Criminal Appeal No.437 of 1992. Case: Vithal Sadashiv Gaikwad Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No.437 of 1992 |
| Counsel | For Appellant: Miss Shirley Mazarello with M. S, Mohite, Advs. and For Respondents: D. T. Palekar, A.P.P., Advs. |
| Judges | S. P. Kurdukar , J. and M. F. Saldanha, J. |
| Issue | Evidence Act (1 of 1872) - Section 32 |
| Citation | 1994 CriLJ 2035 |
| Judgement Date | August 19, 1993 |
| Court | High Court of Bombay (India) |
Judgment:
Saldanha, J.
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This is yet one more of those gory and ghastly, cases of wife burning that has come up before the Court. We do not mean to be prejudiced but at the same time we cannot hide the fact that these incidents are so horrifying and depraved that the Court has to re-act to them with the degree of seriousness that such incidents necessarily require. The appellant is the surviving husband and the deceased Vijaya is the unfortunate wife. The appellant accused Vital Sadashiv Gaikwad is an Ex-service man, from the Army and was residing at Village Hamdabad, District Satara. He was aged approximately 36 years and there are references on record that he was earlier married and that he had three children through his previous wife. Indications are that the first wife also met with a fiery end and that even though the police registered offences against him, that the same was done at a belated stage and that consequently nothing came out of that prosecution. The present marriage with Vijaya was hardly six months old on 25-10-1990 which is the date of the incident. At about 6.00 p.m. in the evening Vijaya was heard screaming for help as her clothes were on fire and people rushed to her rescue and extinquished the flames. By that time she was extensively burnt and was therefore removed to the Satara Civil Hospital. She is alleged to have been fully conscious and to have stated to P W 2 Gyandeo, Jotiba Dhane, P W 3, Ashok Sadashiv Shinde and P W 4 Hanmanth Waman Salunke who are the persons, who came to her assistance, and ultimately removed her to the hospital, that it was her husband Vithal who had set fire to her clothes after pouring kerosene on her. She also indicated the reason which was to the effect that he had addicted to Alcohol and that he used to turn violent and beat her up on the ground that he suspected her fidelity. According to her these were the reasons for Vithal to have decided to finish her off.
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The prosecution alleges that Vijaya was conscious when she was admitted to the Satara Civil Hospital and that PW 7 P.H.C. Vithal Kikale who was attached to the Hospital Casualty Section took down her statement which was in the form of a dying declaration and which was ultimately treated as the F.I.R. in this case which is at Exhibit 20. Arrangements were made to call the Tahsildar who is PW 5 Anant Deshpande and after his arrival, the formal dying declaration of Vijaya was taken down which is at Exhibit 24. We also have on record a third dying declaration which is at Exhibit 29 which was by the Police Officer PW 8 P. S. I. Janardan Tiwate, who was attached to the Satara Taluka Police Station and who is the investigating Officer in this case. He visited the hospital on the next morning i.e. on 26th and according to him he asked deceased Vajaya as to what exactly had transpired and he recorded her statement which has been produced before the Court. In all therefore quite apart from the oral dying declarations made to PWs 2, 3 and we have three written dying declarations in this case and the central issue canvassed before us is the question as to whether the Court ought to accept this mass of evidence either individually or cumulatively, because of certain infirmities that have been pointed out, we shall deal with that point presently.
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The P.S.I. there after made efforts to arrest the accused who had been named as the person responsible for vijaya's condition. Vijaya died in the hospital on 26-10-1990 and the prosecution alleges that in spite of regular and persistent efforts on the part of the Police. the accused could not be traced not only in that village but in any of the five to six villages where the Police looked for him and kept a watch and that ultimately he was arrested as late as on 7-12-1990 when he was seen in Satara, This circumstance of abscontion is strongly canvassed by the prosecution against the accused. On completion of the investigation in this case, the accused was put on trial before the learned II Additional Sessions Judge, Satara. The accused contended that he is innocent; that the Police have wrongly implicated him merely because Vijaya sustained burn injuries and she died and further that he was not even present in the village on that day and that he is scapegoat. The learned Trial Judge accepted the prosecution evidence after considering it carefully and convicted the accused under Section 302, I.P.C., and awarded him a sentence of rigorous imprisonment for life, and to pay a fine of Rs.2000/- in default rigorous imprisonment for one year. The accused has preferred this appeal through which he has assailed the correctness of the conviction and sentence awarded to him.
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We have heard Ms. Shirley Mazarello, learned Counsel appearing on behalf of the appellant and Mr. D.T. Palekar, the learned A. P. P. who appears for the State. Counsel on behalf of the appellant has taken us through the first set of witnesses i.e. P Ws 2. 3 and 4 and pointed out that these three persons who were the witness who have arrived on the scene at the earlier point of time, relate that they heard the shouts and therefore went to the assistance of Vijaya. They were instrumental in extinguishing the flames and ultimately taking her to the Satara Civil Hospital. They do not mention any where that the accused was present either in the house or near the scene of offence. The learned Counsel, therefore, submits that this is a very important circumstance in favour of the appellant in so far as it fully supports his defence that he was not present, as otherwise these witnesses could not have missed mentioning that he was seen there. Learned Counsel contends that Vijaya admits to have raised an alarm as soon as her clothes caught fire and in these circumstances, there would not have been time for the accused to have run away unnoticed and therefore she submits this factor will have to be held completely in favour of the accused. PWs 2 and 3 in terms state that Vijaya informed them that it was the accused who set fire to her clothes and she also indicated the reasons for his doing this. Learned Counsel draws our attention to the fact that PW 4. Hanmanth Waman Salunke who had removed Vijaya to the hospital in terms states that he went there virtually behind PW 3 and that when the commotion took place he and PW 3 were seated on the Ota. PW 4 in his deposition states that Vijaya was unconscious. In the light of this admission, the learned Counsel submits that the evidence of PWs 2 and 3 with regard to the oral dying declaration to them implicating the accused will have to be totally discarded because there is a direct contradiction between PWs 2 and 3 on the one hand and PW 4 on the other with regard to the state in which Vijaya was. We find it difficult to accept this...
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