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2008 Supreme(Bom) 559
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.
N.V. DABHOLKAR AND R.M. BORDE, JJ.
Uttam s/o Tukaram Khupse — APPELLANT
VERSUS
State of Maharashtra — RESPONDENTS
CRIMINAL APPEAL NO. 498 OF 2006
Decided on : 15TH APRIL, 2008.
Mrs. Sabahat Kazi, Advocate (appointed) for the appellant.
Mrs. Ranjana Reddy, APP for the State. Shri
Headnote:Criminal Procedure Code, 1973 - Section 154-FIR-Lodged belatedly-An attempt to report matter to police frustrated by police machinery towards issue-Delay in lodging FIR not fatal to prosecution case.-In the matter at hands, First information report was registered only on the basis of statement of Datta recorded on 11.8.2005. However, in the matter at hands we must say that the delay stands explained by the circumstances. In this context it must be noted that there was an attempt to report the matter to the police station which was frustrated by the police. Court is referring to deposition of PW Bajirao, Police Patil of the village, who accompanied the victim to rural hospital Bhokar and also to civil hospital Nanded thereafter. Court quotes :
"Alight from the auto at the square at Bhokar and went to police station and Sarpanch and others went to civil hospital Bhokar. I have informed to police, Bhokar about the burning incident of Kantabai, Police did not take not of my information in writing and disclosed him that if the injured is admitted in the hospital, doctor will send the requisition letter. It is evident that attempt to report the matter was frustrated by negative approach of the police machinery towards the issue."
Evidence Act, 1872 - Section 32-Dying declaration-Oral declarations-Found to be trustworthy and quite consistent-Oral dying declarations corroborated by other circumstances-Conviction recorded on basis of such declaration warrants no interference.-On examination of oral dying declarations deposed to by five witnesses in the matter at hands Court has found those to be quite consistent, narrating exactly the same story though not in a stereo type or tape recorded manner. Court has found those dying declarations corroborated by other circumstances.
Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872, Sections 3 and 32 - Appeal against conviction - Reliableness of witness - Held - In spite of some infirmities in evidence placed before Court by prosecution, consistent version of three relatives and two village officers talking about oral dying declaration and consistent story though not in stereotype cannot be brushed aside as unreliable. - In spite is the evidence that is placed before the sessions Court by the prosecution, the consistent version of three relatives and two village officers talking about oral dying declaration and a consistent story coming through the same cannot be brushed aside as unreliable.
Dying declaration stands supported by Analyser’s report and the conduct of the accused as can be gathered from his own replies to the questions during statement under Section 313 of the Code of Criminal Procedure.
On examination of oral dying declarations deposed to by five witnesses in the matter at hands Court have found those to be quite consistent, narrating exactly the same story though not in a stereo type or tape recorded manner. Court have found those dying declarations corroborated by other circumstances as discussed hereinabove.
For the reasons Court finds interference in the impugned judgment and conviction to be not necessary.
Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872, Sections 3 and 32 - Interested witnesses - Held - Statement in defense that all witnesses examined are interested, is not sustainable for simple reason that prosecution has examined Sarpanch and police - The defence has not be able to demonstrate during their cross-examination any relationship of these witness with the victim nor any other circumstances as to why thy should be interested in deposing against accused. - The Chemical Analyser’s report does not indicate existence of sweet oil residues in the saree of the victim that was attached, Court is unable to agree with the statement of learned counsel, that the same makes the oral dying declarations untrustworthy. All the witnesses who narrated about the dying declaration of the victim have said that deceased state that she was set on fire by her husband (accused) by using sweet oil and kerosene.
Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872, Sections 3 and 32 - Non-use of sweet oil in offence - Showed by analyst report - Challenged as it made dying declaration as untruthful - Held - Lacuna in investigation no sufficient to discredit veracity of witness. - Lacunas in the investigation may not be sufficient to discredit the veracity of the witnesses.
1. Feeling aggrieved by his conviction and sentence for the offence punishable under section 302 of Indian Penal Code, the original accused has approached this court by an appeal under section 374 (2) of the Code of Criminal Procedure. The appellant was tried for the offences punishable under sections 302, 498A of Indian Penal Code by Adhoc Additional Sessions Judge, Nanded. At the conclusion of the sessions case no. 149/05, the learned Judge was pleased to convict the appellant for offence punishable under section 302 of Indian Penal Code and he is sentenced to suffer imprisonment for life and fine Rs.500/- and in default, simple imprisonment for three months. He is acquitted so far as charge for the offence punishable under section 498A of Indian Penal Code is concerned. The judgment was rendered on 9-3-2006.
2. Prosecution story can be narrated in brief as follows :- .
The incident in question is said to have occurred on 9-8-2005 at about 3.30 or 4.00 pm at the residence of the accused. The victim of the incident namely Kantabai was wife of accused. They were married about 15 years ago. The couple was having three children i.e. a daughter and two sons. It is the contention of relatives of deceased Kantabai that accused had started harassing her for satisfying his demand for Rs.10,000/- and as the parents were not able to satisfy the said demand, Kantabai had stayed with the parents (at village Borwadi) nearly for a period of 4 to 5 months. She was brought for cohabitation to village Tatkalwadi just a fortnight prior to the alleged incident. There is no evidence giving direct account of the incident in question. But it appears that Girjabai (wife of PW 1 Datta) and Shantabai (PW 6) who were sisters of the victim were the persons to reach the location before anyone else and to learn about what happened, from the victim Kantabai herself. . It appears that after learning from Kantabai that she was set on fire by the accused, the relatives including Datta and others took the victim firstly to rural hospital, Bhokar and subsequently to civil hospital, Nanded. Kantabai is said to have succumbed to death on 10-8-2005 at 01.00 hours i.e. just after mid night between 9th and 10th of August. Initially, A.D. was registered by police station Bhokar on the basis of report from police station Vazirabad of Nanded. This was only after report that Kantabai died of burn injuries. Infact, statement of Datta recorded only on 11-8-2005 is treated as First Information Report. After completion of investigation, the charge sheet was filed in the court of Judicial Magistrate First Class, Bhokar and after committal of the case, accused was tried by Adhoc Additional Sessions Judge, Nanded. . Prosecution has in all examined 8 witnesses. PW 1 Datta is complainant. He is brother in law of victim Kantabai i.e. husband of victim’s sister Girjiabai. PW 2 Tukaram and PW 3 Bajirao are Sarpanch and Police Patil of the village. They met the complainant and his relatives on way between Bhokar and Tatkalwadi. While the relatives were taking the victim to Bhokar in an auto-rickshaw, Police Patil and Sarpanch were returning from Bhokar and upon learning the details of the incident from the relatives, they travelled back with the victim to Bhokar and subsequently to Nanded. PW 5 Kishan is father of the victim and PW 6 Shantabai is the sister, who was the first amongst the examined witnesses, to reach the spot. PW 4 Kondiba is panch witness of the spot panchanama. Entire investigation is carried out by PSI Subhash Pedewad (PW 7). Dr. Hemant had carried out post mortem on the dead body. Finding that victim had suffered 92% burn injuries, he has also opined that cause of death was due to shock due to burns.
3. Learned Sessions Judge upon appreciation of evidence found that the story that accused set the victim Kantabai (his wife) on fire by using sweet oil and kerosene and caused her death was a consistent story narrated not o
