Full Judgment Text
2018:BHC-AS:28275-DB
Cri.Apeal 723.13.doc
1
JPP
THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.723 OF 2013
Suraj Jagannath Jadhav
Age: 28 years, Occupation:Service,
R/o. Gharkul Gayran, Vitthalwadi,
Dehugaon, Tal. Haveli, District Pune
(At present in Yervada Central
Prison, Pune) ...APPELLANT
VERSUS
The State of Maharashtra
(Through Dehu Road Police Station,
Dehu Road, District Pune) ...RESPONDENT
...
Mr. V.B.Shivarkar, Advocate for Appellant.
Ms. M.H. Mhatre, A.P.P. for Respondent State.
...
CORAM: S.S. SHINDE AND
A.S. GADKARI, JJ.
DATE: 9TH OCTOBER, 2018
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
st
Judgment and order dated 21 December, 2012,
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passed by the Sessions Judge, Pune in Sessions
Case No.317 of 2011, thereby convicting the
Appellant/accused – Suraj Jagannath Jadhav for the
offence punishable under Section 302 the Indian
Penal Code [for short 'IPC'] and sentencing him to
suffer imprisonment for life and also to pay a
fine of Rs.100/, in default of payment of fine to
suffer rigorous imprisonment for six months. Hence
this Appeal is filed by the Appellant challenging
the conviction and sentence.
2. The prosecution case, in brief, is as
under:
A) Jayshree Suraj Jadhav [deceased] is
second wife of accused – Suraj Jadhav. Accused
Suraj married with Jayshree seven years prior to
the incident and out of the said wedlock, a female
child namely Swamini, aged about six years, was
born. The couple was residing at Vitthalwadi,
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Dehugaon, Pune, an area where their other
relatives also used to reside. Prior to marriage
with Jayshree the accused Suraj had performed
marriage with a lady by name Sarika, 9 or 10 years
before to the incident. After divorce, said
Sarika used to reside at Ganjpeth area. After
marrying with deceased Jayshree, accused Suraj had
performed third marriage with one Vaishali, two
years prior to the incident. However, said
Vaishali returned to her parents at Mumbai because
of her ailment and harassment by the accused.
According to the prosecution case, accused used to
harass, abuse and beat deceased Jayshree. He was
having habit of consuming liquor.
B) The alleged incident took place at the
st
residential house of the couple on 21 January,
2011, at about 9.30 p.m. According to the
prosecution, in that night Jayshree cooked food
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and served it to the accused. The accused started
abusing Jayshree by suspecting her character.
While he was taking dinner, he got about 1520
missed calls on his mobile handset. Hence,
Jayshree asked him about the caller. The accused
informed her that his first wife Sarika was
calling him from Ganjpeth and she was asking him
to reside with her separately. Jayshree told the
accused that he had taken divorce from said Sarika
and apart from having one daughter, she is
carrying pregnancy of five months. The accused
then started abusing and beating her by telling
her that she should maintain the child and he does
not want to cohabit with her and wish to cohabit
with his earlier wife Sarika. In the process of
beating Jayshree, the accused poured kerosene on
her person. Drenched with kerosene, Jayshree went
upto front door of the house for saving her life.
However, when Jayshree was opening the chain of
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the front door, accused threw a burning matchstick
on her person from behind and set her ablaze.
Jayshree came outside the house in burnt
condition. Upon hearing her shouts, her sister
Mangala Mahapure, her brother Ramesh Telang,
cousin Sakharbai Shinde gathered there. Accused
Suraj poured water on the person of Jayshree.
After extinguishing fire from the person of
Jayshree, she was initially taken to Y.C.M.
Hospital, PimpriChinchwad, Pune and from there
she was admitted to burn ward of the Sasoon
Hospital, Pune for her medical treatment.
