JITENDRA JAGMOHAN DODIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal takes exception to the Judgment and Order passed by the additional Sessions Judge, Greater Bombay dated 6th February, 2002 in Sessions Case no. 1177 of 1992. The appellant has been found guilty of offence punishable under section 304 (1) of I. P. Code and ordered to undergo sentence of four years rigorous imprisonment and to pay fine of Rs. 2,000/-, in default to suffer further imprisonment for period of three months. The appellant was originally charge-sheeted and tried for offence punishable under section 302 and 342 of I. P. Code. The appellant is however, acquitted of those charges, but found guilty for offence under section 304 (1) of I. P. Code.

(2.) In short the prosecution case is that, the appellant accused had sour relationship with his wife (since deceased). They were staying alongwith mother and brother of the appellant/accused and children born out of the wedlock of appellant and his wife (deceased kiran) in room No. 63 at 3rd Kumbhar Wada, 4th floor, Gulab Mansion. It is the prosecution case that due to quarrel between the appellant and his wife, the appellant had left his house for sometime and returned back home 15 days prior to the date of incident. On returning home, the appellant started staying with his family members. Even after his return there was no respite and the quarrel between the husband and wife continued unabated. On the fateful day on 19th July, 1992 at about 6. 00 a. m. there was quarrel between the appellant and his wife Kiran on preparing tea. It is alleged that the appellant offered Rs. 400/- to the deceased Kiran, but in the heat of anger Kiran threw away the said currency on the appellant and said that the appellant may better give the said amount to his mother Kantaben. As the quarrel escalated, it is stated that the appellant left home. However, the appellant returned home at around 9. 30 a. m. Once again quarrel between the husband and wife erupted. According to the prosecution, the appellant asked his mother and daughter bhavana to go out of the room and poured kerosene on Kiran and set her ablaze with a matchstick. It is stated that Kiran cried for help as she was burning. It is alleged that Kantaben, who was waiting outside the room, heard such shouts and saw the appellant walking out of the room and locking the room from outside and going away. The said Kiran cried for help and tried to put out the fire by pouring water on herself. It is stated that the appellant/accused after sometime returned back with doctor to examine his wife. It is stated that P. W. 6 B. T. Jadhav, API received the message on telephone that female was burnt at third Kumbhar Wada, gulab Mansion, V. P. Road, Mumbai. He immediately made entry in the police diary to that effect and proceeded to the scene of offence. On reaching the scene of offence, P. W. 6 API jadhav found the appellant accused, his four years' daughter Bhavana and mother Kantaben present in the room and Kiran was lying on the cot covered with bedsheet (Chadar). According to this witness, he had enquired with Kiran about the cause of injury. Deceased Kiran named her husband having burnt her. As Kiran was seriously injured, she was removed immediately to J. J. Hospital at about 12 noon and came to be admitted in emergency ward. The history of injury given at the time of admitting Kiran in J. J. Hospital is stated as an assault and attempt to burn by relatives. Kiran was given necessary treatment in the hospital. It is stated that P. W. 6 api Jadhav intended to record the Dying declaration (Exh. 14) of Kiran. Accordingly, after taking approval from the doctor attending kiran at the relevant time, dying declaration (Exh. 14) came to be recorded. There is some controversy about whether the dying declaration is recorded after the arrival of SEO Vichare (P. W. 4) or the API Jadhav (P. W. 6) had already started recording statement of Kiran and completed the same substantially. Suffice it to observe that the dying declaration of Kiran is on record proved by the prosecution. Kiran succumbed to the injuries on 29th July, 1992. The Post Mortem report was prepared by Dr. Yusuf Machiswala attached to J. J. Hospital (P. W. 3). The Post-Mortem report examination reveals that Kiran had sustained 27% burn injuries mainly on the upper portion of her body and she succumbed to the said injuries. The appellant/accused was arrested on the date of incident. As Kiran died an unnatural death, offence under section 302 of I. P. Code came to be registered. Investigation of the case was carried out by API Jadhav (P. W. 6). On completing the investigation charge-sheet came to be filed. The appellant was charged for offence punishable under section 302 and 342 of I. P. Code.

(3.) To substantiate the charges, the prosecution examined in all six witnesses. P. W. 2 kantaben, mother of the appellant has been examined, who has spoken about the incident. Indeed, she has not seen how Kiran had caught fire as that episode had occurred inside the room. The prosecution has also examined P. W. 1 mohanlal Jain, who was staying in the neighbouring house. His evidence was to establish the seizure of clothes of the deceased kiran, which were soaked and smelled like kerosene. Both these witnesses turned hostile, for which reason Court granted permission to the prosecution to cross-examine those witnesses. With regard to the fact of admission of Kiran in J. J. Hospital and treatment given to her including antemortem injuries suffered by her, prosecution examined Dr. Mohan Warang (P. W. 5). Dr. Warang had not treated the deceased Kiran personally, but he deposed on the basis of the history and medical record as the doctor who has treated Kiran in the year 1992 was unavailable to give evidence. Prosecution also examined Dr. Yusuf Machiswalla (P. W. 3) , who has deposed about the details of the post mortem conducted by him and the finding noted by him. As is mentioned earlier, prosecution has examined SEO Vichare (P. W. 4) , who was called for recording Dying Declaration (Exh. 14) , to be given by Kiran. Prosecution has also examined API Jadhav (P. W. 6) who investigated the case and also recorded dying declaration himself in the presence of SEO Vichare (P. W. 4). Rest of the witnesses could not be traced.