Bombay High Court
Anil Ramdas Borse vs The State Of Maharashtra on 24 August, 2021
Bench: Nitin Jamdar, C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.247 OF 2013
Anil Ramdas Borse
Age 28 years
(at present undergoing sentence at
Nashik Jail) of District Nashik Indian
Inhabitant and residing at 8-A-9 Patil
Park, Jadhav Sankul, Chinchole Shivar,
Nashik. ... Appellant
V/s.
State of Maharashtra
(At the instance of Ambad Police Station,
Nashik) ...Respondent
----
Mr. Sachin Gite for the Appellant.
Mrs. M. M. Deshmukh, APP for the Respondent-State.
----
CORAM : NITIN JAMDAR AND
C. V. BHADANG, JJ.
DATE : 24 AUGUST 2021.
JUDGMENT (Per Nitin Jamdar, J)
The Appellant had challenged the judgment and
order passed by the learned Sessions Judge, Nashik in Session
Case No.207 of 2011 dated 24 January 2013, whereby the
Appellant/Accused is convicted for the offence punishable under
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Section 302 of the Indian Penal Code and is sentenced to suffer
imprisonment for life.
2. The prosecution's case, in brief, is as follows: A
Medico-Legal Case No.398 of 2011 was registered when the
deceased Aarti Anil Borse was admitted to Civil Hospital, Nashik
because of burn injuries. The police attended the hospital to
record the statement of Aarti Borse. Aarti gave a statement,
recorded as the First Information Report, that she with her
husband-accused and two children were residing in rented
premises at Nashik. On 13 June 2011, when she had asked the
Accused-Appellant to allow her to go to her sister's home at
Chopda, the Appellant quarreled with her suspecting her
relations with the husband of her sister living at Chopda. Aarti
stated that the Appellant kicked her and gave blows, poured
kerosene on her and set her on fire. A dying declaration was
recorded by the Special Executive Magistrate, where Aarti gave
the same cause of her death. During hospitalization and
treatment, Aarti Borse succumbed to burn injuries. Crime
registered initially under Section 307 was converted to Section
302 of the Indian Penal Code. Police Authorities carried out an
investigation. Statement of the Special Executive Magistrate who
recorded the dying declaration was recorded. Spot panchanama
was prepared, and the articles were seized. The statement of
relatives of the deceased, the neighbours of the Appellant and
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doctors were recorded. Muddemal was sent to Chemical Analyzer,
and after the investigation charge sheet was filed.
3. On committal, Session Case No.207 of 2011 came to
be registered. The charge was framed under Section 498-A, 302,
323, 504 of the Indian Penal Code. The Appellant pleaded not
guilty and claimed to be tried. The learned Sessions Judge by the
judgment and order dated 24 January 2013, after considering the
evidence and the arguments, convicted the Appellant under
Section 302 of the Indian Penal Code and acquitted the accused
of the offence punishable under Section 498-A, 323 and 504 of
the Indian Penal Code. The Appellant has thus come in appeal.
4. We have heard Mr. Sachin Gite, the learned Counsel
for the Appellant and Ms. M. M. Deshmukh, the learned
Additional Public Prosecutor.
5. Spot panchanama Exhibit 14 is on record. PW-10-
Kondiram Popere, Senior Police Inspector, has stated that he had
gone to the spot of the incident, prepared panchanama and seized
kerosene can and burnt match sticks. The incident took place in
the house of the accused and the deceased. Exhibit 14 shows that
there was five litres can with its cap lying separate, and there was
the smell of kerosene in the room. Match sticks were lying around
and pieces of burnt fabric. Walls were blackened, and electric
fitting showed that there were scorched by flames. Nothing has
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been shown to discredit the prosecution evidence that the
deceased suffered burn injuries in her house. The prosecution has
proved the spot of incident
6. As regards the injuries, post mortem report Exhibit
31 is on record. PW-7-Dr. Deepak Rajput, the Medical Officer,
Civil Hospital, Nashik, was examined. He deposed that the
deceased Aarti Borse suffered 90% burn injuries, and the death
was due to septicemic shock due to extensive superficial to deep
burns 90%. There is nothing in the cross-examination to discredit
the version. The prosecution has proved that Aarti Borse
succumbed to 90% burn injuries.