C) On getting information about admission of
Jayshree Jadhav with burn injuries at Sasoon
st
Hospital, Pune, in the night intervening 21
nd
January, 2011 and 22 January, 2011, Police Head
Constable Dhananjay Sawant of Dehu Road Police
Station, went to the Sasoon Hospital, Pune after
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getting her examined from Dr. Pravin Surwase, he
recorded statement of Jayshree at about 2.30 to
nd
3.00 a.m. of 22 January, 2011. Thereafter, on
visiting the spot of the incident, Police Head
Constable Dhananjay Sawant recorded spot panchnama
in presence of panch witnesses and seized plastic
Can containing ½ liter kerosene and matchbox from
the spot which was house of the accused, shared by
th
deceased Jayshree. On 24 January, 2011, Vijay
Ambadas Telang, brother of deceased Jayshree
lodged FIR which has resulted into registration of
Crime No.37 of 2011, under Section 307, 323, 504
and 506 of the IPC against the accused.
th
Thereafter, accused came to be arrested. On 25
January, 2011, in presence of panch witnesses
jeans pant and shirt worn by the accused at the
time of incident, came to be seized by preparing
seizure panchnama.
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D) Investigating Officer, Ranjeet Bhoite,
PSI had recorded second dying declaration of
Jayshree Jadhav by visiting Sasoon Hospital, Pune
th
on 25 January, 2011, and by reading over her
nd
statement dated 22 January, 2011 to her.
th
On 26 January, 2011, Jayshree died while taking
medical treatment at Sassoon Hospital, Pune. After
taking inquest notes, her dead body was sent for
postmortem examination. Section 302 of the IPC
came to be added to the case diary of the crime.
During the course of investigation, statement of
witnesses came to be recorded, seized muddemal was
sent for Chemical Analysis. On completion of the
investigation, the accused was chargesheeted for
the offence punishable under Section 302 and 498A
of the IPC.
E) As the offence punishable under Section
302 of the IPC was exclusively triable by the
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Court of Sessions, the learned Judicial Magistrate
First Class, committed the case to the Court of
Sessions.
F) A charge for an offence punishable under
Sections 302 and 498A of the IPC was framed
against the accused and the same was explained to
him. The accused pleaded not guilty and claimed to
be tried.
3. After recording the evidence and
conducting fullfledged trial, the trial Court
convicted the Appellant – accused for the offence
punishable under Section 302 of the IPC and
sentenced him to suffer life imprisonment and to
pay fine, as aforestated. Hence this Appeal is
preferred by the accused – Appellant challenging
the conviction and sentence.
4. Mr. Shivarkar, learned counsel appearing
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for the Appellant submits that the Appellant has
not committed any crime and he has been falsely
implicated by the relatives of the deceased. The
case of the prosecution is unbelievable and the
motive tried to be imputed is not trustworthy.
There is an inordinate delay in lodging the First
Information Report and the explanation offered by
the informant for such delay is unbelievable and
untrustworthy. The dying declarations are
concocted versions of the deceased as she was
tutored by the relatives. The spot panchnama does
not reveal that, Jayshree must have been burnt
while within the house. The spot panchnama does
not disclose any signs of scuffle or resistance.
The learned counsel further submits that if the
Appellant had an intention to commit murder of his
wife, he would not have tried to extinguish the
fire and would not have immediately shifted her to
the Hospital. In support of his submissions,
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learned counsel placed reliance upon the
exposition of law in the case of Shantilal @
Lakhan Purandar Kamble vs. The State of
1 2
Maharashtra and Kalu Ram vs. State of Rajasthan .
Learned counsel therefore submits that the appeal
may be allowed.
5. On the other hand, Mrs. Mhatre, learned
APP invites our attention to the dying
declarations recorded by the Police Head Constable
and PSI and submits that both dying declarations
are trustworthy and reliable. She further invites
our attention to the evidence of PW1 Vijay and
PW4 Ramesh to whom oral dying declarations were
given by deceased Jayshree. She further submits
that after considering the entire evidence on
record, the trial Court has convicted the accused
and findings recorded by the trial Court are in
1 2016 All M.R. [Cri.] 3453
2 (2000) 10 S.C.C. 324
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consonance with the evidence brought on record.
