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2013 DIGILAW 1542 (BOM)

Ramija Salauddin Mulla v. State of Maharashtra

2013-08-07

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT : Tahilramani, J. 1. The appellant Ramija Mulla, original accused No.1, and Mumtaj Khan, original accused No.2 have preferred criminal Appeal No.787 of 2011. Appellant Mumtaj Khan, original accused No.2 had earlier preferred criminal Appeal No.552 of 2011. Both the appeals are directed against the judgment and order dated 24.5.2011 passed by the learned Additional Sessions Judge, Vaduj in Sessions Case No.64 of 2010. By the said judgment and order, the learned Sessions Judge convicted both the appellants u/s 302, 323, 504 and 506 r/w 34 of the Indian Penal Code. For the said offences, the learned Sessions Judge sentenced both the appellants to imprisonment for life and fine of Rs.5,000/-, i/d. S.I. for two months. For the sake of convenience, the appellant Ramija will be referred to as accused No.1 and the appellant Mumtaj will be referred to as accused No.2. 2. The prosecution case briefly stated is as under: Deceased Sunita was residing at Katar Khatav, District Satara. She was married to one Tanaji Kusalkar. It is the prosecution case that Sunita was having an affair with Salauddin, who was the husband of accused No.1 Ramija. Accused No.2 Mumtaj is the sister-in-law of accused No.1. Accused No.1 and accused No.2 came to the house of deceased Sunita on 17.9.2008 at about 5pm. They had a quarrel with Sunita and both of them abused and assaulted Sunita. Thereafter, they poured kerosene on Sunita and set her on fire. Sunita was taken to the hospital. In the hospital, PW11 police head constable Jadhav recorded the dying declaration of Sunita. In the dying declaration, deceased Sunita stated that on 17.9.2008 at about 4.30pm, accused No.1 Ramija and her sister-in-law came to her house. Both of them started abusing her on the ground that Sunita was having love affair with the husband of Ramija. Both of them assaulted her. Thereafter, Ramija took a kerosene can from the house of Sunita and poured kerosene on Sunita and set her on fire with a matchstick taken from the house of Sunita. This dying declaration was treated as FIR. Thereafter, investigation commenced. Sunita expired 20.9.2008. Thereafter, the offence was converted from section 307 of Indian Penal Code to section 302 of the Indian Penal Code. After Sunita expired, her dead body was sent for postmortem. PW6 Dr.Babar performed the postmortem on the dead body of Sunita. This dying declaration was treated as FIR. Thereafter, investigation commenced. Sunita expired 20.9.2008. Thereafter, the offence was converted from section 307 of Indian Penal Code to section 302 of the Indian Penal Code. After Sunita expired, her dead body was sent for postmortem. PW6 Dr.Babar performed the postmortem on the dead body of Sunita. He opined that the cause of death was 72% injuries due to superficial and deep burns. After completion of investigation, chargesheet came to be filed. 3. Charge came to be framed against both the appellants – original accused No.1 Ramija Mulla and original accused No.2 Mumtaj Khan u/s 302 of the Indian Penal Code. They pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in para 1 above. Hence, this appeal. 4. We have heard the learned Advocates for the appellants and learned A.P.P. for the State. We have carefully considered their arguments, the judgment and order passed by the learned Sessions Judge and the evidence on record. After minutely considering the same, we are of the opinion that Ramija poured kerosene on Sunita and caused her death by setting her on fire. 5. The conviction is mainly based on the dying declaration (exhibit 106) recorded by PW11 Police Constable Jadhav. This witness has stated that on 17.9.2008, he was on duty at Civil hospital at Satara. At about 7.30pm, he was told by Doctor of admission of one burn case. Doctor informed him that the patient was named Sunita. On examination, it was found that the patient was conscious and in a position to give statement. Then, PW11 Police Constable Jadhav recorded the dying declaration of Sunita. In the dying declaration, Sunita stated that on 17.9.2008 at about 4.30 pm, accused No.1 Ramija and her sister-in-law came to her house. Both of them started abusing her on the ground that Sunita was having love affair with the husband of Ramija. Both of them assaulted her. Thereafter, Ramija took a kerosene can from the house of Sunita and poured kerosene on Sunita and set her on fire with a matchstick taken from the house of Sunita. This dying declaration was treated as FIR. 6. Both of them assaulted her. Thereafter, Ramija took a kerosene can from the house of Sunita and poured kerosene on Sunita and set her on fire with a matchstick taken from the house of Sunita. This dying declaration was treated as FIR. 6. The prosecution has tried