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2014 DIGILAW 639 (BOM)

Sk. Gulam Husein Sk. Dagu v. State of Maharashtra

2014-03-07

ABHAY M.THIPSAY

body2014
JUDGMENT The applicants were prosecuted on the allegation of having committed offences punishable under Sections 498A of the IPC and 306 of the IPC, read with Section 34 of the IPC. They were convicted on a trial held by the learned IVth Assistant Sessions Judge, Dhule. The learned Assistant Sessions Judge sentenced the applicant no.1 to suffer rigorous imprisonment for 5 years, and to pay a fine of Rs. 500/-, with a default sentence, with respect to the offence punishable under Section 306 of the IPC; and to suffer rigorous imprisonment for 6 months, and to pay a fine of Rs. 500/-, with default sentence, with respect to the offence punishable under Section 498A of the IPC. The learned Assistant Sessions Judge sentenced the applicant nos.2 and 3, to suffer rigorous imprisonment for 3 years, each, and to pay a fine of Rs. 300/-, each, with default sentence, with respect to the offence punishable under Section 306 read with Section 34 of the IPC, and to suffer rigorous imprisonment for 6 months, each, and to pay a fine of Rs. 300/-, each, with respect to the offence punishable under Section 498A read with Section 34 of the IPC. The learned Assistant Sessions Judge directed that the substantive sentences would run concurrently. The applicants challenged their conviction and sentences imposed upon them, by filing an Appeal in the Court of Sessions. The learned Sessions Judge, Dhule, who heard the same, dismissed it. Being aggrieved by the conviction and sentences imposed upon them, the applicants have approached this Court by filing the present Revision Application. 2. I have heard Mr. R.M. Deshmukh, the learned Counsel for the revision applicants. I have heard Mr. S.R. Palnitkar, the learned Additional Public Prosecutor for the respondent - State. With the assistance of the learned Counsel for the applicants, I have gone through the impugned judgments carefully. I have also gone through the record and proceedings of the trial court, as well as that of the appellate court. I have been taken through the relevant evidence. 3. The applicant no.2 died during the pendency of the present revision. In its order dated 11th September 2012, this Court observed that the Revision Application, so far as it related to the applicant no.2, stood abated. 4. The case of the prosecution before the trial court was that, the applicant no.1 Sk. 3. The applicant no.2 died during the pendency of the present revision. In its order dated 11th September 2012, this Court observed that the Revision Application, so far as it related to the applicant no.2, stood abated. 4. The case of the prosecution before the trial court was that, the applicant no.1 Sk. Gulam Husein - husband of Sayarabi; the applicant no.2 Riyasatbi - mother-in-law of the said Sayarabi; and the applicant no.3 Hasinabi - sister-in-law of the said Sayarabi, used to harass and illtreat Sayarabi. The marriage between Sayarabi and the applicant no.1 had treated with cruelty because of her inability to conceive. It was alleged that, at times, she was being kept without food. On 20-1-1992, Sayarabi set herself on fire. She had sustained 98 % bum injuries. She died on 21-1-1992 on account of the bum injuries. 5. Thus, the case was that, Sayarabi was being treated with cruelty by the applicants, and that, because of the cruel treatment meted out to her by the applicants, she was driven to commit suicide, and that, the applicants had, therefore, abetted commission of suicide by Sayarabi. 6. The case of the prosecution rested basically on two statements of Sayarabi, which were recorded before her death and which were admissible in evidence under Section 32(1) of the Evidence Act. One of these statements - the first in point of time - was recorded by P.S.I. Damodhar Jadhav (P.W.8). This statement (Exhibit 29), was treated as the First Information Report. 7. The other dying declaration is the one recorded by a Executive Magistrate Anil Suryawanshi (P.W.5). The record of this dying declaration was tendered in evidence and marked as Exhibit 24. 8. Apart from these two witnesses, seven other witnesses were examined before the trial court. The first witness for the prosecution was the father of deceased Sayarabi, and the second one was her uncle. One Mehmood Bhagwan (P.W.3), one Smt. Naitulbi (PW 4), and one Smt. Jarinabi (PW 7) were the neighbours of the applicants and the Sayarabi. One Dr. P.B. Patil (PW 6) is the one who had examined Sayarabi, and found her in fit mental condition before and after her statement was recorded by Snail Suryawanshi (PW 5). Dr. Rajesh Munot (PW 9) is the one who had similarly examined Sayarabi before and after her statement (Exhibit 24) was recorded by P.S.I. Damodhar Jadhav (PW 8). 9. P.B. Patil (PW 6) is the one who had examined Sayarabi, and found her in fit mental condition before and after her statement was recorded by Snail Suryawanshi (PW 5). Dr. Rajesh Munot (PW 9) is the one who had similarly examined Sayarabi before and after her statement (Exhibit 24) was recorded by P.S.I. Damodhar Jadhav (PW 8). 9. Both the courts believed the evidence of the dying declarations. 10. I have gone through the relevant evidence and the record of the statements made by Sayarabi, to the Executive Magistrate, Anil Suryawanshi (P.W. 5), and P.S.I. Damodhar Jadhav (PW 8), respectively. The record indicates that, Sayarabi stated to these persons that, she was being continuously harassed by the applicants by saying that she would not be able to conceive and that, they used to assault and beat her; that, she was fed up because of the trouble given to her by the applicants and being fed up, had poured kerosene on her person and had set her on fire. Sayarabi specifically named the applicants as the persons responsible for her suicide. 11. Both the dying declarations are in conformity with each other. There are no material or substantial variations therein. 