2012 ALL MR (Cri) 3567
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.B. MAJMUDAR AND A.A. SAYED, JJ.

Ravan Balu Indalkar Vs. The State Of Maharashtra

Criminal Appeal No.368 of 2004

16th June, 2011

Petitioner Counsel: Ms. SAVITA SURYAWANSHI
Respondent Counsel: Mrs. V.R. BHOSALE

(A) Penal Code (1860), S.302 - Murder - Accused allegedly poured kerosene on his wife and set her on fire - Incident witnessed by mother and a relative of deceased - Presence of such witnesses at the time of incident was admitted by accused himself - Presence of accused at relevant time also established by prosecution - Fact that deceased was Kannad but her dying declaration was in Marathi is of no significance in view of admission by accused himself that deceased knew Marathi also - Conduct of accused who was absconding for 10 days also points towards his guilt - Prosecution has proved the offence u/s.302, beyond any doubt - Offence was committed with knowledge and intention - Conviction cannot be altered to S.304-II.(Paras 20 to 25)

(B) Evidence Act (1872), S.32 - Dying declaration - Two dying declarations came to be recorded - First one in Marathi and second one in Kannad - The person who translated the second declaration into Marathi was not examined - Hence Court refused to rely upon it - First declaration which was recorded in Marathi was also objected on ground that deceased was Kannad - However accused himself admitted that though deceased was Kannad, she could speak and understand Marathi also - That apart, doctor in whose presence first dying declaration was recorded also deposed that at relevant time patient was conscious and able to talk normally - First dying declaration, reliable. (Paras 21, 23)

(C) Penal Code (1860), Ss.498A, 302 - Cruelty and murder - Accused husband caused death of his wife by pouring kerosene and setting her on fire - Evidence of neighbours that accused used to quarrel with deceased in past - No evidence of dowry demand - No evidence of physical cruelty to deceased at the hands of accused in past - Evidence not sufficient to attract provisions of S.498-A - Conviction only u/s.302 confirmed. (Para 27)

JUDGMENT

P. B. MAJMUDAR, J. :- This appeal is directed against the judgment and order of conviction recorded by the learned Sessions Judge in Sessions Case No.26 of 2002 dated 17-02-2003. The learned Sessions Judge convicted the appellant/accused for the offence punishable under Section 302 of Indian Penal Code and sentenced him to suffer R.I. for life and to pay a fine of '500/-, in default to suffer R.I. for three months. The appellant/accused is also convicted for the offence punishable under Section 498-A of Indian Penal Code and sentenced to suffer R.I. for one year and to pay a fine of '300/-, in default to suffer S.I. for one month.

2. It is the case of the prosecution that the accused was residing with his deceased wife Malan and children at Kubalwada, Vengurla. According to the case of the prosecution, accused was addicted to liquor and used to quarrel with his wife and used to abuse and assault her. On 18-03-2002, he quarrelled with his wife in the morning and in the evening, he poured kerosene on the person of his wife and set her on fire by a match stick. The accused was subsequently arrested in connection with the said incident. The investigation authority after completion of investigation, submitted chargesheet in the Court of J.M.F.C., Vengurla. The learned J.M.F.C., thereafter committed the case to the Court of Sessions for trial. A charge was framed against the accused at Exh.5 and the statement of the accused was also recorded at Exh.6. The accused did not plead guilty to the charge and claimed to be tried. Trial was accordingly conducted against him. The prosecution has examined 13 witnesses. During the investigation, police also recorded two dying declarations of Malan. Learned Sessions Judge after considering the evidence led by the prosecution as well as after considering documentary evidence on record, recorded the aforesaid conviction and awarded sentence as indicated above.

