BABAR MOHAN DUBALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants/accused in both these appeals were tried together, found guilty and sentenced by Add1. Sessions Judge, Palghar, District thane, at the Conclusion of Sessions Case no. 17 of 1998. By the Judgment delivered on 26-4-2001, the learned Sessions Judge has held the appellants/accused guilty for the offences punishable under Sections 452, 302 r/w Section 34 of Indian Penal code (IPC) and sentenced them to suffer ri for six months, so far as offence under section 452 of IPC is concerned, life imprisonment and fine of Rs. 1000/-, i. e. RI for three months regarding offence under section 302 of IPC. The substantive sentences are also ordered to run concurrently. Feeling aggrieved by the finding of guilty, the Judgment of conviction and the sentences imposed, the appellants have challenged the same by these two appeals under Section 374 (2) of the Code of Criminal procedure, 1973.

(2.) The prosecution story can be summed up as follows: the incident in question is said to have occurred on 19-4-1997 at about 01:00 hours i. e. at the midnight hours between 18th and 19th April, 1997. The location of the incident is residence of deceased Besti, wife of Bachchu Dubala, at Vangaon, Taluka dahanu, District Thane. Accused No. 1 babar is the husband of accused No. 3 Besti. Accused No. 2 Aalu is the brother of accused No. 1. Admittedly, the houses of the deceased and the accused are opposite to each other and fhere is open space between the two houses. It is the claim of the prosecution witnesses that there was a dispute about this open space between the parties. On 18-4-1997 the victim had been to the house of PW-3 Vinod, who is the brother of Bachchu (PW-1). Bachchu is the husband of deceased Besti. She departed at about 10:00 p. m. and she returned only after watching complete movie. On returning home, she latched the door from inside and sat down for her dinner. She noticed that somebody opened the door by putting hand through the door slit and opening the latch. She noticed that all three accused entered her residence. Accused No. 3 Besti uttered a threat that she would kill her. The male accused persons then gripped the victim and accused No. 3 poured kerosene on the person of the victim from the kerosene tin in the house of the deceased herself. Accused No. 3 only is said to have ignited the victim Besti. The accused persons thereafter departed. PW-1 Bachchu claims that he woke up to find that his wife was ablaze. Similar is the claim of Vinod, who states that upon hearing shouts of the victim " ", he rushed towards her house to find that the victim was on fire. None of the brothers claim to have seen either of the accused persons, either while setting the victim on fire or at least while running away. The victim was initially taken to local hospital at Vangaon, then to Dahanu and ultimately to J. J. Hospital at Mumbai. It appears that the statement of the victim was recorded at J. J. Hospital, once by PW-5 vinayak Pawar, who is a Special Executive magistrate and also by PSI Vanjari, then attached to J. J. Marg Police Station (not examined by the prosecution). The statement as recorded by PSI vanjari when transmitted to Vangaon police Station was treated as FIR by PW-6 pradeep Jadhav (PSI then attached to vangaon Police Station). On completion of the investigation, charge-sheet was filed and after committal by the Magistrate, the trial ended in conviction as described hereinabove,

(3.) Apart from the witnesses already referred during narration of the prosecution story, the remaining witness is PW-4 Dr. Bhalchandra Chikalkar who performed the autopsy on the dead body of Besti on 24-5-1997. He has recorded that the victim had suffered 60% superficial to deep burn injuries, which were by that time infected and the death was as a result of shock due to burns. The defence has not seriously chal-lenged the cause of the death and therefore in the remaining part of the Judgment we are unlikely to refer to evidence of Dr. Bhalchandra.