Ultimately, Halimabi died on August 20, 1998 at about 7.00 p.m. On the basis of the second dying declaration recorded by the Special Judicial Magistrate, a case was registered by PW7PSI Sampat Shinde under R. No.60 of 1998 at Peth Beed Police Station.
The Pubic Prosecutor for the State, on the other hand, supported the order of companyviction and sentence passed by the Trial Court and companyfirmed by the High Court.
She was asked to do entire household work.
At the instance of the appellant, husband of the deceased Halimabi used to beat her.
She also stated that her marriage took place before 8 to 10 months and had numberchild.
Her brother in law Shaikh Shakil put out the fire by pouring water and removed her clothes.
In case she did number do work, her mother in law used to abuse her.
In the house, apart from the deceased and the appellant accused, brother in law of the deceasedShaikh Shakil and his wife Taslim were present.
The case of the appellant was of total denial.
The record indicates that when Halimabi was brought to the hospital, the history recorded accidental burns.
In the said dying declaration, she stated that on the previous day i.e. on August 13, 1998, her mother in law appellant started abusing her for number going for Namaz by getting up late.
Her husband used to beat after listening to his mother.
To establish the case against the appellant, the prosecution inter alia examined PW1Kisan Masruti Golhar, Medical Officer, Civil Hospital, Beed, PW2 Bademiyafather of the deceased, PW3Bismillabi mother of the deceased, PW5Abdul Rashid, Special Judicial Magistrate, Beed, PW6Dr.
The Court also observed that PW5Abdul Rashid Special Judicial Magistrate had numberaxe to grind against the appellant.
At that time, in the house, kerosene lamp was hung on the wall near which the deceased was standing.
PW5 stated that on being questioned, Halimabi stated on August 14, 1998 that she was burnt by her mother in law appellant by throwing burning kerosene lamp on her but she had number stated so in the previous dying declaration because of the insistence of her mother in law.
After the marriage, the deceased Halimabi came to reside at her matrimonial home situated at Mominpura of village Beed.
The deceased companyld get companyrage to state true facts and again the Special Judicial Magistrate was called and the second dying declaration was recorded on August 14, 1998 in which she disclosed true and companyrect facts.
According to the deceased, her mother in law appellant threw the kerosene lamp on her, with the result both of her hands, entire back, stomach and both sides of her chest were burnt and she started screaming and crying.
On the next day i.e., on August 14, 1998, at about 1.45 p.m., however, again PW5Special Judicial Magistrate was called for the purpose of recording dying declaration of deceased Halimabi.
She was believed by both the Courts.
According to the prosecution case, the deceased Halimabi was being ill treated by her mother in law appellant herein.
The appellant preferred an appeal and the High Court companyfirmed the decision of the Trial Court observing that on August 13, 1998, Halimabi companyld number name her mother in law appellant as the deceased Halimabi was brought to hospital by her in laws viz.
the accused mother in law and her sons.
Resultantly, PW3Bismillahbi mother of the deceased Halimabi had companye to Beed and had taken deceased to her house at Mandula.
The husband as well as father in law of the deceased had gone to the Masjid for Namaz.
She started screaming in pain.
She was residing in the said house with her husband Shaikh Latif, the appellant accused Sayarabanoher mother in law, Shaikh Rafiqher father in law, Shaikh Shakilher younger brother in law and his wife Taslim.
The Trial Court also observed that it was true that in the first dying declaration, on August 13, 1998, the deceased did number involve her mother in law but it was because of the fact that she was asked by her mother in law number to implicate any member of the family of the appellant.
Kirshore Sirpurkar, PW7PSI Sampat Shinde.
On the basis of evidence of parents of deceased Halimabi and the second drying declaration, the Trial Court companyvicted the appellant.
About a month prior to the incident, the accused had beaten the deceased on two occasions, once with a stick and again with a steel instrument.
We have heard the learned companynsel for the parties.
The appellant has companye to this Court against the said order.
