Full Judgment Text
: 1 :
2006:BHC-AS:19704-DB
upa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CRIMINAL JURISDICTION
CRIMINAL APPEAL NO.359 OF 2002 CRIMINAL APPEAL NO.359 OF 2002 CRIMINAL APPEAL NO.359 OF 2002
Namdeo Sitaram Bhoir )
Aged about 34 years )
R/at Maneragaon, Tal.: Ulhasnagar )
District : Thane )
(At present in Adharwadi Jail) ).. APPELLANT
VERSUS VERSUS VERSUS
The State of Maharashtra )
(Through Vithalwadi Police Station, )
Ulhasnagar) ).. RESPONDENT
Mr.P.M. Pradhan for the Appellant.
Mr.P.S. Hingorani, Additional Public Prosecutor,
for the Respondent.
CORAM: V.G. PALSHIKAR AND CORAM: V.G. PALSHIKAR AND CORAM: V.G. PALSHIKAR AND
SMT. NISHITA MHATRE, JJ. SMT. NISHITA MHATRE, JJ. SMT. NISHITA MHATRE, JJ.
DATED: 6TH OCTOBER 2006 DATED: 6TH OCTOBER 2006 DATED: 6TH OCTOBER 2006
ORAL JUDGMENT : (PER PALSHIKAR, J.) ORAL JUDGMENT : (PER PALSHIKAR, J.) ORAL JUDGMENT : (PER PALSHIKAR, J.)
. Being aggrieved by the order dated 8th March
2002 passed by the IInd Additional Sessions Judge,
Kalyan in Sessions Case No.221 of 1998 convicting and
sentencing the accused-Appellant under Section 302 of
the Indian Penal Code to suffer imprisonment for life
and a fine of Rs.400/-, the Appellant-accused has
preferred this Appeal on the grounds mentioned in the
Memo of Appeal as also verbally canvassed before us by
the learned Counsel appearing on behalf of the accused.
2. With the assistance of the learned Counsel
appearing for the defence and the learned Additional
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Public Prosecutor, we have scrutinised the oral and
documentary evidence on record. The prosecution has
examined in this case ten witnesses to prove that
accused was the person responsible for homicidal death
of the victim and circumstances in which it was caused
rendered that homicidal death to be murder as defined
under Section 302 of the Indian Penal Code.
3. The prosecution story, stated briefly, is :
. The accused was married to the victim Pushpa and
the married lief existed for three years. Inspite of
being married to Pushpa, the accused had illicit
relationship with one Soni and on that ground there was
quarrel between the husband and the wife. On several
occasions the wife was tortured by the husband and on
one occasion the wife filed a complaint in Vithalwadi
Police Station representing the ill-treatment meted out
to her. On 26th July 1998, when the husband and wife
were alone in the house, the husband told the wife that
he is going to Tirupati and, therefore, the wife
requested him to take her along which was refused by him
which resulted in quarrel between the two and the
accused pour kerosene on the body of the victim and put
her afire, waited till she burnt completely and then
with the help of his sister took her to the hospital
where she was admitted by PW5. At the time when she was
admitted, according to PW5, she was severely burnt and
unable to enter into verbal communication. It is proved
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on record by the prosecution that thereafter the victim
was removed from that hospital and taken to Shivaji
Hospital where she was admitted and treated. The fact
that the victim received such burn injuries was informed
by PW6, Sawlaram, on the basis of which investigation
started and the accused was arrested. The prosecution
examined ten witnesses and the learned trial Judge on
appreciation of the entire evidence came to the
conclusion of guilt as aforesaid. It is this order of
conviction and sentence which is assailed in this
Appeal.
4. According to the learned Counsel appearing on
behalf of the accused, the conviction is not sustainable
in law because the dying declaration is liable to be
rejected. The reason given by the learned Counsel for
seeking such rejection of the dying declaration is the
evidence of PW5, Dr.Sunita, who admitted the victim in
her hospital immediately after the burn incident. She
has deposed that when she admitted the victim, the
victim was severely burnt and was unable to communicate
verbally. According to the witness, she was in a kind
of shock and therefore was not able to speak.
Mr.Pradhan relies very heavily on the testimony of this
witness for claiming rejection of the dying declaration.
