Bombay High Court
Balu Dharma Shendge vs Police Station on 28 October, 2010
Bench: D.D. Sinha, A.P. Bhangale
1
APEAL-309-05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.309 OF 2005
Balu Dharma Shendge, ]
Convict No.C/13778, ]
presently confined at ]
Yerwada Central Prison,
ig ]
Pune. ] ..APPELLANT
[Orig.Accused]
Versus
State of Maharashtra, ]
through Sahakarnagar ]
Police Station, Pune. ] ..RESPONDENT
.........
Mrs.Rohini M. Dandekar, Advocate for the Appellant.
Ms.M.H. Mhatre, A.P.P. for the State.
.........
CORAM : D. D. SINHA & A. P. BHANGALE, JJ.
DATE OF THE JUDGMENT : 28.10.2010
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ORAL JUDGMENT (PER A. P. BHANGALE , J.) :
1. Present Criminal Appeal is directed against judgment and
order dated 22.1.2004 passed by the 8th Addl. Sessions Judge, Pune in
Sessions Case No,174 of 2003 whereby the appellant was convicted
for offence punishable under Section 302 of the Indian Penal Code
and sentenced to suffer imprisonment for life and to pay fine in the
sum of Rs.1000/-, in default, to suffer R.I. for one year.
2. Case of the prosecution, in brief, is as under :-
The appellant is the husband of deceased Rekha Shendge. They
had married 15 years prior to the incident. They had two daughters
and a son out of their wedlock. The appellant was mason by
occupation. Parents of the deceased Rekha were also residing in the
same locality at Talajai Vasahat, Padmavati at Pune. Children of the
appellant and Rekha (deceased) used to go with parents of the
deceased for sleeping.
3. On the day of incident i.e. on 12.9.2002 deceased Rekha had
gone to her parent's house on account of `Gauri Pujan' festival. She
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returned home at about 00.30 a.m. when it was 13.9.2002. The
appellant suspected her chastity because of her late arrival in the
house. He got angry and accosted her raising suspicion upon her and
assaulted her. When he asked Rekha to go out of the house, she
refused to leave the house. Then the appellant took the plastic can
containing kerosene and poured kerosene on her person and set her
ablaze with a lighted match stick. The deceased Rekha raised shouts
which attracted neighbourers. Meanwhile the appellant fled away
from the scene. The persons from the neighbourhood, who gathered
there, extinguished the fire and Rekha was taken to Hospital for
medical treatment on account of burn injuries which she had
sustained.
4. Sahakar Nagar Police Station, Pune was informed about the
incident by telephonic message. P.S.I. Chivate called Special Judicial
magistrate in order to record dying declaration in presence of doctor.
Meanwhile he had recorded complaint made by Rekha (deceased) in
presence of a lady doctor on the basis of which crime was registered
as C.R. No.185 of 2002 which was taken over for investigation. It is
case of the prosecution that while undergoing medical treatment in
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Sasoon General Hospital, Pune; Rekha succumbed to her burn injuries
on 16.9.2002.
5. Investigating Officer Shinde visited the spot of the incident,
drew Panchnama in respect of scene of offence, collected medical
reports, dying declarations recorded as also inquest Panchnama which
was drawn. The accused, who was absconding, was arrested on
16.9.2002 under arrest Panchnama (Exh.28). He had also sustained
some burn injuries therefore he was referred to medical examination
and treatment.
6. Upon completion of investigation, the appellant was
chargesheeted for offence of murder before J.M.F.C. Court No.4 Pune.
By committal order dated 3.5.2003, the case was committed to the
Court of Sessions at Pune.
7. Charge was framed on 7.6.2003 to which the appellant
pleaded not guilty and claimed trial.
8. In order to prove the case, the prosecution examined 10
witnesses. The defence of the appellant is of denial. No defence
evidence was led. In his statement recorded under Section 313 of
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Cr.P.C. the appellant chose to defend prosecution case by advancing a
plea that on the night of the incident he had asked his wife to cook
food. She poured kerosene in the stove. In that process, kerosene
spilled out on the ground and while lighting the stove the kerosene
on the ground caught fire. The nylon Saree on the person of the
deceased also caught fire. He tried to extinguish fire. In that process
he sustained burn injuries on his right arm and right lateral aspect of
his body. Thus he pleaded, in defence, that he is not concerned with
the offence.
