Rajali vs The State of Maharashtra

A.B. Chaudhari, J—Being aggrieved by judgment and order dated 15.01.2013, passed by Additional Sessions Judge, Wardha in Sessions Trial No. 142/2011, convicting the appellant-accused Rajali @ Manda Tarachand Rathod for an offence punishable under Section 302 of the Indian Penal Code and sentencing her to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default, to undergo simple imprisonment for 3 months and for an offence punishable under Section 448 of the IPC and sentencing her to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to undergo simple imprisonment for one month, the present appeal was filed by the appellant.

FACTS:

The deceased Sunita w/o Purshottam Jadhao was staying with her husband and children at Ghorad, Tq. Seloo, Dist. Wardha. The appellant Rajali @ Manda was residing at a distance of 2-3 houses from the house of the deceased. She is a widow with two children Durga and Sita. The incident took place on 04.08.2011 at about 8.00 a.m. Fifteen days before the said incident, Durga was not feeling well and the appellant Rajali had a suspicion that deceased Sunita must have played black magic on her daughter Durga. On the fateful day, in the morning at about 8.00 a.m., she came to the house of the deceased and told her husband Purushottam that his wife should remove black magic or otherwise, she would kill her. Purushottam tried to reason with her and then taking his tiffin, left for the work. He hardly crossed 2-3 houses when he heard commotion from his house and, therefore, turned back to find that his wife was burning and the appellant-accused was running out of his house towards her house. The appellant had entered the kitchen room where the deceased was cooking food on hearth. She accused her of playing black magic, lifted the bottle of Kerosene, poured it on her person, lit her with the burning stick from the hearth and set her ablaze. The deceased started shouting. Purushottam extinguished the fire and brought her in burnt condition to Sewagram Hospital. PSI Qureshi from Police Station, Seloo went to the Sewagram Hospital after recording station diary entry No. 30. He visited the spot and found smell of Kerosene in the courtyard and burnt pieces of saree and petticoat in the chhapari. In the kitchen, he found plastic bottle of Kerosene. He conducted spot panchanama and went to Sewagram Hospital. There, he recorded dying declaration of the decreased. Thereafter, on 05.08.2011 her dying declaration was again recorded by the Executive Magistrate. She died on 08.08.2011. The investigation was carried out by the Investigating Officer and, thereafter, charge-sheet was filed. Charge was framed against the appellant. Her defence was of total denial. Hence, after considering the evidence, the learned trial Judge convicted the appellant, as above.

SUBMISSIONS:

In support of the appeal, Mr. Bhandarkar and Mr. Sharma, learned counsel for the appellant, submitted that the trial Judge committed error in convicting the appellant for the offence of murder by relying on the two dying declarations Exh. 49 recorded by PW7-Jamil Qureshi and Exh.-24 recorded by the Executive Magistrate. The dying declarations were unbelievable and untrustworthy and should have been recorded by the trial Judge. No neighbours were examined by the prosecution so also Bharti, daughter of the deceased, who was admittedly in the house, at the relevant time. The dying declaration Exh.-49 was actually scribed by the Head Constable who was not examined. Failure to examine the scribe would vitiate the dying declaration Exh.-49. The prosecution has not brought any evidence about any resistance offered by the deceased since it is impossible that the deceased, having poured Kerosene on her person, would not at all oppose setting her ablaze. The prosecution story is, therefore, highly doubtful and cannot be accepted. In the alternative, Mr. Bhandarkar submitted that no offence under Section 302 of the IPC can be constituted on the basis of evidence of the prosecution namely that the appellant had suspicion about the deceased having played black magic on her daughter due to which she was ill and it is that reason, which approve of her entry in to the house of the deceased. It is not that prior to the said incident, the appellant had any grievance against the deceased and it is for the first time the prosecution states about the grievance of playing black magic. He, therefore, submitted that there is no intention or knowledge as such and, therefore, offence would be of culpable homicide not amounting to murder within the meaning of Section 302 part II of the IPC. The learned counsel further contended that the Doctor who was examined, did not know Marathi language as admitted by him and, therefore, it was risky to believe the evidence of Dr. Sahil Yadav, who is said to have examined the deceased Sunita before recording of the dying declaration. He, therefore, prayed for reduction of sentence accordingly.

Per contra, learned A.P.P. for the State supported the impugned judgment and order and submitted that there is voluminous evidence in the form of two dying declarations, which are consistent and in addition, the evidence of PW3-Purushottam, whose evidence is fully corroborated by the FIR. He then submitted that insofar as recording of dying declaration is concerned, admittedly, PW7-Jamil Qureshi, PSI was expected to question the deceased and the writer had to record the dying declaration. It is not necessary in such case to examine the writer when PW7-Jamil Qureshi had personal knowledge of recording of the dying declaration. The learned A.P.P. while opposing the reduction of sentence, submitted that the appellant had full knowledge and requisite intention to commit her murder and hence the appeal is liable to be dismissed.