The learned APP, therefore, submits that the
Appeal may be dismissed.
6. Heard learned counsel appearing for the
Appellant and learned APP appearing for the State
at length. With their able assistance, we have
carefully perused the entire notes of evidence so
as to find out whether the findings recorded by
the trial Court are in consonance with the
evidence brought on record or otherwise.
7. To prove its case, the prosecution has
examined as many as 7 witnesses. Before discussing
the evidence regarding the incident, reference
needs to be made to the spot for better
appreciation of the evidence. The spot panchnama
is at Exhibit19. The spot panchnama is proved by
the panch witness PW2 Ravindra Mohan Misal. The
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spot panchnama shows that the spot of the incident
is the house of the Appellant, consisting of two
rooms. In the room where the incident took place
there was one matchbox and matchsticks, near the
door there were two matchsticks in half burnt
condition. The household articles were found
scattered in the house. One plastic Can without
cover, containing ½ liter kerosene was also seen
on the spot of incident. To the entrance of the
inner room there is no door, but the front room
has door, having a latch from inside and outside.
8. PW5 Dr. Nitin Anantrao Patil deposed
that he himself and Dr. Sanjay Kalyani conducted
postmortem examination on dead body of Sou.
Jayshree Suraj Jadhav from 7.00 a.m. to 8.00 a.m.
th
on 27 January, 2011. On external examination they
found following external injuries on the dead body
of Jayshree:
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1) Injection mark on both ankles medially 3
cm. Each with two stitches (Therapeutic)
2) Superficial to deep burns seen over
following parts of body:
I) Head, neck and face : 05%
II) Upper Limb (Right) : 07%
(Left) : 07%
III) Chest and Abdomen : 13%
IV) Lower limb (Right) : 03%
(Left) : 03%
V) Back : 13%
VI) Genital : 00%
Total 51%
9. PW5 Dr. Nitin further deposed that on
internal examination they found brain matter
congested and edematous. In stomach 150 cc. semi
digested food was found with no peculiar smell.
The medical officer further deposed that all burn
injuries were antemortem in nature and were
sufficient in the ordinary course of nature to
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cause a death of a human being. He further deposed
that cause of death was 'shock due to burns'.
10. Thus, evidence of PW5 Dr. Nitin shows
that Jayashree had received 51% burn injuries, all
burn injuries were antemortem and were sufficient
in the ordinary course of nature, to cause a
death, and the cause of death was 'shock due to
burns'.
11. Now, we will refer to the written dying
declarations recorded at Exhibit22 and
Exhibit33. PW3 Dhananjay Yashwant Sawant,
working as police head constable at Dehu Road
Police Station at the relevant time, deposed that
st
on 21 January, 2011, he received information that
Jayshree Jadhav sustained burn injuries and was
nd
admitted at Sasoon Hispotal, Pune. On 22 January,
2011, at about 2.30 a.m. to 3.00 a.m., he recorded
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statement of Jayshree. Initially he met Dr.
Surwase who examined Jayshree. After examining her
blood pressure, doctor told that Jayshree was fit
to give statement. Evidence of PW3 Dhananjay
further shows that he recorded statement of
Jayshree in presence of the doctor. Jayshree told
him that her husband Suraj Jadhav had poured
kerosene on her person and set her ablaze by
burning match stick. Whatever stated by Jayshree
was recorded by him as per her say, he obtained
her left thumb impression on her statement. He
also obtained certificate from the doctor on that
statement. He proved the dying declaration
Exhibit22.
