1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 612 OF 2008 Latif Chandbhai Bagwan, Age : 52 years, Occu.Nil, R/o Newasa (Bk), Tq. Newasa, Dist. Ahmednagar ..APPELLANT (Orig. Accused) VERSUS The State of Maharashtra ..RESPONDENT Mr S.J. Salunke, Advocate (appointed) for the appellant; Mr D.R. Kale, A.P.P. for the respondent. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 15th September, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) 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 stipulation of undergoing simple imprisonment for one month, by the District Judge-1 and Additional Sessions Judge, Shrirampur, by judgment 2 dated 21.4.2008, in Sessions Case No.46 of 2007, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.2 Gangadhar Auti, an A.S.I. attached to the Shrirampur City Police Station, received a memo from the Medical Officer of the Kamgar Hospital on 29.5.2007, at about 5.15 a.m. at Exh.25. The aforesaid memo at Exh.25 informed the police station about the admission of injured Rajjakbhai with history of burns caused by the present appellant. Accordingly P.W.2 A.S.I. Auti reached the hospital and contacted the Medical Officer P.W.5 Dr. Ravindra Jagdhane and requested him to ascertain if injured Rajjakbhai was in a condition to give a statement. Accordingly, P.W.5 Dr. Jagdhane made the endorsement about the fitness of injured Rajjakbhai and thereafter statement of Rajjakbhai came to be recorded in the presence of the Medical Officer. The aforesaid statement was read over to the injured and his thumb impression was obtained. He accordingly returned back to the police station and issued a requisition to the Taluka Executive Magistrate at Exh.27 for recording the dying declaration of injured. P.W.6 Head Constable Vilas Khedkar, who was attached to the Newasa Police Station as the Head Constable received copies of the statement of Rajjakbhai recorded by P.W.2 Gangadhar at Exh.26. On the basis of the said statement, P.W.6 Head Constable 3 Khedkar registered an offence and handed over further investigation to P.W.7 P.S.I. Medhe. Meanwhile P.W.2 A.S.I. Auti received a requisition at Exh.28 requesting for recording the statement of injured Shabana w/o Khalil Bagwan, daughter of injured Rajjakbhai. He accordingly issued a memo at Exh.29 to the Taluka Executive Magistrate for recording the statement. 3. P.W.3 Laxmikant Badve, who was working as the in-charge Naib Tahsildar received a requisition from P.W.2 A.S.I. Auti for recording the dying declaration of Rajjakbhai and accordingly proceeded to the Sakhar Kamgar Hospital and contacted P.W.5 Dr. Jagdhane and requested him to ascertain the condition of injured Rajjakbhai. Accordingly, the Medical Officer opined that injured Rajjakbhai was in a fit condition to give his statement and accordingly the dying declaration of Rajjakbhai came to be recorded by P.W.3 Shri Badve at Exh.34. He states that thereafter he had recorded the statement of P.W.1 Shabana, who was injured, as per the requisition received in that behalf. P.W.7 P.S.I. Medhe, who was attached to the Newasa police station, was entrusted with the investigation of Crime No.143 of 2007 and accordingly visited the scene of the offence and drew the scene of the offence panchnama in the presence of witnesses at Exh.39. From the scene of the offence certain articles came to be seized including the sample of kerosene, mixed soil and control soil. The aforesaid articles came to be deposited with the Muddemal Clerk in the police station. It appears that on 30.6.2007 4 injured Rajjakbhai succumbed to his injuries and accordingly the inquest panchnama came to be drawn at Exh.40. The dead body of Rajjakbhai was referred for post mortem and post mortem on the dead body of deceased Rajjakbhai came to be conducted by the Medical Officer of the Shrirampur Municipal Dispensary, Shrirampur. The Medical Officer opined that deceased Rajjakbhai had sustained 96% burn injuries and cause of death of deceased Rajjakbhai was hypovolemic shock due to 96% burns. The post mortem report is at Exh.41. The seized property came to be referred to the Chemical Analyser and upon completion of investigation a charge-sheet against the appellant/accused came to be filed. 4. On committal of the case to Court of Sessions, charge vide Exh.9 came to be framed against the appellant for offence punishable under section 302 and 307 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses. The Trial Court accepted the evidence as tendered by the prosecution and found that the prosecution had proved the offence under section 302 of the Indian Penal Code beyond reasonable doubt and accordingly convicted and sentenced the appellant. The Trial Court, however, acquitted the appellant for an offence punishable under section 307 of the Indian Penal Code. 5 5. At the request of the appellant, who was unable to pay the professional charges of the Lawyers appointed by him, we had appointed Advocate Shri S.J. Salunke, learned Counsel to represent the appellant in this appeal before us. We are impressed by the efforts taken by Shri Salunke in arguing the present appeal. 6. In order to effectively deal with the submissions advanced before us by the learned Counsel appointed on behalf of the appellant and the learned A.P.P. for the respondent, it would be useful to advert to the evidence of the prosecution witnesses. 