Mohammod Ali Mohammod Habib Shaikh Vs the State of Maharashtra

¶1

:1:

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL APPEAL NO. 1032 OF 2003

¶4

 Mohamod Ali Mohamod Habib ]
 Shaikh, R/o. G. Sector, A-1, ]
 Room No. 2, Chita Camp, ]
 Mumbai -88 ] ..Appellant
 (Ori. Accused)
 versus

¶5

 The State of Maharashtra ]
 (At the instance of Trombay ]
 Police Station C.R. No.1/1990 ]
 In its Sessions Case No.458/90] ..Respondents

¶6

 Mr. A. Majeed Memon for the Appellant / Accused.

¶7

 Mr. P. S. Hingorani, APP for the Respondents -
 State.

¶8

CORAM : D. G. DESHPANDE, &
SMT. NISHITA MHATRE, JJ.

¶9

 DATE : 5TH JUNE, 2007.

¶10

ORAL JUDGMENT : (Per : D. G. DESHPANDE, J.) :

¶11

 1. Heard.

¶12

 2. The appellant / accused has been convicted

¶13

 by the trial court for the offences under Sections
 498-A and 302 of the IPC as well as under Sections 3
 and 4 of the Dowry Prohibition Act and sentenced to
 suffer imprisonment including that of life

¶14

:2:

¶15

 imprisonment and fine. By this appeal, the
 appellant / accused has challenged his conviction
 and sentence.

¶16

 3. Prosecution case was that accused Mohamod
 Ali burnt his wife Parveen and killed her. His wife
 Parveen was married to him two years before the
 incident. They had a daughter of about one and half
 years of age. The initial period of marriage was
 happy but after six months accused started harassing
 her on the ground that her parents have not given
 her enough gold ornaments and cash. He was asking
 her to bring seven tolas of gold and cash from her
 mother and quarrelling with her and on her failure
 to do so she was tortured physically and mentally.

¶17

 4. On 2.1.1990 the accused returned home from

¶18

 his work at about 11.00 p.m. He had a dinner.
 Thereafter he started quarrelling with wife Parveen.
 At about 23.15 hours he took out the kerosene can

¶19

 and poured kerosene on her body and lit her on fire.
 Parveen started screaming for help and came out
 running from house. The neighbours gathered and
 they put off the fire and she was removed to
 Rajawadi Hospital. Her statement was recorded in

¶20

:3:

¶21

 the hospital and it was treated as FIR and in this
 background a case came to be filed against the
 accused for different offences, as stated above.
 The defence of the accused was that he was not
 present. He also examined two defence witnesses.
 His defence was totally disbelieved by the court and
 he came to be convicted and hence this appeal.

¶22

 5. The question in this case is whether the
 conviction of the accused is proper. The most
 important evidence in support of the charges is the
 complaint Exhibit 9 recorded by the police officers
 and treated as dying declaration. This dying
 declaration was further corroborated by the dying
 declaration recorded by S.E.M. The learned APP
 pointed out that prosecution examined P.W. 1
 Shalini Rasiklal Sikligar - the SEM to prove the
 dying declaration. She has stated that on 3.1.1990
 she went to Rajawadi Hospital after receiving a
 phone call from Trombay Police. She went in Ward

¶23

 No. 10. It was a ladies burns ward. She was taken

¶24

 to the patient Parveen. She asked the relatives and

¶25

 the police officer to wait outside. A doctor was

¶26

 present and in presence of the doctor, she
 questioned Parveen and recorded her dying

¶27

:4:

¶28

 declaration. She proved the dying declaration

¶29

 Exhibit 6. In the dying declaration Parveen told
 about the demands of gold by the accused, her
 inability to fulfil those demands and on the date of
 the incident accused pouring kerosene on her person
 from a can and setting her ablaze by a match stick
 and the people in the neighbourhood extinguishing
 the fire and calling the police.

¶30

 6. The evidence of P.W.1 is corroborated by

¶31

 P.W. 2 Dr. Dherendra Dayaram Tripathi, who
 admitted Parveen on 2.1.1990 and recorded the
 history given by Parveen as homicidal burns by
 dousing in kerosene. He found that she had 83%
 burns. He also stated that he had given endorsement
 to the police on 3.1.1990 about the capability of
 the patient Parveen to give the statement. He
 proved that endorsement at Exhibit 9. This was
 given by him at about 1.15 a.m. on 3.1.1990. He
 also proved his endrosement on Exhibit 6, the dying
 declaration recorded by P.W. 1. He stated that the
 chances of survival were very slim because the
 injuries were very serious.

¶32

 7. Both the witnesses P.W. 1 and P.W. 2 were

¶33

:5:

¶34

 cross-examined by the defence. Nothing is brought
 out on record to create doubt about their testimony.

¶35

 8. P.W. 3 Smt. Salma Yakub Khan is the sister
 of Parveen. She has stated that four months of the
 marriage were normal for Parveen. Thereafter
 accused started asking dowry and seven and half
 tolas of gold. Then she learnt that Parveen had got
 burns and was admitted in the hospital. She went
 there and spoke with Parveen. Parveen told her that
 accused poured kerosene on her and set her on fire
 for the sake of dowry and that Parveen died on
 4.1.1990. There is nothing in the cross-examination
 at all to doubt the veracity of this witness.
 Witness was also recalled again for bringing certain
 documents but the purpose and object of which is
 nowhere declared and the document was marked for
 identification only.

¶36

 9. The prosecution thereafter examined P.W. 4
 Smt. Kulasumbi Shah Amarsh - the mother of Parveen.
 She also told about the same thing, viz. demand of
 seven tolas gold by the accused, the trouble given
 by the accused to Parveen. Then she learnt about
 Parveen being admitted in the Rajawadi Hospital.

¶37

:6:

¶38

 She was in mourning in that time, she could not go
 to see her.

¶39

 10. Next witness is P.W. 6 Jarinbee Munir
 Ahmad, the landlady of the house where accused and
 Parveen were staying. She has also stated that
 accused was demanding seven tolas of gold and
 Rs.30,000/- and she has scolded the accused for his
 demand and behaviour. On 2.1.1990 she was at home.
 She was sleeping after dinner. She heard sound.
 Her daughter and daughter in law rushed to see what
 had happened. Parveen was in flames. Witness heard
"Khala my husband burned me". The witness was
 confronted with her statement regarding demand of
 gold but that was on the point of quantity only.

¶40

 11. Then the prosecution examined panch witness
 P.W. 7 Khamas Ahmad Saror Khamas. He saw one
 kerosene can, one piece of cloth which was burnt
 which was a part of wearing apparel of a lady.
 There was smell of kerosene in the house. He had
 admitted his signature on the panchanama. It is
 Exhibit 16. He identified the clothes in the court.
 Then the prosecution examined P.W. 8 Dr. Baburao
 Damawale. He examined accused. There were injuries

¶41

:7:

¶42

 to his hands i.e. the tips of fingers of right hand
 showing blisters with necrotic superficial skin. On
 puncturing the blisters serious fluid exuded from
 it, then the dorsum of fore finger and middle finger
 showed superficial burns with secondary infection in
 the form of yellowish slough little foul smell.
 Then medial aspect of left forearm showed multiple
 burn injuries. The age of the injuries was more
 than 36 hours. He proved medical certificate
 Exhibit 18 and C.A. report Exhibit 19. There was
 no cross-examination excepting one question about
 the age of the injuries. It is to be noted at this
 juncture, these injuries on the person of the
 accused according to the trial court negatived his
 defence that he was not present when Parveen was
 burnt. We do not find any fault in the reasonings
 and conclusions of the trial court in this regard.

¶43

 12. Then prosecution examined P.W. 9 P.S.I.
 Kamble. He recorded the statement of Parveen and
 obtained her thumb impression. It is Exhibit 9. It
 was treated as FIR. In that statement Parveen had
 given history as stated above and the reason for
 burning her. When the statement was converted into
 FIR it was marked Exhibit 21. Then the accused was

¶44

:8:

¶45

 arrested. The witness has also stated that SEM also
 recorded the statement of victim Parveen prior to
 his recording of her statement. All the muddemal
 was sent to the C.A. He denied the suggestion that
 no statement was given by Parveen or she did not
 make any allegations against husband.

¶46

 13. This is the evidence of the prosecution.
 Two defence witnesses were examined by the accused
 to show that he was out of the house on the night
 duty, but those defence witnesses were disbelieved
 by the court because of the injuries suffered by the
 accused to his hand.

¶47

 14. In his statement under Section 313, the
 accused did not give any explanation and contended
 that he was falsely implicated in the case.

¶48

 15. It is in this background that the trial
 court convicted the accused. We do not find any
 lacuna in the prosecution case. All the important
 ingredients of the offence, viz. demand of dowry in
 the form of gold, harassment, torture and ultimately
 burning of Parveen, is proved by the prosecution by
 the evidence of the relatives of Parveen and also by

¶49

:9:

¶50

 two dying declarations, one recorded by SEM and one
 recorded by PSI. No fault can be found with the
 approach of the trial court. The Judgment does not
 require any interference, nor is a case for doing so
 and therefore the following order:

¶51

ORDER

¶52

 . Appeal is dismissed.

¶53

 . The Conviction and sentence imposed upon

¶54

 the accused is maintained.

¶55

(SMT. NISHITA MHATRE, J.) (D.G. DESHPANDE, J.)

Mohammod Ali Mohammod Habib Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohammod Ali Mohammod Habib Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri Ramesh Sadashiv Khatpe and Another Vs the State of Maharashtra

State vs. Nanubai Dhanjibhai Vegada and Anr. Vs Nanubai Dhanjibhai Vegada and Anr.

Rajbali @ Vakil Bhullan Dube Vs the State of Maharashtra

Ramesh Laxman Bote Vs the State of Maharashtra

Khanderao Dnyanu Sawant Vs the State of Maharashtra and Anr.

Sikandar Haji Malang Shaikh and Anr. Vs the State of Maharashtra