State Of Mah. Thr. Pso, Ps ... vs Vimal Chatrapati Bhoyar And ...
2017 Latest Caselaw 1494 Bom

                                                    1                     apeal444.03.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                       CRIMINAL APPEAL NO.444/2003

      State of Maharashtra, through
      Police Station officer, Police Station,
      Hinganghat, Dist. Wardha.                              .....APPELLANT

                               ...V E R S U S...

 1. Vimal w/o Chatrapati Bhoyar,
    aged 34 years, r/o Hinganghat, 
    Dist. Wardha.

 2. Ku. Pushpa d/o Ramchandra Dehari,
    aged about 23 years, r/o Wadner,
    Tq. Hinganghat, Dist. Wardha.                            ...RESPONDENTS

 -------------------------------------------------------------------------------------------
 Mr. V. A. Thakare, A.P.P. for the appellant.
 Mr. S. A. Choudhari, Advocate for respondents.
 -------------------------------------------------------------------------------------------
                                CORAM:-  B. P. DHARMADHIKARI AND
                                              V. M. DESHPANDE, JJ.
                                DATED :-    APRIL 6, 2017

 J U D G M E N T (Per : V. M. Deshpande, J.)

1. By the present appeal, the appellant/State is challenging

an order of acquittal passed by the learned Sessions Judge,

Wardha dated 30.09.2002 in Sessions Trial No.151/1997, by

which the Court below acquitted the respondents in the present

appeal of the offences punishable under Section 302 read with

Section 34 of the Indian Penal Code.

2 apeal444.03.odt

2. We have heard Mr. V. A. Thakare, learned A.P.P. for the

appellant/State and Mr.Chaudhari, learned counsel for the

respondents in extenso. With their able assistance, we have gone

through the record and proceedings as well as the impugned

judgment of the Court below.

The respondents were charged by the learned Sessions

Judge that on 19.05.2017, they committed murder of Ku. Vaishali

by pouring kerosene on her and setting her on fire. Both the

respondents abjured the guilt and claimed for their trial. In order

to bring home their guilt, the prosecution examined in all 14

witnesses and also relied upon the dying declaration made during

the lifetime of Vaishali.

3. According to the prosecution, the respondent no.1-Vimal

is wife of Chhatrapati, who is uncle of the deceased Vaishali. Prior

to his death, Chhatrapati used to reside in the house of Pandurang

Bhoyar at Hinganghat. Pandurang is father of the deceased

Vaishali. After death of Chhatrapati, the respondent no.1

continued her residence in the said house along with her sister-

Pushpa. According to the prosecution, Vimal was claiming share in

the said house on the ground that it was an ancestral one. On that

3 apeal444.03.odt

count, there was a dispute in between the respondent no.1 and the

family of the deceased.

4. It is further the case of the prosecution that on the date

of the incident, stones were pelted at the house of the respondent

no.1-Vimal. The said stone struck to the respondent no.2-Pushpa.

Both the respondents were suspecting that the stones were pelted

by the deceased therefore they used abusive language for the

deceased. The deceased Vaishali's mother Pramila (PW1) went

there. She was followed by the deceased Vaishali. The respondent

no.1 alleged that the deceased had pelted stones. The said

allegation was denied by the deceased. According to the

prosecution, on that the deceased Vaishali and the respondent

no.1-Vimal caught each other's hair. Both the respondents beat

Vaishali. The quarrel was pacified. Thereafter, both the

respondents went to their house. Then Pramila (PW1) gave a call

to Vaishali that she should come to the house by standing on the

road.

5. It is further case of the prosecution that in the

meantime, both the accused brought kerosene in a pot and threw

4 apeal444.03.odt

it on Vaishali. It is further case of the prosecution that while she

was passing through a cooking furnace that time Vaishali was

struck with a burning stick from the cooking furnace and thereby

she was burnt. The fire was extinguished and she was taken to the

hospital where her dying declaration was recorded.

6. In all four dying declarations were recorded. They are

at Exh.-39, Exh.34, Exh.-37 and Exh.-67. These dying declarations

are contending that kerosene was thrown on the person of the

deceased. None of the dying declarations state that any of the

accused set the deceased ablaze and/or they threw any lighting

matchstick on her person. All the dying declarations show that on

being wet with kerosene when the deceased was passing through,

that time a burnt stick from the hearth stuck to her clothes,

resulting into burn injuries to the person of the deceased.

7. Exh.-39 is proved by Gokul Gomkawale (PW8). He is

not the scribe. He is a Panch witness to Exh.-39. Perusal of Exh.-

39 shows that it is silent that the contents of the said dying

declaration were read over to Vaishali. The scribe of this is also

not examined. There is no positive evidence to show that the

5 apeal444.03.odt

contents of Exh.-39 were read over to Vaishali and she admits it to

be true.

8. Further, Gokul Gomkawale (PW8) was admitted as an

indoor patient in male ward. His evidence shows that Vaishali was

admitted in a ward meant for women. He has also admitted that

no permission was obtained from the Doctor to leave his ward. In

that view of the matter, no reliance can be placed on Exh.-39.

9. Exh.-34 is proved by Anandrao Thute (PW6), the

Executive Magistrate. Exh.-37 is proved by Haridas Gajbhiye

(PW7), the police officer. Whereas, Exh.-67 is proved by

Rupchand Kharwade (PW14), the Executive Magistrate. As

observed in the preceding paragraphs of this judgment, none of

these dying declarations attribute any role that any of the accused

threw any ignited matchstick. The panchanama of the spot, where

kerosene was poured, is at Exh.-26. The said panchanama does

not show that there were any traces of kerosene on the spot of the

offence. In our view, the learned Judge of the Court below has

rightly appreciated the fact that if the kerosene was thrown on the

person of Vaishali at the said place, the kerosene would have

6 apeal444.03.odt

fallen on the ground which could have substantiated the case of

the prosecution against the accused persons. Further, the presence

of Gaffar, Pandurang, Narendra-brother of Vaishali, was

established on record. However, they are not examined by the

prosecution.

10. The learned Judge of the Court below has rightly

appreciated the aspect of kerosene residues on the clothes of the

accused persons. The learned Judge has rightly found that the

articles were not sealed and they were not carried out in a sealed

condition to the chemical analyzer.

11. Further, there is no evidence recorded to show that the

respondents were knowing that there are flames in the hearth and

the deceased would follow only that path where the hearth was

situated. In that view of the matter, it is absolutely clear that the

prosecution has failed to prove the guilt of the accused persons.

Perusal of the impugned judgment shows that the view

taken by the court below is not perverse one. We find no merit in

the present appeal. Hence, we pass the following order.

                                            7                   apeal444.03.odt

                                 ORDER

        (i)    Judgment and order dated 30.09.2002 delivered by

the Sessions Judge, Wardha in Sessions Trial No.151/1991 is maintained.

(ii) Criminal Appeal is dismissed.

(iii) Bail bonds furnished by the respondents are cancelled.

(iv) Muddemal property be dealt with as directed by the trial court, after the appeal period is over.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale