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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.730 OF 2009
Rasiklal Makhanji Solanki, (Through Jail)
R/o.Dr.Nair Road, Junction of
Meghraj Shetty Road & Maratha Mandir,
Near Signal No.13, Mumbai-11. .. Appellant
V/s
The State of Maharashtra
(At the instance of Agripada Police
Station in C.R.No.115/2000) .. Respondent
Mr.Abhaykumar Apte for the Appellant.
Ms.M.M.Deshmukh, APP for the State.
CORAM : P.B.MAJMUDAR &
R.G.KETKAR, JJ.
DATE : 5TH FEBRUARY, 2010
ORAL JUDGMENT : (Per P.B.Majmudar, J.)
1. This appeal is directed against the judgment and order of
conviction recorded by the learned Additional Sessions Judge,
Greater Bombay dated June 13, 2002 in Sessions Case No.952 of
2000. By the impugned judgment, the learned Judge convicted
the appellant accused for the offence punishable u/s.302 Indian
Penal Code and sentenced him to suffer life imprisonment with
fine of Rs.5000/, in default to pay fine to suffer further R.I.for
four months.
2. Appellant is the original accused in Sessions Case No.952 of
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2000. It is the case of the prosecution that on June 23, 2000
one female between the age of 41 to 47 years, namely Vidya
Prabhudesai was murdered at the Nair Hospital Junction, near
Maratha Mandir Theatre at around 9.30 a.m. As per the case
of the prosecution, Accused Rasiklal Solanki who was a tailor
by occupation was acquainted with the family members of the
deceased Vidya Prabhudesai. As per the case of the prosecution,
the accused was having love affair with the deceased Vidya
Prabudesai. Accused had proposed deceased Vidya for marriage
and the deceased Vidya had refused the said proposal., and
because of that refusal Accused was got annoyed with the
deceased. As per the case of the prosecution, deceased Vidya
Prabhudesai was serving in the Reserve Bank of India as a
typist. She used to go to the office at about 9.00 to 9.20 a.m
everyday. She was residing at R.B.I.Quarter at Bombay Central.
On the relevant date on June 23, 2000 she had started from her
house for going to the office in the morning and at that time
the accused followed her. It is the case of the prosecution that
accused Rasiklal stopped her, poured kerosene on her and set
her on fire by lighting match-stick, because of which she started
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burning on the road. At the aforesaid time, one Manoj
Bhatnagar came running and poured water on the body of
Vidya to extinquish the fire and thereafter telephoned to the
police on Phone Number 100 and informed about the incident
of burning of Vidya. Police arrived on the sopt immediately, and
in the meanwhile one lady by name Mrs.Gulshan Kwatra also
came at the scene of incident. At that time Vidya disclosed that
Accused Rasiklal had poured kerosene and set her on fire.
Deceased Vidya also gave phone number of her sister to
Mrs.Kwatra, who thereupon called up Vidya’s sister on her
mobile phone and informed about the burning incident and
asked her to come to Nair Hospital as Vidya was shifted to Nair
Hospital by the police who had arrived on the spot.
3. As per the case of the prosecution, one Kishore Kadam who was
attending his duty as Station House Officer at Agripada Police
Station and who had received the message from Nagpada
Mobile No.1 about the incident, rushed to the spot and
thereafter immediately deceased Vidya was shifted to Nair
Hospital. It is the case of the prosecution that Mr.Kadam, after
taking permission of Dr.Narendra Desai, recorded the statement
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of deceased Vidya which was treated as FIR against the
Accused. On the basis of the same, offence was registered at
C.R.No.115/2000 of Agripada Police Statio for the offence
punishable u/s.307 IPC (as at the relevant time deceased was
alive). PSI Mr.Kadam thereafter rushed to the spot and drew
spot panchanama. One team of the police went to the shop of
the accused. It is further the case of the prosecution that in the
meanwhile accused also consumed poison and was admitted in
Nair hospital. The Investigating Offricer Mr.Kadam, thereafter
contacted SEO Ms.Deepali Chavan, who recorded dying
declaration of deceased Vidya Mr.Kadam, the Investigating
Officer thereater recorded statements of two sisters and one
brother of deceased Vidya on the same day and also recorded
statements of other witnesses. Panchanama of clothes of the
deceased Vidya was drawn. Deceased Vidya succumbed to the
injuries on June 23, 2000 at 7.10 p.m. Thereafter the accused
who was also taking treatment in the Nair Hospital was shown
arrested. After completion of investigation, police filed
chargesheet. The charge was framed by the Court against the
accused u/s.302 IPC on April 30, 2002. Accused pleaded not
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guilty to the charge and thereafter the trial was conducted
against the accused for the aforesaid offence.
