Haribhau Babaji @ Babasaheb ... vs The State Of Maharashtra
2017 Latest Caselaw 1313 Bom

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.234 OF 2013


 Haribhau s/o Babaji @ Babasaheb Jawale,
 Age-25 years, Occu:Agril.,
 R/o-Kolhar (Kolhubaiche),
 Tq-Pathardi, Dist-Ahmednagar.
                                 ...APPEALLANT
                               (Orig. Accused No.1) 
        VERSUS             

 The State of Maharashtra   
                                 ...RESPONDENT

                      ...
    Mr. Rajendra S. Deshmukh Advocate h/f. 
    Mr. B.N. Palve Advocate for  Appellant.
    Mr. S.G. Karlekar, A.P.P. for Respondent/State. 
                      ...

               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

DATE OF RESERVING JUDGMENT : 15TH MARCH,2017

DATE OF PRONOUNCING JUDGMENT: 31ST MARCH, 2017

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Criminal Appeal is filed by the

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Appellant - original accused No.1 challenging the

Judgment and order dated 16th May 2013 passed by

the Additional Sessions Judge, Ahmednagar in

Sessions Case No.235 of 2011, thereby convicting

the Appellant for the offence punishable under

Section 302 of the Indian Penal Code and

sentencing him to undergo imprisonment for life.

2. Facts of the prosecution case, in brief,

are as under:

A) It is the case of the prosecution that

Baban Aghav was residing at village Chinchale,

Taluka-Rahuri along with his wife Vijabai, two

sons and one daughter Ashwini, aged 20 years.

Marriage of Ashwini came to be solemnized on 20th

May, 2011, with Appellant - Haribhau, the son of

Babaji Jawale, original accused No.2. Babaji was

residing alongwith his wife Drupadabai and son

Deepak in a residential house constructed in Gat

No.771 at village Kolhar. After marriage, Ashwini

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went to cohabit with Appellant Haribhau Jawale,

but she received ill-treatment not only from her

husband Haribhau but also from her mother-in-law

Drupadabai as well father-in-law Babaji. From the

very first day of her marriage, Ashwini was

subjected to harassment on account of demand of

money. Appellant Haribhau along with his father

and mother, started making demand of Rs.80,000/-

for purchasing a vehicle for Haribhau. On this

count Ashwini was also beaten and abused. Ashwini

was also told that she had brought very few

articles and on this count her mother-in-law

Drupadabai used to give abuses to Ashwini. Ashwini

also did not receive proper treatment from her

hsuband Haribhau. On the very second day of her

marriage, she was subjected to forcible sexual

intercourse against her own wishes, though she was

having her menses. Appellant Haribhau was

repeatedly committing forcible sexual intercourse

with Ashwini and on this count also he was

harassing her.

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B) On 22nd May, 2011 Baban, father of

Ashwini, went to bring back Ashwini to her

maternal home at village Chinchale. On the next

day Babaji, father of Appellant Haribhau came to

village Chinchale and took away Ashwini to her

matrimonial house. After coming back to the

matrimonial house, the marital life of Ashwini was

not peaceful and she continued to receive

harassment and ill-treatment at the hands of

Appellant and his father and mother. On 27th May,

2011 in the night Appellant Haribhau forcibly

committed sexual intercourse with Ashwini on three

occasions against her wishes. Appellant Haribhau

also assaulted Ashwini during that night.

C) In the morning of 28th May, 2011 Aswini

was folding her clothes in the house. At about

12.00 noon Appellant Haribhau again came inside

the house and asked Ashwini to bring amount of

Rs.80,000/- from the house of her parents, to

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which Ashwini did not agree. Appellant Haribhau

then gave a slap to Ashwini. Appellant Haribhau

then took one bottle containing kerosene and

poured kerosene over the body of Ashwini and set

Ashwini on fire by igniting a match-stick. Due to

the fire, the clothes of Ashwini started burning

and Ashwini received burn injuries all over her

body. In the mean time, father and mother of

Appellant Haribhau also reached the house and

extinguished the fire. Father and mother of

Appellant Haribhau then rushed Ashwini to the

Civil Hospital at Ahmednagar. Ashwini came to be

admitted to Burns Ward as she had received burn

injuries all over body to the extent of 80%.

D) While Ashwini was in the Burns Ward and

struggling for life, she expressed a desire to

give a dying declaration. Police then summoned the

Special Judicial Magistrate to record the dying

declaration. During the course of recording of

dying declaration, Ashwini stated that, her

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husband i.e. Appellant Haribhau, had poured

kerosene over her person and set her on fire.

