Jaffar Ali v. State

Bail SlipThat the Appellant/Accused namely Jaffer Ali was directed tobe released on bail by order of this Court dated 22.11.01 inCrl.MP.No.7496/01 in Crl.A.NO.1006/01. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.11.2005C O R A M :THE HONOURABLE MR.JUSTICE N.DHINAKARANDTHE HONOURABLE MR.JUSTICE A.KULASEKARANCRL.A.NO.1006 of 2001Jaffar Ali... Appellant-vs-State rep.by the Inspector ofPolice, Mettupalayam PoliceStation. (Crime No.1148/95) ... RespondentPRAYER : Appeal against the conviction and sentence imposed by thelearned II Additional Sessions Judge, Coimbatore, dated 04.3.1999made in S.C.No.161 of 1997.For appellant :: Mr.N.Ishtiaq AhmedFor respondent :: Mr.M.K.Subramanian, Government Advocate (crl.side)J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY N.DHINAKAR, J.)The accused appeals.2. The appellant, who is the sole accused in Sessions CaseNo.161 of 1997 on the file of the learned II Additional SessionsJudge, Coimbatore, stands convicted on a charge of murder. Theallegation against him in the said charge is that at 11.30 p.m. on18.11.1995, on account of a quarrel with his wife Jeenath Nisha,he threw a lighted chimney lamp on her and that on account of it,she sustained burn injuries and died on 11.12.1995 at 4.30 p.m. atthe Government Hospital, Mettupalayam, where she was undergoingtreatment. The learned trial Judge, finding the appellant guilty,sentenced him to undergo imprisonment for life. Hence, the appeal. https://hcservices.ecourts.gov.in/hcservices/

3. The facts can be briefly stated as follows:-The deceased is the wife of the appellant and P.W.2 is theelder brother of the deceased. P.W.3 is the daughter of thedeceased and the appellant and P.W.4 is the son of the deceasedand the appellant. The appellant and the deceased were marriedabout 10 years prior to the date of incident. The appellant usedto take drinks and there used to be quarrels between him and hiswife Jeenath Nisha, who is the deceased in this case. The deceasedused to go to her parents house and she used to be sent back toher matrimonial home after pacification. P.W.2 used to give hermoney. While the deceased and the appellant were residing atFlower Market at Coimbatore for about three months, the neighbourscomplained to the family members of the deceased that theappellant is harassing and beating his wife. They also advised thefamily members of Jeenath Nisha to take her back from theappellant's house. While the matter stood thus, at about 11.30p.m. on 18.11.1995, P.W.1, a neighbour was informed by Geetha,another neighbour of the appellant, that Jeenath Nisha hassustained burn injuries and she must be removed to the hospital.Thereafter, the appellant, P.W.1 and Geetha took Jeenath Nisha toa private nursing home, but as there was no doctor, she was takento the Government Hospital, Tiruppur, where she was examined byP.W.8, the Medical Officer, at 1.15 a.m. She was admitted as anin-patient. After the admission of Jeenath Nisha, the MedicalOfficer sent an intimation, Ex.P.5 to the police authorities atMettupalayam Police Station. He also sent a requisition, Ex.P.3,to the Magistrate to go over to the hospital to record thestatement of the injured Jeenath Nisha. 4. On receipt of Ex.P.3, requisition from the medicalauthorities, P.W.7, the learned Judicial Magistrate, Mettupalayam,went to the hospital on 19.11.1995 and between 11.05 a.m. and11.30 a.m. he recorded the statement given by the injured JeenathNisha. The said statement stands marked as Ex.P.4.5. On receipt of Ex.P.5, intimation from the GovernmentHospital, Mettupalayam, P.W.12, the Sub-Inspector of Police,Mettupalayam Police station, proceeded to the Government Hospitaland at 2.00 a.m. on 19.11.1995, recorded the statement given bythe deceased Jeenath Nisha. The said statement stands marked asEx.P.13. P.W.12 returned to the police station and on the basis ofthe statement, Ex.P.13, he registered a case in Crime No.1148 of1995 under Section 307, IPC. Ex.P.14 is a copy of the printedFirst Information Report. Investigation in the crime was taken upby one Chandramohan Babu, the Inspector of Police, MettupalayamPolice Station and as he died pending trial, the investigationconducted by him was spoken to by P.W.13, the Inspector of Police,who knew the hand-writing and the signature of the saidChandramohan Babu. https://hcservices.ecourts.gov.in/hcservices/

