1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.730 OF 2009 Rasiklal Makhanji Solanki, (Through Jail) R/o.Dr.Nair Road, Junction of Meghraj Shetty Road & Maratha Mandir, Near Signal No.13, Mumbai-11. .. Appellant V/s The State of Maharashtra (At the instance of Agripada Police Station in C.R.No.115/2000) .. Respondent Mr.Abhaykumar Apte for the Appellant. Ms.M.M.Deshmukh, APP for the State. CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 5TH FEBRUARY, 2010 ORAL JUDGMENT : (Per P.B.Majmudar, J.) 1. This appeal is directed against the judgment and order of conviction recorded by the learned Additional Sessions Judge, Greater Bombay dated June 13, 2002 in Sessions Case No.952 of 2000. By the impugned judgment, the learned Judge convicted the appellant accused for the offence punishable u/s.302 Indian Penal Code and sentenced him to suffer life imprisonment with fine of Rs.5000/, in default to pay fine to suffer further R.I.for four months. 2. Appellant is the original accused in Sessions Case No.952 of 2 2000. It is the case of the prosecution that on June 23, 2000 one female between the age of 41 to 47 years, namely Vidya Prabhudesai was murdered at the Nair Hospital Junction, near Maratha Mandir Theatre at around 9.30 a.m. As per the case of the prosecution, Accused Rasiklal Solanki who was a tailor by occupation was acquainted with the family members of the deceased Vidya Prabhudesai. As per the case of the prosecution, the accused was having love affair with the deceased Vidya Prabudesai. Accused had proposed deceased Vidya for marriage and the deceased Vidya had refused the said proposal., and because of that refusal Accused was got annoyed with the deceased. As per the case of the prosecution, deceased Vidya Prabhudesai was serving in the Reserve Bank of India as a typist. She used to go to the office at about 9.00 to 9.20 a.m everyday. She was residing at R.B.I.Quarter at Bombay Central. On the relevant date on June 23, 2000 she had started from her house for going to the office in the morning and at that time the accused followed her. It is the case of the prosecution that accused Rasiklal stopped her, poured kerosene on her and set her on fire by lighting match-stick, because of which she started 3 burning on the road. At the aforesaid time, one Manoj Bhatnagar came running and poured water on the body of Vidya to extinquish the fire and thereafter telephoned to the police on Phone Number 100 and informed about the incident of burning of Vidya. Police arrived on the sopt immediately, and in the meanwhile one lady by name Mrs.Gulshan Kwatra also came at the scene of incident. At that time Vidya disclosed that Accused Rasiklal had poured kerosene and set her on fire. Deceased Vidya also gave phone number of her sister to Mrs.Kwatra, who thereupon called up Vidya s sister on her ’ mobile phone and informed about the burning incident and asked her to come to Nair Hospital as Vidya was shifted to Nair Hospital by the police who had arrived on the spot. 3. As per the case of the prosecution, one Kishore Kadam who was attending his duty as Station House Officer at Agripada Police Station and who had received the message from Nagpada Mobile No.1 about the incident, rushed to the spot and thereafter immediately deceased Vidya was shifted to Nair Hospital. It is the case of the prosecution that Mr.Kadam, after taking permission of Dr.Narendra Desai, recorded the statement 4 of deceased Vidya which was treated as FIR against the Accused. On the basis of the same, offence was registered at C.R.No.115/2000 of Agripada Police Statio for the offence punishable u/s.307 IPC (as at the relevant time deceased was alive). PSI Mr.Kadam thereafter rushed to the spot and drew spot panchanama. One team of the police went to the shop of the accused. It is further the case of the prosecution that in the meanwhile accused also consumed poison and was admitted in Nair hospital. The Investigating Offricer Mr.Kadam, thereafter contacted SEO Ms.Deepali Chavan, who recorded dying declaration of deceased Vidya Mr.Kadam, the Investigating Officer thereater recorded statements of two sisters and one brother of deceased Vidya on the same day and also recorded statements of other witnesses. Panchanama of clothes of the deceased Vidya was drawn. Deceased Vidya succumbed to the injuries on June 23, 2000 at 7.10 p.m. Thereafter the accused who was also taking treatment in the Nair Hospital was shown arrested. After completion of investigation, police filed chargesheet. The charge was framed by the Court against the accused u/s.302 IPC on April 30, 2002. Accused pleaded not 5 guilty to the charge and thereafter the trial was conducted against the accused for the aforesaid offence. 4. The prosecution examined in all 14 witnesses to prove its case. The statement of the accused was also recorded u/s.313 of the Cr.P.C. The learned Judge, after considering the evidence on record came to the conclusion that the prosecution has proved its case beyond reasonable doubt and it was held that the accused committed murder of the deceased and accordingly inflicted life imprisonment on the appellant accused with fine of Rs.5000/- in default, to suffer R.I.for four months. Being aggrieved by the aforesaid conviction, the appellant filed this Criminal Appeal before this Court. 