Balu @ Yeshwant Kisan Khude vs State Of Maharashtra
2004 Latest Caselaw 154 Bom

JUDGMENT

P.V. Kakade, J.

1. The appellant preferred this appeal against the judgment and order dated 16.3.1999 passed by the Additional Sessions Judge, Baramati in Sessions Case No. 36 of 1997 wherein he was convicted for commission of offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer life imprisonment and to pay fine of Rs. 1,000/- in default to suffer R.I. for three months.

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

Deceased Radha Balu @ Yeshwant Khude was the second wife of the accused Balu. Accused had two daughters from his first marriage. Accused performed second marriage with deceased Radha after death of his first wife in the year 1997 when he was serving as watchman with P.W. 6 Mehta, who was running the business of machinery in Kasba are in Baramati. Accused was residing in our house of the show room of said Mehta, which was under construction in the year 1997. accused was residing with his second wife deceased Radha and two daughters It is the prosecution case that the accused was womaniser and had illicit relations with various women, which fact used to give rise for several quarrels between the husband and wife. However, the accused used to bring women at his house also.

3. On 3.5.1997 accused, deceased Radha and their two daughters slept in the said out-house. At about 12 mid-night there was quarrel between accused and Radha about behaviour of the accused and his womanising. In the course of the said quarrel at about 2.00 a.m. on 4.5.1997 accused poured kerosene on Radha and set her on fire. Due to the pain, Radha raised alarm. Thereafter accused made attempt to extinguish the fire by pouring water on her. Thereafter he left the house with his two daughters after hearing hue and cry raised by Radha. The neighbourers gathered there, who doused the fire and removed Radha to nearby hospital early in the morning. Dr. Jagtap was on duty. He recorded history narrated by Radha and admitted her as indoor patient in the hospital. Police were duly informed. In pursuance of the information the police visited the hospital early in the morning of 4.5.1997. P.S.I. Incharge made inquiry with Dr. Jagtap about state of health of Radha and Dr. Jagtap certified that patient is in condition to give statement. Accordingly, police officer recorded statement of Radha. In earlier history given to Medical Officer as well as subsequent statement given to the Police Radha squarely implicated the accused person to be the culprit, who had poured kerosene on her and set her on fire. On the basis of the second statement made by Radha the offence was registered against the accused under Section 307 of the Indian Penal Code at C.R. No. 35 of 1997.

On the same day at about 4.00 a.m. P.W. 2 Bhoite, Executive Magistrate, visited the hospital on the requisition letter given by the police and made inquiry with Dr. Jagtap about the fitness of Radha to give statement. After certifying the condition of Radha to give statement by Doctor, the Special Executive Magistrate recorded the dying declaration of Radha, in which course she attributed the authorship of the crime to her husband. On 4.5.1997 Dr. Jagtap referred the patient to Sasoon Hospital, Pune for further medical treatment. However, Radha succumbed to her injuries in the hospital. The offence against the accused was covered into Section 302 of the Indian Penal Code along with other counts. The inquest Panchanama was prepared and body was sent to post-mortem examination. In the meantime the investigation commenced, in which course the Panchanama of scene of incident was prepared and incriminating articles were seized. Those articles were sent to Chemical Analyser, whose report was received and is part of the record. The statement of various witnesses came to be recorded and on completion of the investigation and charge-sheet was sent to the Court of law. The learned Magistrate committed the case to the Court of Session.

4. The learned Additional Sessions Judge framed the charge against the accused for offence under Section 302 of the Indian Penal Code, to which accused pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. It was also sought to be suggested that it was a suicide and accused in fact was tried to dowse the flames and in which course his hands were also burnt. The prosecution led its evidence at length. On which basis the learned Trial Judge came to the conclusion that it was the case of homicidal burn and the overt act squarely attributed to the accused and, therefore, the accused was convicted and sentenced in aforesaid manner.

Hence the appeal.

5. We have heard Mr. M.R. Deshpande, the learned Counsel for the appellant and Dr. F.R. Shaikh, the learned A.P.P. for the State at length. We have also perused the entire evidence on record.

