SHANKAR DOMBAJI INGLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal preferred by the appellant Shankar Ingle, who was accused in Sessions Trial No. 45 of 1998 before the II Additional Sessions Judge, Akola, challenging the judgment and order of conviction and sentence passed against him on27-10-1999 for offence under Section302 of the Indian Penal Code for committing murder of Suryakantabai who was living with him and also was treated as his wife.

(2.) THE incident which gave rise to the proceedings against the appellant took place on4th October, 1997 at about7 to 8 p. m. at the house of the appellant situated at Kailash Tekadi, Khadan, Akola, which is under Civil Lines Police Station, Akola. Deceased Suryakanta was having four children, namely, two sons and two daughters of her erstwhile husband and after his death, Suryakanta started residing with the applicant along with her children. It is borne out from the evidence on record that Suryakanta gave birth to male child born of the applicant, but unfortunately the said child subsequently died. THE relations between Suryakanta and the applicant/appellant were not that cordial as the appellant was addicted to liquor and he used to beat her and as such she was subjected to cruelty and ill treatment. On the date of incident, Suryakanta was preparing food and at that time the appellant Shankar came there and he asked her to serve meal to him. Suryakanta told the applicant that yet she was to prepare food and chapati. THE applicant got annoyed and then he at once expressed to her that he would teach her lesson by setting her on fire and on saying so the applicant, in fact, poured kerosene on the person of Suryakanta and set her on fire. Suryakanta shouted for help. On hearing her shouts, her neighbors including her sister Kusum (PW-4) and nephew Raju (PW-7) (son of Kusum) arrived there and they extinguished fire and brought Suryakanta to Civil Hospital, Akola. When she was admitted in the hospital, she disclosed to her sister Kusum that the accused on pouring Kerosene on her person, set her on fire in the house. THE authorities of the hospital, particularly Medical Officer, Dr. Vivek Phadke (PW-1), gave intimation to the Civil Lines Police Station, Akola about the arrival of victim Suryakanta having sustained burn injuries. In the course of time, on request being made, Special Judicial Magistrate Balwant Antarkar (PW10) reached to the hospital and after Dr. Phadke having examined Suryakanta about her physical and mental condition and after having issued Certificate (Exh. 16-A) to the effect that Suryakanta was fit to give statement, the Special Judicial Magistrate Balwant Antarkar recorded the statement of Suryakanta in the hospital. After the statement was recorded, Dr. Phadke examined Suryakanta and also certified that she was conscious during the period her statement was recorded. THE statement recorded by Balwant Antarkar is the dying declaration (Exh. 16-C ). Later on, while Suryakanta was in the hospital, P. S. I. Govind Mankar (PW-11) who was attached to Civil Lines Police Station also recorded statement of Suryakanta in the presence of witness Rambhau Wankhade (PW-2), who happened to be in the hospital for having come to see his niece. THE Statement recorded by P. S. I. Mankar is dying declaration (Exh. 19 ). Suryakanta made a disclosure in her dying declaration recorded that the appellant poured kerosene on her person and set her on fire. Suryakanta also disclosed this fact to her after Narayan Ingle (PW-8) and that is how Narayan Ingle claimed before the Court as regards the oral dying declaration made to him by Suryakanta. P. S. I. Mankar on the basis of the dying declaration (Exh. 19) registered offence vide Crime No. 451/1997 under Section307 of the Indian Penal Code on5-10-1997 and proceeded with the investigation. He visited the place of occurrence and prepared spot panchanama (Exh. 23) in the presence of panch witness Dhammasevak Shirsat (PW-3 ). At the time of making spot panchanama, the Investigation Officer felt smell of Kerosene in the room in which incident took place. He also found one tin tumbler. He collected the articles which were found there and prepared seizure memo (Exh. 23 ). During the course of investigation, the appellant came to be arrested on6-10-1997. Suryakanta though was undergoing treatment in the hospital, died on8-10-1997. Dr. Deepak Mankar (PW-5), who was Medical Officer, Civil Hospital, Akola, conducted autopsy on the dead body and prepared post mortem notes (Exh. 27 ). Doctor found that Suryakanta had sustained 58 per cent of burn injuries and she succumbed to those injuries while she was under medical treatment in the hospital. He has also categorically stated in his evidence before the Court that the burn injuries which he noted in post mortem report (Exh. 27) were possible if someone throws kerosene on the person and sets that person on fire. In his opinion, the cause of death was shock due to 58 per cent of burn injuries. Dr. Phadke (PW-1), who happened to examine Suryakanta first in time in the hospital, has stated in his evidence before the Court that burn injuries which she had sustained were of three and four degree. THE articles seized including the burnt pieces of saree of deceased Suryakanta were sent to Chemical Analyser for analysis. THE report of Chemical Analyser (Exh. 45 and 46) goes to show that the Chemical Analyser has detected kerosene in the earth which was collected from the spot and also on the pieces of saree, blouse which were collected from the spot. After completing investigation, the Chargesheet was filed in the Court of J. M. F. C. (Court No. IV), Akola, who committed the case to the Sessions Judge vide his order dated-27-2-1998.

(3.) THE prosecution mainly relies on the evidence of witnesses Dr. Phadke, Balwant Antarkar, P. S. I. Mankar, Rambhau Wankhede, Kusum, Raju and Narayan Ingle to establish that Suryakanta died homicidal death on account of burning by the appellant to her on pouring kerosene on her person. As stated earlier, Exh. 16-C is the first dying declaration recorded by Special Judicial Magistrate Shri. Antarkar in the presence of Dr. Phadke. We have gone through the evidence of Dr. Phadke who claimed that he examined the victim Suryakanta who has sustained burns and he found that her condition was sound. She was conscious and was able to make statement and accordingly he issued Certificate (Exh. 16 ). He has categorically stated in his evidence that he ascertained from the patient that she was fully conscious. He has made queries with her. He also took the history from the patient. He found that the patient namely Suryakanta was well oriented to the time and place. His evidence further goes to show that after the statement was recorded in his presence by Special Judicial Magistrate, he again examined Suryakanta and accordingly issued the Certificate (Exh. 16-A) when he found that the patient was fully conscious and she was in a condition to give the statement. In his evidence, she has stated that the victim Suryakanta accordingly gave the statement as recorded in Exh. 16-C by the Special Judicial Magistrate. Dr. Phadke was cross examined by the defence but nothing material has been brought to discredit his testimony. What we found that mere suggestions of denial that Suryakanta was not in a condition to talk, that she did not narrate the incident have been put to the witness which the witness has stoutly denied. THEre is a reason to accept his evidence. His evidence is further corroborated by the evidence of witness Antarkar who was present when Suryakanta was examined by Dr. Phadke. In fact, as stated by witness Antarkar, after he ascertained it from Dr. Phadke on his examining Suryakanta, he proceeded to record the statement. THE witness Antarkar then gave evidence as to how he recorded the dying declaration (Exh. 16-C) as per the narration made by victim Suryakanta and that after it was recorded, Dr. Phadke again ascertained about the physical condition of the victim and after having certified the same, he read over the statement to the victim which she accepted to be true and correct. THEre is no reason for witness Antarkar to give false evidence. He is an independent witness. He is no way concerned with the parties. THErefore, through the evidence of these tow witnesses, the dying declaration (Exh. 16-C) is clinchingly established. It is also established that the statement contained in Exh. 16-C is the true and correct statement by the victim Suryakanta.