Suresh Babu Giri vs The State Of Maharashtra
2021 Latest Caselaw 9855 Bom

                                 1           CRI APPEAL 88.2021.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.88 OF 2021

             Suresh Babu Giri,
             age 55 yrs, Occ. Driver,
             R/o At Post Rajnagar, Mukundwadi,
             Aurangabad, Tq. & Dist Aurangabad.
                                                  ..Appellant..
                                                 (orig. accused)
             Versus

          The State of Maharashtra
          Through Police Station Mukundwadi,
          Tq & District Aurangabad.          ..Respondent..
                                          (orig complainant)
                                 ...
      Mr. S K Adkine,advocate for the appellant (Appointed)
       Mr. S P Deshmukh, APP for the respondent-State.
                               ...
            CORAM : V.K. JADHAV & S.G. DIGE, JJ.

...

Reserved on : 19.07.2021 Pronounced on : 28.07.2021 ...

JUDGMENT :- ( Per V. K. Jadhav, J.)

1. This appeal is directed against the judgment and

order of conviction passed by the Additional Sessions

Judge, Aurangabad dated 11.9.2015 in Sessions Case

No.118 of 2013 thereby convicting the appellant/accused

Suresh s/o Babu Giri for the offence punishable u/s

302 of the Indian Penal Code and sentenced to suffer

imprisonment for life and to pay a fne of Rs.2,000/-.

2 CRI APPEAL 88.2021.odt

2. Brief facts of the prosecution case, are as follows :-

a] It is the prosecution case that the

appellant/accused Suresh Giri had committed murder

of his wife Bebibai by pouring kerosene on her person

and setting her on fre with the help of matchstick.

Deceased Bebibai had taken initiative to fx marriage of

their daughter with the relatives of her side. However,

the appellant/accused was not agree for the said

relation. On 18.9.2012 at about 10.30 to 11.00 p.m. the

appellant/accused came to the house by consuming

liquor. Their children slept on terrace. Deceased Bebibai

was alone in the house. The appellant/accused had

raised the quarrel with deceased Bebibai by saying as to

how she had taken initiative to fx the marriage of their

daughter. Deceased Bebibai had replied to him that the

boy and his family members are good persons and,

therefore, she had decided to give their daughter in that

family. The appellant/accused got annoyed. He had

abused and assaulted deceased Bebibai with kicks and

fst blows. Thereafter, the appellant/accused took out

kerosene from the stove and poured it on her person

and set her on fre with the help of match stick. After

3 CRI APPEAL 88.2021.odt

setting her on fre, the appellant/accused ran away from

the house. Deceased Bebibai had raised a hue and cry.

By hearing her hue and cry, her son and daughter came

down from the terrace. They had also shouted for help.

Neighbour also came there. Thus, all of them took

injured Bebibai to Sumananjali Hospital, Aurangabad.

b] PW 4 PHC Pandit Ratiram Bangare attached to

Mukundwadi police station at the relevant time

informed on phone by the PSO about the MLC received

from Sumananjali Hospital, Aurangabad. Thus, he went

to the police station at about 3.30 am in the night.

Thereafter, he went to the Sumananjali Hospital.

Patient was admitted in Ward No.202 of the

Sumananjali Hospital. He had recorded the statement

of deceased Bebibai as per her say. Deceased Bebibai

had stated before him that at about 22.30 hours while

she was cooking in the house, her husband came inside

the house under the infuence of liquor and quarreled

with her on account of the settlement of the marriage of

their daughter with the relatives of the deceased.

Deceased Bebibai had further stated that accused

4 CRI APPEAL 88.2021.odt

started beating her, poured kerosene on her person and

set her on fre by means of match stick and then ran

away. Before commencement and after completion of

the said statement, PW 4 PHC Bangare has obtained

endorsement of in-charge Doctor about ft state of mind

of the deceased Bebibai to give statement. Said

statement-cum-dying declaration is marked at Exhibit-

21. On the basis of the said statement-cum-dying

declaration Exhibit-21, crime no.298 of 2021 for the

offence punishable under section 307, 504 of the IPC

came to be registered at police station, Mukundwadi,

Aurangabad. PW 9 PSI Amit Ghule took over the

investigation of the crime. He had visited the spot of the

incident and drawn spot panchnama exhibit-14. He had

seized one stove, kerosene can, partly burnt pieces of

clothes, match box from the place of the incident. He

has also recorded statement of the witnesses. He had

also issued letter to the Special Executive Magistrate

with a request to record the statement of the injured.

