1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 342 OF 2007 Bhimrao s/o Shankar Kamble, Age 30 years, Occu.Labourer, R/o Ambedkar Nagar, Ardhapur, Taluka Ardhapur, Dist.Nanded .. Appellant Versus The State of Maharashtra .. Respondent Smt.S.S.Jadhav, Advocate for appellant Shri K.G.Patil, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 18th November 2009 ORAL JUDGMENT [ PER P.V.HARDAS , J ] 1. The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/- with a default condition of undergoing further rigorous imprisonment for three months in the event of non payment of fine, by the Ad-hoc Additional Sessions Judge-2, Nanded, by judgment dated 30.7.2007, in Sessions Case No.45 of 2007, by this appeal questions the correctness of the conviction and sentence. 2 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.6 Police Head Constable Prakash Dhavale was attached to Ardhapur police station. On 15.6.2006, while he was on duty as P.S.O., one injured Padmakar had come to the police station at about 4.45 p.m. with burn injuries. Injured Padmakar had disclosed to P.W.6 Head Constable Dhavale that two persons viz., Kamble and Bahadure had poured kerosene on his person and set him ablaze. The injured was immediately referred to the Government Hospital, Ardhapur through Police Constable Dhumale and a letter at Exh.21 came to be issued to the Medical Officer for his examination. P.W.6 Head Constable Dhavale also instructed the another Head Constable to record the statement of injured Padmakar. An entry in this regard came to be taken in the station diary which is at Exh.22. P.W.8, Police Head Constable Sambhaji Honrao who was attached to the Ardhapur police station was deputed by P.W.6 Head Constable Dhavale to record the statement of injured Padmakar. He accordingly proceed to Civil Hospital, Nanded for recording the statement of injured Padmakar. He went to Ward No.10 where Padmakar had been admitted. The Medical Officer, P.W.9 Dr.Jadhav was requested to ascertain if the injured was conscious and in a fit condition to give his statement. Accordingly, P.W.9 Dr.Jadhav opined that injured 3 was in a fit condition to give his statement. Statement of injured came to be recorded by P.W.8 Head Constable Honrao at Exh.27. A letter at Exh.16 came to be issued to the Magistrate for recording the dying declaration of injured. Accordingly, P.W.4 Judicial Magistrate, First Class, Prashant Rajvaidya on receipt of a requisition for recording the dying declaration of injured Padmakar, proceeded to the Civil Hospital, Nanded. He requested P.W.9 Dr.Jadhav to ascertain if the injured Padmakar was in a fit condition to give his statement. Accordingly, Dr.Jadhav opined that injured was in a fit condition to give his statement. P.W.4 Judicial Magistrate, First Class Rajvaidya himself ascertained if injured was conscious and in a condition to give his statement. Thereafter, the statement of the injured came to be recorded by Judicial Magistrate, First Class, P.W.4 Prashant Rajvaidya at Exh. 17. On the basis of the statement of the injured at Exh.27, an offence vide Crime No.116 of 2006 came to be registered under Sections 307, 506 read with 34 of the Indian Penal Code. The investigation of the said crime was entrusted to P.W.10 P.S.I. Sd.Azam Sd. Yusuf. He accordingly drew the scene of the offence panchnama at Exh.13 in the presence of P.W.2 Manik and in the presence of another panch one Raghunath Sarode, seized the burnt clothes, match box etc. vide seizure memo at Exh.11. He arrested the accused and the clothes of the accused came to be seized in the presence of panchas. Statements of witnesses 4 came to be recorded and thereafter the seized articles came to be forwarded to the Chemical Analyzer under requisition at Exh. 35. Since injured Padmakar had succumbed to his injuries on 22.6.2006, Section 302 came to be added and subsequently, statements of the witnesses came to be recorded. Since accused Devidas was absconding, steps were taken for his arrest and ultimately it transpired that accused Devidas had committed suicide on 27.6.2006. The Chemical Analyzer’s report is at Exh. 37. The Chemical Analyzer’s report at Exh.37 discloses that the clothes of deceased Padmakar tested positive for kerosene residue. Further to the completion of investigation, a charge- sheet against the present appellant came to be filed. 3. On committal of the case to Court of Sessions, the trial Court vide Exh.5 framed a charge against the appellant for offence punishable under Section 302 read with 34 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 10 witnesses. Prosecution relied upon the evidence of P.W.5 Panchshila, sister of deceased Padmakar as an eye witness and placed reliance on the oral dying declaration made to P.W.3 Kachrabai and P.W.6 Prakash as well as the two written dying declarations at Exh.17 and Exh.27. Post Mortem on the dead body of deceased Padmakar came to be performed by P.W.7 Dr.Manurkar. He 5 noticed that deceased had sustained 52% burn injuries and he opined that cause of death was Septicemic shock due to 52% burns. The trial Court did not place reliance on the dying declaration at Exh.27 and accepted the dying declaration recorded by P.W.4 Judicial Magistrate First Class, Rajvaidya and the oral dying declaration made to P.W.3 Kachrabai and P.W.6 Prakash and relied upon the testimony of P.W.5 Panchashila and accordingly convicted and sentenced the appellant. 