Ramakant Gangaram Gavand vs The State Of Maharashtra
2004 Latest Caselaw 282 Bom

JUDGMENT

Kakade, J.

1. The appellant has preferred this appeal against the judgment and order dated 4.7.2000 passed by the Addl. Sessions Judge, Raigad-Alibag in Sessions Case No. 143 of 1998 wherein he was convicted for commission of the offence under Section 302 of the I.P.C. and was sentenced to suffer life imprisonment and to pay fine of Rs. 3000/- in default to suffer R.I. for six months.

2. Facts giving rise to the case, in brief, are thus -

Deceased Anita Ramakant Gavand was married to accused in the month of May, 1997. She was his second wife. It is alleged that, on 11.3.1998 at about 8.00 p.m. the accused came to home and the deceased Anita served meals to him but he started abusing her and demanding her ornaments and clothes. The accused was under influence of alchohol and started assaulting her and continued to assault her up to 2.00 a.m. On 12.3.1998 accused left the house and came back at 11.00 a.m. At that time, the deceased asked the accused as to why he was spending the amount of instalment of sale proceed of their land. Thereupon the accused again started abusing her in filthy language and assaulted her with fist blows and kicks. Then the accused closed the front door and as the deceased was inside the room of the house, the accused fallowed her and picked up plastic can containing kerosene and poured it on the deceased and then set her on fire with match-box. The deceased started shouting for help and accused extinguished the fire after she was completely burnt. The accused, it was stated by the deceased, was standing quietly at one side till she got burnt completely and thereafter poured water upon her to extinguish the fire and then opened the door of the room. Neighbours and deceased Anita's brother came on the scene and moved her to Koproli dispensary but doctor was not available there, hence she was taken from there to Indira Gandhi Hospital at Uran from where she was referred to J.J. Hospital, Bombay, where she was admitted for medical treatment. At that time, P.S.I. Indulkar recorded her statement which was treated as the dying declaration and was also treated as the F.I.R. on which basis the offence was registered under Section 307 alongwith 498-A of the I.P.C. Investigation commenced. In the meantime, the Spl. Executive Magistrate was informed and he came on the scene in the hospital and recorded dying declaration of Anita which is part of the record. Anita succumbed to her injuries and offence was converted into Section 302 of the I.P.C. against the accused. Inquest panchnama was held and body was sent for post-mortem examination. Statements of witnesses were recorded. Spot panchnama was made, in which course, incriminating articles were seized by the police and were sent to C.A. for examination whose report was received and is part of the record. On completion of the investigation, the chargesheet was sent to the Court of law. The learned Magistrate committed the case to the Court of Sessions.

3. The learned Addl. Sessions Judge framed charge against the accused for the impugned offence to which he pleaded not guilty. Defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence on which basis the learned Trial Judge came to the conclusion that the available evidence was sufficient to bring home the guilt and accordingly proceeded to convict and sentence the accused in the aforesaid manner. Hence the appeal.

4. We have heard Shri Rajan Sorankar, learned counsel for the appellant and Mrs. P.H. Kantharia, A.P.P. for the State, at length. We have also perused the entire evidence on record.

5. At the outset, it may be noted that this is a case based upon two dying declarations of deceased Anita and, therefore, we would deal with the said evidence initially.

Evidence of P.S.I. Indulkar shows that, in March, 1998 he was attached to Uran Police Station. On 12.3.1998. he was on duty. He received message from Cottage Hospital, Uran that a burn case of a woman from village Pirkon had come to the hospital therefore he went there, but he was informed that the patient was moved to J.J. Hospital. Therefore, P.S.I. went to the J.J. Hospital at about 8.30 p.m. and saw the victim. He made enquiry with the medical officer on duty about the condition of the patient and was informed that she was physically and mentally fit to give statement. Therefore he recorded the statement of Anita at about 8.45 p.m. In the course of the statement, Anita informed him that it was the accused who had poured kerosene upon her and lit the match-stick as a result of which she suffered burn injuries. She has given the details -of the back ground as to how the quarrel ensued between herself and the accused and thereafter how he set her on fire. When the statement was reduced into writing her signature was obtained. She has made her signature below the statement. On the basis of statement, offence case to be registered at the police station at about 10.55 p.m. against the accused and the said statement was also treated as the F.I.R. It is to be noted that medical officer has made his endorsement on the said statement about the mental and physical condition of deceased Anita at the said time and place. She also stated, in the course of her statement that? after setting her on fire, accused kept quite and when she was totally burnt then he poured water upon her from nearby container and then opened the door of the room when neighbours, etc. came on the scene. In our considered view, the statement Exh.12-C which is also the F.I.R. is duly proved, which squarely implicates the accused person to be the author of the crime. The testimony of P.S.I. Indulkar also is found to be satisfactory and supports the prosecution case that the dying declaration Exh.12-C was recorded by him in proper and correct manner and, therefore, inspires confidence.