5. Mr.Apte, the learned Advocate for the Appellant Accused submits that it cannot be said that the prosecution has proved its case. According to him the evidence of the prosecution witnesses is not believable. It is submitted that looking to the fact that the deceased had suffered about 95% burns it is not possible to believe that at the relevant time she must be in a proper state of mind to give statement to the police which is treated as FIR.. The learned Advocate for the appellant accused has further 6 submitted that Dr.Desai who has certified below the aforesaid FIR has not been examined by the prosecution. It is submitted that the verbal Dying Declaration given to PW7 and PW8 are absolutely doubtful and not believable at all. It is submitted that even the so-called written Dying Declaration recorded by PW1 is doubtful and creates doubt and not believable at all. The learned Advocate for the appellant accused submitted that it cannot be said that PW3 and PW4 must have witnessed the incident and they cannot be said to be eye-witnesses at all. The learned Advocate for the appellant accused further submitted that the prosecution has failed to prove the motive in connection with the crime in question and therefore the case of the prosecution is highly improbable. According to him, it cannot be said that the appellant accused tried to commit suicide only because of failure in the matter of so-called love affair with the deceased Vidya. It is submitted by the learned Advocate for the appellant accused that the prosecution has not led any satisfactory evidence to show that the accused had any such relations with the deceased, nor any witnesses have said this aspect in their evidence. It is submitted that the clothes 7 of the accused were sent to the forensic test. According to him, looking to the fact that the deceased received about 95% burn injuries, it is not possible to believe that she must be in a proper state of mind at the relevant time to narrate the alleged incident. The learned Advocate for the appellant accused further submitted that when the credibility of Dying Declaration is doubtful, such a Dying Declaration cannot be made basis for recording conviction of the appellant especially when no certificate was given by Doctor that the deceased was in fit state of mind at the relevant time to give statement. The learned Advocate for the appellant accused further submitted that no weightage should be given to such Dying Declaration on which the prosecution had relied upon, as it cannot be said that such Dying Declaration was properly recorded. It is submitted that since the Dying Delcaration is not signed by the deceased, no reliance should have been placed on the same. It is further submitted that when the Dying Declaration is not proved by reliable evidence, accused should be given benefit of doubt. 6. The learned APP Ms.Deshmukh submitted that the prosecution 8 has proved its case beyond reasonable doubt by leading proper evidence. It is submitted by her that PW3 who is an independent witness has seen the incident and there is no reason to disbelieve the evidence of the said witness. It is further submitted by the learned APP that similarly, PW4 has also seen the incident and therefore both PW3 and PW4 are eye witnesses. It is submitted by the learned APP Ms.Deshmukh that PW3 immediately made a call to the sister of the deceased as at the relevant time deceased Vidya herself had given mobile number of her sister to PW3, and on the basis of that call, the information was given to the relatives of the deceased. It is submitted that there is no reason for PW3 to falsely implicate the accused as in fact she was not knowing the accused prior to the incident, nor she was knowing the deceased Vidya. The learned APP further submitted that even if PW3 may be treated as chance witness, then also the testimony of the same if found credible, cannot be discarded merely because such a witness happened to be present by chance. It is submitted that adequate explanation has been given by PW3 regarding her presence at the place of occurence and her testimony cannot be 9 brushed aside. The learned APP has futher submitted that the Investigating Officer has recorded the FIR at Exh.37 wherein at the relevant time, deceased had given full particulars as she was in full senses as per the certificate of the Doctor. Learned APP further submitted that the prosecution has established the motive by proving the fact that the accused was having love affiair with deceased Vidya, and since deceased Vidya had refused the proposal for matrimonial ties, the appellant accused in a revengeful manner took such a ghastly step to kill deceased Vidya by pouring kerosene in day light and setting her on fire on the road. The learned APP has further submitted that the appellant accused after setting deceased Vidya on fire ran away and on reaching his tailoring shop which is at the short distance from the place of incident, he consumed poison, and in fact he was also admitted at the hospital. According to her, though the appellant accused survived later on, such an act on the part of the appellant accused consuming poison immediately after committing the aforesaid offence of pouring kerosene and setting the deceased Vidya on fire, itself proves that he has committed the offence with motive. According to Ms.Deshmukh, 10 when in a given case there is evidence of eye-witnesses who might have witnessed the incident, it is not necessary to prove the motive in such a case. According to her in the present case motive is also proved and the facts of the case clearly establish that it is accused and accused only who committed murder of the deceased Vidya simply because she had not acceded to his demand of marriage. It is further submitted by the learned APP that in view of the evidence on record, it can safely be presumed that the prosecution has proved its case beyond reasonable doubt and no interference against the judgment & order recorded by the Sessions Court is called for in this Appeal. 