:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 60 OF 1999. APPEAL NO. 60 OF 1999. APPEAL NO. 60 OF 1999. Bhausaheb Punja Shinde, At present Aurangabad Jail, residing at Khadak Sukene, Taluka: Dindori, Dist: Nashik and Kadawa Sahakari Sakhar Karkhana Room No.2, Chatai Chawl, Taluka Dindori, Dist: Nashik. ..Petitioner. versus. The State of Maharashtra. ..Respondent. ---- Shri. A. Q. Ansari for the appellant. Smt. V. R. Bbosale, A.P.P. for the respondent - State. CORAM: CORAM: CORAM: S.B.MHASE, & S.B.MHASE, & S.B.MHASE, & S.R.SATHE, S.R.SATHE, S.R.SATHE, JJ. JJ. JJ. DATE DATE DATE : JUNE 9, 2005. : JUNE 9, 2005. : JUNE 9, 2005. Oral Oral Oral Judgment (Per S.B.Mhase,J.) Judgment (Per S.B.Mhase,J.) Judgment (Per S.B.Mhase,J.): . This appeal is directed against the judgment and order of conviction and sentence passed in Sessions Case No. 79 of 1998 on 1.1.1999 by the IIIrd Additional Sessions Judge at Nashik. By the said judgment, Appellant (hereinafter referred to as "accused") was convicted under section 302 and 498A of the Indian Penal Code (hereinafter, in short referred to as "the IPC") was/is sentenced to undergo imprisonment for life and to pay fine of :2: :2: :2: Rs.2,000/-, in default of fine to undergo R.I. for six months for offence punishable under section 302 of the IPC and was/is further sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.3,000/-, in default to undergo rigorous imprisonment for six months for the offence punishable under section 498A of the IPC. 2. Prosecution case in brief is as under: . Accused - appellant and late Pushpa were married on 28.6.1997. After marriage, accused and deceased - Pushpa stayed at Khandesukhane along with the brother and mother of the accused for a period of two months. Accused at the time of marriage was employed with Kadawa Sugar Factory on daily wages and accused was allotted Room no.2 in temporary chawl of said factory on or about 20/8/1997. Therefore, the accused and late Pushpa came to reside at factory site in the said chawl. According to the prosecution the accused started to harras Pushpha while residing there by prohibiting her from seeing any woman and person. Accused also started to demand Rs.50,000/- for purchase of motorcycle and on that count Pushpa was left at her parental house :3: :3: :3: by the accused. However, brother of the accused twice intervened and brought Pushpa back to the accused. It is further case of the prosecution that few days earlier to incident Pushpa was brought to the accused at factory site but ill-treatment and harassment continued and ultimately on 8.1.1998 at about 4.00 a.m. accused poured kerosene on the face of Pushpa while she was sleeping. Having realised that something cold had fallen on face, Pushpa got up and found that accused had thrown kerosene on her face. Therefore, Pushpa ran outside by opening latch. However, while she was running outside accused had thrown ignited match stick on her and thus set her on fire. Hearing the cries of Pushpa neighbours gathered and extinguished fire. Thereafter, Shivaji Thomabre, a clerk from the security department of the factory residing opposite to the room of the accused gave information to the superiors and on the direction of the superior, brought the Medical Officer of factory to examine Pushpa and thereafter made an arrangement to shift Pushpa to Civil Hospital, Nashik as per doctor’s advise. At about 6.40 a.m. Pushpa was admitted in Civil Hospital, Nashik. Thereafter her statement was recorded by Mr. More, Special Judicial Magistrate at about 8.30 to 9.00 a.m. Said Pushpa :4: :4: :4: had indicted accused. The offence under section 307 and 498A of the IPC was registered at Dinderi police station at about 2.20 p.m. on the basis of statement recorded by the Special Judicial Magistrate. Thereafter accused was arrested on 9.1.1998 at 17.00 hours. However, Pushpa died in the Civil Hospital at about 10.15 p.m. on 9.1.1998. Inquest was carried on her dead body on 16.1.1998 at 7.00 a.m. and thereafter post mortem examination was made by Dr. Wanere of the Civil Hospital, Nashik. Advance death certificate showed that Pushpa died of 100% burn injuries which resulted into cardio respiratory arrest. Thereafter offence under section 302 of the IPC was added. After completing the investigation, charge-sheet under sections 302 and 498A was filed. After trial accused was convicted as stated above and therefore this appeal. 