Bombay High Court
Kailas Maruti Gunjal vs The State Of Mah on 24 November, 2014
Author: A.I.S. Cheema
Bench: S.S. Shinde, A.I.S. Cheema
Cri.Appeal No.679/2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.679 OF 2011
Kailas s/o Maruti Gunjal,
Age 38 years, Occ. Labour,
R/o Ghanegaon, Tq. Malegaon,
District Nasik. ... APPELLANT
VERSUS
The State of Maharashtra
(Copy to be served on the
Public Prosecutor, High Court of
Judicature at Bombay,
Bench at Aurangabad ... RESPONDENT
.....
Shri P.S. Shinde, Advocate holding for
Shri M. B. Vaishnav, Advocate for appellant
Shri V.D. Godbharle, A.P.P. for respondent/ State
.....
CORAM: S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
DATED: 24th November, 2014.
Date of reserving judgment : 5th November, 2014
Date of pronouncing judgment : 24th November, 2014.
JUDGMENT (Per A.I.S. Cheema, J.) :
1. The appellant (original accused No.1- hereinafter referred as 'accused') faced trial in Sessions Case No.96/2010 before the Additional Sessions Judge, Dhule along with his ::: Downloaded on - 26/11/2014 23:47:45 ::: Cri.Appeal No.679/2011 2 parents- accused Nos.2 and 3. His parents were acquitted while the appellant- accused has been convicted by judgment dated 30.9.2011 for offence punishable under Section 498-A of the Indian Penal Code (IPC for short) and he has been sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500-, and in default to suffer rigorous imprisonment for two months. He has been convicted also for offence under Section 302 of the IPC and has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- and in default to undergo rigorous imprisonment for two months. He has been convicted for offence under Section 307 of the IPC also and has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.500/-, and in default to undergo rigorous imprisonment for two months. The sentences have been directed to run concurrently. Hence the appeal.
2. In short, the case of prosecution is as follows :-
(a) The appellant- accused was residing with his wife Surekha Kailas Gunjal (hereinafter referred as 'victim') at Ghanegaon, Taluka Sakri, District Dhule. The marriage took place 10 years before the incident dated ::: Downloaded on - 26/11/2014 23:47:45 ::: Cri.Appeal No.679/2011 3 29.5.2009. The couple had daughter Ashabai, aged 7 years at the time of incident, who also became victim of the incident and expired. According to the prosecution, victim Surekha had trouble from the appellant- accused and his parents as she could not bear a male child. Due to this, she was being abused and mentally harassed.
Victim had aunt Sitabai Narayan Pawar, residing at Nizampur, Taluka Sakri.
ig Sitabai was residing there along with her sister and co-wife (P.W.1 Latabai Pawar).
For a marriage, the three accused along with victim Surekha and daughter of accused Ashabai had gone to Nizampur. After the marriage, they returned. At the time of marriage, Anita, sister of Surekha had also come to Nizampur. Anita stayed back while Surekha and the accused persons and Ashabai went back home. This happened around 20.5.2009. Soon on 26.5.2009, victim Surekha and her daughter Asha again came back to the place of P.W.1 Latabai at Nizampur as the accused had assaulted her as there was no son. Victim Surekha and Asha were followed by accused, who also reached Nizampur on 27.5.2009. P.W.1 Latabai and her family members tried to make the accused understand.
::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 4(b) The accused stayed there. In the evening of 28.5.2009, after having food, P.W.1 Latabai along with her husband and co-wife slept outside the house at Nizampur while the accused along with victim Surekha and victim Ashabai as well as Anita (sister of victim Surekha- the injured) and Bharti (yet another injured- daughter of aunt of Surekha) slept inside the house. While these people were sleeping inside the house at about 3.00 a.m., the accused poured petrol on these people and set them to fire, in the flash of which he also suffered some burn injuries. Because of the shouting, people sleeping outside ran inside and saw the four ladies burning as well as accused having burn injuries. The fire was put out and the accused who tried to run, was caught hold of. All the injured were taken to Nizampur Government Hospital and after first treatment, were shifted to Civil Hospital at Dhule in the same night.
