Bombay High Court
Rangnath S/O Bajirao Khadke vs The State Of Maharashtra And ... on 23 August, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 422 OF 2014
WITH
CRIMINAL APPLICATION NO. 6431 OF 2014
(For condonation of delay)
WITH
CRIMINAL REVISION APPLICATION ST. NO. 267 OF 2014
* * * * *
CRIMINAL APPEAL NO. 422 OF 2014
Vishnu s/o. Asaram Kanade .. Appellant
Age. 35 years, Occ. Government Service,
R/o. Balasgaon, Tal. Gangapur,
Dist. Aurangabad.
Versus
The State of Maharashtra .. Respondent
Mr. N.S. Ghanekar, Advocate for the appellant.
Mr. A.R. Borulkar, A.P.P. for respondent/State.
Mr. H.V. Tungar, learned Counsel assist to A.P.P.
WITH
CRIMINAL APPLICATION NO. 6431 OF 2014
(For condonation of delay)
WITH
CRIMINAL REVISION APPLICATION ST. NO. 267 OF 2014
Rangnath s/o. Bajirao Khadke .. Applicant
Age. 55 years, Occ. Agriculture,
R/o. Itkheda, Tq. & Dist. Aurangabad.
Versus
::: Uploaded on - 23/08/2016 ::: Downloaded on - 24/08/2016 00:42:50 :::
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1. The State of Maharashtra .. Respondents
2. Vishnu s/o Asaram Kanade
Age. 36 years, Occ. Police,
R/o. Plot No.38, Samrat Nagar,
Satara Parisar, Aurangabad.
Mr. H.V. Tungar, Advocate for the applicant.
Mr. A.R. Borulkar, A.P.P. for respondent/State.
Mr. N.S. Ghanekar, Advocate for respondent No.2.
ig CORAM : A.V.NIRGUDE &
V.K.JADHAV,JJ.
RESERVED ON : 27.06.2016
PRONOUNCED ON : 23.08.2016
JUDGMENT : [PER : A.V. NIRGUDE,J.] :-
1. The delay caused in filing Criminal Revision
Application is condoned for the reasons stated in the
Criminal Application. Criminal Application No.6431 of
2014 for condonation of delay is allowed.
2. Both the Criminal Appeal and the Criminal
Revision Application can be disposed of by this common
judgment, as they arise from judgment dated 10.07.2014
delivered by the Additional Sessions Judge, Aurangabad,
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in Sessions Case No.184 of 2013 convicting accused -
Vishnu for the offence punishable under section 302 of
the Indian Penal Code and sentenced him to suffer life
imprisonment and to pay a fine of Rs.10,000/- with a
default clause. Accused - Vishnu was further convicted
for offence punishable under section 498-A of the Indian
Penal Code and is sentenced to suffer rigorous
imprisonment for three years and to pay a fine of
Rs.5000/- with a default clause. The Criminal Appeal is
filed by the accused for seeking his acquittal; whereas
the original complainant has filed Criminal Revision
Application for seeking death penalty to the accused.
3. The prosecution case alleged that accused -
Vishnu murdered his wife by setting her on fire on
13.02.2013 at about 9.00 p.m. at his house situated at
Aurangabad. It was also alleged that accused Vishnu also
treated his wife Vaishali with cruelty so as to
constitute offence punishable under section 498-A of the
Indian Penal Code. In addition to this, the prosecution
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also alleged that accused - Vishnu assaulted his wife and
thereby committed offence punishable under sections 323,
504, 506 of the Indian Penal Code.
