Bombay High Court
Venkatesh Ramling Kaulge vs The State Of Mah on 10 December, 2014
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 79 OF 2012
Venkatesh S/o Ramling Kaulge
Age : 36 years, Occ : Labour,
R/o Datta Nagar, Osmanabad,
Tq. & Dist. Osmanabad.
..APPELLANT
-VERSUS-
The State of Maharashtra
Through City Police Station,
Osmanabad, Dist. Osmanabad.
..RESPONDENT
...
Advocate for Appellant : Mr. V.B. Deshmukh
APP for Respondent/State : Mr. V.D. Godbharale
...
CORAM : S.S. SHINDE &
A.I.S. CHEEMA, JJ.
RESERVED ON : December 2, 2014
PRONOUNCED ON : December 10, 2014
...
JUDGMENT (PER S.S. SHINDE,J):-
1. This appeal is filed by the appellant, aggrieved by
the judgment and order passed by the Additional Sessions
Judge, Osmanabad on 27th January, 2012, thereby convicting
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the appellant for the offence punishable under section 302 of
Indian Penal Code and sentencing to suffer imprisonment for
life and to pay fine of Rs. 500/-, in default, to suffer further
S.I. for one month.
2. The case of the prosecution, in brief, is as under :-
(i)
On 01.02.2011 P.W. 2 Hanumant Ramrao
Kolangade Police Head Constable was on duty in Police
Chowki located in Civil Hospital, Osmanabad. P.W. 1 Dr.
Sushilkumar Shivajirao Sarade was a duty Medical Officer
present in the hospital on 01.02.2011. At about 12.20 p.m.
Radha Venkatesh Kaulge was admitted in Civil Hospital,
Osmanabad in burn condition. P.W.1 Dr. Sarda after
examining her, informed the duty Police constable P.W.2
Hanumant Kolangade. P.W.2 Hanumant Kolangade came to
the hospital for recording the statement of Radha. P.W. 1
Dr. Sarade examined Radha where she was conscious and fit
state of mind to give the statement. P.W. 1 Dr. Sarade found
Radha in conscious and fit to give statement, therefore, P.W. 2
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Hanumant Kolangade recorded her statement. In the
statement Radha Kaulge has stated that her husband picked
quarrel with her under the influence of liquor and poured
kerosene on her person and set her ablaze.
(ii) P.W. 2 Head Constable Kolangade submitted the
statement of Radha recorded by him to City Police Station,
Osmanabad. P.W. 10 Yeshwant Sagar who was on duty
registered the offence vide Cr. No. 36/2011 u/Sec. 307 of
Indian Penal Code on the strength of statement (dying
declaration Exh. 20). He then entrusted the investigation to
P.W. 12 API Munshi Malang Shaha Madar.
(iii) P.W. 12 Munshi Madar went to Civil Hospital,
Osmanabad and he also recorded statement of Radha Kaulge
Exh. 47. He then wrote a letter to the Executive Magistrate
P.W. 3 Dilip Yeshwantrao Deshpande Exh. 24. P.W. 3
Deshpande also ascertained from P.W. 4 Dr. Kailas Gilbile,
Medical Officer in Civil Hospital, as to whether Radha was
conscious and in fit state of health to give statement. P.W. 3
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Dilip Deshpande then recorded the statement of Radha Exh.
26.
(iv) P.W. 12 Investigating Officer Madar then visited
the spot of incident and prepared the spot panchanama Exh.
41. He also seized the Kerosene Can, half burnt curtain, plastic
flowers, red-colour Saree, match box from the room. It
appears that, Radha Kaulge jumped in the water tank which is
at a distance of 15 ft. from the spot of incident to extinguish
the flames. P.W. 12 Madar also collected water sample from
the water tank, as he noticed a layer of kerosene on the water.
(v) The accused also sustained burn injuries and he
was admitted in burn ward. The investigating officer also
seized the yellow "T" shirt from the accused which was also
burn, under the panchanama Exh. 37. He also seized the
blouse of Radha Kaulge under seizure panchanama Exh. 36.
After seizing the articles, P.W. 12 then sent the articles to C.A.
Aurangabad.
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(vi) Tahsildar Shri. Dilip Deshpande also drawn the
map of incident Exh. 27. The investigating officer also
recorded the statement of witnesses. As Radha succumbed to
her burn injuries on 15.02.2011, Section 302 was added in the
crime. The inquest panchanama Exh. 22 was drawn. P.W. 4
Dr. Gilbile also performed postmortem of Radha Exh. 32. P.W.
