Bombay High Court
Jairam Kisan Bhoye vs The State Of Maharashtra on 27 January, 2022
Bench: S.S. Shinde, N. R. Borkar
Digitally signed
LAXMIKANT by LAXMIKANT
GOPAL
GOPAL CHANDAN
CHANDAN Date: 2022.01.27
13:19:51 +0530 cri.apeal-465.21-aw-IA-1440.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.465 OF 2021
ALONG WITH
CRIMINAL INTERIM APPLICATION NO.1440 OF 2021
IN
CRIMINAL APPEAL NO.465 OF 2021
Jairam Kisan Bhoye ]
Age : 54 years, ]
R/o. Mhasoba Nagar, ]
Peth Road, ]
Panchavati, Nashik ]..... Appellant/Applicant
versus
State of Maharashtra ]
Through the office in charge ]
of Panchavati Police Station. ]..... Respondent.
Mr. Nilesh J Rathi i/by Mr. Piyush U Raje for the Appellant/Applicant.
Mr. Y M Nakhwa, APP for the Respondent/State.
CORAM : S. S. SHINDE,
N. R. BORKAR, JJ
Reserved on : 03rd JANUARY 2022
Pronounced on : 27th JANUARY 2022
JUDGMENT : (PER S. S. SHINDE, J)
1 By this Appeal the Appellant challenges the judgment and order
dated 06th March 2021 passed by the learned Additional Sessions Judge,
Nashik in Sessions Case No.170 of 2016 thereby convicting the Appellant for
the offences punishable under Sections 302 and 323 of the Indian Penal Code
and sentencing him to suffer imprisonment for life and to pay fine.
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2 The prosecution story, in brief, can be stated thus :-
Deceased Kantabai Jairam Bhoye, who was the resident of
Mhasoba Nagar, Panchavati, Nashik, had four sons and one daughter from her
first husband. Her first husband Baban Javale expired prior to 16 years of the
incident. She was doing business of vegetable vendor. While doing the said
business, she came to know accused Jairam Kisan Bhoye. Thereafter they got
married as per the religious rites and rituals and started residing together. On
24/01/2016, the wife of Dipak Baban Javale, who is the son of the deceased
from her first husband, gave a birth to a daughter. Therefore on the very same
day at 10.30 am, the deceased went to the house of Dipak to see the new born
child and stayed there. On 25/01/2016 at 1.15 pm her second husband
Jairam Kisan Bhoye i.e. the accused came to Dipak's house and told Kantabai
(now deceased) that her sons are major, married and she should not give visit
to their place; and upon saying so, he caught hold of her hand and took her to
her matrimonial house at Mhasoba Nagar. On the same day at about 10.30
pm, the accused questioned the deceased as to, why she went to her son's
house without informing him, and abused, assaulted and slapped Kantabai. He
poured petrol on her person, which he had already brought from his Maruti
Van. As per prosecution case, the drops of petrol fell on the lamp lit before the
Devghar (a sort of frame or enclosing case for an idol, a shrine) because of
which the lamp flared up and her saree caught fire, and because of that she
sustained burn injury on her stomach, chest and face. Accused opened the door
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of house from inside and came out of the house. Kantabai followed him. The
accused ran way from the house, however, the neighbours extinguished the
fire. Her husband did not admit her in the hospital and he went away.
Thereafter, the neighbours brought her to Civil Hospital.
3 On the basis of Exhibit 53, FIR being CR No.46/2016 came to be
registered at Panchavati Police Station for the offences punishable under
Sections 307, 323, 504 and 506 of the Indian Penal Code.
4 On 27/01/2016 the deceased Kantabai was shifted to Shatabdi
hospital, where she succumbed to the injuries on 31/01/2016 and therefore
Section 302 of the Indian Penal Code was added to the registered CR
No.46/2016.
