Gujarat High Court
Mayuddin Abdul Rashid Kazi vs State Of on 16 April, 2013
Author: Ks Jhaveri
Bench: Ks Jhaveri
MAYUDDIN ABDUL RASHID KAZI....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/1248/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1248 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ MAYUDDIN ABDUL RASHID KAZI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance: MR GAJENDRA P BAGHEL, ADVOCATE for the Appellant(s) No. 1 MR NEERAJ SONI APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 16/04/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)
1. The appellant has been inter alia sentenced to life imprisonment on finding him guilty for the offences punishable u/s.498A and 302 of the Indian Penal Code (for short, the IPC ) by the learned Addl. Sessions Judge, 4th Fast Track Court, Nadiad, by its judgment and order dated 21.06.2006 passed in Sessions Case No. 67/2005. The appellant is, therefore, in this appeal before this Court.
2. As per the prosecution case, the deceased, wife of the appellant herein, was being harassed physically and mentally by the appellant. In the complaint lodged by (Late) Sattarbhai Sheikh, father of the deceased, he came out with a case that he had married his daughter to the appellant in 1996 and that as per the prevalent custom, sufficient dowry was given at the time of marriage. For initial three to four years, the deceased was treated well by the appellant, but trouble started thereafter, when the appellant began to demand various articles from him, which were satisfied by him within his limited sources. He also trained the appellant as a driver and got a job for him. However, the appellant started to harass his daughter and she used to frequently complained to him regarding such harassment, for which the complainant used to reprimand the appellant. He learnt about his daughter, having been set ablaze, from his another son-in-law, Salimbhai Gulubhai Sheikh, whereupon, he visited the Civil Hospital and learnt from his daughter that while she was at home, the appellant picked up a quarrel with her, sprinkled kerosene on her and thereafter, set her ablaze. On crying havoc, people gathered and tried to save her. She was taken to Kapadvanj Government Hospital and thereafter, to Ahmedabad Civil Hospital. Thus, at the very threshold, the complainant could learn about the murder of his daughter by the appellant.
3. On the basis of the above complaint, the criminal case was lodged and investigated. Report was submitted and ultimately, the case being triable by the Court of Sessions, it was tried and the appellant has been found guilty and punished as above.
4. Various witnesses came to be examined by the prosecution, amongst whom, Maherajbibi Sattarbhai Sheikh is the mother of deceased and has been examined as PW-5 at Exhibit-17. In her testimony, she came out with a story that the appellant was frequently demanding money and that in the year 2004, against his demand of Rs.40,000/-, an amount of Rs.25,000/- was given to him. In the cross-examination, it was sought to be suggested to her that the said sum of Rs.25,000/- given to her daughter (deceased) was with reference to sale proceeds of livestock, which suggestion was disputed by PW-5. As per the testimony of PW-5, she could learn from the deceased herself that she was beaten up by the appellant and was set on fire after being sprinkled with kerosene.
5. Afsanabibi Salimbhai Sheikh is the sister of deceased and has been examined as PW-6 at Exhibit-19. This witness also corroborates the fact of deceased having made a statement to her in Ahmedabad Civil Hospital that the appellant had picked up a quarrel with her and after sprinkling kerosene, he had set her on fire.
6. PW-9 is the Executive Magistrate, who has recorded the dying declaration of deceased, wherein also, the deceased gave a statement against the appellant having picked up a quarrel with her, set her ablaze, after sprinkling kerosene on her.
7. It is required to be noted that all the witnesses have deposed, in no uncertain terms, that they could learn from the deceased that she was, initially, taken to Kapadvanj Government Hospital. It appears from their testimony that neither the appellant nor his relatives had informed about the incident in question to the relatives of the deceased immediately. In fact, the record indicates that after about 1½ hours of the incident, the deceased was helped to Kapadvanj Government Hospital and not immediately.
8. Dr. Narendra Gunwantrai Joshi is the Doctor who has performed autopsy of the dead body of deceased and has been examined as PW-8 at Exhibit-21. According to his testimony, the dead body of deceased was brought before him for post-mortem on 05.11.2004 at about 00.35 AM. On examination, he found severe burn injuries all over her body and the cause of death, as determined by him, was shock as a result of extensive burns over the body. It is brought on record that the deceased had sustained 94% second and third degree burns.
