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-1- Cri.Appeal.387.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 387 OF 2004Abeda Kasam Tadvi, Age : 70 years, Occu. : Nil.,R/o. Marul, Tal. Yawal, Dist. Jalgaon.… Appellant.VersusThe State of Maharashtra… Respondent.…Mr. Vilas P. Sawant, Advocate for Appellant (Appointed throughLegal Aid)Mrs. Chaitali Chaudhari – Kutti, APP for Respondent – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 05 SEPTEMBER, 2024PRONOUNCED ON : 10 SEPTEMBER, 2024JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder of conviction rendered by learned 2nd Additional SessionsJudge, Jalgaon in Sessions Case No. 73 of 2003 recording guilt ofthe appellant for offence punishable under section 307 of IndianPenal Code (IPC).FACTUAL MATRIX2.In short case of prosecution is that, present appellant ismother-in-law of victim Madina wife of accused no.2. It isprosecution version that, husband and mother-in-law subjected
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-2- Cri.Appeal.387.2004victim to cruelty, they disliked her because of her darkcomplexion. On 23.03.2003, mother-in-law picked up quarrel withdaughter-in-law victim as sugar container was not found. After thequarrel and abuses, she poured kerosene on victim and ignited her.She was taken to the hospital and on examination, she was foundto have suffered 38% burns. On her report, crime and offence wasregistered. After investigation, appellant mother-in-law andhusband were charge-sheeted and tried by learned 2nd AdditionalSessions Judge, Jalgaon for offence punishable under sections 307,498A and 504 of IPC. On appreciation of evidence, learned trial Judgeacquitted husband accused no.2, but convicted present appellantmother-in-law for offence punishable under section 307 of IPC, videjudgment and order dated 23.04.2004. Hence, the appeal.SUBMISSIONSOn behalf of Appellant :- 3.Learned counsel Shri Sawant for appellant would pointout that, at the time of incident, appellant was around 70 years ofage. As on today she is over 90 years of age. He pointed out that,there were no quarrel or incineration as alleged. Rather accordingto him, victim PW2 Madina suffered accidental burns while -3- Cri.Appeal.387.2004cooking. That, except testimony of victim, which is full of materialomissions and contradictions, there is no supportive orcorroborative piece of evidence. He pointed out that, there is nomaterial about an attempt to commit murder. That, only upperlimbs/extremities are affected. Therefore, according to him, chargeitself was misplaced. He pointed out that, neighbours andindependent witnesses have not supported prosecution, however,still learned trial court has accepted prosecution version andrecorded guilt. According to him, no sound reasons are assignedfor justifying conviction. In the alternative, he submitted that,considering appellant to be over 90 years of age as on today, shemay be let off on sentence already undergone.On behalf of Prosecution : 4.Per contra, learned APP, who supported the convictionsubmitted that, victim herself has stepped in the witness box. Shehas narrated that she was maltreated and appellant disliked herbecause of her dark complexion. That, it amounted to mentalcruelty. That, on the day of incident, appellant picked up quarrelon petty count, but poured kerosene and set victim daughter-in-lawon fire. Only because of timely intervention and medical aid, victimcould survive. Learned APP pointed out that, learned trial courthas acquitted husband as no role was attributable to him and this -4- Cri.Appeal.387.2004itself shows that, there is proper appreciation. Considering thenature of offence, she prays to dismiss the appeal.EVIDENCE ON RECORD.5.PW1 Sharifa, neighbour did not support theprosecution. PW2 Madina victim, who deposed at Exh.30, narratedthe incident dated 23.03.2003, in which appellant allegedly pouredkerosene and set her on fire by use of firewood, resulting intoburns. PW3 Abeda, mother of victim stated that, there was illtreatment to her daughter, who reported whenever she came.That, on the day of incident, she learnt that her daughter wasignited by pouring kerosene. PW4 Meharban, neighbour did