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2014 DIGILAW 301 (BOM)

Harilal Mevalal Gupta v. State of Maharashtra

2014-02-06

A.S.GADKARI, P.V.HARDAS

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Judgment A.S. Gadkari, J. 1. The present appeal has been filed by the appellant against the judgment and order dated 29 July 2004 passed by the IInd Ad-Hoc Additional Sessions Judge, Kalyan in Sessions Case No.23 of 2003, thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentenced to suffer life imprisonment and to pay fine of Rs.2000/-, in default of which to suffer simple imprisonment of 6 months. By this appeal, the appellant questions the correctness of the said conviction and sentence. 2. The facts, as enumerated from the record, are as under: (i) PW-4 PSI Ganesh Joshi who was then attached to Ulhasnagar Police Station was on patrolling duty on 16.10.2002. He received a wireless message at about 2.50am that one woman has been burned at Azadnagar, Ulhasnagar. Accordingly, PSI Joshi went to Azadnagar when it was informed to him that burnt lady, namely, Smt. Pramila has been shifted to Central Hospital, Ulhasnagar. On visiting to the said hospital at Ulhasnagar, the duty constable Shri Jadhav informed PSI Joshi that Pramila has been admitted to emergency ward and had 98% of burns. PSI Joshi thereafter gave letter to the Medical Officer enquiring that, whether the victim Pramila is in a position to give any statement, to which the Medical Officer endorsed that at that relevant time the said lady Smt.Pramila was not in a position to give any statement. (ii) PW-4 PSI Ganesh Joshi thereafter along with Smt. Sumitra Shinde the mother of injured Pramila visited the spot of incident. After confirming the fact that the incident had taken place within his jurisdiction came to the police station along with Smt. Sumitra Shinde. PSI Joshi thereafter recorded the first information report of Sumitra which is at Exhibit-12. In pursuance of the FIR which is at Exhibit 12, an offence has been registered vide CR No.186 of 2002 under Section 307 of IPC. PW-4 PSI Ganesh Joshi thereafter visited the spot of the incident along with panchas and drew spot panchnama which is at Exhibit 17. He also seized from the spot the burnt pieces of clothes, ash of burnt sleeper, match-box, kerosene can and ash from the spot. PW-4 PSI Ganesh Joshi thereafter visited the spot of the incident along with panchas and drew spot panchnama which is at Exhibit 17. He also seized from the spot the burnt pieces of clothes, ash of burnt sleeper, match-box, kerosene can and ash from the spot. PW-4 PSI Ganesh Joshi again visited the hospital and gave requisition to the doctor and enquired whether the victim is in a condition to give statement to which the Medical Officer endorsed that the victim is in a condition to give the statement. PW-4 PSI Ganesh Joshi thereafter called PW-2 Nandini Bamankar the Special Executive Officer to record the statement of victim Pramila. PW-2- Special Executive Officer thereafter recorded the statement i.e. the dying declaration of Pramila. The Medical Officer i.e. PW-3 Dr. Jyoti Purswani endorsed on the said statement which is at Exhibit 14, that the patient was in a conscious and mentally fit condition throughout the recording of the said statement and accordingly endorsed there below. After the death of Pramila, PW-3 Dr. Purswani conducted postmortem on the dead body of the victim Pramila and submitted postmortem report which is at Exhibit 18 to the Investigating Officer. PW-3 Dr. Purswani expressed her opinion as regards the probable cause of death as “due to shock due to 98% thermal burns”. (iii) PW-4 PSI Ganesh Joshi has further stated that in the afternoon on 16.10.2002, Pramila succumbed to her injuries and inquest panchanama of the dead body of Pramila was prepared, which is at Exhibit 15. After the death of Pramila, Section 302 has been added to the said crime. In the evening of 16.10.2002, the appellant came to be arrested after effecting necessary formalities. During the course of investigation, it was revealed that the appellant was continuously harassing the victim Smt. Pramila and forcing her to keep relations with him. The deceased Pramila had also lodged one NC complaint against the appellant. It was further revealed during the course of investigation that as the appellant was harassing and pressurizing the victim Pramila for keeping relations with her and as she was annoyed because of the same, she in the night of 15.10.2002 decided to go to the house of the appellant to inform his wife about the same, and to request the wife of the appellant to ask the appellant to behave properly. The victim Pramila after telling the said fact to her mother i.e. PW-1 Sumitrabai went to the house of the appellant. When the victim Pramila went to the house of the appellant, the appellant got infuriated. The appellant beat the victim Pramila and drove victim out of his house and poured kerosene on her person and set her ablaze. During the course of further investigation, the clothes of the appellant were seized and those clothes along with other articles were sent to the chemical analyzer for analysis. PSI Jadhav received the report of the chemical analyzer which is at Exhibits 32 and 33 in the record. After completion of the investigation, PW-4 PSI Joshi filed a charge-sheet below in the case. (iv) The learned 2nd Ad-Hoc Additional Judge at Kalyan framed charge below Exhibit-3 for the offence punishable under Section 302 of IPC. The same was read over to the appellant. The appellant denied the charge and claimed to be tried. 