Daniyal Shivaji Alhat And Another vs The State Of Maharashtra
2022 Latest Caselaw 1139 Bom

                                                                                    Judgment.Cr.Apeal.741.1998.doc

UMESH
SHRINIWAS
MALANI                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
UMESH SHRINIWAS
                                          CRIMINAL APPELLATE JURISDICTION
MALANI
Date: 2022.02.01

                                          CRIMINAL APPEAL NO. 741 OF 1998
10:15:56 +0530




                      1.        Daniyal Shivaji Alhat,
                                Age 37 years, Occ: Service,

                      2.        Radhika Daniyal Alhat
                                Age - about 30 years,
                                                                               ...Appellants
                                Occ: Household,
                                                                              (Orig. Accused)
                                Both residing at S.No. 46,
                                Vishrantwadi, Pune City.
                                (Both in jail)

                                Versus

                      The State of Maharashtra                                ...Respondent

                                                ***
                      Mr. Ashish Satpute for the Appellant.
                      Mrs. M.M. Deshmukh, APP for Respondent - State.
                                                ***
                                               CORAM : PRASANNA B. VARALE &
                                                       N. R. BORKAR, JJ.
                                         RESERVED ON : JULY 28, 2021
                                       PRONOUNCED ON : FEBRUARY 01, 2022

                      JUDGMENT (PER PRASANNA B. VARALE, J)

1. Being aggrieved by the judgment and order

passed by 2nd Additional Sessions Judge, Pune in

Sessions Case No. 360 of 1990 whereby the Appellants -

Original Accused who were charged for commission of

offences punishable under Sections 302 & 498-A read

with Section 34 of the Indian Penal Code (for short

Umesh Malani PAGE 1 OF 34 Judgment.Cr.Apeal.741.1998.doc

'IPC') convicted and awarded sentence to suffer

rigorous imprisonment for life and to pay fine of Rs.

1,000/-, in default each accused to suffer RI of three

months, for the offence punishable under Section 302 of

IPC, filed the present Criminal Appeal.

2. It the case of prosecution that in the

intervening night of 24.04.1990 and 25.04.1990, ASI

Raja Bhangare (PW 7), attached to Alandi Road Police

Chowky and was discharging his duty as station incharge

and his duty hours were from 09.00 AM to 09.00 PM. On

24.04.1990, at about 01.45 pm Sandip Alhat had been to

the police station claiming to be the brother-in-law of

the victim informed Raja Bhangare (PW 7) that his

sister-in-law Chandrakala suffered burn injuries. On

receipt of the information, ASI Raja Bhangare (PW 7)

immediately rushed to the spot. On reaching to the

spot, ASI Raja Bhangare (PW 7) found that the victim

Chandrakala was already shifted to Sassoon Hospital. On

information received by him, before proceeding to

Sassoon Hospital, ASI Bhangare (PW 7) sent intimation /

requisition letter to Special Judicial Magistrate Shri.

Kamlakar (PW 3) to attend Sassoon Hospital for

Umesh Malani PAGE 2 OF 34 Judgment.Cr.Apeal.741.1998.doc

recording the statement of victim. The said requisition

letter is produced before the Court as part of evidence

and the same is marked as Exhibit 21. On 25.04.1990 at

about 03.30 pm, the Special Judicial Magistrate reached

hospital for recording the statement. On information,

it revealed that patient was admitted in ward no. 27 of

Sassoon Hospital. Accordingly, the Special Judicial

Magistrate proceeded towards ward no. 27. He also took

the medical officer along with him on seeking

verification from the medical officer that the victim

is in fit physical and mental state to give her

statement. Then Special Judicial Magistrate put certain

queries to the victim. On ascertaining that the victim

is in fit mental and physical condition to give

statement, the statement of victim was recorded. It was

stated by the victim that her marriage was solemnized

that accused no. 1. Accused no.2 is the wife of accused

no. 1 and as there was no issue to the couple for

considerable period, by approaching the father of

victim and with consent of accused no. 2, accused no. 1

performed marriage with deceased.

3. It was stated by the victim that a quarrel

Umesh Malani PAGE 3 OF 34 Judgment.Cr.Apeal.741.1998.doc

started between accused no. 2 and her, on the backdrop

of the fact that the accused no. 2 by snatching child

from victim and victim was opposing to the act of

accused no. 2. Accused no. 1 who did not like the act

of victim opposing the accused no. 2, abuses and

physically assaulted the victim. Accused no. 2 then

poured kerosene on the person of victim and set her

ablaze. Due to intolerable pain, due to burns, the

victim started crying and on hearing her hue and cry

her brother-in-law Prasanna Kumar reached the spot and

extinguished the flames. This statement was reduced in

writing (as subsequently the victim deceased died due

to burn injuries, this statement is treated as dying

declaration.

