Janardhan Barku Solanke (In Jail) vs State Of Maharashtra, Through ...
2016 Latest Caselaw 5280 Bom

    Judgment
                                                              Cr Appeal No.26.15




                                                                                     
                                               1

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                             
                NAGPUR BENCH, NAGPUR
                       CRIMINAL APPEAL NO.26 OF 2015




                                                            
    Janardhan Barku Solanke,
    Aged about 42 years,
    Occupation Labour,
    R/o Jalgaon Jamod, 




                                                  
    Taluka Jalgaon Jamod, 
    District Buldhana (In Jail).                         .....   APPELLANT.
                                    ig   ::  VERSUS  ::
                                  
    State of Maharashtra,
    Through P.S.O. Jalgaon Jamod,
    Police Station Jamod.                               ..... RESPONDENT.

    ===================================

Shri D.V. Chauhan, Counsel for the Appellant (appointed). Shri R.S. Nayak, Additional Public Prosecutor for the

Respondent/State.

===================================

CORAM : B.P. DHARMADHIKARI &

A.S. CHANDURKAR, JJ.

DATED : SEPTEMBER 15, 2016.

ORAL JUDGMENT : (Per : B.P. DHARMADHIKARI, J.)

1. This criminal appeal, under Section 374 of the Code

of Criminal Procedure, 1973, challenges judgment and order

dated 26.11.2014, delivered by learned Additional Sessions

.....2/-

Judgment Cr Appeal No.26.15

Judge, Khamgaon, convicting appellant/husband Janardhan

Barku Solanke under Section 302 of the Indian Penal Code for

committing murder of his wife by setting her ablaze on

13.3.2012. Victim Ratnabai expired on 18.3.2012.

2. We have heard learned counsel Shri D.V. Chauhan

appointed for the appellant and learned Additional Public

Prosecutor Shri R.S. Nayak for the respondent/State.

3. Briefly stated case of the prosecution is, the

appellant-accused is drunkard and beggar who used to ill-treat

his wife Ratnabai for extracting money to consume liquor. On

13.3.2012, both of them went to Asalgaon Bazar and returned

back at about 5:30 p.m.. The appellant-accused then

demanded money and Ratnabai paid him Rs.50/-, which he

spent on liquor. She refused to give him more money. The

appellant-accused quarreled with her, poured kerosene on her

person, and set her on fire. The couple had two sons viz.

Rajesh and Vijay and a married daughter Bali who then resided

.....3/-

Judgment Cr Appeal No.26.15

at Nasik. At the time of incident, PW5 son Vijay was present in

the house.

4. The dyeing declaration of deceased Ratnabai has

been recorded vide Exhibit-26 on 13.3.2012 itself at about 9:00

p.m. by PW3 Executive Magistrate Vasant Baban Dabhade in the

presence of PW4 Doctor Vinayak Jaidev Dhurjad. In her dyeing

declaration, she has stated that her husband has attempted to

burn her and her hand was fractured by him. They have

returned from Asalgaon bazaar. Her husband is drunkard and

troublesome. She had given him money to drink liquor still her

husband Janardhan poured kerosene on her person and burnt

her. Earlier also, he attempted assaulting her with knife and

made several efforts to kill her. She stated that he made full

attempt to burn her. It is apparent that effort was to kill her.

5. PW5 son Vijay was seventeen years old on

24.6.2014 when his deposition was recorded by the Trial Court.

He was, thus, fifteen years old at the time of incident in

.....4/-

Judgment Cr Appeal No.26.15

question. The gist of his deposition is, on the date of incident,

his mother and father came from Asalgaon bazaar. He has

stated that his father was a beggar. He demanded money from

Ratnabai for consuming liquor and quarreled with her. This

was at about 5:00 to 5:30 p.m.. His mother had already paid

Rs.50/- to his father and he was demanding more amount. The

father quarreled with his mother since his mother refused to

give his father more amount. His father poured kerosene on

his mother and set her ablaze. He was standing there and

raised shouts. He called PW6, his neighbour, Ajabrao Bajirao

Sonanke. Ajabrao came and extinguished his mother. He then

rushed to the house of Dharma Pandurang and requested him

to bring his Maruti Omni Van in which his mother was then

carried to hospital. After setting his mother ablaze, his father

was standing outside the house. He has stated that as his

father was over-drunk, his mother was scolding him. He

denied that his mother was fed up and, therefore, tried to kill

herself by pouring kerosene on her person. His father, though

not in a position to stand and maintain his balance, tried to

.....5/-

Judgment Cr Appeal No.26.15

prevent the same and in this process hands of his father got

stained with kerosene. He denied that his mother herself

ignited match stick and set fire. He denied that his father tried

to extinguish his mother and sustained burn injuries. He

denied that his father was admitted in hospital. His evidence

also shows that his maternal aunts, sisters of deceased

Ratnabai, Sangita Suresh Solanke and Anita also resided in

neighbourhood and they came to hospital with him.