4. The prosecution examined in all 14 witnesses to prove its case.
The statement of the accused was also recorded u/s.313 of the
Cr.P.C. The learned Judge, after considering the evidence on
record came to the conclusion that the prosecution has proved
its case beyond reasonable doubt and it was held that the
accused committed murder of the deceased and accordingly
inflicted life imprisonment on the appellant accused with fine of
Rs.5000/- in default, to suffer R.I.for four months. Being
aggrieved by the aforesaid conviction, the appellant filed this
Criminal Appeal before this Court.
5. Mr.Apte, the learned Advocate for the Appellant Accused submits
that it cannot be said that the prosecution has proved its case.
According to him the evidence of the prosecution witnesses is
not believable. It is submitted that looking to the fact that the
deceased had suffered about 95% burns it is not possible to
believe that at the relevant time she must be in a proper state
of mind to give statement to the police which is treated as
FIR.. The learned Advocate for the appellant accused has further
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submitted that Dr.Desai who has certified below the aforesaid
FIR has not been examined by the prosecution. It is submitted
that the verbal Dying Declaration given to PW7 and PW8 are
absolutely doubtful and not believable at all. It is submitted that
even the so-called written Dying Declaration recorded by PW1 is
doubtful and creates doubt and not believable at all. The
learned Advocate for the appellant accused submitted that it
cannot be said that PW3 and PW4 must have witnessed the
incident and they cannot be said to be eye-witnesses at all. The
learned Advocate for the appellant accused further submitted
that the prosecution has failed to prove the motive in
connection with the crime in question and therefore the case of
the prosecution is highly improbable. According to him, it
cannot be said that the appellant accused tried to commit
suicide only because of failure in the matter of so-called love
affair with the deceased Vidya. It is submitted by the learned
Advocate for the appellant accused that the prosecution has not
led any satisfactory evidence to show that the accused had any
such relations with the deceased, nor any witnesses have said
this aspect in their evidence. It is submitted that the clothes
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of the accused were sent to the forensic test. According to him,
looking to the fact that the deceased received about 95% burn
injuries, it is not possible to believe that she must be in a
proper state of mind at the relevant time to narrate the alleged
incident. The learned Advocate for the appellant accused further
submitted that when the credibility of Dying Declaration is
doubtful, such a Dying Declaration cannot be made basis for
recording conviction of the appellant especially when no
certificate was given by Doctor that the deceased was in fit
state of mind at the relevant time to give statement. The
learned Advocate for the appellant accused further submitted
that no weightage should be given to such Dying Declaration on
which the prosecution had relied upon, as it cannot be said
that such Dying Declaration was properly recorded. It is
submitted that since the Dying Delcaration is not signed by the
deceased, no reliance should have been placed on the same. It
is further submitted that when the Dying Declaration is not
proved by reliable evidence, accused should be given benefit of
doubt.
6. The learned APP Ms.Deshmukh submitted that the prosecution
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has proved its case beyond reasonable doubt by leading proper
evidence. It is submitted by her that PW3 who is an
independent witness has seen the incident and there is no
reason to disbelieve the evidence of the said witness. It is
further submitted by the learned APP that similarly, PW4 has
also seen the incident and therefore both PW3 and PW4 are eye
witnesses. It is submitted by the learned APP Ms.Deshmukh
that PW3 immediately made a call to the sister of the deceased
as at the relevant time deceased Vidya herself had given
mobile number of her sister to PW3, and on the basis of that
call, the information was given to the relatives of the deceased.