7. P.W.1 Shabana, a daughter of deceased Rajjakbhai and a solitary witness to the incident, states that she was married in the year 1996 and was residing at the house of her father on the day of the incident i.e. on 29.5.2007 as she along with her husband and children had come to the village of the deceased due to vacation. She states that on 29.5.2007 she was asleep on the terrace along with her family members, her mother and brother and at about 2.30 a.m. in the morning she was awakened on account of hearing a noise of quarrel between her father deceased Rajjakbhai and the appellant. She states that there used to be frequent quarrels between deceased and the appellant as the appellant was demanding money from the deceased and whenever deceased was refusing to give the money, the appellant used to abuse him. On hearing noise of the quarrel, she awoke and noticed the appellant 6 holding a plastic can containing kerosene. The appellant/accused poured kerosene on deceased, his real brother and set the deceased ablaze by igniting a match stick. The clothes on the person of deceased caught fire on account of which he sustained burns. When P.W.1 Shabana tried to extinguish the flames, she too sustained burns on her right hand. Thereafter her brother P.W.4 Javed and her husband doused the flames and shifted injured Rajjakbhai to the Sakhar Kamgar Hospital at Shrirampur in a Maruti van. She states that on the next day i.e. on 30.5.2007 her father succumbed to the injuries sustained by him. In the cross-examination she has admitted not to have stated that the appellant/accused was abusing her father whenever her father refused to give the money. The Trial Court has noted that the omission is only in respect of "abuses". She has admitted not to have stated in her previous statement that she had arrived at the house of her father fifteen days prior to the incident for holidays. She has also not stated in her statement that she was awakened on hearing the noise of the quarrel between her father and the accused. She had also not stated in her previous statement that initially she proceeded ahead on hearing the noise of the quarrel and that her mother, sister, brother and husband followed her. She has admitted that the house of accused is at a distance of 2 to 3 houses from the house of her father. She has admitted not to have noticed any other person when she came in front of her house. She has also admitted to have witnessed the quarrel from the terrace where she was sleeping and thereafter descending the stair case and going near her father. She 7 has admitted not to have stated that when she had intervened in the quarrel a small quantity of kerosene had fallen on her hand due to which she had sustained burns. She has denied the suggestion that her father and the appellant were grappling with each other. She has denied the suggestion that on account of a burning torch she had inflicted injuries to the appellant and in that process the clothes of the deceased had caught fire and he had sustained burns. 8. P.W.4 Javed, brother of P.W.1 Shabana also states about being awakened at about 2.00 to 2.30 a.m. in the morning on hearing the commotion. He states that Shabana proceeded ahead while he followed her. When he had gone near his father, the appellant had poured the kerosene and thereafter he lit the match-stick setting the clothes of deceased Rajjakbhai ablaze. He states that Shabana intervened and thereafter sustained burns on her hand. He states that water was poured on the flames and thereafter deceased Rajjakbhai was shifted in a Maruti van to the Kamgar hospital. He states that on the next day his father succumbed to the injuries. In cross-examination he has admitted that there was sufficient light at the scene of the incident. He has further admitted not to have stated that his sister Shabana had reached the scene of the incident prior to him and that when he reached there he saw the accused holding a plastic can in his hand. He states that he could not tell the duration of the quarrel between his father and the appellant. 8 9. P.W.5 Dr. Ravindra Jagdale, a Medical Officer attached to the Sakhar Kamgar Hospital since last 19 years, states about the admission of injured Rajjakbhai on 29.5.2007 at 3.30 a.m. He states that he recorded the history narrated by the patient and injured Rajjakbhai disclosed that he had been burnt by Latifbhai Chandbhai, i.e. the appellant at 2.30 a.m. He states accordingly the police were informed by memo at Exh.25. He states about the recording of the dying declaration by P.W.2 A.S.I. Auti at Exh.26 and the dying declaration at Exh.34 recorded by P.W.3 Shri Badve. He states about injured Rajjakbhai succumbing to 96% burns sustained by him. He states about examining injured Shabana and issuing certificate at Exh.37 recording the burns sustained by her. 10. Nothing of importance has been elicited in the cross-examination. The medical papers at Exh.38 disclose that history was given by injured Rajjakbhai as well as by Anis Latif Bagwan, son of the appellant and by one Khalil Kadar Bagwan, son-in-law of injured Rajjakbhai. 11. Mr Salunke, learned Counsel on behalf of the appellant has urged before us that P.W.1 Shabana cannot be relied upon in the light of the fact that her conduct is most unnatural as no complaint had been lodged either by P.W.1 Shabana or P.W.4 Javed in respect of Rajjakbhai. It is further stated that all the relatives of Rajjakbhai were present at the 9 scene of the offence, yet none intervened in the quarrel to save Rajjakbhai. It is further urged before us that in the light of the omissions brought on record in the testimony of P.W.1 Shabana, no reliance whatsoever can be placed on her testimony. The learned A.P.P. has repelled the aforesaid grounds and has urged that P.W.1 Shabana is a natural witness on whom reliance can be placed. 