Nilesh @ Rafu S/O Laxman @ Lahu ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 5409 Bom

    cri.apeal-426-15                                                                            1/8


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                        
                                 NAGPUR BENCH, NAGPUR.




                                                                
                             CRIMINAL APPEAL NO.426 OF 2015


    Nilesh @ Rafu s/o Laxman @ Lahu Mandhare 
    Aged about 31 yrs. Occ. Labourer, 




                                                               
    R/o Netaji Nagar, Vijasan, 
    Tah. Bhadrawati, Dist. Chandrapur.                             .. Appellant. 

    -vs-




                                                   
    The State of Maharashtra,          
    Thr. Police Station Officer, 
    Police Station, Bhadrawati, 
    Dist. Chandrapur.                                              ... Respondent. 
                                      
    Shri V. A. Dhabe, Advocate for appellant (Appointed). 
    Shri R. S. Nayak, Additional Public Prosecutor for respondent/State.  
             
          



                                                      CORAM  : B. P. DHARMADHIKARI &
                                                                 A.S.CHANDURKAR, JJ. 

DATE : September 20, 2016

Judgment : (Per A. S. Chandurkar, J.)

By this appeal filed under Section 374(2) of the Criminal

Procedure Code, 1973 the appellant challenges his conviction for having

committed an offence punishable under Section 302 of the Indian Penal

Code. By judgment dated 20/03/2010 the appellant has been sentenced to

suffer imprisonment for life.

cri.apeal-426-15 2/8

2. It is the case of the prosecution that the appellant sometime in

July 2008 had caught hold of hand of one Savita Patrakar and had slapped

her. Report had been lodged with regard to said incident with the police.

The appellant had been arrested for the said incident and had been jailed.

After his release, the appellant on 09/09/2008 went to the house of said

Savita Patrakar and abused her. When she went inside the house, the

appellant followed her and after pouring kerosene on her person set her on

fire. On hearing her cries, the neighbours extinguished the fire after which

her mother was called. The victim was then taken to the Government

hospital and her statement came to be recorded. On that basis an offence

came to be registered under Section 307 of the Indian Penal Code against the

appellant. Savita thereafter succumbed to her injuries. On completion of

investigation the appellant was charged for having committed an offence

under Section 302 of the Penal Code. He did not plead guilty and was thus

tried. At the conclusion of the trial the appellant was convicted and

sentenced in the manner stated herein above. Being aggrieved, the present

appeal has been filed.

3. Shri V. A. Dhabe, the learned counsel appointed to defend the

appellant submitted that the conviction of the appellant was unsustainable.

The dying declarations at Exhibit-37 and Exhibit-40 could not have been

relied upon considering material inconsistencies therein. It was submitted

cri.apeal-426-15 3/8

that while the victim had signed the dying declaration at Exhibit-37, the

other dying declaration at Exhibit-40 had the impression of her right toe.

Considering the fact that she had suffered 91% burns it was not possible to

obtain any impression of her thumb. It was then submitted that the

deposition of PW-5 Praful Bodhale could not have relied upon inasmuch as

this witness had stated that the appellant had initially come to the house of

the victim but on being scolded he had left the place. It was also submitted

that considering the entire evidence on record it could be seen that the fire

was extinguished by one Chabutai Pandhare but she had not been examined

by the prosecution. It was therefore submitted that the conviction of the

appellant could not be sustained and he was entitled for acquittal.

4. On the other hand Shri R. S. Nayak, the learned Additional Public

Prosecutor supported the conviction of the appellant. He submitted that both

the dying declarations were consistent and the appellant had been named

therein. Similarly, the statement of the victim made to PW-6 Rekha

Patrakar had been duly proved. The fitness of the victim to give her

statement had been proved in the evidence of the doctor at Exhibit-45.

Inconsistency, if any, was of a minor nature and same did not affect the case

of the prosecution. Moreover, the appellant had admitted that he had been

jailed for slapping said Savita and that the same was the motive for

committing the crime. It was therefore submitted that there was no merit in

cri.apeal-426-15 4/8

the appeal.

5. We have heard the respective counsel for the parties and with

their assistance we have also gone through the records of the case. As per

the Post Mortem report at Exhibit-32 said Savita died on account of shock

due to burn injuries. The homicidal death of said Savita is not under

challenge.

6. Since the case of the prosecution is based on two dying

declarations, their evidentiary value can be taken into consideration at the

inception. At Exhibit-37 is the dying declaration that was recorded at 3.15

pm on 09/09/2008. The same bears signature of PW-14 Dr Yamini Pant.

The doctor has certified that at about 3 pm the Executive Magistrate-PW-11

had visited the hospital for recording the dying declaration. On examining

the patient she found her fit to give her dying declaration. The doctor has

also deposed that after the statement was recorded, the patient was again

examined and she was found fit.

The Nayab Tahsildar-Pandurang Dhabkas was examined vide

Exhibit-35. He has referred to the requisition at Exhibit-36 received by him.