It is submitted that there is no reason for PW3 to falsely
implicate the accused as in fact she was not knowing the
accused prior to the incident, nor she was knowing the deceased
Vidya. The learned APP further submitted that even if PW3 may
be treated as chance witness, then also the testimony of the
same if found credible, cannot be discarded merely because such
a witness happened to be present by chance. It is submitted that
adequate explanation has been given by PW3 regarding her
presence at the place of occurence and her testimony cannot be
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brushed aside. The learned APP has futher submitted that the
Investigating Officer has recorded the FIR at Exh.37 wherein at
the relevant time, deceased had given full particulars as she was
in full senses as per the certificate of the Doctor. Learned APP
further submitted that the prosecution has established the
motive by proving the fact that the accused was having love
affiair with deceased Vidya, and since deceased Vidya had
refused the proposal for matrimonial ties, the appellant accused
in a revengeful manner took such a ghastly step to kill deceased
Vidya by pouring kerosene in day light and setting her on fire
on the road. The learned APP has further submitted that the
appellant accused after setting deceased Vidya on fire ran away
and on reaching his tailoring shop which is at the short
distance from the place of incident, he consumed poison, and in
fact he was also admitted at the hospital. According to her,
though the appellant accused survived later on, such an act on
the part of the appellant accused consuming poison immediately
after committing the aforesaid offence of pouring kerosene and
setting the deceased Vidya on fire, itself proves that he has
committed the offence with motive. According to Ms.Deshmukh,
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when in a given case there is evidence of eye-witnesses who
might have witnessed the incident, it is not necessary to prove
the motive in such a case. According to her in the present case
motive is also proved and the facts of the case clearly establish
that it is accused and accused only who committed murder of
the deceased Vidya simply because she had not acceded to his
demand of marriage. It is further submitted by the learned APP
that in view of the evidence on record, it can safely be
presumed that the prosecution has proved its case beyond
reasonable doubt and no interference against the judgment &
order recorded by the Sessions Court is called for in this
Appeal.
7. We have heard learned Advocate for the appellant accused and
the learned APP for the State at legth, and we have also gone
through the evidence on record. On behalf of the prosecution,
one Deepali Chavan was examined as PW1 at Exh.8. The said
witness has said that since 1997 to 2001 she worked as Special
Executive Officer in Mumbai. According to her deposition, she
was contacted by the Agripada Police on June 23, 2000 and was
informed for recording dying declaration of one lady by name
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Vidya Prabhudesai at Kasturba Hospital. The said witness has
deposed that after taking necessary writing material and stamp
etc.she went to Kasturba Gandhi Hospital. She stated that
though she did not know the actual time when she reached the
hospital, according to her she must have reached there by
afternoon. This witness has stated that when she saw deceased
Vidya Prabhudesai, she was alone and she was conscious and
could speak well. This witness has further stated that, to the
enquiry in connection with the cause of incident, deceased
Vidya answered those questions. According to this witness,
deceased Vidya told her that on June 23, 2000 when she left her
house in the morning to go to her office and at that time when
she had reached upto Maratha Mandir Junction at Bombay
Central and at the time when she was crossing the road, one
known person viz.Rasik Solanki came from backside, poured
kerosene on her and set her on fire. PW1 has also stated in her
deposition that deceased Vidya had made a statement before her
that accused Rasik Solanki was a tailor and was acquainted
with her. PW1 has further deposed that deceased Vidya gave
statement without any pressure. According to the deposition of
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PW1, the statement given by deceased Vidya was recorded by
PW1 in her own handwriting and thereupon she signed below
the said statement and put her stamp on it. According to her
Exh.9 is the carbon copy of the original Dying Declaration and
the contents are ditto. We have also perused the original dying
declaration at Exh.14 as well as its carbon copy at Exh.9. So far
as Exh.14 which is the original Dying Declaration, there is
endorsement of Doctor Shah that the patient Vidya Prabhudesai,
indoor patient No.134 is conscious and is in a state to give
statement. The statement recorded by PW1 is in the questions
and answers form at Exh.14 below which Doctor Shah has made
the endorsement. So far as Exh.14 is concerned, it is the
original Dying Declaration and Exh.9 is its carbon copy.
