Criminal Appeal No. 401 of 1993. Case: Narayan Pandhari Bhalshankar Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 401 of 1993 |
| Counsel | For Appellant: Sunil Kadam, Adv. and For State: R. Y. Mirza, App., Adv. |
| Judges | V. Sahai, J. and R. G. Vaidyanatha , J. |
| Issue | Evidence Act (1 of 1872) - Section 32 |
| Citation | 1996 CriLJ 2174 |
| Judgement Date | March 14, 1996 |
| Court | High Court of Bombay (India) |
Judgment:
Vishnu Sahai, J.
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The appellant aggrieved by the judgement and order dated 23-6-1993 passed by the Sessions Judge, Pune, in Sessions Case No. 489 of 1992, convicting and sentencing him to undergo imprisonment for life under Section 302. I.P.C. has come up in appeal before us.
Appeal with the appellant his nephew Ramesh Mohan Bhalshankar was also tried and prosecuted under Sections 302 read with 34, I.P.C., but he has been acquitted vide the impugned judgement. The State of Maharashtra has not preferred any appeal challenging his acquittal.
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The prosecution case in brief is that the appellant is the real uncle (father's brother) of acquitted accused Ramesh Mohan Bhalshankar. The deceased Bhamabai was the wife of acquitted accused Ramesh. About 11/2 months prior to the incident a quarrel took place between acquitted accused Ramesh and the appellant. During the course of the same the latter assaulted the former with an iron bar resulting in the leg of the former getting fractured. It appears that since the parties were close relations the matter was not reported to the police but a compromise in terms, that the appellant would give the acquitted accused and the deceased food grains and money, was arrived at between the parties. It is said that once or twice the appellant gave food grains and some money to the acquitted accused but thereafter stopped.
On 27-6-1992 at about 7 p.m. the deceased Bhamabai went to the house of the appellant, who stayed in the neighbourhood, and asked him to give money and food grains. On that the appellant replied that he himself was not possessed of sufficient means and therefore could not provide them. Bhamabai's husband, Ramesh on learning this assaulted her and taunted her saying that because of her Narayan had broken his leg. As her husband had assaulted her, Bhamabai at about 9.30 p.m., the same day went to Narayan's house and told him that because of his refusal to provide money and food-grains her husband had assaulted her.
It is further alleged by the prosecution that some times between 10 p.m. to 11 p.m. on 27-6-92 the appellant came inside the house of the deceased Bhamabai and after pouring kerosene oil from a bottle on her person set her on fire with the help of a burning match-stick. On hearing her shouts her husband Ramesh tried to extinguish the fire. After the fire was extinguished Bhamabai's brother Gunyaba Sankat immediately took her to Sasoon Hospital where she was admitted. In the hospital Bhamabai informed her brother that the appellant has poured kerosene oil on her and set her on fire.
Bhamabai was admitted at about mid-night, on the night of 27-28/6/92, in the Sassoon Hospital, Pune. P.W. 2 Dr. Malviya, a resident medical officer, enquired from her history of her burns and she informed him that she was burned by her father-in-law who poured kerosene oil on her head and ignited her with a match-stick.
At the time of recording the case-history Dr. Malviya found Bhamabai to be fully conscious and in a fit condition to give her statement. The case history was recorded by Dr. Malviya in the medical case papers at Exhibit 12.
On examining Bhamabai Dr. Malviya found that she had sustained 60% burns which were distributed between her chest, both upper limbs and lower part of face.
Sensing that the condition of Bhamabai was precarious Dr. Malviya informed the Medical Officer, the Superintendent and the police to make arrangement for recording her dying declaration. He had also given her all the necessary emergency drugs.
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P.S.O. of Band Garden Police Station sent a letter to the Judicial Magistrate, First Class, Suresh Wadkar P.W. 4 which was received by the latter at 5.45 a.m. on 28-6-1992, requesting him to record the dying declaration of Bhamabai in Sasoon Hospital, Pune. On receiving the aforesaid letter P.W. 4 Suresh Wadkar went to Sasoon Hospital, Pune where in Ward No. 27 he met Dr. Malviya who was on duty. Suresh Wadkar asked the police constable who accompanied him to leave the ward and thereafter he disclosed his identity to Dr. Malviya and the purpose of his visit, viz. to record the dying declaration of Bhamabai. Thereafter both Suresh Wadkar and Dr. Malviya went to the bed of Bhamabai. At that time nobody was present there excepting them. After obtaining a certificate by Dr. Malviya (Exhibit 17) to the effect that Bhamabai was in a fit mental condition to make the statement he recorded her dying declaration in question and answer form.
That dying declaration reads as follows:
Q: I am J.M.F.C. How you sustained the burns?
I came here to record your statement. Do you understand it? Whether you are ready to give the statement?
A: Yes.
Q: How you sustained burns?
A: The uncle of my husband used to tell false things against me and due to it my husband used to beat me daily. I had brought the kerosene at night only. My husband and his uncle said me that if you wanted to get yourself set to fire, you were at liberty to do so.
Q: When the said incident occurred?
A: Between 10 to 11 p.m.
Q: How the said incident took place?
A: My husband's uncle came, when I was asleep and poured kerosene on my person and set me on fire. I awoke when I was in flames.
Q: Whether you awoke before you were ablazed or after that?
A: I awoke after I was set to fire.
Q: How you came to know that person setting fire was the uncle of your husband?
A: The daughter of uncle of my husband had followed him.
Q: What had happened, when you were ablazed? who had extinguished the fire?
A: My husband alone was there and he extinguished the fire. Others were afraid of coming near me. Nobody else extinguished my fire.
Q: What happened thereafter?
A: I started running here and there. No body was ready to take me to hospital. Everybody was frightened. My brother resides in our neighbourhood and when he came to know about this, he came and admitted me in the hospital.
Q: What was the cause of enmity between your husband's uncle and you?
A: My husband abuses him under the influence of liquor and at that time he broke the leg of my husband. Still the leg of my husband is under plaster and since then he is having grudge upon us.
Q: Where he resides?
A: Near only...
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