(c) At the Civil Hospital, at about 8.15 a.m. of 29.5.2009, on the request of police, Naib Tahsildar Waman Bhoi (P.W.2) recorded first dying declaration (Exh.53-A) of the victim Surekha. Soon after Naib Tahsildar had recorded the dying declaration, Head Constable Pandit ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 5 Khairnar (P.W.4) reached the hospital and recorded second dying declaration (Exh. 60) taking necessary details from the victim. This Exh.60 was converted into F.I.R., registered as Crime No.59/2009 at Police Station, Nizampur on 29.5.2009 at 12.15 Hrs. in the afternoon.
(d) P.W.5 P.S.I. Madhukar Sonawane did the initial investigation by recording spot panchanama (Exh.18) and recording statements.
ig The investigation was then taken over by A.P.I. Jaising Pardeshi (P.W.7) who recorded further statements. The child Asha succumbed to the burn injuries and expired on the same day. Her provisional post mortem report as well as post mortem report was received (Exhs. 30 & 31). Inquest panchanama (Exh.29) was drawn. The investigating officer collected medical certificate of victim Bharti (Exh.35) which showed that she had suffered 11% burn injuries. Medical certificate of P.W.3 Anita was also procured, which showed that she suffered 39% burn injuries. The medical certificate of accused (Exh.47) showed that he had suffered 32% burn injuries and to doctor he had given history of injuries as suicidal burns.
The victim Surekha died on 2.6.2009 and her inquest ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 6 panchanama (Exh.32) was drawn and post mortem was got done. The provisional post mortem report (Exh.33) and post mortem report (Exh.34) showed that she had suffered 97% burns and septicemia had set in and she died due to the burns. The investigating officer completed the investigation and charge sheet came to be filed.
(e) As the matter was Sessions triable, the same came to be committed to the Court of Sessions at Dhule. The prosecution brought on record evidence to support its case as discussed above. The Sessions Judge acquitted the parents for want of evidence as it found that after the marriage, accused Nos.2 and 3- the parents, were residing separately and as it was found that they had no concern with the burning incident. Accused No.1- appellant, however, came to be convicted as mentioned earlier.
3. We have heard counsel for the appellant- accused.
His main thrust of argument was that, the first dying declaration (Exh.53) mentioned that the accused was angry as victim Surekha had come down to the place of her aunt and so, the ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 7 incident took place while in the second dying declaration (Exh.60), which is more elaborate, the reason given was of non begetting of a male child. Learned counsel argued to show that various things mentioned in the second dying declaration did not find place in the first dying declaration and thus, according to him, both the dying declarations are not reliable and need to be discarded. He submitted that, the two dying declarations were recorded hardly with a gap of about 30 minutes and the version changed in the second dying declaration. He referred to the evidence of P.W.1 Latabai to say that, this relative was present at the time of recording of dying declaration and thus, according to him, the dying declarations should be ignored branding them as tutored.
Learned counsel for the appellant- accused relied on the case of Rajesh Mahaiskar Vs. State, reported in 2014 ALL MR (Cri) 1023 as well as Macchidra Shelar Vs. State of Maharashtra, reported in 2014 CJ (Bom) 123; the case of Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra, reported in 2005(0) BCI 232 and Kamalbai Gorakh Koli & ors. Vs. State of Maharashtra, reported in 2011(4) Bom.C.R. (Cri.) 535 to submit that where there are more than one dying declarations, if there ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 8 are material inconsistencies and contradictions, the Court cannot pick and choose one dying declaration and all the dying declarations would be required to be discarded. Reliance was placed also on the case of Smt. Rashida Abdul Gani Khairadi Vs. The State of Maharashtra, reported in 2014 All MR (Cri) 244 and the case of Shivaji s/o Tukaram Patdukhe Vs. State of Maharashtra, reported in 2004 ALL MR (Cri) 3220 to argue that if a dying declaration is not read over, the same cannot be relied on. Reference was made to the case of Mohan Lal & ors. Vs. State of Haryana, reported in 2007(9) SCC 151 in support of the argument that if the relative was present at the time of recording of dying declaration, the same will be required to be discarded.
According to him, the evidence of P.W.1 Latabai as well as injured P.W.3 Anita is unreliable and the evidence of these witnesses needs to be discarded.