5 Initially investigation was carried out by Balaram Bhaskar Palkar
(PW 10), and subsequently investigation was handed over to Vidyasagar
Shrimanwar (PW 12), and after completion of investigation, charge-sheet came
to be filed before the concerned Judicial Magistrate First Class. As the offence
under Section 302 is triable by the Court of Sessions, the concerned Judicial
Magistrate First Class committed the same for trial before the concerned
Sessions Court. Thereafter a charge came to be framed against the Accused at
Exhibit-3, and same was explained to him, for which he pleaded not guilty and
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claimed to be tried. The defence of the accused was of total denial and that,
according to him Kantabai committed suicide. The Accused did not lead any
evidence in his defence.
6 In order to bring home the guilt of the accused and to prove that
the deceased died an unnatural death and that too homicidal one, the
prosecution has examined 12 witnesses, including Bastiram Ramchandra Kasbe
(PW-2), Dipak Baban Javle (PW-3), Dr. Shrawan Narayan Gaikwad (PW-4),
Sunil Baban Javale (PW-5), Taibai Vishwanath Pawar (PW-6), Dr. Mahesh Arun
Khairnar (PW-7), Dr. Chittaranjan Eknath Thakare (PW-8), Gitesh Shivaji
Sonawane (PW-9) and API Deshmukh (PW-11).
7 The learned counsel appearing for the Appellant/Accused
submitted that though the prosecution case is based on dying declarations and
circumstantial evidence, the prosecution has miserably failed to prove the
chain of circumstances as required by law. It is submitted that both the written
dying declarations are not consistent with each other, because they were
recorded at one and the same time. The learned counsel for the Appellant
submitted that the dying declaration though admissible in evidence cannot be
held as conclusive evidence when the same is contradicted by the evidence
placed on record. He further submitted that, the accused has right of cross
examination and, the Trial Court ought not to have lost sight of the fact that
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Kantabai i.e. the dying person making the declaration was not subjected to
cross examination. It is submitted that the presence of the son of the deceased
during recording of the dying declaration is not disputed, and therefore, the
dying declaration was not free from influence and tutoring, and recorded in
breach of procedure and therefore the said dying declarations were concocted
and tutored. He further submitted that PW-3 and PW-5 are interested
witnesses. That probably Kantabai might have caught fire accidentally and thus
sustained burn injuries, as there was a dispute between the deceased and
accused. The Trial Court did not appreciate the forensic lab report which
negates the presence of petrol hydrocarbons. The results mentioned in
Chemical Analyzer's report shows that the detection of petroleum
hydrocarbons residues on the articles are negative, and therefore, the story of
the prosecution that Kantabai died homicidal death is highly unreliable. The
Trial Court has lost sight of the fact that the accused tried to extinguish the fire
and also accompanied Kantabai in ambulance to the hospital. There is no iota
of evidence of any witness having personally seen the Appellant beating or
causing hurt to the deceased, therefore, the conviction under Section 323 of
the Indian Penal Code cannot be sustained. He lastly submits that the Sessions
Court did not appreciate the evidence on record properly. The impugned
judgment and order passed by the learned Additional Sessions Judge is not
legal and proper, and the same is required to be quashed and set aside. He
therefore submits that the Appeal may be allowed. In support of aforesaid
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submission, the learned counsel for the Appellant placed reliance upon the
ratio laid down in the following judgments in :-
1] Khushal Rao vs The State of Bombay; MANU/SC/0107/1957
2] Laxman vs State of Maharashtr; (2002) 6 SCC 710
3] Nirmala Maruti Gunjal & ors. vs The State of Maharashtra;
MANU/MH/1515/2011;
4] P. Mani v/s. State of Tamil Nadu; MANU/SC/8064/2006;
5] Vadivelu Thevar vs. The State of Madras; MANU/SC/0039/1957;
6] Ashwini Rammeher Sharma vs. The State of Maharashtra;
MANU/MH/0812/2019;
7] State of Kerala vs. Rasheed; MANU/SC/1235/2018;
8] Doongar Singh & ors. vs. The State of Rajashtran;
MANU/SC/1505/2017;
8 The learned APP appearing for the Respondent/State submits that
the prosecution has proved its case by adducing material evidence on record to
bring home the guilt of the accused. It is submitted that the written dying
declarations recorded by PW-2 and PW-11 are cogent, reliable and trustworthy.