9. Learned Advocate for the appellant submitted that the plea
raised by the appellant may be considered as probable under the
circumstances. According to learned Counsel for the appellant, dying
declarations relied upon by the prosecution ought to be disbelieved
on the ground that the death of Rekha may be accidental. According
to the learned Counsel for the appellant, benefit of reasonable doubt
be granted in favour of the appellant.
10. Learned A.P.P. for the State, on the other hand, contended
that there was evidence beyond all reasonable doubts to establish
guilt of the appellant in this case and that the appellant had poured
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kerosene on the person of his wife, set her ablaze and ran away from
the scene of crime. He was absconding till he was arrested on
16.9.2002. He did not bother about his wife Rekha struggling for
survival in the hospital while receiving medical treatment and instead
of visiting the hospital and taking her care, he remained absconding
till he was apprehended under Panchnama Exhibit.28 dated
16.9.2002. According to learned A.P.P., the witnesses examined by the
prosecution do throw light upon the incident of murder as it had
occurred and there is ample evidence to bring home guilt of the
appellant beyond all reasonable doubts.
11. The first question is as to whether deceased Rekha met with
homicidal death ?. PW-9 Dr.Narkhede was examined who had
performed autopsy as Medical Officer at Sasoon Hospital, Pune. He
conducted autopsy over dead body of Rekha as per Exhibit-26.
Dr.Narkhede issued certificate (Exh.25) to the effect that Rekha Balu
Shendge, resident of Talajai Vasahat, Padmavati, Pune died as a result
of shock due to burns. He also observed in his postmortem notes
(Exh.26) in column No.17 that deceased Rekha has superficial to
deep burns as follows : head, neck and face 9%, RUL 8%, LUL 8%,
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anterior trunk 18%, posterior trunk 18%, right chest 17%, left chest
17%, genital 1% = 96% ante mortem injuries. Nothing was extracted
from the cross-examination of Dr.Narkhede which can damage his
testimony regarding postmortem examination on the dead body of
Rekha. Thus the fact that Rekha met with unnatural death as a result
of 96% of ante mortem burn injuries is established by the prosecution
with the help of medical evidence consisting of deposition by PW-9
Dr. Narkhede, injury certificate (Exh.25) and postmortem notes (Exh.
26).
12. The next question is as to whether the appellant was
responsible for death of Rekha and whether he committed her murder
punishable under Section 302 of Indian Penal Code ?. The
prosecution in order to link the appellant with the crime of murder,
relied upon evidence of dying declarations. P.S.I. Chivate from
Sahakarnagar Police Station (PW-8) had received telephonic message.
He went to hospital and recorded complaint of Rekha after consulting
Medical Officer who was present attending Rekha. Rekha was found
conscious and well oriented according to lady Medical Officer. Thus
PW-8 Chivate recorded complaint (Exh.22). PW-8 Chivate deposed
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about correctness thereof. The complaint does mention as to how the
incident occurred on the night intervening between 12.9.2002 to
13.9.2002. After Rekha had returned from her parent's house, having
attended the `Gauri Puja' at about 00.30 hours on 13.9.2002, the
appellant questioned her as to where she had gone, why she has
gone and suspected her character alleging that she must have
relations with somebody outside. Thus appellant raised quarrel with
her, assaulted her and asked her to get out of the house and when she
refused to leave the house, the appellant had taken a plastic can
containing kerosene and poured kerosene on her person and while
she protested shouting "Wachava Wachava" (save, save) appellant has
lighted a match stick, put it upon her and set her on fire and ran
away from the house. After hearing cries from Rekha's house,
neighbourers and her sister-in-law Shobha (PW-1) came, extinguished
the fire and then Rekha was taken to hospital for medical treatment.
13. Shobha (PW-1) has corroborated this evidence. According to
PW-1 Shobha, Rekha had attended `Gauri Pujan' and at about 12:30
midnight returned her house. After that she had heard commotion
from the side of the house of the appellant. When she rushed there,
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she saw Rekha was ablaze. Her father-in-law who also rushed along
with Shobha has extinguished the fire by putting a Chadar around the
person of Rekha and pouring water on her person. According to
Shobha (PW-1) Rekha had stated that the accused had poured
kerosene on her person and set her ablaze after he had quarrel with
her on the ground as to where she had gone.
14. The prosecution has also examined PW-3 Bhaskar Shahane,
who was working as a Special Judicial Magistrate. He received
requisition letter from the police for to record dying declaration of
Rekha and then he had contacted the doctor concerned, who
examined Rekha. He also verified as to whether Rekha was ready to
make voluntary statement. Then PW-3 Shahane recorded her
statement. Thus, according to PW-3 Bhaskar Shahane also Rekha
made disclosure that the appellant had suspected her chastity when
she returned home, the appellant has poured kerosene on her person,
set her ablaze and fled house from the house.