12 Madar also recorded supplementary statement of the
witnesses and arrested the accused on 21.02.2011. After
completion of investigation the present prosecution came to
be launched against the accused. After arrest, the accused is in
jail and as the offence under section 302 of I.P.C. is
exclusively triable by court of Sessions, the learned Chief
Judicial Magistrate on 24.06.2011 committed the case to the
Court of Sessions.
(vii) The charge u/sec. 302 of I.P. Code is framed
against the accused at Exh.6. The contents in the charge were
read over to accused in Marathi. The accused pleaded not
guilty and claimed to be tried.
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(viii) The defence of the accused, as revealed from the
tenor of the cross examination of the witnesses and from his
statement recorded under section 313 of Cr.P.C., appears to
be that of total denial. The accused stated in the statement
under section 313 of Cr.P.Code that, his wife Radha was
preparing tea and there was explosion of stove and in that
Radha sustained burn injuries. So, according to accused,
Radha sustained accidental burn injuries.
3. Heard the learned counsel appearing for the appellant
and the learned Additional Public Prosecutor for the
respondent/State. With their able assistance, we have perused
the record and also other material placed on record.
4. The learned counsel appearing for the appellant submits
that, there are three dying declarations recorded of the victim
and the version stated in the said three dying declaration is
not consistent. He further submits that, the contents of the
said three dying declarations have not been corroborated by
any sufficient evidence on record. He also submits that, the
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prosecution has failed to prove the guilt of the appellant-
accused beyond reasonable doubt. Therefore, by referring to
the contentions/grounds raised in the Appeal memo, he prays
to acquit the appellant.
5. On the other hand, the learned Additional Public
Prosecutor relying upon the reasons given in the impugned
judgment and order passed by the trial Court and also the
original record and proceedings submits that, the conviction
has been awarded by the Trial Court after considering the
evidence brought on record by the prosecution. Therefore, he
submits that, the appeal of the appellant may be dismissed.
6. This appeal raises following broad questions for
consideration/determination on facts as well as law :-
(i) Whether the death of Radha was homicidal
or accidental as claimed by the defence ?
(ii) Whether Dying Declarations of the victim
inspires confidence so as to base the
conviction on it ?
(iii) Whether there is sufficient corroboration to
the Dying Declarations given by the victim ?
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(iv) Whether there are any mitigating
circumstances, so as to accept the alternate
submission of the counsel for the appellant
that, case would fall under section 304 Part-
II and not under section 302 of I.P. Code ?
7. The death of Radha as per opinion
expressed in P.M. Report was shock due to superficial to deep
burns 88%. Dr. Sushilkumar Shivajirao Sarode, who was
working as Medical Officer, Civil Hospital, Osmanabad at the
relevant time, in his evidence before the Court, when
suggestion was given to him that, death was accidental, has
denied the said suggestion and stated that, when statement of
Radha was recorded by the head constable Kolangade prior to
it he examined her and found that, she was conscious,
oriented and in a fit mental condition to give statement and
accordingly he put endorsement on dying declaration that,
the patient is conscious and well oriented to give the
statement. He further deposed that, the head constable
Kolangade recorded her statement in his presence. The
recording was done in question and answer form by police
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head constable Kolangade. Victim narrated the incident. He
was present throughout recording of the statement. She stated
that, at about 12 noon she was present in the house. She
further stated that, as usual her husband Venkatesh came in
the house under influence of liquor and then picked up
quarrel with her and said that, he will set her on fire. She
further stated that, husband poured kerosene on her body and
set her on fire and she sustained burn injuries on her stomach,
leg, face, back and hands. She further stated that, she has
complaint against her husband. The head constable Kolangade
again requested this witness to medically examine Radha, and
he examined Radha and found that, Radha was in conscious,
well oriented with time, place and person. Again he certified
about her fitness about 1.10 p.m. He also signed below the
endorsement. The contents of the Dying Declaration are
correct. The said contents of Dying Declaration were read over
to Radha by the head constable Kolangade and she admitted
that, the contents are true and correct. He has denied the
suggestion that, morphine injunctions were administered to
victim. He has further denied the suggestion that, Radha was
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not in conscious state of health and not in a position to give
statement. He has further denied the suggestion that, the burn
injuries sustained by Radha are accidental injuries. Therefore,
if the postmortem report coupled with the evidence of Medical
Officer is read in its entirety, the prosecution has established
beyond reasonable doubt that, the death of Radha was
homicidal and not accidental as claimed by the defence.