6. As can be seen from the record it is a case squarely balanced on the evidence of two dying declarations which was recorded of deceased Radha. P.W. Bhoite, Special Executive Magistrate, has stated that he was summoned by Baramati Police at about 3.45 to 4.00 a.m. on 4.5.1997 and accordingly he visited the hospital and contacted Dr. Jagtap on duty. Dr. Jagtap showed him the patient. Dr. Jagtap also certified the patient to be conscious and in fit condition to give statement. Accordingly, he recorded his certificate on paper and thereafter the SEM proceeded to record dying declaration Exh. 20. In the course of her dying declaration Radha stated that her husband was womaniser and used to bring women from outside to her home and she opposed the same, therefore, he poured kerosene upon her and set her on fire. She also stated that her husband was under influence of alcohol at the time. She has also expressed her complaint in that regard against her husband. After recording of the said dying declaration the Special Executive Magistrate obtained her thumb mark and attested the same. The Medical Officer then again certified to the effect that the patient was fully conscious before the during the time when she gave the statement and it was completed at 4.30 a.m.

The testimony of Dr. Jagtap further supports in proof of the fact that the SEM had recorded the dying declaration as per law and Dr. Jagtap has also proved his both certificates on the said dying declaration, in proof of the fact that Radha was in conscious and fit condition to give statement throughout the process of recording the same.

This evidence is again supported by the evidence of P.W. 8-P.I. Sinnarkar, who has stated that in the meantime he reached the hospital and obtained permission from Dr. Jagtap and after examining the patient Dr. Jagtap informed him that the patient was in fit condition to record her statement and accordingly P.I. proceeded to record her statement. After recording the said statement he read over the contents of the same to Radha and obtained her thumb mark thereon in presence of Medical Officer and again certificate of the Medical Officer was obtained on the said complaint. It is to be noted that the statement Exh. 37 was also treated as FIR, on which basis the offence came to be registered against the accused. The contents of the said statement also clearly how, in details, the behaviour of the accused and his womanising habit which was the reason for consistent quarrels as well as the quarrel which ensued just prior to the incident. In the course of the incident, according to Radha, accused poured kerosene upon her and set her on fire. When she raised alarm he tried to douse the flames by pouring water and thereafter went away with his two daughters. Then the neighbours had gathered and finally she was taken to hospital by them. In our considered view, both these dying declarations are not only trustworthy and sufficient to inspire confidence, but are also found to be corroborated by the evidence of in dependent witnesses like the Medical Officer as well as the Special Executive Magistrate, who had no animosity against the accused to implicate him in any offence falsely, therefore, the evidence of dying declaration is sufficient to hold that the accused was the author of the crime in this case.

7. Mr. Deshpande, the learned Counsel for the appellant, vehemently urged that there is a possibility that it was suicidal case because it was the accused who tried to douse the flames by pouring water over burning Radha. Therefore, it was submitted that the accused would not have tried to douse the flames if he had committed the crime. We have given our anxious consideration to this possibility and have come to the conclusion that in all certainty, the case was not of suicide but it was clear homicidal death. Firstly it must be noted that if really Radha and committed suicide and accused had tried to douse the flames and in the process he suffered injuries, then he would not have left Radha in burning condition. The evidence on record shows that he tried to douse the flames of Radha only because she raised alarm, but thereafter he took his two daughters and went away. This was totally unnatural conduct on the part of the accused, if the case was that of suicide. In all 'preponderance of probabilities, had it been a case of suicide, he would have not only doused the flames but would have taken Radha immediately to the hospital instead of running away with his two daughters. Secondly, the statement made in dying declarations are sufficient to show the overt act of the accused. If Radha wanted to implicate the accused falsely in the case, she would not have stated that he also tried to douse the flames. Therefore, both the statements made by Radha ore nothing but candid version of what actually happened at the relevant time, which in our view is sufficient to bring home the guilt against the accused.

8. For the reasons recorded above, we hold that the prosecution evidence is sufficient to establish the guilt of the accused for the offence of murder of Radha, and, therefore, in the result the appeal stands dismissed.