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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1041 OF 2015
Santosh Rajaram Wankhede, Aged about 32 years, R/at Kalamadare, Tal.Chandwad, Dist.Nashik.
At present Marine Road Central Prison ...Appellant vs.
The State of Maharashtra
(Through Chandwad Police Station) ...Respondent
Mr.Aniket Vagal for Appellant.
Mr.S.S. Hulke, APP for State.
JUDGMENT
2. The case of the prosecution in brief is as under:
(I) On 16.2.2003 marriage of deceased Manisha was performed with accused at Ozar. Out of the said wedlock, deceased had begotten three children. For two years, they cohabited well. However, thereafter accused used to ill-treat and harass the deceased as she was suspecting about his adulterous relations. Many a times accused used to beat the deceased under the influence of liquor and when the second son of deceased was three months old, the accused administered poison to the deceased. She was admitted in the hospital and thereafter, she started residing with her parents.
(II) On 19.7.2011, a written undertaking in the form of
Compromise Deed was given by the accused that he would not harass the deceased and thereafter the deceased was sent to her matrimonial house. They cohabited well for six months and thereafter, again, the accused started abusing and beating the deceased under the influence of liquor.
(III) On the date of incident, i.e. on 6.7.2013 at about 7.00 p.m., while deceased was cooking, accused poured kerosene on her and set her on fire. The fire was extinguished by her nephew, Balu Laxman and wife of brother-in-law, Sau Wankhede and the deceased was taken to hospital.
(IV) On the date of the incident at about 8.00 p.m. and 8.30 p.m., complainant received a phone call of his brother-in-law that Manisha is burnt and admitted to Civil Hospital, Nashik. He, along with his wife, went to the hospital and inquired with victim Manisha about the incident. Deceased told them that in the evening when she was cooking, accused poured kerosene on her person from the 5 ltrs. plastic can and set her ablaze and so she was burnt. On the next day, complainant lodged a complaint at Chandwad Police Station. In the intervening night of 6 and 7 July 2013 at about 12.30 a.m., Special Executive Magistrate recorded dying declaration of the victim after obtaining her fitness certificate.
(V) On the basis of complaint, offence came to be registered against the accused vide C.R. No.102/2013 at Chandwad Police Station for the offences punishable under Sections 307, 498-A and 323 of the IPC. Thereafter, spot panchanama was prepared, statements of the witnesses were recorded and statement of the victim was recorded on 9 July 2013. The accused was arrested.
(VI) On 13.8.2013, Section 302 of IPC came to be added as the deceased succumbed to her injuries and the case was committed to the Sessions Court. The trial court after a full-fledged trial, vide the impugned judgment and order dated 20 August 2015 convicted the Appellant under Section 235(1) of Cr.P.C. for the offence punishable under Sections 302 and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- and in default thereof, to suffer further rigorous imprisonment for four months. The Appellant was also convicted under Section 498-A and sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs.2000/- and in default thereof, to suffer further RI for two months.
3. Learned Counsel for the Appellant has assailed the impugned order on the following grounds:
(I) There is discrepancy in the complaint, oral dying declaration at
Exhibit 20, dying declaration recorded by PW 4 ASI Hire and dying declaration recorded by Special Executive Magistrate as the said dying declarations are not identical and are inconsistent to each other.
(II) The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The statement of the son of the accused and the deceased was neither recorded nor examined to prove the case of prosecution despite his presence at the time of the alleged incident.
(III) The main eye witnesses, who extinguished the fire and took deceased to the hospital, were not examined by the prosecution. The omission to examine the witnesses creates doubts about the story put forth by the prosecution.
(IV) The prosecution has failed to prove that deceased was mentally and physically fit to give the statement as there is no certificate on record given by the doctor about the fitness of the victim. Moreover, the prosecution has not examined the doctor who examined the victim prior to recording her dying declaration and as such, the dying declarations are not reliable nor inspire any confidence.