It is therefore urged that, there is sufficient evidence and material brought on
record by the prosecution to prove that the death of the deceased is homicidal
and not accidental, and that the accused committed murder of his wife. The
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learned APP submitted that, there is corroborative evidence in the nature of
medical report and chemical analyzer's report adduced by the prosecution to
show the involvement of the accused in the alleged murder of his wife. The
impugned judgment and order passed by the learned Additional Sessions
Judge is well reasoned judgment, and needs no interference at the hands of
this Court.
9 Heard the learned counsel for the Appellant and the learned APP
for the Respondent/State. With their able assistance we have perused the notes
of evidence placed on record by the Appellant, and the reasons recorded by the
learned Additional Sessions Judge in the impugned judgment.
10 In order to prove the case, the prosecution has mainly relied upon
two written dying declarations at Exhibits - 20 and 53 and two oral dying
declarations made by deceased Kantabai Jairam Bhoye to PW-3 Dipak Baban
Javale and PW-5 Sunil Baban Javale, who are the sons of the deceased from
her first husband.
11 In order to prove the dying declarations at Exhibit 20, the
prosecution has examined PW-2 - Bastiram Ramchandra Kasbe, working as
Executive Magistrate. In his deposition before the Court, he stated that in the
year 2016 he was Circle Officer and attached to Pathardi. On 26 th January,
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2016 at 12.00 noon, he received phone call from police station outpost situate
at Civil Hospital with a request to record a dying declaration of one patient.
Accordingly he reached to the outpost and collected a letter requesting therein
to record the statement of the said patient. Thereafter he went to the hospital
and met the doctor at Civil Hospital and told him that he wants to record
statement of patient. Accordingly PW-2 met the doctor at civil hospital and
informed him that he wants to record dying declaration of the patient. The
Doctor came along with him. The Doctor examined the patient and opined
that the patient is in condition to give the statement. The witness (PW-2)
instructed the doctor and other relatives of the patient to go outside. The
patient informed her name as Kantabai Jairam Bhoye. PW-2 asked her,
whether she knows Marathi language and she answered in affirmative. PW-2
further asked Kantabai about the manner in which the incident had taken
place. She told him that when her husband and herself were in house, there
was quarrel between them. She further informed that her husband poured
petrol on her. One lamp was lighted in the house, and the petrol fallen on the
flame of the said lamp and because of which the lamp flared up. Thereafter,
her husband opened the latch and ran away from the house. While burning,
she too ran away out of the house. She further informed that she was trying to
catch her husband. Thereafter the neighbours came there and thrown blanket
on her and extinguished the fire. Thereafter neighbours called ambulance and
admitted her in civil hospital. She stated that she has complained against her
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husband Jairam. As the hands of Kantabai were burnt, the witness (PW-2)
obtained impression of right toe on her statement. The son of Kantabai namely
Suresh Baban Jawale from her first husband was present who identified the
impression. This witness (PW-2) again obtained signature of doctor at the end
of the statement, and put his signature on the said statement. He stated that
the statement was recorded as per the narration given by Kantabai, and the
contents of the said statement are true and correct.