While Ashwini was admitted in the Burns Ward, she

again gave a dying declaration, which came to be

recorded by P.S.I. attached to Topkhana Police

Station, Ahmednagar. On the basis of the dying

declaration recorded by the Special Judicial

Magistrate, offence came to be registered by

Pathardi Police Station vide Crime No.209 of 2011

under Sections 307, 376 and 323 read with 34 of

the Indian Penal Code. Police then started

investigation. Police went to the spot of the

incident located in the house of Appellant

Haribhau Jawale at village Kolhar and Spot

Panchnama was prepared in the presence of Panchas.

During the course of investigation, police also

arrested the original accused Nos.1 to 4. In the

mean time Ashwini succumbed to the burn injuries.

Police then prepared Inquest Panchnama over the

dead body of Ashwini in the presence of Panchas

and dead body was sent for postmortem. Medical

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officer attached to Civil Hospital, Ahmednagar

conducted postmortem over the dead body of

Ashwini. Medical officer gave opinion that death

of Ashwini was due to burn injuries to the extent

of 80%. Medical officer also gave opinion that

death was due to septicemia due to 80% burns.

Police seized clothes of deceased Ashwini.

Thereafter Investigating Officer conducted the

remaining investigation. Police took sample of

blood of deceased Ashwini as well as that of

accused. Police also seized the articles from the

spot viz. one plastic bottle, match box and match-

stick and prepared Seizure Panchnama. Muddemal

Articles were sent to the office of Chemical

Analyzer. Report of Chemical Analyzer was also

duly received. After completion of investigation,

charge-sheet came to be filed in the Court of

Judicial Magistrate, First Class, Pathardi. As the

offence under Section 302 of the Indian Penal Code

(for short "I.P. Code") was found to be triable

exclusively by the Court of Sessions, the case

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was committed to the Court of Sessions, Ahmednagar

on 23rd September 2011.

3. The accused Nos.1 to 4 appeared before

the Court of Sessions. The charges were framed

against accused Nos.1 to 4 for the offence

punishable under Sections 302, 376 and 498-A read

with 34 of the Indian Penal Code. Contents of

charge were read over and explained to the accused

in vernacular. Accused pleaded not guilty and

claimed to be tried. The defence of the accused is

that of total denial and false implication. In

order to prove charges, the prosecution examined

as many as nine witnesses.

4. In Sessions Case No.235 of 2011 before

the trial Court, there were four accused. The

trial Court considered the oral and documentary

evidence. Trial Court acquitted accused Nos.2 to 4

from all the offences with which they were

charged. The trial Court discarded the defence of

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accused No.1 i.e. present Appellant and holding

him guilty, convicted the Appellant - accused

no.1 for the offence punishable under Section 302

of the Indian Penal Code and sentenced him to

suffer life imprisonment, as afore stated. Hence

this Appeal.

5. The learned counsel appearing for the

Appellant submits that there is inconsistency in

both the dying declarations, in as much as in the

first dying declaration there is no mention of

demand of Rs.80,000/- by the Appellant or his

family members, however in the second dying

declaration it is stated that the Appellant and

his family members demanded Rs.80,000/- and on

that count they were causing harassment to

Ashwini. It is submitted that if there is

inconsistency in two dying declarations, in that

case both the dying declarations deserve to be

discarded. All the accused are acquitted from the

offence punishable under Section 498-A read with

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34 of the I.P. Code and therefore the prosecution

has not brought on record any motive for

commission of offence by the accused. Even the

Appellant is acquitted from the offence punishable

under Section 376 of the I.P. Code. It is

submitted that the Appellant has raised the

probable defence and the same ought to have been

accepted by the trial Court. It is submitted that

there was no reason for the accused to cause ill-

treatment or harassment soon after the marriage.

Deceased Ashwini was having love affair with one

Raju Shaikh and she wanted to perform marriage

with him. On 27th May, 2011 Shaikh Raju visited

the matrimonial home of Ashwini and presented one

Aptron Television Set to Ashwini. There was

quarrel between said Raju Shaikh and father of

deceased Ashwini and on account of that her mental

condition was disturbed and as a result, she

committed suicide on 28th May, 2011. He invites

our attention to the evidence of father and mother

of deceased Ashwini i.e. PW-1 Baban Bhagaji Aghav

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and PW-3 Vijabai Baban Aghav and submits that

their evidence suffers from exaggeration,

omissions, improvements and contradictions and

therefore, deserves to be discarded in its

entirety. PW-3 Vijabai has admitted in her

evidence that one Babasaheb, who is their

relative, is in police department. The dying

declarations were result of tutoring by PW-1 Baban

and PW-3 Vijabai and also the other witnesses who

are in blood relation of PW-1 and PW-3. Ashwini

sustained burns up-to 80% and even the burns to

hands, palm and also to the fingers and therefore

it was impossible to obtain the thumb impression.

