Parubai Gulab Watane vs The State Of Maharashtra
2017 Latest Caselaw 8070 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.488 OF 2007

Parubai w/o. Gulab Watane,
Age : 22 years, 
Occ. Household,
r/o. Wazar, Tq. Jintur,
Dist. Parbhani                          ..Appellant
                                        (Orig. accused no.1)
               Vs.
State of Maharashtra, 
Through Police Station Officer, 
Police Station, Bamni, 
Tq. Jintur,
Dist. Parbhani                  ..Respondent
                                (Prosecution)

                         ----
Mr.S.S.Rathi, Advocate for appellant
Ms.S.S.Raut, APP for respondent
                         ----
                         CORAM : SUNIL P. DESHMUKH AND
                                 SANGITRAO S. PATIL, JJ.

RESERVED ON : SEPTEMBER 29, 2017 PRONOUNCED ON : OCTOBER 12, 2017

JUDGMENT (PER SANGITRAO S. PATIL, J.) :-

Heard

2. The appellant (original accused no.1) has

been convicted for the offences punishable under

Sections 302 and 436 of the Indian Penal Code

2 cri.appeal.488-2007

("I.P.C." for short) and sentenced to suffer

imprisonment for life and to pay a fine of Rs.5,000/-

in respect of the offence punishable under Section

302 of the I.P.C.; and rigorous imprisonment for five

years and a fine of Rs.2,000/- in respect of the

offence punishable under Section 436 of the I.P.C. in

Sessions Case No.27 of 2007 by the learned Sessions

Judge, Parbhani on 16.11.2007. Being aggrieved by the

said conviction and sentence, the present appeal has

been filed.

3. The deceased Mandabai was the wife of

original accused no.2 namely, Gulab s/o. Gajanan

Watane, r/o. Wazar, Tq.Jintur, Dist. Parbhani. Their

marriage was performed in the year 2000. From the

said wedlock, they had got a son namely, Akash and a

daughter namely, Nikita, who were aged about 5 years

and 2 years respectively, at the time of the incident

which took place in the night intervening 2 nd and 3rd

August, 2006. Accused no.2 had extra-marital

relations with the present appellant. Ultimately,

3 cri.appeal.488-2007

they married on 02.01.2006 and got registered their

marriage in the office of Registrar of Marriages at

Jintur on 18.02.2006. The appellant started residing

in the house of accused no.2 along with the deceased

Mandabai, her children and parents of accused no.2,

which was situate in the agricultural land. The house

of accused no.2 was comprising of three rooms, out of

which one room was allotted to their servants namely,

Piraji Mankari and two rooms were in possession of

the family of accused no.2.

4. On 02.08.2006, accused no.2 had gone to

Jalna for bringing tractor-tyres and dynamo. He did

not come back even in the night. Accused no.3, who is

the mother of accused no.2, had gone to the house of

her younger son, who was residing in the village,

since his wife had delivered a child in the morning

on that day.

5. In the night of the incident, the deceased

Mandabai, both of her children and the appellant were

4 cri.appeal.488-2007

sleeping inside their house. The father of accused

no.2 namely, Gajanan Watane, who is the informant,

was sleeping outside the house. The appellant came

out of the house at midnight and shouted that there

was fire inside the house. The informant got up from

the sleep. The deceased Mandabai also came outside

the house along with her daughter Nikita. Both of

them were caught by flames. Piraji Mankari placed a

wet blanket on the person of the deceased Mandabai

and extinguished the fire. The son of the deceased

Mandabai namely, Akash remained inside the house

itself. Due to extensive fire inside the house, he

could not be saved. Piraji Mankari brought a jeep

from the village, whereon the deceased Mandabai and

her daughter were taken to the Civil Hospital at

Parbhani. The body of Akash, the son of the deceased

Mandabai, had turned into ashes. Nikita died in the

Civil Hospital at Parbhani on the same day. The

deceased Mandabai also died on 04.08.2006 at about

5.20 p.m.

