drp {1} Cri. Appeal No.279/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.279 OF 2010 Amol s/o Subhash Tapse APPELLANT Age-30 years, Occ-Nil R/o Kolhar Bk. Tq-Rahata, Dist-Ahmednagar VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellant Mr. N.R.Shaik, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 29 th June 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, who stands convicted for an offence punishable u/s 302, 498A and 323 of the Indian Penal Code, and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/-, in default to undergo SI for 6 months for the first offence, to suffer RI for one year and to pay a fine of Rs.1000/-, in default to drp {2} Cri. Appeal No.279/2010 suffer SI for 6 months for the second offence and sentenced to suffer SI for 6 months and to pay a fine of Rs.500/-, in default to undergo further SI for one month for the last offence, by Additional Sessions Judge, Kopergaon, vide judgment and order dated 09.03.2010, rendered in Sessions Case No.10/2007, by this appeal, questions the correctness of his conviction and sentence. 2. Certain facts, which are germane to the decision of this appeal, may briefly be stated thus - a) On 30.05.2006, after receipt of Memo from Pravara Hospital, Loni, PW-5, ASI Parshuram, on instructions of his superiors, had gone to Pravara hospital, where, after it was certified by the medical officer that Yogita Tapse, who had sustained burn injuries, was in a fit condition to give statement, had recorded her statement (Exhibit-63). On the basis of the said statement an offence at Crime No.55/2006 came to be recorded u/s 307, 323, 498A, 504 and 506 of the Indian Penal Code against the appellant. b) Investigation of the said crime was entrusted to PW-6 Motiram Jadhav, who, on 31.05.2006, had visited the spot of the offence and drew spot Panchanama (Exhibit-49). At the time of drawing of the scene of offence Panchanama, one plastic can with residue of liquid substance like kerosene, match box, two burnt match sticks and some pieces of burnt drp {3} Cri. Appeal No.279/2010 sari and clothes came to be seized. c) Statements of certain witnesses were recorded by the police during the investigation. Mayur, son of victim Yogita & the appellant, had also sustained burn injuries and hence he was also admitted in the same hospital. On 01.06.2006, Mayur succumbed to the burn injuries. Thereafter, inquest Panchanama (Exhibit-51) came to be drawn on the dead body of Mayur and the dead body was sent for postmortem examination, which was conducted and PM report is at Exhibit-53. d) On 04.06.2006 Yogita also succumbed to the burn injuries. After carrying out the inquest Panchanama (Exhibit-52), the dead body of Yogita was sent for Postmortem examination, which was conducted and the report of the same is at Exhibit-54. Thereafter, section 302 of the Indian Penal Code came to be added in the crime No. 55/2006. e) On 09.06.2006, the seized property was sent to Chemical Analyzer. During the investigation, statements of relatives so also certain other witnesses came to be recorded. After Mayur and Yogita expired, supplementary statements of the witnesses came to be recorded. On receipt of the CA report and further to the completion of the investigation, drp {4} Cri. Appeal No.279/2010 charge sheet came to be submitted before the JMFC, Rahata. f) On being committal of the case to the Court of Sessions, Trial Court framed charge (Exhibit-42) against the appellant for an offence punishable u/s 302, 498A, 323 and 504 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried. Prosecution, in support of its case, examined 6 witnesses. Defence of the appellant was that Yogita and Mayur had sustained accidental burn injures. According to the appellant Yogita was short tempered and adamant in nature and he is not responsible for the burn injuries sustained by Yogita and Mayur. Appellant has examined no one in support of his defence. On appreciation of the evidence on record, trial court convicted the appellant and sentenced him as stated above, however, acquitted him for the offence punishable u/s 504 of the Indian Penal Code. 3. Conviction of the appellant is based on the dying declaration recorded by PW-5 ASI Parshuram (Exhibit-63) so also the oral testimony of PW-1 Ashok, father of the deceased Yogita and PW-3 Balasaheb, maternal uncle of deceased Yogita, before whom Yogita had made oral dying declaration. Conviction of the appellant is also based on the medical evidence so also the CA report at Exhibit-72, coupled with the circumstantial evidence about the facts noticed in the spot Panchanama. drp {5} Cri. Appeal No.279/2010 4. In order to effectively deal with the rival submissions advanced before us by learned counsel for the appellant and learned APP, it would be useful to advert to the material evidence on record. 