4. The prosecution tried to prove its case by
examining in all ten witnesses. On the other hand,
Vishnu examined himself as D.W.1 and examined two more
witnesses as defence witnesses. The evidence that came
on record through depositions, in short, can be stated as
under :-
5. P.W.3-Shital and P.W.4-Vishal are child
witnesses aged about 13 and 10 years respectively and are
eye witnesses. They stated that they are children of
accused - Vishnu and deceased - Vaishali. At the time of
incident their family used to stay in Satara area of
Aurangabad town. P.W.3-Shital stated that at the time of
incident she was 7th standard student. Accused - Vishnu
is her father and was working as a Police Constable in
open jail at Paithan. Vishnu used to go to job in the
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morning and come back in the evening. Vishnu was
habituated to drinking. He used to come home in drunken
condition. He used to quarrel with her mother -
Vaishali. He would abuse and assault her. On 13.02.2013
at about 8.00 to 8.30 p.m. Vishnu came to their house in
drunken condition. P.W.3-Shital, her brother P.W.4-
Vishal and their mother - Vaishali were present in the
house. Vishnu watched TV for sometime. Suddenly he
started giving abuses to Vaishali. He pushed Vaishali in
the kitchen. Then he picked-up kerosene tin from kitchen
and poured kerosene on Vaishali's person. P.W.3-Shital
asked accused - Vishnu as to why he was behaving in such
a manner. Accused - Vishnu pushed both the children out
of kitchen and asked them to sit on sofa in sitting room.
He also threatened them not to shout. Accused - Vishnu
then entered in the kitchen, picked up match-box and with
the help of match-stick set Vaishali on fire.
Thereafter, accused - Vishnu went inside bath room.
P.W.3-Shital and her brother P.W.4-Vishal threw water and
milk which they found in refrigerator on the person of
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Vaishali. P.W.3-Shital brought bucket full of water kept
near bath room. She poured water on Vaishali's body.
Vaishali fell down on the floor. P.W.4-Shital brought
one red blanket and spread it on Vaishali's body. By
then, accused-Vishnu came out of bath room, put one shawl
and petticoat on Vaishali's body. Accused-Vishnu told
his children that he would go to hospital with Vaishali
and would come back to take them. Accused-Vishnu then
took Vaishali to hospital. Using mobile phone of
Vaishali, P.W.4-Vishal made phone call to their grand
father P.W.5-Rangnath (Vaishali's father). P.W.5-Rangnath
came there. P.W.3-Shital and P.W.4-Vishal narrated the
incident to P.W.5-Rangnath. P.W.4-Vishal who was 10 years
old boy, repeated what is stated by his sister earlier
almost in verbatim.
6. Dr. Bipin Miniyar was P.W.10. He stated that
on 13.02.2013, he was working as a Medical Officer at
Bembde Hospital. At about 10.00 p.m., Vaishali was
brought to the hospital by her husband Vishnu. Vaishali
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had sustained burn injuries. She was taken to casualty
section of the hospital. After primary treatment, she
was admitted to hospital. He completed admission process
and asked history of burn injuries. He prepared MLC
papers of Vaishali's case and then sent them to police
station at about 10.30 p.m. He admitted that the cause
of burn injury was not mentioned in MLC papers since by
that time Vaishali had not given history of injuries. He
admitted that from the hospital, Satara Police Station of
Aurangabad is at a walking distance of five minutes.
7. Vaishali told him that her husband poured
kerosene on her person and set herself on fire. He
mentioned this fact in the case papers.
8. On 16.02.2013 when the Police came to his
hospital for recording Vaishali's dying declaration, he
was present there. It was, he who endorsed for the
police that Vaishali was conscious and was oriented etc.
at the time of recording of her statement. This witness
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further admitted that he did not inform the police that
Vaishali had sustained injuries due to an assault. He
admitted that he had no talk to any Police Officer of
Satara Police Station, even on phone. He also admitted
that in the case papers, sentence "patient's husband
poured kerosene on her and ignited" was added using a
different pen. He also admitted in cross-examination
that for the first time before the Court he had disclosed
that Vaishali had told him about history of homicidal
burns. He further admitted that after Vaishali's death,
photocopies of case-papers were given to police. On
14.02.2013 he had no occasion to meet the police. Till
15.02.2013, police had not taken any cognizance of the
incident. Between 13.02.2013 and 15.02.2013 Vaishali was
conscious, oriented and was able to give her statement.