8. It appears that, there are three Dying Declarations
of victim coupled with one oral Dying Declaration to her
father. One Dying Declaration was recorded by the Police
head Constable Kolangade. Upon perusal of the contents of
the said Dying Declaration, it is stated by the victim that, as
usual husband came after consuming liquor and poured
kerosene on her person and set her on fire. It is further stated
in the Dying Declaration that, on 1 st February, 2011 when she
was in the house at about 12 noon, the husband came under
influence of liquor and started abusing her and said that, he
will set her on fire and accordingly poured kerosene on her
person and she was set on fire. She sustained the injuries on
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her stomach, leg, face, back and hands, and therefore, she has
complaint against her husband. It is further stated that, the
contents of the said Dying Declaration are read over to her
and those are correct as per her narration. Upon perusal of
Dying Declaration at Exhibit - 53, it is abundantly clear that,
there is an endorsement of doctor and also the police head
constable. The necessary requirement has been fulfilled,
therefore, the said Dying Declaration is perfectly sustainable
in law. The said Police constable Kolangade is also examined
as PW-2. He has stated in his examination-in-chief that, he did
ask the name of victim, also her age, her residence and after
satisfying himself that, the victim is in conscious state of mind
and fit mental condition recorded her Dying Declaration. He
further deposed that, he asked victim as to the cause of her
burning, in reply, she stated that, her husband used to quarrel
with her and today also there was quarrel and in that, her
husband poured kerosene on her and set her on fire. She also
told that, her husband was under the influence of alcohol.
When he asked, how she extinguished the fire then she replied
that, she jumped in a water tank and extinguished the fire.
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She further told that, her relatives brought her in a hospital
and admitted her. In cross-examination of this witness, he
further deposed that, the statement was read over to Radha
and the contents thereof are true and correct and per her
narration. It appears that, the defence gave many suggestions
to this witness, however, he denied the suggestions given by
the defence. He has also stated that, he drew inquest
panchanama. He further deposed in cross examination that
Radha sustained burn injuries on her entire body. He has
specifically denied the suggestion that, Radha was in drowsy
condition while recording the statement. He has further
denied the suggestion that, as Radha was not in a state of
health to give statement and her father was giving tips at the
time of recording the statement. He further deposed that,
while recording the dying declaration the Medical Officer was
very much present and he put his endorsement at the
beginning of recording the Dying Declaration and also after
recording the Dying Declaration. Therefore, upon perusal of
the evidence of PW-1 and PW-2, the prosecution has proved
beyond reasonable doubt the contents of the Dying
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Declaration at Exhibit - 53.
9. There is another Dying Declaration recorded by
the Executive Magistrate at about 20.10 p.m. on 1 st February,
2011 i.e. the date of incident. It appears that, after completing
all the formalities, the Executive Magistrate, Osmanabad has
recorded her statement in question-answer form. It appears
that, while replying question no.11 regarding her trouble the
victim stated that, the husband under influence of liquor used
to quarrel with her. While replying the question no.12 as to
how she got burnt she stated that, the husband poured
kerosene on her person and set her ablaze and she sustained
injuries on her whole body. In order to save herself, she
jumped in water tank, which was in courtyard of the house as
it is reflected. If this Dying Declaration is perused careful, so
far act attributed to the accused is same like in Dying
Declaration recorded by the Police Constable Kolangade. It
further appears that, on all over body she sustained injuries
and in order to save herself she jumped in water tank, which
is in courtyard of the house. It appears that, on this Dying
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Declaration there is endorsement of doctor Kailas C. Gilbile.
Upon careful perusal of his examination-in-chief, he stated
that, he examined Radha and found that, she is in fit mental
condition and also conscious and well oriented to give the
Dying Declaration. The Naib Tahsildar, Deshpande recorded
the Dying Declaration in his presence after ascertaining that,
she is in fit condition to give Dying Declaration. He has further
examined Radha as to whether she was conscious after
recording the statement and he found that, Radha was
conscious state of health even after recording of Dying
Declaration was over. This witness has specifically denied the
suggestion that, the burn injuries sustained by the victim are
possible in case of explosion of stove and catching the Sari by
fire in that. He has specifically stated that, it is not correct to
say that, the burn injuries sustained by Radha are possible in
accidental burn incident. He has further stated that, Radha
sustained burn injuries on her lungs, chest and abdomen.