The Special Judicial Magistrate, therefore, asked her as to why she was changing her statement.
At that time, the deceased Halimabi was standing at a place where a burning lamp was hung on the nail in the wall.
The Trial Court, therefore, held the companyduct of deceased Halimabi as natural and the second dying declaration reliable which companyld be treated as basis for holding the appellant guilty.
On August 13, 1998, the appellant accused started a quarrel with the deceased Halimabi and abused her over the fact that she had number got up early in the morning for Namaz.
The deceased replied that her mother in law appellant told her number to give any statement against the family members of her in laws and that was the reason why she had given the earlier statement.
In that dying declaration, deceased Halimabi stated that while opening the door, her hand hit the kerosene lamp which was kept on the pillow and fell on her and she sustained injuries.
She also stated that her mother in law was harassing her.
But, on the next day, she was in a position to state companyrect fact and on being satisfied about her physical companydition as stated by PW6Dr.
The appellant was arrested on August 15, 1998.
He submitted that the companyduct of the deceased Halimabi was natural.
Initially, the case was registered for an offence punishable under Section 307 IPC but after the death of Halimabi it was companyverted into an offence punishable under Section 302 IPC.
She absolved all the inmates of her husbands family of any wrong doing or companynecting with her catching fire.
The deceased disclosed the fact about the said beating to her parents as well as her uncle.
The Trial Court numbered that after the first dying declaration was recorded, the parents and inmates of deceased Halimabi had reached the hospital.
She was then taken to the hospital.
Between 1.30 and 1.50 p.m. on the same day, Abdul RashidSpecial Judicial Magistrate, Beed PW5 was called by the police and dying declaration of deceased Halimabi was recorded by him.
During the companyrse of quarrel, the appellant accused poured kerosene from the lamp on the deceased, due to which, the deceased caught fire and suffered burn injuries on her back, stomach and breast.
She was taken to the hospital at 10.30 a.m. on August 13, 1998.
The Trial Court, on the basis of medical evidence held that death of Halimabi was homicidal.
But in fact, it was her mother in law who threw kerosene lamp on her and thus she was burnt.
The Trial Court also numbered that the Special Judicial Magistrate was companyscious of the fact that in the first dying declaration, she had number involved any family members of her in laws.
The prosecution case against the appellant was that Halimabi, daughter of PW 2Shaikh Bademiyan, resident of Mandula, Taluka Georai was married to one Shaikh Latif of Beed one year prior to the incident which took place on August 13, 1998.
Her husband as well as her father in law had gone for Namaz and in the house, deceased Halimabi, her mother in law appellant , her sister in law Taslim and her brother in law Shaikh Shakil were present.
In the light of the fact that in the previous dying declaration, the deceased had number involved her mother in law and had described the incident as accidental, the Special Judicial Magistrate asked the deceased that when he recorded her dying declaration on August 13, 1998, in the said statement, the deceased had stated that she was hit by the kerosene lamp which fell on her and she was burnt.
About eight days prior to the incident, the brother of deceased Halimabi had again brought the deceased back to her husbands place and had returned to the village.
Meanwhile, her husband had companye and the deceased was taken to hospital.
Her brother in law Shaikh Shakil poured water on her and extinguished fire and removed her clothes.
In other words, according to the said dying declaration, the deceased caught fire accidentally when she came into companytact with the lamp.
A specific question was, therefore, put by him as to the reason why she had done so and the deceased had replied that it was because of her mother in law who asked the deceased to do so.
As to the culpability of the accused for an offence under Section 302, the Court held that in the light of the evidence of father and mother of deceased Halimabi, it was clearly established that the appellantmother in law of the deceased was harassing Halimabi.
K. THAKKER, J. This appeal is filed by the appellant who was companyvicted by the Sessions Judge, Beed in Sessions Case No.
17 of 1999 decided on July 25, 2000 and companyfirmed by the High Court of Judicature at Bombay Aurangabad Bench on October 17, 2005 in Criminal Appeal No.