to rely on the evidence of the neighbours of Sunita i.e., PW1 Lalaso and PW2 Balasaheb to show that the accused No.2 Mumtaj also set Sunita on fire. Reliance is placed on the evidence of PW1 Lalaso and PW2 Balasaheb wherein they stated that Sunita came out of the house engulfed in flames and she told that both Ramija and her sister-in-law set her on fire. According to PW5 Dr.Andhare, similar history was given by Sunita to him that Ramija and her sister-in-law Mumtaj set her on fire. However, as opposed to these three oral dying declarations, there is one written dying declaration recorded by PW11 Police Constable Jadhav in which Sunita has stated that at around 4.30pm, Ramija and her sister-in-law had come to her house and had abused her. They had a quarrel with Sunita and both of them assaulted her. Thereafter, Ramija poured kerosene on Sunita and set her on fire. 7. The learned APP has also placed reliance on the fact that according to the prosecution, PW5 Dr.Andhare had recorded the dying declaration (Exhibit 54) of Sunita wherein she stated that both Ramija and her sister-in-law poured kerosene on her and set her on fire. However, as far as the dying declaration (exhibit 54) is concerned, it has been brought out in the cross-examination of PW5 Dr.Andhare that the statement recorded by him was not submitted to the police. He was not aware as to who was in charge of the burns ward on that date. He stated that he recorded the dying declaration because the CMO had instructed him to record the statement by making an endorsement on the medical papers. However, the medical papers do not show any such endorsement. He has further stated that his duty timing was from 2pm to 8pm and he recorded the dying declaration from 7.30 to 8.30pm and nobody else had recorded the dying declaration before him. However, the evidence of PW11 Police Constable Jadhav shows that he recorded the dying declaration of Sunita at 7.30pm. This witness makes no reference to PW5 Dr.Andhare recording the dying declaration of Sunita. However, the evidence of PW11 Police Constable Jadhav shows that he recorded the dying declaration of Sunita at 7.30pm. This witness makes no reference to PW5 Dr.Andhare recording the dying declaration of Sunita. What really causes doubt about the dying declaration (exhibit 54) recorded by Dr.Andhare is that he had not given a copy thereof to the police and he produced it only at the time of his evidence. Further he has stated that he recorded the dying declaration on the written instructions of the CMO which were given on the medical papers and no such endorsement is found on the medical papers. All these facts raise grave doubt about the dying declaration (exhibit 54). Hence, we are not inclined to rely on the same. In such case, we are only left with the dying declaration (exhibit 49), in which Sunita has stated that only Ramija had poured kerosene on her and set her on fire. 8. Thus, the dying declaration (exhibit 49) shows that Sunita has stated that only Ramija had poured kerosene on her and set her on fire. Mr.Sait submitted that assuming that Ramija had poured kerosene on Sunita and set her on fire, the act of accused No.1 Ramija would not fall under section 302 of the Indian Penal Code but it would fall under section 304 part II of the Indian Penal Code. That Sunita had died a homicidal death is not disputed by the defence. But the defence taken is that the incident occurred during a sudden quarrel which took place in the house of Sunita. The quarrel took place because Sunita was having an affair with the husband of accused No.1 Ramija. During the course of the quarrel, accused No.1 poured kerosene on Sunita which was taken from the house of Sunita and set her on fire with a matchstick taken from the house of Sunita. Thus, it is submitted that there was no premeditation or preplanning and the incident occurred on the spur of the moment in a fit of anger during a sudden quarrel. 9. Mr.Saitsubmitted that accused No.1 Ramija had no intention to cause the death of Sunita. In support of this contention, he has placed reliance on the dying declaration (exhibit 49) recorded by PW11 Jadhav. In the said dying declaration (exhibit 49), Sunita has stated that Ramija took her in a private vehicle to the hospital. 