5. The evidence of PW5, Dr.Sunita, is required to
be noticed to meet these arguments. According to her,
the victim was admitted to Central Hospital, Ulhasnagar
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on 26th July 1998 around 3.40 p.m. and at that time she
found that Pushpa was conscious but not able to respond
verbally. Then in cross-examination she admits that in
spite of being a qualified Doctor, she does not know on
what principle Rule of 9 is based. Her ignorance of
medical science is further demonstrated by her statement
in paragraph 3 that normally in cases of burn injuries
to females, it is a case of suicide. Such conclusion,
apart from being baseless is unwarranted and speaks of
immature and inexperienced nature of the person making
the statement. In our opinion, such witness cannot be
believed and certainly cannot be relied upon for
disbelieving a dying declaration which has been duly
proved by the person who recorded it and by the Doctor
who was present when the declaration was being recorded.
He has stated before the Court on oath that when the
dying declaration was being recorded and after it was
recorded, he was present there, he examined the patient
before declaration was recorded and on both occasions
she was conscious and in a condition to give a
statement. In the face of this evidence of PW2 and PW8,
Dr.Ajay, it is clear that the dying declaration was
recorded as required by the Criminal Manual by a
Executive Magistrate in presence of a Doctor who has
deposed to the condition of the victim while the
statement was being recorded. We are, therefore, unable
to accept the submission that the dying declaration
deserves to be rejected.
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6. It was then contended that the accused was
charged not only with murder but was also charged for
wrongful confinement under Section 342 of the Indian
Penal Code. The learned Judge has on appreciation of
this clear evidence acquitted the accused of that
charge. The submission, therefore, is that since charge
under Section 342 is not proved, no other offence is
likely to be committed because confinement was necessary
for causing death by burns. We are unable to accept
this contention for the reason that confinement is not
proved because there is no evidence in relation to that
and except for the statement of the victim, there is
nothing else to suggest that she was confined and,
therefore, it resulted in acquittal of the accused. In
so far as conviction under Section 302 of the Indian
Penal Code is concerned, there is ample evidence, oral
and documentary, on record to sustain the finding of
guilt.
7. PW1, Budhaji, is the father of the victim. He
speaks of ill-treatment meted out to the victim by the
accused due to illicit relations with another woman. He
speaks of visiting the hospital where the daughter was
being treated and he was told by the daughter that the
accused put her on fire which resulted in her condition
at the hospital. This very effect is of PW3, the mother
of the victim and PW4, Alka, the sister of the victim.
Each statement made by the victim in the dying
declaration is duly corroborated by these three
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witnesses. PW4 Alka speaks of illicit relationship and
lodging of complaint in Vithalwadi Police Station and
heard the victim saying that the victim was burnt by her
husband. The statement made in this regard in the dying
declaration thus stands duly corroborated by testimony
of three witnesses. The contention is that these three
witnesses need not be believed for corroboration as they
are very close relations of the victim and are bound to
support the claim made by the victim. The offence
itself is of such a nature that only near and dear ones
will be around the victim of such gruesome act.
Cross-examination of these witnesses does not disclose
any lacuna for existence of which their entire testimony
is liable to be rejected. Apart from these three
witnesses, who are relatives, we have the evidence of
PW2, Dattaram, who is the Special Executive Magistrate
who heard the declaration and reduced it to writing and
he has deposed that while the declaration was being
recorded the victim said that she was burnt by her
husband and described the manner in which the burn
injuries were caused. At no stage of imagination, PW2,
Dattaram, who is the Magistrate and PW8, Dr.Ajay, who
was present when the declaration was recorded, can be
called in any manner interested or partial. The
testimony of PW2 and PW8 thus independently corroborate
the claim made in the dying declaration of the victim
that she was put to death by her husband.
8. There is another piece of intrinsic evidence
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which lends to additional credence to the dying
declaration made by the victim and that evidence is of
PW7, Dr.Ramesh, who admitted Pushpa to Shivaji Hospital.
While admitting the patient, the history was noted by
this Doctor which entry is also proved by him later on
and it is clearly mentioned therein the alleged history
of burns of husband is there. This, therefore, is yet
another circumstantial evidence which cannot be doubted
which corroborates the claim of the wife that she was
put to death by her husband.
9. In our opinion, there is clear unequivocal and
firm evidence on record to support the order of
conviction as recorded by the learned trial Judge and we
have independently assessed the evidence and our
conclusions are reflected above. The learned trial
Judge may have reached the conclusion of guilt for other
reasons but we are not concerned with the reasoning as
long as, we, on our reappreciation, are sure that the
conclusion of guilt was correct. In our opinion, the
judgment of conviction and sentence is proper. It is
based on sound evidence and correct conclusions. We are
also of the same opinion and hence there is no substance
in this Appeal. In the result, the same fails and is
dismissed.
(V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.)
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(SMT.NISHITA MHATRE, J.) (SMT.NISHITA MHATRE, J.) (SMT.NISHITA MHATRE, J.)
