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2008 DIGILAW 345 (BOM)

Dhanraj Motiram Gavande v. State of Maharashtra

2008-03-03

A.B.CHAUDHARI, A.H.JOSHI

body2008
ORAL JUDGMENT (PER : A.B. CHAUDHARI, J.) 1. Being aggrieved by judgment and order of conviction and sentence passed on 4.2.2003 by the Additional Sessions Judge, Amravati in Session Trial No.111/2002, the appellant, named above, has preferred this appeal. With the assistance of learned Counsel for the appellant and learned A.P.P. for the respondent, we have gone through the entire evidence that was adduced before the Trial Court, so also the documents. 2. Deceased Sadhna wife of Dhanraj Gawande, the appellant, was admitted in General Hospital, Amravati in burnt condition on 8.3.2002. Rajabhau Joshi (P.W.4) Executive Magistrate recorded her dying declaration at Exh.28 and forwarded the same to Police Station Nandgaon Peth, on the basis of which offence under Section 307 of Indian Penal Code came to be registered. 3. On 9.3.2002 P.S.I. Shoukat Ali attached to Nandgaon Police Station visited the victim Sadhna and recorded her statement. Thereafter, he proceeded to record spot panchanama and also attached burnt pieces of blouse and brassiere lying on the ground in the house, so also pieces of bangles and plastic can of kerosene with some other articles. On the next day the accused was arrested and his clothes in half burnt condition were also seized and, therefore, P.W.5 Shoukat Ali drew inquest panchanama. Post mortem was conducted which revealed 67% burn injuries. The report shows injuries were ante mortem. The articles which were seized from the spot were sent for the chemical analysis. The report of chemical analyser shows that empty plastic can, partly burnt blouse and brassiere, earth wrapped in the paper indicated positive signs of kerosene residues. F.I.R. (Exh.32) gives detailed version about the incident as narrated by the deceased Sadhna. 4. After filing of the chargesheet, trial was conducted. The Trial Court, upon hearing the evidence, placed reliance on the dying declaration (Exh.28) recorded by P.W.4 Rajabhau Joshi the Executive Magistrate, so also the one recorded by P.S.I. Shoukat Ali (P.W.5). Since Hirubai Marotrao Rajurkar (P.W.2) the mother of the deceased turned hostile, the only evidence remained for consideration was in the form of the said two dying declarations and the salient features shown in the spot panchanama. The Trial Court convicted the appellant. 5. Shri V.M. Deshpande, learned Counsel for the appellant vehemently argued that the dying declarations on the basis of which conviction has been recorded are not reliable, trustworthy and are liable to be rejected. The Trial Court convicted the appellant. 5. Shri V.M. Deshpande, learned Counsel for the appellant vehemently argued that the dying declarations on the basis of which conviction has been recorded are not reliable, trustworthy and are liable to be rejected. According to him, the mother of deceased Sadhana, P.W.2 Hirubai, herself having turned hostile, there was hardly any scope to record conviction on the basis of uncorroborated dying declarations. In the alternative, he submitted that there must have been some quarrel after the appellant is said to have returned from market empty handed but having consumed liquor and as a result of quarrel between husband and wife Sadhna due to grave and sudden provocation, the incident might have occurred and in that event, the appellant cannot be held guilty of murder but could be found guilty under Section 304 (II) of Indian Penal Code. 6. Per contra, Shri Mirza, learned A.P.P. opposing the submissions argued that the evidence of the persons, who recorded dying declarations has not at all been shaken and both the dying declarations inspire confidence. There is no reason to reject dying declarations merely because P.W.2 Hirubai, mother of Sadhna, turned hostile. He, therefore, prayed for dismissal of the appeal. 7. We have carefully seen the dying declaration (Exh.28) and F.I.R. (Exh.32), which in fact is second dying declaration of the deceased Sadhna. P.W.4 Rajabhau Joshi, Executive Magistrate has been examined, so also P.W.5 Shoukat Ali. Their evidence categorically shows that the deceased Sadhna was conscious before and after recording of the dying declarations. The Executive Magistrate has given requisition to the Medical Officer to certify about her consciousness, which was accordingly done and the patient was found to be fit to give statement. 8. Both these witnesses have categorically deposed that deceased Sadhna told them that her husband had poured kerosene on her person and set her on fire. The evidence of those witnesses has not at all been shaken in the cross-examination and the same remains intact. There is absolutely no reason whatsoever for us to make any demur about the truthfullness of their evidence. We, therefore, find both dying declarations recorded by P.W.4 and P.W.5 are natural, consistent and safe to be acted upon for convicting the appellant. 9. There is absolutely no reason whatsoever for us to make any demur about the truthfullness of their evidence. We, therefore, find both dying declarations recorded by P.W.4 and P.W.5 are natural, consistent and safe to be acted upon for convicting the appellant. 9. The spot panchanama as well as chemical analyser's report clearly support the happening of the event as narrated by the deceased Sadhna in her both dying declarations. Traces of kerosene are found as per chemical analyser's report on the articles seized from the spot. The defence of the accused in his statement under Section 313 of the Code of Criminal Procedure is that the deceased Sadhna used to consume liquor and that she herself set on fire and that he tried to extinguish the fire. No foundation whatsoever has been led by the defence on this aspect anywhere in the entire evidence nor any defence evidence has been brought on record to that effect. The contention advanced by Advocate Shri Deshpande for the appellant cannot be accepted about the sudden quarrel and consequent alteration of conviction from 302 to 304 (II) of I.P.Code, as there is absolutely no material on record to assume that there was any sudden quarrel or that in heat of passion incident had taken place. 10. Learned Counsel for the appellant relied upon the decisions of this Court in the case of Bajirao Maruti Dale...Versus...The State of Maharashtra and another, reported in 2004 CRI. L.J. 1638 and Sambhaji Mukund Suryawanshi...Versus...State of Maharashtra, reported in II (2004) DMC 521 (DB). However, these judgments are not applicable to the facts of the present case. 11. For all these reasons, we do not find any substance in the present criminal appeal. The same is dismissed.