Bombay High Court Santosh S/O Mithu Morale-vs-State Of Maharashtra on 19 December, 2007
Equivalent citations:2008 (110) Bom L R 343
Author: N H Patil
Bench: N H Patil, P Borkar
Naresh H. Patil, J.
1. By this appeal, the appellant challenges the judgment and order of conviction and sentence for an offence punishable under Section 302 of Indian Penal Code, 1860 (for short “I.P.C.”) to undergo imprisonment for life. The judgment was delivered by the learned Sessions Judge, Beed in Sessions Case No. 51 of 2005, on 31/01/2006.
2. In brief, the prosecution case is that the appellant was husband of deceased Rajubai, who was married with the appellant about 2 years prior to the date of incident. According to prosecution, an amount of Rs. Sixty Thousand was offered on account of dowry along with three Tolas of gold during the marriage. The deceased used to come to her parental home occasionally for festivals. At the time of Mahashivaratri, the deceased was brought to her parental home by her father. At that time, she disclosed that the appellant was not on talking terms with her. The parents of the deceased persuaded her to pull on while assuring her that everything would be all right in due course of time. The incident in question took place about three weeks thereafter.
3. It is alleged that the appellant poured kerosene on the person of deceased and set her on fire in the midnight of 11/04/2005, at about 11.45 p.m. to 12 p.m. while they were residing at village Wanjarwadi, Taluq and District Beed. The deceased survived till 14/04/2005 on which day she succumbed to the injuries. One Shivaji Tandale (P.W.7) made a telephone call to Ayodyabai (P.W.5), who is step mother of father of deceased Rajubai namely Gowardhan Bangar (P.W.4), and informed her of the incident. Ayodhyabai reached village Patoda, at about 6.00 to 6.15 a.m. and informed the happening of the incident to the father of the deceased Gowardhan (P.W.4). She asked Gowardhan (P.W.4) to proceed to Civil Hospital, Beed. Accordingly, Gowardhan (P.W.4) along with close relatives reached Beed town in a Jeep at about 8.00 to 8.15 a.m. On reaching hospital ward, he found that his daughter had sustained burn injuries. On inquiry made by the parents of deceased regarding the reasons behind sustaining burn injuries, Rajubai the deceased informed that the appellant had told her that she should take her utensils with her and go to Waghira, otherwise he would kill her. To a query, deceased Rajubai told her parents that one Police and Tahasildar had come and recorded her statement. It is further alleged that deceased Rajubai disclosed to her parents that while she was asleep, her husband had poured kerosene on her body and set her on fire.
4. In this case, three statements of deceased Rajubai were recorded, which were treated as dying declarations, and relied upon by the prosecution. The first written dying declaration (Exhibit 29/C) was recorded on 12/04/2005, between 6.00 a.m. to 6.30 a.m., by A.A.Dongare(P.W.9), the Police Head Constable, who was attending duty at Police Chowky, Civil Hospital, Beed. The second dying declaration (Exh.39/C) was recorded by the Tahasildar, between 7.00 a.m. to 7.30 a.m. on 12/04/2005 and the third dying declaration (Exh.49/C) is recorded as supplementary statement by the Investigating Officer on 12/04/2005.
5. On forwarding of papers, including statements of deceased Rajubai recorded by A.A. Dongare, Police Head Constable, Executive Magistrate and Investigating Officer, the P.W.12 Kashiram Adhe, Police Sub Inspector, registered an offence against the appellant vide crime No. I 44 of 2005 under Section 307, 498A of I.P.C. and started investigation. The panchanama of scene of offence (Exh.15) was carried out. The Investigating Officer found one can containing kerosene which was kept in the window. The pillow cover was found in burnt condition. The door curtain was also found burnt. Page 0349 The bed-sheet and cover on the mattress were found smelling of kerosene and the burnt pieces of clothes were found lying on the floor. All these articles were seized under panchanama (Exh.10). The appellant was arrested by drawing an arrest panchanama(Exh.48). It is alleged that the right hand sleeve of full shirt of appellant was seen burnt. The said shirt (Article 7) was seized under the panchanama(Exh.48).