8. The prosecution has also examined one Jokhand Jaiswal as PW2
at Exh.15, who was called as panch-witness by the police on
26th June 2000 by 12 noon. PW2 has stated that his son used
to run the tailoring shop and since his son had gone to the
native place 6 months prior to the incident, he had let the said
tailoring shop to the appellant accused (Rasik Solanki) to
conduct the business of tailoring for a temporary period. PW2
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has further stated that when the police called him, he went to
the shop with the police and at that time there was a smell of
kerosene in the said shop. PW2 has deposed that he also saw
one empty bottle in the shop. PW2 has further stated that he
also noticed one bottle of poison in the shop containing little
quantity of green coloured liquid in the said bottle. In the
cross examination, this witness PW2 has stated that the fact that
one empty bottle was found is not mentioned in the
panchanama, but he denied the suggestion that no kerosene
smell was coming out from the room/shop. The panchanama is
at Exh.16 on the record.
9. The prosecution also examined Mr.Gulshan Kwatra at Exh.17 as
PW3. The said witness has stated that she is the social worker
and is working for the N.G.O.. As per the evidence of the said
witness on 23th June, 2000 she had gone to Bombay Central
Railway Station to receive her daughter who was to arrive
from Delhi by Rajdhani Express. On that day the train was 40
minutes late and arrived at around 9.30 am. It is stated by the
said witness that alongwith her daughter she sat in the car and
they proceeded towards her house at Chembur and the driver
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drove car towards the Maratha Mandir Junction. When the
driver saw in the mirror of the car he told the said witness that
there was crowd at the crossing and something must have
happened. The said witness has stated that she looked back and
saw flames. She instructed driver to stop the car. She alighted
from the car and went towards the crowd and flames. The said
witness saw that one lady was ablazed. She had stated that she
reached near the lady and that somebody had poured water on
her. The fire was extinquished due to water. She has stated
that the clothes of the lady were completely burnt and the
pieces of her skin were lying around, however she was fully
conscious. The witness has stated that she tried to get maximum
information from the victim and she asked her about the
incident. Thereupon she was told by the lady (victim) that she
was working in Reserve Bank of India, and one person by name
Rasik Solanki who was a Tailor by occupation was after her
with a marriage proposal and that she had refused to marry
him. She further told to the said witness that Rasik Solanki had
threatened her to kill, and that the act of pouring kerosene and
setting her on fire was done by him. Victim told her name as
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Vidya Prabhudesai and gave her sister’s phone number. This
witness thereafter informed about the incident to her sister on
her mobile and in the meanwhile the police had arrived at the
spot of occurence. The witness however stated that she was told
by the police that they are taking the victim to Nair hospital
and accordingly she informed the sister of the victim to come to
casualty of the Nair Hospital. The said witness has also further
stated that when she informed the sister of the victim about the
incident, she immediately reacted that this was going to happen
one day as he used to give threats to her sister. The witness
has said that she had not gone to Nair Hospital, but she kept
on following the matter till she knew about Vidya’s death, and
on June 24, 2000 her statement was recorded by the police.
The said witness has stated in the cross-examination that about
40 persons were gathered at the spot. She has further stated in
the cross-examination that nobody from the crowd came
forward except one person who poured water on her. She has
stated that she informed the traffic police to contact Agripada
police station and inform about the incident. According to her,
she gave all the information to the police which she got from
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Vidya. In the cross-examination she said that she had borrowed
the piece of paper from somebody and noted all the details of
conversation. . She stated that she had not handed over that
piece of paper to the police but handed over her visiting card
to the police. She further stated that Vidya was not unconscious
when she was shifted to the hospital. She was semi conscious
when she was sent to the hospital. She denied the suggestion
that Vidya had not given the name of Rasiklal Solanki as an
offender.
10. The prosecution also examined Manoj Bhatnagar as PW4 at Exh.
18, who had deposed that, on the relevant day at about 9.30
am while he was at cigarette shop near Nair hospital and was
smoking, at that time one boy in the shop told him that there
was some incident. So he looked towards that direction towards
the Maratha Mandir. He said that he saw one man holding a
plastic container and was trying to hit with his other hand to
one lady who was ahead of that man. This witness has further
stated that within few seconds he saw same man on the middle
of the road standing on the divider and tried to lit the match
box. This witness further stated that when he ran towards the
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spot he saw the lady on the other side of the road. This witness
has further stated that before he reached to the lady, that
person (accused) had set the lady on fire. This witness has
further stated that thereafter he turned back towards the
Vadapao shop, lifted the can of water, went near the lady and
poured the water on her. This witness has said that on the
next day he read in the newspaper about the burning of that
lady, and there was the photograph of one person and he was
the offender. He identified him as the same person who had
set her on fire.