12. PW6 Dr. Pravin Tukaram Survase deposed
nd
that on 22 January, 2011 when he was present on
his duty at Sasoon Hospital, Pune, a patient named
Jayshree Suraj Jadhav, aged about 32 years, was
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brought by her relatives at 12.14 a.m. She was
having about 44% superficial to deep burn
injuries. He examined the patient and found to be
conscious and oriented to time, place and person.
Jayshree was running to 18 to 20 weeks pregnancy.
Patient and her relatives gave history of
homicidal burns.
13. About examination of the patient Jayshree
at the time of recording dying declaration,
evidence of PW6 Dr. Pravin Survase shows that on
nd
22 January, 2011, police personnel from Dehu Road
police station came to burn ward to record
statement of Jayshree. He examined Jayshree and
found her to be conscious, oriented and capable of
making valid statement. Thereafter police recorded
statement of Jayshree. During recording statement
of Jayshree, her condition was stable. He was
present near the patient during recording of her
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statement. On completion of recording of statement
of Jayshree, he gave endorsement about her fitness
on the statement. He proved the endorsement in
margin about the fitness of Jayshree on the
statement Exhibit22. His evidence further shows
that the said endorsement is in his handwriting
and bears his signature.
14. Thus, it is clear that the prosecution
has proved the dying declaration Exhibit22. On
conjoint reading of evidence of PW3 Dhananjay
Vijay and PW6 Dr. Pravin, it shows that before
recording the dying declaration every precaution
was taken. Before recording the statement, the
patient was examined by the medical officer and
when it was certified by the medical officer that
patient was conscious and well oriented, her
statement was recorded, and after completion of
the statement also the doctor examined the victim
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and endorsed that she was conscious and well
oriented. The evidence of this medical officer
also shows that at the relevant time Jayshree was
carrying advance pregnancy of 18 to 20 weeks.
15. Dying declaration Exhibit22 shows that
the victim, after referring to the family members
in the house and a daughter she had, stated that
her marriage with accused solemnized about seven
years prior to the incident. She further stated
that it was the second marriage of her husband and
prior to marriage with her, accused had earlier
performed marriage with one Sarika but thereafter
took divorce from said Sarika. She further stated
that after performing marriage with her, her
husband again performed marriage with one Vaishali
but she was not residing with the accused and had
gone to reside with her parents. She further
stated that since two years after the marriage,
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her husband used to harass, abuse and beat her.
16. About the incident, Jayashree has stated
st
in the dying declaration that on 21 January, 2011
at about 9.30 p.m., she served food to the
accused. The accused started abusing her by
suspecting her character. Accused was under the
influence of alcohol. While accused was taking
dinner, he received about 1520 missed calls on
his mobile handset. Therefore, Jayshree asked
accused as to who was calling her on mobile
handset. The accused replied that his first wife
Sarika was calling him from Ganjpeth and Sarika
was asking him to reside with her separately.
Hence, Jayshree told the accused that he had taken
divorce from said Sarika and that she is having
one daughter and also carrying pregnancy of five
months. Accused told Jayshree that the said facts
make no difference for him and that she should
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maintain the child, and saying this, accused
started abusing and beating her and when resisted,
stated that he does not want to cohabit with
Jayshree and wish to reside with his first wife
Sarika. Jayshree further stated that, in the
process of beating her, accused took out the
kerosene from the Can which was available in the
house and poured kerosene on her person. In order
to save her life, Jayshree started running towards
the front door of the house and when she was
opening the chain of the front door, accused
thrown a burning matchstick on her person from
behind and set her ablaze. She came outside the
house in burnt condition. Upon hearing her shouts,
accused Suraj poured water on the person of
Jayshree and tried to extinguish the fire. After
extinguishing the fire, her sister Mangala
Mahapure, Sakharbai Shinde and Ramesh Telang
initially took her to Y.C.M. Hospital, Pimpri
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Chinchwad and from there she was shifted to burn
ward of Sassoon Hospital at 12.00 midnight.