not support theprosecution. PW5 Faruq, Police Head Constable, who recordedstatement of victim (Exh.31), which is made the basis ofregistration of crime. PW6 A.P.I. Jainarayan, who carried out investigationand charge-sheeted accused. -5- Cri.Appeal.387.2004ANALYSIS6.Evidence of victim PW2 Madina is crucial. Regardingincident, she has deposed as under :- “2.After marriage, I started residing with both accused atMarul. Then, after one year, I and accused no.2 went to reside atSurat. There, two sons and one daughter were born to me. The,when I was pregnant for 4th time, I came to Marul for delivery. Istayed at Marul for seven months. At that time, both accusedused to say that they did not like me because I am black. 3.On 23.03.2003, at 11:00 a.m., there was quarrel betweenme and accused no.1, because the sugar which was brought by herwas not found. At that time, accused no.1 poured kerosene uponme and lit me with burning fire-wood. So, I shouted and mybrother-in-law, Meharban, came and extinguished the fire. I wasthen taken to Rural hospital. There, police came and took downmy report. Report, now shown to me, is same, contents are trueand correct. It bears my signature. It is at Exh.31.” 7.Though mother PW3 Abeda alone supportedprosecution, she has mere hearsay information. Independentwitnesses, who are neighbours have not supported the prosecution,but investigating machinery has drawn spot panchanama and hasalso collected medical papers (Exh.35). On scrutiny of spot, it is emerging that, incident hastaken place near chulha. Situation shown in the panchanama is -6- Cri.Appeal.387.2004that, there is half baked jawar roti on the pan. Victim’s version isthat, around 11:00 a.m., there was quarrel between herself andappellant because sugar brought by her was not found andthereafter, she poured kerosene and she has specifically statedthat she was ignited by mother-in-law. Scene of occurrence atExh.26 shows that, near the chulha, there is half burn fire-woodalong with kerosene container/bottle. 8.Statement of victim shows that, it was recordedpromptly at hospital. Exh.35 carried following noting :-“Burn on 23.03.2003 at around 11:00 a.m.; Quarrel with husband.Then burn by mother-in-law after pouring kerosene on her. 32 weekspregnancy.” Above texts shows that, history is promptly noted i.e.burns by mother-in-law after pouring kerosene. This Exh.35 isprepared at 11:45 a.m. on 23.03.2023 i.e. immediately after theoccurrence and admission. Therefore, taking the testimony ofvictim into account coupled with medical papers (Exh.35), there isno hesitation to hold that mother-in-law appellant is solelyresponsible for inflicting 38% burns. Therefore, charge and offencestand proved. -7- Cri.Appeal.387.20049.Submissions are made in the alternative that appellantas on today over 90 years of age and at the time of incident, shewas over 70 years of age. Operative part shows that, afterconviction, she was behind the bar from 24.03.2003 to 15.07.2003i.e. 3 months and 23 days, and therefore, considering thecircumstance, in which incident took place i.e. sudden quarrelwhich flared up to pouring kerosene and also taking intoconsideration the current age of the victim, sentence alreadyundergone would suffice and subserve the purpose of justice. In view of above, substantive sentence is reduced toperiod already undergone of around 3 months and 23 days. Thejudgment and order of trial court is required to be modified to thatextent only. Hence, I proceed to pass the following order:ORDERI.The conviction of the appellant Abeda Kasam Tadvifor offence punishable under section 307 of IPC bylearned 2nd Additional Sessions Judge, Jalgaon dated23.04.2004 in Sessions Case No. 73 of 2003 isaffirmed and hereby kept intact.HOWEVER II.The sentence awarded to the appellant to suffersimple imprisonment for one year is hereby modifiedas under : -8- Cri.Appeal.387.2004“The appellant Abeda Kasam Tadvi is sentenced tosuffer imprisonment already undergone by her.”III.Bail bond of appellant stands cancelled.IV.It is clarified that rest of the operative order passed bythe trial court is maintained.V.The appeal is disposed of in the above terms. (ABHAY S. WAGHWASE, J.) Tandale