11. The prosecution has also examined the sister of the deceased
viz.Vaishali Vasant Bapat at Exh.5. She said that Rasiklal Solanki
who is tailor by occupation used to come to her sister-in-law’s
house for the work. She has further stated stated that her
another sister Shailaja Prabhudesai (who expired in the year
1989), was having a sewing machine and after her death, the
said sewing machine was disposed of and was purchased by
said Mr.Rasik Solanki, who as also known as Rasik Makwana.
This witness has identified the accused Rasik Solanki in the
Court. She further stated that herself as well as her sister
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Vidya started giving clothes for stitching to the said person and
he became friendly with the family and he used to help them
in doing other work also. She stated that in the year
1999-2000 when her father was serious, he (Rasik) used to visit
her father also. The said witness has stated about receiving
telephone call on June 23, 2000 at around 10.30 am and stated
that her daughter attended the said call, and that after receiving
the news on the phone she was shocked and started treambling.
She informed the said fact to her another sister Varsha
Prabhudesai and both the sisters went to Nair hospital to see
Vidya. According to this witness when she went to Nair hospital
she was informed that Vidya was shifted to Kasturba hospital
and therefore she went to Kasturba hospital. She stated that
when she saw Vidya she was burnt, her face was swollen but
was not burnt. This witness has stated that they saw the
accused at Nair hospital on 7th floor. He was also admitted in
the Nair hospital and he was serious. This witness has further
stated in the cross-examination that Vidya was residing in the
R.B.I.quarter since six years prior to the incident and she used
to meet Vidya often and used to stay with her for 2/3 days.
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12. One Harish Bhargav Shelar is examined as PW6 at Exh.20. The
said witness has stated that as the accused Rasik Solanki was a
tailor by occupation and used to stitch blouses of his mother, he
knew him since his childhood. This witness has further stated
that on June 23, 2000 at around 10.30 to 10.45 a.m he heard that
the accused had consumed poison, and when he rushed to the
tailoring shop he saw people gathered in the shop. This witness
states that there was one tailor Babubhai and he was trying to
lift the accused. This witness states that he saw the accused
lying in the shop and was shouting as save me, save me. This
witness states that he lifted the accused and took him to Nair
hospital.
13. One Rajiv Prabhudesai was examined as PW7 at Exh.21.
Deceased Vidya was the sister of the said witness. This witness
stated that he was told by deceased Vidya on the relevant day
when he went to Kasturba hospital at around 12.30 to 1.00 p.m,
deceased Vidya talked with him and told that Rasik Solanki had
poured kerosene on her and set her on fire and thereafter ran
away. In the cross-examination this witness said that the
accused became family friend after he purchased sewing
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machine from his sister.
14. The prosecution has also examined Varsha Sudhakar Prabhudesai
as PW8, who is the sister of deceased Vidya, at Exh.23. The
said witness has stated that she knew Rasik Solanki and she
identified Rasik Solanki in Court. She said that she used to
give him stitching work and he used to come for some work to
her father’s house and used to attend her sick father also. She
has stated that when she was told that one unknown person
had burnt her sister Vidya on the road she alongwith her sister
Vaishali immediately went to Nair hospital at around 11.30 am.
She has further stated that when she sent to Nair hospital she
saw her sister Vidya burnt. She stated that deceased Vidya told
her that she was burnt by Rasik Solanki on the road by pouring
kerosene. In the cross-examination she said that she took 45
minutes to come from Bombay Central to Malad and she further
said she did not remember in which ward Vidya was lying.
She stated that accused used to come to their father’s house
nearly 10/15 times in a month and the relationship with the
accused was very good.