There were burn injuries to the extent of 14% on the chest
and abdomen. Lungs, abdomen and chest are the vital parts of
the body. He has denied the suggestion of accidental burn
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repeatedly on more than one occasion.
10. Naib Tahsildar - Dilip Yeshwantrao Deshpande
was examined as PW-3. We have carefully perused his
evidence. He has stated in his evidence that, he asked Radha
about her age, her children, in-laws so as to ascertain that, the
victim was in fit mental state of mind to give her statement
and he then started recording of Dying Declaration at about
8.10 p.m. He asked Radha in question and answer forms in
Dying Declaration. He asked Radha about the incident. Radha
told him that, at about 11.00 to 12.00 a.m. her husband came
under intoxication at home and he started raising quarrel with
her. He started throwing utensils from the house. When Radha
interrupted her husband at that time her husband poured
kerosene on her person and set Radha on fire. This witness
made endorsement that, the Dying Declaration was recorded
in presence of Dr. Gilbile. The said Dying Declaration was read
over to Radha and she has stated that, the contents of the said
Dying Declaration are correct as per her narration. The
defence has given few suggestions, however, from the answers
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given in cross-examination, nothing helpful to the defence has
been brought on record during cross-examination. Therefore,
the prosecution has proved the contents of the Dying
Declaration Exhibit - 26 through P.W.3 and PW-4.
11. There is also a statement recorded of Radha at
Exhibit -47 on 1st February, 2011 by the Police Sub-Inspector,
Police Station, Osmanabad. More or less the contents of the
statement are same like earlier two Dying Declarations so far
attributing the overt act to the accused. This statement is not
in question answer form but it appears that, the statement of
the victim is recorded wherein she stated that, on 1 st
February, 2011 at about 10 a.m. the husband Venkatesh came
under influence of liquor and started throwing household
articles. Both the daughters namely Vaishnavi and Vaibhavi
went to the school. At about 12 noon, the husband again came
under influence of liquor when the victim was washing the
clothes. He dragged the victim in the house and poured
kerosene from Can. When victim tried to rescue herself by
running from one room to another, the husband ignited
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matchstick and set her on fire. She sustained injuries on her
body. One Mr. Sagar Malhari Irkar, who is son of sister-in-law
came out of bathroom. She ran towards water tank. Then said
Sagar came with Rickshaw and took her to hospital. She
sustained injuries all over body. Her blouse and Petticoat were
burnt and therefore, she has complaint against her husband.
12.
PW-12 Munshi Malangshaha Madar in his
evidence before the Court stated that, the husband of victim
came under the influence of liquor at that time, Radha was
washing the clothes. Radha told him that, accused then
dragged her in the house and poured kerosene on her person
from the kerosene Can. She tried to escape by running in
another room, at that time accused lighted the matchstick and
thrown the stick on her body and set her on fire. PW-12 in his
evidence has stated that, he identified the said statement and
also the thumb impression of the victim. He further deposed
that, the accused also sustained burn injuries to his hands,
legs and face and chest. This witness also seized `T' shirt of
the accused in presence of two panchas, which was also burnt
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. This witness identified the panchanama Exhibit - 37 and the
signature on it. He admitted that, the contents of said
panchanama are correct. This witness also seized the blouse of
victim from the hospital which was also burnt. He identified
the said panchanama Exhibit - 36 and signature on it.
13. igPerusal of the spot panchanama recorded by the
Police Sub-Inspector, Osmanabad shows that, the house has
two doors. Adjacent to it, there is 10 Ft. x 12 Ft. room. It is
noted that, the tiles of the said room were having smell of
kerosene and also there were burnt pieces of Sari and
matchstick box and there were also burnt pieces of matchstick.
Curtain of the door was also burnt. In another adjacent room,
red burnt pieces of Sari and half burnt curtain was lying on
the tiles of the room. Flowers of Artificial Garland was lying
there. There were photos of God and Sofa set. In another
adjacent room, one white colour can of kerosene filled with 2
liter of kerosene was found in burnt condition on the floor. In
that room and in the back side of room there were domestic
articles and Courtyard having tiles and water tank containing
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3 ft water and on the water burnt pieces of cloth were seen
floating. It is also stated that, white colour can of five liter,
plastic flowers, white colour curtain having flowers of dark
colour, and burnt pieces of Nylon Sari of red colour, matchbox
a bottle containing 180 M.L. water from the water tank were
seized and sent to the C.A.
