Datta Kamanna Naikode vs The State Of Maharashtra
2016 Latest Caselaw 6855 Bom

                                                                      (902)APEAL-707-13(J)

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                                CRIMINAL APPELLATE SIDE

                         CRIMINAL APPEAL NO.707 of 2013




                                                           
    Mr.Datta Kamanna Nikode,
    Hindu, Indian inhabitant,




                                                          
    Age 27 years, R/at.Shanti
    Nagar, Khopoli, Tal.Khalapur,
    Dist.Raigad                                     ...   Appellant
          V/s.




                                               
    The State of Maharashtra,
    (Through Khopoli Police
    Station in Cr.No.133 of 2009) ig                ...   Respondent

                                                .....

Ms.Rohini M.Dandekar, Advocate appointed for the Appellant. Mr.Arfan Sait, APP for the Respondent/State.

....

CORAM : SMT.V.K.TAHILRAMANI &

A. M. BADAR JJ.

DATED : 1ST DECEMBER 2016.

ORAL JUDGMENT : (Per SMT.V.K.TAHILRAMANI J)

1 The appellant has preferred this appeal against the

Judgment and Order dated 30/03/2011 passed by the learned

Additional Sessions Judge, Raigad, Alibag in Sessions Case

No.32 of 2010. By this Judgment and Order, the learned

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Sessions Judge convicted the appellant under Section 302 of

the Indian Penal Code (For short, "the IPC") and sentenced

him to life imprisonment and fine of Rs.1,000/- in default to

suffer rigorous imprisonment for six months.

2 The prosecution case, briefly stated, is as under :

Deceased Manisha was the daughter of P.W.No.5

Meera. Deceased Manisha was married to the appellant about

one year prior to the incident. It was a love marriage. After the

marriage, the appellant and Manisha started residing at village

Dheku. They resided happily for a period of three-four months.

Thereafter, the appellant got addicted to drinking liquor. In the

year 2009, during Navratri period Manisha went to her mother's

house and told her that the appellant used to frequently assault

her when he was intoxicated. The incident occurred on

14/10/2009 at about 9.00 p.m. P.W.No.2 Gajanan and P.W.No.4

Vimal heard a female voice shouting "okpok okpok" (save, save). Hence, they rushed to the spot. They saw Manisha had

sustained burn injuries. P.W.No.2 Gajanan and P.W.No.4 Vimal

asked Manisha what had happened. Manisha told them that

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her husband had poured kerosene on her and set her on fire.

P.W.No.2 Gajanan requested P.W.No.1 Ramesh Patil to take

Manisha to the hospital. Ramesh Patil then took Manisha in

his vehicle to Primary Health Center, Khopoli. While Manisha

was in his vehicle, Manisha told P.W.No.1 that she refused to

give money to her husband for drinking liquor, therefore, her

husband set her on fire. Ramesh Patil admitted Manisha in

Khopoli Municipal Hospital. Meanwhile, P.W.No.5 Meera -

mother of Manisha received information about the incident,

hence, she rushed to the Primary Health Center at Khopoli.

Manisha told her that her husband was demanding money for

drinking liquor. She did not pay the said amount, therefore,

her husband assaulted her and told her to go out of the

house, as he wants to perform second marriage. Her husband

then poured kerosene on her and set her on fire.

Meanwhile, P.W.No.9 Police Head Constable Giri,

who was attached to Khopoli Police Station, received phone

call from Khopoli Hospital that a patient - Manisha was

admitted in the Hospital for treatment, as she has sustained

burn injury. Therefore, Mr.Giri immediately rushed to the

hospital. He met the Doctor on duty and made inquiry with

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the Doctor about the patient as to whether the patient was in

a condition to give a statement or not. The Doctor (P.W.No.8

Minakshi Kavalgir) examined the patient and gave

endorsement (Exh.24) that Manisha was in a fit condition to

give statement. P.W.No.9 Giri recorded the statement of

Manisha. Manisha informed him that her husband came home

under influence of liquor. He demanded money for drinking

liquor. She refused to give him money. Therefore, he started

abusing her and asked to go out of house and stated that he

will perform second marriage. Her husband then poured

kerosene on her and set her on fire. Thereafter, her husband

ran away. Neighbours extinguished the fire and admitted her

in the hospital. This dying declaration is at Exh.28. This dying

declaration is treated as 'FIR'. After registration of FIR,

investigation commenced. On 16/10/2009, P.W.No.11 API

Jagtap visited the hospital. He gave a letter to the Medical

Officer (P.W.No.10 Dr.Vaze) regarding recording the statement

of the patient. The Doctor opined that the patient was in a

position to speak and give permission for recording the

statement of the patient. The Doctor made an endorsement

to that effect, which is at Exh.30. Thereafter, P.W.No.11

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recorded the dying declaration of Manisha. Manisha informed

him that her husband poured kerosene on her and at that time

her husband was smoking cigarette. Her husband threw

burning matchstick on her and set her on fire. This dying

declaration is at Exh.33. Manisha expired on 17/10/2009 on

account of septicemia due to 69 per cent burns. After

completion of investigation, the charge sheet came to be

filed.