The endorsement given by the medical officer is

not in the concerned Ward, but he had given the

said endorsement sitting in his chamber. The

attestation to thumb impression is in different

handwriting and the writing on backside of the

dying declaration is in different handwriting.

Thus, the said dying declaration cannot be relied

upon. The trial Court has not properly considered

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the evidence of PW-4 Laxmi Nanasaheb Tandale,

wherein she stated that Ashwini had told her that

Ashwini herself set her on fire as she was not

happy with her marriage with the Accused No.1 -

Appellant. The prosecution did not examine the

independent witnesses who have immediately rushed

to the house of the Appellant after the alleged

incident. In support of his contention that if two

dying declarations are inconsistent with each

other on material particulars, in that case no

implicit reliance can be placed upon the said

dying declarations, the learned counsel for

Appellant placed reliance on the reported Judgment

in the case of State of Maharashtra vs. Uttam

Karbhari Dhage and another1. The learned counsel

for the Appellant, in support of his submissions,

also placed reliance on the unreported Judgment of

the Bombay High Court, Bench at Aurangabad in the

case of Sunil s/o Bapurao Kadam and others vs. The

State of Maharashtra (Criminal Appeal No.111 of

1 1997 CRI. L.J. 2513

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2014, decided on 21st September 2015).

6. On the other hand, learned A.P.P.

appearing for the State, relying upon the findings

recorded by the trial Court, submits that those

are in consonance with the evidence brought on

record. He submits that though the accused are

acquitted from the offence punishable under

Section 498-A read with 34 of the I.P. Code,

nevertheless the prosecution has proved the motive

of causing harassment to Ashwini by demanding

money and also excessive sexual harassment by the

Appellant. In respect of appreciation of the

evidence in the form of dying declaration, the

learned A.P.P. placed reliance on the reported

Judgments in the case of Khushal Rao vs. State of

Bombay2, Laxman vs. State of Maharashtra3,

Sayarabano @ Sultanabegum vs. State of

Maharashtra4, Jaishree Anant Khandekar vs. State

2 1958 A.I.R. (S.C.) 22 3 2002 A.I.R. (S.C.) 2973 4 2007(12) S.C.C. 562

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of Maharashtra5 and Naresh Eknath Naik vs. State of

Maharashtra6.

7. We have heard the learned counsel

appearing for the Appellant and learned A.P.P.

appearing for the State at length, with their able

assistance perused the grounds taken in the Appeal

Memo, annexures thereto and also the entire

evidence so as to find out the correctness of the

findings recorded by the trial Court. It is true

that the trial Court has acquitted all the accused

from the offence punishable under Section 498-A

read with 34 of the I.P. Code on the ground that

there is evidence of only PW-1 Baban and PW-3

Vijabai. Nevertheless, the allegation of demand is

not only stated by PW-1 Baban and PW-3 Vijabai but

also by deceased Ashwini in her dying declaration

at Exhibit 58. Be that as it may, since the State

has not filed any appeal challenging the acquittal

of other accused or the acquittal of the Appellant

5 2009(11) S.C.C. 647 6 2013(2) Bom.C.R.(Cri.) 97

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for the offence punishable under Section 498-A

read with 34 of the I.P. Code and Section 376 of

I.P. Code, we will not go into the greater details

of the reasons assigned by the trial Court while

acquitting the accused from the said offences.