15. One Sangita Manohar Revalekar was examined as PW9 at Exh.
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24. She stated that she was running one grocery shop and STD
Booth and was knowing Rasik Solanki. She identified Rasik
Solanki in the Court. She stated that she knew Rasik Solanki
since childhood as he used to stitch the blouses of the ladies in
their locality. She stated that on June 23, 2000 at 10 to 10.30 am,
there was a crowd near the shop of the accused so she went to
his shop. She saw accused lying in underwear and was shouting
Bachao Bachao, and when she asked him as to what happened,
he told her that he had consumed poison as he was under
tension since last 8/10 days. In the cross-examination she stated
that Rasik Solanki used to receive telephone call from one lady
and she used to disclose her identity as Madam.
16. The prosecution has also examined Dr.Ashok Chhotalal Shah as
PW10 at Exh.26. The said witness said that victim Vidya
Prabhudesai was transferred from Nair hospital to Kasturba
hospital. According to him, he was working as Hon.Plastic
Surgeon and was head of the Department of Burns Unit in
Kasturba Hospital. He stated that Vidya was admitted in
Kasturba hospital at 12.20 hours. She was burnt 95%. He said
that as per the case papers she was burnt by kerosene. The said
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witness has stated that at the time when Vidya was admitted in
the hospital, she was in serious condition and was not in a
condition to give her statement. When this witness was shown
Exh.14, he stated that he cannot identify the handwriting of the
Medical Officer who has made the endorsement on that
document. He stated that the resident doctors who were
working under him might have given the same. In the cross-
examination this witness Dr.Shah stated that a person who has
95% burnt can talk, but may not be in a stable mental
condition to give any statement due to shock, two hours after
the incident of burning.
17. The prosecution has also examined Dr.Ravindra R.Kadam as PW
12 at Exh.30, who was attached to Kasturba Hospital as a Chief
Medical Officer on June 23, 2000. The said Dr.Kadam stated that
at the time when Vidya Prabhudesai was admitted in their
hospital one Dr.Suhas had attended patient Vidya and at that
time he was also present with Dr.Suhas. He further stated that
he remained there for nearly two hours when Vidya was
admitted in the hospital. According to him Vidya was fully
conscious and was responding to every query made to her. This
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witness Dr.Kadam has also identified the hand-writing of
Dr.Suhas and stated that since he worked with him for two
months in Kasturba hospital, he knew his handwriting and the
signature. The medical examination report of the patient by
Kasturba Hospital Burns Unit is produced on record. As per the
same the diagnosis of the deceased Vidya is shown as 95%
superficial to deep burn injuries, and so far as relative
percentage of injury to her hands is concerned, it is shown as
6%, which is apparent as per the details shown on page No.94.
18. The prosecution has also examined Mr.Lokesh Laxmi Gauda,
PW13 at Exh.33. This witness states that he was called upon by
the police near Nair Hospital and Maratha Mandir Theatre.
According to the said witness one burnt bag/purse was lying on
the road and in that bag one black colour Umbrella and one
black colour purse was found. In that purse he found one
identity card with the photography of one female. The identity
card was of Reserve Bank of India and one burnt note of Rs.10
was also found in the purse. He states that the panchanama in
this behalf was prepared in his presence.