3 Charge came to be framed against the appellant

under Section 302 of the Indian Penal Code. The appellant

pleaded not guilty to the said charge and claimed to be tried.

His defence is that of total denial and false implication. After

going through the evidence adduced in this case, the learned

Sessions Judge convicted and sentenced the appellant as

stated in paragraph 1 above, hence this appeal.

4 We have heard the learned counsel for the

appellant and the learned Additional Public Prosecutor for the

State. We have carefully considered their submissions, the

Judgment and Order passed by the Sessions Judge and the

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evidence in this case. After carefully considering the matter

for the below mentioned reasons, we are of the opinion that

there is no merit in the appeal.

5 The conviction of the appellant is mainly founded

on two dying declarations i.e. Exh.28 and 33. Exh.28 was

recorded by P.W.No.9 Police Head Constable Giri. Giri has

stated that on 14/10/2009 he was on duty as PSO at Khopoli

Police Station. He received phone call from Khopoli Municipal

Hospital that Manisha Naikode was admitted in the hospital

with burn injury. He immediately rushed to the hospital and

met Doctor on duty. He made inquiry with the Doctor about

the patient. The Doctor (P.W.No.8 Dr.Minakshi Kavalgir)

examined the patient and made an endorsement (Exh.27)

that she is in fit condition to give statement. P.W.No.9 then

recorded the dying declaration (Exh.28) of Manisha. Manisha

told him that her husband came home under the influence of

liquor. He demanded money for consumption of liquor. She

refused to give money. He, therefore, started abusing her and

asked her to go out of the house and stated that he will

perform second marriage. Her husband then poured kerosene

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on her from a bottle. At that time, her husband lit a cigarette

and threw a burning matchstick on her, due to which she

caught fire. Her husband then ran away. Neighbours

extinguished the fire and admitted her in the hospital.

6 The evidence of P.W.No.9 Police Head Constable

Giri is supported by the evidence of P.W.No.8 Dr.Minakshi

Kavalgir. Dr.Minakshi has stated that on 14/10/2009, Manisha

Naikode was admitted in the hospital i.e. Khopoli Municipal

Hospital. She was brought by neighbours. The hospital

informed Khopoli Police Station about the admission of a

patient, who has received burn injuries. Police Head

Constable Giri (P.W.No.9) came from Khopoli Police Station.

He made a query about health condition of the patient as to

whether she is in a position to talk and is in a fit condition or

not. She then took the Police Constable to the bed of the

patient. She examined her. She also put some questions to

the patient. Thereafter, she informed the Police

Constable that the patient is in a fit condition to give a

statement. Therefore, the constable started recording

her statement. Dr.Minakshi has stated that the statement of

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Manisha was recorded in her presence. Thumb impression

of the patient was taken at the foot of her statement.

Dr.Minakshi has stated that she made an endorsement to the

effect that the patient is conscious, oriented and can answer

questions. This endorsement is at Exh.24.

7 The second dying declaration of Manisha is at

Exh.33. This dying declaration was recorded by P.W.No.11 API

Jagtap. API Jagtap has stated that at the relevant time he was

attached to Khopoli Police Station. On the basis of statement

recorded on 14/10/2009 by Police Head Constable Giri

(P.W.No.9), Crime Registration No.133 of 2009 was registered

for the offence under Section 302 of the Indian Penal Code.

On the same day, API Jagtap visited the hospital, i.e.

Nagarpalika Hospital, Khopoli. By that time, the patient was

transferred to Sasoon Hospital, Pune. On 16/10/2009, API

Jagtap visited Sasoon Hospital, Pune. He gave a letter to the

Medical Officer for recording the statement of the patient.

The Doctor (P.W.No.10 Dr.Vaze) opined that the patient is in a

position to speak and gave permission for recording the

statement of the patient. The endorsement of the Doctor to

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that effect is at Exh.30. API Jagtap has further stated that

thereafter, he recorded the statement of the patient, which is

at Exh.33. In this dying declaration Manisha has stated that

her husband demanded money for liquor. He then poured

kerosene on her. At that time, her husband was smoking a

cigarette and he threw burning matchstick on her and set her

on fire. Thereafter, he ran away.

P.W.No.11 Jagtap has stated that on 16/10/2009, he

recorded the dying declaration of Manisha in Sasoon hospital,

Pune. The Doctor had opined that the patient was in a

position to speak and had given permission for recording the

statement of patient. The evidence of API Jagtap on this point

is supported by P.W.No.10 Dr.Sharad Vaze. Dr.Vaze has stated

that he was on duty at Sasoon Hospital on 16/10/2009. At

about 8.00 a.m. Manisha Naikode was admitted in the burn

ward. On that day, at about 5.45 p.m. police came to the

burn ward for recording statement of Manisha. The policeman

stated that he wants to record the statement of Manisha,

hence Dr.Vaze along with policeman went to the patient.