After recording of her statement by the Special Executive

Magistrate, deceased was shifted to Ghati Hospital,

Aurangabad where she died on 26.9.2012. He had also

5 CRI APPEAL 88.2021.odt

drawn inquest panchnama and sent the dead body for

postmortem examination. After completion of the

investigation, he had submitted the charge-sheet against

the accused.

c] The learned Additional Sessions Judge,

Aurangabad framed charge at exhibit-8 for the offence

punishable u/s 302, 504 of the Indian Penal Code.

Contents of the charge were read over and explained to

the appellant/accused in vernacular and he has pleaded

not guilty to the charge and claimed to be tried.

Prosecution has examined in all ten witnesses to

substantiate the charges levelled against the accused.

The defence of the appellant/accused is of denial.

According to him, he was not present in the place of

incident at the relevant time. The appellant/accused

has examined his daughter DW-1 Maya Puri in support

of his defence.

3. The learned Additional Sessions Judge,

Aurangabad by judgment and order dated 11.9.2015 in

Sessions Case No.118 of 2013 has convicted the

appellant/accused as follows :-

                                          6                  CRI APPEAL 88.2021.odt

            1.     Accused Suresh s/o Babu Giri is                           hereby
                   convicted under section 235 (2) Cr.P.C.                   for the
                   offence punishable under section 302                      of IPC
                   and sentenced to suffer imprisonment                      for life
                   and to pay a fne of Rs.2,000/-.

2. The accused is acquitted under section 235 (1) Cr.P.C. of the offence punishable under section 504 of the Indian Penal Code.

3. Muddemal property being worthless be destroyed after the appeal period is over.

4. Copy of the judgment be given to the accused free of cost.

5. Copy of the judgment be sent to the District Magistrate for compliance of section 365 of Cr.P.C.

4. Learned counsel for the appellant/accused

submits that the prosecution case rests upon the dying

declaration and, there is no direct evidence in this case.

Learned counsel submits that, dying declaration

exhibit-21 recorded by PW 4 PHC Pandit Bangare is not

reliable and trust worthy. Deceased Bebibai was not in

a position to give her statement. Learned counsel

submits that second dying declaration exhibit-29

recorded by PW 6 Sakharam Mukundrao Gokhale,

Special Executive Magistrate is also not reliable and

trust worthy. The doctors have not made endorsements

7 CRI APPEAL 88.2021.odt

on both the dying declarations itself. There is no

corroboration to both the dying declarations. The Trial

court has not considered the defence of the

appellant/accused. Appellant/accused has examined

his own daughter DW-1 Maya. She has deposed that

deceased Bebibai was cooking on the stove and

sustained burns due to ablaze of the stove. They had

extinguished the fre. Thereafter, she herself and her

brother took deceased Bebibai to the hospital. She has

deposed that the appellant/accused had been to

Jalgaon and he returned to the house on the next day.

Learned counsel submits that the appellant/accused is

entitled for the beneft of doubt.

5. Learned A.P.P. submits that the dying declarations

exhibit-21 and exhibit-29 are reliable, trust worthy and

consistent. Deceased Bebibai had voluntarily given her

statement. PW-3 Rakesh Suresh Giri and DW-1 Maya

are their children. PW-3 Rakesh has not supported the

prosecution case. DW-1 Maya has deposed before the

Court as defence witness. Learned APP submits that

there was no possibility of tutoring at all and deceased

8 CRI APPEAL 88.2021.odt

had made dying declarations voluntarily stating true

facts before the police as well as Special Executive

Magistrate. Learned APP submits that, dying

declarations exhibit-21 and dying declaration exhibit-29

came to be recorded on the same day while deceased

Bebibai was admitted in Sumananjali Hospital,

Aurangabad. Learned A.P.P. submits that, defence has

not disputed the place of incident and death of deceased

Bebibai by burns. Though, the defence witness Maya

has deposed that deceased Bebibai had sustained burn

injuries by ablaze of stove, however, the stove was seized

under the spot panchnama exhibit-14. Said stove is

having no damages. It was seized for the reason that

deceased Bebibai had stated in her dying declaration

that accused took out kerosene from the stove, poured

on her person and set her on fre with the help of match

stick. Learned APP submits that, deceased Bebibai had

also given the oral dying declaration to PW 7 Goraknath

Bhanudas Jadhav, who is her neighbour. He is an

independent witness. On 19.9.2012 in the night hours

DW-1 Maya came to his house and knocked the door.