4. Before we deal with the submissions advanced before us by Smt. S.S.Jadhav, learned Counsel for the appellant and the learned Assistant Public Prosecutor for the State, it would be useful to refer to the evidence of witnesses. As pointed out by us above, oral dying declaration came to be made by P.W.6 Head Constable Prakash Dhavale who was attached to the Ardhapur Police Station. The oral dying declaration made to P.W.6 Head Constable Dhavale is reflected in the station diary entry extract at Exh.22. P.W.6 Dhavale has been cross-examined and in the cross-examination, he has admitted that two persons had accompanied Padmakar and at that time the hair, face and other parts of the body had sustained burn injuries. In cross-examination he has admitted that injured Padmakar had disclosed the incident to him. He has admitted not 6 to have obtained the signature of injured Padmakar at that time. He states that Padmakar was present in the Ardhapur Police Station for just five minutes. He has denied the suggestion that when Padmakar was brought to the police station Padmakar was unconscious and could not talk. 5. Prosecution has also examined PW-3 Kachrabai, mother of deceased Padmakar. She states that on the day of the incident she, her husband and wife of her son Padmakar were present in the house. At about 4.00 p.m., deceased accused Devidas had come to their house and Devidas had told her that he had poured kerosene on Padmakar and accused Bhimrao had set Padmakar ablaze. Devidas thereafter fled on his motorcycle. She states that thereafter she had been to the Ardhapur police station and had seen Padmakar in the Ardhapur police station. Padmakar had sustained burn injuries. Padmakar had disclosed to her in the Ardhapur police station as well as in the Government Hospital at Nanded that accused Devidas had poured kerosene on his person and accused Bhimrao had set him ablaze. She states that Padmakar was admitted in the hospital for six days and thereafter he succumbed to his injuries. In cross-examination, she has admitted that accused Devidas was her nephew. She has stated that accused Bhimrao was not related to her. She states that the graveyard is at a walking distance of half an hour from her house. 7 She has admitted that at about 100 persons had attended the funeral ceremony of Ingole. She states that her other children did not attend the funeral ceremony of Ingole. She has admitted that her neighbours did not inform her about Padmakar sustaining injuries. She has admitted that the Police had come to the hospital at Nanded. She has admitted that she did not lodge any report at the Ardhapur police station. She states that she had been to the Nanded hospital to see Padmakar on the next day at 12.00 noon and had noticed the burn injuries. Omission has been duly proved that she had not stated in her previous statement about the extra-judicial confession of accused Devidas wherein Devidas is alleged to have confessed to her that he had poured kerosene on Padmakar and accused Bhimrao had set Padmakar ablaze. The trial Court, therefore, has rightly rejected the extra- judicial confession alleged to have been made by accused Devidas to this witness. 6. Prosecution has examined P.W.5 Panchashila, sister of deceased Padmakar. She states that on the day of the incident, she had been to Ardhapur to attend the funeral ceremony of Ingole. The funeral ceremony was performed at about 3.00 p.m. According to her the funeral pyre was lit. Devidas was pouring kerosene on the funeral pyre and her brother Padmakar was present there. She states that accused Devidas quarreled with 8 her brother Padmakar and questioned him as to why he was not attending the other funeral ceremonies and why he had come today. Her brother Padmakar had replied that a member of his family was attending the funeral ceremonies. Devidas thereupon poured kerosene on Padmakar from a container which was in his hand and thereafter accused Bhimrao set Padmakar ablaze by lighting a matchstick. She states that she was near Padmakar at that time. She states that her brother Padmakar sustained burn injuries and he took out his clothes and thereafter fell on the ground. She states that she brought an auto-rickshaw and took him to the Ardhapur police station in the auto-rickshaw and therafter Padmakar was removed to the hospital. The doctors advised to shift him to the Nanded hospital and accordingly, Padmakar was shifted to the hospital at Nanded. She states that on the seventh day of the incident, Padmakar succumbed to his injuries. In cross-examination she has admitted that she is illiterate. She has admitted that accused Devidas is her cousin. She has stated that about 500 to 700 persons had attended the funeral ceremony of Ingole. Persons from different communities were present for the funeral. She has stated that at about 10 to 12 persons had lit the fire wood on the dead body of Ingole. She states that after chanting the religious incantation kerosene was poured on the funeral pyre and grandson of Ingole lit the funeral pyre. In cross-examination she has further admitted that 9 deceased Padmakar, accused Devidas, accused Bhimrao and sons of Ingole and others were present near the funeral pyre. She has denied the suggestion that deceased Padmakar had accidentally caught fire as the kerosene fell on him on account of strong wind. She has denied the suggestion that accused Bhimrao had removed the shirt of Padmakar. She has also denied the suggestion that Bhimrao had sustained burn injuries in the incident. She has stated that she had attempted to pacify the quarrel between Padmakar and Devidas. She has admitted that she did not attempt to remove the clothes of Padmakar. She states that she alone had taken Padmakar to the Ardhapur police station in an auto-rickshaw. She states that Padmakar had given his statement at the Ardhapur police station on that day. She admits to have narrated the incident to the Police also. She states that from the Nanded hospital she had called her mother on telephone. 7. In respect of this eye witness, Smt.Jadhav, learned Counsel for the appellant has urged before us that the evidence of this witness is extremely artificial as the women generally do not attend the funeral ceremony and, therefore, it is difficult to believe that she had attended the funeral ceremony. It is also urged before us that the appellant Bhimrao had attempted to douse the flames by removing the shirt and had sustained burn 10 injuries. It is also urged before us that the fact that deceased Padmakar could have sustained the burn injuries accidentally cannot be ruled out. 8. In respect of the custom which precluded women from attending the funeral ceremony is not a matter of record. It is not suggested to this witness that the custom in their community precluded women from attending the funeral ceremony. The fact remains that this witness claims to have attended the funeral ceremony. There is nothing in the cross- examination of this witness though this witness was cross- examined at length, to indicate that she was not present at the scene of the offence. Apart from giving suggestion that the appellant had removed the shirt, the appellant in his statement under Section 313, Cr.P.C. does not take such a defence. This witness in categorical term had stated that kerosene was poured on Padmakar by Devidas and accused Bhimrao set him ablaze. Similar assertion is to be found in the oral dying declaration made to P.W.6 Head Constable Dhavale. In the face of such strong, cogent and reliable evidence, it cannot be contended by the accused that the deceased had sustained burns accidentally. In fact, there is no material on record to draw such an inference. On perusal of her testimony, we find this witness to be a reliable witness. There is nothing on record to doubt her credibility. 11 Despite lengthy and probing cross-examination, this witness has emerged as a wholly reliable witness. There is a ring of truth to the testimony of this witness and though she is a solitary witness to the incident, we find that reliance can be placed on the testimony of this witness for sustaining the charge against the appellant. The evidence of this witness stands fully corroborated by the oral dying declaration made by deceased. 9. It is urged by the learned Counsel for the appellant that the dying declaration at Exh.27 has been disbelieved by the trial Court and no reliance can be placed on the dying declaration at Exh.17 recorded by Judicial Magistrate, First Class Shri Prakash Rajvaidya as P.W.4 Prakash Rajvaidya does not prove the contents of the dying declaration. Even if the two written dying declarations at Exh.17 and 27 are left out of consideration, there is overwhelming evidence of P.W.5 Panchashila who is an eye witness and the oral dying declaration made to P.W.6 Head Constable Dhavale and P.W.3 Kachrabai which implicate the accused beyond reasonable doubt. We, therefore, do not find any ground whatsoever for disbelieving these three witnesses. 10. In our considered opinion, therefore, the prosecution has been able to establish the offence against the appellant beyond reasonable doubt. Deceased accused Devidas had 12 poured kerosene on deceased Padmakar and the appellant had set him ablaze. Deceased Padmakar had sustained 52% burn injures and had died on account of the injuries sustained by him. The appellant, therefore, cannot contend that the appellant had no intention of causing the death of deceased Padmakar as the appellant had caused intentional injuries by striking the matchstick and setting deceased Padmakar ablaze. Deceased Padmakar had sustained injuries and had died on account of the said injuries. The intention of the appellant is writ large. The appellant has failed to establish that deceased Padmakar had accidentally sustained the burn injuries or that he attempted to douse the flames by removing the shirt. The defence of the appellant is of plain denial. The appellant has no doubt examined D.W.1 Dr.Asif Umar who states that the appellant had sustained burn injuries on his right hand palmar aspect. He has also proved the certificate at Exh.41. He no doubt states that the injury was possible while extinguishing the fire of another person. In cross- examination he has admitted not to have mentioned the date, time regarding the reference and examination of the patient in the medical certificate. In further cross-examination on behalf of the Assistant Public Prosecutor, he has admitted that such type of burn injuries are possible to a person while putting kerosene on pyre and setting the pyre on fire. The evidence of this doctor, therefore, clearly indicates that the injury sustained by the 13 appellant is possible while setting another person on fire. If that be the case, according to us, the accused has failed in establishing his defence also. 11. After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the appellant, we find this appeal to be without any merit and accordingly, this appeal is dismissed confirming the conviction and sentence of the appellant. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE vvr/criapeal342.07