4. While concluding the statement, the Special

Judicial Magistrate sought the endorsement of the

medical officer and accordingly, the statement was

endorsed by the medical officer. On the basis of this

statement, ASI Bhangare (PW 7) lodged the report being

complaint. The report bearing CR No. 46/1990 was

registered at Vishrantwadi Police Station for

commission of offence punishable under Section 307 read

Umesh Malani PAGE 4 OF 34 Judgment.Cr.Apeal.741.1998.doc

with Section 34 of IPC and the said FIR is marked as

Exhibit 30.

5. Then there is another statement of the victim

was recorded in present of medical officers namely, Dr.

Madhuri Kulkarni and Dr. Smt. Goyal by reiterating the

facts, the victim stated that on the fateful day she

was at her home with husband and the accused no. 2.

Accused no. 2 was demanding the child from the victim.

On denial accused no. 1 started beating the victim and

accused no. 2 poured kerosene on the victim and set her

ablaze. It was stated by the victim that her brother-

in-law made an attempt to extinguish flames. This

disclosure came on record as a history submitted by the

victim.

6. Meantime, information was provided to the

father of victim Jairam Gaikwad at his village. The

sister of father of victim was resident of Dhokeshwar

Talki and on receipt of information, she reached to the

house of Jairam Gaikwad. It was informed to her that

the victim is admitted in the Sassoon Hospital. On

inquiry by father Jairam victim reiterated the facts

Umesh Malani PAGE 5 OF 34 Judgment.Cr.Apeal.741.1998.doc

namely, demand of the child from accused no. 2, denial

by the victim, accused no. 2 trying to snatch the child

from the victim, accused no. 1 beating the victim and

accused no. 2 poured kerosene on her and set her

ablaze. The intimation was also provided to the

brothers of deceased. The brothers of victim on

reaching to hospital made inquiry with victim and

victim reiterated the facts with some more details such

as, accused no. 1 gave her fist blows. Then she also

reiterated that accused no. 2 poured kerosene on her

and set her ablaze. While she was under treatment, on

16.05.1990 the victim succumbed to the burn injuries.

Then IO drew the inquest panchnama. The dead body was

referred to autopsy surgeon. Dr. Milind Wable performed

the post mortem. We may refer to the evidence of

autopsy surgeon at later part, suffice it to say that,

autopsy surgeon found that the victim was subjected to

extensive superficial to deep burns and total

percentage of burns suffered by victim is 60%. Then it

autopsy surgeon gave his opinion about the death of

victim and he opined that the cause of death of victim

was shock as a result of burn injuries.

Umesh Malani PAGE 6 OF 34 Judgment.Cr.Apeal.741.1998.doc

7. As the investigating agency was set in motion

on lodgment of the report, ASI Bhangare (PW 7),

Khushalrao Garje (PW 8) and Uvappa Kanaram Chavan (PW

9), these three investigating officers investigated the

matter. ASI Raja Bhangare (PW 7), take certain steps in

the investigation such as, forwarding the requisition

letter to Special Judicial Magistrate for recording the

statement of victim, registration of crime, etc. Then

Khushalrao Garje (PW 8) proceeded with investigation

and effected the arrest of the accused persons, then

recorded the statement of various witnesses, etc.

Uvappa Kaneram Chawan (PW 9) then proceeded with

investigation and took certain steps such as, drawing

panchnama of scene of offence, drawn seizure panchnama,

forwarding samples for laboratory for chemical

analysis, collecting PM notes, etc.

8. On completion the exercise of investigation,

the charge-sheet came to the filed in the Court of

learned JMFC. As the offences being exclusively triable

by the Court of Sessions, the case was committed to the

Court of Sessions. The charges were read over to

accused persons. They denied the guilt. In defence the

Umesh Malani PAGE 7 OF 34 Judgment.Cr.Apeal.741.1998.doc

accused persons submitted that they have not committed

any offence on the contrary, it was the deceased who

was insisting the accused no. 1 to drive the accused

no. 2 from the house. Accused no. 1 was not ready to

act as per the insistence of the victim and he told the

victim that he would have to maintain both wives. It

was further line of defence of the accused persons is

when the accused no. 1 denied to succumbed to the

pressure of deceased, she warned him that if the

accused no. 1 would not drive accused no. 2 from the

house, she would commit certain overtact and would

involve the accused no. 1 in some offence and

resultantly the accused no. 1 would suffer jail

punishment.