6. The report is lodged by PW1 Sangita, sister of

Ratnabai. She heard shouts of PW5 Vijay at 5:30 p.m. and went

to house of deceased Ratnabai. Her sister Anita, who resided

beyond two to three houses from her house, also came there.

Deceased Ratnabai was burning and PW6 Ajabrao Solanke

poured water on her person. Then they took deceased

Ratnabai to General Hospital Khamgaon in Maruti Omni Van.

On way to hospital, deceased Ratnabai told them that the

appellant-accused used to demand money to consume liquor

and used to beat her. Deceased Ratnabai told them that the

.....6/-

Judgment Cr Appeal No.26.15

appellant-accused poured kerosene and set her ablaze. When

she went to the house of deceased Ratnabai, the appellant-

accused was standing outside his house. She has also stated

that the appellant-accused used to beg by changing his looks.

Her cross-examination shows that she and her sister Anita were

with deceased Ratnabai and she did not lodge police report

while taking deceased Ratnabai to General Hospital Khamgaon.

She has denied that when police visited deceased Ratnabai in

hospital, deceased Ratnabai told police that she had burnt

herself. She has denied that the report was lodged four-to-five

days after the incident.

7. PW2 Dharma Gangaram Mandokar is driver of

Maruti Omni Van. He has stated that with deceased Ratnabai,

her two sisters, and son Vijay sat in his Maruti Omni Van. When

he proceeded to General Hospital Khamgaon, fault developed

in his van at Pimpalgaon Kale. Therefore, he arranged van of

one Manu Raut. He further deposed that Vijay came to his

house to call him. Vijay told him that his mother had poured

.....7/-

Judgment Cr Appeal No.26.15

kerosene on her person and set her ablaze. He was declared

hostile. He denied that he had told police about Vijay

informing him that his father poured kerosene and set his

mother ablaze. He has stated that portion mark A in his

statement, is not correct. He could not explain as to why

portion mark A appeared in his police statement. He has also

denied oral dyeing declaration by Ratnabai and deposed that

portion mark B was incorrect. Again he could not explain why

police wrote it accordingly. He deposed that appellant-accused

Janardhan was present at house but did not came to hospital.

8. Non-examination of Manu Raut, driver of other

Maruti Van, is not fatal in this situation. Submission of the

appellant-accused that when police got knowledge of incident

on 13.3.2012 itself, registration of F.I.R. on 17.3.2012 is by way

of after thought, is again misconceived in present facts.

Reliance upon the judgment of the Honourable Apex Court in

the case of Ganesh Bhavan Patel and another ..v.. State of

Maharashtra, reported at [AIR 1979 SCC 135], particularly

.....8/-

Judgment Cr Appeal No.26.15

paragraph No.18, is misconceived here.

9. The dyeing declaration of deceased Ratnabai has

been recorded after following proper procedure by PW3 Naib

Tahsildar Vasant Baban Dabhade. He received requisition on

13.3.2012 for recording of dyeing declaration. Accordingly, he

went to General Hospital Khamgaon and gave requisition to the

medical officer there. The medical officer then declared

Ratnabai to be fit and conscious to give her dyeing declaration.

He has proved this requisition at Exhibit-24. He has then also

proved statement of deceased Ratnabai at Exhibit-26. We have

already referred to it. Dyeing declaration mentions that it was

read over to deceased Ratnabai and same was accepted to be

correct. Thereafter, her thumb impression has been obtained

and then there is certificate issued by the medical officer. This

certificate also states that the patient was conscious and fit

while giving dyeing declaration. This certificate is at Exhibit-

27. The certificate obtained by PW3 Naib Tahsildar Vasant

Baban Dabhade before recording dyeing declaration is at

.....9/-

Judgment Cr Appeal No.26.15

Exhibit-25. There is nothing in his cross examination to

discredit his evidence on solemn affirmation. He accepted that

dyeing declaration Exhibit-24 shows two thumb impressions.

