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2013 DIGILAW 801 (BOM)

Bhanudas Bandu Thite v. State of Maharashtra

2013-04-05

P.D.KODE, V.K.TAHILRAMANI

body2013
JUDGMENT: SMT. V.K. TAHILRAMANI, J.:- This appeal is directed by the appellant-original accused against the judgment and order dated 22.8.2006 passed by the learned Ad-hoc Additional Sessions Judge, Pune in Sessions Case No. 453 of 2005. By the said judgment and order, the learned Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and a fine of Rs. 200/- in default RI for two months. 2. The prosecution case briefly stated, is as under: The deceased Indubai was the wife of the appellant. She had two sons. Indubai was residing along with her husband i.e. appellant and her two sons at Thitewadi, Pune. Since one month prior to the incident, her husband lost his job due to which, there were frequent quarrels between Indubai and her husband. It is the prosecution case that on 3.7.2004 in the morning at 11.15 a.m. the appellant started quarrel with Indubai. He then poured kerosene on her person and set her on fire. The appellant also poured kerosene on himself and set himself on fire. Indubai was taken to the hospital. Then her dying declaration (Exh. 17) came to be recorded by PW-4 Police Constable Bhose. The said dying declaration was treated as F.I.R. Thereafter investigation commenced. Indubai died on 6.7.2004 at 3.00 p.m. The dead body of Indubai was sent for post-mortem. The medical papers show that Indubai had sustained 97% burns due to which, she died. After completion of investigation, the charge sheet came to be filed against the appellant. 3. Charge came to be framed against the appellant under sections 302 & 309 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Judge acquitted the appellant of the offence under Section 309 of IPC, however, convicted and sentenced the appellant as stated in para I above. Hence, this appeal. 4. We have heard the learned counsel for the appellant and the learned A.P.P. for the State. After going through the evidence adduced by the prosecution, the learned Judge acquitted the appellant of the offence under Section 309 of IPC, however, convicted and sentenced the appellant as stated in para I above. Hence, this appeal. 4. We have heard the learned counsel for the appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, we are of the opinion that the prosecution case that appellant set Indubai on fire, is highly doubtful and the appellant-accused deserves to be acquitted. 5. The conviction is based on the dying declaration Exh. 17 which was recorded by PW-4 Police Constable Bhose on 3.7.2004 at 12.15 p.m. Police Constable Bhose has stated that he received a telephone call from PW-5 Dr. Jadhav informing him that Indubai and Bhanudas were admitted in the hospital with burn injuries. Hence, police constable Bhose went to the hospital. He met Dr. Jadhav in the hospital. He then recorded dying declaration of Indubai. Indubai told him that her husband poured kerosene on her and set her on fire. No doubt, the evidence of PW-4 Police Constable Bhose shows that he recorded dying declaration of Indubai in which she stated that her husband set her on fire. However, it is noticed that the dying declaration is recorded at 12.15 p.m. whereas Exhibit-20 which are the medical papers relating to admission of Indubai in the hospital, show that at 11.50 a.m. when Indubai was admitted in the hospital, she gave history of suicidal burns by herself as well as by her husband. The said papers show that at about 11.50 a.m. her general condition was not satisfactory. The case papers further show that the Doctor on duty informed Head Constable Bhose on telephone at 12.05 p.m. about the admission of the patient. The said papers show that at about 11.50 a.m. her general condition was not satisfactory. The case papers further show that the Doctor on duty informed Head Constable Bhose on telephone at 12.05 p.m. about the admission of the patient. As stated earlier, the dying declaration was recorded at 12.15 p.m. In view of the fact that the Doctor informed PW-4 Police Constable Bhose at 12.05 p.m. on the phone about the admission of Indubai in the hospital, it was not possible that PW-4 Bhose could have reached the hospital, got the patient examined from the Doctor, satisfied him self that the patient was in a fit condition to give her statement and then proceeded to record her statement at 12.15 p.m. These facts raise doubt about the genuineness of the prosecution case. 6. It is further noted that Exhibit-20 which are the medical case papers of Indubai, show the history written as 'suicidal bums'. The learned A.P.P. pointed out that after the word 'suicidal burns' there is stroke above and word is written as 'homicidal'. However, it is noticed that word 'suicidal' has not been scored out and the word 'homicidal' has not been initialed. Moreover, the word 'homicidal' is written in a different ink which is much lighter than the ink in which the original entries have been made in the case papers. In this view of the matter, we are not inclined to place any reliance on the word' homicidal'. Thus, it is seen that when Indubai was first admitted in the hospital, history was given of 'suicidal burns' and the fact that her husband also poured kerosene on himself is stated in the papers. This is borne out by Exhibit-9 which are the case papers relating to the appellant. PW-3 Dr. Guruprit Singh has deposed about Exhibit-9. In Exh. 9, it is seen that the appellant had sustained 42% burns. Thus, it appears that both the appellant and the deceased tried to commit suicide and thereafter the appellant has been falsely implicated in this case. It is further interesting to note that though Indubai was admitted on 3.7.2004 at 11.50 p.m. in the hospital and Indubai died on 6.7.2004 at 3.00 p.m., no dying declaration of Indubai was got recorded by Special Executive Magistrate. It is further interesting to note that though Indubai was admitted on 3.7.2004 at 11.50 p.m. in the hospital and Indubai died on 6.7.2004 at 3.00 p.m., no dying declaration of Indubai was got recorded by Special Executive Magistrate. Though Indubai was in the hospital for more than three days, it is surprising to note that her dying declaration was not recorded by the Special Executive Magistrate. This also creates doubt about the genuineness of the prosecution case. Thus, looking to the entire evidence on record, we are inclined to grant benefit of doubt to the appellant. Hence, we pass the following order: ORDER 1) The conviction and sentence imposed on the appellant-accused by the learned Adhoc Additional Sessions Judge, Pune by judgment and order dated 22.8.2006 passed in Sessions Case No. 453 of 2005, is set aside. The appellant-accused is acquitted of the offence under Section 302 of IPC. 2) The appellant-accused be released forthwith if not required in any other case. 3) Writ of order is expedited. 4) Appeal allowed. Appeal allowed.