3. The learned counsel for the accused challenges the conviction on several grounds. According to the learned counsel the accused was not responsible for the death of Pushpa. Learned counsel submitted that accused had not demanded amount of Rs.50,000/- for purchase of motor cycle :5: :5: :5: and had not harrased and treated her with cruelty for that purpose. He submitted that accused all the while had treated deceased very nicely and properly. He emphasised that accused never prohibited the deceased from talking and/or seeing any woman in the chawl. He submitted that accused had never beaten Pushpa or had abused her. The learned counsel submitted that prior to marriage of deceased Pushpa with the accused, said Pushpa was shown to another educated boy whom Pushpa had disapproved and married with the accused. However, said boy was insisting for marriage with Pushpa and mother of Pushpa was insisting of such marriage, and therefore being under pressure and tension deceased Pushpa had committed suicide by pouring kerosene on her person and setting herself of fire. Learned counsel very heavily relied on statement reflected in introductory part of panchnama Exhibit-11, namely, Inquest, and submitted that police were knowing that death of Pushpa was suicidal. According to the learned counsel death of Pushpa was not homicidal but it was suicidal and therefore the accused is not liable for punishment under section 302 and 498-A of the IPC. Learned counsel also submitted that prosecution sotry is concocted one, since Pushpa had died of burn injuries, at the hands of the :6: :6: :6: prosecution witnesses and police. Learned counsel submitted that deceased Pushpa was having 95% to 100% burn injuries and that due to such serious injuries Pushpa was not in a position to talk and depose and thus challenged the statement recorded by the Special Judicial Magistrate. He further submitted that Dr. Shankhpal’s evidence is not trustworthy to infer that deceased was in a position to make statement. Learned counsel also submitted that oral dying declaration deposed to by Pw.1, Pw.3, Pw.5 & Pw.7 cannot be relied on since these witnesses are highly interested in conviction of the accused as those witnesses are close relatives of deceased Pushpa. The learned counsel also tried to rely on the fact that FIR was registered late and was informed to the Judicial Magistrate, F.C. at very belated stage and submitted that all this material raises a serious doubt about the prosecution case and investigation. He submitted that defence evidence of the accused has reasonably established that the death of Pushpa was suicidal one and there was no harassment or illtreatment to deceased Pushpa. Learned counsel relied upon AIR-1963 SC 420, 1996 Cr.L.J. 1507 and 1997 Cr.L.J. 372 and submitted that it is unsafe to rely upon a uncorroborated dying declaration because the :7: :7: :7: deceased suffering 100% burn injuries may not be in a position to make statement and may be in imaginative state of mind. Thus, the learned counsel prayed for acquittal of the accused. 4. In this case prosecution has examined in all 14 witnesses. In order to prove that the death of Pushpa was homicidal one the prosecution has examined Pw.11 (Dr.Kanchan Wanere) at Exhibit-38, who carried out the post mortem on the dead body of the deceased Pushpa. Pw-2 (Nandu Gatkal) has been examined as panch witness to the spot panchnama wherefrom articles 1 to 4 were recovered. So also there was an inquest panchnama at Exhibit-11 and Chemical Analyser’s report is at Exhibit-15. Pw.1 (Hirabai Mhaskar), Pw.3 (Pandurang Ugale), Pw.5 (Shakuntalabai Bhujade), Pw.7 (Lilabai Bendkule) have been examined by the prosecution to prove the ill-treatment and harassment at the hands of the accused to the deceased Pushpa so as to prove offence under section 498-A of the IPC. These witnesses have also been examined to prove the oral dying declarations of the deceased Pushpa made to these witnesses while she was in Civil Hospital, Nashik. Pw.6 Sudhakar More Special Judicial Magistrate has been examined to prove the dying :8: :8: :8: declaration at Exhibit 29 of the deceased Pushpa. Pw.10 (Dr. Madhukar Sankhpal) has been examined to prove the endorsements made by him on dying declaration Exhibit 29 to the effect that Pushpa was fit to make a statement. Pw.8- Ragho Pawar has been examined by the prosecution to prove that room no. 2 of temporary chawl where the incident has taken place was allotted by the Sugar Factory to the accused and further to prove that on 7.1.1998 and 8.1.1998 the accused was on leave. Pw.9 (Shivaji Tombare) is a clerk from the security department of the Sugar Factory who was residing opposite to the place of the offence. He had informed about the incident to the officers of the factory and on their instructions had made an arrangement to take the factory doctor to examine Pushpa and on the advice of the Doctor he had shifted Pushpa to Civil Hospital, Nashik. Pw.12 (Jagnnath Vithoba Kale), A.S.I, has registered the crime and carried out the investigation till section 302 of the IPC was added. Pw.14 (Kailas Nivruti Gavade) is PSI who has investigated the crime after section 302 was added on the death of Pushpa and has filed the charge-sheet. 