Murlidhar vs State Of Maharashtra
2002 Latest Caselaw 507 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for murder of his wife by burning and has been convicted of the said charge by learned Additional Sessions Judge, Wardha vide impugned judgment dated 29.1.1997, which is the subject matter of challenge in this appeal.

2. The prosecution case, in brief, is that there used to be quarrels between the appellant and his wife and at some-stage the appellant had tried to push his wife into the well due to which she had gone to her parents' house. The appellant, however, assured the parents of his wife that he would not henceforth assault her. A few days prior to Diwali in the year 1995, there was a quarrel between the appellant and his wife Lata. The reason for the quarrel was the sum of Rs. 400/- kept by the appellant with his wife Lata and the appellant demanded the said amount. His wife returned him Rs. 300/- and told him that she had spent Rs. 100/- for the clothes of the children. The appellant insisted that she should return the said amount of Rs. 100/- as well but since she had not returned the same, the appellant assaulted her. Thereafter, the appellant and his wife went to the field. After return from work, the appellant again picked up quarrel with Lata on account of non-return of Rs. 100/- and told Lata to pick up kerosene can and to pour on her person in case she is from a reputed family. Lata refused to do so, upon which the appellant poured kerosene from the can on the person of Lata and set her on fire. As a result of burning Lata suffered 100 per cent burns and was admitted into the hospital on 22.10.1995 at about 10 to 10.45 p.m. The police had sent requisition to the Naib Tahsildar. On 23.10.1995, at about 1.30. a.m., Naib Tahsildar gave requisition to the Medical Officer for certifying the condition of the patient in order to record the dying declaration. The Medical Officer, after examining Lata, endorsed on the requisition that she was not in a condition to give statement. Subsequently, on 24.10.1995, at about 9.30 a.m., the Naib Tahsildar again gave requisition to the Medical Officer for certifying the condition of the patient. The Medical Officer examined Lata and found that she was in a condition to give the statement. He, therefore, recorded the dying declaration of the deceased who stated as to how she was burnt by the appellant. Besides the dying declaration, the deceased made oral dying declaration to her relations who had arrived in the hospital in the meantime. Lata died due to 100 per cent burns on 25.10.1995.

3. The prosecution had examined 14 witnesses to prove its case. In defence, the accused examined himself and his brother and the stand taken by the appellant was that he was not present in the house at the time of the incident. He was called from the field by his brother (DW-2) and at that time he saw that his wife was burning and he tried to extinguish fire.

4. The Trial Court accepted oral as well as written dying declaration, discarded the defence case and recorded the conviction of the appellant for murder of his wife Under Section 302 of the Indian Penal Code.

5. Learned Counsel for the appellant took us through the evidence on record and has made the following submissions before us.

(i) The first submission advanced before us is that on requisition (Exh. 44), the only endorsement made by the Medical Officer is that the patient is fit to give the statement and the Medical Officer has not certified that the patient was conscious.

(ii) The next submission made before us is that after the dying declaration of the deceased was recorded by the Executive Magistrate, there is no certificate of the Medical Officer that the patient was fit and conscious to make the statement.

(iii) The intention of the appellant was not to kill his wife since he tried to extinguish fire after he was called from the field and that the appellant was not present at the time of incident and in this connection our attention has been drawn to the statement of Preeti (P.W.-5).

6. In view of the above submissions, it is urged before us that the evidence on record creates doubt regarding the involvement of the appellant in the crime and that benefit of doubt be given to the appellant.

7. Learned A.P.P., on the other hand, urged before us that the categorical evidence on record shows that it is the appellant who had poured kerosene and burnt his wife, on account of which she suffered 100 per cent burns resulting in her death. He pointed out that there is evidence relating to oral dying declaration as well as written dying declaration and there is absolutely no reason to disbelieve the witnesses. According to him, the defence theory has been rightly discarded and there is no reason to interfere with the findings of the Trial Court.

8. We have perused the record. We find that there is evidence on record to suggest that there used to be frequent quarrel between the appellant and the deceased and that the appellant used to assault the deceased after consuming liquor. P.W.-2, Leelabai, mother of the deceased, has spoken about this. She also states that once accused pushed Lata in the well after which she went to the house of her parents. However, later on, the appellant assured that he would not assault Lata and took her with him. P.W.-3, Rambhau, who is the father of the deceased, has also stated that once the deceased had thrown Lata into the well. But, later the appellant assured that he would treat her properly and took her with him. Thus, in the background of the incident, frequent assaults were made by the appellant on the deceased.