3. The deceased Malan was the wife of the accused. The incident in question took place on 18-03-2002. The case of the prosecution is that on the aforesaid date, quarrel took place between accused and his wife and he poured kerosene on her person. The quarrel was heard by neighbours as well as mother of the deceased, who was present in the house at the relevant time. Similarly, Renuka, daughter of the deceased and one Gangubai (P.W.3) were also present in the house at the relevant time. The deceased was taken to Candy Dispensary, Vengurla and police was informed accordingly. ASI Parab visited the said hospital and inquired about the condition of health of the deceased, who was alive at the relevant time. He recorded dying declaration at Exh.22 and offence came to be registered under Section 307 and 498-A of Indian Penal Code, which was registered as C.R.No.15 of 2002. Since the condition of Malan became critical, she was shifted to bigger hospital i.e. Kiran Hospital, Hubli, where she ultimately succumbed to the injury on 27-03-2002. Investigating authority also recorded another dying declaration on 20-03-2002, which was recorded by one PSI Chavan of Vidya Nagar Police Station, Hubli and the same was also transmitted to Venturla Police Station.

4. As pointed out earlier, the Investigating Officer after completion of investigation, submitted chargesheet against the accused and the matter was ultimately committed to the Court of Sessions for trial. In order to prove its case, prosecution examined 13 witnesses. Mr.Ashok Shankar Kubal was examined as P.W.1 at Exh.10. In the examination-in-chief, the said witness deposed that on 30-03-2002, he was called by the police and at that time, accused was present in the police Station. The witness stated that the accused was arrested by the police and panchanama to that effect, was prepared. The contents of the panchanama were read over to him and he admits the same.

5. The witness further stated that on 18-03-2002 i.e. on the date of incident, he was called by the police at the house of the accused, where he found few pieces of burnt clothes and two litres of kerosene and one match box of Chavi Company. The said articles were seized in his presence and he signed the same. The seizure panchanama is at Exh.12. The said witness deposed that he is residing at the distance of 3040 feet from the house of the accused and that he knew the accused and his wife. As per the evidence of P.W.1, on 18-03-2002 at about 6.30 p.m., he returned from factory to his house. His wife apprised the incident to him. In the cross-examination, he denied the suggestion that he is giving false evidence.

6. The prosecution also examined Renuka Ravan Indalkar as P.W.2 at Exh.13, who is the daughter of the accused. The said witness is a minor one, as she was 11 years of age at the relevant time. The said witness has stated that she is studying in 4th Standard. She deposed that accused is addicted to liquor and used to come at home after consuming the liquor. The witness further stated that accused was quarrelling with her mother in the evening. As per the evidence of the said witness, on the relevant day, she was not feeling well and therefore, she was in the house. At about 5.00 p.m., accused poured kerosene on the person of her mother and set her ablaze by match-stick. The witness deposed that Gangubai extinguished the fire. She and her mother thereafter, shouted and the residents of Wada came in the house and extinguished the fire. In the cross-examination, the said witness has stated that Gangubai and Sitabai were present in the house on the day of incident.

7. The prosecution also examined Gangubai Pundlik Pote as P.W.3 at Exh.14. The deceased was daughter of her brother. She stated that she and Sitabai, mother of the deceased, had been to Venturla on Monday before about six months. On the relevant day, the accused had consumed liquor and he quarrelled with the deceased. When Sitabai asked the accused as to why he is quarrelling with Malan, the accused gave two slaps to Malan. The witness further stated that accused set fire by match stick after pouring kerosene on the person of Malan. In the cross-examination, the witness has stated that she was not in the house when the incident took place, but she was outside the house. She stated that accused was in the house at that time.

8. The prosecution has also examined Aarti Ashok Kubal, a neighbour (P.W.4) at Exh.15. As per the evidence of said witness, she heard shouts at about 4.30 to 5.00 p.m., on the day of incident and therefore, she came out of the house and saw Malan was coming from her house in burning condition. She informed the police on telephone about the incident. She stated that she reported the said fact to her husband when he returned to home. According to the said witness, quarrels were going on between accused and his wife regularly. Nothing substantial has been brought out in the cross-examination of the said witness.

9. The prosecution examined Dr.Dodarbasappa Shivappa Itagi (P.W.5) at Exh.16. He has stated that he received dead body of Malan Ravan Indalkar for post mortem on 28-03-2002. According to the said witness, he carried out post mortem of the dead body of the deceased. As per the evidence of the said Doctor, burn injuries were ante-mortem in nature and constitute 55 to 60% of body surface area. The witness further stated that the death is due to septicemic shock consequent upon burn injuries sustained. In the cross-examination, said witness has stated that usually in 30 to 35% burns, the death is possible. Doctor has also stated that in the present case, left side of the patient had sustained more burns and those were abdomen and chest. He categorically stated that septicemia develops due to infection of skin leading to bacterial growth and toximic circularity all over the body.