CONSIDERATION:

We have heard learned counsel for the rival parties at length. We have considered the entire evidence on record carefully. We have seen both the dying declarations relied upon by the prosecution Exhs.-49 and 24. we have seen the reasons recorded by the learned trial Judge. Upon perusal of the dying declarations Exhs. 49 and 24, we find that both of them are consistent and there is no infirmity whatsoever in respect of both the dying declarations. That apart, PW3-Purushottam, husband of the deceased, has been examined. We have perused the cross-examination also. We find nothing to disbelieve in his evidence. PW3-Purushottam heard the oral dying declaration given by her immediately after the incident. His evidence is also fully corroborated by the FIR, which was recorded on the basis of the dying declaration. We quote relevant portion of his evidence, which, according to us, is the natural evidence, since he was proceeding to his work in the morning on the fateful day.

"...The incident took place on the day of Nagpanchami of last year. I had gone for work in the morning on that day. I came back at about 8.00 a.m. in the morning. My wife was cooking food at that time. At that the accused came to my house. She told my wife that she played a magic on her daughter and spoiled her health. She should cure it or else she will kill my wife. The accused had altercation with my wife. I took my tiffin and went to field of Kawaduji Pise. I left the house at about 8.15 to 8.30 a.m. in the morning. When I was proceeding and crossed two houses I heard commotion from my house. I rushed to my house and noticed that my wife was caught in flames and I saw the accused going towards her house. I had poured two buckets of water and extinguished the fire. Her saree and petticoat were found burnt. I asked my wife about the said incident. She told me that accused came inside the kitchen, poured kerosene on her person and set her ablaze by burning the wood of hearth..."

We find, evidence in the form of routine dying declaration Exh.-49 recorded immediately by PW7-Jamil Qureshi and Exh. 24 recorded by Executive Magistrate and also the oral dying declaration given to PW3-Purushottam are consistent and we find no infirmity whatsoever.

Insofar as the statement about non examination of the Head Constable who wrote the dying declaration is concerned, we find that the argument cannot be accepted. The reason is that PW7-Jamil Qureshi himself questioned the deceased on the incident proper, as deposed by him in paragraph 2, after getting her fitness certificate from the Doctor. It is the scribe, who wrote as per the directions but then the fact remains that he is the person who, in fact, conducted the act of recording of the dying declaration and had personal knowledge about the same. Therefore, in my opinion, non examination of the scribe-Head Constable would make no difference. Insofar as the examination of the neighbours are concerned, we find that one neighbour namely; PW5-Surekha Malve was examined but she turned hostile. It is the fact that there is a tendency not to support the prosecution. Insofar as Bharti, the girl aged about 11 years, who was admittedly in the house is concerned, the prosecution has chosen not to examine her but that would make no difference because the evidence discussed above by us is more than enough to record the order of conviction. We, therefore, do not find anything wrong in the impugned judgment and order for recording conviction of the appellant.

The next question is what offence the appellant is said to have committed. From the evidence of the prosecution, it is clear that it is for the first time, 15 days before the incident, appellant''s daughter Durga became ill and the appellant, who is a widow, nursed grudge against the deceased Sunita that she must have played black magic on her daughter. On the day of incident, in the morning, she expressed her anger by going to the house of the deceased with her husband Purushottam. She then entered the house and poured Kerosene and set her on fire. Thus, the appellant did not have any enmity as such to commit her murder but definitely had intention and knowledge that by pouring Kerosene on her person and setting her on fire, the deceased might die. Therefore, we find that the appellant must be held guilty for the offence of culpable homicide not amounting to murder. We, therefore, hold her guilty for an offence punishable under Section 304 Part I of the IPC.

The next question is; what sentence should be awarded to the appellant. We find that the appellant is a widow and aged about 54 years by now. From the date of her arrest, she is in jail. We think, it would be appropriate to award sentence of 5 years to her. We, therefore, make the following order.

ORDER

"(i) Criminal Appeal No. 150/2013 is partly allowed.

(ii) Judgment and order dated 15.01.2013, passed by Additional Sessions Judge, Wardha in Sessions Trial No. 142/2011, convicting the appellant-accused Rajali @ Manda Tarachand Rathod for an offence punishable under Section 302 of the Indian Penal Code is modified and instead the appellant is held guilty for an offence punishable under Section 304 Part I of the IPC and is sentenced to undergo Rigorous Imprisonment for five years.

(iii) The appellant Rajali @ Manda Tarachand Rathod is further held guilty for an offence punishable under Section 448 of the IPC and is sentenced to undergo rigorous imprisonment for six months.

(iv) Both the sentences shall run concurrently.

(v) The appellant is granted benefit of set off under Section 428 of the Cr.P.C."