7. We have heard learned Advocate for the appellant accused and the learned APP for the State at legth, and we have also gone through the evidence on record. On behalf of the prosecution, one Deepali Chavan was examined as PW1 at Exh.8. The said witness has said that since 1997 to 2001 she worked as Special Executive Officer in Mumbai. According to her deposition, she was contacted by the Agripada Police on June 23, 2000 and was informed for recording dying declaration of one lady by name 11 Vidya Prabhudesai at Kasturba Hospital. The said witness has deposed that after taking necessary writing material and stamp etc.she went to Kasturba Gandhi Hospital. She stated that though she did not know the actual time when she reached the hospital, according to her she must have reached there by afternoon. This witness has stated that when she saw deceased Vidya Prabhudesai, she was alone and she was conscious and could speak well. This witness has further stated that, to the enquiry in connection with the cause of incident, deceased Vidya answered those questions. According to this witness, deceased Vidya told her that on June 23, 2000 when she left her house in the morning to go to her office and at that time when she had reached upto Maratha Mandir Junction at Bombay Central and at the time when she was crossing the road, one known person viz.Rasik Solanki came from backside, poured kerosene on her and set her on fire. PW1 has also stated in her deposition that deceased Vidya had made a statement before her that accused Rasik Solanki was a tailor and was acquainted with her. PW1 has further deposed that deceased Vidya gave statement without any pressure. According to the deposition of 12 PW1, the statement given by deceased Vidya was recorded by PW1 in her own handwriting and thereupon she signed below the said statement and put her stamp on it. According to her Exh.9 is the carbon copy of the original Dying Declaration and the contents are ditto. We have also perused the original dying declaration at Exh.14 as well as its carbon copy at Exh.9. So far as Exh.14 which is the original Dying Declaration, there is endorsement of Doctor Shah that the patient Vidya Prabhudesai, indoor patient No.134 is conscious and is in a state to give statement. The statement recorded by PW1 is in the questions and answers form at Exh.14 below which Doctor Shah has made the endorsement. So far as Exh.14 is concerned, it is the original Dying Declaration and Exh.9 is its carbon copy. 8. The prosecution has also examined one Jokhand Jaiswal as PW2 at Exh.15, who was called as panch-witness by the police on 26th June 2000 by 12 noon. PW2 has stated that his son used to run the tailoring shop and since his son had gone to the native place 6 months prior to the incident, he had let the said tailoring shop to the appellant accused (Rasik Solanki) to conduct the business of tailoring for a temporary period. PW2 13 has further stated that when the police called him, he went to the shop with the police and at that time there was a smell of kerosene in the said shop. PW2 has deposed that he also saw one empty bottle in the shop. PW2 has further stated that he also noticed one bottle of poison in the shop containing little quantity of green coloured liquid in the said bottle. In the cross examination, this witness PW2 has stated that the fact that one empty bottle was found is not mentioned in the panchanama, but he denied the suggestion that no kerosene smell was coming out from the room/shop. The panchanama is at Exh.16 on the record. 9. The prosecution also examined Mr.Gulshan Kwatra at Exh.17 as PW3. The said witness has stated that she is the social worker and is working for the N.G.O.. As per the evidence of the said witness on 23th June, 2000 she had gone to Bombay Central Railway Station to receive her daughter who was to arrive from Delhi by Rajdhani Express. On that day the train was 40 minutes late and arrived at around 9.30 am. It is stated by the said witness that alongwith her daughter she sat in the car and they proceeded towards her house at Chembur and the driver 14 drove car towards the Maratha Mandir Junction. When the driver saw in the mirror of the car he told the said witness that there was crowd at the crossing and something must have happened. The said witness has stated that she looked back and saw flames. She instructed driver to stop the car. She alighted from the car and went towards the crowd and flames. The said witness saw that one lady was ablazed. She had stated that she reached near the lady and that somebody had poured water on her. The fire was extinquished due to water. She has stated that the clothes of the lady were completely burnt and the pieces of her skin were lying around, however she was fully conscious. The witness has stated that she tried to get maximum information from the victim and she asked her about the incident. Thereupon she was told by the lady (victim) that she was working in Reserve Bank of India, and one person by name Rasik Solanki who was a Tailor by occupation was after her with a marriage proposal and that she had refused to marry him. She further told to the said witness that Rasik Solanki had threatened her to kill, and that the act of pouring kerosene and setting her on fire was done by him. Victim told her name as 15 Vidya Prabhudesai and gave her sister s phone number. This ’ witness thereafter informed about the incident to her sister on her mobile and in the meanwhile the police had arrived at the spot of occurence. The witness however stated that she was told by the police that they are taking the victim to Nair hospital and accordingly she informed the sister