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2006:BHC-AS:19704-DB
upa
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CRIMINAL JURISDICTION
CRIMINAL APPEAL NO.359 OF 2002 CRIMINAL APPEAL NO.359 OF 2002 CRIMINAL APPEAL NO.359 OF 2002
Namdeo Sitaram Bhoir )
Aged about 34 years )
R/at Maneragaon, Tal.: Ulhasnagar )
District : Thane )
(At present in Adharwadi Jail) ).. APPELLANT
VERSUS VERSUS VERSUS
The State of Maharashtra )
(Through Vithalwadi Police Station, )
Ulhasnagar) ).. RESPONDENT
Mr.P.M. Pradhan for the Appellant.
Mr.P.S. Hingorani, Additional Public Prosecutor,
for the Respondent.
CORAM: V.G. PALSHIKAR AND CORAM: V.G. PALSHIKAR AND CORAM: V.G. PALSHIKAR AND
SMT. NISHITA MHATRE, JJ. SMT. NISHITA MHATRE, JJ. SMT. NISHITA MHATRE, JJ.
DATED: 6TH OCTOBER 2006 DATED: 6TH OCTOBER 2006 DATED: 6TH OCTOBER 2006
ORAL JUDGMENT : (PER PALSHIKAR, J.) ORAL JUDGMENT : (PER PALSHIKAR, J.) ORAL JUDGMENT : (PER PALSHIKAR, J.)
. Being aggrieved by the order dated 8th March
2002 passed by the IInd Additional Sessions Judge,
Kalyan in Sessions Case No.221 of 1998 convicting and
sentencing the accused-Appellant under Section 302 of
the Indian Penal Code to suffer imprisonment for life
and a fine of Rs.400/-, the Appellant-accused has
preferred this Appeal on the grounds mentioned in the
Memo of Appeal as also verbally canvassed before us by
the learned Counsel appearing on behalf of the accused.
2. With the assistance of the learned Counsel
appearing for the defence and the learned Additional
::: Downloaded on - 31/03/2026 20:39:36 :::
: 2 :
Public Prosecutor, we have scrutinised the oral and
documentary evidence on record. The prosecution has
examined in this case ten witnesses to prove that
accused was the person responsible for homicidal death
of the victim and circumstances in which it was caused
rendered that homicidal death to be murder as defined
under Section 302 of the Indian Penal Code.
3. The prosecution story, stated briefly, is :
. The accused was married to the victim Pushpa and
the married lief existed for three years. Inspite of
being married to Pushpa, the accused had illicit
relationship with one Soni and on that ground there was
quarrel between the husband and the wife. On several
occasions the wife was tortured by the husband and on
one occasion the wife filed a complaint in Vithalwadi
Police Station representing the ill-treatment meted out
to her. On 26th July 1998, when the husband and wife
were alone in the house, the husband told the wife that
he is going to Tirupati and, therefore, the wife
requested him to take her along which was refused by him
which resulted in quarrel between the two and the
accused pour kerosene on the body of the victim and put
her afire, waited till she burnt completely and then
with the help of his sister took her to the hospital
where she was admitted by PW5. At the time when she was
admitted, according to PW5, she was severely burnt and
unable to enter into verbal communication. It is proved
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on record by the prosecution that thereafter the victim
was removed from that hospital and taken to Shivaji
Hospital where she was admitted and treated. The fact
that the victim received such burn injuries was informed
by PW6, Sawlaram, on the basis of which investigation
started and the accused was arrested. The prosecution
examined ten witnesses and the learned trial Judge on
appreciation of the entire evidence came to the
conclusion of guilt as aforesaid. It is this order of
conviction and sentence which is assailed in this
Appeal.
4. According to the learned Counsel appearing on
behalf of the accused, the conviction is not sustainable
in law because the dying declaration is liable to be
rejected. The reason given by the learned Counsel for
seeking such rejection of the dying declaration is the
evidence of PW5, Dr.Sunita, who admitted the victim in
her hospital immediately after the burn incident. She
has deposed that when she admitted the victim, the
victim was severely burnt and was unable to communicate
verbally. According to the witness, she was in a kind
of shock and therefore was not able to speak.
Mr.Pradhan relies very heavily on the testimony of this
witness for claiming rejection of the dying declaration.
5. The evidence of PW5, Dr.Sunita, is required to
be noticed to meet these arguments. According to her,
the victim was admitted to Central Hospital, Ulhasnagar
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: 4 :
on 26th July 1998 around 3.40 p.m. and at that time she
found that Pushpa was conscious but not able to respond
verbally. Then in cross-examination she admits that in
spite of being a qualified Doctor, she does not know on
what principle Rule of 9 is based. Her ignorance of
medical science is further demonstrated by her statement
in paragraph 3 that normally in cases of burn injuries
to females, it is a case of suicide. Such conclusion,
apart from being baseless is unwarranted and speaks of
immature and inexperienced nature of the person making
the statement. In our opinion, such witness cannot be
believed and certainly cannot be relied upon for
disbelieving a dying declaration which has been duly
proved by the person who recorded it and by the Doctor
who was present when the declaration was being recorded.