3. Shri Apte, the learned Counsel for the appellant has submitted before us that the prosecution has failed to examine the wife of the present appellant during the course of the trial who could have been the best witness to narrate the correct position of facts which had taken place at the residence of the accused. The learned Counsel for the appellant has further contended that the prosecution has not examined any other person or neighbour from the vicinity of the appellant though the house of the appellant is situated in populated area. The leaned Counsel for the appellant has submitted that in his 313 statement the appellant has taken a specific plea that the victim Pramila was deserted by her husband and was insisting appellant to marry with her. But when the appellant refused the said proposal on the ground that he is already married and having children, Pramila took the extreme step and he has been involved in a false case. 4. The learned APP in his arguments supported the judgment of the learned Trial Court and urged that the present appeal may be dismissed and the conviction and sentence may be confirmed. 5. In order to effectively deal with the submissions advanced before us by Shri Apte, learned Counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 6. 5. In order to effectively deal with the submissions advanced before us by Shri Apte, learned Counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 6. The evidence of PW-1 Sumitrabai Shinde, mother of deceased Pramila reveals that the appellant was residing near her house just across the road. She further deposed that her daughter was washing clothes and utensils. Pramila was going her work in the morning at about 8.30am and used to return in the evening at about 7.30pm. The appellant used to obstruct Pramila on the way and asking her to love with him. The appellant was also asking Pramila to accompany him to which Pramila used to resist. On 15.10.2002, Pramila returned home at about 7 pm and informed PW-1 Sumitra that as usual the appellant is harassing her and told PW-1 Sumitra that she would go to the house of the appellant and would inform his wife so that appellant will improve his behavior. After completing her work at about 1 am on 16.10.2002, Pramila went to the house of the appellant to the wife of the appellant. Pramila returned her house in burned condition and she was shouting for help. When enquired with Pramila, Pramila informed PW-1 Sumitra that the appellant had set her on fire. Pramila further informed PW-1 Sumitra that the initially the appellant drove her out and thereafter poured kerosene on her person and set her ablaze. This incident happened when Pramila had been to the house of the appellant for giving him an understanding. PW-1 Sumitra took Pramila to the Central Hospital in a rickshaw. On the same day i.e. on 16.10.2002, the statement of Pramila came to be recorded by the police and Pramila succumbed to her injuries on the same day. She thereafter gave complaint to the police which came to be recorded as the first information report and is at Exhibit 12. 7. In cross-examination, nothing fruitful has been elicited by the appellant which would damage the testimony of PW-1 Sumitra including the oral dying declaration given by Pramila to PW-1. In her cross-examination, PW-1 Sumitra has admitted that the house of Pramila and her house are nearby and she further elicited that the house of the appellant is in the vicinity of their house and is at walking distance. In her cross-examination, PW-1 Sumitra has admitted that the house of Pramila and her house are nearby and she further elicited that the house of the appellant is in the vicinity of their house and is at walking distance. She has denied the suggestion that it was Pramila who was insisting the appellant to marry with her. She has further denied the suggestion that Pramila was pursuing Hiralal i.e. the appellant for marriage. PW-1 Sumitra has further strongly denied the suggestion that as Hiralal the appellant refuse to marry with Pramila and out of frustration the victim Pramila set herself ablaze on a public road. 8. PW-2 Nandini Bamankar a social worker and a special executive officer who recorded dying declaration of Pramila when she was admitted to the hospital. PW-2 Nandini Bamankar has stated in her evidence that after receipt of the information from the police on 16.10.2002, she went to the Central Hospital at Ulhasnagar to record the statement of the victim Pramila, when the Medical Officer informed her that Pramila can give her statement and thereafter the said Medical Officer gave necessary endorsement in that behalf. PW-2 Nandini Bamankar thereafter recorded the statement of Pramila in question-answer form. In her statement Pramila told to PW-2 that the appellant was insisting her to marry to which she had refused. On 16.10.2002, with a view to give understanding to the wife of the appellant she went to the house of the appellant, and at that time the appellant beat her and had poured kerosene on her person and set her ablaze. The victim Pramila stated in her statement that accused-appellant may be punished for the same. The said dying declaration is at Exhibit 14 on the record. 