4. Per contra, the learned A.P.P. argued that, the first dying declaration of victim Surekha was recorded by P.W.2 after taking care of all necessary procedures and P.W.8 Dr. Ashwini had certified regarding the fit condition of the victim to make the statement. In half an hour of the recording of dying declaration by Naib Tahsildar, the Head Constable recorded the Exh.60, ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 9 second dying declaration-cum-F.I.R. following the necessary procedure and even this dying declaration was endorsed by yet another doctor P.W.6 Yogesh Thakare regarding the fit condition of the victim Surekha to make the statement. It has been argued that, although Surekha suffered extensive burns, the evidence on record shows that she was in a fit condition to make the statements, and the dying declarations were duly recorded.
It has been argued that, there was no change of version and the second dying declaration gives further particulars when asked by the Head Constable. According to the learned A.P.P., there is no reason to disbelieve the evidence of P.W.1 Latabai and P.W.3 Anitabai. P.W.3 Anita suffered 39% burns and there is no reason why she would depose false. The incident occurred at 3.00 a.m. in the night and there cannot be any question of accidental burns as the C.A. report shows that the half burnt articles on the spot collected while recording of spot panchanama were examined and residue of petrol was found. The victim and witnesses earlier carried the impression that kerosene was used, may be due to their illiteracy, but the scientific record shows that the substance used by the accused was petrol. Thus, according to learned A.P.P., the accused had planned the incident and due to inflammable nature of petrol, when he put the ladies to fire, due ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 10 to the flash of petrol, he also suffered injuries. According to learned A.P.P., it is a serious offence and minor contradictions need to be ignored. Most of the documents are not even in dispute.
5. Record shows that the spot panchanama dated 29.5.2009 (Exh. 18), inquest panchanama (Exh. 29), dated 29.5.2009 of child victim Ashabai and inquest panchanama of victim Surekha (Exh. 32) dated 2.6.2009 were documents admitted by the accused in the trial Court. The provisional post mortem report and final post mortem report of daughter Ashabai (Exh. 30 and 31) were also admitted. The provisional post mortem report and the post moretem report of victim Surekha were also admitted at Exh.34 and Exh.34. Even the injury certificates of Bharti (Exh.35) and injury certificate of P.W.3 Anita (Exh.44) were admitted. The arrest panchanma of accused dated 4.1.2010 (Exh.45) was also not disputed. Letters given to the Executive Magistrate for recording dying declarations as well as letters sent to C.A. forwarding articles seized at the time of spot panchama were also admitted. The C.A. reports (Exh.43 and 46) relating to the partly burnt towel, quilt, pillows etc. seized from the spot reporting finding of petrol residues were ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 11 also admitted by the accused in the trial Court.
The defence taken by the accused in his statement under Section 313 of the Cr.P.C. is that, false case has been filed against him and he does not know how the fire took place at the time of incident and claimed that even he suffered burn injuries to his chest, hand and private parts. A weak suggestion was made to P.W.1 Latabai that as she married Narayanrao as Narayanrao and her sister Sitabai did not have male child and so, she wanted the accused also to enter into another marriage and as he did not agree, Sitabai had brought about the incident. The suggestions were denied by the witness.
6. Looking to the admitted documents as well as the evidence brought on record by prosecution and cross-
examination of witnesses, it is not in dispute that in the night between 28.5.2009 - 29.5.2009 at about 3.00 a.m., victim Surekha and her daughter Ashabai were burnt and even P.W.3 Anita and Bharti suffered burn injuries in the incident. It is not in dispute that, the articles seized from the spot in C.A. report showed resides of petrol. The accused has not disputed that in the burns, he also suffered injuries due to the fire. The presence ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 12 of petrol rules out any accident. Now the question is as to how these four ladies were set on fire.
7. The evidence of P.W.1 Latabai is that, for the marriage of her son Ravindra which was performed on 19.5.2009, victim Surekha along with her daughter Asha had come to her house along with her husband. Anita, the sister of victim Surekha had also come.
ig On 20.5.2009, victim Surekha, her daughter, Asha and accused went back home while Anita stayed on. However, on 26.5.2009, victim Surekha and her daughter Asha again came to the house of P.W.1 Latabai at Nizampur and Surekha informed her that the husband had assaulted her and her parents-in-law had abused her as she did not have a son. The evidence of P.W.1 Latabai as well as P.W.3 Anita shows that the accused followed Surekha and Asha to the place of P.W.1 Latabai. Evidence shows that, the husband was tried to be convinced regarding his behaviour. P.W.1 Latabai as well as P.W.3 Anita have deposed, and it appears from the evidence that, in the night of 28.5.2009, Latabai along with her sister Sitabai (co-wife) and her husband Narayan Pawar slept in the courtyard while victim Surekha, her daughter, victim Asha and the injured P.W.3 Anita and Bharti slept inside the house.