5 cri.appeal.488-2007

6. After the deceased Mandabai was admitted in

the Civil Hospital at Parbhani, her statement was

recorded by a Police Head Constable who was on duty

in the Police Outpost of Civil Hospital, Parbhani, at

about 8.30 a.m. on 03.08.2006, after getting it

verified from the Medical Officer that she was

conscious and in a fit condition to give statement.

On the same day, at about 9.20 a.m., the Naib

Tahsildar recorded her statement after confirming

from the Medical Officer that she was conscious and

in a fit condition to give the statement. In those

statements, she narrated that she got burnt when she

was under the sleep. Both of her kids also got burnt.

In her dying declaration before the Police Head

Constable, she stated that when she went outside the

house along with her daughter who also was burning,

she found that the appellant had already been out of

the house. She stated that her son remained inside

the house and could not be saved. She did not raise

6 cri.appeal.488-2007

any suspicion against anybody or complain against

anybody behind the incident of fire.

7. When the deceased was in the Civil Hospital

at Parbhani, she talked to her sister namely, Chhaya

on phone and informed that in the night of the

incident, the appellant poured kerosene on her

person, her husband i.e. accused no.2 and the mother-

in-law i.e. accused no.3 caught hold of her and the

appellant set her on fire by a matchstick. Chhaya

visited the Police Station and gave statement

accordingly, on the basis of which accused nos.2 and

3 also came to be arrested in connection with the

present crime.

8. The post moretm of the bodies of Nikita and

Mandabai were conducted. Nikita had sustained 100% of

burns, while Mandabai had sustained 99% of burns.

Dr.Bhalerao, who conducted post-mortem on the body of

Nikita, opined that she died of hypo-volumic shock

due to 100% superficial to deep burns. Dr. Doiphode,

7 cri.appeal.488-2007

who conducted post mortem on the body of Mandabai,

opined that she died due to Cardio-respiratory

failure secondary to hypo-volumic shock due to

extensive 99% burns.

9. Initially, A.D.Nos.3 of 2006 and 12 of 2006

were registered in the Police Station, Bamni. P.H.C.

Puri visited the spot of the incident, prepared spot

panchnama and seized the burnt frock of Nikita. The

dead body of the deceased Akash was also found in

that house. The burnt frock of the deceased Nikita

was sent to C.A. for analysis and report. Kerosene

residues were detected thereon.

10. The informant Gajanan had suspicion about

the foul-play behind the incident of burning the

house. He inquired with the appellant on 05.08.2006

as to how the fire erupted in the house in the night

of the incident, whereon she confessed that she

poured kerosene on the cot, on which the deceased

Mandabai was sleeping with her kids and set fire to

the saree of the deceased Mandabai. After the

8 cri.appeal.488-2007

deceased Mandabai was caught by fire, she came out of

the house and raised shouts. On the basis of the

statement made by the appellant, the informant

Gajanan, lodged report against her in the Police

Station, Bamni, on the basis of which, Crime No.36 of

2006 came to be registered against her for the

offence punishable under Section 302 of the I.P.C.

11. The investigation followed. The statements

of the witnesses were recorded. The appellant came to

be arrested on 05.08.2006 at about 11.00 a.m. When

she was in the police custody, she gave a disclosure

statement and offered to produce a kerosene can which

was thrown in the bushes near the house. Accordingly,

she took the panchas and P.S.I. Phad, Investigating

Officer, towards the bushes and produced the plastic

can from the said bushes. The same was seized under a

panchnama.

12. After completion of the investigation, the

appellant as well as, accused nos.2 and 3 came to be

charge-sheeted for the offences punishable under

9 cri.appeal.488-2007

Section 302, 436, 429 read with Section 34 of the

I.P.C. in the Court of the learned Judicial

Magistrate First Class, Jintur. Since the case was

triable by the Court of Session, the learned

Magistrate committed it to the Court of Session for

trial.