However, the fact remains that in both the dying

declarations, Ashwini has categorically stated

about excessive sexual assault by the Appellant

from 21st May, 2011 till 27th May 2011. While

acquitting the Appellant from the offence

punishable under Section 376 of the I.P. Code, two

principal reasons are assigned by the trial Court,

firstly that, Ashwini was married with the

Appellant and secondly, her age was 20 years and

therefore it cannot be said that the Appellant

committed the offence punishable under Section 376

of the I.P. Code. But to appreciate both the dying

declarations, this Court will have to bear in mind

the prelude to the dying declarations wherein

Ashwini categorically stated about excessive

sexual assault by the Appellant, which cannot be

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ignored. In second dying declaration, Exhibit 58,

Ashwini stated that, on the very second day of her

marriage she was subjected to forcible sexual

intercourse against her wishes, though she was

having her menses. Upon careful perusal of the

dying declaration at Exhibit 54, so far as the

main incident in relation to Appellant is

concerned, it is stated thus:-

"vkt ldkGh mBwu ?kjkrhy loZ dkes dsyh- lklw] fnj ckgsj gksrs- eh o uojk ?kjkr gksrs- eh diM;kaP;k ? kM;k ?kkyhr gksrs- uo&;kus eyk ,d >kiM ekjyh o f'kO;k fnY;k- nqikjh 12 ok- njE;ku vkEgh nks?ks ?kjkr vlrkuk uo&;kus ckVyhrhy jkWdsy ekÖ;k MksD;koj vksrys- [kkyh vaxkoj jkWdsy vks?kGys- ckVyh Vkdwu fnyh o R;kus dkMsisVh ?ksmu dkMh vks<wu ek Ö;k lkMhyk fu&;ktoG ykowu eyk isVowu fnys- ekÖ;k vksjM.;kpk vkokt ,sdwu lklw] fnj o 'kstkjP;k ck;k vkY;k- lklwus] nhjkus eyk fo>foys- lkljk] uojk ;kauh eyk nok[kkU;kr vk.kys----------" (Underlines added)

8. In fact the statement at Exhibit 58, is

recorded as supplementary statement. It appears

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that the father of Ashwini i.e. PW-1 Baban filed

one application with the Investigating Officer

which was exhibited as Exhibit 56, wherein he

raised concern about not properly recording dying

declaration at Exhibit 54 and therefore the

supplementary statement of Ashwini at Exhibit 58

in the form of further dying declaration was

recorded by Investigating Officer PW-9 Buddhiraj

Dnyanoba Sukale. Upon careful perusal of the

contents of the said dying declaration, Ashwini

stated that on 28th May, 2011 she gave dying

declaration before the Special Executive

Magistrate. While recording said dying

declaration, no relative was present. But father-

in-law told Ashwini not to tell their names in

earlier dying declaration and therefore, their

names were not mentioned. It is true that in

further statement at Exhibit 58, first time

Ashwini stated that the husband and other accused

started demanding Rs.80,000/- since second day of

marriage and on that count they abused her. So far

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as main incident is concerned, in Exhibit 58,

Ashwini stated thus :-

"eh fnukad 28/05/2011 jksth fo'ks"k U;k; naMkf/kdkjh ;kapsleksj fnysyk e`R;wiwoZ tckc eyk iksyhlkauh okpwu nk[kfoyk rks cjkscj vkgs- lnjpk tckc ?ksrsosGh ek>s ekgsjps vkbZ oMhy vxj dks.khgh ekgsjps yksd uOgrs o eyk ek>s lkl&;kus vkeph ukos lkaxw udks vls EgVY;keqGs eh R;kaph ukos lkafxryh uOgrh- vkrk eh iw.kZ 'kq/nhoj vlwu lkaxrs dh yXukps nql&;k fno'khp ekÖ;k uo&;kus ¼gfjHkkÅus½ eyk ikGh vlrkuk lq/nk ek>soj ek>s bPNsfo:/n frunk tcjnLrhus cykRdkj dsysyk vkgs- rlsp fnukad 27/05/2011 jksth lq/nk jk=Hkj ek>soj cykRdkj dsyk vkgs- ek>s lkljs ckcqth egknso tkoGs] lklq nzksinkckbZ ckckth tkoGs] nhj fnid ckckth tkoGs gs loZtu yXukps nqljs fnolkiklwu eyk ßrq>s ekgs:u xkMh ?ks.;klkBh 80,000 :i;s ?ksowu ;sÞ vls Eg.kwu eyk usgeh f'kohxkG o ekjgk.k djhr gksrs- fn-28/05/2011 jksth nqikjh 12.00 ok- ps njE;ku eh o ek>s irh gfjHkkÅ vls nks?ks ?kjh vlrkuk uo&;kus eyk ßrq>s ekgs:u 80,000 :i;s vk.kÞ vls Eg.kkyk rsOgk eh R;kyk ßukgh vk.k.kkjÞ vls Eg.kkys vlrk uo&;kus fclysjh ¼ik.;kP;k½ ckVyhrhy jkWdsy ek>s vaxkoj Vkdys] MksD;koj Vkdys o dkMh isVhrhy dkMh vks<wu eyk isVowu fnys- eh vksjMY;kpk vkokt ,sdwu lklw] nhj iGr ?kjkr vkys o eyk fo>foys o

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nok[kkU;kr vk.kys-"

(Underlines added)

. Therefore, upon careful perusal of the

version from two dying declarations in relation to

main incident of pouring kerosene on the person of

Ashwini and setting her ablaze by the husband

Haribhau i.e. Appellant, stated by Ashwini, is

consistent.