10. The prosecution has also examined Sitabai Ramchandra Devarkar (P.W.6) at Exh.18. The deceased was daughter of the said witness. In her examination-in-chief, she has deposed that she and Gangubai had been to the house of the accused to meet her daughter before about six months. The witness has stated that they were staying with their daughter since two days. The quarrel between her daughter and accused took place on the third day. The witness having asked the accused not to quarrel, he gave two slaps on her cheek. The accused poured kerosene on the person of the deceased and set fire on her by match stick. She further stated that Malan went running outside. In the cross-examination, she has stated that it was the desire of Malan that her husband should earn money and do the family work in good condition. She stated that Renuka was sleeping at the time of incident.

11. The prosecution has examined Ram Shivaji Lakhe (P.W.7) at Exh.19. He was panch at the relevant time. He received muddemal in a sealed condition at the police station and handed over the same to the Chemical Analyzer.

12. One Satish Damodar Patil (P.W.8) was examined by the prosecution, who was serving as PSI at the relevant time in Venturla Police Station. He deposed that on 18-03-2002, he was present in the police station and a phone message was received from the Government Hospital known as Candy Dispensary, Vengurla that Malan Indalkar was admitted in the hospital due to burn injury. He directed ASI Parab and Constable Sawant to go to the hospital and record the statement of Malan. The witness deposed that he registered the case being C.R.No.15 of 2002 under Section 307, 498-A of Indian Penal Code. He further stated that on the same day, he went to the scene of offence and called Ashok Kubal and Pandurang Kane for the purpose of preparing panchanama of the scene of offence. In the cross-examination, the witness has deposed about recording statements of certain witnesses. He has admitted that he was not present when statement of Malan was recorded by ASI Parab. The witness was recalled and in his further examination-in-chief, he has stated that he received dying declaration (Exh.33) of the deceased from Vidya Nagar Police Station, which was written in Kanadda language. He further stated that he got translated the said dying declaration in Marathi language, which he had produced before the Court. He stated that he got translated the dying declaration from vegetable sellers visiting Vengurla. In the cross-examination, the witness stated that the person who translated the dying declaration is not known to him, but he did not know his name and he has not recorded the statement of the said person.

13. The prosecution has also examined Dwarkanath Dattatray Bandekar (P.W.9) at Exh.26, who was serving as Circle Inspector at the relevant time. The said witness prepared the map regarding the spot of incident.

14. Mr.Madhukar Tukaram Parab ASI (P.W.10) was examined by the prosecution, who was attached with the concerned police station at the relevant time. The said witness stated that on 18-03-2002, he was present in the police station and he was directed by PSO Kanakar to visit Candy dispensary. Accordingly, the witness went to the hospital. He further deposed that Medical Officer was present at that time and was giving treatment to the deceased. He deposed that the patient was in a position to give statement. He recorded the statement of Malan as per her say and she signed the same in his presence. The Medical Officer has also given certificate and signed the same in his presence. The dying declaration is at Exh.22. In the cross-examination, the witness has stated that there was nobody near patient when he reached near her.

15. The prosecution has examined Dr.Atul Wamanrao Mule (P.W.11) at Exh.30. In examination-in-chief, he has stated that ASI Parab contacted him at about 6.00 p.m., and inquired about the condition of Malan regarding giving statement. He stated that the patient was conscious and he was present at the time when ASI Parab came near patient. The patient was able to talk normally. The Doctor has further stated that ASI Parab recorded statement of Malan in his presence and he gave certificate below the statement (Exh.22) to the effect that the patient is conscious and he has signed the same. In the cross-examination, the witness has stated that he had given only one endorsement regarding consciousness of the patient at the end of dying declaration and he had not given endorsement at the beginning of the dying declaration. The witness stated that the patient was knowing Kannad. He further stated that she was knowing Marathi too.