DW-1 Maya told him that there was quarrel between her

9 CRI APPEAL 88.2021.odt

father and mother and asked him to help her for taking

her mother to the hospital. Therefore, PW-7 Gorakhnath

Jadhav went to their house and made inquiry with the

injured Bebibai, who told him that her husband

(appellant/accused) set her on fre and went away. PW-

7 Gorakhnath Jadhav thereafter took her to

Sumananjali Hospital. Learned APP submits that the

conduct of the accused post incident is also necessary

to be considered. Appellant/accused has not tried to

extinguish the fre and, he left the house immediately

after setting the deceased Bebibai on fre with the help

of match stick by pouring kerosene on her person.

Learned APP submits that PW-3 Rakesh Giri (son) is a

young boy and DW-1 Maya is younger to him. Initially,

they had shifted their mother to Sumnanjali Hospital

and, thereafter shifted to Ghati Hospital. The appellant/

accused never turned to Ghati Hospital to look after the

condition of deceased Bebibai. Appellant/accused

remained absconded. The learned APP submits that

appeal is lacking merits. The Trial Court has rightly

convicted the appellant/accused for having committed

an offence punishable under section 302 of the Indian

10 CRI APPEAL 88.2021.odt

Penal Code and sentenced him to suffer imprisonment

for life. Appeal is liable to be dismissed.

6. Learned APP in order to substantiate his

contentions placed reliance on following cases :-

i. Khushal Rao Vs. State of Bombay reported in AIR 1958 SC 22.

ii. Ramprasad Vs. State of Maharashtra reported in 1999 AIR SCW 1657.

iii. Laxman Vs. State of Maharashtra reported in 2002 AIR SCW 3479.

iv. Gaffar Badshaha Pathan Vs. State of Maharashtra reported in (2004) 10 SCC 589.

v. Mohan Sadhu Kawale Vs. State of Maharashtra reported in 2004 ALL MR (Cri) 2626.

vi. State of Punjab Vs. Parveen Kumar reported in 2004 AIR SCW 6897.

vii. P. Mani Vs. State of Tamilnadu reported in (2006) 3 SCC 161.

viii. Prabhakar Wamanrao Salve Vs. State of Maharashtra reported in 2006 ALL MR (Cri) 1274.

ix. Sayed Babli Sayed Lal & Ors. Vs. State of Maharashtra reported in 2007 ALL MR (Cri) 3098.

x. State of Maharashtra Vs. Jubedabai Shabbir Shah and another reported in 2007 ALL MR (Cri) 266.

                                        11            CRI APPEAL 88.2021.odt

            xi.    Lahu Ramchandra Bandpatte Vs. State of

Maharashtra reported in 2008 ALL MR (Cri) 2492.

xii. Ramesh Gyanoba Kamble Vs. State of Maharashtra reported in 2011 ALL MR (Cri) 3536.

xiii. Amarsingh Munnasingh Suryawanshi Vs. State of Maharashtra reported in 2008 AIR (SC) 479.

7. Prosecution case mainly relied upon two dying

declarations. Exhibit-21 is the complaint-cum-dying

declaration recorded by the police, whereas, Exhibit-29

is the dying declaration recorded by PW 6 Sakharam

Mukundrao Gokhale, Special Judicial Magistrate,

Aurangabad. Deceased Bebibai was taken to the

hospital immediately after the incident and, she was

admitted in the Sumnanjali Nursing Home, Aurangabad

at about 01.00 am. Concerned doctor on duty of the

Sumananjali Hospital had given MLC intimation to the

Mukundwadi Police Station, Aurangabad on the same

day at about 03.00 am. P.S.O. of Mukundwadi Police

Station, Aurangabad City has taken entry of the said

MLC No.230 of 2012 at about 03.55 am in station diary

no.264 of 2012. PW-4 Pandit Ratiram Bangare PHC

attached to Mukundwadi Police Station immediately

12 CRI APPEAL 88.2021.odt

went to Sumnanjali Hospital, Aurangabad and issued

letter exhibit-20 to the Medical Offcer, stating therein

that he wants to record the statement of Bebibai and

requested therein to the Medical Offcer on duty to

certify as to whether the patient was in ft state of mind

to give her statement. As per endorsement at exhibit-

20, PW 10 Dr. Ashwini Nagargoje has examined the

patient and certifed on 19.9.2012 at about 4.55 am that

the patient was in ft state of mind to give her statement.

