Babu Amboo Pawar vs State of Maharashtra

M.F. Saldanha, J.—The appellant before us, Babu Amboo Pawar attends convicted of the offence of having murdered his wife Tulsibai on 18.5.1987 at Bhatipada, Taluka Jawhar, District Thane.

It is alleged that at about 9 p.m. on that night, the appellant had demanded money from his wife as he desired to purchase liquor. She was unable to give him any money for the reason that she did not posses any, where upon the appellant is alleged to have poured kerosene oil from a lamp on her and ignited it. Tulsibai started screaming, whereupon her mother Sakari (PW 1) and others rushed to the spot. Apparently with the assistance of the persons who rushed there, the flames were extinguished and it appears that the appellant was one of those who assisted in this operation, in the course of which he sustained minor burn injuries. Tulsibai was removed to the Cottage Hospital at Jawhar. On the same night, a statement of her came to be recorded by the Police Constable. Thereafter around midnight, PW 4 Abdul Kadir the Special Executive Magistrate, recorded a formal dying declaration of Tulsibai, Early next morning, she was transferred to the J.J. Hospital at Bombay after which a Constable attached to the Byculla Police Station recorded another dying declaration Apart from this, the Prosecution alleges that the deceased Tulsibai had made a similar statement to her sister Suman (PW 5) wherein she had also disclosed to her that it was her husband, who is the present appellant who was responsible for the burn injuries sustained by her Tulsibai suffered approximately 68 per cent burns all over her body her condition deteriorated and she died on 24.5.1987. The appellant came to be arrested on 19-5-1987, he was charge sheeted and put on trial.

The learned Additional Sessions Judge, reviving on the evidence convicted the appellant and awarded him a sentence of imprisonment for life and a fine of Rs. 200/-, in default, rigorous imprisonment for a month.

Mr. Rao,learned Counsel appointed to prosecute the appeal on behalf of the appellant, has submitted that there references in the statement made by the deceased Tulsibai which are to the effect that she was cooking at the time when the incident took place. Admittedly, she was wearing a nylon saree.Mr. Rao further submits that the facts of the case unmistakably indicate that the fire was accidental. He supports this argument by referring to the references in the evidence which are to the effect that the appellant had not run away from that place, but that he had assisted Tulsibai''s mother Sakari (PWI) & Ors. who rushed to the spot, in extinguishing the flames by pouring water on Tulsibai. Mr. Rao Further submits that the condition of Tulsibai was relatively serious, that it took sometime for her to be removed even to the Cottage Hospital at Jawhar and that, having regard to the fact that she had sustained 68 percent burns, she could not have been in a fit condition to make a dying declaration. He submits that having regard to the fact that this was a case of burning, the moment the Police arrived on the scene they have mechanically proceeded on the assumption that it was the poor husband who was responsible for the burning and have fabricated a so called dying declaration.

We have, with some degree of caution, scrutinized the Prosecution evidence in this case. The evidence of P.W. 2 Shewantibai and her husband P.W. 3 Ramji roughly indicates that they had rushed to the spot and that all of them together extinguished the fire, after which they removed Tulsibai to the hospital. They do not specifically indicate anything with regard to the cause of the fire. Similarly, the mother P.W. 1 Sakari, who appears to have deliberately taken a neutral stand in this case, does not really implicate the present appellant. We, however, have on record the evidence of the sister of the deceased Tulsibai, P.W. 5 Suman, who claims that see spent a considerable time with the deceased Tulsibai and that Tulsibai, in terms, told her quite specifically that it was the husband who set her on fire merely because she was unable to give him money for the purchase of liquor. Nothing has been brought on record to indicate any hostility between Suman and the present appellant. Under these circumstances, we do not see why the sister should be hostile to the appellant and go to the extent of fabricating so serious a version that it was he who set fire to the deceased Tulsibai.

We have on record at page 68 of the paper-book the dying declaration that has been recorded by P.W. 9 Police Constable Vithal Yadav, who was attached to the Jawhar Police Station. In this statement, which came to be recorded at about 10 p.m. on the same night, i.e. within about an hour or two after the incident, the deceased Tulsibai has very clearly stated that the appellant was demanding money for the purpose of drinking liquor and that since she did not part with money he poured kerosene from a lamp on her and set fire to her clothes. She has also very clearly stated that it was he who was responsible for the fire and that she had not burnt herself. It is nobody''s case that the deceased Tulsibai had committed suicide.

The limited submission canvassed by Mr. Rao is that the evidence of P.W. 6 Dr. Bhosale, who is attached to the Cottage Hospital at Jawhar, appears to indicate that the Police Constable has not taken the specific the permission of the doctor before the statement was recorded nor has he obtained a certificate from the doctor to the effect that the patient was conscious and was in a position to make a statement. Mr. Rao, therefore, submits that quite apart from the condition of the deceased Tulsibai, what is more important is that there is no evidence from the medical authorities on the basis of which the Court can come to the conclusion that this is, in fact, a genuine statement.

Normally, some degree of doubt could have been cast with regard to this statement, but we have on record another dying declaration which has been recorded by the Special Executive Magistrate at about mid night. The Special Executive Magistrate, P.W.4 Abdul Kadir, was summoned by the Police and requested to record the dying declaration. He has stated very clearly in his evidence that he obtained the requisite clearance from the medical authority. He has further stated that the patient was in a position to speak with him quite cogently and that m the dying declaration recorded by him, which is in a question and answer from and which is at exhibit 13 the deceased Tulsibai has once again come out with an identical version'' Having regard to this document, we see no reason why the earlier statement recorded by the Police Head Constable hardly two hours earlier, which also sets out virtually the same version, should not be accepted. Apart from these two documents, we have on record a third dying declaration, as indicated earlier, which has been recorded by the constable attached to the Byculla Police Station at Bombay. It is quite obvious that having regard to the in tensely of the burns. The condition of Tulsibai was rapidly deteriorating and that it was for this reason that the hospital authorities must have informed the Police. As far as this dying declaration is concerned, even though the version set out is exactly the same as what appears in the earlier two dying declarations, the learned trial Judge has preferred not to rely on this dying declaration principally on the ground that the timings have not been recorded and, furthermore, that the requisite certificates have not been obtained from the doctors. Apparently the view was that it would have been fair safer and more correct to have requested one of the Special Executive Magistrates to record the dying declaration rather than for the Police to have done it. This document only adds to the weight of the evidence that unerringly points to the guilt of the appellant.

Mr. Rao has, undoubtedly, canvassed the submission that it was equally possible for the deceased Tulsibai to have sustained accidental burn injuries. The deceased Tulsibai is an adult woman, she was obviously in the habit of cooking food in that manner for years together, and we do not see any reason why her clothes should have suddenly caught fire on that night. As against this hypothesis, we have on record sufficiently reliable and cogent evidence which, undisputedly indicates that the appellant, who was admittedly unemployed at that time and who was almost addicted to the consumption of alcohol, had demanded from the deceased Tulsibai money for the purpose of consuming liquor. The fact that she did not part with money obviously irritated him and that it was in this fit of anger that he had poured karosene oil on her clothes and ignited it. Having done this, the fact that he thereafter possibly out of remorse or because of instigation from others might have tried to extinguish the flames, would not, in our considered opinion, make any difference to the establishment of his guilt.

Having regard to the above, we see no reason why the conclusion arrived at the learned trial Judge requires to be interfered with. In this view of the matter, the appeal fails and is accordingly dismissed.