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2008 DIGILAW 300 (BOM)

Gajanan Wasudeo Gawade v. State of Maharashtra

2008-02-22

A.B.CHAUDHARI, A.P.LAVANDE

body2008
Per A.P.Lavande, J.: - By this appeal, the appellant (hereinafter referred to as .the accused.) takes exception to the Judgment and order dated 31.1.2003 passed by the 3rd Additional Sessions Judge, Chandrapur in Sessions Trial 2 No. 43/2002 convicting the accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for 3 months. 2. In nutshell, the prosecution case as under: On 12.1.2002, A.S.I. Kadarkhan who was working at the outpost defence under Bhadrawati Police Station received information that one lady in village Piparbodi was burnt at the house. He along with the Police Constable Nagarale went to the spot and noticed that one metador of Defence Factory had come on the spot. Annapurna wife of accused Gajanan was fully burnt. Kadarkhan with the help of other persons brought Annapurna in Rural Hospital, Bhadrawati in the said metador. Kadarkhan issued letter to the Medical Officer making inquiry whether Annapurna was in a position to give statement. Medical Officer certified that she was fit to give statement. Thereafter, Kadarkhan recorded the statement of Annapurna who stated that some ladies were depositing Rs. 20/- each as Bhisi amount and so she asked her husband for the amount of Rs. 20/- whereupon the accused got annoyed, poured kerosene on her person and set her on fire. The statement of Annapurna is at Exh. 29. Since the health of Annapurna was deteriorating the Medical Officer referred her to the General Hospital, Chandrapur for further medical treatment. Kadarkhan gave the statement of Annapurna in Police Station, Bhadrawati pursuant to which Crime No. 4/02 under Section 307 of the Indian Penal Code was registered against the accused. 3. On 13.1.2002 at about 00.30 hours the accused himself went to the Police Station, Bhadrawati. His hands were burnt and clothes were smelling of kerosene. The accused was arrested vide arrest panchanama Exh. 18 and his clothes were seized under the panchanama Exh. 17. The accused was referred for medical examination. Thereafter, P.I., Sharma proceeded to the spot and conducted spot panchanama Exh. 11. His hands were burnt and clothes were smelling of kerosene. The accused was arrested vide arrest panchanama Exh. 18 and his clothes were seized under the panchanama Exh. 17. The accused was referred for medical examination. Thereafter, P.I., Sharma proceeded to the spot and conducted spot panchanama Exh. 11. He also seized kerosene can and a match box with sticks, cover, one burnt stick of match box, one woolen shawl, pieces of burnt clothes, pieces of burnt sari and sample earth from the spot under the seizure panchanama Exh.12. The Investigating Officer gave a letter to the Executive Magistrate, Bhadrawati for recording statement of Annapurna. The Executive Magistrate Mr. Chandra Harshan Chahande (P.W.10) recorded the statement of Annapurnabai (Exh. 30) and forwarded the same to P.S.O. Bhadrawati. The Investigating Officer recorded the statement of several witnesses. On 19.1.2002 Annapurnabai expired in General Hospital, Chandrapur. Thereafter, Section 302 of the Indian Penal Code was added. All muddemal properties which were seized were sent to the office of the Chemical Analyser at Nagpur. The inquest panchanama was also conducted on the dead body of Annapurna and the body was sent for post-mortem examination which was conducted by Dr. Sarita Hajare. Dr. Sarita Hajare submitted post-mortem report Exh.33. After completion of the investigation charge sheet was filed against the accused under Section 302 of the Indian Penal Code in the Court of Judicial Magistrate, First Class, Bhadrawati. Since the offence was exclusively triable by the Court of Sessions the case was committed to the Sessions Court. 4. In Sessions Case No. 43/2002 the prosecution examined 11 witnesses and produced several documents. After the statement of the accused was recorded under Section 313 of Cr.P.C. the accused submitted written statement Exh. 56 A. The accused did not lead any defence evidence. 5. The trial Court upon appreciation of the evidence led by the prosecution held that the offence punishable under Section 302 of the Indian Penal Code was made out against the accused and consequently convicted and sentenced the accused as above. 6. We have heard Mr. Daga, learned counsel for the appellant accused and Mr. Mujumdar, learned A.P.P. for the respondent State. 