Bombay High Court
Convict No.C/239 vs The State Of Maharashtra on 6 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
PPD
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.885 OF 2005
WITH
CRIMINAL APPLICATION NO.1083 OF 2007
IN
CRIMINAL APPEAL NO.885 OF 2005
Suresh Bira Kolekar ]
Convict No.C/2391, ]
Kolhapur Central Prison.
ig ] ..Appellant
[Orig.Accused]
Versus
The State of Maharashtra ] ..Respondent
....
Mr. Shekhar A. Ingawale, Advocate (appointed) for the Appellant.
Mr. D.P. Adsule, APP for the Respondent - State.
....
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE : 06th DECEMBER, 2012
JUDGMENT: [PER A. R. JOSHI, J.]
1. Heard rival submissions on this Criminal Appeal
preferred by the appellant/orig.accused challenging the
judgment and order of conviction dated 15 th October, 2003
passed by the Ist Adhoc Additional Sessions Judge, Raigad-
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Alibag in Sessions Case No.210 of 2002. By the said judgment
and order, the appellant/accused was convicted for the offence
punishable under Section 302 of IPC and was sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.5000/-, in
default to suffer RI for one year.
2. The case of the prosecution, in nutshell, is as under :-
The marriage between the deceased Sonali and
appellant/accused Suresh Kumar was performed on or about 2 nd
December, 1999. Whereas the incident of burning the victim
Sonali occurred on 6.8.2002. Sonali died of 99% burn injuries
while taking treatment at Government Hospital on 10.8.2002.
According to the case of prosecution, at the time of marriage
appellant/accused had no job and it was decided that parents of
the victim Sonali would take steps to get a job to her husband i.e.
appellant/accused. Accordingly by spending an amount of
Rs.50,000/- father of Sonali got appellant/accused employed as
mathadi worker. It was also desire of appellant/accused that his
brother would also be given job and for that purpose the parents
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of Sonali should take efforts and spend money. After the
marriage though appellant/accused secured job through
assistance of parents of Sonali, there used to be demands for
money and for securing job to the brother of appellant. On this
count, there used to be quarrels between the couple. That time,
the couple was staying in one rented room along with their 1 ½
year son. In fact the younger brother of appellant/accused also
started residing with them. Under these circumstances of
quarrels and ill-treatment, the fateful incident occurred on
6.8.2002. On that night appellant/accused returned from work.
He was drunk. He started quarrel with his wife Sonali. He
assaulted her. She asked him to take meals first and then to
decide about the demand of money etc. Both of them took meal
at about 11:30 p.m.. However, thereafter also appellant/accused
started assaulting his wife Sonali. She requested him not to
assault. However he did not listen and in stead poured kerosene
on her person and set her ablaze. Sonali ran outside the house
trying to save herself. So also she also tried to caught hold of
her husband (appellant/accused) requesting him to save her. In
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that process, apparently appellant/accused had sustained some
burn injuries about 6% to 7%. Unfortunately, the attempts of
victim to save herself from the fire were futile. Noticing the
commotion, neighbours gathered there. They extinguished the
fire. Accused and one person by name Ramchandra Kale from
the neighbouring place, took victim Sonali to Uran Hospital in
rickshaw. She was immediately treated and then she was
removed in ambulance to Navi Mumbai Municipal Corporation
Hospital at Vashi. At the time of admission in the hospital at
Vashi, appellant/accused gave history of suicidal burns, whereas
on questioning by the attending Doctor Vivek Malpure, victim
gave the history that her husband has set her on fire. As such in
the medical case papers, there is an endorsement by the
attending doctor mentioning both the histories - respectively
given by appellant/accused and victim. The victim was
immediately taken to Emergency Burn Ward for her treatment.
3. It is also the case of prosecution that initially Special
Executive Magistrate PW-4 Nilam Jaysinghani attended the ward
on intimation from the police and recorded dying declaration of
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the victim which is at Exh.30. Thereafter, according to the police
PW-6 PSI Raghunath Pokale recorded another dying declaration
at Exh.36. Apparently, both the dying declarations are in
consonance with each other and indict appellant/accused as to
pouring kerosene on the person of victim and setting her on fire.
