Smt. Mangala Rajju Patel vs The State Of Maharashtra
2004 Latest Caselaw 151 Bom

JUDGMENT

P.V. Kakade, J.

1. The appellant - original accused No. 2, has preferred this appeal against the judgment and order dated 13.1.1999 passed by the Sessions Judge, Raigad-Alibag, in Sessions Case No. 29 of 1997 wherein she was convicted of the offence punishable under Section 302 of the I.P.C. and sentenced to suffer life imprisonment and to pay fine of Rs. 5000/- in default to undergo R.I. for thirty months. It may be noted that co-accused who was also charged with offences punishable under Section 302 read with 34 of the I.P.C. was acquitted of the said charge. However, the said co-accused was convicted for offence punishable under Section 376 of the I.P.C. and was sentenced accordingly by the Court, however, he has not preferred any appeal against that conviction and, therefore, we are concerned with the appeal filed by the present appellant only who was accused No. 2.

2. The facts giving rise to the case, in nutshell, are thus -

Deceased Rekha Narayan Shetty, was originally hailed from Solapur and PW-1 Purnima was her minor daughter. They both had come to village Kamothe, Tal. Panvel, in the year 1996. Deceased Rekha used to work as maid servant whenever she got the work. One Deepak was residing in their neighbourhood and Rekha became acquainted with him. Accused No. 1 Dinesh was brother of said Deepak and they both asked Rekha Shetty that her daughter PW-1 should marry to first accused Dinesh. About a fortnight prior to the incident, Rekha Shetty and her daughter PW-1 Purnima were taken by the first accused to his room in the locality known as Mal-Dhakka near Panvel railway station and since then they were staying in his room, Rekha used to go in search of job, keeping PW-1 Purnima at the residence of accused No. 1. Taking advantage of her absence, first accused Dinesh raped PW-1 Purnima repeatedly on various occasions. Thereupon Rekha questioned first accused about it when Purnima informed her about the conduct of accused No. 1. Such conduct of accused No. 1 continued inspite of prayers from helpless Rekha. Rekha wanted to leave the place of accused No. 1 with her daughter but he did not allow them to leave. The present appellant - accused No. 2 Mangala was allegedly a keep of accused No. 1 and was leaving in the neighbourhood and used to visit accused No. 1 and also used to threaten Rekha and Purnima with dire consequences if they left the room of the first accused.

On 11.9.1996 at about 10.00 p.m. while Rekha and Purnima were in the room of first accused, first accused omitted and, therefore, PW-1 rushed to the place of second accused to call her as she was told by accused No. 1. When she found accused No. 2 was not in the room, she returned and noticed that her mother was in flames and both the accused were present there merely looking at it. On hearing cries of Rekha, mother of first accused and other neighbours came to the scene and put off the flames by covering Rekha with quilt and blanket. She was removed to Municipal Hospital Panvel in auto-riksha where PW-8 Dr. Vasant Paliwal attended her. After admitting her in the hospital at 10.55 p.m. it was found that Rekha had suffered 75% burns. Dr. Paliwal informed Panvel police station about the incident. PW-10 Shrikant Dharane, P.S.I. received message and visited municipal dispensary, He also summoned PW-7 Vijay Ranade, Spl. Executive Magistrate and requested him to record the statement of Rekha Shetty. Pursuant to the request by police, PW-7 Vijay Ranade went to the hospital with PW-10 Dharane P.S.I. with permission and under the supervision of Dr. Paliwal. He recorded Rekha's statement after obtaining due certificate from Dr. Paliwal that Rekha was in position and was in mentally fit condition to give statement. In the course of her statement, Rekha squarely implicated the appellant to be the culprit who had set her on fire after pouring kerosene upon her. PW-10 P.S.I. Dharane thereafter recorded the statement of Rekha in the Panvel municipal dispensary and obtained thumb mark of Rekha below it. Rekha again consistently implicated accused persons to be the culprit for the impugned offences stating the details of the incident and back ground thereof to the effect that accused No. 1 had raped her daughter several times and thereafter on the day of the incident accused No. 2 poured kerosene upon her and set her on fire. This statement of Rekha was treated as F.I.R. and offence was registered against the accused persons under Sections 376, 307, 506 read with 34 of the I.P.C. at C.R. No. 394 of 1996 of the said police station.

The investigating machinery swung into action in which course panchnama of scene of incident was prepared and several incriminating articles were seized. PW-1 Purnima was immediately sent for medical examination and it was duly conducted statements of several witnesses Came to be recorded. The second accused Mangala came to be arrested initially from New Panvel. In the meantime, Rekha was also shifted in Sion Hospital for further treatment. Accused No. 1 was also apprehended and was subjected to medical examination. On 29.9.1996 injured Rekha succumbed to her injuries at Sion Hospital. Inquest panchnama was prepared and the body was sent for post-mortem examination in due course. C.A. reports and post-mortem examination reports were received by the investigating officer in due course which are filed and are part of the record. On completion of the investigation, the chargesheet was sent to the Court of law. The learned Magistrate committed case to the Court of Sessions.

