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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.444/2003
State of Maharashtra, through
Police Station officer, Police Station,
Hinganghat, Dist. Wardha. .....APPELLANT
...V E R S U S...
1. Vimal w/o Chatrapati Bhoyar,
aged 34 years, r/o Hinganghat,
Dist. Wardha.
2. Ku. Pushpa d/o Ramchandra Dehari,
aged about 23 years, r/o Wadner,
Tq. Hinganghat, Dist. Wardha. ...RESPONDENTS
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Mr. V. A. Thakare, A.P.P. for the appellant.
Mr. S. A. Choudhari, Advocate for respondents.
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CORAM:- B. P. DHARMADHIKARI AND
V. M. DESHPANDE, JJ.
DATED :- APRIL 6, 2017
J U D G M E N T (Per : V. M. Deshpande, J.)
1. By the present appeal, the appellant/State is challenging an order of acquittal passed by the learned Sessions Judge, Wardha dated 30.09.2002 in Sessions Trial No.151/1997, by which the Court below acquitted the respondents in the present appeal of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code.
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2. We have heard Mr. V. A. Thakare, learned A.P.P. for the appellant/State and Mr.Chaudhari, learned counsel for the respondents in extenso. With their able assistance, we have gone through the record and proceedings as well as the impugned judgment of the Court below.
The respondents were charged by the learned Sessions Judge that on 19.05.2017, they committed murder of Ku. Vaishali by pouring kerosene on her and setting her on fire. Both the respondents abjured the guilt and claimed for their trial. In order to bring home their guilt, the prosecution examined in all 14 witnesses and also relied upon the dying declaration made during the lifetime of Vaishali.
3. According to the prosecution, the respondent no.1-Vimal is wife of Chhatrapati, who is uncle of the deceased Vaishali. Prior to his death, Chhatrapati used to reside in the house of Pandurang Bhoyar at Hinganghat. Pandurang is father of the deceased Vaishali. After death of Chhatrapati, the respondent no.1 continued her residence in the said house along with her sister- Pushpa. According to the prosecution, Vimal was claiming share in the said house on the ground that it was an ancestral one. On that ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 ::: 3 apeal444.03.odt count, there was a dispute in between the respondent no.1 and the family of the deceased.
4. It is further the case of the prosecution that on the date of the incident, stones were pelted at the house of the respondent no.1-Vimal. The said stone struck to the respondent no.2-Pushpa. Both the respondents were suspecting that the stones were pelted by the deceased therefore they used abusive language for the deceased. The deceased Vaishali's mother Pramila (PW1) went there. She was followed by the deceased Vaishali. The respondent no.1 alleged that the deceased had pelted stones. The said allegation was denied by the deceased. According to the prosecution, on that the deceased Vaishali and the respondent no.1-Vimal caught each other's hair. Both the respondents beat Vaishali. The quarrel was pacified. Thereafter, both the respondents went to their house. Then Pramila (PW1) gave a call to Vaishali that she should come to the house by standing on the road.
5. It is further case of the prosecution that in the meantime, both the accused brought kerosene in a pot and threw ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 ::: 4 apeal444.03.odt it on Vaishali. It is further case of the prosecution that while she was passing through a cooking furnace that time Vaishali was struck with a burning stick from the cooking furnace and thereby she was burnt. The fire was extinguished and she was taken to the hospital where her dying declaration was recorded.
6. In all four dying declarations were recorded. They are at Exh.-39, Exh.34, Exh.-37 and Exh.-67. These dying declarations are contending that kerosene was thrown on the person of the deceased. None of the dying declarations state that any of the accused set the deceased ablaze and/or they threw any lighting matchstick on her person. All the dying declarations show that on being wet with kerosene when the deceased was passing through, that time a burnt stick from the hearth stuck to her clothes, resulting into burn injuries to the person of the deceased.
7. Exh.-39 is proved by Gokul Gomkawale (PW8). He is not the scribe. He is a Panch witness to Exh.-39. Perusal of Exh.- 39 shows that it is silent that the contents of the said dying declaration were read over to Vaishali. The scribe of this is also not examined. There is no positive evidence to show that the ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 ::: 5 apeal444.03.odt contents of Exh.-39 were read over to Vaishali and she admits it to be true.
8. Further, Gokul Gomkawale (PW8) was admitted as an indoor patient in male ward. His evidence shows that Vaishali was admitted in a ward meant for women. He has also admitted that no permission was obtained from the Doctor to leave his ward. In that view of the matter, no reliance can be placed on Exh.-39.
9. Exh.-34 is proved by Anandrao Thute (PW6), the Executive Magistrate. Exh.-37 is proved by Haridas Gajbhiye (PW7), the police officer. Whereas, Exh.-67 is proved by Rupchand Kharwade (PW14), the Executive Magistrate. As observed in the preceding paragraphs of this judgment, none of these dying declarations attribute any role that any of the accused threw any ignited matchstick. The panchanama of the spot, where kerosene was poured, is at Exh.-26. The said panchanama does not show that there were any traces of kerosene on the spot of the offence. In our view, the learned Judge of the Court below has rightly appreciated the fact that if the kerosene was thrown on the person of Vaishali at the said place, the kerosene would have ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 ::: 6 apeal444.03.odt fallen on the ground which could have substantiated the case of the prosecution against the accused persons. Further, the presence of Gaffar, Pandurang, Narendra-brother of Vaishali, was established on record. However, they are not examined by the prosecution.
10. The learned Judge of the Court below has rightly appreciated the aspect of kerosene residues on the clothes of the accused persons. The learned Judge has rightly found that the articles were not sealed and they were not carried out in a sealed condition to the chemical analyzer.
11. Further, there is no evidence recorded to show that the respondents were knowing that there are flames in the hearth and the deceased would follow only that path where the hearth was situated. In that view of the matter, it is absolutely clear that the prosecution has failed to prove the guilt of the accused persons.
Perusal of the impugned judgment shows that the view taken by the court below is not perverse one. We find no merit in the present appeal. Hence, we pass the following order. ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 :::
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ORDER
(i) Judgment and order dated 30.09.2002 delivered by
the Sessions Judge, Wardha in Sessions Trial No.151/1991 is maintained.
(ii) Criminal Appeal is dismissed.
(iii) Bail bonds furnished by the respondents are cancelled.
(iv) Muddemal property be dealt with as directed by the trial court, after the appeal period is over.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.) kahale ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:22:34 :::