9. Prosecution examined Dr. Vaidyanath

Shriniwas Gurwale as PW-5, who conducted post-

mortem on the dead body of Ashwini. He deposed

that he was posted in the Civil Hospital at

Ahmednagar since last two and half years. He

further deposed that he had conducted autopsy over

the dead body of deceased Ashwini Jawale. He

further deposed that he conducted the post-mortem

and noted the following:

"Column No.17 - Superficial to deep burns over body parts

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Head, neck, face : 5% Chest abdomen : 18% Right upper limb : 8% Left upper limb : 8% Right lower end : 18% Left lower limb : 18% Back : 5%

-------------

: 80%

-------------

. PW-5 Dr. Vaidyanath Gurwale further

deposed that, in his opinion death of Ashwini had

taken place due to septicemia shock due to 80%

burn.

10. Prosecution examined Dr. Jaydeep Bhanudas

Deshmukh as PW-6, who examined the patient Ashwini

before recording dying declaration by PW-8

Gorakshanath. PW-6 Dr. Deshmukh deposed that Shri

Ghugarkar (PW-8) told him that he wants to record

dying declaration of Ashwini. He then went

alongwith Shri Ghugarkar to the Burns Ward where

Ashwini was admitted. He then examined the patient

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Ashwini. He found that Ashwini was in fully

conscious condition to give her statement. He then

put his endorsements on the dying declaration.

11. The dying declaration Exhibit 54 was

recorded by Special Executive Magistrate PW-8

Gorakshanath Dashrath Ghugarkar, who deposed that

before recording dying declaration of Ashwini, he

asked Dr. Deshmukh (PW-6) to examine the patient

Ashwini and to issue the certificate. Dr. Deshmukh

then examined the patient Ashwini and issued a

certificate on the dying declaration. He further

deposed that Dr. Deshmukh also put the timing

below the certificate. PW-8 Gorakshanath then

asked the police as well as relatives to go

outside the cabin of patient Ashwini. PW-8 then

asked some preliminary questions to Ashwini. PW-8

Goraskshanath further deposed that patient Ashwini

told him that from the second day of her marriage

her husband started harassing her and started

compelling her to have sexual intercourse with

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him. He further deposed that Patient Ashwini told

that her husband was compelling her to have sexual

intercourse with her on three occasions in the

night. About the main incident, PW-8 Gorakshanath

deposed that Ashwini told him that in the

afternoon at 12.00 noon her husband had beaten her

and then poured kerosene over her person from a

bottle and lighted a match-stick and then set her

saree on fire.

12. So far as evidence of PW-1 Baban Bhagaji

Aghav and PW-3 Vijabai Baban Aghav is concerned,

they have fairly stated in their evidence that

they arrived at the hospital at 6.00 p.m. Upon

perusal of the dying declaration Exhibit 54, it

appears that the said dying declaration was

recorded at 4.35 p.m. on 28th May, 2011.

Therefore, possibility of tutoring to Ashwini by

her parents i.e. PW-1 and PW-3 is completely ruled

out.

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13. So far as evidence of PW-4 Laxmi

Nanasaheb Tandale is concerned, she has reciled

from the statement made before the police and the

Investigating Officer PW-9 Buddhiraj Dnyanoba

Sukale, in his evidence, has stated that, portion

marked "A" from police statement of PW-4 Laxmi was

stated by her. PW-4 Laxmi Nanasaheb Tandale was

declared hostile and therefore her evidence is of

no use to the defence.

14. Investigating Officer PW-9 Buddhiraj

Dnyanoba Sukale, in his deposition before the

Court, deposed that in the month of May, 2011 he

was attached to Pathardi police station as P.S.I.

He further deposed that on 29th May, 2011 head

constable Shekde registered an offence vide Crime

No.I-209 of 2011 and handed over the investigation

to PW-9. He further deposed that he went to the

spot of the incident and prepared spot panchnama.