17. Thus, the dying declaration Exhibit22
shows that Jayshree has given minute details about
the incident. She has stated about Sarika, first
wife of accused and also about Vaishali, third
wife of her husband accused. Thus, it is clear
that while recording the dying declaration she was
fully conscious. She narrated all the incident in
rational manner. Thus, dying declaration
Exhibit22 is trustworthy, reliable and inspires
full confidence.
18. PW7 Ranjeet Vilasrao Bhoite deposed that
he was serving as Police SubInspector at Dehu
road Police Station at the relevant time. He
nd
further deposed that on 22 January, 2011, one
Dhananjay Sawant, Head Constable serving at Dehu
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Road Police Station had recorded statement of
Jayshree Jadhav at Sasoon Hospital, Pune. PW7
th
Ranjeet further deposed that on 25 January, 2011,
he went to Sasoon Hospital, Pune, he met Dr.
Survase in burn ward. He further deposed that in
his presence Dr. Survase asked the patient –
Jayshree as to whether she was in a position to
give a statement. Jayshree replied in the
affirmative. He further deposed that then he read
nd
over the statement given by Jayshree on 22
January, 2011. Jayshree stated that the contents
of the said statement were correct. Then he
obtained endorsement of Dr. Survase on the said
statement. Prior to that he has recorded statement
of Jayshree Jadhav. Impression of her left thumb
was taken on her statement. He further deposed
that he had also signed statement Exhibit – 33.
19. Regarding the statement recorded by PW7
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– Ranjeet, the evidence of PW6 Dr.Pravin is that
th
on 25 January, 2011, he was called on duty at
Sassoon Hospital, Pune at the instance of Police.
On that day, again statement of Jayshree was
recorded by Police. He was near the patient at the
time of recording her statement. Condition of
Jayshree was stable while recording her statement
by Police. He had examined Jayshree prior to
recording of her statement. After recording of
statement of Jayshree by Police, he gave
endorsement regarding her condition in the margin
of the said statement. He proved the endorsement
(Exhibit – 29) given by him regarding fitness of
Jayshree, which is in his handwriting and bears
his signature.
20. Jayshree mentioned in the statement
(Exhibit23) that she was taking treatment in the
burn ward of Sasoon Hospital. She was fully
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conscious and upon asked, she stated that her
nd
statement which was recorded on 22 January, 2011,
was read over to her, the contents of the same are
correct and recorded as per her say. Jayshree
again stated that she was taking treatment in the
hospital and was fully conscious. Regarding her
conscious, in the margin of the said statement
there is endorsement of the doctor that patient
was conscious and oriented to give the statement.
21. As observed earlier, the prosecution has
conclusively proved the dying declaration
Exhibit22. The same is reliable and trustworthy.
The prosecution has brought on record, through the
evidence of Medical Officer PW6 Dr. Pravin
Survase that before and after recording the
statement, he has examined the patient and found
her to be conscious and well oriented to give the
statement. Further, the prosecution has proved the
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statement (Exhibit – 33) recorded by PW7 Ranjeet
Bhoite, wherein Jayshree has specifically admitted
nd
that her statement dated 22 January, 2011, was
recorded as per her say and the contents of the
same were correct. Further, before and after
recording the statement Exhibit33, Dr. Pravin
Survase (PW6) examined Jayshree and endorsed that
she was conscious and well oriented to give
statement. Thus, the dying declaration is
trustworthy and reliable.
