1 Cri. Appeal No.661 of 2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Appeal No.661 Of 2009 Shivaji s/o Nagorao Shinde, ] Age 36 years, ] Occupation: Convict No.6923 ] Aurangabad Central Jail, ] Aurangabad ] R/o Waranga Masal, ] Taluka Kalamnuri, ] District Hingoli. ] .. Appellant. Versus The State of Maharashtra ] Through Police Station, ] Kalamnuri ] Complainant - ] Gajanan s/o Champatrao Gavali, ] Age 22 years, ] Occupation ; Mechanic ] R/o Tembhurni, Taluka Basmat, ] District Hingoli. ] .. Respondent. -------- Smt. Bharati. B. Gunjal, Advocate (appointed) for appellant. Smt. R.K. Ladda, Additional Public Prosecutor, for respondent. -------- CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. DATE: 28th MARCH 2011 2 Cri. Appeal No.661 of 2009. ORAL JUDGMENT (Per Naresh H Patil, J.) : 1) The appellant challenges the conviction awarded by the trial Court for an offence punishable under section 302, Indian Penal Code, and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for six months by judgment and order dated 24-8-2009 in Sessions Trial No.2 of 2009. 2) Facts, in brief, are as under :- 3) Deceased Bhagyashree was married to appellant - Shivaji Shinde prior to three months of the incident. After marriage she started residing with him. On 4-6-2008 Bhagyashree was found dead in the house in burnt condition. A telephonic message was received by complainant - Gajanan Gavali, who is brother of the deceased. The deceased was staying along with her husband at her matrimonial house at Waranga Masal, Taluka Kalamnuri, District Hingoli. The deceased suffered 100% burns. 3 Cri. Appeal No.661 of 2009. 4) PW 5 - Gajanan Gavali filed complaint (Exhibit 23) with the police. Police started investigation, drew panchanamas, recorded statements of witnesses, forwarded seized articles to Chemical Analyzer and thereafter filed charge sheet against the appellant. The Additional Sessions Judge Hingoli framed charge against the appellant in Sessions Trial No.2 of 2008. The appellant pleaded not guilty. To a question as to whether the appellant wanted to engage Advocate at the costs of the Government the answer of the appellant was in affirmative. The appellant is auto rickshaw driver by occupation. 5) PW 5 - Gajanan, complainant, brother of the deceased, deposed before Court that, there used to be quarrel between appellant and the deceased. He received a call that his sister was assaulted and set ablaze by her husband. The witness is resident of Tembhurni, Taluka Basmat, District Hingoli. He reached the house of the deceased. Police was informed on telephone. Police reached the spot. 4 Cri. Appeal No.661 of 2009. The witness was cross-examined during which he stated that he did not read the complaint after signing it. After post mortem was conducted, last rites were performed on the dead body. The marriage of the deceased with the appellant was in Gandharva form. The witness and his family did not attend the said marriage. After marriage deceased did not come to the house of her parents. He denied that the deceased was suffering from epilepsy. The witness deposed that he came to know that his sister and the appellant were sleeping outside the house. Due to storm and rain they went inside the house. The witness states that he does not know as to whether due to fall of lamp on the person of his sister she was burnt. He claimed ignorance as to whether his sister sustained burn due to accident. 6) PW 6 - Gayabai is mother of the deceased. She stated that the deceased was married to the appellant Shivaji by performing Gandharva marriage. The appellant was illtreating her and was not providing food to her. The appellant was giving trouble to the deceased under influence of liquor, according to her. The appellant was 5 Cri. Appeal No.661 of 2009. doubting character of the deceased. This information was provided to her by her daughter one month prior to her death when she had visited the house of the deceased. The other daughter of this witness, Suman, was residing in the same village where the deceased was residing. Suman told this witness that on the day of the incident there was quarrel between Bhagyashree and the appellant and she had to intervene. In the cross-examination the witness deposed that there was no electricity in the house of the appellant. The witness and her family were not present in the marriage of the deceased and the appellant as the same was against their consent. It has come on record that Bhagyashree was married firstly to a person at Kalamnuri. She was divorced. Thereafter she was married for second time to a person at Dhanora. For the third time she was married to the present appellant. 7) PW 7 - Suman is the sister of the deceased. She stated in her examination-in-chief that, there was quarrel on the earlier day between appellant and the deceased and 6 Cri. Appeal No.661 of 2009. she had to intervene. She noticed two bottles of petrol lying in the room. The deceased was completely burnt. She did not talk. She came to know that the appellant had set Bhagyashree on fire and was trying to run away. She saw that the appellant was tied when she reached the spot. The appellant was not allowing Bhagyashree to talk to others. In her cross-examination the witness deposed that she was residing at a distance of one kilometer from the spot of incident. Her police statement was recorded, contents of which she was not aware of. She had told police that she noticed two bottles in the room but to this an omission was recorded in respect of her statement. 8) PW 8 - Ramesh is a neighbour who was cited as an eye witness to the incident. He deposed in the examination-in-chief that, he heard shouts from the house of the appellant at about 3 to 3.30 a.m. He rushed to the house of the appellant. He saw deceased burning and the appellant was pouring kerosene on her person. The appellant was trying to run away but the persons present there caught hold of the appellant and tied him. 7 Cri. Appeal No.661 of 2009. Bhagyashree was completely burnt. The appellant was saying that the deceased had relations with others therefore he killed her. In the cross-examination an omission is recorded in respect of a statement made by the witness to the effect that, the witness saw Bhagyashree while burning and the appellant pouring kerosene. 