He was extensively cross examined by the defence advocate. He
stated that it is true that Exhibit 19 bears signature of API Deshmukh attached
to Panchavati Police Station. He denied the suggestion that while recording
the statement by him of Kantabai, simultaneously Mr. Deshmukh was recording
the statement of Kantabai on different paper. He asked doctor and relatives to
go outside before recording the statement of Kantabai. He ensured that the
relatives left the said room where Kantabai was admitted. He denied the
suggestion that relatives of Kantabai were dictating him to record the
statement in a particular manner. PW-2 in his cross examination stated that, it
is mentioned in Exhibit 20 that doctor put his endorsement at 13.35 hours. He
denied the suggestion that he took 45 minutes to one hour to record the
statement. He denied the suggestion that he recorded incomplete statement of
Kantabai. He further denied the suggestion that the contents of the statement
were not read over to Kantabai. He also denied the suggestion that he has
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recorded the statement of Kantabai at the behest of her son begotten from her
first husband.
Upon considering the deposition of PW-2 - the Executive
Magistrate, in its entirety, the same inspires confidence and deserves to be
accepted.
12 The next witness examined by prosecution to prove the dying
declaration is Dr. Chhitaranjan Eknath Thakare (PW-8). In his deposition he
stated that he was attached to Nashik Civil Hospital from the year 2014 till
2018. On 26.01.2016 he was on CMO duty. He stated that one burned patient
Smt. Kantabai Jairam Bhoye was referred to him. The police approached him
and asked him whether patient was in condition to give statement. He
examined the patient and found that she was in condition to give statement.
Accordingly he has given endorsement. Thereafter Executive Magistrate
approached him and asked him about the condition of the patient as he
wanted to record her statement. He examined the patient and gave
endorsement on Exhibit 20. He stated that he found her to be in condition to
give statement. That endorsement is separately marked as Exhibit 34.
Thereafter Executive Magistrate recorded statement of Smt. Kantabai. After
the statement was over, he again examined Kantabai and again below the
statement he gave his endorsement. When the witness was shown that
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endorsement at Exhibit 20, he stated that it bears his signature and the conents
of the same are true and correct. It is separately marked as Exhibit 35. He
stated that even after her statement was over, Kantabai was mentally fit.
This witness (PW-8) was extensively cross examined by the
advocate for the defence. PW-8 admitted in his cross that, he has not provided
medical treatment to Kantabai, and he does not know what treatment was
provided to Kantabai before he had examined her. He did not recollect
whether the patient was stating that she is feeling cold. He also did not
recollect whether patient was stating that cold water should be poured upon
her. PW-8 further stated in his cross examination that in all three endorsement
it is not mentioned that patient was well-oriented and mentally fit. At the time
of recording his deposition, this witness (PW-8) did not recollect whether first
police came or the police and executive magistrate came together. He also did
not recollect whether at the time of recording of statement by police, Executive
Magistrate came at the place when police were recording statement. He
denied the suggestion that he has given all three endorsement without
examining patient. He stated that he has not brought any case papers relating
to Kantabai. He denied the suggestion that as the case papers disclosed that
Kantabai was not in position to give statement, therefore, he has not brought
medical case papers. He also denied the suggestion that because of burns,
there is hallucination. He admitted that because of burn injuries, there is
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dumbness. However, he denied the suggestion that because of dumbness,
patient is not in a position to give statement.
It is true that PW-8 has given some admissions in cross
examination which would slightly weigh in favour of the defence, however, he
denied the suggestion that he had given all three endorsements without
examining the patient. He also denied the suggestion that because of
dumbness, patient is not in a position to give statement.
The Supreme Court in the case of Laxman (supra) held that,
where it is proved by the testimony of the Magistrate that the declarant was fit
to make the statement even without examination by the doctor, the declaration
can be acted upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful nature of the declaration can
be established otherwise. It is indeed a hypertechnical view that the
certification of the doctor was to the effect that the patient is conscious and
there was no certification that the patient was in a fit state of mind especially
when the Magistrate categorically stated in his evidence indicating the
questions he had put to the patient and from the answers elicited was satisfied
that the patient was in a fit state of mind whereafter he had recorded the dying
declaration.