7. Mr. Daga submitted that both the dying declarations (Exh. 29 and 30) are not truthful and as such they do not inspire confidence since both these dying declarations are recorded at one and the same time. 6. We have heard Mr. Daga, learned counsel for the appellant accused and Mr. Mujumdar, learned A.P.P. for the respondent State. 7. Mr. Daga submitted that both the dying declarations (Exh. 29 and 30) are not truthful and as such they do not inspire confidence since both these dying declarations are recorded at one and the same time. He further submitted that having regard to the evidence of prosecution witnesses, more particularly of P.W. 7 Dr. Ramteke and P.W.9 Kadarkhan and P.W. 10 Shri Chahande it is difficult to accept that the two dying declarations were recorded as claimed by the prosecution. In so far as the dying declaration recorded by Kadarkhan is concerned Mr. Daga submitted that same cannot be relied upon inasmuch as the dying declaration clearly discloses that leading questions were asked by Kadarkhan while recording the dying declaration. He further submitted that there is inter se variation between the testimonies of P.W. 8 Dr. Sarita and P.W. 10 Dr. Chandra Harshan which creates doubt about the authenticity of the dying declaration Exh. 30. He further submitted that the dying declaration Exh. 30 does not inspire confidence since the scratch mark (Nahi) on Exh. 30 has not been made by Doctor but it has been made by P.W.10 Chandra Harshan which creates suspicion about the authenticity of the dying declaration. He further submitted that the seizure memo Exh. 17 in respect of the clothes of the accused does not inspire confidence since the evidence of P.W.3 Ashok Mankar is neither cogent nor inspires confidence. He, therefore, submitted that the accused deserves to be given benefit of doubt and acquitted of the offence punishable under Section 302 of the Indian Penal Code. Mr. Daga, in support of his submissions, placed reliance on the following Judgment in Sajjan Maroti Pakhare and another vs. State of Maharashtra (2007 All MR Cri. 3518). 8. Per contra, Mr. Mujumdar, the learned A.P.P. submitted that both the dying declarations are truthful and, therefore, inspire confidence. According to Mr. Mujumdar, the trial Court was justified in placing reliance upon the two dying declarations and holding that both these dying declarations were truthful and as such could be relied upon. 3518). 8. Per contra, Mr. Mujumdar, the learned A.P.P. submitted that both the dying declarations are truthful and, therefore, inspire confidence. According to Mr. Mujumdar, the trial Court was justified in placing reliance upon the two dying declarations and holding that both these dying declarations were truthful and as such could be relied upon. The learned A.P.P. further submitted that two dying declarations made by the deceased stand corroborated by oral dying declaration made to her mother P.W. 6 Vimal Mangam who visited the spot soon after she came to know that her daughter was burnt. According to Mr. Mujumdar the conduct of the accused soon after the deceased clearly proves his complicity in the commission of murder of his wife by setting her on fire after pouring kerosene. He further submitted that the seizure memo (Exh. 17) in respect of the clothes of the accused has been duly proved and the C.A. report (Exh. 47) establishes that the clothes of the accused at the time of his arrest had kerosene on them. This fact according to Mr. Mujumdar the learned A.P.P clearly belies the version of the accused in his written statement that his wife caught fire while she was cooking with clothes smeared with kerosene. According to Mr. Mujumdar the spot panchanama Exh. 11 establishes that the food was ready which belies the version of the accused that his wife caught fire while she was cooking. Lastly, Mr. Mujumdar submitted that the evidence on record proves beyond reasonable doubt the commission of murder of Annapurna by the accused by pouring kerosene and setting her on fire. 9. We have carefully considered the submissions made by the learned counsel for the appellant accused and learned A.P.P. and perused the records. 