Bombay High Court
Raosaheb @ Dabya Raja Kale vs The State Of Maharashtra on 19 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
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rpa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 546 OF 2005
1. Raosaheb @ Dabya Raja Kale
2. Sou. Tolabai Raosaheb @ Dabya Kale ... Appellants
Versus
The State of Maharashtra ... Respondent
...
Mrs. Latika Ashok Misal, Advocate for Appellant No.1.
Mr. D. G. Khamkar, Advocate for Appellant No.2
Mr. S. A. Shaikh, APP for the Respondent - State.
...
CORAM : MRS. V.K. TAHILRAMANI &
A. R. JOSHI, JJ.
DATED : DECEMBER 19, 2012.
ORAL JUDGMENT : [PER A.R. JOSHI, J.]
Heard the rival arguments in this criminal Appeal preferred
by both the Appellants-Accused challenging their conviction for the
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code.
2 Both the Appellants-Accused were convicted in Sessions Case
No.105 of 2003, vide Judgment and order dated 13 th November,
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2005, passed by the V Additional Sessions Judge, Solapur. Both the
Appellants-Accused were convicted for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code (IPC)
and were sentenced to suffer imprisonment for life and to pay fine
of Rs.1000/- each and in default to suffer S.I. for three months
each. Both the Appellants were acquitted of the offence punishable
under Section 504 of the Indian Penal Code.
The case of the prosecution, in nutshell, is as under:
The victim is a young girl of 18 years by name Manisha Popat
Kale and was staying along with her sister Surekha (P.W.1) and their
mother at Bhambure Wasti, Kurduwadi, Taluka Madha, District
Solapur. In the near vicinity of the house of the victim there was
residence of both the Appellants-Accused. Both the Appellants-
Accused are husband and wife and they were staying jointly with
one Banya Kale, brother of Appellant Accused No.1.
3 According to the case of the prosecution, though the
Appellants were married to each other, Appellant No.2 Tolabai Kale
was having illicit relation with Banya Kale. About ten days prior to
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the fateful incident, the said Banya Kale married to one another girl
and probably it was not liked by the Appellant Accused No.2.
On that count, there was quarrel between both the Appellants on
one side and said Banya Kale on the other side. Said quarrel
occurred in the evening of 10th November, 2002 i.e. one day prior to
the fateful incident. During that quarrel on 10 th November, 2002,
both the Appellants assaulted said Banya Kale. Victim girl Manisha
intervened the quarrel and tried to rescue Banya Kale from the
clutches of the Appellants. Due to this intervention and assistance
rendered by the victim girl, Banya Kale escaped the assault and ran
away from the spot. This action of the victim girl infuriated both
the Appellants and apparently they taught a lesson to the victim girl
as it happened on the next day evening i.e. on the fateful day.
4 It is also the case of the prosecution that on the day of
incident i.e. on 11th November, 2002, in the evening between 6.00
p.m. to 7.00 p.m. or there about the victim Manisha and her sister
P.W.1 Surekha were at home. That time both the Appellants entered
the house and started quarreling with victim Manisha. They started
beating her. That time, Appellant-Accused No.1 took out one plastic
can containing kerosene from the house of the victim and poured
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the kerosene on the person of victim Manisha. Appellant-Accused
No.2 set on fire the said Manisha by igniting match stick and
thrown it on the person of the victim. Witnessing this incident of
setting her sister on fire by the Appellants, P.W.1 Surekha tried to
intervene, however, she was also manhandled by the Appellants and
both of them ran away from the spot. With the help of other
neighbours P.W.1 Surekha manged to get her sister Manisha
immediate medical help. Victim Manisha was initially taken to
Kurduwadi Rural Hospital. However, prior to that on witnessing the
incident of setting Manisha on fire, P.W.1 Surekha immediately
rushed to Kurduwadi Police Station and narrated the incident to the
police. Thereafter, victim was taken to Rural Hospital. At the Rural
Hospital, after giving immediate treatment, after noticing the
gravity of the burn injuries, the patient was advised to be taken to
the Civil Hospital, Solapur. Accordingly, on the same night, victim
Manisha was taken to the Civil Hospital at Solapur.
5 According to the case of the prosecution at Civil Hospital,
Solapur, a history was given at the time of the admission as to both
the Appellants indulging in the act of pouring kerosene and setting
the victim Manisha on fire. According to the medical officer P.W.6
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Dr. Dodamani, said history was given by the victim herself, however,
according to substantive evidence of P.W.1 Surekha Kale, she gave
the history to the doctor at Civil Hospital Solapur. While the victim
Manisha was under treatment, two dying declarations were
recorded. First one being Exhibit-19 recorded by P.W.4 Police Head
Constable Maruti Bujale and second one was recorded being
Exhibit-16 by P.W.2 Special Judicial Magistrate Mohammad Shafee.