He did not feel it necessary to inform Police about
Vaishali's history of assault till morning of 16.02.2013.
The prosecution also produced on record Vaishali's
admission papers of Bembde hospital.
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9. P.W.5-Rangnath in his deposition stated that on
13.02.2013 he received phone call of his grand-son P.W.4-
Vishal at about 10.00 - 10.30 p.m. On hearing news of
Vaishali's mishap, he and his son Babasaheb came to the
house of the accused using a motor-cycle. They found
P.W.3-Shital and P.W.4-Vishal (children) standing at the
gate of the house. The children told him that they were
not aware as to where their father had taken their
mother. So, P.W.5-Rangnath and his son Babasaheb took the
children to their house. From there, they came back to
search Vaishali. Soon, they received Vaishali's phone
call, who told them that she was in Bembde Hospital.
P.W.5-Rangnath went to Bembde Hospital and saw Vaishali
in Ward No.104. She told him that her husband Vishnu
poured kerosene on her person and set her on fire. She
further told him that Vishnu came home in drunken
condition, abused her and suspected her character. After
10 days, Vaishali died during treatment.
10. P.W.6-Parigabai stated that after she learnt
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that her daughter suffered burn injuries and was admitted
to hospital, she went there and saw Vaishali. Vaishali
told her that her husband - Vishnu suspected her
character. He poured kerosene on her person and set her
on fire.
11. P.W.7-Dr.Bembde stated in his deposition that on
13.02.2013 at about 10.00 p.m. accused-Vishnu brought
Vaishali to his hospital with 85% deep burn with lung
injury. He started Vaishali's treatment. On 16.02.2013,
P.W.8-Kachmande-Police Inspector of Satara Police Station
gave requisition letter about Vaishali's fitness to give
dying declaration. On 16.02.2013 at about 11.00 a.m. he
examined Vaishali and found her fully conscious and
oriented. Thereafter, P.W.8-P.S.I. Kachmande recorded
Vaishali's statement, in presence of another Dr.Bipin
Miniyar.
12. P.W.8-P.S.I. Kachmande stated that on 16.02.2013
while he was working at Satara Police Station as Sub-
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Inspector, M.L.C. was received at the police station and
Police Inspector asked him to go to the place of incident
and prepared spot panchanama. He went to the house of
the accused and prepared panchanama. Thereafter, his
superior officer directed him to go and record statement
of injured Vaishali. He went to the hospital and then
recorded Vaishali's statement. Vaishali told him that
the accused had set her on fire etc. He recorded her
statement and obtained her thumb impression. He,
thereafter, handed over this statement to Police
Inspector.
13. P.W.9-Baburao Kanje is Police Inspector of
Satara Police Station, who investigated the offence. He
stated that while he was attached to Satara Police
Station on 16.02.2013, he was entrusted with
investigation of Crime No.26 of 2013, which was based on
Vaishali's dying declaration dated 16.02.2013. During
investigation, he found that on 14.02.2013 M.L.C. from
Bembde Hospital had reached the Police Station at about
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00.20 hours. He noticed from the M.L.C. that after it
was registered at the Police Station, enquiry was handed
over to one Police Head Constable - Pradhan.
14. For defending his case, appellant - Vishnu
entered witness box as defence witness and stated that on
the day of incident, he and his family were residing in a
house belonging to one Jadhav on rental basis. On the
first floor of the house, the landlord, his wife and his
grown-up children were residing. Rohit was landlord's
son. He was about 23-24 years old college student. The
stair-case to go to the first floor of the house was
abutting the entrance of his house. On the day of
incident, he had night duty from 4 p.m. till next day
morning. On that day at 4.00 p.m. he went to attend the
duty. At 5.00 p.m., he came back to Aurangabad for
attending a wedding ceremony of a friend's relative.
But before going to the wedding, he came home. He found
that his wife and children were not present in the house.