10. There is no dispute that deceased Annapurna died on account of burn injuries suffered by her on 12.1.2002. The evidence of P.W.8 Dr. Sarita Hajare who conducted post-mortem on the dead body of Annapurna establishes that deceased Annapurna had suffered 99% burn injuries on the different parts of her body. She deposed that she found injuries on different parts of the body of Annapurna as mentioned in column 17 of the post-mortem report. She further deposed that all the injuries were ante mortem and cause of death was shock due to 99% burn injuries. She confirmed the contents of post-mortem report Exh.33 as correct. She deposed that she found injuries on different parts of the body of Annapurna as mentioned in column 17 of the post-mortem report. She further deposed that all the injuries were ante mortem and cause of death was shock due to 99% burn injuries. She confirmed the contents of post-mortem report Exh.33 as correct. Nothing tangible has been brought in the cross-examination of the witnesses. The accused has also not seriously disputed that the death of Annapurna was on account of burn injuries. However, according to the accused, she sustained burn injuries accidentally when she sat down to cook with clothes smeared with kerosene. 11. The next question which arises for consideration is whether death of Annapurna is homicidal as claimed by the prosecution or accidental as claimed by the accused. The accused has not seriously disputed his presence in the house when his wife Annapurna sustained burn injuries. It is the case of the accused that Annapurna herself poured kerosene on her person on account of petty quarrel between her and accused and thereafter while she sat down for cooking she caught fire and received burns and thereafter he extinguished fire and went to bring an auto for taking her to hospital. Undisputedly at the time when Annapurna caught fire except the accused and Annapurna nobody else was present in the house. Therefore, the accused owes an explanation as to how his wife caught fire. No doubt the burden of proving that it was the accused who committed the offence is on the prosecution and that burden never shifts to the accused but when the death of wife of a person takes place in the house where only she and her husband are present, the husband has to explain the circumstances which resulted in her death as has been held by the Apex Court in State of Rajasthan vs. Parthu (2007 Cr. L.J. 4722 and Rajkumar Prasad Tamarkar vs. State of Bihar and another (2007 Cr. L.J., 1174. Since it is the case of the prosecution that the accused set his wife ablaze by pouring kerosene on her person whereas it is the case of the accused that deceased poured kerosene on herself and caught fire accidentally while cooking, it is necessary to find out which of the version is more probable having regard to the evidence led by the prosecution. 12. 12. To prove the complicity of the accused in commission of murder of his wife Annapurnabai the prosecution has relied upon the following circumstances. i) At the time of the incident only accused and deceased were present in the house. ii) Two dying declarations Exh. 29 and Exh. 30 recorded by P.W.9 Kadarkhan and P.W. 10 Shri Chahande Executive Magistrate. iii) The clothes worn by the accused which were seized at the Police Station vide seizure panchnama Exh. 17 had kerosene residues on them as per the C. A. Report Exh. 54. iv) The spot panchanama; v) The oral dying declaration made by the deceased to her mother P.W. 6 Vimal Mangam; vi) The conduct of the accused soon after the incident. 13. Before considering whether two written dying declarations can be relied upon in support of the prosecution case we would consider whether other circumstances relied upon by the prosecution have been proved. There is no dispute that there is no direct evidence in the present case and the case is based on circumstantial evidence. 14. In so far as the first circumstance is concerned having regard to the cross-examination of the witnesses and the written statement (Exh. 56 A) filed by the accused it is clear that the accused does not dispute that his wife caught fire when only he and the deceased were in the house. Therefore, we have no hesitation to hold that the prosecution has been able to prove first circumstance. 