At this stage, it must be mentioned that though according to the
case of the prosecution, Exhibit-19 was the dying declaration given
by the victim Manisha to the Police Constable and which indicate
the role given to both the Appellants-Accused and mentioning
regarding commission of cognizable offence, still apparently no First
Information Report (FIR) was lodged. But still according to the
case of prosecution, it is a factual position that on that night itself,
after recording of Exhibit-19, intimation was given to the Special
Executive Magistrate Mohammad Shafee, P.W.2 by some police
person and on such intimation and request said P.W.2 attended
Solapur Civil Hospital and recorded the dying declaration
Exhibit-16.
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6 According to the case of the prosecution that even after
recording of both the dying declarations, still there was no
registration of the offence and it was registered only on 14 th
November, 2002, for the offences punishable under Section 307,
504 read with Section 34 of the Indian Penal Code. On the same
day of registration of the offence, spot panchanama Exhibit-23 was
conducted in which P.W.5 one panch Hanmant Munghhi took part.
During investigation, statements of witnesses were recorded. While
under treatment, victim Manisha scummed to the burn injuries on
15th November, 2002. Hence, offence punishable under Section 302
of Indian Penal Code was inserted in the charge instead of offence
punishable under Section 307 of the Indian Penal Code. Inquest
panchanama was prepared. The dead body of the victim was sent
for post-mortem. Various muddemal properties were sent for C.A.
and after completion of investigation, charge-sheet was filed.
The matter was committed to the Court of Sessions and it was
finally heard and disposed of by the impugned Judgment and order
dated 13th November, 2005, which is challenged in the present
Appeal.
7 The entire case of the prosecution mainly rest on the dying
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declarations given by the victim Manisha. Initially, on the
admission in Civil Hospital Solapur, history was given by the victim
as to Appellant-Accused No.2 poured kerosene on her person and
Appellant-Accused No.1 set her on fire by using ignited match stick.
On this aspect, as to the specific role assigned to each of the
Appellants-Accused, much is argued on behalf of the Appellants and
it was emphasized that there is rather variance in the contents of
the said history allegedly given by the victim and the contents of the
dying declarations Exhibits-19 and 16, respectively recorded by the
Police Head Constable P.W.4 and Special Judicial Magistrate, P.W.2.
This argument shall be dealt in detail at the appropriate place
herein when we will deal with points of the defence raised on
behalf of the Appellants.
8 The case of the prosecution also based on the oral dying
declaration given before P.W.3 Sanatan Kale, brother of the victim
girl. According to the case of the prosecution, when P.W.3 Sanatan
Kale knew regarding the incident of setting his sister on fire, he
visited Civil Hospital at Solapur and met his sister, victim Manisha.
He made inquiries with her and that time Manisha disclosed him
regarding quarrel between the Appellants-Accused on one side and
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Banya Kale on the other side and as to her intervention in the
quarrel and thereafter on the next day both the Appellants-Accused
entering in the house of the victim and pouring kerosene on her
person and setting her on fire. The case of the prosecution also rest
on the substantive evidence of PW.1 Surekha, sister of the victim.
9 Now bearing in mind the substantive evidence of above
referred prosecution witnesses and mainly the evidence of dying
declarations, the arguments advanced on behalf of both the
Appellants can be narrated as under. The arguments were many
fold and various infirmities in the collection of evidence by the
investigating agency, have been brought to our notice. The defence
on behalf of the Appellants is mainly on the following points:
(i) The First Information Report (FIR) is recorded
much belatedly i.e. on 14th November, 2002 when
the actual incident of burning occurred on the
evening of 11th November, 2002.
(ii) No independent witnesses from the
neighbourhood of the residence of the victim
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were examined and the witnesses examined
being P.W.1 and P.W.3 are the sister and brother
and hence interested witnesses.
(iii) Both the dying declarations Exhibits-19 and 16,
respectively, cannot be accepted as worth of
reliance and hence they are required to be
discarded due to variance in the contents.
10 Now, considering the first argument as to delayed recording
of the FIR, we have carefully gone through the substantive evidence
of P.W.1 Surekha. She had narrated the entire story as to the events
which took place on the day of the incident and also on the earlier
day. He has also stated that immediately after witnessing the
incident of pouring kerosene over her sister Manisha and setting her
on fire by both these Appellants-Accused, she tried to intervene, but
she was manhandled. As per the said witnesses both the Appellants
ran away from the spot after setting the victim on fire, and then she
rushed to the Kurduwadi police station and reported the matter.