14.
Upon careful perusal of the spot panchanama and
recovery of the articles from the spot, it is abundantly clear
that, there was no stove, and therefore, possibility of
accidental burns by bursting of stove, as stated by D.W.1 or
the accused in his defence cannot be accepted and more so the
Medical Officer has clearly opined that, the accidental death is
ruled out.
15. There is also oral dying declaration made by the
victim to the father of the victim namely Manik Bhanudas
Devalkar (PW-7) complainant. In the light of the discussion in
foregoing paras, it is abundantly clear that, two dying
declarations at Exhibit 19 and Exhibit 24 are duly proved by
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the prosecution. There is also statement of victim recorded by
PW-12 at Exhibit - 47 narrating the entire incident. The
version of the victim, which is stated in the dying declarations
at Exhibit - 19 and 24 earlier and also oral dying declaration
to the PW-7 also corroborates each others and same have been
duly proved by the prosecution through Medical Officer - Dr.
Kailas Gilbile(PW-4), Police Head Constable - Hanumant
Kolangade (PW-2) and Executive Magistrate - Dilip
Yeshwantrao Deshpande (PW-3). Therefore, the said dying
declarations deserve acceptance.
16. At this stage, the learned counsel appearing for
the appellant by way of alternate submission submitted that,
in case, this Court is not inclined to acquit the appellant in
that case, the appellant's case may be considered under
Exception 4 of Section 300 of the I.P. Code. According to the
learned counsel appearing for the appellant, the evidence
shows that, the incident occurred suddenly and in the course
of sudden quarrel. It is further submitted that, there was no
premeditation. The accused had suffered burn injuries, and
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therefore, the conviction under section 302 may be modified
to 304 part II of the I.P. Code. In support of aforesaid
submission, the learned counsel appearing for the appellant
placed reliance on the judgment in the case of Dilip Janaba
Kamble V/s State of Maharashtra reported in 2013(4)
Mh.L.J.(Cri.) 603, and in the case of Dhirajbhai Gorakhbhai
Nayak V/s State of Gujarat reported in (2003) 9 SCC 322.
17. As already observed, we are not inclined to
interfere in conviction order of the trial Court. In order to
appreciate the contention of the learned counsel appearing for
the appellant, there was no premeditation and preplanning on
the part of the appellant, it would be apt to consider the
evidence of PW-7 i.e. complainant. PW-7 i.e. father of the
victim in his evidence before the Court stated that, the
marriage between accused and Radha was solemnized seven
years back. After marriage, Venkatesh i.e. accused, under
influence of liquor used to quarrel with Radha and also used
to beat her. He lodged a complaint against the accused before
Woman Redressal Forum, Osmanabad. Thereafter the dispute
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between his daughter and accused was compromised because
accused told that, he would not harass Radha. This witness
has specifically stated that, prior to four-five days of the
incident Radha and Venkatesh came at Jagji. Radha was
telling him and his wife that, accused used to beat her as did
earlier, abused under intoxication. The complainant and his
wife gave understanding to the accused to behave properly
and sent Radha with accused.
18. Victim in dying declarations stated that, after she
was set on fire, to save herself she jumped in water tank, and
therefore, it is not possible to accept the version of the accused
that, he tried to extinguish the fire. Upon careful consideration
of one of the dying declarations, it appears that, the appellant
dragged victim inside the house and then poured kerosene,
therefore, it cannot be said that, the accused had no intention
to kill Radha.
19. The evidence of DW-1 Sagar Malhari Irkar that,
Radha died due to accidental burns due to bursting of stove is
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falsified by the recovery of articles from the spot panchanama,
in which there is no recovery of stove and also opinion of the
Medical Officer that, death was homicidal. There is nothing in
spot panchanama, which would show that, stove was there at
the spot of the incident. In the light of discussion in the
foregoing paragraphs, in our considered view, the impugned
judgment and order needs no interference. The findings
recorded by the Trial court are in consonance with the
evidence brought on record. There is no perversity as such.
The appeal sans merit, stands dismissed.
Sd/- Sd/-
( A.I.S. CHEEMA, J. ) ( S.S. SHINDE, J. )
...
sga/-