15. The prosecution has relied upon two dying declarations; Exh. 29 recorded by P.W.9 Kadarkhan and Exh. 30 recorded by P.W. 10 Chandraharshan Chahande. To prove the first dying declaration (Exh. 29) the prosecution has relied upon the evidence of P.W. 7 Dr. Bandu Ramteke and P.W. 9 Kadarkhan. P.W.9 Kadarkhan claims to have recorded the dying declaration (Exh. 29) on 12.1.2002 after the Doctor gave endorsement on the memo (Exh. 27) that Annapurna was fit to give statement. He claims that Annapurna was taken in the hospital at Bhadrawati at about 10.00 p.m. and Doctor was given memo (Exh. 27) at about 10.05 p.m. and about 10 to 15 minutes' time was consumed for recording the statement. The statement of Annapurna was completed at about 10.20 p.m.. He admitted that in Exhs. 27 and 29 Doctor has mentioned the time as 10.00 p.m.. 27) at about 10.05 p.m. and about 10 to 15 minutes' time was consumed for recording the statement. The statement of Annapurna was completed at about 10.20 p.m.. He admitted that in Exhs. 27 and 29 Doctor has mentioned the time as 10.00 p.m.. He could not tell whether Doctor put his signature at one time on Exhs. 27, 28 and 29. He also admitted that he had asked Annapurna whether her husband had burnt her. We are unable to place reliance upon this dying declaration since Kadarkhan was not entitled to ask leading questions at the time of recording dying declaration. On this count only the said dying declaration cannot be accepted as truthful and inspiring confidence. In so far as the second dying declaration Exh. 30 recorded by the Executive Magistrate P.W. 10 Chandraharshan is concerned, Chandraharshan deposed that before recording the statement of Annapurna he asked Doctor to certify whether the patient was fit to give statement and after Doctor certified he recorded the dying declaration in question answer form. The said dying declaration no doubt implicates the accused as the person who poured kerosene on Annapurna and set her ablaze by match stick. In crossexamination the witness admitted in Exh. 30 the word 'Nahi' in mrutupurva bayan denyas paatra aahe/nahi. In Exh. 30 the word 'nahi' was scratched by him. He also admitted that in Exh. 30 Doctor did not mention about physical and mental health of the patient. He also admitted that below the first signature on the top Doctor has mentioned the time as 10.00 p.m.. He stated that recording of the statement of Annapurna was started at 10 p.m. and for recording whole statement time of 7 minutes was consumed. He also admitted that he mentioned time 10 p.m. about completion of statement and he could not give any reason as to why he put time of 10 a.m. as a time of completion of the statement. He also admitted that Doctor put his second signature and put the time as 10 p.m. and he had seen the signature, time and date which Doctor had written on Exh.30. However, he did not ask the Doctor as to why he put the said time on the statement. He further stated that he did not mention while recording the statement that Doctor was present. However, he did not ask the Doctor as to why he put the said time on the statement. He further stated that he did not mention while recording the statement that Doctor was present. He further stated that while recording the statement only he and the patient were present. Upon close scrutiny we find it difficult to accept the dying declaration recorded by P.W. 10 Chandraharshan since P.W. 9 Kadarkhan also claimed that he also recorded the dying declaration at 10 p.m.. Moreover, P.W. 7 Doctor Ramteke claims that he was present when the Executive Magistrate recorded the statement of the deceased whereas the Executive Magistrate is certain that except he and the patient nobody was present at the time of recording of the statement of the deceased. Having regard to this circumstance we also find it difficult to place implicit reliance on the dying declaration Exh.30 recorded by the Executive Magistrate. Therefore, we are unable to accept the dying declarations Exh. 29 and 30 as truthful and inspiring confidence. Thus, the prosecution has not been able to prove second dying declaration relied upon in support of the prosecution case. 16. In so far as the third circumstance is concerned, the prosecution has relied upon the evidence of P.W. 3 Ashok Mankar and P.W.14 P.I. Sharma. P.W. 3 Ashok was permitted to be cross-examined and in crossexamination he supported the prosecution case that the clothes of the accused having smell of kerosene were seized by the police on 13.1.2002. The clothes of the accused viz. pant, white duppatta and sandow baniyan were seized. However, in the cross-examination of the witness he stated that he can not tell the date, day and year of the panchanama and he was called by the police and asked to sign on the panchanama and at that time the seized clothes were with the