Vitthal Ganpat Waghmare vs The State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant -original accused against the judgment and order dated 29.10.1996 passed by the learned Additional Sessions Judge, Baramati in Sessions Case Nos. 76 of 1992. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs. 500/-, in default R.I. for one month.

The prosecution case briefly stated, is as under:

(a) Deceased Pushpa was the daughter of PW 7 Anna. Pushpa was the sister of PW 1 Suresh. Anna along with his wife and sons was residing at Kalas, Taluka Indapur, District Pune. The marriage of Pushpa and the appellant took place about 8 to 9 years prior to the incident. After the marriage, Pushpa and the appellant stayed at various places in Baramati. About 3 to 4 months prior to the incident, Pushpa and the appellant started residing in Dhotre Wadi situated in Ambarai in Baramati. PW 3 Manik was the owner of the room in which the appellant and Pusha were residing. PW 4 Ramchandra was the neighbour of Pushpa and the appellant in Dhotre Wadi. PW 2 Nisha was the daughter of PW 4 Ramchandra.

(b) It is the prosecution case that the appellant was suspecting that his wife Pushpa was having an affair with PW 6 Tulshidas and on this count, the appellant was harassing and beating Pushpa. Pushpa informed this fact to her mother.

(c) About 8-10 days prior to the incident, PW 1 Suresh, the brother of Pushpa went to her house. When he met Pushpa, she started weeping. She did not disclose to Suresh what was the reason for which she was crying. On the next day, Suresh sent his mother to meet Pushpa. After staying for 3 to 4 days in the house of Pushpa, his mother came back. When his mother came back, she told Suresh that the appellant was suspecting that Pushpa was having illicit relations with someone else and therefore, the appellant was harassing her.

(d) The incident took place on 4.4.1992. At about 8.30 to 9.00 p.m., PW 2 Nisha was sitting on the Ota of her house and studying. Her house was situated nine feet away from the house of the appellant. After a while, Nisha saw flames in the house of the appellant. She told this fact to her parents as well as PW 3 Manik who was the owner of the house. PW 3 Manik came to the room of the appellant. He peeped into the house and he saw that Pushpa was burning and the appellant was standing in the corner of his room. He asked the appellant to open the door from inside but the appellant did not open the door. Then PW 3 Manik broke open the door of the house with the help of stone. He saw Pushpa burning. Manik extinguished the fire. Pushpa came out of the room and immediately went to Dr. Joshi''s Clinic. Thereafter, Pushpa was taken to S.J. Hospital, Baramati for treatment.

(e) In the hospital, two dying declarations of Pushpa were recorded. The first dying declaration was recorded by PW 12 Police Constable Gawari. This was recorded on 4.4.1992 at about 9.35 p.m. This dying declaration is at Exh. 39. Thereafter, PW 5 S.E.M. Shri. Agawane recorded the dying declaration of Pushpa. This dying declaration was recorded on 4.4.1992 at 10.40 p.m. This dying declaration is at Exh. 35. In both the dying declarations, Pushpa has stated that at about 8.00 p.m., her husband (appellant) came home in an intoxicated condition and started beating her. He told her that she had illicit relations with PW 6 Tulshiram Waghmare. Due to this, Pushpa got angry and poured kerosene on herself. The appellant then set her on fire with a burning matchstick.

(f) The relatives of Pushpa were informed by the police. PW 1 Santosh, the brother of Pushpa and PW 7 Anna, the father of Pushpa, along with other relatives reached the hospital at about 12.15 a.m. They met Pushpa in the hospital. They inquired with Pushpa how she sustained burn injuries. Pushpa told them that the appellant had set her on fire. PW 1 Suresh then lodged F.I.R. Thereafter, investigation commenced. Pushpa expired on 5.4.1992 at 6.50 a.m. The offence was then converted from Section 307 to Section 302 of IPC. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Sections 302 and 498(A) of IPC. The appellant-accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge acquitted the appellant of the offence under Section 498(A) of IPC but convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeal.

The conviction of the appellant is mainly based on two dying declarations Exh. 35 and Exh. 39. Dying declaration Exh. 39 was recorded first in point of time. It was recorded on 4.4.1992 at 9.35 p.m. This dying declaration was recorded by PW 12 Police Constable Gawari. Thereafter, dying declaration Exh. 35 was recorded by PW 5 S.E.M. Shri. Agawane. This dying declaration was recorded on 4.4.1992 at 10.40 p.m.