3. The learned Sessions Judge framed charge against both the accused persons in the aforesaid manner, to which they pleaded not guilty. The defence of the accused persons was that of total denial of any criminal liability. The prosecution led its evidence at length, on which basis the learned Trial Judge came to the conclusion that the present appellant was guilty of commission of murder of Rekha by pouring the kerosene upon her and set her on fire. The learned Trial Judge, however, of the view that accused No. 1 was not guilty of murder of Rekha and, therefore, acquitted him of that charge. However, as noted earlier, accused No. 1 was duly convicted and sentenced for offence punishable under Section 376 of the I.P.C. as it was proved that he had raped minor girl Purnima, however, accused No. 1 has not preferred the appeal. Suffice to say at this stage that, in the course of hearing of this appeal, we have critically perused the entire evidence on record and it is more than clear that there is sufficient evidence against the accused No. 1 for his conviction and consequent sentence for commission of the offence of rape on Purnima.

4. We have heard the learned counsel Miss Sharmila Kaushik for the appellant and Shri Shaikh, learned A.P.P. for the State, at length. We have also perused the entire evidence on record.

5. As can be seen from the record, it is the case based upon two written dying declarations and one oral dying declaration. Besides the testimony of PW-1 the prosecutrix, this evidence also helps to establish that it was the appellant who had poured kerosene upon Rekha Shetty and set her on fire. PW-1 Purnima has narrated details as to how she and her deceased mother came from Solapur and settled at Panvel and came in contact with accused persons. She has further given in details as to how accused No. 1 had subjected her to repeated rape while she was forced to stay with him. Regarding the incident of burning of her mother, she has stated that when accused No. 1 was found vomitting in his room, he asked her to call accused No. 2 and, therefore, she went to call accused No. 2 but she was not there. Therefore, Purnima immediately returned to the room and on reaching the room she found that her mother was put under fire and accused Nos. 1 & 2 were merely watching the burning Rekha. As soon as Purnima entered the room, both the accused saw it and put quilt on Rekha's person but her mother informed her that she was put on fire by both of them when Purnima had gone to the place of Mangala to call her. Therefore, Purnima brought her mother out of the room. She also requested accused No. 1 to take her mother to the hospital but he did not pay any heed. By the time, neighbours had gathered and Rekha was taken to the hospital. Therefore, it is quite clear from the evidence of prosecutrix that it was the appellant who had played major role in killing Rekha. Therefore, the oral dying declaration which has come-forth on record from PW-1 Purnima about the role played by the present appellant cannot be disputed in any manner whatsoever, especially when Purnima is found to be natural witness who was present at the time of the incident and her mother made disclosure to her immediately after occurrence of the incident in presence of both accused persons. Therefore, Purnima's testimony in this regard cannot be doubted and is found to be totally reliable.

6. Evidence of PW-8 Dr. Paliwal shows that he was on duty at municipal dispensary Panvel when Rekha was admitted to the hospital at 10.55 p.m. He has stated that, on her admission, he examined her and informed Panvel police station about the admission of the said case and the police came to the hospital with Magistrate and recorded her statement after he certified that the patient was conscious and was in a position to give statement. The Magistrate accordingly recorded the statement and thereafter he gave endorsement to the effect that the patient was conscious and was in position to make statement vide Exh. No. 31.

The evidence of PW-7 Vijay Ranade, Spl. Executive Magistrate fully supports the medical evidence of Dr. Paliwal. The S.E.M. has stated that on receipt of the information, he accompanied the P.S.I. to the hospital and recorded the statement Exh.31 after ascertaining from the medical officer about the position of the injured whether she was in condition and was in position to give statement. He recorded statement as per the version in Exh.31 and thereafter obtained her thumb mark. Recording process was completed at 11.55 p.m. on that day. Perusal of the said statement gives details as to how accused No. 1 used to rape her daughter Purnima and as to how the incident occurred in which course the present appellant came in the room and accused No. 1 took the kerosene can and poured kerosene upon her and thereafter set her on fire.

This aspect is again supported by the evidence of P.S.I. Dharane who has stated that he took the Spl. Executive Magistrate to the hospital and dying declaration of Rekha was recorded at that time. Further more, he has stated that, after recording the dying declaration by S.E.M. he himself proceeded to record the statement of Rekha, after she was certified to be in a position to speak and give statement. Accordingly he recorded the statement Exh.38 of Rekha in the hospital and put the thumb mark of patient below the same. It is significant to note that the contents of second dying declaration which was also treated as F.I.R. are consistent with the first dying declaration as well as the testimony of PW-1 Purnima while she has narrated the entire incident in her testimony.

7. Therefore, there is no doubt whatsoever that both the dying declarations coupled with oral dying declaration of Rekha to Purnima, are trust-worthy, reliable and more than sufficient to inspire confidence in order to bring home the guilt against the accused appellant.

8. Miss Kaushik, learned counsel for the appellant tried to point but some discrepancies in the evidence of Purnima vis-a-vis the contents of the dying declaration in order to suggest that those discrepancies were sufficient to cloud the testimony of Purnima and, therefore, the entire prosecution version was rendered doubtful because presence of Purnima at the relevant time of the incident becomes doubtful. We have perused the entire evidence on record in that regard and have found that there is absolutely no discrepancy in the testimony of Purnima vis-a-vis the contents of the dying declaration. On the other hand, they are consistent with each other and, therefore, are sufficient to inspire confidence to hold the appellant guilty of murder of Rekha Shetty.

9. For the reasons recorded above, we hold that the reasoning adopted and findings recorded by the learned Trial judge would brook no interference.

In the result, the appeal stands dismissed.