9. In the cross-examination, it has been elicited that the said PW-2 Nandini Bamankar has recorded such type of statement for the first time. However, she was further assertive on the fact that after Medical Officer ascertained that the patient was in a fit condition to give statement, she recorded the said dying declaration. The said dying declaration was read over to the victim and thereafter her toe impression of the right foot was taken on the said dying declaration as both hands of the victim were totally in burnt condition. 10. The prosecution has further examined PW-3 Dr. The said dying declaration was read over to the victim and thereafter her toe impression of the right foot was taken on the said dying declaration as both hands of the victim were totally in burnt condition. 10. The prosecution has further examined PW-3 Dr. Jyoti Purswani the Medical Officer at Central Hospital, Ulhasnagar, who has given the endorsement on the Exhibit 14 about the conscious mental condition of the victim Pramila and had also conducted postmortem on the dead body of deceased Pramila. PW-3 Dr. Purswani stated in her evidence that on 16.10.2002, she was Medical Officer at Central Hospital Ulhasnagar and that Pramila was admitted in the said hospital and her statement came to be recorded in her presence on 16.10.2002 at 11.55am. At the time of recording the statement, Pramila was conscious and mentally fit to give statement. She has further stated that the statement is recorded by the special executive officer which is the dying declaration is at Exhibit 14. She has further stated that she conducted postmortem on the body of the deceased Pramila and the death of Pramila was due to shock due to 98% thermal burns. Postmortem report is at Exhibit 18. In the cross-examination of the said PW-3 Dr. Purswani, she has turned down the suggestions given by the defence and had stuck to her original testimony. 11. Prosecution, at last, has examined PW-4 Ganesh Joshi, PSI then attached to Ulhasnagar Police Station. PW-4 PSI Joshi is the Investigating Officer and his testimony in chief has been narrated in the beginning of the present judgment. It is to be noted that nothing fruitful has been elicited during the course of cross-examination and PW-4 has stood by his testimony as has been given in his examination-in-chief. PW-4 during the course of his evidence has proved the reports of the chemical analyzer which are at Exhibits 32 and 33 respectively. It is to be noted that in Exhibit 32, the item nos. 8 and 9 which were sent for the forensic examination i.e. the full-pant and full-shirt of the appellant have been resulted as positive for the kerosene residue. It is further to be noted that the appellant has not given any explanation as to how kerosene residues have been found on his clothes. This is an additional circumstance which shows the involvement of the appellant in present crime. 12. It is further to be noted that the appellant has not given any explanation as to how kerosene residues have been found on his clothes. This is an additional circumstance which shows the involvement of the appellant in present crime. 12. We have gone through the entire evidence on record and we have also minutely scrutinized the dying declaration which is at Exhibit 14. After minutely scrutinizing the evidence on record, we are of the firm opinion that dying declaration recorded by PW-2 Nandini Bamankar is trustworthy, convincing and is also a substantive piece of evidence. Apart from dying declaration which is at Exhibit 14, the oral dying declaration given by Pramila to PW-1 Sumitra is also convincing and the testimony of PW-1 Sumitra Shinde is cogent, reliable and trustworthy. There is no reason to disbelieve the evidence adduced by the prosecution which is undoubtedly not only reliable but trustworthy too. The circumstances and evidence on record shows that it is the Appellant alone who is responsible for the commission of the present crime. We are of the opinion that the present appeal is sans any merits and deserves to be dismissed. 13. The Criminal Appeal is accordingly dismissed. Copy of this judgment be sent to the Appellant who is undergoing his sentence in jail. 14. Fees payable to Shri Abhaykumar Apte, learned Counsel appointed for the appellant is quantified at Rs.5000/-.