He has stated before the Court on oath that when the
dying declaration was being recorded and after it was
recorded, he was present there, he examined the patient
before declaration was recorded and on both occasions
she was conscious and in a condition to give a
statement. In the face of this evidence of PW2 and PW8,
Dr.Ajay, it is clear that the dying declaration was
recorded as required by the Criminal Manual by a
Executive Magistrate in presence of a Doctor who has
deposed to the condition of the victim while the
statement was being recorded. We are, therefore, unable
to accept the submission that the dying declaration
deserves to be rejected.
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: 5 :
6. It was then contended that the accused was
charged not only with murder but was also charged for
wrongful confinement under Section 342 of the Indian
Penal Code. The learned Judge has on appreciation of
this clear evidence acquitted the accused of that
charge. The submission, therefore, is that since charge
under Section 342 is not proved, no other offence is
likely to be committed because confinement was necessary
for causing death by burns. We are unable to accept
this contention for the reason that confinement is not
proved because there is no evidence in relation to that
and except for the statement of the victim, there is
nothing else to suggest that she was confined and,
therefore, it resulted in acquittal of the accused. In
so far as conviction under Section 302 of the Indian
Penal Code is concerned, there is ample evidence, oral
and documentary, on record to sustain the finding of
guilt.
7. PW1, Budhaji, is the father of the victim. He
speaks of ill-treatment meted out to the victim by the
accused due to illicit relations with another woman. He
speaks of visiting the hospital where the daughter was
being treated and he was told by the daughter that the
accused put her on fire which resulted in her condition
at the hospital. This very effect is of PW3, the mother
of the victim and PW4, Alka, the sister of the victim.
Each statement made by the victim in the dying
declaration is duly corroborated by these three
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: 6 :
witnesses. PW4 Alka speaks of illicit relationship and
lodging of complaint in Vithalwadi Police Station and
heard the victim saying that the victim was burnt by her
husband. The statement made in this regard in the dying
declaration thus stands duly corroborated by testimony
of three witnesses. The contention is that these three
witnesses need not be believed for corroboration as they
are very close relations of the victim and are bound to
support the claim made by the victim. The offence
itself is of such a nature that only near and dear ones
will be around the victim of such gruesome act.
Cross-examination of these witnesses does not disclose
any lacuna for existence of which their entire testimony
is liable to be rejected. Apart from these three
witnesses, who are relatives, we have the evidence of
PW2, Dattaram, who is the Special Executive Magistrate
who heard the declaration and reduced it to writing and
he has deposed that while the declaration was being
recorded the victim said that she was burnt by her
husband and described the manner in which the burn
injuries were caused. At no stage of imagination, PW2,
Dattaram, who is the Magistrate and PW8, Dr.Ajay, who
was present when the declaration was recorded, can be
called in any manner interested or partial. The
testimony of PW2 and PW8 thus independently corroborate
the claim made in the dying declaration of the victim
that she was put to death by her husband.
8. There is another piece of intrinsic evidence
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: 7 :
which lends to additional credence to the dying
declaration made by the victim and that evidence is of
PW7, Dr.Ramesh, who admitted Pushpa to Shivaji Hospital.
While admitting the patient, the history was noted by
this Doctor which entry is also proved by him later on
and it is clearly mentioned therein the alleged history
of burns of husband is there. This, therefore, is yet
another circumstantial evidence which cannot be doubted
which corroborates the claim of the wife that she was
put to death by her husband.
9. In our opinion, there is clear unequivocal and
firm evidence on record to support the order of
conviction as recorded by the learned trial Judge and we
have independently assessed the evidence and our
conclusions are reflected above. The learned trial
Judge may have reached the conclusion of guilt for other
reasons but we are not concerned with the reasoning as
long as, we, on our reappreciation, are sure that the
conclusion of guilt was correct. In our opinion, the
judgment of conviction and sentence is proper. It is
based on sound evidence and correct conclusions. We are
also of the same opinion and hence there is no substance
in this Appeal. In the result, the same fails and is
dismissed.
(V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.) (V.G.PALSHIKAR, J.)
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(SMT.NISHITA MHATRE, J.) (SMT.NISHITA MHATRE, J.) (SMT.NISHITA MHATRE, J.)
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