police constable and the police told him that the clothes were seized from accused Gajanan. He further stated that at that time he had not seen the accused. P.W. 11 Radhakrishna claims that on 13.1.2002 at about 00.300 hours he arrested the accused vide arrest panchanama Exh. 18. He also seized the clothes viz. full pant, sandow baniyan and duppatta which were on the body of the accused vide seizure panchanama (Exh.17). According to the witness, these clothes were having smell of kerosene. P.W. 11 Radhakrishna claims that on 13.1.2002 at about 00.300 hours he arrested the accused vide arrest panchanama Exh. 18. He also seized the clothes viz. full pant, sandow baniyan and duppatta which were on the body of the accused vide seizure panchanama (Exh.17). According to the witness, these clothes were having smell of kerosene. In the cross-examination the fact that the witness arrested the accused vide arrest panchanama Exh. 18 has not even been disputed. In view of the cogent evidence of the Investigating Officer P.W.11 Shri Sharma we have no hesitation to hold that the accused was arrested vide arrest panchnama Exh. 18 when he himself surrendered before the Police Station, Bhadrawati and that his clothes which were having smell of kerosene were seized vide Exh. 17. The absence of time and place in Exh.17 is not fatal inasmuch as in column no. 6 of the said panchnama date and hour of seizure has been mentioned as 13.1.2002 at 00.45 hours. Since the evidence of the Investigating Officer is corroborated by arrest panchanma and seizure panchanama. We have no hesitation to accept that the accused himself came to Bhadrawati Police Station at 00.30 hours and that his clothes having smell of kerosene were seized under seizure memo Exh. 17. C.A. Report Exh. 47 discloses that all the three clothes which were seized from the person of the accused had residues of kerosene on them. Thus, the prosecution has been able to prove that when the accused was arrested on 13.1.2002 at 00.30 hours at the Police Station his clothes had kerosene on them. 17. We shall now deal with the fourth circumstance relied upon by the prosecution i.e. spot panchanama. The spot panchanama Exh.11 has been proved by P.W. 1 Dadaji Shedmake and by P.W. 11 Sharma. The evidence of the panch and the Investigating Officer clearly discloses that when the spot panchanama was conducted in the house where incident has taken place several items like cooked vegetable, chapatis and vegetables were found. The spot panchanama clearly gives an indication that the food for dinner was prepared. This fact assumes importance in the light of the defence taken by the accused that the deceased caught fire when she sat down to cook. Since the food for the dinner was cooked the question of deceased sitting for cooking would not arise. 18. The spot panchanama clearly gives an indication that the food for dinner was prepared. This fact assumes importance in the light of the defence taken by the accused that the deceased caught fire when she sat down to cook. Since the food for the dinner was cooked the question of deceased sitting for cooking would not arise. 18. The fifth circumstance relied upon by the prosecution is oral dying declaration made by the deceased to her mother. P.W. 6 Vimal Mangum mother of deceased deposed that the accused after about 4 to 5 months after his marriage with her daughter Annapurna started residing in her house. The accused was doing labour work. Gajajan and Annapurnabai had one daughter Ashvin who was about 4 years old at the time when her statement was recorded. She further deposed that at the time of the incident she was working as maid servant in the house of one Ajay Mujumdar. On that day at 8.30 to 9.00 p.m. Shankar her nephew came to her and told her that Gajanan had burnt Annapurna by pouring kerosene. She came to the house. At that time Annapurna who was totally burnt was kept in the jeep. She also sat in the jeep and Annapurna was taken to the hospital at Bhadrawati. She asked her daughter why she has done this to which she told that Gajanan burnt her. She was discharged from the Hospital at Bhadrawati and taken to the Government Hospital, Chandrapur where she was alive for 6 days and thereafter died in the said hospital on 7th day. In cross-examination she stated that Gajanan used to work some times and he was facing monetary crisis. The witness denied that Annapurna shouted but later she stated that Annapurna was shouting. She