5. The appellant has admitted the Inquest Panchanama conducted on the dead bodies of both the deceased (Exhibit-51 and Exhibit-52). The appellant has also admitted the Postmortem reports in respect of the postmortem conducted on the dead bodies of Mayur and Yogita (Exhibit-53 and Exhibit-54). Inquest Panchanama (Exhibit-51 and Exhibit-52) disclose that death of Mayur and Yogita caused due to sustaining burn injuries. Postmortem reports (Exhibit-53) indicate that Mayur had sustained 79% deep burn injuries and his death is caused due to shock due to burn injuries. Postmortem report (Exhibit-54) indicates that Yogita had sustained 67 % superficial deep burns and cause of her death is shown as cardio respiratory arrest due to septicemic shock due to burn injuries. Considering the nature of injuries found on the person of both the deceased, there cannot be duality of opinion that death of Mayur and Yogita are unnatural, due to burn injuries. Now, it is necessary to consider as to whether the said burn injuries were accidental, as suggested by the appellant or homicidal as claimed by the prosecution. 6. It is in the evidence of PW-5 ASI Parshuram Bhand drp {6} Cri. Appeal No.279/2010 that on 30.05.2006 as per instructions of his superiors, he had been to Pravara hospital, where, after it was certified by the medical officer that Yogita was fit to give her statement, he had recorded her dying declaration (Exhibit-63), He has proved the contents of the dying declaration in his evidence. He has deposed that victim Yogita had disclosed to him that in the night of 29.05.2006, the appellant came in drunken condition and started abusing her by suspecting her character and also assaulted her. In the morning, while she was in toilet, the appellant had latched the door from outside and had opened the same only after her repeated requests. On questioning about why she was locked inside the toilet, appellant got annoyed and started abusing her and also threatened to kill her. At about 7.55 a.m. while Yogita was breast feeding Mayur and Mayur was in her lap, appellant poured kerosene on her and Mayur and set both of them ablaze. As she caught fire, she rushed towards bathroom and poured kerosene on her person. At that time appellant also followed her and also sustained burn injuries. Thereafter, she started shouting for help. Hearing her cries neighbours, including Nalini rushed to her and extinguished the fire. Thereafter, her father in law and brother in law came and shifted her to Pravara Hospital. Though this witness is cross examined at length, yet other than the fact that the appellant was also admitted in the Civil Hospital, nothing of significance has been brought on record to discard his testimony. 7. It transpired from the evidence of PW-1 Ashok, father drp {7} Cri. Appeal No.279/2010 of the deceased, that during the initial period of marriage, Yogita was treated well, however, subsequently appellant became alcoholic and used to assault Yogita under the influence of liquor and used to suspect her character. Yogita used to inform about the harassment and cruelty meted out to her by the appellant, over phone. He had tried to convince the appellant, but in vain. Due to the harassment, Yogita was brought to her maternal house and she was there for about 8 months. Thereafter, at the request of sister of the appellant and as the appellant assured that he would give up the habit of drinking liquor and would not harass Yogita, she was sent back. After Yogita returned to the appellant, again appellant started harassing and assaulting her. Thereafter, Yogita was brought back to her maternal house, however, Mayur was not sent along with Yogita. After 15 days thereafter, appellant visited his house and informed that Mayur was not keeping well and requested Yogita to come with him. Accordingly, Yogita was sent back with the appellant. Within 8 days thereafter the incident in question occurred. In respect of the incident he states that after receipt of information, he along with his relatives, including brother in law, rushed to the hospital, where on their inquiry, Yogita informed that the appellant had locked her in toilet and after repeated requests had unlatched the door and upon questioning as to why she was locked, appellant got enraged and poured kerosene on the persons of Yogita and Mayur and set them ablaze. When she entered in the bathroom to extinguish the fire, appellant followed her and also sustained burns. She had further drp {8} Cri. Appeal No.279/2010 disclosed that on hearing her shouts neighbours had came to extinguish the fire. Yogita had further disclosed to him that on the previous night the appellant had assaulted her in drunken condition. In his cross examination he states that the deceased and the appellant were residing separately from other family members since about 1 year of the incident. He and his wife were on visiting terms with the appellant and the deceased. Though he states that he had lodged complaints in different police stations in respect of the ill-treatment given to Yogita by the appellant yet did not tender certified copies of the same. Though he further admits that Yogita was a bit short tempered, yet denied that she was unable to control her anger. He admits that the appellant was also admitted in the same hospital as he had also sustained burn injuries. He denied that Yogita was in critical condition and was unable to talk. 8. Evidence of PW-3 Balasaheb, maternal uncle of the deceased is on the similar lines as that of PW-1 Ashok. He also states about noticing parents of deceased in the hospital and disclosure by Yogita in respect of the incident and assault by the appellant due to suspicion. He corroborates and supports the evidence of PW-1 in all respects. Evidence of PW-3 is not shaken in his cross examination. 