(V) The learned Special Executive Magistrate has put a leading question no. 4 to the victim while recording her statement and the answer to which ought not to have been considered by the learned Judge.
(VI) The Compromise Deed produced on record cannot be considered as Shri Pagar was not a Notary at the relevant time when the Compromise Deed was alleged to have been registered.
(VII) The prosecution has failed to bring on record the motive of the alleged crime as well as failed to prove the spot panchanama.
(VIII) The hands of the accused were also burnt while saving the deceased. The deceased was burnt accidentally due to flare of hearth while igniting the same during such time, the accused was not present. The accused rushed to save the deceased only after the alleged incident and as such he had multiple injuries on his hand.
(IX) The evidence of PW[6] Dr. Bacchav, whereby she deposed in her cross examination that if the hearth is flared while pouring kerosene in the hearth, then injuries mentioned in the post mortem can be possible. Also, MLC papers of Chandwad Sub District Hospital and Suyog Hospital also show that the deceased died while igniting the hearth. The prosecution failed to produce all such papers on record and also failed to examine the medical officer. The injuries of the accused, sustained due to extinguishing the fire of the deceased, were also proved by D.W. 1, Dr. Gadekar.
(X) The learned Judge also erred in holding that “the accused while answering question nos.62 and 66 during recording statement under section 313 of Cr.P.C. has not stated that while pouring kerosene by deceased in the hearth, hearth flared and deceased burnt. But, he replied that he does not know how victim got burnt. Had it been the fact that if while pouring kerosene in the hearth by victim, due to flare she caught fire then certainly accused would have stated the said fact while replying question Nos.62 and 66” and the adverse inference drawn by the learned Judge on the basis of the said findings is against the law and facts on record. The Appellant stated that he had sustained burn injuries when he was trying to extinguish the fire and that it is not expected that the one who was trying to extinguish the fire must know the reason of the fire since there was a possibility that the said person might not be present as and when the incident took place. This important aspect was overlooked by the learned Judge.
4. Thus, learned Counsel for the Appellant has pointed out several errors in the order of the learned trial Judge and submitted that the impugned judgment and order deserves to be quashed and set aside.
5. On the other hand, learned APP submits that, the trial court properly assessed the evidence and was pleased to reach the correct conclusion. Therefore, no interference is called for in the impugned judgment and order. It is submitted that the prosecution has proved two dying declarations and also one oral dying declaration given by the victim to her father. The said dying declarations are in corroboration with the legal evidence and all incriminating circumstances. Learned APP further relied on the reasoning by the trial Judge in the impugned judgment and order and submitted that the said order be confirmed and the appeal be dismissed.
6. We have heard learned Counsel for the Appellant and learned APP appearing for the Respondent State at length. With their able assistance, we have carefully perused the entire evidence so also the findings recorded by the trial court. The prosecution case rests upon one oral dying declaration and two written dying declarations and witnesses examined to prove the said dying declarations. The first oral dying declaration is at Exhibit 20. The father of the victim, Shivram, did file the First Information Report wherein he has made reference to the oral dying declaration given by his daughter Manisha. The relevant portion, which is part of Exhibit 20, reads as under: “ fn- 6@7@2013 jksth eh vks>j;sFks vlrkauk ek>k 'kkyd v'kksd Nckth dksroky jkvks>j;kauh eyk Qksu d:u lkaxhrys dh] efu"kk gh tGkyh vlqu fryk ukfld flOghy gkWLihVy;sFks usys vkgs- vls letY;koj eh o ek>h iRuh o brj ukrsokbZd vls vkEgh rkcMrksc ukfld;sFks ljdkjh nok[kkU;kr xsyks- rsFks xsY;kuarj eqyxh efu"kk fgl ikghys rj rh 80 VDds tGkY;kps rsFkhy MkWDVjkauh vkEgkal lkaxhrys- rsOgk eh eqyxh efu"kk fgl fopkjys dk; >kys rsOgk frus eyk lkaxhrys dh] eh vkt fn- 6@7@13 jksth lk;adkGh 07-00 ok- ps lqekjkal eh Lo;aikd djhr vlrkauk ek>k uojk larks"k gk nk: fiÅu vkyk o eyk Eg.kkyk dh] rq ek>soj vkjksi djrs dh] rq>s nql&;k L=h'kh vuSfrd laca/k vkgs- vls Eg.kqu R;kus ek>s vaxkoj jkWdsyus Hkjysyh dWu vksrqu eyk isVowu fnY;kus R;kr eh tGkyh vkgs- vls frus eyk lkafxrys- ” The said oral dying declaration has been duly proved by the prosecution by examining the father of Manisha.