4. The dying declaration recorded by PW-6 PSI Raghunath
Pokale was treated as First Information Report and offence was
registered against appellant/accused and investigation was
started. PSI Nasirkhan Pathan (PW-5) took over the
investigation when attached to Uran Police Station and
conducted scene of offence panchnama and recorded statements
of the witnesses. He also arrested appellant/accused when
appellant was present in the hospital. Appellant/accused was
sent for medical examination as he had burn injuries on his
person - mainly on hand. Three days after recording of the
dying declarations, victim Sonali succumbed to the burn injuries
in the hospital at Vashi and that time she was pregnant by five
months. Inquest panchnama was conducted. Clothes on the
person of victim were taken charge of. Seized articles were
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sent for chemical analysis. Postmortem report was obtained.
After completion of investigation, charge-sheet was filed and
matter was committed to the Court of Sessions which ended in
conviction of the appellant, as mentioned above.
5. During the trial, total six prosecution witnesses were
examined. Out of them, important witnesses are PW-3 Dr. Vivek
Malpure, PW-4 Special Executive Magistrate Mrs. Nilam
Jaysinghani and PW-6 PSI Raghunath Pokale. Their evidence is
required to be scrutinized and dealt with in detail, in order to
appreciate the arguments advanced on behalf of
appellant/accused as to whether it is a case of suicide or
homicide.
6. Pointing out the substantive evidence of PW-3 Dr. Vivek
Malpure, PW-4 S.E.M. Mrs. Nilam Jaysinghani & PW-6 PSI
Raghunath Pokale, it is strongly argued on behalf of the
appellant that inter se there is variance in their evidence on the
aspect as to at which places the dying declarations were recorded
by Special Executive Magistrate Mrs. Nilam Jaysinghani and PSI
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Raghunath Pokale. It is further argued that Dr. Vivek Malpure
(PW-3) had not given his endorsement at the starting of the
dying declaration (Exh.30) and Exh.36 and as such it is doubtful
whether the victim had given such dying declarations implicating
appellant/accused (her husband). It is further argued that
another factual position as to 99% burn injuries sustained by the
victim is a circumstance by which reasonable doubt can be
entertained whether the victim was in a position to give
statement and to narrate the details as mentioned in Exh.36
(First Information Report). It is further argued that
appellant/accused had also sustained about 6 to 7 % burn
injuries mainly on his hand as he tried to extinguish the fire
when apparently victim Sonali tried to commit suicide and in
fact poured kerosene on her person, further argued.
7. While dealing with the arguments on behalf of
appellant/accused as mentioned above, it can be seen that even
PW-2 Shahabai Bakshi, mother of the victim has deposed
regarding oral dying declaration made to her by victim Sonali. At
the early hours on 7.8.2010 at about 2:00 a.m. she reached
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Uran and learnt that appellant/accused has taken the victim to
hospital. Hence, initially she went to the local hospital at Uran
and from there went to hospital at Vashi and noticed the
condition of her daughter. That time, the patient was under
treatment. However, she had told this witness that her husband
has poured kerosene on her and set her on fire. She further told
that her husband has ruined her and their son. Again according
to PW-2 Shahabai Bakshi when she was at hospital at Vashi, one
woman came and recorded the statement of her daughter.
Apparently said woman was PW-4 Special Executive Magistrate
Mrs. Nilam Jaysinghani. PW-2 Shahabai Bakshi also stated that
police also came there and recorded statement of victim. In our
considered view, this is an intrinsic corroboration to the case of
the prosecution inasmuch as recording of the statements by PW-3
& PW-4.
8. Again on this aspect of recording of statements of
victim, the substantive evidence of PW-3 Dr. Vivek Malpure is of
much importance. The evidence of said Doctor is reproduced
hereunder :
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"The patient was brought at 2:45 a.m. Initially the
husband gave the history that it was a suicidal burns
at 10:30 p.m. when I asked the patient, she told me
that she was burnt by the husband".
9. The medico-legal report was also brought on record
which is at Exh.26 and which specifically mention the history
given by present appellant/accused and also given by the victim.
The entire report and contents of said medico-legal report are in
the handwriting of said Dr.Vivek Malpure. In our considered
view, again this evidence substantiates the case of prosecution as
to appellant/accused setting the victim on fire by pouring
kerosene on her person, however tried to submit that it is a case
of suicide and he allegedly tried to extinguish the fire.