6. Chandramohan Babu, the Inspector of Police, MettupalayamPolice station, on taking up investigation in the crime, proceededto the Government Hospital, Mettupalayam at 4.00 a.m. and recordedthe statement of Jeenath Nisha. He reached the scene ofoccurrence at 7.00 a.m. and in the presence of P.W.5 and another,prepared an observation mahazar, Ex.P.1 and drew a rough sketch,Ex.P.15. He seized M.Os.1 to 7 under a mahazar, Ex.P.2 attested bywitnesses. He examined P.Ws.1, 2 and 5 and recorded theirstatements. They were forwarded to the Court under Form 95. Theappellant was arrested at about 8.00 a.m. on 21.11.1995 and he wassent to Court for remand. On receipt of the death intimation,Ex.P.16, that Jeenath Nisha died at about 4.30 p.m. the crime wasaltered to one under Section 302, IPC and Ex.P.17 is the expressreport in the altered crime. Thereafter, between 5.00 p.m. and8.00 p.m. inquest over the dead body was conducted at the hospitalby Chandramohan Babu and Ex.P.18 is the Inquest Report. After theinquest, the requisition, Ex.P.6 was issued by him to the doctorto conduct autopsy and the body was handed over to P.W.10, thepolice constable.7. On receipt of the requisition, Ex.P.6, P.W.9, the CivilAssistant Surgeon attached to the Government Hospital,Mettupalayam, conducted autopsy and found the following injuries:-Appearances found at the post-mortem:-Moderately nourished body of a female skin burntwith superadded infection greenish slough all over theburnt skin. Foul smelling. RM present in all fourlimbs. Jaw clenched. Teeth within the mouth.Internal Appearance:-Hyoid Bone - Intact.Thorax:- Lungs:- Congested and brownish.Heart:- Pericardium congested. Heart had 100 ml clottedblood.Abdomen: Stomach contained 50 - 100 ml partiallydigested food particles. Congested.Spleen: Congested.Liver: Congested.Intestines: Congested.Genitalia: Burnt and supra added infection - greenishand foul smelling.Skull: Cavity, membranes, brain - normal. The doctor issued Ex.P.7, the Post-mortem Certificate with hisopinion that the deceased would appear to have died due to burninjuries. 8. Chandramohan Babu, continuing with his investigation,forwarded the material objects to the Court on 14.12.1995, with a https://hcservices.ecourts.gov.in/hcservices/ requisition, Ex.P.8 to send them for chemical analysis. On19.11.1995, he examined the doctor, P.W.8, who initially treatedthe deceased Jeenath Nisha and recorded his statement. On the sameday, he examined P.W.9, the doctor who conducted autopsy andrecorded her statement. On 11.12.1995, P.Ws.3 and 4 were examinedand their statements were recorded. After the completion ofinvestigation, the final report was filed against the appellant on30.4.1996.9. When the appellant was questioned under Section 313,Cr.P.C. on the incriminating circumstances appearing against him,he denied all the incriminating circumstances and stated that itis a false case. 10. The learned counsel appearing for the appellant submitsthat Ex.P.5 will indicate that the deceased Jeenath Nisha sufferedburn injuries on account of accidental fire and, therefore, theappellant is entitled for an acquittal.11. We have heard the learned Government Advocate (criminalside) on the above contention.12. The cause of death of Jeenath Nisha stands establishedthrough the evidence of the doctor, P.W.9, who conducted autopsyon the dead body. It is also not in dispute that Jeenath Nishadied on account of burn injuries. Therefore, there can be no doubtabout the cause of death of Jeenath Nisha.13. The question that is to be decided by us is whether theburn injuries suffered by Jeenath Nisha were due to accident or onaccount of the deceased being set ablaze by the appellant. P.Ws.3and 4, the daughter and son of the deceased respectively, who werein the house at the time of occurrence, have been examined aswitnesses to the occurrence. But the trial Court did not recordthe evidence of P.W.4 on the ground that he is too young to beexamined as a witness, as he was not able to answer the questionsput to him by the Court, and since he was not even able toidentify which is good and which is bad. The only witness whoseevidence was recorded is P.W.3. P.W.3, in her evidence, has statedthat on the date of incident, the appellant threw a lightedchimney lamp at her mother, on account of which, she suffered burninjuries and that she was removed to the hospital. On goingthrough the evidence of P.W.3, we find that her evidence issatisfactory and nothing was elicited from her to show as to whyshe should give false evidence against her own father. Therefore,it is clear that the deceased suffered burn injuries on account ofthe appellant throwing a lighted chimney lamp. We, therefore, holdthat the deceased suffered burn injuries on account of the act ofthe appellant in throwing a lighted chimney lamp on her. https://hcservices.ecourts.gov.in/hcservices/