22. Apart from the above dying declarations,
the prosecution has brought on record two oral
dying declarations. Therefore, it would be
appropriate to discuss the evidence of other
prosecution witnesses. PW1 Vijay Ambadas Telang
is the brother of Jayshree, who is also informant
in the present case. He deposed that Jayshree was
his sister. She married with Suraj Jadhav 5 to 6
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years prior to the incident. The incident took
st
place on 21 January, 2011. After receipt of the
information of the incident, he went to Sasoon
Hospital, Pune and met Jayshree. PW1 Vijay
further deposed that he asked Jayshree as to what
happened and Jayshree told him that her husband
Suraj Jadhav consumes liquor and abuses her,
suspects her character. He further deposed that
said fact was disclosed by Jayshree to him even
prior to one month of the incident. He further
deposed that Jayshree told him that she served
food to her husband Suraj. Jayshree told him that
Suraj received 15 to 20 missed calls from his
first wife Sarika. Jayshree questioned Suraj as to
who was calling him and Suraj informed her that it
was his first wife Sarika and they have decided to
reside jointly. Jayshree told Suraj that they were
married and Suraj has divorced his first wife.
Jayshree told Suraj that they are having a
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daughter aged about 6 years and she is running
pregnancy of 5 months. Suraj told Jayshree that it
makes no difference and she should take care of
the daughter. Then Suraj abused and assaulted her,
and thereafter poured kerosene from a Can on her
person and in order to save herself, Jayshree ran
out of the house but she could not remove the
chain of the door. Suraj came from behind and
threw a burning matchstick on her person. As
Jayshree caught fire, she ran outside the house
and neighbours came and extinguished the fire.
Thereafter neighbours took Jayshree to the
Hospital. PW1 Vijay further deposed that Jayshree
disclosed all the above facts to him at about
nd
00.30 hours of 22 January, 2011.
23. Thus, through the evidence of this PW1
the prosecution has brought on record the oral
dying declaration given by Jayshree to her brother
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when she was admitted in the Hospital and taking
treatment. Thus dying declaration Exhibit22 is
corroborated by the oral dying declaration given
to PW1.
24. PW4 Vijay Ambadas Telang is another
brother of Jayshree. He deposed that his sister
Jayshree got married with Suraj seven years prior
to the incident. He further deposed that the
st
incident took place on 21 January, 2011. He was
at his house. House of Jayshree was at a distance
of 30 to 40 feet from his house. At about 9.15
p.m., he heard shouts and therefore came out of
the house. Jayshree was lying in burnt condition
in the front yard of the house. Mangala Mahapure,
Nitin Mahapure, Sakharbai Shinde and Suraj Jadhav
were near Jayshree. In Sumo Vehicle, they took
Jayshree to Y.C.M. Hospital, PimpriChinchwad,
Pune. After preliminary treatment, she was
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referred to Sasoon Hospital, Pune. He was with
her. She was admitted in burn Ward at Sasoon
Hospital.
25. PW4 Ramesh further deposed that in the
Ambulance he asked Jayshree as to what happened.
Jayshree told him that her husband received 20 to
22 missed calls on his mobile handset and
therefore she asked accused about those missed
calls. Jayshree told that her husband told her
that she should not ask him and she is having one
daughter to whom she should maintain. Jayshree
told that she was running pregnancy of 5 months.
Jayshree told that missed calls were by first wife
of her husband who was living in Ganjpeth.
Jayshree told that her husband poured kerosene on
her person and set her ablaze. Jayshree told that
nylon sari worn by her caught fire. He further
deposed that Jayshree was admitted in Sasoon
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Hospital, Pune for six days and thereafter she
died.
26. Thus, on conjoint reading of the oral
testimony of PW1 Vijay and PW4 Ramesh it is
clear that the dying declaration Exhibit22,
recorded by the Police Head Constable and further
the statement Exhibit33 recorded by the PSI, get
corroborated by the oral dying declarations given
by Jayshree to her brothers namely Vijay (PW1)
and Ramesh (PW4). The prosecution has brought on
record that, at the time of incident the Appellant
was present in the house. Even otherwise it is
presumed that during the night time the house
members are bound to be in the house unless any
plausible explanation is offered for absence. The
Appellant did not offer any explanation in this
regard. Therefore, the onus lies on the Appellant
to explain how Jayshree caused burn injuries.