::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 13According to P.W.1 Latabai, at about 3.00 a.m., they heard noise from inside and rushed in to see that the four ladies were burning and the accused was trying to run away. According to P.W.1, they caught him. Even the accused had burn injuries.
According to P.W.1 Latabai, they took all these persons to the hospital at Sakri and then to Civil Hospital at Dhule. P.W.1 Latabai has deposed that victim Surekha told her that the accused burnt her by pouring petrol. Thus, this was oral dying declaration. Victim Asha died on the very same day in the Civil Hospital, Dhule while victim Surekha died after four days.
In the cross-examination of P.W.1 Latabai, details were brought on record regarding how many years back the marriage took place between victim Surekha and the accused and where they were residing. It was brought on record that, Sitabai was elder sister and she was married to Narayanrao. As there was no issue to Sitabai, so Narayanrao performed marriage with her. Details were taken regarding the length and width of the room where the four ladies and accused were sleeping. Spot panchanama Exh.18 shows that the room was of 12 ft. x 17 ft.
P.W.1 Latabai deposed in the cross-examination that, when they reached inside the house, even accused Kailas was burning. This ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 14 witness was referred to certain omissions which are not material to main incident. It was suggested that, they wanted Anita to marry Ravindra, which was not accepted by victim Surekha and so, Sitabai was annoyed. Thus, it is suggested that the incident was brought about by Sitabai. The suggestions were denied.
P.W.1 Latabai admitted that she had suggested to the accused to perform second marriage so as to have male issue, but the accused did not perform.
ig It was argued for the accused that, this showed that, the accused did not accept the suggestion of P.W.1. However, what is admitted by P.W.1 is only that, accused had not performed second marriage. This is not same as acceptance or non-acceptance of the suggestion. Thus, if the evidence of P.W.1 Latabai is perused, regarding the incident, it cannot be said that the witness has been shattered in any manner.
8. There is then evidence of P.W.3 Anita, whose medical certificate shows that, she suffered 39% burns. This witness was 18 years old girl and in the unfortunate incident she suffered such burns. Her evidence shows that, in the night concerned, the accused poured petrol on the person of all of them. She deposed that, she felt coldness and so she woke up and saw that the ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 15 accused was standing near her legs and her evidence is that, then the accused fired the match stick and threw it, because of which all 4 of them started burning and they started shouting and so, people came in the house and extinguished the fire. In the cross-examination of this witness, she deposed that, she woke up, at that time, she, victim Surekha and victim Ashabai as well as the accused had started burning. The witness was confronted with her police statement to bring on record that "she felt coldness" was not stated. The statement to police was referred to at the time of arguments and it did show that the accused was there and he burnt match stick and threw on the ladies. In such circumstance, the further omission tried to be shown that the accused was "near her legs" was not stated, is not material. After the petrol was poured, and this witness felt the coldness so as to wake up and see the burning of match stick and throwing it on the ladies would be a matter of seconds and thus, no over due importance can be given to the cross-
examination where the witness stated that when she woke up, they were burning. The witness is a labourer and her evidence needs to be properly appreciated. There is no reason for her to unnecessarily attribute the fire to accused when she herself suffered extensive burns; in which her sister and niece expired.
::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 16The alleged omissions put up in para 4 of her cross-examination cannot be said to be omissions as what was asked to her was merely that it did not appear in her statement to police that she felt coldness or that the accused was standing "near her legs".
The witness was not asked if she stated so to the police. Without giving such opportunity to the witness, the omission cannot be said to be proved as it would merely amount to reading the police statement so as to stick to specific words.
ig When the witness deposes that the accused was there and he put them to fire, it hardly makes sense to search for words that she did not say that the accused was "near her legs".