5. From the evidence of Pw.10 (Dr. Madhukar :9: :9: :9: Yashwant Shakhpal) it is established that when at 6.40 a.m. on 8.1.1998, deceased Pushpa was admitted in the civil hospital, she had sustained 95% burn injuries. The inquest panchnama, Exhibit-11 which was prepared on 10.1.1998 at 7.00 a.m. also shows that there were burn injuries on the face, neck, chest, stomach, both hands, waist, thighs and calves of deceased Pushpa. Pw.-11 (Dr.Kanchna Narayan Wanere) had carried out the post mortem in view of the letter dated 10.1.1998 given by the police constable of Sarkarwada police station, which is at Exhibit 39. This witness has deposed that the deceased was having 100% burn injuries and the said doctor had issued advance death certificate (Exhibit-42) on 10.1.1998 to the effect that the death of Pushpa was caused due to cardio respiratory arrest due to extensive burns. The detailed post - mortem report is at Exhibit-42. All this prosecution evidence conclusively proved that the deceased Pushpa expired due to the burn injuries and the death of Pushpa was unnatural one. However, according to the prosecution the death of Pushpa was homicidal one since it was caused by the accused by pouring kerosene on her person and setting her on fire. As against this, the case of the defence is that Pushpa had committed suicide by pouring :10: :10: :10: kerosene on her own person and setting herself on fire. Therefore, while considering the legality and correctness of the conviction of the accused under section 302 of the IPC it has become necessary for this Court to find out and scrutinise as to whether the death of Pushpa was homicidal one or suicidal one. And, if it is homicidal one as to whether the accused is responsible for causing such death. 6. From the evidence of Pw.8 Ragho Daulat Pawar, Security Officer from the Sugar Factory it is established that the accused was employed as a watchman on daily wages with the Kadva Sugar Factory and that room no.2 of the temporary chawl of the sugar factory was allotted to the accused with effect from 20.8.1997. The letter to that effect has been brought on record. This witness has also deposed that on 7.1.1998 and 8.1.1998, ie., immediately prior to the incident the accused was on leave and he proved Exhibit-35. 7. It is revealed from Exhibit-18 (spot panchnama) that opposite to the temporary chawl where the incident has taken place there is a permanently constructed chawl of the sugar factory and Pw.9 Shivaji Thombare was resident of the said :11: :11: :11: chawl which was opposite to the place of the incident. Shivaji Thombare has deposed that on the day of the incident, during morning he heard the cries that the wife of the accused had sustained burn injuries, therefore, he proceeded to his office in tempo-trax and informed about the incident to the checker. He has further stated that he has taken two watchmen and brought the medical officer of the factory hospital to examine Pushpa. He has stated that as per the orders of the Managing Director of the factory he arranged for driver- Shantaram Shankar and shifted Pushpa to the Civil Hospital Nashik. It is revealed from the cross examination of this witness that this witness had driven the vehicle taking Pushpa upto village Varkhade and at village Varkhade, vehicle was handed over to driver Shantaram Shankar who ultimately took the said vehicle to the civil hospital, Nashik. It further appears from the evidence of Dr. Sankhpal (Pw.10) that deceased was admitted in the said hospital at 6.40 a.m.. So far as evidence of these witnesses, namely, Pw.8 & Pw.9 is concerned, said evidence is not seriously challenged by the accused. On the contrary, in a statement recorded under section 313 of the Code of Criminal Procedure, this evidence has been accepted by the accused. :12: :12: :12: 8. Pw.5 Shakuntalabai Baburao Bhujade, mother of the deceased - Pushpa, has stated that marriage of Pushpa was performed on 28.6.1997 and for a period of two months after the marriage the accused and Pushpa were residing at village Khadaksukhane. Pw.5 further deposed that since the accused was watchman in Kadwa sugar factory he got a room at factory site and therefore, deceased Pushpa and accused shifted to reside in that room. This witness (Pw.5) has further stated that 15 days thereafter the accused started illtreatment and harassment to deceased Pushpa and within a period of three weeks of their stay at factory site, Pushpa was left with this witness. Pushpa stayed with this witness for 8 days. However, the brother of the accused, namely, Ashok, intervened and took Pushpa back. Thereafter for 15 days Pushpa stayed with the accused. However, the accused sent back Pushpa to this witness. This witness has categorically stated that Pushpa disclosed that accused was demanding Rs.50,000/- for purchasing motor cycle, and that the accused was beating and abusing her. Pushpa further disclosed that the accused was suspecting and asking her as to why she was speaking with others and was restraining her from speaking with other women. 