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27. The Supreme Court in the case of State of
3
Rajasthan Vs. Thakur Singh while explaining the
scheme of provisions of Sections 101 to 106 of the
Evidence Act, 1872, and its scope in para 22 to 24
held thus:
"22. The law, therefore, is quite well
settled that the burden of proving the
guilt of an accused is on the prosecution,
but there may be certain facts pertaining
to a crime that can be known only to the
accused, or are virtually impossible for
the prosecution to prove. These facts need
to be explained by the accused and if he
does not do so, then it is a strong
circumstance pointing to his guilt based on
those facts.
23. Applying this principle to the facts of
the case, since Dhapu Kunwar died an
unnatural death in the room occupied by her
and Thakur Singh, the cause of the
unnatural death was known to Thakur Singh.
There is no evidence that anybody else had
3 2014(12) SCC 211
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entered their room or could have entered
their room. Thakur Singh did not set up any
case that he was not in their room or not
in the vicinity of their room while the
incident occurred nor did he set up any
case that some other person entered the
room and caused the unnatural death of his
wife. The facts relevant to the cause of
Dhapu Kunwar’s death being known only to
Thakur Singh, yet he chose not to disclose
them or to explain them. The principle laid
down in Section 106 of the Evidence Act is
clearly applicable to the facts of the case
and there is, therefore, a very strong
presumption that Dhapu Kunwar was murdered
by Thakur Singh.
24. It is not that Thakur Singh was obliged
to prove his innocence or prove that he had
not committed any offence. All that was
required of Thakur Singh was to explain the
unusual situation, namely, of the unnatural
death of his wife in their room, but he
made no attempt to do this."
28. In the present case also, the prosecution
has discharged its burden of firmly establishing
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that deceased Jayshree was last seen in the
company of the Appellant. The Appellant did not
offer any explanation how Jayshree received such
extensive burn injuries of 51%. The said facts
were within the special knowledge of the Appellant
and therefore it was obligatory on the part of the
Appellant to explain how Jayshree received such
burn injuries. In these circumstances the dying
declaration of Jayshree that Appellant poured
kerosene on her person and set her on fire has to
be accepted, as the same is corroborated by oral
dying declarations given to informant Vijay (PW1)
and Ramesh (PW4) and other circumstantial
evidence brought on record.
29. So far as the submissions of the learned
counsel appearing for the Appellant that there is
delay in lodging the FIR and no plausible
explanation is offered in that behalf is
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concerned, the evidence of the informant Vijay
(PW1) shows that he had not lodged the report
immediately as his mental condition was not good
as his sister was taking medical treatment and
th
therefore he lodged the report on 24 January,
2011. Thus, the informant has given plausible
explanation as to why there was delay in lodging
the FIR. Thus, we find no substance in the
submissions advanced by the learned counsel in
that behalf. We have perused the spot panchnama
and it does disclose that there were signs of
scuffle and the household articles were lying in
scattered condition and therefore the submissions
made by learned counsel in that behalf, deserves
no consideration.
30. After considering entire evidence on
record, the trial Court, in Para 36 of the
Judgment observed that the prosecution has proved
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from truthful and voluntary statements made by the
deceased Jayshree duly corroborated by other
evidence on record that the accused committed
murder of Jayshree by intentionally and knowingly
causing her death by pouring kerosene on her
st
person and by setting her ablaze on 21 January,
2011. The trial Court has further observed that
the fact of pouring kerosene on the person of
deceased Jayshree and setting her ablaze shows
that the accused intended to cause death of
Jayshree. Hence the prosecution has proved that
deceased Jayshree died homicidal death at the
hands of the accused and the prosecution is
successful in proving the offence punishable under
Section 302 of the Indian Penal Code committed by
the accused. After considering the entire evidence
on record, the trial Court has convicted and
sentenced the accused as aforestated.
