GULAB RADHAKISHAN BHUREWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - This appeal takes exception to the conviction and sentence recorded against three brothers for their alleged participation in the killing of deceased Mangala by setting her on fire.

(2.) THE case of the prosecution is that appellants are the sons of Radhakishan and Jasobai, who were impleaded in the trial as accused 4 and 5. The victim, Mangala, and the appellants together with their parents lived within a short distance of each other. Mangala was residing with her widowed mother P. W. 7 Shantabai, a sister and a brother - the last named child being only 11 years of age. Mangala was about 20 years of age and rumour had it that she was carrying on an affair with Gulab. Gulab disregarding her attachment for him had contracted a marriage about a year prior to November 1985. Even so, Gulab continued to insist upon mangala sharing his company and giving him sexual satisfaction from time to time, Mangala relented, but eventually fell in within the persuasion of her mother that it was time for her to be an honest woman. Her mother possibly with her consent got her engaged to one Chandu from bhausingpura, Aurangabad. Marriage preparations were in progress, and this enraged the appellants and their parents. They used to come threatening and menacing Shantabai. Their complaint was that talk of illicit relations between Mangala and Gulab was detrimental to their reputation. Shantabai retorted that far from their prestige being affected, it was she who was suffering as whereas Gulab had got married, Mangala though marriagable, had not been able to get a suitable match. On 26 November 1985, at about 4 a. m. Shantabai woke up to find Mangala missing from her bed. Seeing that a bucket used by the family to draw water from the well was also not there, Shantabai assumed that Mangala had gone to fetch water. She therefore went towards the source from which the water was to be drawn. This was near the house of the appellants. Mangala was not to be seen there also, but from inside the house of the appellants came voices indicating a quarrel between Mangala on the one hand and the appellants and their parents on the other. The door of the house was closed from inside and Shantabai heard accused No. 5 speaking in a menacing tone to her daughter. Shantabai went to the Police Station at 6 a. m. and gave a report that Gulab was beating her daughter inside his house. The Head Constable who received this information reduced it to writing vide Exh. 40. He gave an assurance that as soon as the party patrolling at night returned, he would arrange to send for help. Shantabai returned home and was waiting in the court-yard of her house when she was a naked female severely burnt walking towards her. The sight frightened her and she uttered a scream. The figure spoke out that it was her daughter mangala. Shantabai asked Mangala as to what had happened. She then told her mother that Gulab had taken her inside his house and set her on fire and for so doing he had been helped by his brothers and mother. Having said this, Mangala collapsed and fell down. A little later a Police van came and Mangala was removed to the Government Hospital. At about 6-30 a. m. Gulab went to the Police Station and gave an information which again was reduced to writing that an unknown girl was lying burnt in front 01 his house. Mangala after being taken to the Civil Hospital was given first aid by P. W. 13 Dr. Kulkarni. Her body showed signs of extensive burns. By this time P. S. I. Idhate had taken over the investigation and had written to the Executive Magistrate to come instantly and record the dying declaration of the girl. The Magistrate, P. W. 9 mr. S. S. Pophle, respondent and after being told by Dr. Kulkarni that the girl was in a position to give a statement, proceeded to record her statement as per her narration which statement is at Exh. 37. Briefly, the declaration was to the effect that Gulab had prevented the girl from marrying, that the two of them had illicit relations, that he had poured kerosene on her person and then set her on fire, that while this was being done, she was held in captivity by appellants 2 and 3 and that she had somehow managed to come out of the house where the crime had been committed. In the meantime P. S. I. Idhate had gone to the house of the appellants and taken a search thereof. The scene of offence panchanama is at Exh. , 22. Mangala was racing towards death and the end came at the 13-00 hours. P. W. 8, Dr. S. B. Kulkarni performed a post-mortem examination and his notes are at Exh. 32. According to him, death was due to shock following deep burns to the extent of 99%. The investigation having been completed, the appellants and their parents were chargesheeted. A. J. M. F. C. after the usual enquiry, committed the accused to stand trial at the Sessions Court, Jalna. The Additional Sessions Judge before whom the appellants and their parents were arraigned, called upon them to show-cause as to why they should not be committed for commission of an offence punishable under Sections 302 read with Section 34 of the ipc. They pleaded not guilty their defence being that they had been falsely implicated. Insofar as Gulab was concerned, his stand was that he was. having an affair with Mangala, that she was disappointed at his marriage and that this disappointment was shared by Shantabai and that Mangala was persistent in her now unwelcome attentions to him. In support of its case, the prosecution examined a large number of witnesses and after their evidence was over, the trial Judge questioned the appellants and their parents. At that time, the appellants came up with the answers summarised above. The trial Judge was not prepared to rely upon the evidence vis-a-vis the alleged incrimination of the parents of the appellants. As to the appellants, he was satisfied and therefore after convicting them under section 302 simpliciter and read with Section 34, IPC sentenced them to R. I. for life. Each of the appellants was sentenced to pay a fine of Rs. 100/- and in default of such payment, was required to undergo further R. I. for a month.

(3.) HAVING heard Mr. Loya for the appellants and the P. P. for the state, we are of the opinion that the conviction and sentence recorded as against appellants 2 and 3 should be set aside. However, the guilt of appellant Gulab is made out and the sentence imposed upon him is entirely opposite. Therefore, in relation to Gulab, the appeal will be dismissed. Our reasons for so doing are as follows : -