Balasaheb Rangnath Waghmare vs The State Of Maharashtra
2012 Latest Caselaw 379 Bom

PPD

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                                                                 APEAL.1367-04JUDGMENT.doc




                                                                                 
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION




                                                         
                          CRIMINAL APPEAL NO.1367 OF 2004

      Balasaheb Rangnath Waghmare,                   ]




                                                        
      C. No.4405,                                    ]
      Presently confined in Nashik                   ]
      Road Central Prison  (N.R.C.P.),               ]




                                          
      Nashik Road - 422 101                          ]
      (Maharashtra).
                 Versus
                              ig                     ] ..Appellant.
                            
      The State of Maharashtra                       ] ..Respondent
                                          ....
      Mr. D.G. Khamkar, Advocate (appointed) for the Appellant.
        


      Mrs. S.V. Gajare - Dhumal, APP for the Respondent - State.
     



                                          ....
                               CORAM :   SMT. V. K. TAHILRAMANI, &  
                                          A. R.  JOSHI,  JJ. 

DATE : 21st NOVEMBER, 2012

JUDGMENT: [PER A. R. JOSHI, J.]

1. Heard rival arguments on this Criminal Appeal

preferred by the appellant/orig.accused challenging his

conviction in the matter of offence punishable under Section 302

of Indian Penal Code.

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2. The appellant/accused was convicted vide judgment

and order dated 27.1.2004 passed by II Adhoc Additional

Sessions Judge, Nashik in Sessions Case No.3 of 2003. For the

offence punishable under Section 302 of IPC, the appellant was

sentenced to suffer imprisonment for life and to pay fine of

Rs.3000/- in default to suffer RI for six months. However, he

was acquitted for the offence punishable under Section 498A of

Indian Penal Code. Admittedly, there is no appeal preferred

against the acquittal of the appellant for the charge under

Section 498A of IPC. The accused challenged his conviction for

the offence punishable under Section 302 of IPC. From the date

of arrest of the appellant till date, the appellant is in custody.

3. The case of the prosecution in nutshell is as under :-

The appellant/accused and deceased married

sometime in March, 2002. After some days, the appellant

started ill-treating his wife mainly on account of doubting her

character. At times, he used to assault her. He was addicted to

drinking liquor. Victim Rekha used to complain to her mother

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regarding ill-treatment caused to her at the hands of the

appellant/accused. However, mother of the victim had already

lost her husband, and as such was a poor illiterate widow, unable

to take any action against the appellant/accused regarding his

conduct. Apparently, victim Rekha was silently suffering ill-

treatment. However, the situation did not last long even for a

year, as within about 7 - 8 months of the marriage, the fateful

incident occurred in which victim Rekha was set on fire by the

appellant/accused. Said incident occurred on the night of

8.11.2002. It was in fact last day of Diwali celebrations and it

was Bhaubeej Day. On that evening, victim Rekha came to her

matrimonial home from the house of her mother and that time

she was wearing a sort of garland of red colour flowers on her

hair. Apparently, the appellant/accused became infuriated on

seeing flowers on the hairs of victim and he started abusing her

probably on account of suspecting her character. He also took up

quarrel with his wife Rekha on the ground that why she had not

gone to his brother for the occasion of Bhaubeej. He assaulted

her with kicks, fist blows and also stick blows on her back and

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abdomen. After such assault also, the appellant/accused did not

stop, but poured kerosene on her person and set her on fire.

Victim Rekha raised shouts for help. Nearby villagers started

collecting near the spot of the incident. Seeing this, the accused

poured water on the person of victim Rekha trying to extinguish

the fire. Intimation reached to the mother and other relatives of

the victim. They attended the house of the victim and the

appellant, and took her to the hospital in a vehicle. On way to

the hospital, victim Rekha informed her mother and other

relatives that her husband/appellant had poured kerosene on her

person and set her ablaze. As per the medical report, she had

sustained 91% burn injuries almost on all parts of the body.

When victim Rekha was taking treatment in Civil Hospital,

Nashik, one Head Constable Baburao visited the hospital and

after ascertaining the condition of the victim from the attending

doctor and after obtaining relevant endorsement, recorded

statement of the victim on 8.11.2002. It was treated as First

Information Report (Exhibit-26). Initially offence was registered

against the appellant/accused under Section 307 of Indian Penal

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Code. On the same day night, at about 22:00 hours Special

Judicial Magistrate one Ashok Deshpande (PW-2) attended the

hospital and recorded the dying declaration of the victim after

obtaining endorsement of the attending Medical Officer and after

ascertaining that the victim was conscious and fit to give

statement. Said dying declaration is Exhibit-17 in the record and

proceedings, wherein the witness had narrated the same story as

to the assault at the hands of appellant/accused and subsequently

pouring kerosene on her person and setting her on fire.

4. While under treatment in the hospital, victim Rekha

succumbed to the injuries on 14.11.2002 and as such the

offence which was initially registered under Section 307 of IPC

was converted into Section 302 of Indian Penal Code.