Thereafter, the victim Manisha was taken for medical treatment as
mentioned above. On this aspect of P.W.1 Surekha going to
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Kurduwadi police station, immediately for reporting the matter to
the police there is no cross-examination. In other words, it must be
stated that this evidence of P.W.1 Surekha, as to reporting the matter
to the police immediately on the same night, has gone un-
controverted. Inspite of this factual position, it is argued on behalf
of the Appellants that there was no registration of the offence till
14th November, 2002, as according to the investigating officer the
formal registration of the First Information Report was done on that
day. In our considered view, the substantive evidence of P.W.1
Surekha which is unchallenged as to giving immediate intimation of
the offence, is of much significant. Though, there is nothing
brought on record as to what had prevented the investigating officer
not to take cognizance of the matter immediately after such
reporting by P.W.1 Surekha, still it cannot be said that non-action on
the part of the police machinery for causing delay in registering the
FIR is of such a magnitude to throw away the entire case of the
prosecution. This is more so when according to the case of the
prosecution itself on 11th November, 2002, on that night two dying
declarations came to be recorded being Exhibits-19 and 16,
respectively, through P.W.4 Maruti Bujale and P.W.2 Mohammad
Shafee. Even at that juncture probably there were no steps taken by
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the investigating machinery to register the offence and to take over
the investigation. However, this lacuna cannot be considered as a
circumstance in favour of the Appellants-Accused. Otherwise also
there is substantive evidence of P.W.4 Maruti Bujale mentioning that
he received the intimation from the Civil Hospital Solapur regarding
admission of one patient for burn injuries. Accordingly, he visited
the hospital and after enquiry with the attending doctor medical
officer P.W.6 Dr. Dodamani and after obtaining his endorsement
vouching the consciousness and orientation of the patient, recorded
the statement Exhibit-19. Thereafter also according to P.W.4 Maruti,
he though that the condition of the patient was serious and
accordingly P.W.2 Mohammad Shafee was summoned on request
made over telephone. P.W.2 Mohammad Shafee, the Special
Judicial Magistrate attended on that night at about 11.00 p.m. or so
at Civil Hospital, Solapur and met the attending doctor Mr.
Dodamani and after ascertaining the medical condition of the
patient, he recorded the dying declaration Exhibit-16. Considering
the above circumstances and considering that in fact the stages of
the investigation were already started by way of calling the Special
Judicial Magistrate and asking him to take the statement of the
victim Manisha, it will not be of much significant and also it will not
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be to the help of the Appellants-Accused that the formal registration
of the FIR was belated.
11 So far as the non-examination of any independent witness is
concerned, though it is a factual position that P.W. 1 and P.W. 3 who
have been examined are close relatives, i.e. sister and brother of the
victim Manisha, this fact in itself cannot be considered as a
mitigating circumstance to the case of the prosecution, if otherwise
the case of the prosecution is trustworthy of placing reliance. In
other words, it must be stated that though the examination of the
independent witnesses would have strengthened the case of the
prosecution, the non- examination of the said witnesses is not a
circumstance mitigating state case. It is to be ascertained whether
the substantive evidence of P.W. 1 Surekha and P.W. 3 Sanatan Kale
inspire confidence or not.
12 Now coming to the main defence and main objection on the
contents of the dying declarations. It is argued on behalf of the
Appellants that there is rather variance in the contents of both the
dying declarations Exhibits-19 and 16, respectively, in as much as,
in the first one there is a mention of the motive by way of alleged
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illicit relations between the Appellant-Accused No.2 and one Banya
Kale, brother of Appellant-Accused No.1. Whereas, in dying
declaration Exhibit-16, there is no such motive or any mention
regarding such illicit relations between the concerned persons. On
this aspect, we have carefully gone through the contents of said
dying declarations. It is a matter of evidence on record by way of
substantive evidence of P.W.6 medical officer Mr.Dodamani, that he
has examined the patient prior to and also after recording of these
dying declarations and he gave his endorsement on it, vouching the
condition of the victim being able to give statement. The main gist
of the prosecution case is lying in the circumstance that both the
Appellants entered in the house of the victim and set the victim
Manisha on fire by pouring kerosene on her person. In fact, this is
the main thread of the case of the prosecution. This factual position
is clearly mentioned in both the dying declarations and there is no
variance on this aspect though the dying declaration at Exhibit-16
do not mention regarding the illicit relationship between Appellant-
Accused No.2 and Banya Kale. In our considered view, only because
of this variation on the aspect not connected with the main
incidence as to establishing the actual involvement of the
Appellants, cannot be taken to doubt both the dying declarations.
