ABDUL HAKIM NOORMOHAMMED BHATI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE first appeal has been filed by the Accused No. 1 who has been convicted and sentenced for the offence punishable under section 302 of the Indian penal Code simpliciter by the learned 3rd additional Sessions Judge at Ahmednagar vide his judgment and order dated 22nd August, 1986 in Sessions Case No. 78 of 1985, whereas the second appeal has been filed by the State against the order of acquittal recorded against accused Nos. 2 and 3 for the offence punishable under section 302 read with section 34 of the Indian Penal Code, by the very same judgment and order. The Accused No. 1 was, while admitting his appeal, refused bail initially on 12th September, 1986 as well as 30th October, 1986. However, by allowing criminal Application No. 1801 of 1986 he was released on bail vide order dated 14th november, 1986 and though it was directed that he shall report to the Ahmednagar City police Station once in a week, he has been absconding and could not be traced as per the report submitted by the District Superintendent of Police, Ahmednagar. All the three accused as well as the deceased hailed from the State of Rajasthan and at the relevant time they were all staying at Shrirampur in Ahmednagar district. The Accused No. 1 was contractor, the Accused Nos. 2 and 3 were masons, whereas the deceased was a marble artisan and he was working for Respondent No. 1.

(2.) AS per the prosecution case, the accused No. l had to pay an amount of rs. 5,800/- to the deceased by way of his accumulated/unpaid labour charges and on 18th March, 1985 the Accused No. l had promised the deceased that on the next day he would be paid the said amount. The deceased, therefore, approached the Accused No. l for collecting the amount of Rs. 5,800/- from accused No. 1 at about 4. 45 p. m. in the vicinity of Siddharth Hotel, which was under construction and Accused No. l was the contractor for the same. The said hotel was being constructed by P. W. 7 Babasaheb fargade and its Architect was D. W. 1 subhashchandra Shridhar Phegade. When the deceased Hanumant demanded the payment of rs. 5,800/- from the Accused No. l, the accused asked the deceased to come to his room in the premises of the hotel and when they went there, he disowned the liability of payment. The deceased was initially annoyed but subsequently went on requesting the accused No. 1 for payment as it was his hard-earned money. The Accused No. 1 asked the deceased to leave the room immediately as he did not owe any money and when the deceased persisted in his demand, the Accused No. 1 asked Accused Nos. 2 and 3 to pour kerosene on the person of the deceased. Accused No. 2 poured kerosene and Accused No. 3 set him on fire with the help of candle at about 8. 00 p. m. The deceased ran out of the room and jumped into the water cistern. As the incidence had taken place during the night time, some neighbours had seen the accused running from the room to the water cistern in the premises of Hotel Siddharth and P. W. I Nemichand bhagchand Katariya was one of such persons. P. W. 7 Babasahab @ Abasaheb Bhagwat fargade had also come to know about the incidence and these people rushed to the spot. The deceased was extricated from the water cistern and it was noticed that the upper portion of his body had sustained burn injuries. While he was made to lie on the ground/floor near the water cistern, he alleged to have made oral disclosure to P. W. I Nemichand and P. W. 7 babasaheb amongst others to the effect that it was Accused No. 1 who had set him on fire. P. W. 7 Babasaheb- hotel owner, had contacted the police who reached the site within the shortest possible time and the deceased was taken to the police station. By then, P. W. 2 sita w/o. Arun Molkar (the wife of the deceased) had reached the hotel, inquiring about her husband's whereabouts and she was informed that a Rajasthani person had sustained burn injuries and he was taken by the police. She, therefore, went to the police station and saw her husband in the police van with burn injuries on his upper limbs. On her inquiries, she was told that the Accused No. 1 asked Accused Nos. 2 and 3 to set him on fire and that is how he sustained burn injuries. He was then taken to the municipal hospital where he was admitted but was subsequently shifted on the next day at about 11. 00 a. m. in St. Luke's Hospital. The doctor, at the municipal hospital, noticed that the deceased had suffered about 37% burn injuries. While under treatment at St. Luke's Hospital, Hanumant breathed his last on 31st of March, 1985 and while he was undergoing treatment at the municipal hospital the prosecution claimed that his dying declaration was recorded by p. W. 3 Shaikh Dastagir Shamsoddin (Exhibit-13), Special Executive Magistrate and P. W. 13 pratapsinha Dattatraya Nishandar (Exhibit-46 ). The accused were taken in custody on 20th March, 1985 and a T. I. Parade was arranged in St. Luke's Hospital by P. W. 13 nishandar so that the deceased could identify the accused. Identification parade panchanama was accordingly drawn at exhibit-33 in which also the dying declaration of the deceased came to be incorporated.

(3.) ON completion of investigation the charge-sheet was submitted and the case came to be committed to the Sessions Court. Charge was framed at Exhibit-1 for an offence punishable under section 302 read with section 34 of the Indian Penal Code against all the accused, jointly. The accused pleaded not guilty. The prosecution examined in all 13 witnesses whereas the defence examined one witness. P. W. 4 Dr. Ashokkumar Kundanmal lodha was the medical practitioner and he had constructed Anand Nursing Home at Nagar-Manmad Road by engaging P. W. 6 Prakash narayan Joshi of Shrirampur. The marble work was given by P. W. 6 Joshi to Accused no. 1 and the deceased Hanumant had worked as a marble artisan for the same building on account of which the Accused No. 1 allegedly owed an amount of Rs. 5,800/- to the deceased. P. W. 5 Dr. Trimbyak Deoram Khot was attached to the Municipal Hospital at shrirampur and on the date of the incident he was on duty and he certified that the deceased had sustained 24% burn injuries on 19th march, 1985 (Exhibit-16 ). The post-mortem was conducted by the said doctor on 1st April, 1985 between 8. 00 to 10. 00 a. m. and he certified that the deceased had suffered 37% burn injuries; as noted in the post-mortem report at Exhibit-17.