9. It was the defence of accused no. 1 that by

saying so the victim herself went inside the room and

when she came out of the room she was in flames. The

accused no. 1 looked at her immediately and made

attempt to extinguish the fire. Then the victim was

shifted in Sassoon Hospital by arranging an auto

rickshaw.

Umesh Malani                                                                        PAGE 8     OF 34
                                                                Judgment.Cr.Apeal.741.1998.doc




10.             The     prosecution        in     support      of        its         case

examined as many as 10 witnesses wherein the accused

person also examined one witness in their defense.

11. Learned Trial Judge, on the basis of material

brought before the Court framed the points for

consideration and answered these points in affirmative

i.e., accepting the case of prosecution and ultimately

passed the judgment and order of conviction. Hence,

this Appeal.

12. Learned Counsel appearing for the Appellants

vehemently submitted that the evidence brought by the

prosecution is not cogent and reliable. It is also

submitted by learned Counsel for the Appellants that

there is not direct evidence to support the case of

prosecution and the prosecution relies on the indirect

evidence in the form of dying declarations and the so

called history recorded by the medical officers.

Learned Counsel for Appellants further submitted that

in so far as the oral dying declarations are concerned,

as these declarations are made to the nearest

relatives, i.e., father and uncle of the victim and the

Umesh Malani PAGE 9 OF 34 Judgment.Cr.Apeal.741.1998.doc

witnesses being in close relations are the interested

witnesses and it would be unsafe to accept the evidence

of these witnesses. Learned Counsel for Appellants then

submitted that the evidence show that the accused

himself made an attempt to extinguish the flames and as

such, it can be seen from the evidence that the accused

no. 1 had no intention to commit an offence lodged

against him. Thus, learned Counsel for Appellants

prayed for allowing the Appeal.

13. Per contra, learned APP vehemently submitted

that the evidence brought before the Court by the

prosecution thoroughly consistent, reliable,

trustworthy and cogent. Learned APP submitted that in

the statement of the witnesses particularly, the

father, the uncles of the victim, the brothers of

victim, it is clearly stated that right from the

initial period post marriage of the victim with accused

no. 1, she was subjected to ill-treatment. Learned APP

further submitted that it can be seen that there is a

common thread in all these statements that the victim

was so much depressed of the ill-acts of the accused

person and she was not ready to reside with them due to

Umesh Malani PAGE 10 OF 34 Judgment.Cr.Apeal.741.1998.doc

continuous apprehension of life to her. It is also

submitted by learned APP that the statement of

witnesses clearly show that though the parents of

victim and brothers of victim time and again informed

the accused no. 1 to mend his ways but, there is no

change in his behaviour on the contrary, when ever the

accused used to visit in-laws house, he used to be

under influence of liquor. Learned APP then submitted

that merely because the witnesses are the close

relatives of the victim, it is not necessary to discard

their evidence on the contrary, considering the

sequence of events it was a natural act of victim to

disclose about ill-treatment being suffered by her to

her close relatives.

14. Learned APP also submitted that the written

dying declaration recorded by the Special Judicial

Magistrate complies with all pre-requisites and test of

law. The Special Judicial Magistrate firstly himself

satisfied physical and mental condition of the victim.

Then sought the verification from the medical officer

and after recording the statement again sought the

approval of the medical officer. The medical officer

Umesh Malani PAGE 11 OF 34 Judgment.Cr.Apeal.741.1998.doc

had endorsed the statement showing that the patient was

in fit physical and mental condition right from the

beginning of recording the statement till closure of

the statement. Learned APP countering the submissions

of learned Counsel for Appellants submitted that the

facts emerged from the evidence collected by the

investigating agency clearly show that both the accused

were not only having knowledge before the act but

intention to done away the victim, was also clearly

reflected. Merely because accused no. 1 subsequently

made an attempt to extinguish the fire would not

absolve him from his conscious act of abusing and

assaulting victim and then setting her ablaze. Learned

APP in support of his submissions heavily relied on the

judgment of the Apex Court in the matter of Purushottam

Chopra and another vs. State (Govt. of NCT Delhi) 1.

Thus, learned APP prayed for dismissal of the Appeal.

15. With the assistance of both the learned

Counsel appearing for respective parties, we have gone

through the material on record.

1   AIR 2020 SC 476

Umesh Malani                                                                   PAGE 12     OF 34
                                                                   Judgment.Cr.Apeal.741.1998.doc




16.                 The   prosecution            in   support    of       its         case,

examined             as   many       as     10     witnesses.    As       the         dying

declaration recorded by Kamalakar Baburao Adhav (PW 3)

- the Special Judicial Magistrate, and this dying

declaration is in first point of time, we may refer to

this witness, firstly.