6. The Investigating Officer then went to interrogate Rajubai and recorded her statement. The clothes worn by Rajubai, which were burnt, were seized under a panchanama (Exh.10). It is alleged that the appellant disclosed that he would produce the match-box and in pursuance of such statement (Exh.50) the match-box (Article 8) was seized under a panchanama(Exh.51).
7. The post mortem report (Exh.26) was received on 21/04/2005. The seized articles were sent by the Investigating Officer to Chemical Analyser for examination, on 5/05/2005. The Chemical Analysr’s report is at Exh.53. After completing investigation, the charge-sheet was submitted in the Court of Chief Judicial Magistrate, Beed for an offence punishable under Section 302 of I.P.C.
8. The prosecution examined 12 witnesses in support of its case. P.W.4 Gowardhan Eknath Bangar is the father of deceased Rajubai. P.W.5 Ayodhyabai Eknath Bangar is grandmother of Gowardhan(P.W.4). P.W. No. 6 Neelabai Shivaji Tandale is related to deceased.
9. The defence of the appellant is of total denial. In the statement recorded under the provisions of Section 313 of the Code of Criminal Procedure, 1973 he had submitted a written say(Exh.55) wherein he states that the prosecution witness P.W.9 Dongare is related to deceased. Appellant suggests that the deceased was tutored by her parents. Dying declarations are manipulated ones and P.W. Nos. 4,5 and 6 being related to deceased are giving false evidence against him.
10. The learned Counsel for the appellant submitted that there was no ill-treatment caused to the deceased by the appellant or his parents. There was no motive to commit murder of deceased Rajubai. The dying declarations, which are said to be recorded, are concocted by the investigating machinery and close relatives of the deceased. They are at variance. According to the counsel, death of Rajubai must have been caused due to accident. By giving reference to the medical case papers, it was pointed out that pethedine injection was administered to the deceased due to which a person looses his consciousness and is unable to make any statement muchless any dying declaration as reflected in this case. The medical case papers do not suggest that these dying declarations must have been recorded when the patient was in conscious and fit state of mind to make such statement.
11. We have gone through the Record and Proceedings minutely and the evidence led by the prosecution.
12. Gowardhan (P.W.4),the father of deceased, had narrated that relations between the appellant and deceased Rajubai were not cordial. From the material placed on record and the evidence led, it transpired that the appellant was even not sharing the room along with his wife deceased Rajubai and used to sleep outside along with his parents. On inquiry made Page 0350 by P.W.4, it was clearly informed by Rajubai that her husband had poured kerosene on her person and set her on fire. She had also stated that Police and Tahasildar had also recorded her statement. In the cross-examination, Gowardhan (P.W.4) states that Rajubai had studied upto 7th Standard at Waghira and she had further studied from 7th to 10th Standard at Limba Ganesh. The marriage was an arranged one. P.W.4 fairly stated that there was no ill-treatment or harassment on the part of in-laws of Rajubai; nor there was any complaint by Rajubai regarding any ill-treatment or harassment on the part of her in-laws.
P.W.5 Ayodhyabai is the grandmother of deceased Rajubai. She was also present in the hospital and on her asking Rajubai informed her that quarrel took place between her and her husband at about 11.00 p.m. in the previous night and her husband told her to go to the house of her parents along with utensils etc., otherwise he would kill her by burning and saying so, her husband poured kerosene on her body and set her on fire. Rajubai reiterated before this witness that her statement was recorded by Tahasildar and the Police prior to her(P.W.5 Ayodhyabai) arrival. An omission is recorded in the statement of this witness to the effect that she claimed to have stated before the police that Rajubai disclosed to her that her husband told her that he would kill her by burning. This fact was found missing from the police statement of this witness. The fact of Rajubai informing this witness (P.W.5) that her statement was recorded by Tahasildar was also not disclosed by the witness before the police and an omission was recorded