Dr.Vaze has stated that then he examined the patient and told

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to the police that the patient is in sound state of mind to give

statement. He also put his endorsement to that effect, which

is at Exh.30. Police recorded the statement of the patient in

his presence. It is pertinent to note that the dying declaration

Exh.33 shows the time of 5.55 p.m., which further

corroborates the case of Dr.Vaze that policeman came on

16/10/2009 at about 5.45 p.m. to record the statement of

Manisha.

The two dying declarations recorded by P.W.No.9

and P.W.No.11 are consistent. They pass the test of credibility

and reliability and there is overwhelming corroboration to the

same.

10 In the dying declarations (Exh.28 and 33) Manisha

has stated that her husband set her on fire. He had lighted

cigarette in his hand. This is further corroborated by the fact

that the spot panchanama shows half burnt pieces of

cigarette. P.W.No.6 Anant Surve, who is panch to the spot

panchanama, has stated about finding of half burnt pieces of

cigarette on the spot. This is also borne out by the spot

panchanama.

    Gaikwad RD                                                                          10/14





                                                                    (902)APEAL-707-13(J)

    11               In addition, on the spot matchstick, kerosene bottle




                                                                                
    and half burnt clothes were also found.                       Both the dying

declarations bear left hand thumb impression of Manisha.

P.W.No.8 Dr.Minakshi has stated that thumb impression of

patient was taken at the foot of her statement. This is borne

out by the evidence of P.W.No.7 Doctor Shinde, who

conducted the postmortem on the dead body of Manisha. He

has stated that there was ink mark over left thumb. The

postmortem notes (Exh.20) at Column No.9 show that there

was ink mark on the left hand thumb of Manisha. All these

facts corroborate the two dying declarations moreover, there

is nothing to suggest that the dying declarations are result of

tutoring.

12 In addition to two dying declarations (Exh.28 and

33), there are four oral dying declarations. P.W.No.1 Ramesh

Patil, P.W.No.2 Gajanan, P.W.No.4 Vimal and P.W.No.5 Meera

have stated about these oral dying declarations. Gajanan has

stated that on 14/10/2009 at about 9.00 p.m. he heard female

voice shouting "okpok okpok" (save, save). He saw that a lady had sustained burn injuries. He asked her what had

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happened, whereupon the lady told that her husband poured

kerosene on her and set her on fire. He telephoned Khopoli

Police Station. They informed him that there was no vehicle

and they asked him to make arrangement to take her to the

hospital for treatment. At that time, Ramesh Patil (P.W.No.1)

came there in a car. He requested Ramesh Patil to take the

lady to the hospital. P.W.No.1 Ramesh Patil then took the lady

to the hospital in his vehicle. On the way, the lady told him

that she refused to make payment to her husband for liquor,

therefore, her husband set her on fire. P.W.No.1 and 2 are

totally independent witnesses. They did not know the accused

or the deceased or any of the family members of the

deceased.

13 P.W.No.4 Vimal has stated that the appellant was

residing in a chawl. This chawl was situated at the backside of

her house. On 14/10/2009 at about 9.00 p.m. Manisha came

out from the house engulfed in the flames. Manisha, at that

time, was shouting "okpok okpok" (save, save). Manisha told her that her husband set her on fire.

    Gaikwad RD                                                                   12/14





                                                            (902)APEAL-707-13(J)

    14               The last dying declaration was made to P.W.No.5-




                                                                        

Meera. Meera was the mother of Manisha. Meera has stated

that Manisha got married with appellant one year prior to the

incident. It was a love marriage. For three-four months after

the marriage, they resided happily together. In 2009 during

Navratri period, her daughter came to her house and told that

her husband used to assault her frequently when he was

intoxicated. Meera has further stated that on 14/10/2009 at

about 9.30 p.m. she received phone call informing her that

Manisha's husband had poured kerosene on her and set her

on fire. She then visited Manisha in the Hospital. Manisha

told her that her husband demanded money for liquor and as

she did not pay the amount, he assaulted her and asked her

to go out of house as he wanted to perform second marriage,

then he poured kerosene on her and set her on fire.

15 All the dying declarations are consistent. Nothing

has been elicited in the cross-examination of P.W.Nos.1,2,4

and 5 to cause us to disbelieve their evidence. We are of the

opinion that their evidence inspires implicit confidence, hence,

we rely on the same.

    Gaikwad RD                                                                13/14





                                                              (902)APEAL-707-13(J)




                                                                          
    16               It is the prosecution case that the appellant poured

    kerosene on his wife Manisha and set her on fire.                      This is




                                                  

supported by the Chemical Analysis Report (Exh.44), which

shows that kerosene residue was detected on the half burnt

clothes of Manisha.

17 On going through the entire evidence, we are of

the opinion that there is sufficient evidence on record to prove

beyond reasonable doubt that the appellant poured kerosene

on his wife Manisha and set her on fire, hence we find no

merit in the appeal.

    18               The appeal is dismissed.
   



    19               The fees to be paid to the appointed Advocate are





    quantified at Rs.5,000/-.



    20               Office to communicate this order to the appellant,





    who is in Nashik Road Central Prison.




    (A. M. BADAR J.)                 (SMT. V. K. TAHILRAMANI J.)

    Gaikwad RD                                                                  14/14