The door was latched from outside. He made phone call to
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Vaishali utilizing his mobile phone. Vaishali did not
pick up her phone. He kept waiting outside his house in
few minutes time, he noticed Vaishali stepping down from
the first floor. When she saw him, she got frightened.
He asked her as to why she had gone to the house of the
landlord to which she replied that she went there to call
her children, who had gone there for playing computer
games. He and his wife then entered their own house.
While they were in side the house, Rohit entered their
house without knocking at the door and went up to the
door of the bed-room. He saw Vishnu and got frightened.
He tried to explain that he came there to tell Vaishali's
that her children were playing computer game in his
house. He left thereafter. Vaishali was already knowing
that children were playing in her house and yet Rohit had
come to Vishnu's house. Vishnu felt suspicion.
Thereafter, the children came home. Vishnu asked
Vaishali as to whether she had love affair with Rohit.
Vaishali then made phone call to her father. She started
talking to her father about some other subject, but did
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not answer Vishnu's question. She tried to change
Vishnu's subject. Vishnu continued to feel suspicious
about her conduct. Thereafter, Vishnu went for attending
the wedding. Vishnu came back home and told his wife
that he would call his family members and even Vaishali's
parents and brothers to discuss about the incident. He
then removed his shirt and pant and went inside the bath
room for taking wash. While he was inside, he heard
shouts. He came out and saw Vaishali was burning. He
took some water in bucket from bath room and threw on her
person and tried to extinguish the fire. He then started
to put on his clothes. He heard Vaishali's talking to her
parents on phone telling them that she had burnt herself.
He took the phone from Vaishali's hand and talked to
Vaishali's brother Babasaheb, who asked him that Vaishali
should be brought to Bembde Hospital. Vishnu then came
out and went in search of an auto-rickshaw, but could not
find auto-rickshaw. So, he came back home and asked
Vaishali whether it was possible for her to sit on motor-
cycle. She then sat on motor-cycle and then they went to
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Bembde Hospital. Vaishali's father and brother were
already present there. Vaishali was admitted to hospital.
Vishnu alleged that he was falsely implicated in this
case by his brother-in-law and father-in-law.
15. In the cross-examination Vishnu admitted that
earlier he had some dispute with Vaishali and Vaishali
had made complaint against him etc. But, in 2010-11,
there was no dispute between him and Vaishali. He also
admitted that the incident about Rohit entered in his
house and walking up to bed-room was not disclosed to his
father-in-law and others.
16. D.W. No.2 was Somnath, who is Vishnu's relative.
He stated that on 13.02.2013, he received phone call of
Vaishali's father at about 10.30 p.m. stating that due to
quarrel between Vaishali and Vishnu, Vaishali set herself
on fire and was then admitted to Bembde Hospital.
Somnath and his family members rushed to the hospital.
Before reaching the hospital, he received another phone
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call. This time Vaishali's brother Madhukar too told him
that Vaishali had set herself on fire. Somnath then went
to see Vaishali in the hospital. Vaishali told him that
she had set herself on fire.
17. Learned Counsel for the appellant asserted that
having regard to the circumstances that are brought on
record in this case, both by the prosecution as well as
by the defence, the delay in recording of F.I.R. has
destroyed credibility of the case. He also asserted that
there is a strong possibility of tutoring the victim as
well as child witnesses. Lastly he asserted that the
defence is probable and can safely be accepted.
18. The questions that are to be decided in this
case are :-
(i) Whether there was delay in registering
the crime and whether it has affected the
credibility of the prosecution case?
(ii) Whether the case-paper of Vaishali's
case of Bembde Hospital is a reliable piece of
evidence?
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(iii) Whether there is an indication of
Vaishali's getting tutored before her statement
was recorded on 16th February, 2013?
19. Admittedly, Vaishali was brought to Bembde
Hospital at about 10.00 p.m. on 13.02.2013. She had
sustained 85% of burn injuries and the Doctor who had
attended her first P.W.10 Dr. Miniyar sent medico-legal
case papers to Satara Police Station at 10.30 pm. This
paper is brought on record. On perusal of this paper we
found that history of burn injuries was not mentioned.