17. Kamalakar Baburao Adhav (PW 3) is the Special

Judicial Magistrate deposed before the Court that on

24.09.1990 at about 03.30 pm, he received a requisition

letter from Vishrantwadi Police Station requesting for

recording dying declaration. Accordingly, he went to

Sassoon Hospital at ward no. 27. By the said letter, he

was requested to record dying declaration of

Chandrakala Danial Alhat. Doctor taken him to patient

Chandrakala. He inquired with the doctor whether

patient is in a condition to give statement. Doctor

examined the patient Chandrakala and told him that her

statement can be recorded. Then he asked Chandrakala

about her name, age, occupation and address to which

she replied and accordingly he reduced it in writing.

It was about 04.00 pm he has given his introduction to

her. He inquired with her whether she is fully

Umesh Malani PAGE 13 OF 34 Judgment.Cr.Apeal.741.1998.doc

conscious, to which she replied in affirmative. Then he

asked her whether she understood that he is Special

Judicial Magistrate to which she replied in the

affirmative. Then he inquired with her as to how she

sustained burn injuries. She replied saying that she

was married 2 years before with accused no. 1 and that

she has one infant child, that her husband always

picked up quarrel with her and used to beat her, that

accused no. 2 used to ask her for her child. Accused

no. 2 has no issues. That on 25.04.1990 at about 01.00

pm accused no. 2 snatched her child. That time accused

no. 1 beaten her and accused no. 2 poured kerosene on

her and set her on fire, due to which she sustained

burn injuries. That she was crying out of pain and

meanwhile her brother-in-law Prasanna Kumar came and

put off the flames. That necessary action be taken

against her husband and first wife. Then he recorded

the answers given by patient as per her say. He read

over the same and she conceded to the same. He has

obtained her thumb impression and he signed the same.

Then he also obtained the endorsement of the medical

officer, who was present throughout.

Umesh Malani PAGE 14 OF 34 Judgment.Cr.Apeal.741.1998.doc

18. In the cross-examination, this witness stated

that he accompanied the police constable who came to

him along with requisition letter Exh. 21 to Sassoon

Hospital. He has read the requisition letter before

signing. It was about 04.00 pm when he reached Sassoon

Hospital. It was Dr. Goyal who took him to patient

Chandrakala. Then this witness admitted that nowhere he

had mentioned on Ex. 22 that Dr. Goyal examined the

patient in his presence. Then this witness admitted

that it was necessary to ask the patient whether the

patient is mentally prepared to give statement. This

witness admitted that when he went near the patient

Chandrakala to inquire about her, there were few

persons standing near her. Among the said persons, one

was advocate. Then this witness counterly replied that

he removed all the person before recording dying

declaration. Then certain suggestions were given to

this witness that while recording dying declaration

except himself and the patient Chandrakala nobody was

present, while recording dying declaration doctor was

attending other patient, these suggestions were denied.

19. Balshiram Jairam Gaikwad (PW 1) is the brother

Umesh Malani PAGE 15 OF 34 Judgment.Cr.Apeal.741.1998.doc

of deceased Chandrakala. This witness deposed before

the Court that marriage of Chandrakala took place with

accused Danial on 14.03.1988. After marriage she went

to reside with accused at Vishrantwadi, Pune. Radhika -

Accused no. 2 is the first wife of accused Danial.

After about 10 to 11 months of marriage of deceased

Chandrakala, he had been to her house to bring her at

their place. During his said visit, he found bandage

around his sister's head. On his inquiry, his sister

disclosed to him that as she did not go and touch the

feet of accused no.2, accused no. 1 abused her and

accused no. 2 given a blow with iron rod on her head.

Therefore, she sustained bleeding injury to her head.

Hence, he has taken her to Sassoon Hospital for removal

of stitches. This witness further deposed that doctor

removed stitches, treated her. While returning, her

sister disclosed to him that accused abused, beat her

and ill-treat her and therefore, she was not prepared

to return to her matrimonial home. Then he has taken

sister to their house. Deceased also disclosed to them

that a complaint was lodged with police in the matter

and police arrested both the accused. After staying for

Umesh Malani PAGE 16 OF 34 Judgment.Cr.Apeal.741.1998.doc

about couple of months with his father, he returned to

Thane. On 28.04.1990 they received a telegram at Thane,

intimating them that deceased sustained burn injuries.

On the same day his brother came to Thane from Avsari.

He also brought the same message. His brother told him

that accused have beaten the deceased, accused no. 2

poured kerosene and set her on fire. The deceased was

admitted to Sassoon Hospital for treatment. Therefore,

this witness along with brother Madhukar both went to

Sassoon Hospital to see their sister. Then he found her

sister in speaking condition. Then he spoke to her. On

his inquiry deceased disclosed to him that on

25.04.1990 at about 1 pm accused no. 1 returned home,

for his food. At that time accused no. 2 snatched the

child from deceased, poured kerosene on her person and

set her on fire. Before that, accused no. 1 beaten her.

