BALU Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Five convicts in Sessions Case No. 126/2007 are before this Court in these two separate appeals under Section 374(2) of the Code of Criminal Procedure. Accused No. 3 Balu Ratan Kale has filed his appeal separately vide Criminal Appeal No. 246/2011. Other four accused, who are members of same family and close relatives of three deceased, have filed other appeal. Additional Sessions Judge, Washim has, vide judgment delivered on 19.4.2011, convicted appellants for offences punishable under Sections 143, 448 and 302 of the Indian Penal Code. He has acquitted all these accused of offences punishable under Sections 452 and 504 of the Indian Penal Code under S. 235(2) Cr.P.C. Punishment of Rigorous Imprisonment of six months and fine of Rs. 200/- (in default to suffer Simple Imprisonment for 15 days) is imposed for offence punishable under Section 143 of the Indian Penal Code. Punishment of Rigorous Imprisonment of six months and similar fine or punishment in default is ordered for offence punishable under Section 448 of the Indian Penal Code. Life Imprisonment with fine of Rs. 2000/- each and simple imprisonment for six months, in default thereof, has been awarded for offence punishable under Section 302 of the Indian Penal Code.

(2.) Dr. Kalsi, learned counsel for the appellants, has submitted that conviction is based only upon three dying declarations. Two dying declarations are given by Deepak S/o. Rambhau Thorat, while the remaining is given by his father Rambhau Thorat. She submits that in an incident alleged to have taken place between 20.00 to 20.30 hours at village Mungla on 14.9.2007, all accused persons are alleged to have forced entry into the residential house of deceased persons, poured kerosene upon them and burnt them. She points out that Rambhau was father of Deepak while Narmada was mother of said Deepak and wife of Rambhau. Accused No. 4 Badrinath is paternal uncle of deceased Deepak. Accused No. 5 Sau. Latabai happens to be his aunt and wife of Badrinath. Accused No. 1 Mangal and Accused No. 2 Amar are cousins of deceased Deepak i.e. sons of Badrinath and Latabai.

(3.) Learned counsel for the appellants contends that the prosecution could not produce any eyewitness and evidence of PW 1 Ashok Jagannath Thorat cannot be used against appellants. She points out that Ashok happens to be brother of deceased Rambhau as also accused Badrinath. She further states that their real sister Shobha has been examined as defence witness and she has stated that there was quarrel between deceased Narmada and her husband and as a consequences thereof, she having threatened to set herself on fire, did accordingly. Deepak and Rambhau tried to extinguish that fire and in the course suffered burn injuries. According to her, other prosecution witnesses are not very relevant insofar as this story is concerned. She points out that three dying declarations, which have been relied upon by Sessions Court to convict the appellants, are mutually inconsistent and, therefore, needed to be disbelieved. She submits that dying declaration, first in point of time, is alleged to be given by Deepak and recorded by PSI Kamble (PW 5). He was aware of all legal requirements like certification of Medical Officer and need of getting it recorded through an Executive Magistrate. Deepak, in this dying declaration, is alleged to have stated that his mother was set on fire by Balu Ratan Gopala and Mangal poured kerosene from kerosene can in the house of Deepak on the person of his mother Narmada. She was then set on fire. His uncle and aunt were instigating others to kill. She points out that this dying declaration is allegedly signed by said Deepak. PSI Kamble claimed that, on the basis of this dying declaration, he lodged First Information Report at 2.30 hours on 15.9.2007 under Sections 307, 147, 149, 452 and 504 of the Indian Penal Code. The other dying declaration of Deepak is recorded by Executive Magistrate Nirbhay Jain (PW3) on 15.9.2007 allegedly at 12.40 hours in afternoon. In this dying declaration, Deepak is claimed to have stated that all accused persons came together, beat them and confined them in house. His uncle Badrinath poured kerosene on his person and Mangal used match-stick to set him on fire. Kerosene was also poured on person of his father and mother.