8 :13: :13: :13: days prior to the incident, the brother of the accused came for the second time along with Pw.3 who is brother of Pw-5. At that time again Ashok intervened and convinced Pushpa and had taken her back to stay at factory site. Pw.5 has further stated that on 6th January 1998 this witness had been to Pushpa in the room at factory site and stayed there for a night and came back on 7.1.1998. At that time the accused insisted this witness to take Pushpa back telling that though Pushpa may be precious, he did not need her. This witness has further deposed that the accused told that he had demanded Rs.50,000/- from Pushpa and further asked whether Pushpa had told it to this witness. He stated that said amount was demanded for motor cycle. This witness told to the accused that Pushpa had not conveyed the demand of the accused and that Pw.5 is a labourer and cannot provide such fund. This witness has further stated that the accused demanded Rs.50,000/- from her and asked to secure such amount from the brother of the said witness, i.e., maternal uncle of Pushpa (who is Pw.3). Pw.5 further deposed that she therefore went to her brother at Jopul and conveyed the demand of the accused and came to her place of residence - Pimpalgaon on 7.1.1998. This witness has further :14: :14: :14: disclosed that on 8.1.1998 during early morning hours she received a phone message that Pushpa had sustained burn injuries and Pushpa was admitted in Civil Hospital, Nashik. Therefore, Pw.5 along with other women approached to the Civil Hospital Nashik. When this witness (Pw.5) had seen Pushpa, this witness enquired with Pushpa as to how she sustained burn injuries. Whereupon Pushpa informed this witness that Pushpa was asleep, at 4.00 a.m., kerosene was poured on her person by the accused and when she tried to run away opening the latch of the door, the accused threw a burning match stick towards her, and thus she sustained burn injuries. Pushpa further disclosed that neighbours arrived there and extinguished her fire. Pushpa had also informed that the kerosene was poured for a demand of Rs.50,000/-. 9. This witness has been thoroughly cross examined as to the point of time when this witness received information of the incident and as to the time when this witness came to the hospital. It has transpired in the cross examination that this witness had come to the civil hospital along with Heerabai Mhaskar, Leelabai Bendukule, Nandabai Gangurde. Though the questions were asked that the :15: :15: :15: accused had not poured kerosene and set Pushpa on fire and the accused had not demanded the amount of Rs.50,000/- for motorcycle, all these suggestions have been denied by this witness. On the contrary, it was suggested that Pushpa committed suicide and at the relevant time accused was sleeping in the said room and it was the neighbours arrived there seeing fire and accused was awaken. All these suggestions have been denied by Pw.5. It is further attempted to suggest to this witness that there was proposal of marriage of Pushpa with somebody else when the marriage proposal of Pushpa was considered with the accused and that other boy was highly educated. But Pushpa disapproved that proposal. These suggestions have been denied by this witness. It is further suggested that 8 days prior to the incident, Pushpa was insisting the accused for divorce contending that the first educated boy was insisting for marriage and she was intending to marry him. This suggestion has also been denied. 10. Suffice it to say at this stage that the testimony of this witness, as deposed in the chief examination is not anyway affected by the cross examination. Therefore, we find that this witness is a truthful witness and the evidence of this :16: :16: :16: witness is acceptable. 