20. In the cross-examination, this witness

admitted that accused no. 2 Radhika could not conceive,

therefore, accused no. 2 in fact insisted for marriage

of accused no.1 with Chandrakala. Then this witness

denied suggestion that Chandrakala was leading happy

married life under the same roof of accused nos. 1 and

Umesh Malani PAGE 17 OF 34 Judgment.Cr.Apeal.741.1998.doc

2. Then this witness stated that he came to see his

sister Chandrakala after receipt of telegram. He was

attending Sassoon Hospital for 4-5 days. His other

relatives also used to visit Chandrakala in Sassoon

Hospital. Then this witness stated that after learning

about the incident from the mouth of his sister

Chandrakala, he has informed the police but however he

was told that complaint was already recorded in the

matter and police will record his statement.

21. Madhukar Jairam Gaikwad (PW 2) is the another

brother of deceased. This witness deposed before the

Court that at the time of incident he was residing in

Bombay. Deceased Chandrakala is his sister. He used to

visit his village Avasari every year during fair.

Accordingly on 15.04.1990 he had been to his village to

attend the fair. That time deceased Chandrakala was

there in village Avasari. Chandrakala met him at his

village prior to 15.04.1990. Prior to that she

disclosed to him that accused were ill-treating her.

Accused no. 1 under the influence of liquor beat her.

Accused no. 2 instigates to ill-treat and beat her. She

also disclosed to him that she apprehends danger to her

Umesh Malani PAGE 18 OF 34 Judgment.Cr.Apeal.741.1998.doc

life in the lands of accused persons and that she was

not willing to return to her matrimonial home. That

time he persuaded her and asked not to be afraid of the

accused. This witness further deposed that on

15.04.1990 he had been to village Avasari for attending

the fair. That time Chandrakala was there. That time

his father disclosed him that accused no. 1 came there

fully drunk quarreled with his mother and was insisting

to send Chandrakala and her son. That time Danial

accused no. 1 was also there. Therefore, he asked him

not to ill-treat Chandrakala. That time accused no. 1

assured them that henceforth he will not ill-treat

Chandrakala. Therefore, they have sent Chandrakala on

16.04.1990 along with accused no. 1.

22. Then this witness further deposed that on

21.04.1990 while returning to Bombay, he had been to

Chandrakala's matrimonial house at Vishrantwadi. That

time Chandrakala was complaining that accused no. 2

snatches her son from her even during the nights. She

also complained saying that if she does not give her

child, accused no. 1 beats her. Therefore, he persuaded

accused and requested them to allow the child to live

Umesh Malani PAGE 19 OF 34 Judgment.Cr.Apeal.741.1998.doc

with her mother at least during the nights. On the next

day, he left Chandrakala's house. Before leaving he had

given Rs. 20 and asked her if she is further ill-

treated, she may return to her parents house. On

29.04.1990 brother Balsiram came to him and informed

that accused set Chandrakala on fire and that they

should go to Sassoon Hospital, Pune to see her.

Accordingly, on 30.04.1990, they came to Sassoon

Hospital to see Chandrakala. They found Chandrakala

sustaining burn injuries to her face, chest, hands and

feet. They talked to her. She was in conscious

condition. Chandrakala disclosed to them that on

25.04.1990 at about 1 pm accused no. 1 tried to snatch

the child from her, to which she resisted. Therefore,

accused no. 1 has beaten her badly and accused no. 2

snatched the child from her. Thereafter both the

accused poured kerosene on Chandrakala and set her on

fire.

23. In the cross-examination, this witness

admitted that before police recording his statement, he

did not tell anybody about what Chandrakala told him in

the hospital. Then this witness stated that Chandrakala

Umesh Malani PAGE 20 OF 34 Judgment.Cr.Apeal.741.1998.doc

also complained that she apprehends danger to her life

in the hands of accused. Then he persuaded the accused

persons saying not to ill-treat Chandrakala instead of

advising Chandrakala not to return to her matrimonial

house. Then this witness admitted that in his statement

dated 01.05.1990 there is no mention about Chandrakala

complaining to him regarding the ill-treatment meted

out to her when she met him on 15.04.1990. Then this

witness admitted that Chandrakala sustained burn

injuries to her both the hands. Then certain

suggestions were given that when he met Chandakala in

Sassoon Hospital, she did not narrate the incident as

narrated by him before the Court, as Chandrakala died,

they have implicated the accused persons falsely,

Chandrakala disclosed to him that as accused no. 1 was

not driving out accused no. 2, she got annoyed, poured

kerosene on her person and set herself on fire,

Chandrakala never complained to him about ill-treatment

meted out to her by the accused, all these suggestions

were denied.