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13 The next witness examined by the prosecution is PW-11
Mr.Brahmadev Maruti Deshmukh. He stated in his deposition that, in the year
2016 he was attached to panchavati police station as PSI. On 26.01.2016 he
was on PSO duty from 9.00 am to 9.00 pm. During his duty hours, he received
information from the hospital that one lady is burnt and its MLC No.904.
Thereafter he himself and other staff went to civil hospital, Nashik to record
statement of lady. He asked the doctor whether lady was in condition to give
statement, and the doctor replied in affirmative. The doctor examined the lady
and put his endorsement which is at Exhibit 33. She stated that from her
earlier marriage, she had 4 sons and 1 daughter. Her one son Dipak had
begotten daughter and therefore she had been to see that daughter. Her
husband Jairam Bhoye was aggrieved and there was quarrel between them on
25.1.2016 at 5.15 pm. Jairam Bhoye took her at his house at Mhasoba Nagar.
Again on petty issue, there was quarrel between them. The petty issue was
with respect to the earlier quarrel. She further stated that her husband
brought petrol, poured upon her and ignited her and that she was brought to
civil hospital by persons residing in her neighbourhood. PW-11 stated in his
deposition that he has recorded her statement accordingly, and obtained
impression of right toe as her hands were burnt. He admitted his signature
and contents of the said statement. The said statement is at Exhibit 53. PW-11
further stated that there were burn injuries on her chest, stomach and hands.
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He issued letter to Executive Magistrate and even he has recorded statement.
Thereafter he went to the police station and lodged the offence. He stated that
as per directions of the superiors, the investigation was given to PSI B.B. Palkar
and further investigation was carried out by Mr. Palkar.
This witness (PW-11) was extensively cross examined. He denied
the suggestion that Dipak Jawale met him at Panchavati Police Station to give
information about this incident. He stated that he has not given any request
letter in writing to the doctor and, their police station received information
about 12.00 noon from the hospital. He further stated in his cross examination
that he has not collected medial reports of the patient before recording her
statement. He asked questions to Kantabai to verify her consciousness before
recording her statement. He admitted that Exhibit 53 does not mention about
the questions being put to Kantabai. However, he denied the suggestion that
Kantabai was not in proper mental state to give statement. He also denied the
suggestion that Kantabai's children have given the statement as Kantabai's
children were instructing him what to write in the statement. PW-11 further
stated that while recording statement of Kantabai he himself, his two staff,
doctor and nurse were present. He denied the suggestion that Executive
Magistrate was also recording the statement in his presence. He also denied
the suggestion that the impression of toe was taken together by himself and
Executive Magistrate. He denied further suggestion that both endorsement of
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doctor on the Exhibit 53 are taken on one and the same time. He admitted
that Exhibit 53 does not mention that Jairam ignited. He denied the
suggestion that he is depositing falsely that even Executive Magistrate
subsequently recorded statement.
Aforesaid discussed evidence of PW-11 inspires confidence. It
appears that, he independently ascertained about consciousness and
orientation of Kantabai to give such dying declaration. However, he fairly
admitted that Exhibit 53 does not mention that Jairam ignited.
14 In so far as two oral dying declarations are concerned, the
prosecution has examined PW-3 - Dipak Baban Javale and PW - 5 Sunil Baban
Javale, who are the sons of the deceased begotten from her first husband.
PW-3 Dipak Baban Javale in his deposition stated that Kantabai is
his mother and after his father expired she got married to the accused. On
24.01.2016 his mother came to his house as a daughter was begotten to him.
She stayed for night and on the next day at 5.00 to 5.30 pm Jairasm came to
our house and asked his mother as to why she is attending his house. He told
her that her sons are married and she should not meet them. He also abused
her. PW-3 stated that Jairam was annoyed and therefore caught hold of his
mother and took her to his house. He stated that Jairam returned back to his
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house at 1.00 am and told him that his mother has received burns and
admitted in civil hospital. He and his other brothers went to civil hospital and
asked his mother what had happened. His mother told him that there was
quarrel and Jairam assaulted her and poured petrol on her person and burnt
her. She further informed that sprinkles of petrol fell on burning lamp and
because of which lamp flared up and she sustained injury. She further told him
that Jairam ran away from the house by opening latch and she too followed
him. She further told him that the neighbours extinguished the fire and
admitted her in civil hospital. He stated that his mother had given statement
to police officers and thereafter to one Government Officer and during her
medical treatment, she died on 31.01.2016.