13. The learned Sessions Judge framed charges

against the appellant and accused nos.2 and 3 for the

above-mentioned offences vide Exh.18 and explained

the contents thereof to them in vernacular. The

appellant and accused nos.2 and 3 pleaded not guilty

and claimed to be tried. According to accused nos.2

and 3, they were not at all present at their house in

the night of the incident and that they have been

falsely implicated by the sister of the deceased

Mandabai.

14. The appellant stated that in the night of

the incident, she went to sleep inside the house

along with the deceased Mandabai and kids. Diesel and

10 cri.appeal.488-2007

kerosene cans, which were inside their house, were

caught by fire in the midnight. She got up from the

sleep due to the heat of flames and rushed outside

the house to save her life. The deceased Mandabai and

her children were just near the diesel and kerosene

cans. All of them were caught by fire. The deceased

Mandabai came out of the house along with her

daughter. The informant Gajanan and others

extinguished the fire from the person of the deceased

Mandabai and her daughter and took them to the

hospital. According to the appellant, the informant

Gajanan was against her marriage with accused no.2.

Therefore, he lodged a false report against her. She

further came with a case that the sister of the

deceased Mandabai namely, Chhaya gave a false

statement against her with a view to grab the entire

property of her parents, in which the deceased

Mandabai had a share.

15. The prosecution examined nine witnesses to

bring home the guilt of the appellant and accused

11 cri.appeal.488-2007

nos.2 and 3. After evaluating the evidence, the

learned trial Judge accepted the case of accused

nos.2 and 3 that they were not present in the house

in the night of the incident and were not involved in

the above-mentioned offences. He, therefore,

acquitted them. The learned trial Judge, however,

came to hold that the prosecution established beyond

reasonable doubt, that the appellant poured kerosene

and set the deceased Mandabai and her children on

fire in the night of the incident. The learned trial

Judge, therefore, convicted the appellant of the

offences punishable under Sections 302 and 436 of the

I.P.C. and sentenced her, as stated above.

16. The acquittal of accused nos.2 and 3 has not

been challenged by the State/prosecution. The

judgment and order of acquittal in respect of accused

nos.2 and 3, thus, has attained finality.

17. The learned Counsel for the appellant

submits that there is no sufficient, cogent and

12 cri.appeal.488-2007

dependable evidence on record to establish that the

appellant set the deceased Mandabai and her children

on fire in the night of the incident. He submits that

the case is entirely depending on the circumstantial

evidence. There are written dying declarations of the

deceased Mandabai recorded after getting it confirmed

that she was in a fit condition and in those

statements, she did not allege anything against the

appellant in respect of the incident of burning. Her

oral dying declaration coming through the evidence of

her sister Chhaya (PW 2) has not been believed by the

learned trial Judge since Chhaya (PW 2) tried to

implicate accused nos.2 and 3 in the incident of

fire, though they were not at all present in the

night of the incident. Moreover, Mangala (PW 9), who

allegedly was present when the deceased Mandabai had

telephonic talks with Chhaya (PW 2) about the

occurrence of the incident of fire, also does not

support the version of Chhaya (PW 2). He then submits

that the extra-judicial confession allegedly made by

13 cri.appeal.488-2007

the appellant before the informant Gajanan also has

been disbelieved by the learned trial Judge.

According to him, the only circumstances that weighed

the learned trial Judge are that the appellant was

inside the house in the night of incident and

particularly, when there was fire inside the house,

that she came out of the house without suffering even

slightest injury and she did not explain as to how

the fire erupted inside the house, for holding the

appellant guilty of the above-mentioned two offences.

He submits that no motive has been proved, which

would have prompted the appellant to finish the

deceased Mandabai and her children by setting them on

fire. According to him, the circumstances relied upon

by the prosecution do not form a complete chain to

connect the appellant with the above-mentioned

offences. He submits that the appellant has been

wrongly convicted by the trial Court.

18. As against this, the learned A.P.P. submits

that though accused no.2 was married to the deceased

14 cri.appeal.488-2007

Mandabai in the year 2000 and had got two children

from that wedlock, the appellant had illicit

relations with him. The appellant compelled accused

no.2 to get married with her. Accused no.2 executed

an agreement in favour of the deceased Mandabai on

17.02.2006 and assured that he would treat her and

her children properly even after getting married with

the appellant and further assured to transfer certain

agricultural lands in her name for her maintenance.