24. Ashok Arjun Tingre (PW 5) is the panch witness

to the panchnama of scene of offence. This witness

Umesh Malani PAGE 21 OF 34 Judgment.Cr.Apeal.741.1998.doc

deposed before the Court that on 25.04.1990 at about

05.45 pm he was called to the spot by the police for

drawing panchnama of scene of offence. There was

another panch. Accordingly, he went to the spot. He was

called at Rameshwar Agarwal Chawl, S. No. 46,

Vishrantwadi. He was called to the house of accused no.

1. One woman shown them the spot. Police have seized

the articles in their presence. The articles consists

of one stove, one match box, one shirt, one payjama, 2

quilts, 2 gunny bags, burnt clothes, broken pieces of

bangle, the beeds of mangalsutra, yellow colour

earrings. Then police seized all these articles and

obtained signatures of panch witnesses.

In the cross-examination, this witness stated

that the scene of offence is at a distance of about 3

kms from his residence. Vishrantwadi Police Station is

at a distance of 4 kms from his residence. At about

05.30 pm on 25.04.1990 he was in Vishrantwadi Police

Station. At the relevant time he was passing by the

police station, police called him. Then this witness

stated that he has not personally ensured whether the

articles were smelling kerosene as mentioned in

Umesh Malani PAGE 22 OF 34 Judgment.Cr.Apeal.741.1998.doc

panchnama. The gunny bags found spreaded in the room

and the soil below it was smelling of kerosene.

25. Jairam Bhikaji Gaikwad (PW 5) is the father of

deceased. This witness deposed before the Court that

deceased was married to Danial accused no. 1. After

marriage Chandrakala started residing at Vishrantwadi

in the house of accused no. 1. After about 4-5 months

after marriage of Chandrakala, he went to her house at

Vishrantwadi. Chandrakala complained to him saying that

she was not being given proper food; she was being

given stale food; that her husband used to beat her.

The accused no. 2 was getting maximum work done from

her. Then he persuaded deceased and also the accused

and then left for her village. After about 2 months

Chandrakala wrote letter to him. In the said letter she

mentioned that she was being ill-treated and that he

should bring her back on the excuse that her mother is

sick. The said letter is dated 27.09.1989. This witness

further deposed that generally in the month of April

there takes fair in their villages. In the year 1989

during the fair period he has sent his son to

Chandrakala for bringing her to their village. He sent

Umesh Malani PAGE 23 OF 34 Judgment.Cr.Apeal.741.1998.doc

Balshiram to bring Chandrakala. Chandrakala came to

their house along with Balshiram. That time he found

injury to her head and there was bandage to her head.

When inquired, she disclosed that her husband inflicted

the injury. That time Chandrakala stayed with them for

one year as she was pregnant. As regards oral dying

declaration, this witness deposed that he inquired with

Chandrakala as to how she sustained burn injuries to

which she disclosed saying that at that time she and

accused along with her son were in the house. Accused

no. 2 quarreled with her. Accused no. 1 beaten her and

accused no. 2 poured kerosene on her person and set her

on fire.

26. In the cross-examination, this witness

admitted that he had been to the house of Chandrakala

only on 2 occasions after her marriage to till her

death. Then this witness denied the suggestion that

Chandrakala did not write Exh. 26 letter to him and

that he got it fabricated. Then this witness admitted

that he sent his son Balshiram to bring Chandrakala as

then she was pregnant. That time Balshiram did not stay

in the house of Chandrakala. Then this witness admitted

Umesh Malani PAGE 24 OF 34 Judgment.Cr.Apeal.741.1998.doc

that when Chandrakala came to their place, he found

bandage around her head. He inquired with her about the

injury. Then this witness admitted that initially he

learnt about the incident from his sister Gangubai. He

received telegram on the day on which he learnt from

his sister. Then certain suggestions were given that as

accused no. 2 has no issues, his daughter wanted

accused no. 2 to be driven out, as accused no. 1 was

not prepared to drive out accused no. 2 his daughter

out of irritation poured kerosene on her person and set

herself on fire, his daughter did not narrate about the

incident to him when he met her in Sassoon Hospital as

he narrated before the Court, all these suggestions

were denied.