5. During the investigation, spot panchnama was

conducted after visiting the house of the appellant/accused.

Match box, plastic can having smell of kerosene and other

articles and half burnt clothes were seized. Statement of

witnesses were recorded. Appellant/accused was put under

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arrest and after completion of investigation, charge-sheet was

filed.

6. During the trial, total seven prosecution witnesses were

examined. It is seen that there are two written dying

declarations - one Exh.26 a statement of the victim recorded on

8.11.2002 by PW-7 police head constable Baburao and which is

treated as FIR, second one is Exh.17 recorded by PW-2 Ashok

Deshpande, Special Judicial Magistrate which is in question and

answer form.

7. Apart from these two written dying declarations, there

are three oral dying declarations given to PW-3 Sangita cousin of

the victim, PW-4 Alka Suryavanshi mother of the victim, and PW-

5 Dipak Suryawanshi relative of the victim. These oral dying

declarations were made by the victim to those relatives while on

her way to the hospital when she was taken from the spot in a

vehicle for medical treatment. PW-6 was the panch witness for

spot/scene of offence.

8. During the arguments, learned Advocate for the

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appellant/accused mainly assailed the written dying declarations

on the ground that the Doctor who allegedly gave endorsement

vouching for the consciousness and fitness of the victim to give

statement, has not been examined. Secondly, both dying

declarations gave different account and as such are unreliable.

9. Prior to discussing the main thrust of the argument

advanced on behalf of the appellant/accused as mentioned

above, certain factual position is required to be narrated in order

to have proper perspective of the matter and also to ascertain

whether the case of the prosecution is required to be accepted

considering the material brought on record, sufficient to prove

guilt of the accused beyond reasonable doubt. Such factual

position is as under :-

(a) Marriage between the victim and the accused was

performed on 21.3.2002 and immediately within a span of eight

months, the incident happened. (b) Pouring of the kerosene on

the person of the victim and setting her ablaze has happened on

the evening of 8.11.2002 and while under treatment the victim

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succumbed to the injuries on 14.11.2002 when she had 91%

burn injuries almost on her all parts of the body. (c) The

statement of the victim recorded by PW-7 Police Head Constable

Baburao was treated as FIR on 8.11.2002, and immediately on

9.11.2002 the appellant/accused was put under arrest.

10. Bearing in mind the aforesaid factual position, the sole

argument advanced on behalf of the appellant is discussed

hereunder. It is to be ascertained whether there is material

difference so far as contents of both the written dying

declarations are concerned. On this aspect, it is argued on behalf

of the appellant that the statement of the victim (which is at

Exh.26) contain the cause for which the victim was set on fire

and it was to the effect that the appellant/accused assaulted the

victim on the ground as to why she had not been to the house of

his brother on the occasion of Bhaubeej ceremony. As against

this cause, in another dying declaration (Exhibit-17) recorded by

the Special Judicial Magistrate it is mentioned that the

appellant/accused assaulted the victim on account of she

wearing red flowers on her hair on that evening and that he was

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suspecting the character of the victim.

11. We have carefully gone through the contents of both

these dying declarations. By noting the contents of these dying

declarations, it is seen on the material aspect as to the assault at

the hands of the appellant/accused on the victim and pouring of

the kerosene on her person and setting her on fire by the

appellant, both the dying declarations are in consonance with

each other. In other words, it is observed that there is no

variance in the contents of both the dying declarations so far as

involvement of the appellant in the act of pouring kerosene and

setting the victim on fire. Moreover, it is seen that the second

dying declaration recorded by PW-2 Special Judicial Magistrate is

in question and answer form. Otherwise also the contents of

these two written dying declarations are to be viewed in

juxtaposition of the substantive evidence of prosecution

witnesses - PW-3 Sangita Shirsat, PW-4 Alka Suryavanshi & PW-5

Deepak Suryavanshi. At the cost of repetition, it must be

mentioned that while on the way to the hospital the victim

narrated the incident to these witnesses and taken name of the

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appellant / her husband as to the person who poured kerosene

on her person and set her on fire. On careful perusal of the

substantive evidence of these witnesses, it is found out that the

part of such substantive evidence as to victim making oral dying

declarations before death is not at all hit by any infirmity or

omission or otherwise vis-a-vis their statements recorded by the

police under Section 161 of Cr.P.C.. In that event, their testimony

cannot be doubted as to victim making oral dying declarations

before them and taking name of the appellant/accused as an

offender.

12. For the reasons mentioned hereinabove and after

ascertaining the reasonings given by the trial Court in arriving at

the conclusion on the conviction of the accused for the offence

punishable under Section 302 of Indian Penal Code, in our

considered view, there is nothing to interfere with the said

judgment and order of conviction challenged in the present

appeal. Hence, there is no merit in the present appeal and the

same is accordingly dismissed.

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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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