PW 12 Police constable Gawari has stated that on 4.4.1992, he was directed to go to S.J. Hospital, Baramati and record dying declaration of Pushpa Waghmare who was admitted there for treatment. Accordingly, he went to S.J. Hospital, Baramati. Dr. Suryawanshi (PW 8) was on duty as Medical Officer in S.J. Hospital on that day. Constable Gawari met Dr. Suryawanshi and made inquiry where Pushpa was admitted. He learnt that Pushpa was admitted in Room No. 8 in S.J. Hospital. Then he and Dr. Suryawanshi went to Room No. 8. The Doctor examined Pushpa and told Police Constable Gawari that Pushpa was fully conscious and was in a position to speak. Then Constable Gawari in presence of Dr. Suryawanshi recorded the statement of Pushpa. After recording the statement, he read over the said statement to Pushpa who admitted it to be correct. Then he obtained thumb impression of Pushpa. This dying declaration is at Exh. 39. Constable Gawari has categorically stated that PW 8 Dr. Mrs. Suryawanshi gave an endorsement on the dying declaration that the patient was fully conscious and in position to give a statement. He completed recording of dying declaration at 10.50 p.m.

PW 8 Dr. Mrs. Manik Suryawanshi has stated that she was on duty on 4.4.1992 as a medical officer. Pushpa was admitted in their hospital at about 9.30 p.m. Information was given to Baramati City Police Station about admission of patient with burn injuries. Immediately Police from Baramati City Police Station came to the hospital. One Head Constable recorded the dying declaration of Pushpa. Dr. Suryawanshi has stated that the statement was recorded in her presence. Pushpa was fully conscious and was in a position to give statement. Before recording dying declaration, she examined Pushpa and told the Police Officer that Pushpa was fully conscious. Police recorded dying declaration of Pushpa and obtained thumb impression of Pushpa in presence of Dr. Suryawanshi. After recording of dying declaration was over, Dr. Suryawanshi gave endorsement thereon that the patient was fully conscious and in position to give a statement. She then put her signature and stamp below the endorsement. She has identified dying declaration Exh. 39 as the same dying declaration which was recorded in her presence.

The second dying declaration was recorded by PW 5 S.E.M. Shri. Agawane. This witness has stated that as per the request letter sent by Baramati City Police Station requesting him to record the dying declaration of Pushpa Waghmare admitted in S.J. Hospital at Baramati, he went to the hospital. He met Dr. Doshi (PW 9) in the hospital. Shri. Agawane asked the doctor if the patient was fully conscious and Dr. Doshi answered in affirmative. Shri. Agawane then asked the patient about her name, age, address etc. He then wrote down whatever was stated by Pushpa to him. He completed recording of dying declaration at 10.50 p.m. Thereafter, he obtained thumb impression of Pushpa on the dying declaration. Shri. Agawane has stated that Pushpa told him that her husband was addicted to liquor and after consuming liquor, he used to quarrel with her. On the day of the incident also, he came to the house in intoxicated state and started beating her. Her husband stated that she was having illicit relations with Tulshiram. Due to this Pushpa got annoyed and she poured kerosene on her person. The appellant then ignited matchstick and set her on fire due to which she sustained burn injuries. S.E.M. Shri. Agawane recorded the statement of Pushpa which is at Exh. 35. After recording the statement, he obtained doctor''s endorsement thereon that the patient was fully conscious and was in a position to give a statement.

PW 9 Dr. Doshi has stated that on 4.4.1992, he was on night duty in S.J. Hospital, Baramati. At about 9.30 p.m., Pushpa was admitted in their hospital for treatment. She had sustained burn injuries. At about 10.30 p.m., Tahsildar Shri. Agawane came to the hospital. He asked about patient Pushpa Waghmare. Dr. Doshi then took Shri. Agawane to room No. 8. Dr. Doshi examined Pushpa in presence of Tahsildar and wrote down endorsement on Exh. 35 (dying declaration) that the patient was fully conscious and can give a statement. He put his stamp below the endorsement. The Tahsildar then recorded the dying declaration of Pushpa in presence of Dr. Doshi and obtained thumb impression of Pushpa on it. Dr. Doshi has identified Exh. 35 as the same dying declaration which was written by Tahsildar Shri. Agawane in his presence. Dr. Doshi has stated that Shri. Agawane wrote down the dying declaration of Pushpa as narrated by her in her own words. Dr. Doshi has specifically stated that before giving the statement, Pushpa was fully conscious and able to give a statement. Thus, the prosecution has brought on record that two dying declarations of Pushpa were recorded which are at Exh. 35 and Exh. 39. In both the dying declarations, Pushpa has stated that her husband had set her on fire.