27. Dr. Milind Wable (PW 6), is the autopsy

surgeon. This witness deposed before the Court that on

07.06.1990 he was working as lecturer in Forensic

Medicines, in BJ Medical College, Pune. On that day at

about 00.50 a.m a dead body of Chandrakala Daniyal

Alhat was brought by Vishrantwadi Police Station for

post mortem examination. He conducted post mortem on

the same day between 00.50 am to 01.50 am. On post

Umesh Malani PAGE 25 OF 34 Judgment.Cr.Apeal.741.1998.doc

mortem, he found following external injuries : 1. Burn

injuries on head neck and face 6%, chest and abdomen

12%, back 10%, both upper legs 9% each, and right lower

limb 4%, total 60%. These injuries were ante mortem.

All other organs were congested. The cause of death was

due to shock as a result of burn injuries. Accordingly,

he prepared post mortem report.

28. Raja Nimba Bhangare (PW 7) is the

investigating officer. As we have already referred to

this witness in earlier part, it may not be necessary

for us to refer to this witness again.

29. Khushalrao Keshavrao Garje (PW 8), is also the

investigating officer, who conducted part

investigation. This witness effected the arrest of the

accused persons. Then this witness stated that he

recorded the statement of some other witnesses. Then

this witness stated about steps taken by him in

investigation.

30. Uvappa Kaneram Chawan (PW 9), is another

investigating officer who also conducted some part of

Umesh Malani PAGE 26 OF 34 Judgment.Cr.Apeal.741.1998.doc

investigation. This witness also stated about steps

taken by him in investigation such as, drawing various

panchnamas, recording statement of witness, drawing

inquest panchnama, sending articles for CA, obtaining

PM notes, etc. Omission in the version of witnesses are

proved through this witness.

31. Madhuri Dattatraya Kulkarni (PW 10). This

witness deposed before the Court that on 25.04.1990 she

was serving in Sassoon Hospital as lecturer. On that

day she was on duty in ward no. 27. Her duty hours were

09.00 am to 05.00 pm but still they are required to

work for 24 hours in case of emergency. She knows Dr.

Vanita Goel. On 25.04.1990 she was on emergency duty in

ward no. 27. Patient Chandrakala Danial Alhat was

brought to Sassoon Hospital on 25.04.1990 at 02.15 pm

by her brother-in-law Prasanna. On admission, she was

examined by Dr. Goel. She was also present when Dr.

Goel was examining patient Chandrakala. Patient

Chandrakala disclosed that she was at home with her

husband, husband's second wife. Patient had 6 months

old baby, which she did not give to her husband and the

2nd wife and for that she was beaten up by her husband

Umesh Malani PAGE 27 OF 34 Judgment.Cr.Apeal.741.1998.doc

and the 2nd wife poured kerosene on her person and set

her on fire. Her brother-in-law tried to save her by

pouring water and tried to put off the flames. She has

given history of constant friction and fights with

husband and his 2nd wife. When this was disclosed to Dr.

Goel by the patient, she was by her side only. Dr.

Vanita Goel reduced this into writing. Then this

witness deposed that Chandrakala's dying declaration

was recorded at 04.00 pm on 25.04.1990. That time she

was conscious and oriented. There is endorsement of Dr.

Goel on dying declaration.

In the cross-examination, advocate for defence

has put question that whatever evidence tendered by you

in respect of MLC case of Chandrakala Danial Alhat is

on the basis of case papers produced before the Hon'ble

Court? to which this witness answered that, she was

present when Chandrakala gave the history to Dr. Goel.

She was by her side. Then this witness stated that she

was on duty in ward no. 27. On that day she was present

in the ward and by the side of patient Chandrakala when

the history was recorded by Dr. Goel since record

pertaining to her presence in ward no. 27 is there,

Umesh Malani PAGE 28 OF 34 Judgment.Cr.Apeal.741.1998.doc

there is no need to maintain separate record to the

effect that she was present by the said of Chandrakala

at the relevant time. Then certain suggestions were

given to this witness that history was given by a

person by name Maruti Sakharam Gaikwad, she is deposing

falsely that patient was oriented while her statement

was being recorded, she was not present when dying

declaration was recorded, history appearing in MLC

papers is not given in her presence, all these

suggestions were denied.

32. The defence has examined one witness i.e.,

Smt. Usha Laxman Shinde (DW 1). This witness deposed

before the Court that she knows accused nos. 1 and 2

sitting in the dock. They are resident of Vishrantwadi.

In between her house and house of both the accused,

there are 4 to 5 houses. The locality where they reside

is mainly Zopadpatti area. Accused no. 1 and 2 are

husband and wife. She was knowing the deceased

Chandrakala. Chandrakala was the 2nd wife of accused no.

1. At the time of incident, deceased Chandrakala was

residing in the house of accused no. 1 at Vishrantwadi.