10. Again on the aspect of acceptance or otherwise of the
written dying declarations Exh.30 & Exh.36, though it is brought
on record through the substantive evidence of PW-3 Dr. Vivek
Malpure that he did not give any endorsement as to the
condition of the victim, on the dying declarations at the time of
starting the recording, still as per the substantive evidence of
PW-3 Dr. Vivek Malpure he had made such endorsement on the
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case papers regarding consciousness and orientation of the
victim. Such endorsement given on the continuation sheet of the
medical case papers of the date 7.8.2002 were identified by the
witness as in his handwriting under his signature. The first
endorsement is at 4:20 a.m. and second one is at 4:45 a.m..
These apparently are the timings when respectively both the
written dying declarations were recorded as apparent from the
substantive evidence of PW-4 SEM Mrs. Nilam Jaysinghani & PW-
6 PSI Raghunath Pokale respectively. Though Ex.30 and Exh.36
do not show endorsement of the doctor at the beginning of
starting of the dying declaration, that does not mean that there
was no examination of the patient by the attending doctor and
confirming the condition of the patient as oriented and
conscious, as such endorsements are in the medical case papers
and which are forming part of Exh.27.
11. During the arguments, as mentioned above, it was the
defence raised on behalf of appellant/accused that it is a case of
suicide. In order to ascertain the truth in the said defence,
certain factual position can be mentioned : admittedly
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appellant/accused and his wife were staying together in the
house along with their 1 & ½ year old son. Apparently it is not a
case that small tender aged child was sleeping in another room
away from the parents. Moreover it is not also the case that
appellant/accused and his wife were also staying in different
rooms. Then in that event, it is highly improbable that the victim
Sonali while sleeping with a small child and also with her
husband in one room, all of a sudden getting up at the wee
hours of the day i.e. in the midnight and pouring kerosene on
her person and setting her on fire without there being no major
injuries to her husband and no injuries at all to the small child.
Though, it is the defence of appellant/accused that he tried to
extinguish the fire and in that process received burns of about
6% to 7%, this defence is to be looked in juxtaposition of the
circumstances narrated by the victim in her dying declaration
that she tried to catch hold of her husband after he poured
kerosene on her and set her ablaze and she tried to ask him to
save her, however, he avoided and left her alone and in that
process apparently he had sustained burn injuries not of huge
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magnitude, but only to the extent of 6% to 7%. Still another
circumstance is required to be considered that there is nothing
on record to show that the small child of 1 ½ year then sleeping
with parents had not sustained any injury. If the defence as to
victim committing suicide is to be accepted, then definitely there
would have some injuries to the small child and also probably
severe injuries to appellant/accused if it accepted that he was
sleeping in the same room and was unaware of the activities of
his wife setting herself on fire. Another possibility as to not
having much injuries on the person of appellant/accused can be
visualized only when it would be the case of the appellant that
he was well aware and awakened when his wife caught on fire.
In that event also if allegedly it is a case of suicide then the
awakened and alert husband would have tried to rescue his wife
that also at the beginning of the act of suicide and in that event
the victim would not have sustained 99% burns. In any way, the
submission as to suicidal attempt of the victim has no merits.
Otherwise also there is nothing brought on record or even during
recording of the statement under Section 313 of Cr.P.C. to accept
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the said defence of suicide even on preponderance of
probabilities.
12. Considering the effect of two written dying
declarations and a oral dying declaration made to PW-2 Smt.
Shahabai Bakshi and the history given by victim while her
admission at the hospital at Navi Mumbai, we are of the
considered view that there is sufficient corroboration to the
contents of the dying declarations by substantive evidence of PW-
2 Smt. Shahabai Bakshi & PW-3 Dr.Vivek Malpure. Otherwise
also, there is no plausible explanation coming from the
appellant/accused as to how his wife sustained burn injuries.
The only hypothesis which can be gathered is the guilty of the
appellant/accused for the offence of murder. In that event, we
do not find any reason to interfere with the impugned judgment
and order of conviction and accordingly there is no merit in the
present appeal and the same is dismissed and accordingly
disposed of. Criminal Application No.1083/2007 is also disposed
of as infructuous.
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13. This judgment and order be communicated to the
appellant who is presently lodged in jail, through concerned jail
authorities.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
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