Said endorsement on exhibit-20 bears the signature of

the doctor and seal of the hospital.

8. PW-4 PHC Pandit Bangare B.No.706 had recorded

the complaint-cum-dying declaration of deceased

Bebibai exhibit 21. According to him, he had asked

name of the patient. He was satisfed that patient was

in a position to give statement. She has given her name

as Bebibai Suresh Giri, aged 42 years. He has further

deposed that Bebibai stated before him that on

18.9.2012 at about 22.30 hours while she was cooking

in the house, at that time, her husband came in side

the house by consuming liquor and asked her that why

13 CRI APPEAL 88.2021.odt

she settled the marriage of their daughter with the

relatives from her side. Her husband had abused her.

Deceased told him that she wanted to perform marriage

of her daughter with her relative. Deceased Bebibai had

further stated before him that the appellant/accused

started beating her, threatened her, poured rokel on her

person and set her on fre by means of match stick and

then ran away. Thereafter, she shouted. Her son PW-3

Rakesh Giri came there and extinguished the fre. PW-4

PHC Pandit Bangare has deposed that, he read over the

statement to her. She admitted the contents thereof and

put her thumb impression on it. Thereafter, on the

basis of her statement, crime no.298 of 2012 for the

offence punishable under section 307, 504 of the IPC

came to be registered on the basis of her complaint-

cum-dying declaration exhibit-21.

9. We have carefully gone through the evidence of

PW-4 PHC Pandit Bangare and PW-10 Dr. Ashwini

Nagargoje, who has made endorsement on exhibit-20

certifying ft state of mind of the deceased. We must

mention here that deceased Bebibai had sustained 50%

14 CRI APPEAL 88.2021.odt

burns in total. There is nothing in the cross-

examination to disbelieve the evidence of PW-4 PHC

Pandit Bangare and PW-10 Dr. Ashwini Nagargoje.

Even, the defence has not suggested to PW-10 Dr.

Ashwini that deceased Bebibai was not in a ft state of

mind to give her statement. Even, PW-4 PHC Bangare

was also not suggested to that effect.

10. We have thus carefully perused the evidence of

PW-6 Sakharam Mukundrao Gokhale, Special Judicial

Magistrate. On 19.9.2012 he has received letter from

police station Mukundwadi, requesting therein to record

the dying declaration of patient namely Bebibai Suresh

Giri, who was admitted in Sumananjali Hospital,

Aurangabad. Said letter is marked at exhibit 27. On

19.9.2012 at about 1.30 p.m PW 6 Sakharam Gokhale

has received said letter exhibit-27 as per his

endorsement made on exhibit-27 itself. He, thereafter,

went to Sumnanjali Hospital, Aurangabad in room

no.202, where deceased Bebibai was admitted. PW 6

Sakharam Gokhale gave letter to the Medical Offcer,

requesting to examine Bebibai and, whether she was in

15 CRI APPEAL 88.2021.odt

a position to give the statement. PW-6 Sakharam

deposed that Medical Offcer has examined the patient

Bebibai and gave opinion on his letter exhibit 28

certifying therein that patient is conscious and ft to give

the statement. Said endorsement at exhibit 28 bears

seal of the hospital. PW 6 Sakharam, Special Judicial

Magistrate has recorded the statement of the deceased

Bebibai in question and answer form. He got satisfed

that Bebibai was in a position to give the statement.

According to him, deceased Bebibai has stated before

him her full name, age, occupation and residence. She

had also given name of her mother as Durgabai Baban

Puri, resident of Rajnagar, Mukundwadi, Aurangabad.