Accused no.2 got registered the marriage with the

appellant on 18.02.2006. The learned A.P.P. submits

that the appellant was not happy in seeing the

deceased Mandabai and her children living in the

house with accused no.2. Therefore, with an intent to

eliminate them, she set them on fire by pouring

kerosene around them in the night of the incident.

The learned A.P.P. submits that had there been

accidental fire, the appellant also would have

sustained burns because she also would have taken

some time in getting up from the sleep and running

15 cri.appeal.488-2007

away out of the house due to fire. The learned A.P.P.

submits that there was a strong motive on the part of

the appellant to finish the deceased Mandabai and her

children. The appellant did not explain the

circumstances under which the fire erupted inside the

house, which fact was within her special knowledge.

According to her, these are the strong circumstances

to establish the guilt of the appellant for the

above-mentioned offences. The learned A.P.P.

supports the impugned judgment.

19. The informant Gajanan (Exh.26) deposes that

on the next day of death of Mandabai, he inquired

with the appellant, as to how the fire erupted inside

the house, whereon she disclosed that she herself

poured kerosene on the deceased Mandabai and her

children and by means of a burning kerosene lamp set

them on fire. Thereafter, she came out of the house.

On the basis of this statement, the informant Gajanan

lodged the report (Exh.27) in the Police Station,

Bamni, on 05.08.2006 at about 5.15 p.m. So far as

16 cri.appeal.488-2007

this extra-judicial confession of the appellant is

concerned, the learned trial Judge, after considering

the circumstances under which it was allegedly made,

held in paragraph 22 of the judgment, that since the

appellant and accused no.2 got married against the

wish of the informant Gajanan, he could not be said

to be a man of confidence for making confessional

statement before him. He further observed that the

informant had not immediately reported the incident

to the police even after making extra-judicial

confession by the appellant. Therefore, his evidence

would not be worthy of placing reliance and the

extra-judicial confession of the appellant cannot be

relied upon. We subscribe to the views expressed by

the trial Court while discarding the extra-judicial

confession allegedly made by the appellant. The

informant certainly could not have happily accepted

the appellant as the second wife of his son i.e.

accused no.2, when accused no.2 had already got

married to the deceased Mandabai and had got two

17 cri.appeal.488-2007

children from her. If that be so, the appellant would

not have made any incriminating disclosure before

him, which would bring her in trouble. It is not that

the appellant, at her own, approached the informant

after two days of the incident and disclosed that she

had set the deceased Mandabai and her children on

fire. Such a conduct certainly was not natural and

probable on the part of the appellant. The learned

Counsel for the appellant cited the judgment in the

case of Sahadevan and anr. Vs.State of T.N., AIR 2012

SC 2435, wherein the principles for deciding

admissibility and reliability of the extra-judicial

confession have been given in paragraph 22, thus :-

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

18 cri.appeal.488-2007

(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law.

20. The learned Counsel for the appellant

further cited the judgment in the case of Ishwar

Pandurang Masram Vs. State of Maharashtra, 2013 Cri.

L.J. 3597, wherein it is held that an extra-judicial

confession given by the accused in response to a

query, cannot be said to be made voluntarily.

19 cri.appeal.488-2007

21. In the present case, it is not probable and

acceptable that the alleged extra-judicial confession

would have been made by the appellant before the

informant, who was not happy with the marriage of the

appellant with accused no.2 Moreover, the appellant

is alleged to have made that confession on being

inquired by the informant. It cannot be said to have

been made voluntarily. In the circumstances, the said

extra-judicial confession would be of no help to the

prosecution to connect the appellant with the

incident in question.

22. The prosecution has relied on the evidence

in respect of the discovery of kerosene can at the

instance of the appellant. It has come in the

evidence of Vijay (PW 4)(Exh.39) and the P.S.I. Phad

(PW 8) that on 09.08.2006, when the appellant was in

the police custody, she gave a statement as recorded

in memorandum (Exh.40) and offered to produce a

plastic can thrown into the bushes near the house and

20 cri.appeal.488-2007

accordingly, produced the same from under the bushes,

which was seized vide panchnama (Exh.41). P.S.I.

Phad (PW 8) states that the said can was smelling of

kerosene.

23. The learned Counsel for the appellant

submits that the said can was not sent to C.A. for

examination. There is no positive evidence on record

to show that it was smelling of kerosene. Vijay

(PW4), the panch, does not state that he smelt that

can and found that it was smelling of kerosene. He

submits that the evidence in respect of discovery of

the said can is not at all believable. According to

him, there is no record to show that when the

appellant came out of the house, she had brought any

can with her. Therefore, the case of the prosecution

that the appellant threw the can in the bushes,

cannot be believed. We find substance in the

contention of the learned Counsel for the appellant

in this regard. When the entire house was in the

process of burning, the plastic can containing

21 cri.appeal.488-2007

kerosene also would have burnt. It does not appear to

be natural and probable that the appellant would save

the said can from being burnt in the fire inside the

house, took out the same from the house and threw it

at any particular place for being pointed out to the

police so as to enable them to collect incriminating

evidence against her. The alleged discovery of the

can at the instance of the appellant, being not

natural and probable, cannot be believed.

24. The oral dying declaration of the deceased

Mandabai that has been sought to be proved by the

prosecution through the evidence of Chhaya (PW 2)

(Exh.28), also has been disbelieved by the learned

trial Judge. Chhaya (PW 2) states that when the

deceased Mandabai was admitted in Civil Hospital,

Parbhani, Mangala (PW 9)(Exh.54) had gone to see her.

At that time, the deceased Mandabai talked with

Chhaya (PW 2) through the cell phone of Mangala

(PW9). Chhaya (PW 2) further states that the deceased

Mandabai told her that in the night of the incident,

22 cri.appeal.488-2007

when she was slept, the appellant poured kerosene on

her person and set her on fire by a matchstick and at

that time, accused nos.2 and 3 had caught hold of

her. However, Mangala (PW 9), who was present at that

time, does not corroborate the version of Chhaya

(PW2) in respect of the above-mentioned conversation

between Chhaya (PW 2) and the deceased Mandabai. It

has come consistently in the dying declarations

(Exhs.37 and 38) of the deceased Mandabai that in the

night of the incident, accused nos.2 and 3 were not

present at the home. The informant also states so. It

is, thus, clear that Chhaya (PW 2) tried to implicate

accused no.2 and 3 also in the incident in question.

In the circumstances, the learned trial Judge rightly

disbelieved the said oral dying declaration of the

deceased Mandabai.

25. In the first dying declaration of the

deceased Mandabai (Exh.38), which was recorded by the

Police Head Constable at about 8.30 a.m. on

03.08.2006, though she did not allege anything

23 cri.appeal.488-2007

against the appellant, the said dying declaration

would be helpful to the prosecution to throw light on

the conduct of the appellant after the incident.

Since the deceased Mandabai was asleep when she was

caught by fire, she was not in a position to assign

any reason behind the fire. Her statement shows that

both of her children and herself got extensively

burnt before she went out of the house along with her

daughter aged about two years. As such, sufficient

time must have been elapsed after starting of the

fire till the deceased Mandabai and her children were

caught by fire. The deceased Mandabai states that the

appellant had been out of the house prior to her

going out of the house along with her daughter.

Admittedly, the appellant had not sustained a

slightest injury due to the fire. That means, she

left the house well in advance of spreading of fire.

She did not try to alarm the deceased Mandabai and

her children to leave the house so as to save them

from fire. She did not try to bring the small

24 cri.appeal.488-2007

children of the deceased Mandabai out of the house to

save their lives. She did not raise shouts

immediately and waited until the the deceased

Mandabai and her children were fully caught by

flames.

