Gangadhar @ Baburao Nagorao ... vs The State Of Maharashtra
2016 Latest Caselaw 2783 Bom

                                                                      47.APEAL.165.14.doc


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD




                                                                                
                            CRIMINAL APPEAL NO. 165 OF 2014




                                                        
    1.  Gangadhar @ Baburao Nagorao Ambhore
         Age: 36 years, Occu.: Nil,
         R/o Mali Galli, Javla Bazar,




                                                       
         Tq. Aundha, Dist. Hingoli.
         (At present in Central Prison Harsool, Aurangabad)


    2.  Sow. Chhaya w/o Kashinath Ambhore




                                                
         Age: 26 years, Occu.: Household,
         R/o Mali Galli, Javla Bazar,ig
         Tq. Aundha, Dist. Hingoli.
         (At present in Central Prison Harsool, Aurangabad) ..APPELLANTS
                                   
                   VERSUS

    The State of Maharashtra
    Through Chief Secretary,
           

    Home Department, Mantralaya, Mumbai-32.                    ..RESPONDENT
        



                                        ....
    Mr. R.S. Deshmukh a/w Mr. B.A. Dhengle, Advocates for appellants.
    Mr. A.R. Borulkar, A.P.P. for respondent.
                                        ....





                                          CORAM :  A.V. NIRGUDE AND
                                                    A.I.S. CHEEMA, JJ.

DATED : 13th JUNE, 2016

ORAL JUDGMENT ( Per: A.V. NIRGUDE, J ) :

1. This appeal challenges judgment and order dated 04.02.2014,

passed by the learned Additional Sessions Judge, Basmath, in Sessions

Case No. 30 of 2013. The learned Additional Sessions Judge, Basmath

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convicted the appellants for offence punishable under Section 302 read

with Section 34 of the Indian Penal Code and sentenced them to suffer

life imprisonment and to pay a fine of Rs.1,000/- ( Rupees One Thousand

Only ) each with a default clause. Learned Additional Sessions Judge,

Basmath also convicted both the appellants for offence punishable under

Section 498-A read with Section 34 of the Indian Penal Code and

sentenced them to suffer rigorous imprisonment for two years and to pay

fine of Rs.1,000/- ( Rupees One Thousand Only ) each with a default

clause.

2. The facts leading to the prosecution of the appellants in short

can be stated as under:

On 11.02.2013, at about 7 a.m., Kavita, the victim, sustained

100% burn injuries while she was in her home at village Javla Bazar, Tq.

Basmath. She was brought to Civil Hospital, Parbhani. Despite the

treatment, she succumbed to injuries by 5.50 p.m. Before her death, her

dying declaration was recorded at 3.10 p.m., in which she implicated the

appellants. At the trial stage the prosecution placed reliance on ten

witnesses, out of which Prosecution Witness Nos.2, 3, 4 and 5 are

important whereas Prosecution Witness No.8, the Investigation Officer,

has deposed as to how he investigated the case.

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3. Prosecution Witness No.1 - Datta, who was subsequently

declared as hostile by the prosecution, stated that on 11.02.2013, at about

8 a.m., while he was sitting infront of his house, he heard shouts from the

house of Accused No.1. He went there and saw smoke coming from

inside. He and others entered the house by breaking open the door and

found the victim in burning condition. He said, he poured water and

extinguished the fire. The victim was then taken to the Civil Hospital,

Parbhani. What happened between him and victim at the relevant time is

avoided by this witness, and therefore, he was declared hostile. But, his

deposition is relevant to indicate that the incident took place on

11.02.2013 and that it occurred inside the house of Accused No.1.

4. Prosecution Witness No.2 is the Police Head Constable -

Kurundkar who stated that he was on duty at Civil Hospital, Parbhani on

11.02.2013. He learned about admission of the victim in the hospital in

Burn Ward. At about 01.50 p.m. he went to Burn Ward and found that

the victim was in a position to talk. He then sent a letter to the Special

Executive Magistrate for recording Dying Declaration of the victim.