stated that she did not know whether injection was given to her in the hospital. She waited in the hospital about 2 hours and she was crying outside the hospital and she did not come near Annapurna. She did not have talk with Annapurna and her treatment was going on. 19. The next circumstance relied by the prosecution is the conduct of the accused after commission of the crime. She waited in the hospital about 2 hours and she was crying outside the hospital and she did not come near Annapurna. She did not have talk with Annapurna and her treatment was going on. 19. The next circumstance relied by the prosecution is the conduct of the accused after commission of the crime. According to the accused after extinguishing fire on the person of his wife he went to bring an auto for taking her to the hospital but he did not get auto and in the meantime the police came and took her to the hospital. It has been proved by the prosecution that thereafter the accused went to the Police Station at 00.30 hours where he was arrested. The conduct of the accused in straight way going to the Police Station and not going to the hospital where according to the accused his wife was taken is unnatural conduct. If the version given by the accused that his wife caught fire accidentally, is correct, the normal conduct of the accused would have been to rush to the hospital and not to go to the Police Station directly and that too after about three hours. If the accused had really come back to the house surely he would have come to know that his wife was taken to the hospital and there was absolutely no reason for the accused to go to the police station. 20. A close scrutiny of the evidence of this witness clearly establishes that soon after she was informed that her daughter was burnt she went to her house and at that time Annapurna was in the jeep in a burnt condition. She accompanied her daughter and on the way she asked her as to why she had done this whereupon she told that it was the accused who burnt her. The oral dying declaration made by Annapurna to her mother has not been shaken in the cross-examination. The accused has not disputed that the witness came to the spot and accompanied Annapurna to the hospital. This being the position, we have no hesitation to accept that the deceased made oral dying declaration to her mother which was quite natural. The oral dying declaration made by Annapurna to her mother has not been shaken in the cross-examination. The accused has not disputed that the witness came to the spot and accompanied Annapurna to the hospital. This being the position, we have no hesitation to accept that the deceased made oral dying declaration to her mother which was quite natural. The statement of this witness in the cross-examination that she did not have talk with Annapurna can not be taken out of context and it must be construed that she did not have talk with her daughter when her treatment was going on in the hospital because she was outside the hospital crying for about 2 hours. Thus, the prosecution has been able to prove the oral dying declaration made by the deceased to her mother Vimal. 21. Thus, upon re-appreciation of the entire evidence led by the prosecution we are satisfied that all the circumstances relied upon by the prosecution which are mentioned in para no. 12 above, except the two dying declarations, have been proved by the prosecution. We are also satisfied that all the circumstances taken cumulatively form the complete chain so as to conclusively prove that it is the accused and the accused alone who committed murder of his wife by pouring kerosene on her and setting her on fire. In our considered opinion the text laid down by the Apex Court in various Judgments which are to be followed in a case based on circumstantial evidence are satisfied in the present case. Therefore, the prosecution has been able to prove the offence punishable under section 302 of the Indian Penal Code against the accused. 22. In so far as the Judgment in Sajjan Maroti Pakhare and another vs. State of Maharashtra (2007 ALL MR (Cri), 3518 is concerned the same does not help the accused inasmuch as in the said case in the two dying declarations two different versions are given by the deceased and in the present case we have not accepted both the dying declarations as truthful and reliable. 23. For the reasons aforesaid we find no merit in the present appeal. Hence, the appeal is dismissed. Appeal dismissed.