860 - [306, 114, 106, 109, 304-B, 34, 4 of I.P.C., Dowry Prohibition Act, 1961] - The court discussed the dying declarations, the evidence of witnesses, and the postmortem report to convict the accused under Section 306 of I.P.C. The court also considered the mitigating circumstances and the age of the accused in reducing the sentence from seven years to four years of simple imprisonment.
Fact of the Case:
The victim, Shabana, was admitted to the hospital with 96% burns and gave two dying declarations stating that she burnt herself due to continuous harassment by her mother-in-law. The accused was convicted under Section 306 of I.P.C. based on the dying declarations and postmortem report.
Finding of the Court:
The court found the accused guilty of the offence under Section 306 of I.P.C. and reduced the sentence from seven years to four years of simple imprisonment considering the age of the accused.
Issues: The issues revolved around the authenticity of the dying declarations, the continuous harassment by the mother-in-law, and the appropriate sentence considering the age of the accused.
Ratio Decidendi: The court relied on the consistent dying declarations, evidence of witnesses, and the postmortem report to convict the accused under Section 306 of I.P.C. The court also considered the mitigating circumstances and the age of the accused in reducing the sentence.
Final Decision: The Appeal of the Appellant against conviction under Section 306 of the Indian Penal Code, 1860 is dismissed. However, the sentence of imprisonment as imposed by the trial Court is reduced from seven years to four years of simple imprisonment and fine of (Rupees Hundred). In default of payment of fine she shall further suffer simple imprisonment for three months. The Appeal is accordingly disposed of.
A.I.S. Cheema, J.
The Appellant- original accused No. 1 was charged with offence punishable under Section 498-A read with Section 114, alternatively Section 498-A read with Section 109 of Indian Penal Code, 1860 ("I.P.C." in brief). She was also charged with offence punishable under Section 306 read with Section 114, Section 106, Section 109 of I.P.C. Alternatively charge was framed for offence under Section 304-B read with 34 and Section 304-B read with 114 of I.P.C. There was yet another alternative charge under Section 498-A read with 114 of I.P.C. read with Section 4 of the Dowry Prohibition Act, 1961. Along with her, the accused No. 2 arrayed was her son Shaikh Jumman. After the trial before 3rd Additional Sessions Judge, Jalna, the son got acquitted of all the Sections, while the Appellant came to be convicted on 21st October 2003 for offence punishable under Section 306 of I.P.C. and was sentenced to rigorous imprisonment for seven years and fine of, and in default to suffer further rigorous imprisonment for three months. She was acquitted of the other offences with which she had been charged. Thus, this Appeal.
2. The case of prosecution, in brief, is as follows:-
(A) On 1st November 1998 victim Shabana, the wife of original accused No. 2 - Shaikh Jumman was admitted at Civil Hospital, Jalna with 96% burns. The hospital authorities sent Medico Legal Case (M.L.C.) Report to the police out-post and then head constable Bhujangrao Mante (PW-5) went in the hospital and asked the doctor to examine the victim. Doctor examined and found the victim to be conscious and in position to make statement and the statement of the victim was recorded (Exhibit 33 - first dying declaration) on 1st November 1998 between 9.00 - 9.30 a.m. by PW-5 Bhujangrao Mante.
(B) In the first dying declaration Exhibit 33 the victim informed police that she got married seven months back with accused No. 2 - Shaikh Jumman. She gave details of the other brothers and sisters of Shaikh Jumman and her mother-in-law accused No. 1 Khurshidabegum. She stated that on 1st November 1998 in the morning since 5.00 a.m. her mother-in-law - Khurshidabegum was abusing her. She had rushed against the person of victim to beat her. In anger victim put kerosene available in the house in a can on her person and with the help of match stick put fire to her own person. She stated that she had trouble from her mother-in-law. The mother-in-law had been harassing her and because of her trouble, on that day of 1st November 1998 at about 7.00 a.m. she poured kerosene on herself from can and with the help of match stick has burnt herself. She added that she has no trouble from her husband and when she burnt herself, the mother-in-law said that let her burn and so saying she had gone out. When she shouted, people from the lane gathered and put out the fire.
(C) The dying declaration as above was recorded by the head constable Bhujangrao Mante and sent to police station Kadim Jalna, where entry was taken at 0/1998 at 11.10 a.m. on 1st November 1998 and the F.I.R. was forwarded to police station Badnapur. At Badnapur, District Jalna crime was registered as No. 134/1998 on 2nd November 1998 at 12.35 p.m.
(D) After PW-5 Bhujangrao Mante recorded the first dying declaration, he sent note to Tahsildar for recording of the dying declaration. Consequently, Naib-Tahsildar Shyamrao Nandedkar (PW-3) went to the Hospital and recorded the second dying declaration of the victim vide Exhibit 29 on 1st November 1998 between 9.50 - 10.20 a.m. after the doctor examined victim and found the victim to be in fit and conscious condition to make statement.
(E) P.S.I. Pralhad Susar (PW-4) went to the spot and recorded panchnama on 3rd November 1998 between 9.30 - 10.15 a.m. As per the spot panchnama recorded, from the spot burnt clothes and plastic can smelling of kerosene were seized. A.S.I. Walmik Avhade (PW-7) further investigated crime. Statements of the witnesses were recorded. The victim expired on
