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2013 DIGILAW 57 (BOM)

Ramji s/o. Arjuna Buktare v. State of Maharashtra

2013-01-09

P.V.HARDAS, S.B.DESHMUKH

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Judgment P.V. Hardas, J. The appellants, who stand convicted for an offence punishable under Sections 302 r/w 34 and 498A r/w 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs. 1,000/-, in default to undergo S.I. for three months and R.I. for one year and to each pay fine of Rs. 500/-, in default to undergo S.I. for one month, by the Additional Sessions Judge-1, Nanded, by judgment, dated 13.7.2011, in Sessions Case No. 134 of 2006, by this appeal question the correctness of their conviction and sentence. 2. The facts, as are necessary for the decision of this appeal, may briefly be stated thus:- PW-9 A.S.I Pandurang Kamble, who was attached to Bhagyanagar police station on 14.3.2005, was on mobile duty on that day. At about 10.00 p.m. he was informed about admission of one lady in the hospital due to burns. After informing the P.S.I., PW9 A.S.I. Kamble proceeded to the Government Hospital and informed the Medical Officer that he had come for recording the statement of the injured lady. The Medical Officer accompanied PW9 A.S.I. Kamble to the Burn Ward and after examining the injured lady opined that she was in a fit condition to give her statement. PW9 A.S.I. Kamble accordingly recorded the statement of Ramabai who was admitted with burns in the hospital. The statement of Ramabai recorded by PW9 A.S.I. Kamble is at Exh.40. 3. PW10 P.I. Santosh Chavan, who was attached to Bhagyanagar police station, was entrusted with the investigation of Crime No. 95 of 2005 under Sections 307, 498A r/w 34 of the Indian Penal Code which was registered on the basis of the statement of Ramabai at Exh.40. PW 10 P.I. Chavan accordingly proceeded to the scene of the incident and drew the scene of the incident panchanama in the presence of panch as. From the scene of the incident, he seized one match box, one plastic bottle containing 200 ml. kerosene, broken pieces of glass bangle, broken pieces of mettle bangle and pieces of burnt sari and blouse. The scene of the incident panchanama and the seizure effected thereunder is at Exh.29. The accused were arrested and clothes on the person of the accused were seized in the presence of panch as under seizure memo at Exh.42. kerosene, broken pieces of glass bangle, broken pieces of mettle bangle and pieces of burnt sari and blouse. The scene of the incident panchanama and the seizure effected thereunder is at Exh.29. The accused were arrested and clothes on the person of the accused were seized in the presence of panch as under seizure memo at Exh.42. The clothes of accused Deubai were seized in the presence of panchas under seizure memo at Exh.31. Similarly, the clothes of accused Aruna were also seized under seizure memo at Exh.43. The arrest panchamas of the accused are at Exhs.44 to 46. Statements of witnesses were recorded. On 20.3.2005 injured Ramabai succumed to her injuries, and therefore, an inquest panchanama of the dead body of Ramabai was drawn in the presence of panchas at Exh.17. The dead body was referred for postmortem examination. On 14.5.2005, the seized property was referred to the Chemical Analyser under a requisition. Further to the completion of investigation, a charge sheet against the accused was submitted. 4. PW4 Mohd. Tayab Mohd. Isaq, Special Judicial Magistrate, had received a requisition at Exh.24 for recording the dying declaration of injured Ramabai. He had accordingly proceeded to the Government Hospital at Nanded and requested PW8 Dr. Sangita to, ascertain the condition of injured to give her statement. Upon PW8 Dr. Sangita opining that Ramabai was in a fit condition to give her statement, PW4 Mohd. Tayab Mohd. Isaq recorded the statement of Ramabai at Exh.25. 5. Postmortem on the dead body of deceased Ramabai was performed by the Medical Officers of the Government Medical College at Nanded. The postmortem report is at Exh.19. Perusal of the postmortem report indicates that Ramabai had sustained 49% burns. The Medical Officer has opined that cause of death was shock due to burns. 6. On committal of the case to Court of Sessions, trial Court vide Exh.3 framed charge against the accused for offence punishable under Section 302 r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in Support of its case examined ten witnesses; while the accused in their defence examined DW 1 Ananda, husband of deceased Ramabai. It may incidentally be stated that appellant no. 1/accused no. 1 is the father-in-law of deceased Ramabai; while appellant no. 2/accused no.3 is the sister-in-law of deceased Ramabai. Prosecution in Support of its case examined ten witnesses; while the accused in their defence examined DW 1 Ananda, husband of deceased Ramabai. It may incidentally be stated that appellant no. 1/accused no. 1 is the father-in-law of deceased Ramabai; while appellant no. 2/accused no.3 is the sister-in-law of deceased Ramabai. The trial court, upon appreciation of the evidence, convicted and sentenced the appellants as afore stated. 7. In order to effectively deal with the submissions advanced before us by the learned counsel for the appellants, it would be useful to refer to the evidence of the prosecution witnesses. 8. Prosecution has examined PW 1 Dnyanoba, father of deceased Ramabai. Dnyanoba states that Rama was married to Ananda and in the marriage certain dowry was given to Ananda. According to Dnyanoba, accused Aruna used to instigate accused no. 1 and her mother against Ramabai on trivial issues. The accused used to ask Ramabai to bring Rs. 20,000/- from Dnyanoba. About seven days prior to the death of Ramabai, he had received a telephonic call from DW1 Ananda that Ramabai had sustained burns and was admitted in the hospital. According to Dnyanoba, he had immediately rushed to the Government Hospital at Nanded and had noticed that the police were recording the statement of Ramabai. Subsequently, Ramabai had informed him that the appellants had poured kerosene on her and had set her ablaze. 9. In cross-examination, he has admitted as true that after receiving the telephone call from DW1 Ananda, he along with his wife and neighbours had gone to the Government Hospital. He has admitted as true that thereafter the police had come to the hospital. He has admitted as true that the police had inquired from him and the neighbour Sudam. He has then admitted, "It is true that at that time Sudam told the police that I was uneducated and that he would say the facts. It is true to that Sudam had stated contents of my statement to the police." He has further admitted as true that after about six months of marriage, Ramabai and Ananda were residing separately. He has also admitted as true that DW1 Ananda was addicted to liquor and used to consume liquor daily. He has further admitted as true that on account of consumption of liquor, there used to be quarrels between Ramabai and Ananda. He has also admitted as true that DW1 Ananda was addicted to liquor and used to consume liquor daily. He has further admitted as true that on account of consumption of liquor, there used to be quarrels between Ramabai and Ananda. He has admitted as true that Ramabai had complained to him that her husband Ananda used to quarrel with her. He has admitted as correct that he had informed this fact to accused no. 1 and he along with accused no. 1 had tried to convince Ananda. He has admitted as correct that despite that Ananda used to consume liquor. He has also admitted that Ramabai had complained to him that on account of consumption of liquor by her husband Ananda she was not willing to reside with her husband. He then admits as follows:- "It is true that in the hospital I had talk with Ramabai. It is true that she told me that her husband consumed liquor and told me to tell about it to her father in law Ramji. It is true that she told that her husband used to ill-treat her therefore, she got herself set on fire." He then admits that Ramabai had informed him that the door was bolted from inside and her husband Ananda was in the room. He has admitted that he, his wife and Sudam were present near Ramabai when her statement was recorded by the police. He has also admitted as true that the contents of the statement of Ramabai were dictated by Sudam as Ramabai was unable to give her statement. 10. Prosecution examined PW2 Shobha, mother of deceased Ramabai, who states that upon receipt of the message, she had gone to the hospital and Ramabai had informed her that the appellants had set her ablaze. In cross-examination, she has denied that she was accompanied to the hospital by one Sudam. She has also denied that her daughter was residing separately with her husband Ananda. She has admitted that when she had gone to the hospital, she had seen that Ananda was admitted in the hospital with burns to his hands. 