RANGRAO LAXMAN RATHOD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT was tried for murder of his sister-in-law viz, the wife of his elder brother Tukaram Rathod ( PW1) by burning her. The prosecution case is that about one year prior to the incident,legs of Tukaram (PW1) were amputated and he was lame since then. Taking advantage of the situation that Tukaram had become lame, appellant was trying to persuade his wife Purnabai to have illicit relation with him. APPELLANT is said to have made attempts in that direction and more particularly about a month prior to the incident when he entered the house of his brother at about11. 00 p. m. , pulled the legs of Purnabai in order to have sexual relations with her,but since she raised cries and her husband got up, appellant ran away. On 12.6.1990 at about11. 00 a. m. while Tukaram was taking meals and Purnabai was standing near the door, appellant came from outside, poured kerosene on the person of Purnabai and set her on fire. APPELLANT ran away after setting her on fire. Purnabai raised hue and cry as a result of which two ladies, viz. Manoramabai and Zingabai came and extinguished fire. Purnabai was taken to hospital at about 01. 30 p. m. and she informed the doctor in presence of staff nurse that it was the appellant who had poured kerosene and set her on fire. She had suffered 96% burns. Later, her dying declaration was also recorded by the Executive Magistrate wherein again she confirmed that it was the appellant who had set her on fire after pouring kerosene. The Trial Court after relying upon the evidence of Tukaram Rathod (PW1), Dr Pawade (PW7), Staff Nurse Vatsala (PW6), Dr Khan (PW10) and Executive Magistrate Ambadas Samarth (PW5), held the appellant guilty for murder of Purnabai. The Trial Court in its judgment threadbare considered the contentions advanced by the defence as also the evidence on record for coming to the said conclusion.

(2.) LEARNED Advocate for appellant urged before me that the appellant has been falsely implicated on account of enmity between him and his brother Tukaram ( PW1); that there has been considerable delay in recording the statements of said Tukaram on account of which reliance on his testimony by the Trial court was misplaced. In respect of dying declaration (exhibit 34), it is urged that the doctor has not given certificate that the patient was in a fit state of mind to give statement and that taking into consideration the fact that deceased had suffered 96% burns, it would not be possible in such state for her to give any statement at 05. 00 p. m. on the same day of the incident. In respect of dying declaration (exhibit 39), it is urged that the thumb impression of the deceased has not been obtained and as such, it cannot be said that the said dying declaration is that of the deceased. On the basis of the above submission it is argued that the prosecution has not been able to prove the charges beyond reasonable doubt and benefit of doubt be given to the appellant-accused.

(3.) TUKARAM (PW1) who is husband of the deceased has stated that about one month prior to the incident, he was sleeping along with his wife and children and at about mid-night, appellant entered in his house; pulled the leg of his wife asking her to have sexual intercourse with him, but his wife raised cries on account of which he got up and the appellant escaped. He has further stated that even earlier to the incident also, the appellant used to ask his wife that her husband is lame so she should have sexual relations with him, but his wife refused. He has further stated that on the day of incident at about10. 00 a. m. he was taking meal and his wife was talking with him while standing near the door and at that time appellant came from back side, poured kerosene on his wife, lighted match-stick and set her on fire and thereafter he escaped. He has further stated that he was helpless as he is lame and could do nothing. The deceased went towards front of the house of Namdeo Rathod and his maternal aunt and niece Mannu extinguished fire. She was taken to the hospital by said Namdeo who also informed the Police Patil. This witness was cross-examined at great length, but nothing material could be elicited during his cross-examination so as to disbelieve this witness. The Trial Court had benefit of observing demeanor of this witness and believed this witness. We have absolutely no reason to take different view of the deposition of TUKARAM (PW1) who has in categorical terms proved that it was the appellant who had sprinkled kerosene on his wife and set on fire. 5a. Deceased Purnabi was taken to hospital by Namdeo Rathod (PW2 ). In the hospital, she was treated by Dr Pawade (PW7) who has stated that on12.6.1990 while he was on duty, burnt patient was brought in the hospital at 01. 30 p. m. in bullock cart. He started medical treatment and asked the said patient, viz. Purnabai as to who had set her on fire and she disclosed to him that it was her younger brother-in-law Rangrao who had poured kerosene on her and set her on fire. Doctor recorded statement of the deceased in question-answer form on OPD Card and the case papers. He has further stated that he had recorded the statement of deceased in question and answer form and the said statement is exhibit 39 Learned Advocate for appellant has urged before us that before recording statement, the doctor has not recorded his satisfaction that the patient was in a fit condition to give statement. The fact that Dr Pawade (PW7) has himself recorded the statement of deceased by itself shows that he was satisfied that the patient was in a fit mental state to give statement and in the circumstances it was not necessary for Dr Pawade (PW7) to specifically record this fact before recording her statement. According to him, the deceased had sustained third degree burns to the extent of 80-85%. He further confirmed during cross-examination that as dying declaration was to be recorded, he had not given her Diazepalm. This witness was also cross-examined at length, but nothing material could be elicited during cross-examination. 5b. It is urged by learned Advocate for appellant that thumb impression of the deceased was not taken on the statement recorded by Dr Pawade ( PW7 ). The said witness stated that he had not taken thumb impression on exhibit 39 since hands of deceased Purnabai were burnt. He is a totally disinterested witness and there is absolutely no reason to disbelieve his testimony. The evidence of this witness is corroborated by sister PW6 Vatchhala who has stated that at about1. 30 p. m. one bullock cart entered into the compound of hospital in which there was a lady who had sustained burn injury. She has further stated that doctor asked her as to who had set her on fire on which she gave the name of her brother-in-law as Rangrao Rathod. She further stated that doctor had asked the patient the reason to set her on fire on which patient replied that her husband was lame and appellant was asking her to have an affair with her. She confirmed that both the hands of deceased were burnt. She was also cross-examined, but could not be shaken during cross-examination and she stood to the test of cross-examination.