9. The prosecutiort case is that few days prior to Diwali, the appellant demanded Rs. 400/- which he had given to Lata out of which she returned Rs. 300/- stating that Rs. 100/- were spent on the clothes of the children. The appellant was not satisfied with the explanation and he assaulted the deceased. Thereafter, he went to the field. After return from the field, the appellant again picked up the quarrel on account of non-return of Rs. 100/- and asked her to pick up kerosene can and burn herself in case she came from good family. However, the deceased refused to do so. The appellant picked up kerosene can, poured kerosene and burnt her. The deceased in dying declaration gave details of what had transpired. She was admitted in the hospital on 22.10.1995 at about 10.30 p.m. On 23.10.1995, the Executive Magistrate had given requisition to the Medical Officer certified that she was not in a condition to give statement. Subsequently, on 24,10.1995 at about 9.30 a.m., another requisition was given to the Medical Officer. P.W. 12, Naib Tahsildar, has stated that the Medical Officer had examined the patient and the Medical Officer had also put some questions to ascertain that she was able to give statement, after which the Medical Officer wrote on the requisition that she was in a fit condition to give the statement and thereafter the dying declaration was recorded. The Medical Officer (P.W. 14) Dr. Sangeeta has stated that she had received requisition from the Executive Magistrate and examined the patient and after examination, she found that she was conscious and able to give statement and accordingly endorsement was made. In the light of this evidence, the contention of learned Advocate for the appellant that on the requisition there is no endorsement about consciousness of the patient cannot be given much importance since both Executive Magistrate as well as doctor have stated that the patient was examined by the doctor and it is only after the examination and after the doctor found that the patient to be conscious and able to give the statement, endorsement was made. The Executive Magistrate has stated that the Medical Officer put questions to the patient in order to satisfy whether she was in a position to give the statement. There has been absolutely no challenge to this part of the evidence of the Executive Magistrate (P.W. 12) and Medical Officer (P.W. 14). The Executive Magistrate has then deposed as to what was stated by the deceased. On 22.10.1995, there was a quarrel over the demand of Rs. 400/- : She handed over Rs. 300/- and could not give Rs. 100/-, upon which she was beaten. She also told that her husband poured kerosene on her person from kerosene can and fit the fire, He confirmed the statement (Exh. 45) as the same given by the deceased, upon which he obtained thumb impression of the deceased. He categorically stated that at the time of recording the statement, Medical Officer was present all along and after recording the statement Medical Officer again examined the patient. He further stated that there was nobody present except him, doctor and the patient. The Medical Officer (P.W. 14) also states that she was present near the patient and the Executive Magistrate recorderd her dying declaration. It is no doubt true that she had admitted that after completion of the statement, she did not certify that the same was recorded in my presence. However, there was no challenge to the evidence of either Executive Magistrate (P.W. 12) or Medical Officer (P.W. 14) that the Medical Officer was present during recording of the statement of deceased and in this set of facts, the non-recording of the endorsement at the end of the dying declaration cannot be said to be fatal to the prosecution case. In the light of the evidence of P.W. 12 and P.W. 14 on record, this omission does not in any manner affect the value to be attached to the dying declaration recorded by the Executive Magistrate. In the light of this, we do not find any merit in the submissions made by the learned Advocate for the appellant in respect of the endorsement at the end of the statement of the dying declaration of the deceased recorded by the Executive Magistrate (P.W. 12).

10. It was argued before us that the appellant was not present at the time of the incident and in this connection our attention was drawn to the evidence of Preeti (P.W. 5) as also the defence evidence. Preeti (P.W. 5) is a child witness and she has stated that she did not know about the incident and as such her statement that her father was not present in the house does not have any significance in relation to the incident in question. It was urged before us that according to Preeti (P.W. 5), her father was called by her Uncle and in this connection our attention was also drawn to the defence evidence to the effect that the appellant was called from the field by his brother (D.W. 2). The case of the appellant was that at the time of incident he was working at the distance of about 100 to 150 feet from his house. D.W. 2 brother of the appellant stated that after hearing cries, he came out and then informed the appellant. If there was such hue and cry on account of which D.W. 2 got up from the sleep, it does not sound to reason that the cries would not have been heard by the appellant if he was working at the distance of 100 to 150 feet from the house and in such eventuality he would on his own come to the scene of offence. The story put forward by the appellant that he was not present at the time of the incident is not credible and was rightly discarded by the Trial Court. It may be mentioned here that it was suggested to Rambhau (P.W. 3) that Lata demanded money from the accused for Diwali festival and the accused refused to pay, Lata herself poured kerosene on her person. This suggestion, by itself, suggested the presence of the appellant on the spot. Besides this, in the light of categorical dying declaration of the deceased which was recorded by the Executive Magistrate as also the oral dying declaration made by her to her mother Leelabai (P.W. 2) and Rambhau (P.W. 3), it is not possible to accept the defence version that the appellant was not present at the time of the incident. Both Leelabai and Rambhau have stated that the deceased told them that there was a quarrel in the morning regarding a sum of Rs. 400/- out of which she returned Rs. 300/- and the appellant assaulted her. Later in the evening, the appellant again picked up quarrel with her and poured kerosene on her from kerosene can, after she had refused to pour kerosene on herself as suggested by the appellant. The appellant then set her on fire on account of which she sustained 100 per cent burns and later died in the hospital. Learned Advocate for the appellant has pointed out that Kanta (P.W. 4) has stated that Lata was not in a position to talk. However, in an examination-in-chief, she has stated that when she had asked Lata that how she sustained burns, she told that her husband poured kerosene and set her on fire with kerosene lamp. Subsequently, in the cross-examination, she denied the suggestion put to her that Lata was not in a condition to talk. In view of this not much importance can be given to the stray sentence appearing in the testimony of Kanta that Lata was not in a position to talk. The evidence of witness has to be read as whole and has to be appreciated as a whole and not much importance can be given to stray sentence here and there. There is overwhelming evidence on record to show that the deceased was conscious and able to give statement.

11. Learned Advocate for the appellant has also urged before us that the appellant had no intention to kill and he tried to extinguish fire. We do not find any merit in this sxibmission since not only the appellant first exhorted Lata to burn herself by pouring kerosene on her person but when she refused to do so the apprellant not only poured kerosene but lit the fire with the kerosene lamp which resulted in 100 per cent burns. In such eventuality, even if some attempt was made by the appellant to extinguish fire, it does not enure to the benefit of the appellant.

12. In the light of the categorical evidence of written dying declaration as well as oral dying declaration and the circumstances on record, we do not find that any case whatsoever has been made out for interference in the conviction and sentence imposed on the appellant by the Trial Court. The conviction and sentence imposed on the appellant is, therefore, upheld and the appeal is hereby rejected.