PW-6 Sakharam Gokhale, Special Judicial Magistrate

has also asked deceased Bebibai when her marriage was

solemnized and about children. Deceased Bebibai told

him that her marriage was solemnized before 25 years

and she is having two sons and one daughter. Deceased

Bebibai had further stated before him that incident

occurred on 18.9.2012 at about 10.00 to 10.30 p.m. Her

husband came to the house and asked her why she

settled the marriage of her daughter. She told her

16 CRI APPEAL 88.2021.odt

husband that person with whom marriage is settled is

from good family. Thus, deceased Bebibai had further

stated before him that accused became annoyed, took

out rockel from the stove in a pot and poured kerosene

on her person. He had thereafter lit the match stick

from the matchstick box, which he was having with him

and threw it on her person and ran away after setting

her on fre. Prosecution has examined PW-10 Dr.

Ashwini Nagargoje. She had deposed that she had

examined the patient Bebibai before her statement was

recorded by the police so also her statement recorded by

the Special Judicial Magistrate. There is nothing in the

cross-examination to consider any other possibility.

11. In a case Purshottam Chopra and another Vs.

State (Government of NCT of Delhi) reported in

(2020) 11 SCC page 489, by referring the principles

laid down by the Supreme Court in a case of Laxman

Vs. State of Maharashtra reported in (2002) 6 SCC 710

relating to admission and acceptability of the statement

made by a victim representing the cause of death,

usually referred to as a dying declaration. Summarized

17 CRI APPEAL 88.2021.odt

principles relating to recording of the dying declaration

and its admissibility and reliability in paragraph no.21

of the judgment is as follows :-

21]. For what has been noticed herein-above, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under :-

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

21.2. The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

18 CRI APPEAL 88.2021.odt

21.8. If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.

12. Learned APP has placed reliance on the various

cases right from the view taken by the Supreme Court

in Khushal Rao's case (supra). There is no need to refer

all the cases one by one.

12. It is well settled that dying declaration can be the

sole basis for conviction even without corroboration, if it

inspires confdence of the Court. In the instant case, we

fnd both the dying declarations exhibit-21 recorded by

the police and exhibit-29 recorded by the Special

Judicial Magistrate are reliable, trust worthy and

inspired confdence. We do not fnd any suspicious

circumstances or any infrmity such as want of ft state

of mind of deceased Bebibai while making the said dying

declarations. PW-4 Pandit Bangare and PW-6 Sakharam

Gokhale, Special Judicial Magistrate also got satisfed

about ft state of mind of the deceased to give her

statement. Deceased Bebibai in her dying declaration

exhibit-29 recorded by the Special Judicial Magistrate

19 CRI APPEAL 88.2021.odt

has given all the details including the name of her

mother, so also the details about marriage and children.

PW-10 Dr. Ashwini Nagargoje has made endorsement on

exhibit-20 and exhibit-28 about ft state of mind of the

deceased Bebibai before recording her dying declaration

exhibit-21 and exhibit-29, respectively. We are satisfed

that both the dying declarations have been made

voluntarily and we fnd it cogent and consistent. There

is no impediment in recording the conviction on the

basis of these dying declarations exhibit-21 and exhibit-

29 respectively, even without corroboration.

13. In addition to the dying declarations, the

prosecution has examined PW-7 Gorakhnath Bhanudas

Jadhav, who happened to be the neighbour. DW-1 Maya

had knocked his door in the night of 19.9.2012 and

informed him about the incident. PW-7 Gorakhnath

Jadhav has deposed that DW-1 Maya has informed to

him that there was quarrel between her father and

mother and asked him to help for taking her mother to

the hospital. Therefore, he went to her house and

inquired with injured Bebibai. PW-7 Gorakhnath has

20 CRI APPEAL 88.2021.odt

deposed that deceased Bebibai told him that her

husband set her on fre and went away. PW-7

Gorakhnath is an independent witness and there is no

reason to disbelieve him. Deceased Bebibai had made

oral dying declaration before PW-7 Gorakhnath Jadhav

immediately after sustaining of the burns. There is

nothing in the cross-examination of PW- 7 Gorakhnath

Jadhav to disbelieve the evidence of PW-7 Gorakhnath

Jadhav.