In addition to the dying declarations Exhs. 35 and 39, the prosecution is relying on oral dying declaration which was made by Pushpa to her brother PW 1 Suresh and her father PW 7 Anna. Suresh has stated that Pushpa was his sister. She was married to the appellant about 8 to 9 years prior to the incident. Pushpa had one son and one daughter from the marriage with the appellant. Suresh has stated that 8 to 10 days prior to the incident, he had gone to meet Pushpa. When he met Pushpa, she started weeping, however, she did not disclose to him why she was weeping. On the next day, Suresh sent his mother to Baramati to meet Pushpa. His mother stayed for 3 to 4 days in the house of Pushpa. When his mother came back to their house, his mother told Suresh that the appellant suspected that Pushpa was having illicit relations with some other person and therefore, was harassing her. Suresh has further stated that on 4.4.1992 at about 11.30 p.m., he was informed that Pushpa had sustained burn injuries and she was admitted in S.J. Hospital at Baramati. He then went to S.J. Hospital along with his parents and other relatives. He met Pushpa in room No. 8 of the hospital. He saw that Pushpa was in a position to speak. Then he and his father (PW 7 Anna) asked Pushpa how she sustained burn injuries. Then Pushpa told that the appellant had set her on fire.

The evidence of PW 7 Anna is on the same lines as that of PW 1 Suresh. Thus, the evidence of PW 1 Suresh and the evidence of PW 7 Anna shows that Pushpa made oral dying declaration to both these witnesses wherein she stated that the appellant set her on fire.

The prosecution has also proved the motive for the appellant to commit the murder of Pushpa. This is not only stated by Pushpa in her both dying declarations that her husband suspected that she was having affair with Tulshiram, in addition, this has also been deposed by PW 6 Tulshidas Waghmare. Tulshidas has stated that the appellant used to often tell him that he (Tulshidas) was having illicit relations with Pushpa. Tulshidas told the appellant that it was absolutely false charge. On this count, quarrels had taken place between Tulshidas and the appellant.

PW 7 Anna was the father of Pushpa. He has stated that Pushpa told his wife that her husband used to beat her after drinking liquor and her husband used to allege that she was having illicit relations with Tulshiram Waghmare and on this count, he used to beat her.

The prosecution has also relied on the conduct of the appellant which according to the prosecution shows his mens rea. In this connection, the prosecution has relied on the evidence of PW 3 Manik who was the landlord of the appellant and the deceased. However, before we refer to the evidence of Manik, we would like to advert to the evidence of PW 2 Nisha. Nisha has stated that the appellant was her neighbour. The appellant was residing there with his wife and two children. Nisha has further stated that on the day of the incident at about 8.30 to 9.00 p.m, she was sitting on the Ota of her house and studying. The house of the appellant was about 9 feet away from her house. After a while, Nisha saw that there were flames in the house of the appellant. She told this fact to her parents and to the landlord Manik (PW 2) and other neighbours. Manik came to the room of the appellant. He pushed the door of the room of the appellant. The door was closed from inside. Then Manik broke open the door of the house with the help of big stone. When they looked inside, they saw that Pushpa was burning and the appellant was very much present in the house. Manik then extinguished the fire by pouring a bucket of water on Pushpa.

PW 3 Manik corroborates the evidence of PW 2 Nisha. He has stated that on 4.4.1992 at about 8.45 to 9.00 p.m., Nisha came running to his house and told him there was fire in the house of the appellant. Manik then went to the house of the appellant. On peeping into the house, he saw that Pushpa was burning and the appellant was standing in the corner of the room. Manik asked the appellant to open the door from inside but the appellant did not open the door, hence, Manik opened the door with the help of stone. As Manik saw Pushpa burning, he poured water on her person and extinguished the fire. The conduct of the appellant shows that though his wife Pushpa was burning, he stayed in the corner of the room and watched her burning. Had it been a case of suicide or accident, the appellant would have definitely made an effort to extinguish the fire, however, he has not done so. This conduct on the part of the appellant shows his mens rea.

It is the prosecution case that the appellant set his wife Pushpa on fire due to which she sustained injuries and died. That Pushpa sustained burn injuries is borne out by the medical evidence. PW 10 Dr. Sonawane conducted the postmortem on the dead body of Pushpa. He found that Pushpa had sustained 100% burn injuries and the cause of death was due to shock due to 100% burns.

On going through the entire evidence on record, we are of the opinion that there is sufficient evidence to prove beyond reasonable doubt that the appellant committed the murder of his wife Pushpa by setting her on fire. Thus, we find no merit in the appeal. The appeal is dismissed.

Office to communicate this order to the appellant who is in jail.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mrs. Nasreen S.K. Ayubi at Rs. 5000/-.