12. Both these dying declarations were recorded, apparently, after Sayarabi was examined by the Medical Officers and found to be fit to make a statement by them. I have carefully gone through the evidence of Dr. P.B. Patil (PW 6) and Dr. Rajesh Munot (PW 9), and I find that their testimony was not shaken in any way, in the cross examination. 13. The learned Counsel for the applicants made an attempt to show the unlikelihood of Sayarabi having made such a detailed statement in view of the fact that she had admittedly sustained 98% burn injuries, but I find that none of the two Doctors were cross examined with respect to the medical impossibility of Sayarabi making such a declaration. 14. Apart from this, both the courts below also believed the evidence of the witnesses to the effect that Sayarabi was being treated with cruelty by the applicants. Undoubtedly, there is some discrepancy in that regard, inasmuch as, the witnesses who are the relations of Sayarabi, have claimed that, she used to tell them about the illtreatment, but the dying declaration (Exhibit 24) of Sayarabi indicates that she had not mentioned about the illtreatment to her parents. 15. Undoubtedly, there is some discrepancy in that regard, inasmuch as, the witnesses who are the relations of Sayarabi, have claimed that, she used to tell them about the illtreatment, but the dying declaration (Exhibit 24) of Sayarabi indicates that she had not mentioned about the illtreatment to her parents. 15. There is also evidence of the neighbours indicating that a quarrel had taken place between Sayarabi, on the one hand, and the applicants, on the other hand, and that, Sayarabi was beaten just a day before the incident i.e. on 19-1-1992. It is true that, one of the neighbours, Mehmood Bhagwan (PW 3) was found to be inimically disposed towards the applicants, but neither the trial court nor the appellate court found any infirmity in his evidence. Moreover, there was also evidence of Jarinabi (PW 7) which would support the theory of a quarrel having taking place between Sayarabi and the applicants, just a day prior to Sayarabi's setting herself on fire. 16. It cannot be doubted that there is a concurrent finding of facts by both the courts - the trial court and the appellate court. 17. The revisional jurisdiction is different from appellate jurisdiction. In the revisional jurisdiction, independent re-appraisal of the evidence to disturb a finding of fact arrived at by the trial court is not to be undertaken. This is more so, when there would be a concurrent finding of fact by two courts. 18. It is not that, the conclusions arrived at by the trial court and/or by the appellate court are based on no evidence. It is not that, they have been arrived at by taking into consideration irrelevant or inadmissible material. It is not that, they have been arrived at by keeping relevant and admissible evidence out of consideration. It is not that, the findings arrived at, could not have been arrived at on the basis of the evidence adduced by the prosecution. 19. In arriving at the conclusion, the trial court as well as the appellate court has given due regard to the presumption under Section 113- A of the Evidence Act. 20. It is well settled that, the revisional jurisdiction is meant to be exercised to correct a manifest error of law resulting in miscarriage of justice. 19. In arriving at the conclusion, the trial court as well as the appellate court has given due regard to the presumption under Section 113- A of the Evidence Act. 20. It is well settled that, the revisional jurisdiction is meant to be exercised to correct a manifest error of law resulting in miscarriage of justice. I do not find that, the judgment of the trial court, or that of the appellate court, suffers from any manifest illegality, a patent error of law, or perversity. As such, interference in the matter, in exercise of the revisional jurisdiction is unwarranted. 21. There is, however, one submission made by the learned Counsel for the applicants, that needs consideration. He submitted that in the facts and circumstances of the case, a lenient view, as regards the sentence, be taken. 22. I find that, the incident has taken place 23 years back. One of the applicants i.e. the applicant no.2 has died during the pendency of the present Revision Application. The applicant no.3, who was unmarried at the time of alleged offences, has since married and is reportedly residing at Surat with her in laws. Under the circumstances, keeping all the relevant aspects of the matter in mind, taking a sympathetic view, I am inclined to reduce the substantive sentences imposed upon the applicants, with respect to the offence punishable under Section 306 of the IPC. 23. The order of conviction of the applicants is maintained. However, the substantive sentence imposed upon the applicant no.1, with respect to the offence punishable under Section 306 of the IPC, is reduced to rigorous imprisonment for three years. The applicant no. 1 shall surrender before the trial court within a period of four weeks from today, to undergo the sentence. The substantive sentences imposed upon the applicant no.3 are reduced to the period already undergone. The sentence of fine imposed upon her, is, however, enhanced to Rs. 10,000/- (Rupees ten thousand), on each of the said counts. In default of payment of fine, the applicant no.3 shall undergo simple imprisonment for a period of six months. The amount of fine already deposited by the applicant no.3, if any, be adjusted towards the amount of fine that has been imposed upon her, by the present order. 10,000/- (Rupees ten thousand), on each of the said counts. In default of payment of fine, the applicant no.3 shall undergo simple imprisonment for a period of six months. The amount of fine already deposited by the applicant no.3, if any, be adjusted towards the amount of fine that has been imposed upon her, by the present order. The applicant no.3 shall pay the amount of fine, within a period of two weeks from today, by depositing the same in the trial court. 24. Except the modification of the sentences as above, no other order in this Revision Application, which stands disposed of in the aforesaid terms. Ordered accordingly.