P.W.10-Dr. Miniyar stated that by the time he prepared
this paper, he was not aware of the history of the
injuries. This paper reached the police station (as per
the station diary entry No.44) at about 12.20 mid-night.
20. Police then entrusted this case of Head
Constable Bakkal No.2109-Pradhan.
21. P.W.10-Dr. Miniyar stated that subsequently he
learnt from Vaishali as to how she sustained injuries and
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then he even recorded such information in the case
papers.
22. The question is - why did P.W.10-Dr. Miniyar not
mention the history of the incident in MLC paper? As per
the printed format of MLC papers, the Medical Officer was
expected to write down history of the incident. Until
such information is recorded by the Medical Officer, he
was not supposed to send the MLC papers to Police
Station. No doubt, the MLC paper is required to send to
Police Station as soon as possible, but such paper should
be prepared by filling up all the required particulars,
which included the history.
23. Surprisingly, the prosecution did not examine
Police Head Constable - Pradhan as their witness. The
record indicates that Pradhan went to Bembde Hospital
during the night between 13.02.2013 and 14.02.2013 and
tried to record victim's statement, but the prosecution
could not bring such statement on record.
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24. P.W.9-I.O.Kanje stated that though on 16.02.2013
investigation of Crime No.26 of 2013 was given to him, on
previous day Head Constable - Pradhan had informed him
that Tahsildar Raut had refused to accept requisition for
recording dying declaration of the victim. It is, thus,
clear that Head Constable - Pradhan did, after the case
was assigned to him, come to the Hospital for enquiry.
But he was not examined as prosecution witness. As if the
prosecution does not place reliance on what he did then.
25. As per prosecution nothing happened from 14 th
Morning till 16th Morning. Vaishali and her family
members did not report the incident to the police. They
could have easily approached Satara Police Station for
lodging the complaint.
26. On 16.02.2013 P.W.9-P.S.I.Kachmande was directed
to go to the place of incident for preparation of spot
panchanama. He prepared the spot panchanama. Thereafter,
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he was directed to go and record statement of injured
Vaishali. Thereafter, at 11.00 a.m. he recorded
Vaishali's statement and on the basis of which at about
8.35 p.m. offence punishable under section 307, 498-A,
323, 504 and 506 of the Indian Penal Code was registered.
27. As said above, the delay in recording F.I.R. is
an important aspect of this case and the question is -
whether this delay has created suspicion in the entire
prosecution case? The answer is in affirmative.
28. P.W.10-Dr. Miniyar says that he heard Vaishali's
statement that her burns were due to assault on her. He
even recorded such statement in the case-papers. But no
one approached the police. If Vaishali was oriented and
was able to speak, she could have made this statement to
all her relatives who come to see her including her
parents. There was thus strong possibility that parents
of Vaishali ought to have learnt about the cause of
injuries by morning of 14.02.2013. Had they heard that
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the injuries were caused by their son-in-law, they would
have certainly rushed to the police station. But, this
did not happen. This means that Vaishali did not make
such allegation before 16.02.2013.
29. We have strong doubt about truthfulness of
Dr.Miniyar's testimony. In our view, P.W.10-Dr. Miniyar
has not disclosed the truth. He helped creation of false
evidence against the accused, by making entry of history
in the case papers subsequently. This entry was probably
subsequently added to support the prosecution case. He
even went to the extent of recording his deposition that
Vaishali gave him the history of her injuries. Such
statement would amount to oral dying declaration.
P.W.10-Dr. Miniyar was always a prosecution witness and
police would have certainly recorded his statement under
section 161 of Cr.P.C. This was also not done. We,
therefore, discard Dr. Miniyar's evidence.
30. The next question before us is - whether dying
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declaration of Vaishali is trustworthy? The answer is in
negative. There is strong possibility of tutoring to
her. By 16.02.2013, Vaishali's parents apparently decided
that they should lodge complaint against their son-in-
law. So, it was quite possible that they tutored
Vaishali and her statement was recorded.