9) PW 9 is Radhabai. The deceased Bhagyashree was niece of this witness. The witness deposed that, the appellant was suspecting about character of Bhagyashree. The appellant used to drink liquor. On the day of the incident the witness went to the house of Bhagyashree and saw that Bhagyashree was completely burnt. The appellant was trying to run away but he was caught and tied. Kerosene smell was coming from the articles lying in the room, according to this witness. The witness had identified the accused. In the cross-examination this witness stated that, prior to 8 to 15 days of the incident, Bhagyashree was 8 Cri. Appeal No.661 of 2009. taken to hospital at Kalamnuri for treatment for epilepsy. There was darkness in the room as smoke was emanating from the house. 10) PW 10 Md. Khaja is Police Sub Inspector who conducted investigation. 11) Post mortem report is at Exhibit 14/1. Doctor opined the cause of death as due to 100% burn with hypovolmic shock. PW 1 - Dr. Pawar examined the deceased and found that she suffered 100% burns. The burn injuries, according to the medical officer, were possible by pouring kerosene on the person and setting on fire. The age of the injuries was within 24 hours. The doctor deposed that these injuries are not possible by fall of kerosene lamp while sleeping even if the person is suffering from epilepsy attack. 12) We have perused the evidence on record and considered the submissions advanced by the learned counsel for the parties. The learned counsel appearing for the appellant submits that the evidence of the prosecution 9 Cri. Appeal No.661 of 2009. witnesses is not reliable. They are highly interested witnesses being relatives of the deceased. The deceased was suffering from epilepsy. Panchanmas in respect of seizure of clothes are not reliable. The contents of the panchanamas are not proved through PW 2 and PW 3. PW 3 is a habitual panch. The appellant did not produce any clothes before the panchas. The defence version is probable that due to epilepsy attack kerosene lamp may have fallen on the person of the deceased and the deceased might have died due to the same. There was no electricity in the house. The evidence of PW 8 - Ramesh and PW 9 Radhabai is not believable and not reliable. There was no motive for the appellant to commit the offence. 13) The learned Additional Public Prosecutor, Smt. Ladda submitted that the incident has happened in midnight hours. The theory of fall of lamp on the person of the deceased, in the facts of the case, is required to be discarded totally as imaginary and not probable. The appellant was raising suspicion regarding character of the deceased. He tried to run away after setting the deceased on fire. He was caught by the persons. The appellant has 10 Cri. Appeal No.661 of 2009. not discharged burden under section 106 of the Evidence Act. Chemical Analyser report supports the prosecution case. All attending facts and circumstances require the appellant to come out with a probable defence as the deceased was in custody of the appellant. In absence thereof, in the light of the evidence on record, the case of the prosecution cannot be discarded. 14) We find that there is clinching evidence in respect of the fact that the deceased was residing with the appellant - husband. There is no dispute on the point that even during night when the incident took place the appellant was with the deceased. 15) The fact that the deceased was married for third time in her life time with the appellant cannot be a ground to accept the defence version that the appellant was innocent. Intimation of the incident was promptly given and the brother of the deceased reached the spot. He informed the police and filed a complaint. It is true that there is omission in respect of seizure of clothes of the appellant. But the Investigating Officer had deposed before 11 Cri. Appeal No.661 of 2009. Court in respect of the investigation conducted by him. From the CA Report and the seizure panchanamas it can safely be gathered that there were two bottles of kerosene lying in the house. It is gathered from the evidence on record that the appellant was harbouring suspicion in his mind in respect of the character of the deceased. Learned counsel for the appellant submitted that the appellant also suffered some injuries to his right hand and leg. But the appellant was not treated for the same neither there is any evidence on record to show that the injuries were of significant nature. 16) Considering the evidence on record we find that the appellant had special knowledge and that burden of proof would be on him. It is settled principle that, the special or peculiar knowledge of the person proceeded against would not relieve the prosecution of the burden of producing some evidence in respect of that fact in issue. It may only alleviate that burden to discharge and very slight evidence may suffice. This principle is emanating from the provisions of Section 106 of the Evidence Act, 1872. 12 Cri. Appeal No.661 of 2009. 17) The learned counsel for the appellant has placed reliance on the following judgments. (1) Arun Dharma Chavan vs. The State of Maharashtra, 2001 ALL MR (Cri) 2320. (2) Badam Singh v. State of M.P., AIR 2004 SC 26. (3) Sunil Chokhoba Shambarkar v. State of Maharashtra, 2008 ALL MR (Cri) 360 We have perused these judgments. 18) In the facts of the case we find that the prosecution has led credible evidence in respect of establishing strong circumstance that, the appellant being the husband was in the house during night time along with his wife. The appellant poured kerosene and set the deceased on fire. The deceased sustained 100% burn injuries. The defence taken by the appellant was highly improbable. In the statement made under section 313 of the Code of Criminal Procedure, the appellant did not explain circumstances resulting in death of the deceased except stating therein that he was falsely implicated. The appellant was seen running away. Soon after the prosecution witnesses reached the spot they caught the 13 Cri. Appeal No.661 of 2009. appellant. In the facts of the case we find that the prosecution has discharged its burden but the appellant has failed to discharge his burden. 19) We find that the trial Court has rightly appreciated the facts of the case and held the appellant guilty for offence charged with. 20) There is no merit in the appeal. The appeal is dismissed. Professional fees of the counsel appointed as amicus curiae for the appellant be paid as per rules. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl