Bombay High Court
Pramod Dattaram Khopatkar vs The State Of Maharashtra on 22 September, 2017
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL 525 OF 2014
Pramod Dattaram Khopatkar
Age : 36 Years, Occ. : Nil
R/o. Maral, Tal. Shriwardhan,
Dist. Raigad.
[ Confined as Convict No. C-8538
Nashik Road Central Prison, Nashik
Road. ] .. Appellant
(Org. Accused)
Versus
The State of Maharashtra
[ At the instance of Shriwardhan Police
Station, Dist. Raigad in C.R. No. 63 of
2006 tried in Sessions Case No. 31 of
2008 ] .. Respondent
...................
Appearances
Ms. Rohini Dandekar Advocate (appointed) for the Appellant
Mrs. G.P. Mulekar APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
A.M. BADAR, JJ.
DATE : SEPTEMBER 22, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 20.9.2010
passed by the learned Additional Sessions Judge, Mangaon,
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Dist. Raigad in Sessions Case No. 31 of 2008. By the said
judgment and order, the learned Session Judge convicted the
appellant under Sections 302 of IPC and sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs. 2000/- in
default, RI for one year.
2. The prosecution case briefly stated, is as under:
(a) Deceased Rekha was the daughter of PW 1
Dattatraya. Rekha was married to the appellant
about 11 years prior to the incident. The
appellant and Rekha had three children. At the
time of the incident, the appellant, his wife Rekha
along with their children were residing at Village
Maral.
(b) The incident took place in the morning of
31.12.2006. The appellant poured kerosene on
his wife Rekha and set her on fire in the cattle
shed near his house. Rekha then ran out of the
shed. All her clothes were burnt. Rekha called
out to PW 2 Taramati who is her neighbour. PW 2
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Taramati went ahead to see Rekha. Rekha asked
Taramati to give her clothes. Taramati gave her a
petticoat. Rekha told PW 2 Taramati that her
husband had set her on fire. Meanwhile, Rekha
called out to PW 3 Sunil who was also her
neighbuor. Sunil saw that Rekha had sustained
burn injuries. Rekha also informed Sunil that her
husband had set her on fire.
(c) PW 4 Swapnali who was the wife of the brother of
Rekha had come to Village Maral to see Rekha.
She reached Maral at 8.30 a.m. She got down at
the bus stand. At that time, she heard Rekha
calling out to her. Rekha told Swapnali that
Swapnali should take Rekha to the hospital.
Rekha told her that her husband took her to the
cattle shed and poured kerosene on her and set
her on fire. Swapnali took Rekha to the Police
Station. Police then sent Rekha to the hospital.
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(d) In the hospital, PW 6 PSI Mahadik recorded the
dying declaration (Exh. 26) of Rekha. Thereafter,
PW 7 SEO Mrs. Pratibha Varale recorded the dying
declaration (Exh. 36) of Rekha. In both the dying
declarations, Rekha stated that her husband set
her on fire.
(e) PW 1 Dattatraya who was the father of Rekha
received information that Rekha had sustained
burn injuries and she was admitted in the hospital,
hence, he went to the hospital and met Rekha.
Rekha told him that her husband had poured
kerosene on her and set her on fire. Dattatraya
then lodged FIR. Thereafter, investigation
commenced.
(f) Rekha expired on 4.1.2007. Thereafter, the dead
body of Rekha was sent for postmortem. The
postmortem notes (Exh. 20) shows that Rekha had
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sustained 95%-100% burn injuries. After
completion of investigation, the charge sheet
came to be filed. In due course, the case was
committed to the Court of Sessions.
3. Charge came to be framed against the appellant -
original accused under Section 302 of IPC. The appellant
pleaded not guilty to the said charge and claimed to be tried.
His defence was that of total denial and false implication.
After going through the evidence adduced in this case, the
learned Sessions Judge convicted and sentenced the
appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the parties,
the judgment delivered by the learned Sessions Judge and
the evidence on record, for the reasons stated below, we are
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of the opinion that the appellant poured kerosene on his wife
Rekha and set her on fire.
5. The conviction of the appellant is mainly based on
dying declarations Exh. 26 and Exh. 36. The dying
declaration Exh. 26 was recorded by PW 6 PSI Mahadik and
the dying declaration Exh. 36 was recorded by PW 7 Naib
Tahsildar Mrs. Pratibha Varale. PW 6 PSI Mahadik has stated
that on 31.12.2006, he was in Shriwardhan Police Station. At
about 11.00 a.m., one auto rickshaw stopped at the Police
Station. Swapnali (PW 4) got down from the rickshaw and
came in the Police Station. She narrated that her sister-in-
law (husband's sister) Manjusha Pramod Khopatkar had
received burn injuries. PSI Mahadik told the lady to go to the
hospital.
PSI Mahadik received phone call from Dr. Dhavale (PW
8) that a patient with burn injuries had come to the hospital.
PSI Mahadik then went to Cottage Hospital at Shriwardhan.
PSI Mahadik met the Doctor who was treating Rekha and
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expressed his desire to record the statement of Rekha.
Medical Officer Dr. Dhavale (PW 8) examined the patient and
told PSI Mahadik to record the statement of Rekha. PSI
Mahadik then recorded the statement of Rekha. Rekha told
him that her husband suspected that she was having an
affair with one Bhumi Joshi, hence, her husband used to
abuse and assault her. On account of the ill-treatment,
Rekha told her husband that she would go to her maternal
house. Her husband then assaulted her, poured kerosene on
her and set her on fire with the help of matchstick. PSI
Mahadik recorded the statement of Rekha (Exh. 26) as per
the say of Rekha. He read over the statement to her and she
replied that it was correctly recorded.
6. PW 7 Mrs. Pratibha Varale has stated that she was Naib
Tahsildar at Shriwardhan Tahsil Office. On 31.12.2006 at
11.45 a.m., police constable attached to Shriwardhan Police
Station came to his office with a letter to record the dying
declaration of victim Manjusha Pramod Khopatkar who was
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admitted in the hospital with burn injuries. PW 7 Mrs. Varale
went to Cottage Hospital at Shriwardhan. She contacted Dr.
Dhavale (PW 8) and requested him to ascertain whether the
patient was in a position to give any statement. After
verifying the condition of the victim, the medical officer
permitted her to record the dying declaration. Mrs. Pratibha
Varale also noticed that the victim was fully conscious and
was in a position to give her statement. She then recorded
the dying declaration of Rekha. Rekha told her that her
husband poured kerosene on her and set her on fire. Rekha
also told Pratibha Varale that her husband broke her bangles.
This is corroborated from the fact that the spot panchnama
Exh. 23 shows broken pieces of bangles at the spot. It is
further corroborated by the fact that panch witness PW 5
Chachale has stated that the place where the incident took
place was a cattle shed and there was smell of kerosene in
the cattle shed. The spot panchnama Exh. 23 also shows
that the incident took place in cattle shed and there was
smell of kerosene at the spot. This further corroborates the
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prosecution case.
7. In addition to the two dying declarations Exh. 26 and
Exh. 36, four oral dying declarations have been made by
Rekha to PW 1 Dattatraya, PW 2 Taramati, PW 3 Sunil and
PW 4 Swapnali respectively. PW 1 Dattatraya was the father
of Rekha. He has stated that his daughter Rekha was
married to the appellant. At the time of the incident, Rekha
was residing at Village Maral. He has further stated that the
incident took place in the morning of 31.12.2006. At about
10.30 a.m., he received message that Rekha had received
burn injuries and was admitted in Cottage Hospital at
Shriwardhan, hence, he went to see Rekha. He noticed that
Rekha had sustained burn injuries. Rekha told him that her
husband poured kerosene on her and set her on fire.
Dattatraya then lodged FIR (Exh. 15).
8. PW 2 Taramati was the neighbour of Rekha. She heard
Rekha calling out to her. When Taramati went ahead, she
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saw that there were no clothes on the person of Rekha.
Rekha told her that her husband had set her on fire and
requested Taramati to give clothes to put on her person.
Taramati then gave a petticoat to Rekha.
9. PW 4 Swapnali was the wife of brother of Rekha. She
has stated that on 31.12.2006, she had gone to Maral to see
Rekha. At 8.30 a.m., when she got down from the bus and
went little ahead, she heard Rekha calling out to her.
Swapnali found that Rekha has sustained burn injuries.
Rekha requested Swapnali to take her to hospital. Then
Swapnali took Rekha in an auto rickshaw to the Police
Station. Police then sent Rekha to the hospital. Swapnali
made inquiry with Rekha. Rekha told her that her husband
took her in the cattle shed and poured kerosene on her and
set her on fire.
10. The last oral dying declaration was made by Rekha to
PW 3 Sunil. Sunil has stated that on 31.12.2006, he heard
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Rekha calling out to him. When he looked in that direction,
he saw that Rekha had sustained burn injuries.
Ms. Dandekar, the learned appointed Advocate for the
appellant submitted that the evidence of this witness is
totally inconsistent with the evidence of other witnesses.
She pointed out that PW 3 Sunil has stated that Rekha told
her that her husband and father-in-law set her on fire,
however, we find this to be incorrect because in his cross-
examination, this witness has stated that Rekha told him that
the family members set her on fire. This witness has
admitted that he inferred from the statement of Rekha that
she was set on fire by her husband and father-in-law. Thus,
it is not as if that Rekha has made categorical statement to
this witness that her husband and father-in-law had set her
on fire but this witness had inferred from the statement
made by Rekha that her husband and father-in-law had set
her on fire. The evidence of PW 3 Sunil which was recorded
in Marathi which is the original record shows that Rekha had
told him that ?kjP;k ek.klkau h had set her on fire. This term
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is colloquial term used by a lady to describe her husband but
in ordinary language, it would mean the people from the
house. Thus, looking to the evidence of PW 3 Sunil who has
categorically stated that he has inferred from the statement
of Rekha that she was set on fire by her husband and father-
in-law, we find that much capital cannot be made out of this
statement. Thus, we are not inclined to give much
importance to this aspect as we find that the oral dying
declaration made by Rekha to PW 3 Sunil is not inconsistent
with other oral dying declarations or two dying declarations
Exh. 26 and Exh. 36.
11. Post mortem report Exh. 20 shows that Rekha had
sustained 95% - 100% burn injuries. PW 8 Dr. Dhavale was
the doctor who examined Rekha in Cottage Hospital at
Shriwardhan. He has stated that on 31.12.2006, one Rekha
was brought to the hospital with burn injuries. He examined
Rekha. Rekha narrated history to him that her husband
poured kerosene on her and set her on fire. This further
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corroborates the prosecution case. Dr. Dhavale is the doctor
who has given endorsement on the dying declarations of
Rekha Exh. 26 and Exh. 36. He has categorically stated that
before these two dying declarations were recorded, he
examined the patient and found her to be in a fit condition to
give her statement.
12. Ms. Dandekar placed reliance on the evidence of the
appellant who has examined himself as DW 1 and on the
evidence of DW 2 Pornima who was the daughter of the
appellant and the deceased. As far as the appellant is
concerned, he has stated that his wife was having an affair
with one Bhumi Joshi. He then brought Rekha to his village
at Maral with an intention to settle the dispute with
mediators. On 31.12.2006, he told Rekha that he was going
to place of in-laws for resolving the dispute. When he left his
house and went to ST stand, one small boy informed him
that Rekha had set herself on fire, hence, he went home. He
did not find Rekha in the house.
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We are not inclined to place any reliance on the
evidence of the appellant. It is to be noted that in his cross-
examination he has stated that "It is not true that I came to
know about the incident through the small boy". The
appellant is bound to state things to save himself. In
addition, the appellant has admitted in paragraph 6 that he
had not informed about Bhumi Joshi to panchas. He has also
not stated about this fact to the police. Thus, it appears that
the purpose for which the appellant brought his wife to his
village does not appear to be true. In any event, the
appellant is bound to save himself, hence, in view of this
fact, we are not inclined to place any reliance on the
evidence of the appellant.
13. Second witness the appellant has examined is DW 2
Pornima. Pornima was the daughter of the appellant.
Pornima has stated that when her mother went in the cattle
shed, she saw fumes of fire, hence, she shouted. At that
time, her father was not present in the house. According to
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her, her mother set herself on fire. It is to be noted that
Pornima has admitted that after her father was released on
bail, she was staying with her father i.e the appellant and the
appellant was looking after her. She has further admitted
that her father i.e the appellant had told her to come to the
Court along with him, hence, she accompanied her father.
Her father also told that for what purpose she had to attend
the Court. Looking to the fact that the appellant was the
father of Pornima, she was bound to support the appellant.
Pornima was about 8 years old at the time of the incident
and she was staying with her father at the time of giving
evidence before the Court, hence, she being a child witness
was susceptible to tutoring especially looking to the fact that
she was staying with her father and he was looking after her.
As stated earlier, Pornima has admitted that her father told
her to come to the Court along with him, hence, she
accompanied her father to Court and her father told her for
what purpose she had to attend the Court. Looking to all
these facts, we are not inclined to place any reliance on the
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evidence of the two defence witnesses.
14. Looking to the evidence of PW 1 to PW 4 and PW 6 to
PW 8, we are of the opinion that the prosecution has proved
its case against the appellant beyond reasonable doubt.
Thus, we find no merit in the appeal. The appeal is
dismissed.
[ A.M. BADAR, J.] [ SMT. V.K. TAHILRAMANI, J.]
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