Judgment.Cr.Apeal.47.2000.doc

[ BOMBAY HIGH COURT ]

Kanaji vs State of Maharashtra

_*• Sections 302 and 34 IPC Appeal against conviction Murder Dying declaration Deceased in her dying declaration deposed that accused persons, her husband and his first wife poured kerosene and set her on fire First dying declaration immediately recorded at hospital in presence of Doctor, Special Executive Officer and PSI One can containing Kerosene, one burnt saree, and one burn quilt, were found in the kitchen and the flooring was cleaned Accused persons had not taken the defence that the Ratna had committed suicide Evidence of PSI showing that deceased alone came to Police Station in burnt condition and one Constable was deputed to shift her to hospital – Doctor also stated that deceased was brought to hospital by one Constable – Plea of accused that he carried deceased to hospital, unacceptable – Deceased died homicidal death Conviction proper. [Paras 23, 25, 26, 27, 28 and

 

23. Firstly, we consider the issue that the death of Ratna being accidental or homicidal ? Learned Trial Court has dealt with this issue in detail in paragraph 7, 8 and 9 of the judgment. It is not in dispute that the deceased Ratna was residing with accused nos. 1 and 2 under same roof. It is also not in dispute that on 04.09.1997 Ratna was in the house of accused no. 1 and at about 04.30 a.m she sustained 100% burns in the house of accused no. 1. Dr. Ansari (PW 1), the MedicalOfficer in IGM Hospital, Bhiwandi stated that Ratna was brought by police constable D.M. Shirsat to the hospital. Then Ratna gave the history to him that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. Considering this evidence, it is proved that the Ratna died homicidal death.

25. At the cost of repetition, we may state that Ratna was firstly taken to IGM Hospital, Bhiwandi, where PSI Shendage (PW 8) recorded dying declaration in presence of Special Executive Officer and Medical Officer. Dr. Ansari (PW 1). Ratna stated that her husband i.e. accused no. 1 and his first wife poured kerosene and set her on fire on 04.09.1997 at about 04.30 a.m. It also came on record that in the Register at Exh. 15, maintained in IGM Hospital, Bhiwandiwherein it has been recorded that burns were caused by husband and his first wife by pouring kerosene.
26. In the spot panchnama, it can be seen that panchnama was drawn up in the morning and at that time there was kerosene smell in the kitchen. One can containing kerosene, one burnt saree, and one burnt quilt, were found in the kitchen and the flooring was cleaned. If we consider this aspect of the matter, it can be said that Ratna did not sustain 100% burns accidentally or her attempt was to commit suicide. It is important to note that both the accused persons had not taken the defence that the Ratna had committed suicide. It was further found that floor was cleaned.
27. It is the the submission of learned Counsel appearing for the Appellant that the deceased was tutored by Sumanbai (PW 3) and Vimal (PW 5). In their evidence, it is reflected that both the witnesses were called by police. Vimal (PW 5) in her deposition stated that she was at Bhiwandi, and police informed her about the incident and then she went to Ratna at Thane Civil Hospital on second day. The first dying declaration was immediately recorded at IGM Hospital,Bhiwandi only in presence of Dr. Ansari (PW 1), Special Executive Officer and PSI Shendage (PW 8). Thus, it can safely be said that deceased had no occasion to meet with these two witnesses and was not tutored. Considering this aspect, we are unable to accept the submission that the dying declarations are doubtful or victim was tutored.
28. The accused no. 1 in his statement under Section 313 of Cr.P.C. stated that he had carried deceased Ratna to hospital but, there is no supportive evidence to it. On the contrary, the evidence of PSI Shendage (PW 8) clearly shows that Ratna alone came to Bhiwandi Town Police Station in burnt condition and he deputed one constable to shift her to IGM, Hospital. Dr. Ansari (PW 1) also stated in his evidence that the deceased Ratna was brought to hospital by one constable Shirsat.
29. Considering the above referred material and evidence, it can be stated that the death of deceased Ratna is a homicidal death and the Appellants are the author of crime.

Click here for read the judgment 

Kanaji Laxman Chavan & Smt. Hansa Kanji Chavan vs state of Maharastra Judgment

Adv Vaibhav Tomar (All Rights Reserved)