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2004 DIGILAW 152 (BOM)

Mahadev Balu Giri v. State of Maharashtra

2004-02-06

P.V.KAKADE, V.G.PALSHIKAR

body2004
JUDGMENT - PALSHIKAR V.G., J.:—Being aggrieved by the judgment and order of conviction passed on 24th March, 1999 by the III Additional Sessions Judge, Kolhapur in Sessions Case No. 130 of 1998 convicting the accused under section 302 of I.P.C. and sentencing him to suffer R.I. for life, the appellant has filed this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by the learned Counsel appearing on behalf of the accused/appellant. 2.With the assistance of the learned Counsel for the defence and the learned Prosecutor we have scrutinised the evidence and have reappreciated the evidence on record. 3.The prosecution story as revealed by the reappreciation of the evidence stated briefly is that the accused/appellant was married to one Mangal in 1996. After the marriage the appellant was in the habit of asking for certain gifts from him in-laws and on failure to fulfil and demand he used to ill-treat Mangal his wife. 4.On 5th May, 1998 around 8 Oclock in the morning the appellant was quarrelling with his wife Mangal and poured kerosene on her body and set her on fire, as a result which she received extensive burns and was hospitalised where her dying declaration was recorded as per law. Accused was arrested and after investigation he was prosecuted as aforesaid and convicted to suffer R.I. for life. It is this judgment and order which is assailed in this appeal. 5.The learned Counsel appearing on behalf of the accused/appellant contended that the dying declaration was not satisfactory. It was not recorded in accordance with the law. There are serious contradictions in the testimony of the witnesses, who came on the scene of offence immediately after its occurrence. The main contention of the learned Counsel was that the accused himself was trying to drowse the fire and admitted the victim to the hospital. Reliance was placed on certain documents, which shows that the accused was the person who admitted his wife to the hospital. Relying on two judgments of the Supreme Court, he contended that the accused is entitled to acquittal as the fact of his trying to drowse the fire to save his wife creates a doubt about the prosecution version that the accused poured kerosene and set her on fire. Relying on two judgments of the Supreme Court, he contended that the accused is entitled to acquittal as the fact of his trying to drowse the fire to save his wife creates a doubt about the prosecution version that the accused poured kerosene and set her on fire. Such is the ratio, according to the learned Counsel, in the judgment of (State of Gujarat v. Mohan Bhai Raghbhai Patel)1, reported in 1990 Cri.L.J. 1462. Similarly in the case of (State of Rajasthan v. Prithvi Raj)2, reported in 1995(3) Crimes 260, the Supreme Court has observed that in such circumstances benefit of doubt must go to the accused. We will examine this contention in the light of the evidence as led by the prosecution. 6.P.W. No. 1 is the person, who was called as a panch by the police for witnessing execution of the spot panchanama. However he resigned from his statement made under section 161 of the Cri.P.C. and therefore was cross-examined by the prosecution. He however has in his examination-in-chief proved Exh. 12 which is panchnama. A perusal of Exh. 12 discloses that at the scene of offence one Ashok had told the panchas as to what happened at the scene of offence and they recorded it in the panchanama. According to this panchanama when Ashok was standing in his door, he heard shouts from the house of accused. He therefore kicked the door opened and found Mangal set on fire and lying on the floor and saw the accused sitting on a cot. The said Ashok and two others threw water on the body of Mangal and took her to the hospital. This panchanama nowhere discloses existence of any cooking stove of any kind. A tin of kerosene oil was seized, so also a match box. Exh. 12 therefore gives a detailed description as to what exactly transpired on the date of incident. 7.P.W. 2 Raju has also turned hostile. He has stated that he saw the wife of the accused in burnt condition. He was cross-examined by the prosecution. Even if he has declared hostile he admits to have seen the body of Mangal on fire and saw her being taken to the hospital. 8.P.W. 3 is Ashok who came on the scene of offence immediately after the incident. He has stated that he saw the wife of the accused in burnt condition. He was cross-examined by the prosecution. Even if he has declared hostile he admits to have seen the body of Mangal on fire and saw her being taken to the hospital. 8.P.W. 3 is Ashok who came on the scene of offence immediately after the incident. He states that on the day of incident he was cleaning his Bajaj scooter in front of his house, when he heard quarrel between accused and his wife from his house. He saw the accused beating his wife with a belt and therefore he took away the belt at the hands of the accused tried to pacify them. The accused again bet his wife and she then stood up and went home. This witness again started cleaning the scooter. Within few minutes of the accused and the wife entered in the house, he saw smoke coming out of the house of the accused. He therefore went towards the door but found it was closed from inside and therefore kicked it and opened and went inside and saw the victim Mangal, wife of the accused in a burnt condition lying on the ground. He saw the accused sitting on the cot. He then poured water on the body, extinguished the fire, called a autorickshaw and alongwith the accused took his wife to the hospital. He has been duly cross-examined by the defence and the cross-examination does not reveal anything which will require his testimony being disbelieved. 9.There are therefore witnesses examined to justify the ill treatment to the victim by the accused prior to the incident. The doctor is also examined. He proves that the death was caused due to severe burn injury. 10.All these evidence appearing against the accused was put to him and in his examination under section 313 Cri.P.C. he states as under : "There was no quarrel between me and my wife Mangal at any time. We were happily cohabiting. On the day of incident I had gone to answer the call of nature in the morning time. That time, my wife Mangal was giving flames to stove for preparation of tea. I heard her cries at the place of answering the call of the nature. From that place I went running and saw due to the burst of stove Mangal was burning. That time, my wife Mangal was giving flames to stove for preparation of tea. I heard her cries at the place of answering the call of the nature. From that place I went running and saw due to the burst of stove Mangal was burning. I went to extinguish her and sustained burn injury to my right hand. I got admitted Mangal in C.P.R. hospital, Kolhapur. After her death my father-in-law got annoyed and filed false case." The defence of the accused was therefore that he was not in the house and was out for answering the call of nature and on seeing the fire, came to the house and saw that due to burst of stove Mangal was burnt. He claims that he tried to extinguish the fire and in the process sustained injuries to his hand. He then claims that he admitted his wife to the hospital and his father-in-law got annoyed and made a false case. 11.This statement of the accused obviously militates against the evidence on record. He claims that his wife got fired by burst of stove. But the panchanama reveals that there was no stove at the scene of occurrence. He claims to have burning injury in his hand while saving his wife. That injuries are however not established. P.W. 3 in categorical manner states that he saw the accused sitting in a cot when he kicked and opened the door. There is nothing in the cross-examination of P.W. 3 to suggest that this was a false statement. In the face of such evidence it cannot be said that the accused has tried to save his wife in any manner. In both the Supreme Court judgment relied upon by the learned Counsel the fact of accused tried to drowse the fire was proved. Thus these judgments are of no use to the accused. In our opinion, the judgment and order of conviction as recorded by the learned trial Judge is right. He has properly marshalled the fact and has come to the correct conclusion. We see no reason to interfere with those findings. We therefore affirm the finding and as a result of which we dismiss the appeal. Accordingly appeal is dismissed. Appeal dismissed. -----