11. Pw.3 (Pandurang Sadashiv Ugale) is the maternal uncle of the deceased Pushpa and is the brother of Pw.5 (Shakuntalabai). Pw.3 has deposed that Pushpa and accused were married on 28.6.1998, and initially for a period of two months they resided at village Khadaksukhane and thereafter shifted to reside at Kadva sugar factory. He has deposed that Pushpa was left at the house of Pw.5 and after 3/4 days she was again sent to the accused. Pw.3 further deposed that for the second time Pushpa was sent back to Pw.5 (her mother). At that time it was decided by this witness and Pw.5 that unless two respected persons intervene Pushpa should not be sent back to the accused. This witness has further deposed that after eight days the brother of the accused, namely, Ashok came and therefore this witness along with Ashok went to the house of Pw.5 and since Ashok had intervened in the matter and convinced Pw.5 & Pw.3, Pushpa was sent along with Ashok back to the accused. This witness has also deposed that when this witness asked Pushpa as to why she was being sent back, whereupon Pushpa told to this witness (Pw.3) that the accused was contending that Pushpa was looking for somebody else :17: :17: :17: here and there and thereby prohibiting her from speaking with other people. He (Pw.3) has further deposed that after Pushpa was sent back for the second time, 8 days prior to the incident, this witness had visited the room of Pushpa at factory site. He enquired with her as to where was her mother-in-law, whereupon Pushpa replied that mother-in-law had left Pushpa in the house and proceed to her village. . So far as the incident is concerned, Pw.3 has deposed that on 8.1.1998 he received a message from his sister (Pw.5) that Pushpa has suffered burn injures. He has conveyed the said incident in the house of the accused. Already they had learnt about it. He proceeded towards the civil hospital Nashik and he reached to the civil hospital at about 9.00 a.m. on 8.1.1998. On being enquired with Pushpa as to how the incident has happened, this witness has deposed that the deceased Pushpa told him that the accused was demanding an amount of Rs.50,000/- and that when she was asleep the accused poured kerosene on her face and therefore she was awaken. Having noticed that kerosene cane in the hands of the accused, she was afraid, and while she was trying to run away from the room, accused threw on her person :18: :18: :18: a burning match stick and set her on fire. He has further stated that after the death of Pushpa the post mortem was carried out and after the post mortem the dead body of Pushpa was handed over to him. He has proved Exhibit 20 to that effect. In the cross examination of this witness nothing has transpired so as to disbelieve his testimony and except denial there is nothing in the cross examination. Though it is tried to be brought on record that there is some change in the version which was deposed to by this witness in court and before the police, yet it is not brought on record what is the actual variance so as to point out the contradictions which will lead to disbelieve this witness. On the contrary, it transpires from the cross examination of this witness (Pw.3) that he had been to the hospital at 9.00 a.m. on 8.1.1998, by that time the statement of Pushpa was already recorded by Pw.6, (Special Judicial Magistrate) which is at Exhibit 29. All that suggestions to the effect that there was no demand of amount of Rs.50,000/- and that the accused did not pour kerosene on the person of Pushpa, etc., have been categorically denied by this witness. We find that this witness is reliable one and his testimony is equally acceptable to us. :19: :19: :19: 12. Pw.1, Hirabai Balasaheb Mhaskar was having cordial relations with Pw.5 (i.e., Shakuntalabai, mother of the deceased Pushpa), as both of them were working together with one Mangaldas Govind Thakkar. Pw.1 was the mediator for settling the marriage of the accused and deceased Pushpa. This witness has also deposed that the marriage of Pushpa and accused was performed on 28.6.1997 and at that time the accused was working as a watchman in Kadva sugar factory. It is further deposed that after marriage, Pushpa was residing with accused in his village at Khadaksukhane and thereafter the accused and deceased were residing at sugar factory. This witness has further stated that her parents village is Ozarkhed and this witness (Pw.1) used to visit the residence of the accused at factory site, on a way to Ozarkhed. Therefore, this witness used to meet deceased Pushpa. This witness has stated that there used to be quarrels between the accused and Pushpa and at times the accused was not speaking with this witness. It is further deposed by this witness that Pushpa initially did not disclose the cause of quarrel but during the occasion of fare of Champashashti at Varkheda, Pushpa had told this witness