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31. It is alternatively argued by the learned
counsel appearing for the Appellant that there was
no intention on the part of the Appellant to kill
his wife, and therefore the offence would fall
under Section 304 Part II of the I.P. Code.
32. In our considered view, the aforesaid
submissions of the learned counsel that the
offence would fall under Section 304 Part II of
the Indian Penal Code deserves no consideration
for the simple reason that in absence of any
explanation offered by the Appellant under which
circumstances his wife Jayshree died, it is not
possible to read the mitigating circumstances in
favour of the Appellant. On the contrary, the
Appellant poured kerosene on the person of
Jayshree and when she was trying to run out of the
house to save herself and was trying to open the
latch of the door of the house, the accused thrown
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matchstick on her person and set her ablaze, that
too, when she was having one daughter aged about 6
years and at the time of incident, carrying
advance pregnancy of 18 to 20 weeks. These facts
clearly show the involvement and intention of the
Appellant in the commission of offence. Though the
learned counsel has placed reliance upon the
exposition of law in the case of Kalu Ram (supra),
the facts are distinguishable. In the reported
case the Appellant therein in a highly inebriated
stage approached the deceased when the demand for
sparing her ornaments was made by him and when she
refused to oblige, he poured kerosene on her and
wanted her to light the matchstick. However, in
the present case the Appellant though consumed
liquor, was not in a highly inebriated stage. At
the time of incident, Appellant – Suresh was
taking dinner, he received so many missed calls on
his mobile handset and when asked by Jayshree, he
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told that his first wife Sarika was calling him
from Ganjpeth and was asking him to reside with
her separately. Jayshree told the accused that he
had taken divorce from said Sarika and apart from
having one daughter, she is carrying pregnancy of
five months. The accused then started abusing and
beating her by telling her that she should
maintain children and he does not want to cohabit
with her and wish to reside with his first wife
Sarika. Thus, all these facts shows that the
Appellant was in very much conscious condition
when the incident took place. In the present case,
there are no mitigating circumstances to accept
the submission of the counsel appearing for the
Appellant that the Appellant had no intention to
kill his wife.
33. The Supreme Court in the case of Santosh
4
Shankar Pawar Vs. State of Maharashtra in the
4 AIR 2015 SC 3789
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facts of the said case where the allegations
against the appellant were that the appellant
therein after assaulting his wife with fists and
kicks, poured kerosene from a nearby lamp and set
her ablaze, observed in para 12 of the Judgment as
under:
“12. Even assuming that the accused had
no intention to cause the death of the
deceased, act of the accused falls under
clause (iv) of Section 300, IPC that is
the act of causing injury so imminently
dangerous where it will in all probability
cause death. Any person of average
intelligence would have the knowledge that
pouring of kerosene and setting her on
fire by throwing a lighted matchstick is
so imminently dangerous that in all
probability such an act would cause
injuries causing death.”
34. In the present case also, after abusing
and assaulting Jayshree, accused poured kerosene
on her person and set her ablaze. An intention can
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be formed at the spur of the moment. As observed
earlier, Jayshree was trying to run out of the
house to save herself at which time accused came
from behind and threw matchstick on her person and
set her ablaze knowing fully well that she was
carrying advance pregnancy of 18 to 20 weeks. The
intention of the accused was clear to cause death
of Jayshree and therefore the offence in the
present case would not fall under any of the
exception under Section 300 of the Indian Penal
Code.
35. In the light of discussion herein above,
on independent and indepth scrutiny of entire
evidence, we are of the opinion that the trial
Court has considered all the evidence brought on
record in its proper perspective and recorded the
findings which are in consonance with the evidence
on record and has rightly convicted the Appellant
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accused. There is no perversity as such.
36. In that view of the matter, we are of the
opinion that there is no merit in the Appeal.
Accordingly, the Criminal Appeal stands dismissed.
[ A.S. GADKARI , J.] [S.S. SHINDE, J.]
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