9. Prosecution had examined PW-2 Shaikh Jahur to prove the spot Panchanama (Exhibit-49). He states about noticing drp {9} Cri. Appeal No.279/2010 kerosene can, burnt pieces of sari, match sticks and finding of kerosene sprinkled in the room. The spot Panchanama specifically mentions that a stove, along with utensils, was kept on a wooden plank of an old sewing machine and the floor of the room was wet with kerosene and was smelling of kerosene. It further mentions that burnt pieces of sari were located in the room as well as till the bathroom and in the bathroom. 10. We have heard learned counsel for the appellant followed by the submissions of learned APP, in the light of the evidence discussed above. Learned counsel for the appellant contended that the evidence of PW-5 ASI Parshuram, which he has given after a gap of many days, reveals that he has deposed the contents of the dying declaration (Exhibit-63) in verbatim, which is unnatural and hence requested to discard the same. It is further urged that as per the dying declaration (Exhibit-63) Yogita only attempted to save herself and did not attempt to save Mayur, also appears to be improbable. It is also urged that the recitals of the dying declaration that appellant followed Yogita in the bathroom to extinguish the fire, indicate that there was no intention on the part of the appellant to set Yogita ablaze, but clothes of Yogita accidentally caught fire while she was preparing tea on the stove. In the premise, it is urged to allow the appeal and acquit the appellant. 11. Per contra, learned APP supported the finding recorded drp {10} Cri. Appeal No.279/2010 by the trial court while arriving at the conclusion that the appellant has set the victim ablaze, as he was suspecting her character. 12. Considering the evidence on record, it is crystal clear that the case of the prosecution is based on circumstantial evidence. It is apparent from the record that at the time of the incident only appellant, deceased Yogita and Mayur were present at the spot. Admittedly, the appellant and the deceased were residing separately from other family members. It is brought in the evidence that prior to the incident, due to harassment and ill-treatment by the appellant, Yogita was residing with her parents and was brought back by the appellant just 15 days before the incident. As pointed out by us above, Yogita and Mayur had sustained burn injuries and now only point which requres consideration is as to whether the said burns were accidental or homicidal. 13. Recitals of the dying declaration (Exhibit-63), recorded by PW-5 ASI Parshuram so also the oral dying declarations made by Yogita before PW-1 Ashok and PW-3 Balasaheb corroborate in all particulars and support each other. Though it is the defence of the appellant that cloths of Yogita caught fire while she was preparing tea on the stove and in that process Mayur also sustained burns, however, the spot Panchanama speaks otherwise. Spot Panchanama (Exhibit-49), which is proved in the evidence of PW-2 Shaikh Jahur, establishes that the stove was kept on the drp {11} Cri. Appeal No.279/2010 wooden plank of old sewing machine and the position of the stove was not at all disturbed. In such circumstances, if the defence of the appellant is to be believed then Yogita must have been in standing position while preparing tea near the sewing machine and in that situation there are no chances of the child of two years to caught fire. Secondly, in that situation, remnants of kerosene would not have found spread on the floor. Ultimately, a hair clip of the deceased, with residues of kerosene, was seized from the spot. CA report (Exhibit-72) clearly establishes that kerosene residues were found on the partially burnt clothes seized from the spot. These circumstances clearly demonstrate that deaths of Yogita and Mayur are not accidental, but the same are homicidal. The defence taken by the appellant is a false defence, which is an additional circumstance, which goes against him. As it is positively proved that Yogita and Mayur expired due to receiving homicidal burns, caused by the appellant, the findings arrived at by the trial court that the appellant is guilty of the offence punishable u/s 302 and 498A of the Indian Penal Code, need to be uphold. 14. The appellant is also convicted for a offence punishable u/s 323 of the Indian Penal Code, in respect of the assault before Yogita was set ablaze. Once it is held that the appellant is guilty of the offence punishable u/s 302 of the Indian Penal Code, then it would be improper to hold that for every act, in furtherance of the same, there shall be separate offence. In the premise, conviction of the appellant for an offence punishable u/s 323 of the Indian drp {12} Cri. Appeal No.279/2010 Penal Code, needs to be quashed. 15. Consequently, the appeal is partly allowed. Conviction of the appellant for an offence punishable u/s 323 of the Indian Penal Code is hereby quashed and set aside. Fine of Rs.500/-, if paid by the appellant, be refunded to him. However, conviction and sentence awarded to the appellant by the trial court for an offence punishable u/s 302 and 498A of the Indian Penal Code is hereby confirmed and the appeal is dismissed to that extent. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel279-10