In his cross examination, he denied the suggestion that he is
deposing falsely that all the statements are recorded as per his say. He also
denied the suggestion that during the course of dispute, Kantabai was abusing
and threatening the accused that she will ignite herself. He further denied the
suggestion that the accused admitted Kantabai in the hospital and had come to
him. PW-3 stated that when he met his mother in the hospital at 2.00 am she
revealed him about the incident. He stated that in the afternoon at 12.00 of
26.01.2016 he was at Panchavati Police Station, and at that time, he had told
to police what was revealed to him by his mother. He also denied the
suggestion that his mother did not disclose anything to him.
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It is crystal clear from the evidence of PW-3 that Kantabai
disclosed about prelude of the incident and after quarrel such incident had
happened. What is important is that, Kantabai told him that sprinkles of petrol
fell on burning lamp and because of which lamp flared up and she sustained
injury.
15 The next witnesses is PW-5 Sunil Baban Javale, who is the brother
of PW-3. This witness PW-5 has narrated the same story in his examination in
chief, as deposed by his brother (PW-3) in his testimony regarding his brother
blessed with daughter and visit of his mother as also the accused to the house
of his brother. PW-5 further stated that on 26.10.2016 at 1.00 am accused
again came to Dipak's house and told that their mother is admitted at Civil
Hospital as she sustained burn injuries. Thereafter they went to civil hospital
where she was undergoing medical treatment. They asked their mother how
she sustained injuries. She told them that accused was quarreling with her and
she was even slapped. She further told that accused went outside the house,
brought petrol from the Maruti Car owned by him, latched the house from
inside and poured petrol over her. She told that the lamp before the God was
ignited, and as few drops fell on the lamp because of which the lamp flared up,
and her sari caught fire. She further told that she was shouting and caught
hold legs of Jairam. Jairam gave jerk and ran way from the house. She
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followed him. Thereafter neighbours put of the fire, procured the ambulance
and she was admitted in the hospital. PW-5 stated in his deposition that all
these facts were told by her mother to them.
In his cross examination, PW-5 stated that they asked the doctor
and nurse about condition of their mother. He denied the suggestion that their
mother has not disclosed them about the incident. He further denied the
suggestion that they instructed their mother to narrate about incident as per
their instructions and she accordingly stated so before the police. He further
denied the suggestion that they were witnessing statement given by his mother
to the police.
It is clear from reading of evidence of PW-5 that, Kantabai made
oral disclosure about the said incident and manner in which the said incident
had happened. If the evidence of PW-2, PW-11, PW-3 and PW-5 read in its
entirety, there is no slightest doubt that incident had happened and the accused
played vital role. The dying declarations (Exhibit 20 and Exhibit 53) and two
oral dying declarations have been duly proved by the prosecution, however,
there are certain mitigating circumstances in favour of the accused which
needs to be considered herein after. In that respect an evidence of PW-6 and
PW-9 is relevant.
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16 The prosecution has also examined Smt. Taibai Vishwanath Pawar
(PW-6) who is the neighbour. She stated that on 25.01.2016, after completing
her duty she returned back to her house. When she was cooking, she heard
noise coming from the house of Kantabai, and the noise was with respect to
quarrel. Again she heard loud noise and therefore she came out of the house.
Her sari was burning. Vijay, Gitesh and others put off the fire with the help of
quilt. Kantabai had sustained burn injuries on face, chest, hands and stomach.