16. The prosecution has also examined Laxman Maruti Chauvan (P.W.12) at Exh.32. At the relevant time, he was attached to Vidya Nagar Police Station as PSI and was present in the police Station. He received report from K.I.M.S.Hospital, Hubli, that Malan was admitted in the hospital due to burn injury. The witness further deposed that he approached Medical Officer, who told him to record dying declaration. The witness recorded the dying declaration as per say of Malan. Thumb impression of Malan was also taken on the dying declaration, which is at Exh.33. It was recorded on 20-03-2002 in Kannad Language.

17. Lastly, prosecution has examined Ibrahim Khan Kittur (P.W. 13) at Exh.34, who was at the relevant time, serving as ASI in Vidya Nagar Police Station. He stated that on 27-03-2002, he received intimation from K.I.M.S. Hospital that Malan died in the hospital on 18-03-2002. He contacted Vengurla Police Station on phone and came to know that crime is already registered. The witness has prepared inquest panchama, which is at Exh.36.

18. The aforesaid is the evidence adduced on behalf of the prosecution in the instant case. Learned counsel for the appellant vehemently submitted that there is contradiction in the evidence of prosecution witnesses and therefore, it cannot be said that prosecution has proved its case against the accused beyond reasonable doubt and that benefit of doubt is required to be given to the accused. In order to substantiate her say, it was argued that the mother of the deceased Sitabai (P.W.6) in her evidence has deposed that when she asked the accused as to why he is quarrelling with her daughter, at that time, the accused gave her slaps on her cheek. As against that, witness Gangubai (P.W.3) has stated that the accused gave slaps to deceased Malan. It is submitted by the learned counsel for the appellant that as per the evidence of Sitabai (P.W. 6), who is an eye-witness, the daughter of Malan i.e. Renuka (P.W.2) was sleeping. In view of that, it cannot be said that she has witnessed the incident and therefore, she cannot be said to be eye-witness. It is further submitted that so far as dying declaration given by the deceased is concerned, which can be said to be second dying declaration, the same is in Kannad language and the person who translated the same in Marathi has not been been examined by the prosecution. It is submitted that so far as first dying declaration is concerned, it is in Marathi language and since the deceased was knowing Kannada language, no weightage can be given to such dying declaration. It is further that in the instant case, there was no mens rea existing and incident might have been taken place in a spur of moment and therefore, conviction under Section 302 of Indian Penal Code in any case, is required to be altered as one under Section 304(II) of Indian Penal Code. It is submitted by the learned counsel for the appellant that in any case, since there is no evidence regarding cruelty to the deceased at the hands of accused, nor there is anything on record to show that the accused was demanding any dowry amount, conviction recorded under Section 498-A is not sustainable.

19. Learned APP on the other hand, submitted that in the instant case, there is ample evidence on record by which it can safely be said that the prosecution has proved the case against the accused beyond reasonable doubt. It is submitted by her that considering the evidence of Ashok Kubal (P.W.1), Renuka (P.W.2), daughter of the deceased and the mother of the deceased i.e. Sitabai (P.W.6), the prosecution has amply proved its case. Learned APP submitted that in view of indubitable dying declaration recorded at Exh.22, coupled with direct evidence, the prosecution has proved its case that the accused has committed heinous crime. Learned APP submitted that since this is a case of direct evidence, it is not necessary to prove the motive of the accused. However, in the instant case, it has come in the evidence that since deceased used to ask the appellant to do some work and earn money, that resulted into an unfortunate incident at the instance of the deceased. It is also submitted by the learned APP that accused used to consume liquor and often used to enter into quarrel with the deceased, which aspect has been proved by the prosecution. In so far as applicability of Section 498-A of Indian Penal Code is concerned, it is submitted that it may be true that in view of explanation to Section 498-A, the prosecution may not have led clear evidence in this behalf, but since it has come in the evidence that accused used to quarrel with the deceased in the past and used to beat her, conviction recorded under Section 498-A may be sustainable.