of the victim to come to casualty of the Nair Hospital. The said witness has also further stated that when she informed the sister of the victim about the incident, she immediately reacted that this was going to happen one day as he used to give threats to her sister. The witness has said that she had not gone to Nair Hospital, but she kept on following the matter till she knew about Vidya s death, and ’ on June 24, 2000 her statement was recorded by the police. The said witness has stated in the cross-examination that about 40 persons were gathered at the spot. She has further stated in the cross-examination that nobody from the crowd came forward except one person who poured water on her. She has stated that she informed the traffic police to contact Agripada police station and inform about the incident. According to her, she gave all the information to the police which she got from 16 Vidya. In the cross-examination she said that she had borrowed the piece of paper from somebody and noted all the details of conversation. . She stated that she had not handed over that piece of paper to the police but handed over her visiting card to the police. She further stated that Vidya was not unconscious when she was shifted to the hospital. She was semi conscious when she was sent to the hospital. She denied the suggestion that Vidya had not given the name of Rasiklal Solanki as an offender. 10. The prosecution also examined Manoj Bhatnagar as PW4 at Exh. 18, who had deposed that, on the relevant day at about 9.30 am while he was at cigarette shop near Nair hospital and was smoking, at that time one boy in the shop told him that there was some incident. So he looked towards that direction towards the Maratha Mandir. He said that he saw one man holding a plastic container and was trying to hit with his other hand to one lady who was ahead of that man. This witness has further stated that within few seconds he saw same man on the middle of the road standing on the divider and tried to lit the match box. This witness further stated that when he ran towards the 17 spot he saw the lady on the other side of the road. This witness has further stated that before he reached to the lady, that person (accused) had set the lady on fire. This witness has further stated that thereafter he turned back towards the Vadapao shop, lifted the can of water, went near the lady and poured the water on her. This witness has said that on the next day he read in the newspaper about the burning of that lady, and there was the photograph of one person and he was the offender. He identified him as the same person who had set her on fire. 11. The prosecution has also examined the sister of the deceased viz.Vaishali Vasant Bapat at Exh.5. She said that Rasiklal Solanki who is tailor by occupation used to come to her sister-in-law s’ house for the work. She has further stated stated that her another sister Shailaja Prabhudesai (who expired in the year 1989), was having a sewing machine and after her death, the said sewing machine was disposed of and was purchased by said Mr.Rasik Solanki, who as also known as Rasik Makwana. This witness has identified the accused Rasik Solanki in the Court. She further stated that herself as well as her sister 18 Vidya started giving clothes for stitching to the said person and he became friendly with the family and he used to help them in doing other work also. She stated that in the year 1999-2000 when her father was serious, he (Rasik) used to visit her father also. The said witness has stated about receiving telephone call on June 23, 2000 at around 10.30 am and stated that her daughter attended the said call, and that after receiving the news on the phone she was shocked and started treambling. She informed the said fact to her another sister Varsha Prabhudesai and both the sisters went to Nair hospital to see Vidya. According to this witness when she went to Nair hospital she was informed that Vidya was shifted to Kasturba hospital and therefore she went to Kasturba hospital. She stated that when she saw Vidya she was burnt, her face was swollen but was not burnt. This witness has stated that they saw the accused at Nair hospital on 7th floor. He was also admitted in the Nair hospital and he was serious. This witness has further stated in the cross-examination that Vidya was residing in the R.B.I.quarter since six years prior to the incident and she used to meet Vidya often and used to stay with her for 2/3 days. 19 12. One Harish Bhargav Shelar is examined as PW6 at Exh.20. The said witness has stated that as the accused Rasik Solanki was a tailor by occupation and used to stitch blouses of his mother, he knew him since his childhood. This witness has further stated that on June 23, 2000 at around 10.30 to 10.45 a.m he heard that the accused had consumed poison, and when he rushed to the tailoring shop he saw people gathered in the shop. This witness states that there was one tailor Babubhai and he was trying to lift the accused. This witness states that he saw the accused lying in the shop and was shouting as save me, save me. This witness states that he lifted the accused and took him to Nair hospital. 13. One Rajiv Prabhudesai was examined as PW7 at Exh.21. Deceased Vidya was the sister of the said witness. This witness stated that he was told by deceased Vidya on the relevant day when he went to Kasturba hospital at around 12.30 to 1.00 p.m, deceased Vidya talked with him and told that Rasik Solanki had poured kerosene on her and set her on fire and thereafter ran away. In the cross-examination this witness said that the accused became family friend after he purchased sewing 20 machine from