Though he had taken thumb impression only once, perusal of

dyeing declaration Exhibit-26, in original, shows that so called

other thumb impression is very faint repetition which may have

appeared accidentally.

10. PW4 Dr. Vinayak Jaidev Dhurjad has supported

PW3 Naib Tahsildar Vasant Baban Dabhade and proved fitness

certificate given by him at Exhibits-25 and 27. He has denied

that deceased Ratnabai was unable to speak though she had

sustained 80% burnt injuries. He has further stated that he put

time on certificates as per his writ watch. The evidence of both

these witnesses is convincing and supports narration by

deceased Ratnabai at Exhibit-26. The narration is on same

lines as deposed by PW5, son Vijay of deceased Ratnabai, and

also PW1, sister of deceased Ratnabai, Sangita. This dyeing

declaration has been recorded at about 9:00 in the

.....10/-

Judgment Cr Appeal No.26.15

evening/night on 13.3.2012. Not mentioning date, on which

recording of statement came to an end or time thereof and

leaving space prescribed for it in printed proforma blank, is not

sufficient to vitiate this dyeing declaration.

11. The appellant-accused has attempted to rely upon

the deposition of DW1 Bali Lakhan Shinde, daughter of the

appellant-accused. DW1 Bali has deposed that her brother

Vijay was at Nasik on the date of incident. The appellant-

accused has, during cross-examination of Vijay, brought it on

record that on the date of incident Vijay did not go to school

and was present in the house. As such, this effort of the

appellant-accused to establish absence of Vijay cannot succeed.

It is attempted to show that as per PW1 Sangita Solanke, only

she and her sister Anita were present in the van with deceased

Ratnabai. However, that does not mean that PW5 son Vijay

was not with them. PW2 Dharma Gangaram Mandokar, driver

of Maruti Omni Van, has stated that Vijay also came with him

in van.

.....11/-

Judgment Cr Appeal No.26.15

12. PW6 Ajabrao Bajirao Solanke has deposed that, at

about 5:30 p.m., Vijay gave a call that his mother was burnt

and, therefore, he rushed to the house of Vijay. He

extinguished fire on person of deceased Ratnabai. Appellant-

accused Janardhan was standing there. Anita and Sagita and

other members gathered. Deceased Ratnabai was taken in

Maruti Omni Van to hospital. In his cross-examination, he has

admitted that at the time of incident the appellant-accused was

under the influence of alcohol.

13. Elder brother of Vijay by name Rajesh was about 17

years old at the time of incident. His evidence shows that he

was away and on getting knowledge, he went to General

Hospital Khamgaon to meet his mother. His mother informed

him that the appellant-accused demanded money for buying

liquor and she gave Rs.20/-. He was demanding more amount

to which she refused. Therefore, he poured kerosene on her

person and ignited her.

.....12/-

Judgment Cr Appeal No.26.15

14. Thus, evidence of all theses witnesses conclusively

establishes correctness of dyeing declaration given by deceased

Ratnabai. The fact, that the F.I.R. has been registered four days

after the incident i.e. on 17.3.2012, is not in dispute. However,

mere late recording of F.I.R. by itself cannot be said to be fatal,

in this situation. PW10 Assistant Police Inspector Anand

Dhondiba Kushanwah has stated that he arrested the appellant-

accused on 17.3.2012 after investigation was handed over to

him. He has also pointed out that on 18.3.2012, he prepared

spot panchnama. He also deposed that portion marks A and B,

in statement of PW2, driver of Maruti Omni Van, Dharma

Gangaram Mandokar, were correctly recorded. He has further

stated that police did not receive the separate complaint about

the incident.

15. In these facts, the defence of the appellant-accused

that because of delayed recording of F.I.R., presumption of

some manipulation arises, is misconceived. Here, the dyeing

.....13/-

Judgment Cr Appeal No.26.15

declaration was recorded immediately and PW5 minor son

Vijay has supported the prosecution. PW6 Ajabrao Bajirao

Solanke is an independent witness who has also supported the

prosecution.

16. Learned counsel Shri D.V. Chauhan appointed for

the appellant, however, also relied upon the judgment of the

Honourable Apex Court in the case of Ramanlal & Ors ..vs..