31.
The next question that is required to be decided
is - whether the child witnesses are trustworthy? Our
answer is in negative. If Vaishali could be tutored,
there was every possibility that the children would also
be tutored. It is apparent that Vaishali's parents,
brother and children ganged-up against the accused. Had
there been recording of statement of these two innocent
children, soon after the incident, they would have
certainly stated as to what had happened during evening
of 13.02.2013 in their house. We are, therefore, inclined
to discard their depositions on the ground that they were
certainly tutored witnesses.
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32. Even otherwise going by their depositions, we
found their depositions not trustworthy. They stated
that their father poured kerosene on their mother's
clothes and then their father ignited match-stick.
Should we assume that when this atrocity was taking
place, victim Vaishali was standing still and suffering
it quietly? Should we assume that Vaishali did not
resist at the time of incident? According to the
children, the incident took place between Vaishali on one
hand and accused Vishnu on the other. Both of them were
grown-up persons. Assuming Vishnu was physically more
powerful, yet Vaishali could have certainly resisted
Vishnu's assault and the attempt of pouring kerosene on
her person. Assuming that Vishnu somehow poured kerosene
on her person, she would have certainly avoided his
further assault which included striking of match-stick
and setting her on fire. "Striking a match-stick" is a
one physical act. It is generally not connected to
"igniting something using the burning match-stick". We
are aware that a match-stick is thin piece of wood. Even
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after a match-stick is ignited successfully, the user
would take a few moments to get the flame settled and
then within short time he has to ignite an object with
it. Before the flame of match-stick is settled, if the
user tries to use it, there is possibility of
extinguishing of the flame, before it could reach the
target. Even after the match-stick is ignited and the
flame is settled, due to small size of the stick, the
user is required to ignite the target as soon as
possible. If the target is not ready and close by, the
burning match-stick would get extinguished. Thereafter
the user is required to strike another match-stick.
33. When an assailant is trying to ignite his
victims kerosene socked clothes, he should find the
victim stationary. If the victim is moving and resisting,
then setting up the fire could get difficult. In our
view, at such time the victim is required to be made
stationary, so that resistance and movement would be
stopped. For achieving this, the assailant is required
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to either pin-down the victim or to hit her or him in
such a manner that for at least few seconds, the victim
becomes stationary. These were the possibility that
could have happened at the time of the incident in
question. The child witnesses did not state that these or
some of these events took place st the time of the
incident. Therefore, we are of the view that they are
tutored. We are not inclined to believe them.
34. The last question is - whether we would make any
comments on the line of defence? The accused is trying
to suggest to us through his deposition that while he and
his wife were in the house and since came to house
unannounced, Rohit entered his house etc., thereby
suggesting that a tete-a-tete was going on between
Vaishali and Rohit. He also suggested to us that since
Vaishali was exposed on that day, she committed suicide.
We are not inclined to either accept or reject the theory
of defence mainly because, we can dispose of this appeal
without considering this aspect of the case. We
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disbelieve the prosecution case. We are, therefore, not
inclined to go into truthfulness or otherwise of the
defence. The prosecution case should, therefore, fail.
O R D E R
i) Criminal Appeal No.422 of 2014 is
allowed.
ii) The judgment and order dated
10.07.2014 passed by learned Additional Sessions
Judge, Aurangabad, in Sessions Case No.184 of
2013 is quashed and set aside.
iii) The appellant - Vishnu Asaram Kanade
is acquitted of the offences with which he was
charged.
iv) The appellant be set at liberty
forthwith, if not required in any other case.
v) Fine amount, if paid by the appellant,
be refunded to him.
vi) Criminal Revision Application St.
No.267 of 2014 stands dismissed.
[V.K.JADHAV,J.] [A.V.NIRGUDE,J.]
snk/2016/JUL16/[email protected]
