1 APEAL-309-05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.309 OF 2005 Balu Dharma Shendge, ] Convict No.C/13778, ] presently confined at ] Yerwada Central Prison, ] Pune. ] ..APPELLANT [Orig.Accused] Versus State of Maharashtra, ] through Sahakarnagar ] Police Station, Pune. ] ..RESPONDENT ......... Mrs.Rohini M. Dandekar, Advocate for the Appellant. Ms.M.H. Mhatre, A.P.P. for the State. ......... CORAM : D. D. SINHA & A. P. BHANGALE, JJ. DATE OF THE JUDGMENT : 28.10.2010 2 APEAL-309-05 ORAL JUDGMENT (PER A. P. BHANGALE , J.) : 1. Present Criminal Appeal is directed against judgment and order dated 22.1.2004 passed by the 8 th Addl. Sessions Judge, Pune in Sessions Case No,174 of 2003 whereby the appellant was convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine in the sum of Rs.1000/-, in default, to suffer R.I. for one year. 2. Case of the prosecution, in brief, is as under :- The appellant is the husband of deceased Rekha Shendge. They had married 15 years prior to the incident. They had two daughters and a son out of their wedlock. The appellant was mason by occupation. Parents of the deceased Rekha were also residing in the same locality at Talajai Vasahat, Padmavati at Pune. Children of the appellant and Rekha (deceased) used to go with parents of the deceased for sleeping. 3. On the day of incident i.e. on 12.9.2002 deceased Rekha had gone to her parent’s house on account of `Gauri Pujan' festival. She 3 APEAL-309-05 returned home at about 00.30 a.m. when it was 13.9.2002. The appellant suspected her chastity because of her late arrival in the house. He got angry and accosted her raising suspicion upon her and assaulted her. When he asked Rekha to go out of the house, she refused to leave the house. Then the appellant took the plastic can containing kerosene and poured kerosene on her person and set her ablaze with a lighted match stick. The deceased Rekha raised shouts which attracted neighbourers. Meanwhile the appellant fled away from the scene. The persons from the neighbourhood, who gathered there, extinguished the fire and Rekha was taken to Hospital for medical treatment on account of burn injuries which she had sustained. 4. Sahakar Nagar Police Station, Pune was informed about the incident by telephonic message. P.S.I. Chivate called Special Judicial magistrate in order to record dying declaration in presence of doctor. Meanwhile he had recorded complaint made by Rekha (deceased) in presence of a lady doctor on the basis of which crime was registered as C.R. No.185 of 2002 which was taken over for investigation. It is case of the prosecution that while undergoing medical treatment in 4 APEAL-309-05 Sasoon General Hospital, Pune; Rekha succumbed to her burn injuries on 16.9.2002. 5. Investigating Officer Shinde visited the spot of the incident, drew Panchnama in respect of scene of offence, collected medical reports, dying declarations recorded as also inquest Panchnama which was drawn. The accused, who was absconding, was arrested on 16.9.2002 under arrest Panchnama (Exh.28). He had also sustained some burn injuries therefore he was referred to medical examination and treatment. 6. Upon completion of investigation, the appellant was chargesheeted for offence of murder before J.M.F.C. Court No.4 Pune. By committal order dated 3.5.2003, the case was committed to the Court of Sessions at Pune. 7. Charge was framed on 7.6.2003 to which the appellant pleaded not guilty and claimed trial. 8. In order to prove the case, the prosecution examined 10 witnesses. The defence of the appellant is of denial. No defence evidence was led. In his statement recorded under Section 313 of 5 APEAL-309-05 Cr.P.C. the appellant chose to defend prosecution case by advancing a plea that on the night of the incident he had asked his wife to cook food. She poured kerosene in the stove. In that process, kerosene spilled out on the ground and while lighting the stove the kerosene on the ground caught fire. The nylon Saree on the person of the deceased also caught fire. He tried to extinguish fire. In that process he sustained burn injuries on his right arm and right lateral aspect of his body. Thus he pleaded, in defence, that he is not concerned with the offence. 9. Learned Advocate for the appellant submitted that the plea raised by the appellant may be considered as probable under the circumstances. According to learned Counsel for the appellant, dying declarations relied upon by the prosecution ought to be disbelieved on the ground that the death of Rekha may be accidental. According to the learned Counsel for the appellant, benefit of reasonable doubt be granted in favour of the appellant. 