14. The final question that is to be decided by us is thenature of the offence committed by the appellant. P.W.3 in cross-examination has stated that the appellant did not throw theburning chimney lamp at her mother with a view to commit themurder of her mother. Ex.P.5, intimation also shows that thedoctor was informed that the deceased suffered burn injury in fireaccident. The evidence of P.W.3 even in chief-examination, thatthe appellant threw the lighted chimney lamp and the answer givenby her in the cross-examination that the appellant had nointention of causing the death of her mother and the statementfound in Ex.P.5 intimation sent to the police authorities,therefore, show that the deceased suffered burn injuries byaccident when the appellant threw the burning chimney lamp. Infact, in the statement given by the deceased to the Magistrate,which stands marked as Ex.P.4, she has also stated that a quarrelensued between her and the appellant and during the quarrel, theappellant suddenly took the lighted chimney lamp and threw it ather and that she suffered burn injuries. The evidence, which wehave extracted above, therefore, shows that the appellant threwthe lighted chimney lamp without any intention that by his act, hewill be setting fire to the clothes of the deceased leading to herdeath. In fact, on similar facts, the Supreme Court in SREEVIJAYAKUMAR -VS- STATE (2005 SCC (Cri) 1896), held that the act ofthrowing a burning kerosene lamp will only attract the penalprovision of Section 304, Part II, IPC. In the case before theSupreme Court, the first accused in the said case took out abottle and hit it on the head of the deceased, as a result ofwhich, the bottle broke and the liquid spread over his body, andat that moment, the second accused picked up a burning kerosenelamp from the shop and threw it on the deceased, as a result ofwhich, the deceased in that case caught fire. The Supreme Court,therefore, held that when a lighted chimney lamp is thrown withoutany premeditation at a person, as a result of which, burn injuriesare caused, the person who threw the chimney lamp can only beconvicted under Section 304 Part-II, IPC. The facts in the case onhand also show that the appellant returned home, picked up aquarrel with his wife and during the quarrel, he suddenly took alighted chimney lamp and threw at her without any premeditation,which unfortunately caused burn injuries on the deceased JeenathNisha and resulted in her ultimate death.15. We, therefore, set aside the conviction and sentence ofthe appellant under Section 302, IPC, and instead, he is convictedunder Section 304, Part-II, IPC, for which he is sentenced toundergo five years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/

16. With the above modification in the conviction andsentence, the criminal appeal is disposed of. It is reported thatthe appellant is on bail. The appellant shall surrender the bailbonds. The learned Sessions Judge shall take steps to commit himto prison to undergo the remaining period of sentence. jsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Judicial Magistrate No.1, Coimbatore.2. -do-Through the Chief Judicial Magistrate, Coimbatore.3. The learned II Additional Sessions Judge, Coimbatore. 4. - do - through the Principal sessions Judge, Coimbatore.5. The District Collector, Coimbatore District.6. The Director General of Police, Chennai.7. The Public Prosecutor, Madras.8. The Superintendent, Central Prison, Coimbatore.9. Inspector of Police, Mettupalayam Police Station.1 cc to Mr.N.Ishtiaq Ahmed, Advocate SR.46027.CRL.A.NO.1006 of 2001 RA(CO)RVL 02.12.2005