PRAKASH PANDURANG PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal under section 374 of Criminal Procedure Code is directed against the order of conviction and sentence recorded by the learned Additional Sessions Judge for Greater Mumbai in Sessions Case No. 1392 of 1997, on 11th April, 2002. The appellant faced trial for the offences punishable under sections 302, 498-A and 506 of Indian Penal Code and by the judgment and order under the appeal he came to be convicted for all the offences. He has been sentenced to suffer R.I. for life with a fine of Rs. 500/- for the offence punishable under section 302 Indian Penal Code, R.I. for 2 years with a fine of Rs. 500/- for the offence punishable under section 498-A and R.I. for 1 year and to pay a fine of Rs. 500/- for the offence punishable under section 506(11) of Indian Penal Code. He was arrested on 14-9-1997 and he was denied bail before the trial Court, as well as before this Court during the pendency of this appeal and hence he has already completed the sentence of more than 13 years, by now.

(2.) Laxmi @ Devka, the daughter of Tukaram Shivdas P.W.6 and Sushila Shivdas P.W. 9, resident of Satara District was married to the accused for more than 12 years and from the said wedlock she begot 6 daughters and one son. The couple was staying for a long time in a joint family of appellant's father and about 2-3 years prior to the date of the incident they had moved into a separate home in the same Dharavi area. The appellant was working as a salesman in a foot wear shop and was alleged to be addicted to liquor. As per the prosecution case, on 13-9-1997 between 10.00 p.m. to 11.30 p.m. there was some quafrel between the husband and wife on account of the wife going to his mother's house to attend a Pooja ceremony and the appellant started beating her with fists and he took out a belt. He got enraged and the kerosene can lying in the house was emptied on the person of the wife and he set her on fire by lighting a match stick. The husband spread water on her person, wrapped chadar around her body and in an auto rickshaw which was called by P.W. 4 Basveshwar Pol a neighbour, he took his wife, accompanied by his elder daughter Pramila to the Bhabha Hospital at Bandra, where she was admitted at about 1.15 a.m. Her dying declaration was recorded by the Special Executive Officer, P.W. 5 Shri Jayesh Jani, immediately after her admission and after the doctor had declared that the patient was in a fit condition to record the same. The Police Officer P.W. 20 Kiran Avchar also recorded the dying declaration in presence of the doctor on duty i.e. Dr. Ninad Karandikar, P.W. 19. In both these dying declarations the cause of fire was that the stove got inflamed while the wife was warming the food to be served to her husband at about 10.30 p.m. The spot panchanama at Exh. 28 was drawn at about 5 a.m. and on the basis that the victim had no complaint against any one. A message was sent to the parents of the victim i.e. P.W. 6 and P.W. 9 through the brother of the appellant by name Jitendra and P.W. 9 was told that her daughter Laxmi sustained burn injuries because of inflamed kerosene stove. P.W. 6 and P.W. 9 the parents of the victim, visited the hospital around 6 p.m. P. W.9 the mother of the victim asked her to tell the truth on oath in the name of God and the victim purportedly disclosed that the burn injuries were not accidental and initially the husband started beating her and she told him instead of beating why did not he kill her. On that the husband took the kerosene can, poured the kerosene on her person and set her on fire by lighting the match stick. When the wife sustained the burn injuries, the husband poured water on her, wrapped in chadar and brought her to the hospital along with a social worker. P.W. 20 had taken steps to rerecord the dying declaration of the victim and therefore, P.W.5 Shri Jayesh Jani the Special Executive Officer visited the hospital and the patient, once again at 8.30 p.m. on 14-9-1997. He recorded her statement in the presence of P.W. 19 Dr. Ninad Karindakar in question and answer form and similarly P.W. 20 Kiran Avchar, I.O. also recorded a fresh dying declaration of the victim in the presence of the same doctor (Exh. 40B). Based on this disclosure (oral dying declaration) made by the victim to the mother, P.W. 6 Tukaram Shivdas went to the police station and recorded his complaint, which is registered as an FIR at Exh. 40-C at 10.55 p.m. Thus, two sets of dying declarations by two different officials came to be recorded and which were contrary to each other. Further investigation was under taken on the basis of the subsequent dying declarations and the accused was taken into custody. The articles collected from the spot while drawing the spot panchanama were sent for chemical analysis on 15-9-1997. The victim was shifted to the Kasturba Hospital, where she came to be admitted after 7 p.m. and at 3 p.m. on 16-9-1997, she died. The FIR came to be amended so as to incorporate the offence punishable under section 302 of Indian Penal Code and on completion of the investigation P.W. 20 Shri Avchar filed the charge sheet in the Court of Metropolitan Magistrate. The case being exclusively triable by the Sessions Curt it was committed and charge was framed at Exh.2.

(3.) The prosecution examined in all 20 witnesses including 2 minor daughters of the appellant i.e. P.W. 10 Manisha and P.W. 11 . Rekha. There were 4 neighbourers examined by the prosecution viz. P.W. 1 Omkar Sawarkar, P.W. 2 Smt. Kamal PrakashBhagat, P.W. 3 Haribhau Karande and P.W.4 Basveshwar Pol. P.W. 1 and P.W. 3 have turned hostile and so also the minor daughters. Through the evidence of P.W. 7 Ghanashyam Kasare and P.W. 8 Sadanand Kadam the case papers from Bhabha hospital as well as Kasutrba hospital were placed on record before the trial Court and the case papers had recorded that the burn injuries were on account of stove burst. The defence examined one witness i.e. Pramila, the minor elder daughter, who had gone with the appellant to the hospital on the fateful day. In his statement recorded under section 313 of Criminal Procedure Code the defence taken was that his wife died on account of burn injuries sustained accidentally (stove burst inflamed). The learned trial Judge for the reasons stated in the impugned order of conviction discarded the dying declarations recorded in the early morning on 14-9-1997 and held that the dying declarations recorded consequently on the same day at about 10.00 p.m. were reliable and corroborative by the evidence of the neighbours and that is how the appellant came to be convicted for all the offences.