10. Learned A.P.P. for the State, on the other hand, contended that there was evidence beyond all reasonable doubts to establish guilt of the appellant in this case and that the appellant had poured 6 APEAL-309-05 kerosene on the person of his wife, set her ablaze and ran away from the scene of crime. He was absconding till he was arrested on 16.9.2002. He did not bother about his wife Rekha struggling for survival in the hospital while receiving medical treatment and instead of visiting the hospital and taking her care, he remained absconding till he was apprehended under Panchnama Exhibit.28 dated 16.9.2002. According to learned A.P.P., the witnesses examined by the prosecution do throw light upon the incident of murder as it had occurred and there is ample evidence to bring home guilt of the appellant beyond all reasonable doubts. 11. The first question is as to whether deceased Rekha met with homicidal death ?. PW-9 Dr.Narkhede was examined who had performed autopsy as Medical Officer at Sasoon Hospital, Pune. He conducted autopsy over dead body of Rekha as per Exhibit-26. Dr.Narkhede issued certificate (Exh.25) to the effect that Rekha Balu Shendge, resident of Talajai Vasahat, Padmavati, Pune died as a result of shock due to burns. He also observed in his postmortem notes (Exh.26) in column No.17 that deceased Rekha has superficial to deep burns as follows : head, neck and face 9%, RUL 8%, LUL 8%, 7 APEAL-309-05 anterior trunk 18%, posterior trunk 18%, right chest 17%, left chest 17%, genital 1% = 96% ante mortem injuries. Nothing was extracted from the cross-examination of Dr.Narkhede which can damage his testimony regarding postmortem examination on the dead body of Rekha. Thus the fact that Rekha met with unnatural death as a result of 96% of ante mortem burn injuries is established by the prosecution with the help of medical evidence consisting of deposition by PW-9 Dr. Narkhede, injury certificate (Exh.25) and postmortem notes (Exh. 26). 12. The next question is as to whether the appellant was responsible for death of Rekha and whether he committed her murder punishable under Section 302 of Indian Penal Code ?. The prosecution in order to link the appellant with the crime of murder, relied upon evidence of dying declarations. P.S.I. Chivate from Sahakarnagar Police Station (PW-8) had received telephonic message. He went to hospital and recorded complaint of Rekha after consulting Medical Officer who was present attending Rekha. Rekha was found conscious and well oriented according to lady Medical Officer. Thus PW-8 Chivate recorded complaint (Exh.22). PW-8 Chivate deposed 8 APEAL-309-05 about correctness thereof. The complaint does mention as to how the incident occurred on the night intervening between 12.9.2002 to 13.9.2002. After Rekha had returned from her parent’s house, having attended the `Gauri Puja' at about 00.30 hours on 13.9.2002, the appellant questioned her as to where she had gone, why she has gone and suspected her character alleging that she must have relations with somebody outside. Thus appellant raised quarrel with her, assaulted her and asked her to get out of the house and when she refused to leave the house, the appellant had taken a plastic can containing kerosene and poured kerosene on her person and while she protested shouting “Wachava Wachava” (save, save) appellant has lighted a match stick, put it upon her and set her on fire and ran away from the house. After hearing cries from Rekha’s house, neighbourers and her sister-in-law Shobha (PW-1) came, extinguished the fire and then Rekha was taken to hospital for medical treatment. 13. Shobha (PW-1) has corroborated this evidence. According to PW-1 Shobha, Rekha had attended `Gauri Pujan' and at about 12:30 midnight returned her house. After that she had heard commotion from the side of the house of the appellant. When she rushed there, 9 APEAL-309-05 she saw Rekha was ablaze. Her father-in-law who also rushed along with Shobha has extinguished the fire by putting a Chadar around the person of Rekha and pouring water on her person. According to Shobha (PW-1) Rekha had stated that the accused had poured kerosene on her person and set her ablaze after he had quarrel with her on the ground as to where she had gone. 14. The prosecution has also examined PW-3 Bhaskar Shahane, who was working as a Special Judicial Magistrate. He received requisition letter from the police for to record dying declaration of Rekha and then he had contacted the doctor concerned, who examined Rekha. He also verified as to whether Rekha was ready to make voluntary statement. Then PW-3 Shahane recorded her statement. Thus, according to PW-3 Bhaskar Shahane also Rekha made disclosure that the appellant had suspected her chastity when she returned home, the appellant has poured kerosene on her person, set her ablaze and fled house from the house. 