9. Mr.Saitsubmitted that accused No.1 Ramija had no intention to cause the death of Sunita. In support of this contention, he has placed reliance on the dying declaration (exhibit 49) recorded by PW11 Jadhav. In the said dying declaration (exhibit 49), Sunita has stated that Ramija took her in a private vehicle to the hospital. Mr.Sait further submitted that the incident had occurred during the course of a sudden quarrel and the fact that accused No.1 Ramija immediately rushed Sunita to the hospital shows that she had no intention to kill Sunita. No doubt, the evidence on record shows that it was accused No.1 Ramija who set Sunita on her. However, the pivotal question which arises in the facts and circumstances of this case is what is the nature of the offence proved against accused No.1 Ramija. We have already observed earlier that as far as accused No.2 Mumtaj is concerned, Sunita has not stated in her dying declaration (exhibit 49) that Mumtaj had any role to play as far as setting Sunita on fire was concerned. She has attributed the role of setting her on fire only to accused No.1 Ramija. The evidence on record shows that both the accused persons had a quarrel with Sunita. This is brought out in the evidence of PW1 Lalaso and PW2 Balasaheb. PW1 Lalaso had stated that on 17.9.2008 at about 5pm, when he was standing near the chowk, he heard sound of quarrel. He went to the hut of Sunita. Thereafter this witness has stated that PW2 Balasaheb and he and others tried to stop the quarrel by making them understand. However, they started back-answering them. So they went and stood at a distance. The quarrel continued. Then, they saw flames coming out of the hut and they saw both the accused coming out of the said hut. That the evidence of PW2 is on similar lines as that of PW1 Lalaso. Thus, it is clear that the incident occurred during a sudden quarrel. The dying declaration (exhibit 49) of Sunita shows that after she caught fire, accused No.1 Ramija took her to the hospital in a private vehicle. This conduct cannot be seen dehorsthe totality of the circumstances. Very probably, accused No.1 Ramija would not have anticipated that the act done by her would have escalated to such a proportion that Sunita might die. This conduct cannot be seen dehorsthe totality of the circumstances. Very probably, accused No.1 Ramija would not have anticipated that the act done by her would have escalated to such a proportion that Sunita might die. If she had ever intended Sunita to die, she would not have immediately rushed her to hospital in an effort to rescue Sunita. 10. In view of the evidence on record, we are inclined to observe that all that accused No.1 Ramija thought of was to inflict burns and not kill Sunita. But unfortunately, the situation slipped out of control and it went to a fatal extent. We stand fortified in taking this view by the observations of the Supreme Court in the case of KaluRam Vs. State of Rajasthan (2000) 10 SCC 324 ). In the said case also, similar facts arose and the Supreme Court held that the case would not be covered by Section 302 of Indian Penal Code but it would be covered by Section 304 part-II of Indian Penal Code. 11. As far as appellant No.2 Mumtaj is concerned, there is no clinching evidence to show that she had any role to play in setting Sunita on fire. Sunita has attributed the entire act of pouring kerosene on her and setting her on fire to Ramija. The act took place on the spur of moment. Ramija poured kerosene from a can which was in the house of Sunita and she had not come to the spot with the kerosene can from her own house. This shows that there was no premeditation or preplanning. In this view of the matter, it would not have been possible for the accused No.2 Mumtaj to have known that suddenly on the spur of the moment, accused No.1 Ramija would pour kerosene on Sunita and set her on fire. The evidence shows that accused No.2 Mumtaj did not share any common intention with accused No.1 Ramija of setting Sunita on fire. Thus, as far as accused No.2 Mumtaj is concerned, she can only be found guilty u/s 323, 504 and 506 of the Indian Penal Code. 12. In view of the above facts, we alter the conviction and sentence of Ramija u/s 302 to section 304 part I of the Indian Penal Code. Thus, as far as accused No.2 Mumtaj is concerned, she can only be found guilty u/s 323, 504 and 506 of the Indian Penal Code. 12. In view of the above facts, we alter the conviction and sentence of Ramija u/s 302 to section 304 part I of the Indian Penal Code. Looking to the fact that the accused No.1 is a lady and the facts and circumstances of this case, we sentence accused No.1 Ramija to imprisonment for five years and maintain the fine amount and i/d sentence awarded by the learned Sessions Judge. We are informed that the fine amount has already been paid by accused No.1 Ramija. 13. As far as conviction and sentence of accused No.2 Mumtaj u/s 302 is concerned, the same is set aside. She is acquitted of the offence u/s 302 of the Indian Penal Code. However, the conviction u/s 323, 504 and 506 and fine and in default sentence as imposed by the learned Sessions Judge is maintained. We sentence accused No.2 Mumtaj for these offences to imprisonment for the period already undergone by her. The record shows that the accused No.2 has already paid the fine amount, hence, she is not required to surrender. 14. The conviction and sentence imposed by the learned Sessions Judge in Sessions Case No.64 of 2010 is accordingly modified. 15. Both the appeals are allowed to the aforesaid extent.