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13 Again on the aspect of dying declarations, it is strongly
argued that in both the dying declarations Exhibits-16 and 19,
respectively, role is assigned to Appellant Accused No.1 as that of
pouring kerosene and role assigned to Appellant Accused No.2 is
that of setting the victim on fire by using ignited match stick. As
against this, it is brought to our notice from the substantive
evidence of medical officer P.W.6 Dr. Dodamani that the history
given by the victim mentions that the Appellant Accused No.2
poured kerosene on her person and Appellant Accused No.1 set her
on fire by using match stick. Again on this aspect, our attention is
drawn towards the substantive evidence of defence witness D.W.1
medical officer Dr. Anil Nehtarao from Kurduwadi Rural Hospital.
According to Dr. Nehtarao, there was no specific history given at the
time of admission of the patient as to in what manner the burn
injuries were sustained by the victim. The only history mentioned
in the case papers according to Doctor D.W.1 Dr. Nehtarao is
regarding burn injuries. Much emphasis was placed on the absence
of any specific history at the immediate available opportunity and it
is further argued that the history specifically given to PW.6 Dr.
Dodamani at Civil Hospital, Solapur, is in fact a concoction.
On this aspect, substantive evidence of this witness is carefully gone
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through by us. During his cross-examination, said witness had
admitted that in cases of burn patients initially the patient may not
be in a position to give statement but subsequently on
administration of medical treatment the patient may be in a
position to depose. In other words, considering this substantive
evidence in our considered view, not giving the specific role to any
of the Appellants while giving the history at Kurduwadi Rural
hospital, is not of much importance. Otherwise also if the
suggestion as to concoction of the entire case and concoction of
giving of the history and dying declarations at the Civil Hospital,
Solapur, is accepted then in that event, there is nothing to accept on
preponderance of probability brought on record on behalf of the
Appellants, to disbelieve P.W. Nos. 2, 4 and 6. It is significant to
note that P.W 6 Dr. Dodamani, Medical Officer is attached to Civil
Hospital, Solapur and apparently there is nothing for him to concoct
the story with the help of the police officer P.W.4 Maruti to falsely
implicate the Appellants. Moreover, it is significant to note that
P.W.2 Mohammad Shafee is a Special Judicial Magistrate who had
recorded the statement of the victim Exhibit-16. If the bare
suggestion as to concoction of the story is to be accepted, again the
evidence of P.W.2 Mohammad Shafee has to be disbelieved,
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however, it must be stated that in the absence of any material even
to accept on preponderance of probability, such defence/suggestion
has no weight so as to further defence of the Appellants.
14 It is also argued that the alleged motive of illicit relations is
not probable. Further, it is argued before us that there was in fact
no cause for the Appellant Accused No.1 to beat his own brother
Banya Kale so also there was no cause for the Appellant Accused
No.2 to beat Banya Kale. On this aspect, the case of the prosecution
and furthered by substantive evidence of P.W.1 Surekha and also
substantiated by the dying declaration Exhibit-19, cannot be
overlooked. In fact, whatever the cause for the fight/quarrel
between the Appellants on one side and Banya Kale on the other
side was due to marriage of Banya Kale with some other girl,
performed about a week prior to the incident. It is quite apparent
that considering the case of the prosecution as to Banya Kale having
illicit relations with the wife of his own brother, there was every
reason for the Appellant Accused No.1 to fight with his own brother.
So also, apparently, there was a reason for Appellant Accused No.2
to quarrel with Banya Kale when he had married with some other
girl and this has infuriated the Appellant Accused No.2. In any
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event, whether or not the motive is proper or not, is not of much
importance when the case of the prosecution is based on the
substantive evidence of P.W. 1 and P.W. 3 and also based on the
dying declarations, as detailed above. In that event, there is
nothing to interfere with the impugned Judgment and order of
conviction passed against both the Appellants as there is no merit in
the present Appeal and hence the same is, accordingly, disposed of
with following order :
:: O R D E R ::
i. Criminal Appeal No.546 of 2005, is dismissed.
ii. The present Judgment and order be communicated
to both the Appellants - original accused through the
concerned jail authorities where they are presently lodged.
(A. R. JOSHI, J) (V.K. TAHILRAMANI, J.)