Prosecution Witness No.5 - Mohanlal Harne, Nayab Tahasildar stated in

his deposition that on 11.02.2013 while he was at Tahasil Office,

Parbhani, he received a letter from police, and therefore, went for

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recording statement of the victim Kavita in the hospital at about 2.45

p.m.. He contacted a lady doctor and he visited the victim who was

admitted in Burn Ward. He then ascertained from the lady Doctor that

Kavita was conscious and was able to give her statement. He stated that

Kavita told him that Accused Nos.1 and 2 used to harass her. On that day

also they quarreled with her and then poured kerosene on her person and

set her on fire. She further stated that she was brought to Civil Hospital,

Parbhani by Accused No.1's cousin.

5. The next important witness is victim Kavita's father,

Prosecution Witness No.3 - Bhagwat Kshirsagar. He stated that on

11.02.2013, Accused No.1 made a phone call to him and told him about

the incident. So, he and his wife rushed to Parbhani and reached the Civil

Hospital at about 9.00 p.m. By that time, Kavita had died. He also stated

that his daughter Kavita had informed him earlier that her husband

harassed and illtreated her. He stated that he tried to pacify his son-in-

law - Accused No.1. He added that the matrimonial discord was then

sought to be resolved through the 'Dispute Free Village Committee'.

6. Prosecution Witness No.4 is a lady Medical Officer - Dr.

Rubina. She stated that on 11.02.2013 while she was on duty at Civil

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Hospital, Parbhani between 3.00 p.m. to 9.00 p.m she visited burn ward

for ascertaining the well being of the victim - Kavita. She certified that

Kavita was able to make statement and was conscious and well oriented

before and after her Dying Declaration was recorded.

7. The Prosecution Witness No.8 - Investigation Officer stated

that on the day of incident at 11.00 p.m. he caused arrest of Accused No.1

and immediately seized his clothes. His shirt was smelling of kerosene

and Chemical Analyser's report confirmed presence of kerosene on the

shirt of Accused No.1.

8. As stated above, the learned Additional Sessions Judge,

Basmath accepted the prosecution case and convicted both the accused.

9. The learned Counsel for the appellant tried to argue that the

material against both the accused-appellants is in the form of solitary

Dying Declaration, which according to him was thin piece of evidence.

No other circumstances according to him were brought on record to

strengthen the prosecution case. He therefore suggested that both the

accused should be acquitted.

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10. There are several reasons why we are not inclined to accept

this argument. The time and place of the incident is not in dispute. The

incident occurred inside the house of Accused No.1 in morning hours. It

has come on record that the cousin of Accused No.1 brought vehicle and

took Kavita to Civil Hospital, Parbhani. The Dying Declaration was

recorded soon after the victim was admitted to the hospital and a couple

of hours before her death. Admittedly, her parents and other close

relatives were not present with her at that time. We have therefore

reason to believe that the victim was not tutored to make a particular

statement to the Nayab Tahasildar. She was brought to the hospital by

relatives of the Accused No.1. Therefore, whatever Kavita stated at that

crucial moment, could not have been a lie.

11. The case as against Accused No.1 is further strengthened

because his shirt was found stained with kerosene. He did not explain as

to how his clothes got stained with kerosene. On the contrary, he took a

defence that he was not present near the victim at all.

12. Accused No.2 is the wife of Accused No.1's brother. It has

come in evidence that Accused No.2 and her husband were staying

separately in the same village. Despite this, victim Kavita named her as

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one of her tormentors. Victim Kavita could have implicated anyone, but

she restricted her allegations to the extent of her husband and her sister-

in-law - Accused No.2. There could not be any reason why Kavita would

falsely implicate Accused No.2. Besides during the cross-examination,

Accused No.2 did not bring on record through admissions in prosecution

witnesses' deposition as to why victim Kavita had a specific grudge against

Accused No.2. So, eventhough the case against Accused No.2 depended

solely on Dying Delcaration, we find this piece of evidence quite

formidable and we cannot ignore it. In view of this Appeal fails. In view

of the above, Appeal stands dismissed.

                  ( A.I.S. CHEEMA, J. )               ( A.V. NIRGUDE, J. )
        

    SSD
     






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