State of Haryana, reported at [2015(4) Crimes 275 (SC)] to

urge that when such an event occurring in heat of passion,

intention to kill is absent. He points out that the present

appellant-accused did not run away from the spot. Our

attention is drawn to judgment of the Honourable Apex Court

in the case of Sayaji Hanmant Bankar ..vs.. State of

Maharashra, reported at [(2011) 14 SCC 477] to urge that the

facts, there, are more or less identical and the Honourable Apex

Court has altered the conviction from Section 302 of the Indian

Penal Code to Section 304 Part I of the Indian Penal Code.

Learned counsel Shri D.V. Chauhan appointed for the appellant

.....14/-

Judgment Cr Appeal No.26.15

submits that in the present matter when the appellant-accused

is a beggar and there was quarrel between couple, lenient view,

as taken in the case of Ramanlal & Ors, supra, needs to be

taken and the appellant-accused ought to have been convicted

under Section 304 Part II. He submits that in the present

matter deceased Ratnabai was wearing a polyester saree.

17. Perusal of statement under Section 313 of the Code

of Criminal Procedure given by the appellant-accused reveals

that while answering question Nos.40 and 41, he has stated

that the witnesses were deposing incorrectly and falsely.

Learned Additional Public Prosecutor Shri R.S. Nayak for the

respondent/State has relied upon the judgment in the case of

Sayaji Hanmant Bankar ..vs.. State of Maharashra, reported at

[2005 ALL MR (CRI) 64] to demonstrate that in the present

matter deceased Ratnabai has not spoken of any quarrel.

However, it is not necessary for us to delve into all these

aspects. PW5 Vijay has spoken about quarrel. PW6 Ajabrao

has stated that the appellant-accused was under the influence

.....15/-

Judgment Cr Appeal No.26.15

of alcohol. PW5 Vijay has also stated that the appellant-

accused had spent earlier amount of Rs.50/- on alcohol and

was under the influence. In cross, he has stated that his father

was over-drunk and deceased Ratnabai was scolding him. The

dyeing declaration of deceased Ratnabai shows that her

husband had earlier broken her hand and was harassing her as

he was drunkard.

18. After setting his wife ablaze, the appellant-accused

was standing outside his house. He did not run away and also

did not proceed to hospital with his wife. His conduct shows

that he was unconcerned about the health of his wife. He used

to beg food even by changing looks and appears to be an

addict. After consuming alcohol on bazar day, he wanted his

wife to give him more money. This resulted in quarrel and

during that quarrel, the appellant-accused poured kerosene on

her person and set her ablaze. It appears that tempers were

running high and that may have added fuel to fire, still it

cannot be accepted that the appellant did not intend to kill his

.....16/-

Judgment Cr Appeal No.26.15

wife. His concern towards her health would have been

apparent in his subsequent conduct, if he wanted her not to

die. It appears that in quarrel and heat of passion, the

appellant-accused took a drastic step. We, therefore, find that

he should have been convicted under Section 304 Part I of the

Indian Penal Code. Accordingly, we proceed to pass the

following order :

ORDER

1. Criminal Appeal is partly allowed.

2. The judgment and order of conviction delivered

by the Additional Sessions Judge, Khamgaon, in

Sessions Trial No.53 of 2012, under Section 302 of

the Indian Penal Code is altered to one under

Section 304, Part (I) of the Indian Penal Code and

the accused is sentenced to suffer R.I. for a period

of 10 years and to pay fine of Rs.100/- and in

default of fine to suffer further R.I. for a period of

.....17/-

Judgment Cr Appeal No.26.15

one month.

3. The accused is in jail since 17.3.2012. He be

given set-off under Section 428 of Cr.P.C., of the

period already undergone by him in jail.

4. Seized property being worthless, be destroyed

after the appeal period is over.

5. The charges of Shri D.V. Chauhan, learned

counsel appointed for the appellant, are fixed at

Rs.5000/- and are donated to the High Court

Library, as requested by the learned counsel.

                           JUDGE                                  JUDGE





    !!  BRW  !!




                                                                                .....18/-





     Judgment
                                                                       Cr Appeal No.26.15




                                                                                              





                                                                      
                                  C E R T I F I C A T E

I certify that this Order/Judgment uploaded is a true and correct

copy of original signed Order.

Uploaded by : Bhushan R.Wankhede. Uploaded on : 21/09/2016 (Personal Assistant)

...../-