7. Before we turn to the dying declaration given by the
deceased, we will refer to the ocular evidence. The prosecution
has examined witnesses to demonstrate that the appellant and the
deceased were in the house when the incident occurred. PW-1-
Nitu Singh was the neighbour of the Appellant. She deposed that
the incident happened on 13 June 2011 at around 12 to 2.00 p.m.
PW-1-Nitu Singh stated that she at the relevant time noticed
smoke coming out and when she came out of the house, the room
of the accused was locked. People were calling him, but no one
opened the door. When the door was tried to be forcibly opened,
the accused opened the door, and then he started shouting that
his wife is burnt. The Appellant tried to go away, but others told
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him to take his wife to the hospital. Her testimony is not shaken
at all in the cross-examination. Therefore prosecution has proved
that the accused and the deceased were together inside the closed
room when Aarti suffered 90% burn, which was the cause of her
death was established by the prosecution. The deceased and two
children (aged 2 years old and two months old baby) were present
when the deceased suffered 90 % burn injuries. Since what
happened inside the closed house of the Appellant and how the
deceased received serious burn injuries being in the special
knowledge of the Appellant could have been explained by the
Appellant. In his statement under Section 313 of the Criminal
Procedure Code, the Appellant has only stated that the
prosecution case is false.
8. The learned Counsel for the Appellant argued that
there was no motive on the part of the accused to commit the
crime. He submitted that PW-1-Nitu Singh admitted that the
conduct and appearance of the deceased and accused as well. The
deceased did not complain regarding anything and was found
happy in cohabitation. First, her evidence will have to be
considered along with the evidence of the relatives of the
deceased. Second, PW-1-Nitu Singh is one of the neighbours of
the Appellant. There could be various reasons as to why the
deceased did not complain to the neighbour about the ill-
treatment, and it could be that the deceased outwardly showed
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composure and happiness. PW-4-Ashabai Choudhari is the
mother of Aarti. She deposed that the accused used to beat Aarti
on suspicion and PW-4 had informed Aarti to make adjustments
in married life, and she expressed a hope that a proper
relationship would work out between Aarti and the accused. PW-
4-Ashabai Choudhari deposed that a year before the incident, the
Appellant had severely beaten the deceased Aarti and Aarti left
the house and report was lodged to the police. The report is at
Exhibit 21. PW-4 also deposed that she had called Aarti on the
telephone a day before the incident, and she informed PW-4 of
the cruelty by the Appellant. PW-5-Jitendra Suresh Choudhari,
the brother of the deceased, also deposed that the Appellant-
Accused used to suspect deceased Aarti and subjected her to
cruelty. Therefore the contention that there was no motive to
commit the crime cannot be accepted.
9. Now, coming to the dying declaration, the deceased
Aarti had given three statements. First, PW-4-Ashabai
Choudhari, the mother of the deceased, deposed that when she
had gone to the hospital and asked deceased Aarti, Aarti told her
that the Appellant severely beat her and poured kerosene and set
her on fire. This is the first oral declaration made by the deceased.
Second, the deceased Aarti gave a declaration to PW6-Kamlakar
Joshi, Special Executive Magistrate in Civil hospital, Nashik, on
13 June 2011. The third is the statement made by the deceased
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Aarti to PW-8-Sandip Patil in the Shriji Private Hospital, Nashik.
The incident was on 13 June 2011, and Aarti succumbed to
injuries on 19 June 2011.
10. As regards the statement/declaration made to PW-8-
Sandip, which is at Exhibit 33 is concerned, the learned Counsel
for the Appellant submitted that the statement which is treated as
a FIR is recorded on 13 June 2011 is too elaborate, and it is not
possible that it would be so. The learned Counsel submitted that
PW-8-Sandip Patil admitted in the cross-examination that he had
not taken the signature of any person identifying the patient on
the statement. The learned Counsel submitted that PW-8-Sandip
Patil had not issued any order in writing entrusting the
investigation to him, and he did not make any entry in the police
diary. We do not find any merit in the submission. PW-8-Sandip
Patil deposed that the Medical Officer was present when he
recorded the statement of Aarti. Exhibit 33 is the endorsement
that the patient is in a position to give a statement. PW-9-Dr.