He has deposed about Savita being examined by the doctor and thereafter

giving her statement. This dying declaration at Exhibit-37 appears to be

signed by the victim by putting her initials. This fact is deposed by the

cri.apeal-426-15 5/8

Executive Magistrate. Nothing material has been extracted in the cross-

examination of this witness. Considering the evidence of PW-11, the

Executive Magistrate and PW-14 Dr Pant, their version is consistent and

corroborative. We therefore do not find any legal impediment in not

accepting the dying declaration at Exhibit-37.

7. The subsequent dying declaration at Exhibit-40 was recorded by

the Head Constable Dinkar Kalmeghe who was examined as PW-12 below

Exhibit-38. This witness has referred to the requisition at Exhibit-39 which

bears endorsement of the doctor that the patient was fit to give her

statement. The time put therein is 3.45 pm on 09/09/2008. This

endorsement is proved by the doctor examined below Exhibit-14. However,

this dying declaration does not bear any endorsement of the doctor that after

giving the statement at Exhibit-40 the deponent was in a fit state of physical

and mental health. The same also does not indicate the time when the dying

declaration was finished recording. It would therefore be not safe to rely

upon the dying declaration brought on record at Exhibit-40. However as

found herein above, the dying declaration at Exhibit-37 has been found to

have been recorded in accordance with law and with the endorsement that

the deponent was in a fit state of physical and mental health both, prior to

and after recording of her statement. The same therefore deserves to be

taken into consideration.

cri.apeal-426-15 6/8

8. In so far as the ocular evidence is concerned, PW-5 Praful Bodhale

examined below Exhibit-23 has deposed that on 09/09/2008 at about 11.30

am after Ganesh aarti was over, he along with two others were sitting near

the pandol. Savita was sitting near the door adjacent to her house. At that

point of time the appellant had come there and had abused Savita. The

appellant was scolded by the said witness and others present there. After

that he left the place. This witness again has stated that after about half an

hour on hearing shouts he had come towards house of Savita. After making

inquiry, he was told by Savita that the appellant had poured kerosene on her

person and set her ablaze. This witness along with one another had taken

Savita to the hospital and on the way they were joined by the mother of

Savita. Though this witness was cross-examined, nothing material has been

extracted in his deposition. It was suggested to this witness that on account

of Ganesh festival someone or the other used to remain present in the

pandol. The presence of this witness being natural and the Ganesh pandol

being near to the house of Savita, his deposition inspires confidence for

acceptance, he being an independent witness.

9. PW-6 Rekha Patrakar is examined at Exhibit-24. She being the

mother of Savita was informed by one Vinod Pimpalkar after which she had

immediately came towards her house. By that time Savita was being taken

to the hospital. She then accompanied them mid-way in the auto rickshaw.

cri.apeal-426-15 7/8

Though this witness stated that after seeing her daughter with burn injuries

she became unconscious, she has further stated that thereafter she was told

by her daughter that the appellant had set her on fire. The version of this

witness is corroborated by the version of PW-2 Vinod Pimpalkar at Exhibit-

13. Nothing material has been extracted from the deposition of this witness

who has also referred to the presence of PW-5 Praful Bodhale while taking

Savita to the hospital.

Thus from the aforesaid evidence, the prosecution has succeeded

in proving that it was the appellant who had set Savita on fire by pouring

kerosene.

10. Though it was urged by the learned counsel for the appellant that

while PW-5 Praful Bodhale had deposed that Savita was sitting adjacent to

the door of her house, Savita had stated in her dying declaration at Exhibit-

37 that as she was unwell, she was sleeping in her house. There was thus

inconsistency in the case of the prosecution. We do not find that there is any

such inconsistency so as to render the case of the prosecution doubtful. PW-

5 Praful Bodhale had deposed about the incident that occurred half an hour

prior to Savita being burnt while Savita at Exhibit-37 has narrated what had

transpired immediately prior to she being burnt. Hence, said submission

cannot be accepted.

cri.apeal-426-15 8/8

11. The report of the Chemical Analyser at Exhibit-7 indicates that

there was residue of kerosene on the clothes of the appellant that were

seized after his arrest on 10/09/2009. The seizure of match-box is also duly

proved. Similarly the motive for the aforesaid crime has been brought on

record that as the appellant had slapped Savita Patrakar and had been

arrested by the police, he had an axe to grind against her. In answer to

question No.1 in his examination under Section 313 of the Criminal

Procedure Code, the appellant has admitted that he had slapped said Savita

Patrakar and after his arrest he was in jail.

12. Thus from the aforesaid evidence on record we are satisfied that

the prosecution has proved its case beyond reasonable doubt. The guilt of

the appellant has been duly proved. The appellant has been rightly convicted

by the learned Additional Sessions Judge vide the impugned judgment.

There is therefore no case made out to interfere with his conviction.

Hence the following order is passed :

    (i)             The criminal appeal is dismissed.





    (ii)            Muddemal property be dealt with as directed by the Trial Court
                    after appeal period is over.
    (ii)            Charges   of   learned   counsel   appointed   for   the   appellant   are

quantified at Rs.5000/- (rupees five thousand only).

                                                        JUDGE                 JUDGE
    Asmita