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Popat Tulshiram Mahajan, Central -vs- The State Of Maharashtra Through on 4 April, 2005

Bombay High Court Popat Tulshiram Mahajan, Central -vs- The State Of Maharashtra Through on 4 April, 2005
Author: N Mhatre
Bench: V Palshikar, N Mhatre


Nishita Mhatre, JJ.

1. The Appeal is directed against the conviction and sentence of the appellant under section 302 r/w 498 of the Indian Penal Code.

2. Briefly stated, the case of the prosecution is as follows:

On 5.10.1999 at about 7.45 pm, the appellant poured kerosene on his wife Mangala and thereafter set her ablaze with a matchstick. According to the prosecution, this incident was a culmination of the physical and mental cruelty meted out by the appellant to his deceased wife Mangala. The mother of the victim who resided in the same building on a floor below, heard her calling out for her mother and saw the victim ablaze on the staircase. The neighbours immediately gathered around the victim and were trying to douse the fire. Chhabubai, the mother of the victim and her neighbour admitted the victim in hospital immediately thereafter. According to the prosecution, the victim informed her mother while in the ambulance that she had been set afire by the appellant. Two dying declarations were recorded; one before the Sub-Divisional Magistrate and the other by a Police Constable. The prosecution has sought to establish that these dying declarations were made by the victim when she was fully conscious and was able to communicate her thoughts. A thumb impression was taken on the dying declaration since she had suffered 100% burn injuries and was unable to write. All these circumstances, according to the prosecution, leave no manner of doubt that the appellant had committed the offence punishable under sections 302 and 498A of the Indian Penal Code.

3. The learned Advocate for the appellant submits that no reliance could be placed on the dying declarations made by the victim. She submits that the victim had suffered 100% burn injuries and was in all probability unable to make any disclosure or state exactly what happened during the incident. She submits that the appellant could not be found guilty of the basis of these declarations which had been recorded at different times. According to the learned Advocate, Exhibit 29, the dying declaration recorded by the police is an improvement on the dying declaration recorded by the Sub-Divisional Magistrate which was recorded at an earlier point of time. The learned Advocate also criticized the evidence relied on by the prosecution, especially that of Chhabubai i.e., PW2 and urged that there is no satisfactory evidence to convict the accused.

4. The evidence of PW2 establishes, in our opinion, in no uncertain terms that the victim and the appellant had frequent quarrels immediately after the appellant lost his job. The appellant had become habituated to drinking liquor, daily. He managed to earn a paltry sum of money by selling fruit on an hand-cart. This often led to quarrels between the husband and wife since the appellant demanded that the victim should obtain money from her parents. PW2 has also deposed that due to the dearth of money with the appellant, she was supplying food and other necessities to them. She has then stated that on 2.10.1999, the victim informed her that the appellant had demanded Rs.10,000/- from her parents. As the appellant was not paid this amount, the victim was beaten by the appellant after he returned home, intoxicated. She has then narrated the incident of 5.10.1999 and has stated that she heard her daughter crying out to be rescued. When she stepped out of the house, with the baby of the victim in her arms, PW2 saw her daughter burning on the staircase and people pouring water over her. She has then stated that her daughter had informed her after being asked about the cause of her burns that the appellant had set her ablaze after pouring kerosene over her. The evidence PW2 has not been shaken in the cross-examination.

5. The spot panchnama indicates that a stove, a matchstick and burnt pieces of saree material were recovered from the residence of the Appellant. These articles have been identified.

6. PW3, who is the brother of the appellant, admitted the appellant to hospital since the latter informed him that he had received some burn injuries on his arms. PW3 has stated that it was only when they reached the hospital and he saw the victim’s parents in the hospital crying aloud, that he came to know that the victim had been burnt. PW6 is the Doctor who was present when the dying declarations were recorded. He has certified that the victim was conscious and in a condition to make a statement. Accordingly, the dying declaration has been recorded and is endorsed by the Doctor. He has denied the suggestion made on behalf of the appellant that he had not examined the victim prior to her making any statement. The Sub-Divisional Magistrate, PW7 recorded the declaration at Exhibit 32. He has also testified that the victim was in a position to understand and answer his queries and it was only after ascertaining this fact that he recorded the dying declaration. The other dying declaration which is at Exhibit 29 has been recorded by the PHC, that is, PW5. The Medical Officer that is PW6 has again endorsed this declaration to the effect that the patient was conscious and in a condition to give statement. The time of recording of the statement has also been mentioned as 9.30pm.

7. On a consideration of the two dying declarations, we are unable to accept the submissions made by the learned Advocate appearing for the appellant that they are at variance with each other and therefore, should be discarded. There are no discrepancies or contradictions or omissions in the two declarations. The material particulars in both the declarations are the same. Both these dying declarations are in conformity with what the victim in the first instance, immediately after the incident, informed her mother PW2. The victim consistently has stated on each occasion that the appellant had poured kerosene over her from the stove and that she had been set ablaze by him with a lighted matchstick. In such circumstances, we see no reason why the dying declarations cannot be accepted.

8. Furthermore, there is sufficient corroborative evidence on record to indicate the ill-treatment meted out to the victim by the appellant ever since his services were terminated. In such circumstances, we are of the view that the impugned judgment and order appealed against must be upheld, which we do hereby. Appeal dismissed accordingly.

9. The accused was represented before us by an Advocate appointed. The Advocate has taken adequate efforts to put the entire case of the accused before us. We, therefore, quantify the fees payable to the Advocate appointed for the appellant at Rs. 1,000/-.

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