Vijay called ambulance and Kantabai was shifted to the hospital. PW-6 further
stated that no one accompanied Kantabai in the ambulance. PW-6 further
stated that she can identify the husband of Kantabai. When fire was put off,
Jairam had come.
17 The next witness examined by prosecution is Gitesh Shivaji
Sonawane (PW-9). He stated that on 26.01.2016 there was Sai Bhandara and
therefore he was arranging stage at Mhasoba Nagar on 25.01.2016. Jairam
Bhoye came running out of his house which is near to the place of stage.
Behind him, his wife who was burning came running. Thereafter PW-9 and his
friend Vijay Lokhande put quilt on her and extinguished the fire. Ambulance
was called and she was put in ambulance and was taken to civil hospital.
18 The prosecution has also examined Dr. Shravan Narayan Gaikwad
as PW-04 who has examined the accused Jairam. PW-04 stated in his
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deposition that on 26.01.2016 he was on duty at Civil Hospital. Police came
with jairam Kisan Bhoye for his medical examination at 6.10 pm. PW-04
examined him. He had epidermal burns on both the foots. History given was
accidental burns on 25.01.2016 at about 10.15 pm. The age of injuries may be
prior to 12-24 hours. The nature of injury was simple. Doctor (PW-4) noted
the information in MLC registered and thereafter issued certificate. In his cross
examination PW-4 stated that such injuries can take place while saving other
person.
19 The prosecution has examined Investigating Officer Balram
Bhaskar Palkar as PW-10. He stated that on 26.01.2016 investigation of CR
No.46/2016 for the offence punishable u/s.307, 323, 504, 506 of IPC wass
given to him. Thereafter he visited the spot, carried out spot panchanama in
presence of two panchas, at the spot he seized one burnt lamp, one bottle
containing petrol, ladies slipper which was half burn and one cloth. These
articles were seized. He arrested the accused Bhoye. The accused had
received burn injuries on his legs, therefore, he was given treatment. Even the
clothes of accused were burn. He seized those clothes in presence of panchas.
On 26.01.2016 and 17.01.2016 he recorded the statement of witnesses. He
stated that on 27.01.2016 the son of the injured produced clothese of the
injured in police station. The clothes were one saree and one quilt. These
articles were seized in presence of panchas and prepared panchanama. He
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further stated that he came to know on 31.01.2016 that injured Kantabai died
and he added Section 302 of IPC to the offence and submitted his report to the
JMFC.
In his cross examination PW-10 stated that twice he had visited
civil hospital after investigation was handed over to him. He took the accused
for medical to civil hospital on 26/01/2016 On 27/01/2016 he went to civil
hospital to see injured. The injured was kept in burn ward.
20 After completion of recording of evidence, the Trial Court has
recorded the statement of the Appellant/Accused under Section 313 of the
Criminal Procedure. In the context of the deposition of PW-3 Dipak Javale,
Question No.13 was put to the Appellant/Accused that, PW-3 in his deposition
has stated that Jairam was annoyed and therefore caught hold of his mother
and took her to his house, and Jairam returned back to his house at 1.00 am
and told him that his mother has received burns and admitted in civil hospital.
In his reply to the said question, the Appellant/Accused answered that "caught
hold the hand and dragged, is false. I went to inform that Kantabai is burnt in
night". Further question No.14 is also put to the Appellant/Accused that, PW-3
in his deposition has stated that he and his other brothers went to civil hospital
and asked his mother what had happened, and she told him that out of
quarrel, Jairam assaulted her and poured petrol on her and burnt her. The
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Appellant/Accused replied to this question that it is false. In the statement
under Section 313 of the Criminal Procedure Code, the trial Court has also put
question No.37 to the Appellant/Accused in the context of the deposition of
Investigating Officer Balram Bhaskar Palkar (PW-10) that, it has come in the
evidence of PW-10 that you had received burn injuries on your legs, therefore,
you were given treatment, and letter (Exhibit 41) was given to Medical Officer.