20. We have heard the learned counsel for the appellant and the learned APP at length and have gone through the entire evidence adduced by the prosecution and the judgment and order of the learned Sessions Judge. At this stage, it is required to be noted that in the instant case, appellant has also entered into witness box and he was examined as D.W.1 at Exh.43. The evidence of Mr.Ashok Kubal (P.W.1) who is residing in the neighbourhood, has clearly stated that when he came at the house in the evening, he was told by his wife about the incident in question. He has also deposed about the quarrels which used to take place between appellant and his wife in the past. The minor girl Renuka (P.W.2), who was 11 years of age at the relevant time, has described in para No.2 in her examination-in-chief, as to how the incident in question has taken place. Smt.Gangubai Pote (P.W.3) was present in the house on the relevant day and also witnessed the incident. At this stage, it is required to be noted that the house in which the incident had taken place, consists of small rooms and it is most natural to witness the presence of the accused in the house, as the said witness has clearly stated that accused was in the house at the relevant time till the police arrived at the house. The evidence of Aarti Kubal (P.W.4), who is neighbour of the deceased, in our view, appears to be trustworthy and reliable and she has given perfect version of the incident. On hearing shouts, she reached the place of incident and saw the deceased in a burning condition. The evidence of mother of the deceased is also not shaken in any way in the cross-examination and she has given complete description as to how the incident has happened and she was present in the house and in her presence, the incident took place.

21. So far as the dying declaration is concerned, it is required to be noted that as per evidence of Dr.Atul Wamanrao Mule (P.W.11), who was present at the time when the first dying declaration was recorded by ASI Parab, he has clearly stated that he was present when ASI Parab came near patient and patient was able to talk normally. Accordingly, he gave certificate below Exh.22 that the patient is conscious and signed the endorsement, which he identified. It has also come in the evidence of doctor that the patient was conscious at the relevant time and had signed the dying declaration. It is also crystal clear from the evidence of doctor that the deceased was very much conscious and was able to understand the things. At this stage, it is required to be noted that it is true that the first dying declaration (Exh.22) is recorded in Marathi language and the deceased was Kannad. But it has come in the evidence that the deceased was knowing Marathi and not only that, but accused himself entered into defence and has led his evidence wherein he has admitted in cross-examination that deceased was knowing Marathi language. Considering the said aspect and in view of the evidence of witnesses who were present in the house on the relevant day, in our view, the prosecution has proved its case against the accused beyond reasonable doubt. It is true as argued by the learned counsel for the appellant that the mother of the deceased in her evidence has stated that the minor girl was sleeping in the house as she was sick and might be taking rest in the house, and therefore, it cannot be said that she has witnessed the incident. However, the presence of minor girl is not in dispute and even if her evidence is eschewed from consideration, there is ample evidence which consist of the evidence of mother of the deceased, who witnessed the incident and incident happened in her presence. There is also direct evidence of Gangubai (P.W.3), who was present in the house at the relevant time and sitting outside the room where the incident had taken place. From the evidence of aforesaid witnesses, the presence of the accused at the place of incident is clearly established. The accused thereafter, was absconding and came to be arrested after 10 days. Even the evidence which accused has led, it is pertinent to note that he had given evidence in Marathi Language. He has stated that deceased used to quarrel with him because of financial position. In para No.4 of the examination-in-chief, he has stated that on 18-03-2002 the mother of the deceased Sitabai and Gangubai were at his house and on the relevant day, the deceased demanded money, which resulted into quarrel between him and deceased. Said quarrel took place in the presence of Sitabai. The accused deposed that he left the house in the morning and received massage from his brother about the incident in question at 5.20 p.m. The accused further deposed that he thereafter came to the house and saw burn injury on the person of Malan.

22. It is pertinent to note that the presence of Gangubai (P.W.3) and Sitabai (P.W.6) at the time of incident is not in dispute and infact the accused has admitted the same in his evidence. As pointed out earlier, the aforesaid two witnesses have clearly deposed the manner in which the incident in question took place. Even if it is presumed that the minor girl, who was present in the house, might not have actually witnessed the incident, then also considering the other evidence on record, it is clear that the prosecution has proved its case beyond doubt. It has come in the evidence that accused used to quarrel with the deceased in the past. He used to beat the deceased after consuming liquor. On the relevant day, his presence in the house is established by the prosecution. Considering the aforesaid evidence on record, in our view, learned Sessions Judge has rightly convicted the accused under Section 302 of Indian Penal Code.