15. It appears that Dr.Sachin Patil who was Medical Officer at
Surya Hospital was consulted by Special Judicial Magistrate before
recording her dying declaration and Dr. Sachin had certified that she
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was fully conscious and well oriented by putting his endorsement on
the paper as per Exh.11. Thus, dying declaration was recorded by
Mr.Shahane (PW-3) in presence of Dr.Sachin Patil. Dr. Sachin also
corroborated the fact of dying declaration that deceased Rekha had
disclosed in his presence that her husband had set her ablaze after
pouring kerosene on her person and that her husband was suspecting
her chastity. Thus Dr. Sachin deposed about the presence of burn
injuries on the person of the deceased, the fact that her signature or
thumb impression could not be taken therefore impression of her left
tow was taken. According to Dr.Sachin Patil, Rekha was fully
conscious and well oriented to give her dying declaration which was
recorded. Dr. Sachin was cross-examined at length. He explained that
deceased Rekha was admitted for medical treatment and he had
recorded history of burns on the case papers. At that time when she
was admitted she had told him that when she was pouring kerosene
in the stove the candle fell down and caught fire as the kerosene was
fell down from the can. We have seen Photostat copy, which appears,
referred by Dr.Sachin while he had noted down history of case papers
which appears mostly illegible and disorganized creating suspicion
about authenticity thereof. Be that as it may, there is evidence of
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dying declarations which can remove such suspicion from the judicial
mind as the same doctor Sachin certified consciousness as also well
oriented condition of the patient who made dying declaration in his
presence to the clear effect that her husband had poured kerosene on
her person and set her ablaze while suspecting her chastity. The
Special Judicial Magistrate Shri Shahane also deposed about this
dying declaration.
16.
Apart from the above evidence, the prosecution has
examined neighbourer of Rekha, Mr.Arun Gorakh Aarne (PW-4), who
deposed about oral dying declaration made by deceased Rekha to
Shobha (PW-1) in his presence to the effect that quarrel had taken
place between Rekha and her husband who suspected her chastity,
poured kerosene on her person and set her ablaze. PW-4 Arun Gorakh
also acted as panch for the scene of offence Panchnama (Exh.15)
wherefrom yellow coloured can, match box, piece of partly burnt
towel were observed and seized under Panchnama.
17. The prosecution also examined another neighbourer, Appa
Waghmare (PW-5) who also deposed that deceased Rekha had made
statement to Shobha in his presence that the accused poured
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kerosene on the person of deceased Rekha. PW-5 had seen the
accused running away from his house while neighbourers were
extinguishing flames of fire with which Rekha was engulfed. Thus
evidence of conduct of the appellant which is incriminatory is also
brought on record.
18. The prosecution also examined PW-7 Sarubai (mother of
victim Rekha) who deposed about oral dying declaration made by
Rekha which clearly indicates that appellant had poured kerosene on
the person of Rekha, set her ablaze and ran away from the house.
Thus, we have ample evidence on record apart from the fact deposed
by PW-10 Netaji Shinde who arrested the accused on 16.9.2002 under
Panchnama (Exh.28). It is pertinent to note that the appellant was
found sustained burn injuries which was recorded in the course of
Panchnama. The accused was referred to Sasoon Hospital for medical
examination and treatment for his injuries.
19. The overall evidence led by the prosecution led us to
inescapable conclusion that it was the appellant alone who after
suspecting character of his wife had raised quarrel with her and asked
her to get out of the house during the night intervening between
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12.9.2002 to 13.9.2002 when it was 12:30 a.m. or about and when
his wife refused to leave the house, he poured kerosene on her
person, set her ablaze and ran away from the house leaving his wife,
who had sustained 96% burn injuries, to be taken care by
neighbourers so as to take her to hospital for medical treatment. The
appellant left his wife struggling for survival in the hospital while he
remained absconding till he was arrested on 16.9.2002. All these facts
leave no scope for any other hypothesis except that of guilt of the
appellant. We therefore find that there is no infirmity whatsoever in
the findings of facts recorded by the trial Court. We do not find merit
in this Appeal. In the result, the appeal is dismissed.
(D. D. SINHA, J.)
(A. P. BHANGALE, J.)