9. Looking to the above evidence of P.W.1 Latabai as well as P.W.3 Anita and the documents proved and admitted on record, this evidence itself is sufficient to hold the accused guilty for the culpable homicide amounting to murder of victims Surekha and Ashabai and to hold him guilty for having attempted to commit murder of P.W.3 Anita as well as the other injured Bharti.
10. However, in the present matter, in addition to the above evidence, there is further evidence available in the form of ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 17 dying declarations of victim Surekha. Evidence of P.W.2 Waman Bhoi, then Naib Tahsildar read with the evidence of P.W.8 Dr. Ashwini Wani, the Medical Office of Civil Hospital, Dhule, shows that the Naib Tahsildar received office memo (Exh. 51) to record dying declarations of the injured. He went to the Civil Hospital.
Doctor gave remark that the patient was conscious and able to give statement. The doctor endorsed on the document on 29.5.2009 at 8.15 a.m. ig The endorsement regarding this has been proved at Exh.71, which is in the margin of the dying declaration (Exh.53-A). The cross-examination of P.W.2 Waman Bhoi shows that, even he had asked questions to Surekha and confirmed about her health condition. According to P.W.2, the victim told him that her husband was angry as she had come to the house of her aunt and because of which, he poured kerosene on her person and burnt her. This Naib Tahsildar has deposed that the victim had complaint against her husband and her parents-in-law. The dying declaration (Exh.53-A) has printed portion that the statement was read over and admitted to be correct. This is supported by substantive evidence of P.W.2 that he did read over the statement to the victim and then obtained her left hand thumb impression on the statement. The evidence of P.W.2 Waman and P.W.8 Dr. Ashwini shows that, after the ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 18 statement was recorded, the doctor again put endorsement on Exh.53-A at the foot that the patient was conscious and able to give statement. The doctors signed and put the time as 8.30 a.m. of 29.5.2009. Thus, this dying declaration was recorded between 8.15 a.m. to 8.30 a.m. The evidence of P.W.2 Waman shows that, when he had gone to the Ward, the relatives of victim Surekha were near her but then he had asked them all to go out. This witness as well as the doctor have both denied that relatives were present in the Ward at the time of recording of her dying declaration. There is no reason to disbelieve these two independent persons who have nothing to do either with the accused or with the victim. The doctor has deposed that the patient was in condition to give statement and the cross-
examination does not bring on record any material to discard his medical opinion. P.W.2 deposed that, burn injury was not there to the left hand and right hand thumb of Surekha. He admitted that the whole thumb was not visible on the dying declaration.
This may happen with a burnt victim. Exh. 53-A shows thumb mark on the document and the same was endorsed by the P.W.2 Waman.
11. There is then evidence of Head Constable Pandit ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 19 (P.W.4) who has deposed that he had gone to the Civil Hospital on 29.5.2009 and he met doctor as he wanted to record the statement of victim Surekha. The evidence of this witness read with the evidence of P.W.6 Dr. Yogesh shows that, these persons went near the victim Surekha and the doctor examined Surekha regarding her condition. The document Exh. 60 in the margin shows endorsement by doctor that the patient was in a condition to give statement. The endorsement dated 29.5.2009 is of 9.00 a.m. The recording of first dying declaration (Exh.53-A) was over by 8.30 a.m. and thus, within half an hour another doctor P.W.6 examined the victim Surekha and even he endorsed that the patient was in a condition to give statement. P.W.4, on getting such endorsement from the doctor, recorded statement of victim Surekha. This Head Constable appears to have sought details about the incident from the victim and claims that he wrote the same as per her say and even before him, the victim attributed the burns to the accused. She stated that, the cause of her troubles was non giving of birth to male issue. The evidence shows that, P.W.4 Head Constable Pandit read over the statement of victim Surekha to her and obtained her thumb impression on the statement. The doctor again endorsed on the statement regarding fit condition of the victim to make the ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 20 statement. P.W.4 Head Constable Pandit, in cross-examination denied that the victim was not able to talk properly due to burns.
He denied that, when he went, the aunt and other relatives were present in the hospital. In the further cross-examination, he stated that he did not know whether relatives of Surekha were in the area of hospital.