The Appellant/Accused answered the said question No.37 that, "it is true". So
also trial Court has also put Question No.38 to the Appellant/Accused that,
even your clothes were burned, and your those clothes were seized in presence
of panchas under panchanama (Exhibit 42). The Appellant/Accused answered
the said question No.38 that, "it is true"
21 Column 17 of Post Mortem Notes (Exhibit 76) mentions the
percentage of burn injuries to various parts of the body. The cause of the death
recorded in the post-mortem report (Exhibit 76) by the doctor is, "shock due to
flame Burns (59%).
22 In so far as Chemical Analyzer's report (Exhibit 60) is concerned,
articles seized during the course of investigation were sent to Chemical
Analyzer. Under the heading Results of Analysis, the CA has recorded that "the
results of the tests for the detection of petroleum hydrocarbons residue in/on
exhibit nos. (1), (2), (3), (4), (5), (6) and (7) are negative." However, this
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fact in our view would not affect the prosecution case in view of other
convincing evidence on record.
23 So far as presence of the Appellant/Accused at the time of incident
is concerned, the defence does not dispute the said fact. It is also not in
dispute that there was quarrel between the Appellant/Accused and the
deceased Kantabai. There is cogent and reliable material available on record to
show that on 25/01/2016 the accused had come to the house of Dipak (PW-3)
and taken away Kantabai to his house, and that there was quarrel going on
between the accused and Kantabai in their house at Mhasoba Nagar, and that
the witnesses PW-6 and PW-9 stated about the presence of the accused and the
burn injuries received by Kantabai. It is required to be noted that the
Appellant/Accused admitted in his statement under Section 313 of the
Criminal Procedure that he received injuries to his legs and that the treatment
given to him.
24 Considering the evidence and the material brought on record by
the prosecution, it is established that Kantabai had sustained burn injuries
because of which she died. The case of the prosecution is based upon two
written dying declarations recorded by Executive Magistrate (PW-2) and API
Deshmukh (PW-11) and the oral dying declarations given by deceased
Kantabai to her sons (PW-3) and (PW-5). To corroborate the fact that there was
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a quarrel between the deceased and the accused and that the deceased
received burn injuries, the prosecution led the evidence of Taibai (PW-6) who
is the neighbour. She stated that she heard noise coming from the house of
Kantabai, and the noise was with respect to quarrel. PW-6 also stated that she
saw that the sari of deceased was burning and that Kantabai had sustained
burn injuries on face, chest, hands and stomach. Another witness Gitesh (PW-
9) who has stated that he saw Jairam Bhoye (the accused) came running out of
his house and behind him, his wife who was burning came running.
25 In the light of discussion in foregoing paragraphs there is no doubt
that Appellant was responsible for death of Kantabai. However, there was no
premeditation or planning and as stated by PW-6 and PW-9 they heard the
quarrel, and in the said quarrel, as stated by Kantabai, accused committed an
offence. Doctor (PW-4), who examined the accused deposed that, he noticed
burn injuries on the legs of the accused. Even Investigating Officer has stated
so. The prosecution witness (PW-9) in his cross examination stated that,
accused went along with them in the hospital carrying Kantabai in van.
Therefore, taking over all view of the matter we are of the view that, the
Appellant/Accused would not have intended to inflict the injuries which
Kantabai sustained on account of his act. Therefore, we are persuaded to bring
down the offence from first degree murder to culpable homicide not
amounting to murder.
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26 We, therefore, alter the conviction from Section 302 of the Indian
Penal Code to Section 304 Part II of the Indian Penal Code, and we impose a
sentence of rigorous imprisonment of 10 (ten) years on the Appellant/Accused.
Hence the Appeal is partly allowed and disposed of accordingly.
27 In view of disposal of Appeal, Criminal Interim Application
No.1440 of 2021 does not survive and the same to stand disposed of as such.
(N. R. BORKAR, J) (S. S. SHINDE, J)
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