He further deposed that he seized one saree, a

bottle having smell of kerosene of Blue Vita

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Company, one match-stick and a match-box. He then

recorded statement of Laxmi Nana Tandale as per

her say. He further deposed that he then issued

letter to the Medical Officer to conduct

examination of the victim from the angle of rape.

He also issued another letter to the Medical

Officer to conduct physical examination of victim

Ashwini for issuing certificate. He then recorded

statement of the complainant. Prior to that he

made inquiry from Medical Officer whether victim

was in a fit condition to give a statement. He

further deposed that Medical Officer then examined

Ashwini and issued the certificate. He then

recorded statement of Ashwini. He further deposed

that Ashwini told him that on 28th May, 2011 she

was with her husband Haribhau. At that time

Haribhau demanded amount of Rs.80,000/- and on

that count had subjected her to harassment.

Ashwini also told that from the second day of her

marriage, her in-laws and brother-in-law were

subjecting her to harassment for bringing more

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money. He further deposed that Medical Officer

then gave certificate on the same. He further

deposed that he then recorded statements of Baban

Aghav, Vijabai and others. He further deposed that

on 3rd June, 2011 victim Ashwini died. He further

deposed that inquest was prepared. Subsequently,

the offence under Section 302 of the I.P. Code

came to be registered. He thereafter arrested the

accused and prepared arrest Panchnama. He then

sent Muddemal Articles to the Chemical Analyzer.

Reports of Chemical Analyzer were received. He

further deposed that he also sent viscera of

deceased Ashwini to B.J. Medical College, Pune. He

further deposed that he then submitted charge-

sheet.

15. In view of the exposition by the Supreme

Court in the case of Khushal Rao vs. State of

Bombay, cited supra, the dying declaration

recorded by a competent Magistrate in the proper

manner, that is to say, in the form of questions

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and answers, and, as far as practicable, in the

words of the maker of the declaration, stands on a

much higher footing than a dying declaration which

depends upon the oral testimony which may suffer

from all the infirmities of human memory and human

character. In the present matter, the dying

declaration Exhibit 54 is recorded by PW-8

Gorakshanath Ghugarkar, the Special Executive

Magistrate, and therefore the same stands on a

much higher footing. The second dying declaration

Exhibit 58, recorded by PW-9 Investigating Officer

Buddhiraj Sukale is a supplementary statement, in

continuation of earlier dying declaration.

16. As already observed, so far the

allegations about sexual assault/ harassment by

the Appellant, the same could have been stated

only by Ashwini and none else. Apart from it,

while appreciating truthfulness of the contents of

both the dying declarations, in both the dying

declarations Ashwini has consistently stated that

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other family members, except husband, were outside

the house at the time of main incident and upon

pouring kerosene on her person by the husband and

setting her ablaze, she shouted and mother-in-law

and brother-in-law immediately came there and

tried to extinguish the fire on her person and she

was taken to the hospital. If Ashwini wanted to

rope in all the accused, she could have easily

done it by ascribing role to them. However, in

both the dying declarations Ashwini has attributed

role to the Appellant only. It would have been

different matter if there was an attempt on the

part of the Appellant to extinguish the fire when

the Appellant and Ashwini were only in the house

and incident had taken place at about 12.00 noon.

The size of the house is also not big and

therefore, if it would have been the case of

suicide by Ashwini, certainly the Appellant ought

to have made efforts to extinguish the fire.

However, there is nothing on record to suggest

that, as a matter of fact, Appellant tried to

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extinguish the fire. The defence taken by the

Appellant is rightly rejected by the trial Court

since the Appellant and Ashwini both were only in

the house and it was for the Appellant to offer

true explanation under which circumstances the

incident had taken place. The feeble attempt to

suggest that since Raju Shaikh presented

Television set and there was love affair between

said Raju Shaikh and Ashwini and therefore she

committed suicide by pouring kerosene on herself

and setting her ablaze, that too at 12.00 noon, is

impossible to accept, and rightly discarded by the

trial Court.

17. Therefore, upon considering the evidence

in its entirety, we are of the opinion that the

findings recorded by the trial Court are in

consonance with the evidence brought on record and

therefore, we do not think it necessary to cause

interference in the findings recorded by the trial

Court.

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18. Hence, the Appeal is devoid of any merit.

The Criminal Appeal stands dismissed.

[K.K. SONAWANE, J.] [S.S. SHINDE, J.] asb/MAR17