On that day she returned to her house after work at

Umesh Malani PAGE 29 OF 34 Judgment.Cr.Apeal.741.1998.doc

about 12.00 noon. When she so returned she heard shouts

from the backside door of her house. Such shouts were

coming from the side of house of accused. Then she went

there to see as to what matter is there. When she

reached at the spot, she saw that 10 to 15 persons were

gathered at the spot. She saw Chandrakala coming out of

her house with flames on her person. She collapsed in

the courtyard of her house in that condition. Accused

no. 1, Papa, herself, and other poured water on the

person of Chandrakala and extinguished fire. She

inquired with Chandrakala by going near Chandrakala as

to how she was caught to fire. Chandrakala informed her

that she had asked accused no. 1 to drive away the

accused no. 2 from the house, to which he had refused

and hence in the anger, she got herself set on fire.

Other persons assembled at the spot were standing near

by Chandrakala when aforesaid conversation was going on

between them. Amongst the persons so assembled there

was Bhagwan Sakat known to her and others.

In the cross-examination, this witness stated

that after the incident police had interrogated her

about the incident. During such interrogation she has

Umesh Malani PAGE 30 OF 34 Judgment.Cr.Apeal.741.1998.doc

stated before the police that on her inquiry

Chandrakala informed her as to how she was caught to

fire as stated by her in her examination-in-chief. Then

this witness denied the suggestion that she was present

at the spot from the inception of incident and accused

Radhika had given the child of Chandrakala in her

custody, and the child was with her. She was not going

for giving bath to the child of Chandrakala at her

house. Then this witness denied the suggestion that at

the time of giving bath to the child there used to take

place talks between herself and Chandrakala and hence

both accused stopped talking with her.

33. Firstly, we may deal with the issue that the

death of Chandrakala being accidental, suicidal or

homicidal? It is not in dispute that the deceased

Chandrakala was residing with accused nos. 1 and 2

under same roof. It is also not in dispute that on

fateful day i.e., 25.04.1990 Chadrakala was in the

house of accused no. 1 and at about 01.00 p.m she

sustained 60% burns in the house of accused no. 1.

Madhuri Dattatraya Kulkarni (PW 10) who was present on

25.04.1990 at Sassoon Hospital stated that the

Umesh Malani PAGE 31 OF 34 Judgment.Cr.Apeal.741.1998.doc

Chandrakala was brought by her brother-in-law Prasanna

Kumar. Then deceased Chandrakala gave history to Dr.

Goel that her husband i.e. accused nos. 1 and his first

wife, beat her and poured kerosene and set her on fire

on 25.04.1990.

34. At the cost of repetition, we may state that

Chandrakala was taken to Sassoon Hospital, Pune, where

K.B. Adhav (PW 3) - The Special Judicial Magistrate

recorded dying declaration in presence of Special

Medical Officer. Chandrakala stated that her husband

i.e., accused no. 1 beat her and accused no. 2 poured

kerosene on her person and set her on fire. It also

came on record that in the the history recorded by Dr.

Goel is the stated by deceased that deceased had 6

months old baby which she did not give to her husband's

2nd wife and for that she was beaten up by her husband

and the 2nd wife poured kerosene on her person and set

her on fire.

35. In the spot panchnama, it can be seen that

when panchnama was drawn at that time there was

kerosene smell on the floor. One stove, one match box,

Umesh Malani PAGE 32 OF 34 Judgment.Cr.Apeal.741.1998.doc

one shirt, one payjama, 2 quilts, 2 gunny bags, burnt

clothes, broken pieces of bangle, the beeds of

mangalsutra, yellow colour earrings were found. If we

consider, overall evidence on record, it can be said

that Chandrakala did not sustain 60% burns accidentally

or her attempt was to commit suicide.

36. It is the the submission of learned Counsel

appearing for the Appellants that the deceased was

tutored. But, it can been seen from the record that the

history was immediately recorded by Dr. Goel. Not only

this, dying declaration was immediately recorded at

Sassoon Hospital, only in presence of medical officer.

Thus, it can safely be said that deceased had no

occasion to meet with other witnesses and was not

tutored. Considering this aspect, we are unable to

accept the submission that the dying declarations are

doubtful or victim was tutored.

37. Considering the above referred material and

evidence, it can be stated that the death of deceased

Chandrakala was a homicidal and the Appellants are the

author of crime.

Umesh Malani PAGE 33 OF 34 Judgment.Cr.Apeal.741.1998.doc

38. Considering the evidence brought on record, we

are unable to accept the submissions of learned Counsel

for the Appellants and we find considerable merit in

the submissions of learned APP. Thus, Appeal is devoid

of merit, deserves to be dismissed. Accordingly,

Criminal Appeal is dismissed.

(N. R. BORKAR, J.)                     (PRASANNA B. VARALE, J.)




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