11. In the dying declaration recorded by PW4 Mohd. Tayab at Exh.25, Ramabai has stated that her mother-in-law had poured kerosene on her and had set her ablaze; while she was held by the appellants. 11. In the dying declaration recorded by PW4 Mohd. Tayab at Exh.25, Ramabai has stated that her mother-in-law had poured kerosene on her and had set her ablaze; while she was held by the appellants. According to Ramabai, she was set ablaze on account of demand for Rs. 10,000/-. She has admitted that her husband was not present in the house, but had gone outside. 12. In the dying declaration at Exh.40 recorded by PW9 A.S.I. Kamble, Ramabai had stated that on the day of the incident, her mother-in-law and her sister-in-law were abusing her. Her mother-in-law had also assaulted her. Her mother-in-law stated that she would set Ramabai ablaze and so saying poured kerosene on her. Ramabai states that her sister-in-law and her father-in-law had held her, while her mother-in-law set her ablaze. She further states that her husband returned home on hearing her cries and extinguished the flames and thereafter admitted her in the hospital. 13. The scene of the offence panchanama at Exh.29 indicates that the room in possession of deceased Ramabai and DW1 Ananda had two doors. One door was found locked from inside; whereas the other door which was chained and locked was found to be broke opened as it was dislodged from the hinges. The photographs of the scene of the incident, which are placed on record, clearly indicate that the door had been broke opened as it was dislodged from the hinges. From the photographs, it is apparent that the door comprises of two planks and was chained from inside. 14. Prosecution has examined DW 1 Ananda, husband of deceased Ramabai. Ananda states that on the day of the incident, he had returned home under the influence of liquor and there was a quarrel between him and Ramabai. His mother had inquired from first floor as to why they were quarreling. He states that thereafter he had gone outside and after some time returned home. He states that he closed the door of the house and his wife went towards the kitchen stating that she was going to cook. He further states that his wife Ramabai set herself ablaze. Some persons broke opened the door; while he had extinguished the flames. Ananda states that he had sustained burn injuries on his hands and chest. Ananda also states that he had admitted his wife in the hospital. He further states that his wife Ramabai set herself ablaze. Some persons broke opened the door; while he had extinguished the flames. Ananda states that he had sustained burn injuries on his hands and chest. Ananda also states that he had admitted his wife in the hospital. He has denied the suggestions in the cross-examination about the demand of dowry and about ill-treatment by appellants. Nothing has been elicited in the cross-examination of this defence witness to discredit what he has stated in his evidence. 15. It is true that in both the dying declarations, deceased Ramabai has stated that her mother-in-law poured kerosene on her and set her ablaze; while she was held by appellants. However, the evidence of the prosecution indicates that the door was bolted from inside and was required to be broke opened. If that be the case, the recitals of the two dying declarations stand fully falsified, and we find, that implicit reliance on the dying declarations cannot be placed. Moreover, PW 1 Dnyanoba, father of deceased Ramabai, has admitted in the cross-examination that Ramabai had informed him that she had set herself ablaze as she was fed up with the addiction of her husband to liquor. In the face of this evidence, therefore, according to us, it would be extremely hazardous to place implicit reliance on the dying declarations at Exh.25 and Exh.40. If, apart from Ramabai and her husband, no other person was present in the room, the recitals in the dying declarations that the appellants had set Ramabai ablaze, are falsified. It is apparent to us that the dying declarations are not a truthful account of the incident. The fact that the door was bolted from inside is evident upon perusal of the scene of the offence panchanama at Exh.29 and perusal of the photographs of the scene of the incident. In the face of this evidence, therefore, according to us, the appellants would be entitled to be given the benefit of doubt. 16. Accordingly, Criminal Appeal No. 397 of 2011 is allowed. Conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they are charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case. Appeal allowed.