Bombay High Court
Manik Lakhaji Lakha Aade vs The State Of Maharashtra on 21 March, 2016
Bench: A.V. Nirgude
1 CriApl 483/2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 483 OF 2013
Manik S/o. Lakhaji @ Lakha Aade, Aged 67 APPELLANT
Years, Occupation Labour, Resident of Radi
Tanda, Taluka Ambajogai, District Beed
V E R S U S
The State of Maharashtra, Through Police
Station Officer, Police Station Ambajogai
RESPONDENT
Gramin, Taluka Ambajogai, District Beed
Mr. B.R. Waramaa, Advocate for the Appellant
Mr. K.S. Patil, A.P.P. for the Respondent - State
CORAM : A.V. NIRGUDE &
INDIRA K. JAIN, JJ.
DATE : 21st March, 2016
ORAL JUDGMENT (PER: A.V. NIRGUDE, J.) :
1. This Appeal challenges judgment and order dated 30th
November, 2013, passed by the learned Additional Sessions Judge,
Ambajogai, in sessions Case No. 13 of 2011, convicting the appellant for
2 CriApl 483/2013
committing offence punishable under Section 302 of the Indian Penal
Code and sentenced him to suffer life imprisonment with fine of Rs.2,000/-
(Rupees Two Thousand) with a default clause.
2. According to the prosecution case, appellant / accused set
victim Kavita on fire on 16th October, 2010, in between 07.00 to 07.30 a.m.
Kavita sustained 77% of burn injuries. Her husband Subhash and his
cousin Dnyaneshwar brought Kavita at Hospital at about 09.00 a.m. At
about 06.00 p.m., A.S.I. recorded Kavita's statement, in which she stated
that it was the accused who had set her on fire. Another Dying
Declaration was recorded by the Executive Magistrate. Upon statement
made by Kavita, the police registered offence against the appellant. Upon
investigation, charge-sheet was filed.
3. The prosecution recorded depositions of 10 witnesses, but
mostly placed reliance on deposition of prosecution witness no. 8 - Dinkar
Akal, A.S.I. who recorded Kavita's first Dying Declaration at about 06.00
p.m. and prosecution witness no. 9 - Dagdu Kasbe, Nayab Tahsildar, who
recorded second Dying Declaration at about 06.35 p.m. Both these
witnesses coherently stated that they heard Kavita saying that she was set
3 CriApl 483/2013
on fire by the appellant / accused. They recorded her statement as per
her narration. Both these Dying Declarations thus went on record proved.
The learned Judge of the trial Court placed reliance on these Dying
Declarations and believed the prosecution case that it was the accused
who had committed homicidal death of Kavita.
4. Learned counsel for the appellant asserted that besides the
Dying Declarations, there are number of other circumstances on record
which would indicate that Kavita's Dying Declarations were utterly false
and should be discarded altogether. Besides he also pointed out that
there is no eye witness account for the incident brought on record.
5. According to the Dying Declarations and First Information
Report, Kavita stated that on 16th October, 2010, at about 07.00 to 07.30
a.m., she started cooking. She stated that on earlier date, her husband
had brought a Gold ornament for her. The accused is brother of Kavita's
mother-in-law. He learnt about this new acquisition. He came to Kavita's
house where her husband Subhash, her husband's cousin Dnyaneshwar,
her mother-in-law Nilabai were present. In their presence, the accused
abused her because she had acquired Gold ornaments. The accused
4 CriApl 483/2013
suggested that Kavita should not have bought Gold ornament. Kavita
further stated that the accused got so angry with her and that he poured
kerosene on her person and set her on fire utilizing fire of burning wood in
the country-stove. As said above, Kavita sustained 77% burns and then
she was brought to the hospital.
6. The main question before us is, whether Kavita's narration is
believable. The answer is in negative. The Medical Officer ( prosecution
witness no.7 ) admitted in his cross-examination that at about 09.30 a.m.,
when Kavita was brought to the hospital, he got her admitted. He prepared
case-papers. He noted down history of the incident as accident. He
further noted that the accident had taken place at about 04.00 a.m. ( Most
probably the history of the incident was narrated by Kavita's husband
Subhash and his cousin Dnyaneshwar, when they brought Kavita in
injured condition to the hospital. ) This witness did not state that he had
any occasion after Kavita's admission in hospital till 06.00 p.m. about
asking Kavita as to how she suffered burns.
7. Kavita's mother-in-law Nilabai is P.W. 1, who did not support
the prosecution case at all. She stated that Kavita sustained burn injuries
5 CriApl 483/2013
due to the accident. She said that incident took place while Kavita was
trying to ignite country-stove for cooking purpose.
8. As per the Kavita's narration, the incident occurred in
presence of her husband and her husband's cousin Dnyaneshwar.
Despite their presence, she wanted us to believe that the accused could
pour kerosene on her person, so-much-so that her clothes got soaked
with it. She also wanted us to believe that thereafter the accused utilizing
fire from the country-stove, set herself on fire. She is thereby suggesting
that while the accused was assaulting her in such a ghastly manner,
neither she nor the persons present near her tried to stop such assault. If
Kavita's husband and another person were present on the scene of
occurrence, they could have easily over powered the accused. They could
have stopped him from causing any harm to the victim. The narration of
Kavita thus is not trustworthy at all.
9. The history of accident mentioned by the Medical Officer on
case-papers also does not appear trustworthy. The Medical Officer did
not depose that he wrote down the history as per the narration of the
victim herself. As said above, she did not verify correctness of this history
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from the victim. In any case 77% burns due to the accident in presence of
persons around the victim, is rather unbelievable. The prosecution thus
did not bring on record truth about how Kavita sustained burn injuries. We
have no doubt that it failed to prove that it was the accused who set her on
fire. The appeal should therefore succeed. We, therefore, proceed to
pass the following order :-
ig O R D E R
1. The Criminal Appeal is allowed.
2. The judgment and order dated 30th November,
2013, passed by the learned Additional Sessions
Judge - 2, Ambajogai, in Sessions Case No. 13 of
2011 stands set aside.
3. Appellant / Accused - Manik s/o Lakhaji @ Lakha
Aade is acquitted from the offence punishable
under Section 302 of the Indian Penal Code.
4. Appellant / Accused - Manik s/o Lakhaji @ Lakha
Aade be released from the custody if not required
in any other case.
7 CriApl 483/2013
5. Fine amount, if deposited by the Appellant /
Accused, be refunded to him.
( INDIRA K. JAIN, J. ) ( A.V. NIRGUDE, J. )
srm/21/3/16