15. It appears that Dr.Sachin Patil who was Medical Officer at Surya Hospital was consulted by Special Judicial Magistrate before recording her dying declaration and Dr. Sachin had certified that she 10 APEAL-309-05 was fully conscious and well oriented by putting his endorsement on the paper as per Exh.11. Thus, dying declaration was recorded by Mr.Shahane (PW-3) in presence of Dr.Sachin Patil. Dr. Sachin also corroborated the fact of dying declaration that deceased Rekha had disclosed in his presence that her husband had set her ablaze after pouring kerosene on her person and that her husband was suspecting her chastity. Thus Dr. Sachin deposed about the presence of burn injuries on the person of the deceased, the fact that her signature or thumb impression could not be taken therefore impression of her left tow was taken. According to Dr.Sachin Patil, Rekha was fully conscious and well oriented to give her dying declaration which was recorded. Dr. Sachin was cross-examined at length. He explained that deceased Rekha was admitted for medical treatment and he had recorded history of burns on the case papers. At that time when she was admitted she had told him that when she was pouring kerosene in the stove the candle fell down and caught fire as the kerosene was fell down from the can. We have seen Photostat copy, which appears, referred by Dr.Sachin while he had noted down history of case papers which appears mostly illegible and disorganized creating suspicion about authenticity thereof. Be that as it may, there is evidence of 11 APEAL-309-05 dying declarations which can remove such suspicion from the judicial mind as the same doctor Sachin certified consciousness as also well oriented condition of the patient who made dying declaration in his presence to the clear effect that her husband had poured kerosene on her person and set her ablaze while suspecting her chastity. The Special Judicial Magistrate Shri Shahane also deposed about this dying declaration. 16. Apart from the above evidence, the prosecution has examined neighbourer of Rekha, Mr.Arun Gorakh Aarne (PW-4), who deposed about oral dying declaration made by deceased Rekha to Shobha (PW-1) in his presence to the effect that quarrel had taken place between Rekha and her husband who suspected her chastity, poured kerosene on her person and set her ablaze. PW-4 Arun Gorakh also acted as panch for the scene of offence Panchnama (Exh.15) wherefrom yellow coloured can, match box, piece of partly burnt towel were observed and seized under Panchnama. 17. The prosecution also examined another neighbourer, Appa Waghmare (PW-5) who also deposed that deceased Rekha had made statement to Shobha in his presence that the accused poured 12 APEAL-309-05 kerosene on the person of deceased Rekha. PW-5 had seen the accused running away from his house while neighbourers were extinguishing flames of fire with which Rekha was engulfed. Thus evidence of conduct of the appellant which is incriminatory is also brought on record. 18. The prosecution also examined PW-7 Sarubai (mother of victim Rekha) who deposed about oral dying declaration made by Rekha which clearly indicates that appellant had poured kerosene on the person of Rekha, set her ablaze and ran away from the house. Thus, we have ample evidence on record apart from the fact deposed by PW-10 Netaji Shinde who arrested the accused on 16.9.2002 under Panchnama (Exh.28). It is pertinent to note that the appellant was found sustained burn injuries which was recorded in the course of Panchnama. The accused was referred to Sasoon Hospital for medical examination and treatment for his injuries. 19. The overall evidence led by the prosecution led us to inescapable conclusion that it was the appellant alone who after suspecting character of his wife had raised quarrel with her and asked her to get out of the house during the night intervening between 13 APEAL-309-05 12.9.2002 to 13.9.2002 when it was 12:30 a.m. or about and when his wife refused to leave the house, he poured kerosene on her person, set her ablaze and ran away from the house leaving his wife, who had sustained 96% burn injuries, to be taken care by neighbourers so as to take her to hospital for medical treatment. The appellant left his wife struggling for survival in the hospital while he remained absconding till he was arrested on 16.9.2002. All these facts leave no scope for any other hypothesis except that of guilt of the appellant. We therefore find that there is no infirmity whatsoever in the findings of facts recorded by the trial Court. We do not find merit in this Appeal. In the result, the appeal is dismissed. (D. D. SINHA, J.) (A. P. BHANGALE, J.)