12. The residents of the house of Rajjakbhai were awakened at 2.30 a.m. in the morning. From the terrace P.W.1 Shabana noticed a quarrel between the appellant and her father deceased Rajjakbhai. She states that by the time she descended by the stair-case to the scene of the offence, the appellant had poured kerosene and had set Rajjakbhai on flames. She claims to have intervened in order to save deceased Rajjakbhai and had accordingly sustained burns on her hand which are evidenced by the certificate at Exh.37 issued by Dr. Jagdhane (P.W.5). Thus, according to us the conduct of P.W.5 Dr. Jagdhane cannot be lebelled as that of unnatural behaviour. She had been awakened on hearing the noise of the quarrel and had immediately rushed down and had intervened in order to save her father and in the process had sustained the burns. The entire object of the children of injured Rajjakbhai was to shift him to the hospital and which they accordingly did and admitted him in the hospital at 3.30 a.m. Obviously, no report came to be lodged. However, immediately statement of Rajjakbhai came to be recorded at Exh.26, on the basis of which the offence came to be 10 registered. The priority of P.W.4 Javed, son of the injured Rajjakbhai was to ensure that prompt and efficient medical treatment is made available for treating the injuries sustained by Rajjakbhai. He claims to have been in the hospital for the entire period during which Rajjakbhai was admitted in the hospital. In such circumstances, therefore, according to us the fact that neither P.W.1 Shabana nor P.W. 4 Javed lodged a report immediately would be fatal to the case of the prosecution. 13. Shri Salunke, learned Counsel for the appellant then urged before us that as per the documents submitted by the Investigating Officer at Exhs.50, 51 and 52 the appellant/accused had sustained injuries. The document at Exh.50 is signed by the Medical Officer of Rural Hospital, Newasa, District Ahmednagar. It speaks about some assault on the appellant on the history being given by the appellant. It states about examination of the appellant on 29.5.2007, at 10.20 a.m. The other document refers to the injury over the scalp. The injury certificate of the appellant is at Exh.52. It states about an abrasion on the left parietal area of the scalp, swelling with contusion on the left forearm, contusion on lower chest and burn on right forearm anteriorly and 2 or 3 scratch marks on right forearm anteriorly . The appellant in his statement under section 313 of the Code of Criminal Procedure has taken a defence that on 28.5.2007 at about 9.00 to 10.00 p.m., i.e. on the previous evening there was a quarrel between him and his son in front of the house of deceased Rajjakbhai and he had been assaulted by the 11 husband of Shabana and by his son Anis. Thereafter at about 10.30 p.m. he had gone to his house, taken his dinner and along with one friend Chandu Jaygude had gone to the Khandoba temple. In the meantime his brother Rajjakbhai had brought mangoes in the rickshaw and on account of darkness had lit a torch and in the light of the torch was removing mangoes from the rickshaw. He states that his brother Rajjakbhai came to know that he was sitting in the temple. At that time his son Anis and P.W.4 Javed had come to the temple and at that time his son Anis and P.W.4 had called him near the rickshaw and his brother deceased Rajjakbhai started assaulting him. He states that P.W.1 Shabana was holding the torch and she assaulted the appellant by the torch, as a result of which he sustained an injury to his right hand. He states that his brother Rajjakbhai also assaulted him on his head by an iron rod and, therefore, sustained a bleeding injury. He states that when he had attempted to run away, P.W.1 Shabana had thrown the torch on account of which he sustained burn injuries and thereafter he went to the Newasa police station at 3.15 in the morning and had lodged a report there. He states that thereafter he was examined by the Doctor at Primary Health Centre. The aforesaid defence, according to us, is a figment of imagination of the appellant. The aforesaid defence was not put to P.W.1 Shabana nor was it put to P.W.4 Javed. There is nothing on record, apart from the fact that when the appellant was examined on 29.5.2007 at 10.00 a.m., the appellant had been found to have sustained certain injuries. There is no nexus established between the injuries and 12 the defence as taken by the appellant. Accordingly, no foundation has been laid in the cross-examination of the witnesses to probablize the defence of the appellant. 14. Upon consideration of the evidence of the prosecution, according to us the prosecution has established the offence against the appellant beyond reasonable doubt. The conviction of the appellant for offence punishable under section 302 of the Indian Penal Code, therefore, needs no interference. The appeal, therefore, being without merit is being dismissed confirming his conviction and sentence. We, however, wish to place on record our appreciation for the efforts of Shri Salunke in arguing the present appeal. We accordingly quantify the fees payable to Shri Salunke at Rs.5,000/-. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/cria612.08