7. The second dying declaration dated 9 July 2013 is at Exhibit 29. The said dying declaration has been recorded by the Police Sub-Inspector. Upon careful perusal of the said dying declaration, it appears that there is an endorsement of Medical Officer that the victim Manisha was in a fit condition to give the dying declaration. The relevant portion of the said dying declaration for the adjudication of the present appeal reads as under: “ rk- 06@07@13 jksth lk;a- 07 ok- ps lqekjkal eh ek>s jkgkrs ?kjh pqyhoj Lo;aikd djhr gksrh rsOgk ek>s frUgh eqys ?kjh gksrs- rsOgk uojk larks"k jktkjke oku[ksMs gk nk: fimu vkykrsOgk ek>s lkljs;kauh isU'kuph jDde iSls vkys- rsOgk ek>k uojk;kus lkljs;kapsdMwu iSls ?ksrys o rs iSls uo&;kus ?kjkr Qsdys rsOgk eh R;kauk Eg.kkyh iSls rqEgh d'kkyk Qsdrkrrh y{eh vkgs- vls R;kauk cksyyks vlrk R;kauh eyk f'kohxkG dsyh- RksOgk rs Eg.kkys rs iSls ek>s ckikps vkgsr- rqyk dk; ?ks.ks vkgs- rsOgk rs isVysyh pqyhe/ks iSls Vkdr gksrs- rsOgk eh R;kapsdMwu iSls fgldkfoys- eh iSls fgldkfoys rsOgk eyk ekjgk.k d: ykxys- rsOgk ek>k eqyxk ukes vkfnR; o ydh gs le{k gksrs- rs ?kkc:u xsys gksrs- rsOgk ekÖ;k uo&;kus ?kjkrhy Hkjysyh IykLVhdPkh dWue/kwu cqp m?kMwu ek>s vaxkoj jkWdsy vksrys o pqy isVysyh vlrkauk R;kus dkMh isVkowu dkMh pqyP;k vkxhyk ykoqu ek>s vaxkoj tGrh dkMh Vkdyh- R;kr eh Hkktys xsys- eyk isVfoys rsOgk rs nk:ps u'ksr gksrs- ek>k uojk;kaps ckgsj vuSfrd laca/k vlqu eh R;kauk c&;kp osGk cksyr vls- ijarq rs eyk usgeh udkj n;k;ps- uojk larks"k gk usgeh nk: fiÅu f'kfoxkG d:u eyk ekjgk.k djhr vls- ekxs nksu o"kkZiwohZ R;kauh eyk =kl fnysus rsOgk eh HkkaM.k feVowu ?ksrys gksrs- eyk ek>s iqr.ks ckGq y{e.k oku[ksMs] v'ohuh ckGklkgsc oku[ksMs;kauh eyk fo>foys o uo&;kus eyk /k:u cktqyk Qsdwu fnys gksrs- eyk mipkjklkBh ek>h tko lR;Hkkek ckbZ y{e.k oku[ksMs] y{e.k jktkjke oku[ksMs;kauh pkanoM mi-ftYgk:X.kky;kr mipkjkal vk.kys- rsFkwu flOghy gkWLihVy ukfld uarj lq;ksx gkWLihVy;sFks mipkjkal vk.kys- ek>s uo&;kus ek>s vaxkoj jkWdsy vksrwu dkMhisVhus eyk isVowu nsmu R;kr eh Nkrh] iksVkoj] psg&;koj] nksUgh gkrkauk Hkktys xsys vkgs o uo&;kus eyk ftos Bkj ekj.;kpk iz;Ru dsyk vkgs- R;kckcr fQ;kZn ek>;k pqyR;kus fnyh vkgs- ”
8. It appears that the said dying declaration was read over to Manisha and she stated that the said dying declaration was as per her narration.