9. Dr. Manish Sanmati Kumar is the Resident Doctor of Civil Hospital who has been examined as PW-11 at Exhibit-37. He has deposed to have admitted and treated the deceased in Civil Hospital on 05.11.2004 at about 01.35 AM. As per his testimony, the deceased was found to be in full senses and she had disclosed the history before him stating that on 04.11.2004 at about 11.00 PM, her husband (the appellant herein) picked up a quarrel with her, sprinkled kerosene and thereafter, set her ablaze. It was sought to be suggested to the Doctor that the patient (deceased), who was having serious burn injuries, was required to be given Antibiotics, which will affect her nervous system and tranquilize her. However, this suggestion was denied by the Doctor. He further clarified that right from the time the deceased was received by him in Hospital, she was given oxygen until she expired. He has also reiterated that the history of the incident in question was given by the deceased herself.
10. On record we find documentary evidence in the nature of history before the Doctors at Exhibits-21 & 37 from which it is apparent that the deceased had consistently maintained her stand that her husband, i.e. the appellant herein, picked up quarrel with her and after sprinkling kerosene on her, she had been set ablaze. While relying upon the contents of Medical Certificate (Exhibit-32) dated 04.11.2004, learned counsel for the appellant submitted that the incident was, otherwise, a case of suicide and that it was upon the insistence of deceased that the appellant poured kerosene on her and later, committed suicide by setting herself ablaze.
11. As against that, learned APP would submit that the evidence on record cannot be read in isolation and that the medical history (Exhibit-32) came to be recorded at Kapadvanj Government Hospital, which fact, was, all throughout suppressed by the appellant inasmuch as he did not disclose the deceased, having been admitted to the said hospital, to any of her relatives. In his submission, therefore, the alleged medical history (Exhibit-32) was influenced by the appellant. To appreciate this contention, we shall refer to the testimony of Dr. Manubhai Kalubhai, Medical Officer of Kapadvanj Government Hospital, who has been examined as PW-10 at Exhibit-31. He has testified that on 04.11.2004 the injured (deceased) was brought to Kapadvanj Government Hospital at 11.45 PM with the information of she having suffered burn injuries. At that time, she was conscious and had disclosed her duration of marital life. She had second and third degree burns. After primary treatment, the injured (deceased) was advised to be transferred to Ahmedabad Civil Hospital. The witness also testifies that the deceased had also made a disclosure before him to the effect that she was being harassed by her husband (the appellant herein) and that he had mentioned the fact - insisted by her husband in the case papers at the instance of the patient. However, in the cross-examination, the Doctor (PW-10) admitted that in the medical case papers he did not record the factum of harassment meted out by the appellant to the deceased. However, the Doctor reiterated that such fact was disclosed to him by the deceased. The Doctor also agreed to the suggestion that the deceased had informed him that she had immolated herself. From the above account of the Doctor, it is apparent that the deceased had a complaint against the appellant of harassment and of she, having taken the extreme step to kill herself, on account of such harassment.
12. However, as noticed herein above, the deceased was in custody of the appellant until she was shifted to Ahmedabad Civil Hospital. At Ahmedabad Civil Hospital, the deceased has taken an altogether different stand, consistently on many occasions, while making disclosure regarding the incident either to the Doctor or her relatives, thus belying the say of PW-10 that she immolated herself. She has clearly come out with a case of the appellant having picked up a quarrel with her and of setting her ablaze, after sprinkling kerosene on her. The deceased made such disclosure at Ahmedabad Civil Hospital no sooner she came out of the influence of the appellant while she was at Kapadvanj Government Hospital.
13. Learned counsel for the appellant is unable to show the medical condition of the deceased or other incidental state of affairs while she was taken to Kapadvanj Government Hospital. Unfortunately, even the investigator did not make any attempt to bring those facts on record. Be that as it may, there is reason to believe that since the appellant was the only person who could have thrown light on the condition of deceased while the deceased was at Kapadvanj Government Hospital. It is apparent that the appellant never wanted true facts to come on record. In the above backdrop, it is not surprising if the Doctor says that the deceased immolated herself. Under these circumstances, the submission made by learned counsel for the appellant on this count cannot be accepted.
14. Learned counsel for the appellant would submit that the appellant was physically handicapped. His left hand is not completely functional and his height is 01 ft. lesser than the deceased and therefore, it was impossible for him to set the deceased ablaze. While countering the above submission, learned APP submitted that the appellant was a Truck driver and that the extent of physical disability in his left arm has not been brought on record. He submitted that a person who can control a heavy vehicle like Truck would necessarily be able to do other activities, including setting someone ablaze. Learned APP also submitted that it is only after the appellant having passed the test that driving licence of heavy vehicle was issued to him. Thus, it is established beyond reasonable doubt that the appellant was able to control a heavy vehicle despite the so-called disability in his left arm. The submission made by the learned APP finds favour with us inasmuch as in absence of evidence as to the extent of physical disability in the left arm of the appellant, it appears that he was able to do all his functions and did all routine activities and that he had no such infirmity in his left arm as would prevent him from setting someone ablaze after sprinkling kerosene.