26. All the above circumstances speak volumes

about the guilty mind of the appellant. It is only

after she saw the deceased Mandabai coming out of the

house along with her burning daughter, that she

raised shouts to make a show that she was totally

innocent. In the circumstances, the absence of any

injury on her person also would be a material

circumstance to prove the guilty mind of the

appellant. If that be so, only because the deceased

Mandabai stated that she had no suspicion against

anybody and particularly did not raise suspicion

against the appellant behind the incident, it cannot

be said that the dying declarations (Exhs.37 and 38)

would be helpful to the appellant to establish her

innocence.

25 cri.appeal.488-2007

27. The burnt frock of the deceased Nikita was

seized vide panchnama (Exh.34). PSI Phad (PW 8)

(Exh.48) deposes that he sent the said frock to the

C.A. for analysis and report vide letter (Exh.50).

The C.A. report (Exh.50) shows that kerosene residues

were detected thereon. It is, thus, clear that

kerosene was used for setting the deceased Nikita on

fire.

28. The marriage certificate (Exh.29) shows that

the marriage of the appellant and accused no.2 was

registered on 18.02.2006. The agreement (Exh.31) has

been executed on 17.02.2006 i.e. one day prior to

registration of marriage of the appellant with

accused no.2. From the contents of this agreement,

it seems that the deceased Mandabai was rather

skeptic about her future after the marriage of the

appellant with accused no.2. Therefore, she obtained

a written assurance from accused no.2 that after his

marriage with the appellant, he would maintain the

26 cri.appeal.488-2007

deceased Mandabai and her children properly. Accused

no.2 further assured to transfer certain land in the

name of the deceased Mandabai. The appellant started

residing in the house of accused no.2 after the

marriage. It was quite natural on the part of the

appellant as well as that of the deceased Mandabai to

dominate each other to have control over the family

matters. The deceased Mandabai and her children

certainly would have come in the way of the appellant

in establishing her primacy in the house. It is

difficult to establish motive by any direct evidence.

It has to be inferred on the basis of the attending

circumstances. From the facts and circumstances

emerging from the evidence, it is clear that in order

to have the dominating position in the house, the

appellant finished the deceased Mandabai and her

children.

29. The appellant alone was inside the house in

the night of the incident besides the deceased

Mandabai and her children. As stated above, she went

27 cri.appeal.488-2007

out of the house much prior to spreading of the fire.

In view of Section 106 of the Evidence Act, she was

under an obligation to explain the circumstances,

which were within her special knowledge, under which

the fire erupted. She did not at all discharge this

burden by giving any explanation behind eruption of

fire. All these circumstances clearly show that it

is the appellant, who poured kerosene around the

persons of the deceased Mandabai and her children and

set them on fire.

30. The prosecution established beyond

reasonable doubt that it is the appellant only, who

set the deceased Mandabai and her children on fire

with a view to remove them from her marital life with

accused no.2. If that be so, in view of the medical

evidence, the deaths of the deceased Mandabai and her

children would certainly be homicidal. The appellant

set the dwelling house on fire. The learned trial

Judge rightly convicted the appellant of the offences

punishable under Sections 302 and 436 of the I.P.C.

28 cri.appeal.488-2007

We concur with the findings recorded by the learned

trial Judge holding the appellant guilty of the said

offences. We further concur with the order of

sentence passed by the learned trial Judge against

the appellant. The appeal is devoid of substance. It

is liable to be dismissed.

31. In the result, we pass the following

order :-

(i)            The appeal is dismissed.


(ii)           The   impugned   judgment   and   order   convicting 

the appellant for the offences punishable under Sections 302 and 436 of the I.P.C. are confirmed.

(iii) The appellant shall surrender to her bail bonds before the trial Court, within a period of two weeks from today for suffering the sentences passed against her by the trial Court.

(iv) If she fails to appear before the trial Court within two weeks from today, the trial

29 cri.appeal.488-2007

Court shall issue coercive process to secure her presence.

(v) Rest of the directions given by the learned trial Judge are maintained as they are.

(vi) The appeal is accordingly disposed of.

[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]

kbp