14. In addition to this, we have also carefully gone

through the spot panchnama exhibit-14. Following

articles came to be seized while drawing the spot

panchnama. One stove of pink colour having capacity of

one liter kerosene, one steel container, semi burnt saree

and blouse and other pieces of clothes, one match stick

of plus-2 Brand. The learned Judge of the trial court in

paragraph no.29 of the judgment has observed that said

stove was produced before the Court and it was still in

tact. Thus, we fnd corroboration from the articles

seized while drawing the spot panchnama exhibit-14 to

21 CRI APPEAL 88.2021.odt

the dying declaration exhibit-21 to exhibit-29

respectively.

15. So far as motive for the commission of the crime is

concerned, deceased Bebibai had stated in both of her

dying declarations exhibit-21 and exhibit-29 respectively

that appellant/accused got annoyed because she had

decided to settle the marriage of their daughter with the

relative from her side and because of that poured

kerosene on her person and set her on fre by means of

match stick. Learned APP has rightly pointed out that

even in the statement under section 313 of Cr.P.C. of the

appellant/accused in reply to the question nos.3 and 4,

the appellant/accused has answered in the following

manner :-

Q.3] It has further come in the evidence that she had engaged marriage of daughter with her relative. What do you want to say. ?

Ans :- It is correct.

Q.4] It has further come in the evidence that you were not agree with that relation. What do you want to say ?

Ans :- It is correct.

16. The appellant/accused had returned to the house

under the infuence of liquor. Immediately after his

arrival, he started quarreling with the deceased Bebibai

22 CRI APPEAL 88.2021.odt

by questioning about her decision in respect of

settlement of marriage of their daughter. It appears

that, the appellant/accused had returned to the house

with some determination and, after questioning and

abusing the deceased Bebibai, he poured kerosene on

her person and set on fre with the help of match stick,

which was with him. We do not think that the incident

had taken place in a spur of moment and heat of

passion.

17. The appellant/accused has taken a defence of

alibi. According to him, he was not present at the

relevant time in the house. It is well settled that burden

to prove the alibi is on the accused. The

appellant/accused has not examined himself before the

Court to explain about his absence at the relevant time

in the house. Appellant/accused has also not given

evidence about the place where he was in the fateful

night of the incident. Appellant/accused examined his

daughter DW-1 Maya, who has stated for the frst time

before the Court that the appellant/accused had been

to Jalgaon. Appellant/accused has not stated in his

23 CRI APPEAL 88.2021.odt

statement under section 313 of the Code of Criminal

Procedure that at the time of the incident or prior to

that he had gone to Jalgaon for some work and returned

to the house on the next day. DW-1 Maya w/o Mahendra

Puri has deposed that deceased Bebibai sustained

burns due to ablaze of stove. In paragraph no.29 of the

judgment, the learned Additional Sessions Judge,

Aurangabad has observed that the stove was produced

before the Court and it was intact.

18. PW 3 Rakesh Giri, son of the appellant/accused

has not supported the prosecution case, has admitted in

his cross-examination by the APP that he do not have

any other relative except his father and he do feel that

his father should be acquitted. We can understand that

as to why children have deposed in favour of the

appellant/accused. We are of the considered opinion

that the appellant/accused has failed to discharge the

burden of proving his defence of alibi.

19. So far as post-incident conduct of the

appellant/accused is concerned, the appellant/accused

left the house immediately after setting the deceased

24 CRI APPEAL 88.2021.odt

Bebibai on fre with the help of match stick and, he did

not try to extinguish the fre. Appellant/accused

remained absconding after the incident.

20. In view of the above discussion and applying the

relevant principles as laid down by the Supreme Court

in the case of Purushottam Chopra and another Vs.

State (Government of NCT of Delhi) (supra) to the facts

of the present case, we have not an iota of doubt that

the appellant has been rightly convicted by the trial

Court. Accordingly, we pass the following order.

ORDER

1. Criminal appeal is hereby dismissed.

2. Criminal Appeal accordingly disposed off.

3. Since Mr. S K Adkine, the learned counsel is appointed to prosecute the cause of appellant, we quantify his legal fees and expenses at Rs.5,000/- (Rs. Five thousand) to be paid by the High Court Legal Services, Sub-Committee, Aurangabad.

        ( S.G.DIGE, J. )                       ( V.K. JADHAV, J. )
                                     ...

     aaa/-