23. The second dying declaration which is recorded in Kannad Language, on which learned Sessions Judge has not placed reliance, as the person who transcribed the same into Marathi, has not been examined by the prosecution. Yet, considering the evidence of Gangubai (P.W.3), Aarti Kubal (P.W.4) and Sitabai (P.W.6), the prosecution has established its case beyond doubt. The first dying declaration was recorded in Marathi Language, which the deceased Malan could speak and understand and the Dr.Mule (P.W.11) has certified that the patient was conscious at the relevant time. In view of the same, even if the evidence of minor girl is taken out from consideration, there is ample evidence on record by which the guilt of the accused can be said to have been proved, especially when the presence of the accused is clearly established at the scene of incident on the relevant day.

24. As pointed out earlier, accused was absconding and came to be arrested after 10 days. The conduct of the accused is not at all natural. It was expected from the accused that when he came to know about the incident in question, to take his wife to the hospital, instead he was absconding from the site. In our view, there is no reason to discard the evidence of Gangubai (P.W.3) who was present in the house as well as Sitabai (P.W.6) along with the evidence of Dr.Mule (P.W.11) and ASI Madhukar Parab (P.W.10) who recorded the first dying declaration. We do not find any substance in the argument of the learned counsel for the appellant that Gangubai (P.W.3) in her evidence has stated that the accused gave slaps to the deceased. It is required to be noted that Gangubai (P.W.3) was standing outside the house where incident took place. As against that, the mother of the deceased Sitabai (P.W.6) was already in the room itself, though the room is small and shouting can be heard even by a person sitting outside the room, but simply because Gangubai deposed that accused slapped deceased, cannot be a ground to discard her evidence. Considering the evidence on record, as discussed above, the prosecution has established its case in so far as offence punishable under Section 302 of Indian Penal Code is concerned.

25. As per seizure panchanama, two litres of kerosene is found from the scene of offence. The accused in a most heinous manner committed the offence by pouring kerosene on his wife and set her at fire. The offence was committed with a knowledge and intention. It is not possible for us to accept the say of the learned counsel for the appellant that conviction may be altered to Section 304(II) of Indian Penal Code. It is required to be noted that no such point was raised before the trial Court. However, we have examined the said aspect and in our view, considering the evidence on record, the present case squarely falls under Section 302 of Indian Penal Code.

26. So far as the conviction recorded under Section 498-A is concerned, at this stage, reference is required to be made to the said provision. It reads as under :-

498-A : Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section, "cruelty" means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

27. In the instant case, there is no evidence to the fact that deceased was subjected to physical cruelty in the past, nor any complaint was filed at any point of time regarding cruelty in the past. Considering the explanation to Section 498-A and consideration the evidence on record, we are of the opinion that the prosecution has failed to make out a case under Section 498-A of Indian Penal Code against the accused. It is not in dispute that in the instant case, there was no demand of dowry and there is no evidence about physical cruelty to the deceased at the hands of the accused in the past. Simply because in the past, accused and his wife used to quarrel, itself is not sufficient for attracting the provisions of Section 498-A of Indian Penal Code. Learned Sessions Judge, in our view, has committed error in recording conviction under Section 498-A of the Indian Penal Code and the same is required to be set aside. In view of the above, the following order is passed :

(a) The conviction recorded by the learned Sessions Judge qua offence punishable under Section 302 of Indian Penal Code is confirmed and the appeal against the same stands dismissed.

(b) The conviction recorded by the learned Sessions Judge under Section 498-A of Indian Penal Code, is quashed and set aside and it is held that accused is not guilty of the offence punishable under Section 498-A of Indian Penal Code. Appeal is partly allowed to the aforesaid extent by setting aside the order of the learned Sessions Judge qua offence punishable under Section 498-A of the Act.

Appeal partly allowed.