9. The third dying declaration was recorded by the Executive Magistrate, which is at Exhibit 39. In order to prove the said dying declaration, the prosecution did examine the said Executive Magistrate, so also the Medical Officer who had given endorsement in the said dying declaration that Manisha was in a fit condition to give the said dying declaration. Upon perusal of the said dying declaration, in relation to question asked by the Executive Magistrate how she had sustained the burn injuries, she stated as under: “ ek>k uojk ukes larks"k jktkjke oku[ksMs eyk usgeh ekjrks- eh pwyhoj pikR;k djhr vlrkauk ek>s vaxkoj jkWdsy vaxkoj Vkdqu tkGys- dkj.k R;kaps ckgsj nql&;k ckbZlkscr yQMs vkgs- rh ukfld;sFks jkgrs rhps uko o iRrk eyk ekfgr ukgh- ”
10. It appears from the concluding paragraph of the said dying declaration that the said dying declaration was read over to Manisha and she stated that the same is as per her narration.
11. Upon perusal of two dying declarations, the evidence of witnesses who recorded the said dying declarations, Medical Officer and all other evidence in connection with the said dying declarations, it is abundantly clear that the Appellant poured kerosene on the person of Manisha and set her ablaze and Manisha died due to severe burn injuries.
12. Insofar as oral declaration to her father is concerned, the same has also been duly proved by the prosecution. Therefore, the conviction recorded by the trial court thereby convicting the accused for the commission of alleged offence is in consonance with the evidence brought on record. However, upon careful perusal of the contents of the dying declaration at Exhibit 29, which is recorded by the Police Inspector, it appears that the Appellant entered in the house under influence of liquor and quarrel between the Appellant and Manisha ensued when the Appellant took money from his father, received by him towards pension amount. Manisha felt that the Appellant should not have taken the said money which was received as a pension amount of father of the Appellant. When Manisha asked the Appellant as to why he had taken the said money from his father, the Appellant started abusing Manisha. He stated that the said money belonged to his father and why Manisha was asking him about the said money. In a fit of anger, the Appellant lifted a can containing kerosene and after opening the said can, poured kerosene on the person of Manisha and set her ablaze. On a plain reading of contents of Exhibit 29, which has been reproduced hereinabove, it is abundantly clear that there was neither premeditation on the part of the accused/Appellant nor there was preparation for such commission of offence. It appears that the incident had taken place in a fit of anger due to quarrel on taking money by the Appellant from his father which Manisha did not like. Therefore, it appears that the accused committed offence in a fit of anger upon a sudden quarrel and the said act committed by the Appellant/accused was without premeditation. In that view of the matter, taking into consideration the aforesaid mitigating circumstances, we are of the view that Exception-4 to Section 300 of the Indian Penal Code applies to the facts of the present case and appropriate conviction would be under Section 304 Part II of the IPC.
13. Hence, the conviction of the Appellant under Section 302 of the IPC is set aside and instead, the Appellant is convicted under Section 304 Part II of the IPC. For the said offence, the Appellant is sentenced to undergo Rigorous Imprisonment of 10 years and to pay fine as ordered by the trial court. In default of payment of fine, to suffer further Simple Imprisonment for one month. Set-off be given as per Rules.
14. The appeal is, accordingly, partly allowed and the same stands disposed of.
15. In view of the disposal of the appeal, the interim application does not survive and the same stands disposed of. (N.J. JAMADAR, J.) (S.S. SHINDE, J.) SANSKRUTI A THAKUR