6. In the meantime, the Spl. Executive Magistrate was also informed who came in the hospital and recorded dying declaration of Anita. PW-1 Laxman Mhamunkar has stated that he was working as Spl. Executive Magistrate and was summoned by J.J. Marg Police Station in the hospital. He reached there and enquired with the medical officer about the condition of the patient and was informed that Anita was in a position to give statement and, therefore, he recorded the statement Exh.10-C. According to him, Anita informed him about the back ground of the quarrel between herself and accused and than stated in clear terms that accused used to consume liquor and then assault her and at the relevant time he poured kerosene upon her and set her on fire. She could not run away as doors were closed by the accused. She has also stated that, after she was fully burnt the accused poured water upon her from nearby container. She has stated candidly that due to such incident her husband should be given proper warning. This statement was recorded at 10.20 p.m. in the J.J. Hospital. The Spl. Executive Magistrate has obtained signature of the patient on the said statement. This statement is consistent with the earlier statement recorded by the P.S.I. The evidence of the Spl. Executive Magistrate Laxman Mhamunkar appears to be reliable especially when there is absolutely no reason as to why he should fabricate the document of dying declaration falsely to implicate the accused in this case.

7. Therefore, the evidence of these two dying declarations duly supported by the Spl. Executive Magistrate as well as the P.S.I. who are totally disinterested persons having no animosity against the accused, is sufficient to inspire confidence and establishes total reliability of the statements of Anita implicating the accused to be the author of the crime.

8. The evidence of PW-3 Mahesh Joshi further corroborates the entire evidence on record. He is brother of deceased Anita and has stated that he was at his home when the incident took place and some boys informed him about the fact that Anita was set on fire. Immediately he rushed to his residence and he found that Anita was lying in burnt condition and she was shouting to save her stating that her husband had burnt her. This testimony of Mahesh Joshi also corroborates the entire evidence on record. This is especially so when presence of Mahesh Joshi cannot be doubted because he rushed to the site of incident immediately after he was informed about it, because deceased was his sister. This evidence is again corroborated by testimony of PW-4 Krishna Patil who is the person who reached house of the accused and deceased after hearing the shouts to the effect that her husband had burnt her and she was shouting to save herself. He, therefore, ran to the house of accused and pushed the door of the house and opened the door and noticed that Anita was lying in burnt condition and accused was inside the said room. In our view, this is the evidence fully corroborating the contents of the dying declarations to the effect that accused was inside the room when Anita was set on fire by the accessed.

9. The learned counsel for the appellant vehemently urged that Anita was extensively burnt including her hands and, therefore, she must not be in a position to make her initials as signature on the dying declarations. Therefore, it was suggested that both the dying declarations are fabricated documents. However, it must be noted that it has not come on record that Anita's fingers were also burnt. Moreover, if at all the investigating machinery wanted to fabricate both dying declarations, in all the probabilities they should have obtained some thumb mark below the dying declaration and not the initials of the deceased. Perusal of the original crying declarations do show that handwriting of both initials tally with each other on the said dying declarations and, therefore, there is no doubt whatseover that signatures made under the dying declarations are of deceased Anita and none else.

10. For the reasons recorded above, we have no hesitation to hold that it was the accused who was the author of the crime and, therefore, the 1earned Trial Judge has rightly convicted and sentenced him for the impugned offence.

In the result, the appeal stands dismissed.