Kalyani Suresh Challani gave a certificate/endorsement at
Exhibit 38. PW-9-Dr. Kalyani Challani produced on record a
register showing the entry of Aarti having been brought to the
hospital. The Register is at Exhibit 39. There is no reason why
the Doctor who treated Aarti would depose against the Appellant.
She had specifically deposed that she has examined deceased
Aarti and found that she could speak. She denied the suggestion
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that Aarti was not well oriented or physically and mentally not fit
to give a statement at the relevant time. PW-8-Sandip Patil, on
the basis of Exhibit 33, registered the offence.
11. PW-6-Kamalakar Joshi was working as Nayab
Tahasildar. Upon receiving a letter (Exhibit 25), he went to Civil
Hospital, Nashik and with the assistance of the medical officer
PW-7-Dr. Deepak Rajput conducted further formalities. The
Medical officer examined Aarti and endorsed accordingly
regarding Exhibit 26. PW-6-Kamlakar Joshi deposed that he
removed all persons, including police, from the room and made
the deceased aware of the statement. He asked Aarti as to how
she got burnt. Aarti started that the Appellant set her on fire. He
deposed that she put a thumb impression on the dying
declaration. PW-6-Kamalakar Joshi deposed that he identified
the thumb impression and accordingly proved the statement of
the deceased at Exhibit 28. The dying declaration at Exhibit 28 is
clear. Deceased Aarti specifically stated that the Appellant set her
on fire. She also stated that the Appellant doused the flames and
brought her to the hospital. There is intrinsic consistency and
ring of truth in this statement where she has acknowledged that
the Appellant extinguished the flames and brought her to the
hospital.
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12. The learned Counsel for the Appellant sought to
contend that there is no counter signature on the thumb
impression of the deceased. He submitted that from the
endorsement at Exhibit 26 and 27, it could not be concluded that
Aarti was mentally and physically fit to give the statement. There
is no merit in this contention as PW-5-Jitendra, the brother of the
deceased, had stated that PW-6-Kamalakar Joshi, the Special
Executive Magistrate was present in the Civil Hospital. PW-7-
Dr. Deepak Rajput deposed that on 13 June 2011, PW-6-
Kamalakar Joshi, Special Executive Magistrate was with him for
examination of deceased Aarti. He deposed that he found Aarti in
condition to give a statement, and he placed his endorsement
accordingly at Exhibit 26. He placed another endorsement at
Exhibit 27 after completion of the statement. Nothing is brought
in his cross-examination as to why his statement that he has
examined Aarti and gave endorsement should not be believed. As
regards the ability of Aarti to speak and give a statement, PW-3-
Sakhubai Choudhari, aunt of Aarti, PW-4-Ashabai Choudhari,
PW-5-Jitendra Choudhari, the brother, PW-6-Kamalakar Joshi,
the Special Executive Magistrate, PW-7-Dr. Deepak Rajput and
PW-9-Dr. Kalyani Challani specifically deposed that Aarti was in
a position to give a statement when she was brought to the
hospital.
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13. The learned APP submitted that in view of this
consistent evidence, it is clear that the Appellant-Accused had
poured kerosene on deceased Aarti and set her on fire, and there
is no reason why dying declaration, evidence of neighbours and
the relatives should be disbelieved.
14. The evidence on record proves that the Appellant and
the deceased were in the house where the deceased suffered 90 %
burn injuries. She gave a dying declaration to the Special
Executive Magistrate, and the endorsement of the Medical
Officer is present. The relatives of the deceased having deposed
regarding cruelty meted out to deceased Aarti. The accused has
given no explanation as to what occurred inside the house where
the incident took place.
15. Considering the evidence in totality, it will have to be
held that the prosecution has proved that the Appellant is guilty
of committing murder of his wife Aarti and has been rightly
convicted under Section 302 of the Indian Penal Code and
sentenced to suffer imprisonment for life by the learned Sessions
Court. There is no merit in the Appeal. The Appeal is accordingly
dismissed.
(C. V. BHADANG, J.) (NITIN JAMDAR, J.)
Digitally signed
by
RAJESHWARI
RAJESHWARI SUBODH
SUBODH KARVE
KARVE Date:
2021.08.27
17:24:27 +0530