15. It was submitted by the learned counsel for the appellant that there was no evidence on record to establish that the deceased had died at the hands of the appellant. The learned APP submitted that offence occurred within the four walls of the house when, admittedly, the appellant was present. The only other person present in the house with the appellant was the deceased. He relied upon Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681], wherein, the Apex Court held that where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
16. Similarly, in Raj Kumar Prasad Tamarkar v. State of Bihar and another [(2007) 10 SCC 433], the Apex Court observed in para-38 as under;
38. It was argued that if the respondent intended to kill the deceased, he could have done so after 17.07.1996 viz. after Bidai ceremony took place. The very fact that the respondent brought a revolver is itself a pointer to the fact that he wanted to kill the deceased at one point of time or the other. He might have thought that Bidai ceremony would be held on 13.07.1996 or 14.07.1996. When it was postponed, he might have found out an occasion to kill her. Under what circumstances the occurrence took place is not known. The respondent, it would bear repetition to state, did not open his mouth. He was entitled to exercise the right of silence. That he did not offer any explanation itself may not be sufficient to conclusively hold that he was guilty of commission of the offence, but the legal position that the same would be considered to be a circumstance against him is not in dispute.
16.1 Admittedly, the appellant did not make a disclosure of the occurrence to anyone else until the deceased was shifted to Ahmedabad Civil Hospital from Kapadvanj Government Hospital. In the submission of learned APP, it was for the appellant to explain as to how did the deceased die. While drawing our attention to the testimonies of various witnesses and the statement of the appellant-accused u/s. 313 of Cr.P.C., learned counsel submitted that neither in the evidence of witnesses nor in the statement of the appellant recorded u/s. 313 of Cr.P.C., the appellant gave any convincing explanation. In view of the settled position in Trimukh Maroti Kirkan & Raj Kumar Prasad Tamarkar s cases (supra), we have no hesitation in holding that the appellant was obliged to explain the circumstances under which the deceased had died as he was the only person present in the house at the time when the incident in question occurred. Therefore, submission of the learned counsel for the appellant to the contrary do not weigh with us.
17. In addition to what has been found herein above, we have ample documentary evidence as also oral evidence on record speaking about the date, time and manner of incident as also about the assailant of the deceased. The document at Exhibit-38 is the medical case papers of the deceased, which indicate that the deceased was brought to the Civil Hospital on 05.11.2003 as early as 01.30 AM and immediately thereafter, her history was recorded, where, in Hindi language, which we shall quote in Devnagiri, stated that Mujhe mere patine kerosene dalkar jala diya hai. Dinak : 04.11.2004 ko, 11.00 pm, ghar par . It means that my husband poured kerosene on me and set me ablaze on 04.11.2004 at 11.00 pm at home . The medical evidence also indicates that the patient (deceased) was conscious when she was transferred to Ahmedabad Civil Hospital. The medical record at 01.35 AM on 05.11.2004 indicates that the deceased was given appropriate treatment and at that point of time also, the deceased had given history, which has been recorded in the medical case papers as under; Alleged history of homicidal thermal burns on 04.11.2004 at 11.00 PM at home. She had a quarrel with her husband. Her husband, Mayuddin Abdulrashid Kazi, poured kerosene over her and burnt her. Taken to Kapadvanj Government Hospital but, sent here. Last menstrual period on 15.10.2004. Married since ten years. No issue. One D & C done six to seven year back. No history of major medical / surgical illness. In the above medical case papers, it is pertinent to note that the facts which were personally known to the deceased, like her last menstrual period was on 15.10.2004, her marriage duration, etc were also disclosed. This aspect justifies us to say that the history was given by the deceased herself. We also find from the medical record that for some time before the deceased died, she had temperature of 100 degrees. Thus, she was able to speak being conscious and has given history as discussed herein above. We also find from the FIR and testimony of PW-5, the mother of deceased having no substantial contradictions or omissions, PW-6, the sister of the deceased at Exhibit-19 also having no material contradictions or omissions or improvements of deceased having made an oral dying declaration before them that her husband had quarreled with her, poured kerosene and set her ablaze. Thus, we do not find any reason to discard the testimony of any of the above witnesses.
18. Under the above circumstances, we do not find any merits in this appeal. It is, therefore, required to be dismissed and the same is dismissed with no order as to costs.
(K.S.JHAVERI, J.) (G.R.UDHWANI, J.) Pravin Page 15 of 15