12. It has been argued by the learned counsel for appellant- accused that, P.W.4 did not know if the relatives were in the area of hospital. It is further argued that, P.W.1 admitted in the cross-examination in para 9 that, when the Magistrate recorded statement of Ashabai and Surekha, she was present near them. On the basis of this, the learned counsel argued that, the dying declarations recorded should be discarded. We do not find anything unnatural in relatives rushing to the hospital where victim is admitted after such burns. It is a natural conduct and merely because relatives have come to the hospital or met the victim, by itself cannot be sufficient to say that there was tutoring. If such reasoning is accepted, all dying declarations will have to be discarded. P.W.1 Latabai is a villager and housewife.
If para 9 of her cross-examination is perused, although she stated that when Magistrate recorded statement of Ashabai and ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 21 Surekha, she was present there near to them, the villager appears to have got confused in the cross-examination.
Although the record shows that the Magistrate recorded statement of Surekha only on 29.5.2009 and Surekha died on 2.6.2009, P.W.1 Latabai deposed that the police and Magistrate recorded statements of Surekha 2 to 4 times. Thus, her evidence cannot on this count be given much importance in the face of independent witnesses P.W.2 Waman Bhoi and P.W.8 Dr. Ashwini, who have stated that no relative was left nearby when dying declaration was recorded.
13. Apart from above, even if and for any technical reason the dying declaration (Exh.53-A) was to be ignored, there is cogent and reliable evidence of P.W.1 and P.W.3 already on record which we have discussed, is fully reliable to hold the accused guilty.
14. The other challenge raised by the learned counsel for the accused is that, Exh.53-A, the first dying declaration and Exh. 60, the second dying declaration have different reasons as to the cause of the incident. According to the counsel, in the first dying declaration, reason given was that the accused was angry ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 22 that the victim came to the house of her aunt while in the second dying declaration, the reason given was that she is not getting a male child. We find that, P.W.2 Waman Bhoi, the Naib Tahsildar appeared to have adopted a format for recording dying declaration with 10 questions framed for asking. Against question No.7, as to how the incident occurred, he had kept certain space. He seems to have only sought details of main incident to fit in the space. This attitude of such Naib Tahsildar cannot be appreciated. P.W.4, however, sought all details from the victim and within half hour of the first dying declaration, the victim did give details. The evidence of P.W.2 Waman shows that he had sent out the relatives and the evidence of P.W.4 Head Constable Pandit shows that, when within half an hour of the first dying declaration he went, the relatives were not there.
P.W.4 Pandit took details. Although it has been argued for the appellant- accused that different reasons are given, it does not appear to be so, as in the first dying declaration what the victim stated that the husband was angry that she came to her aunt's place is reflected even in the second dying declaration, which shows that the cause of the trouble of the victim was non bearing of a male child and because of which, she came up to the place of her aunt and as she had complained about the same to her ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 23 aunt, so the accused committed the incident. The second dying declaration gives further details and this by itself cannot be said to be inconsistency or contradiction.
15. We have carefully gone through the judgments and rulings relied on by the appellant-accused which have been referred above. We have kept the said rulings in view while appreciating the evidence. We find that, those rulings are based on their facts and having carefully examined the facts of the present matter and the evidence, we find that, those rulings are not helpful to the accused. In the context of the facts of the present matter as proved on record, we find that, the evidence on record in favour of the prosecution inspires confidence and we have no doubts that the accused indulged in such ghastly act of putting four ladies on fire. When petrol is poured in close room, the vapors in the air can get formed and in case of fire, can cause flash, and in such flash created by the accused himself, unwittingly even he suffered injuries. His presence on the spot is not disputed. Accepting the evidence in favour of prosecution, we discard the defence.
16. Going through the evidence as well as the reasonings ::: Downloaded on - 26/11/2014 23:47:46 ::: Cri.Appeal No.679/2011 24 recorded by the trial Court, we find that, the dying declarations relied on by the prosecution are reliable. The victim was in a fit mental condition to make the statement. The dying declarations appear to be voluntary and made in fit mental condition, and match with the other evidence of P.W.1 and P.W.3 and the circumstances proved on record.
17. We do not find any reason to interfere with the conviction and sentence imposed by the trial Court on the appellant- accused. The appeal is dismissed.
(A.I.S. CHEEMA, J.) (S.S. SHINDE, J.)
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