19. The prosecution has also examined Investigating Officer
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Mr.Kishore Dattaraya Kadam as PW14 at Exh.35. He stated that
on June 23, 2000 he joined duty as a Station House Officer at
Agripada Police Station at 8.00 a.m., and at 10.05 am he received
a message from PSI Shaikh who was on duty at Nagpada
Mobile No.1 that at Nair Hospital Junction one female was set
on fire after pouring kerosene on her. According to him, he
reported this information to his senior officers and then he
rushed to the spot alongwith the staff after making Station
Diary Entry. He states that after reaching at Nair Junction
near Maratha Mandir Theatre, he met the police from Nagpada
Mobile No.1 and one of them told him that they have admitted
the lady to Nair Hospital for medical treatment. According to
him he thereafter went to Nair Hospital. He states that when he
reached to Nair Hospital, the burnt lady was in Ward No.28
and Dr.Narendra Desai was attending to that lady. According to
him when he enquired with the Doctor whether the lady was in
fit condition to make any statement, Dr.Desai told him that the
lady was conscious and was in fit condition to make statement,
and therefore he recorded the statement of that lady as per her
narration at around 10.30 a.m. As per the recorded statement
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lady told him that she was acquainted with one Rasik Sonanki
and was having a love affair with him. It was further stated
that Rasik Solanki had proposed her but she turned down the
said marriage proposal and because of that reason, Rasik
Solanki got annoyed and had started suspecting that she was
having an affair with some other person. This witness has
further stated that it was narrated to him by Vidya that on
June 23, 2000 at around 9.15 am when she left her house to go
to her office, near Nair Junction, Rasik Solanki came from
backside and he poured kerosene on her and set her on fire by
throwing matchstick on her, and thereafter ran away. According
to this witness, the statement of Vidya was recorded by him and
after confirming the correctness and truthfulness of the same
from Vidya, her thumb impression was obtained on the same, as
she could not sign because of finger burns. According to him
Dr.Narendra Desai has made the endorsement below the thumb
impression in his presence. According to this witness, FIR is
marked at Exh.37, on the basis of which ultimately, offence was
registered at Agripada Police Station at C.R.No.115/2000 under
Section 307 of the IPC. This witness has further stated about
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preparing of panchanama of the secne of offence and seizure of
burnt purse, umbrella, calculator, etc.This witness has stated that
all articles viz.clothes etc.were sent to chemical analysis.
According to him he did not record statement of Vidya in
question answer form because his senior had told him to take
down the statement as per details which were told by Vidya.
He stated in the cross-examination that he had not mentioned
in the FIR/Exh.37 that the accused and Vidya were having the
love affair. According to him, he had also not mentioned in the
FIR that the accused suspected of Vidya having love relations
with other man. This witness stated that he has not mentioned
in the FIR that the FIR was read over to Vidya and she
confirmed the correctness of the same, as he was in hurry and
therefore forgot to mention all these details.
20. Aforesaid is the evidence led by the prosecution to prove its
case. It is required to be noted that so far as FIR at Exh.37 is
concerned, at the relevant time deceased had put thumb
impression on the same. The same is natural because looking to
the burn injuries it was not possible for her to put her
signature. Dr.Desai had already given certificate below the same
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wherein Dr.Desai has certified that the patient Vidya Prabh 50/F
was admitted on June 23 at 10.00 am in Ward No.28, and it is a
case of 98% superficial to deep thermal burns; that the patient
was conscious, well oriented in time, place and person and has
given statement in his presence. Dr.Narendra Desai put his
signature, date as June 23, 2000 and the timing as 11.10 a.m.
The learned counsel for the appellant has submitted that when
the police had taken statement at 10.30 there is delay on the
part of Doctor which is given at 11.10 a.m. We hardly find any
substance in this submission. Though it is stated that the
Investigating Officer recorded the statement at 10.30 am, it
must have taken some time in recording the said statement and
even as per the evidence of PW14, the Investigating Officer the
Doctor was also busy in giving treatment to the patient, as
naturally the Doctor is required to give priority to the treatment
of the patient. The version in the FIR is therefore absolutely
natural which the deceased hereself has given, and there is no
reason to disbelieve the evidence of the Doctor. So far as
evidence of PW3 is concerned, there is no reason to discard the
same. In our view the evidence of PW3 is most natural and
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even in a given case, the testimony of chance witness cannot be
discarded merely because such witness was present at the spot
by chance. In this connection the learned APP has relied upon
the decision of Sarvesh Narain Shukla V/s.Daroga Singh &
Ors., (2007), 13 SCC 360, wherein the Supreme Court has held
that where there is adequate explanation given by the witnesses
for their presence at the place of occurence by chance, their
testimony cannot be discarded simply because they happened to
be present by chance. Considering the evidence of PW3 and
PW4 as well as considering the evidence of the sisters of the
deceased, it can safely be said that the prosecution has proved
its case beyond reasonable doubt that it is the accused and
accused only who had poured kerosene on the deceased and set
her on fire and committed her murder.
21. It is required to be noted that the deceased had stated about
the alleged incident to PW3 at the earliest, and thereafter within
a short span of time to the Investigating Officer, and even to
PW8 also at 11.30 am, and as per the evidence of PW10,
DrAshok Shah, the patient can remain conscious and give
statement for about 2 hours. According to him, the person who
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is having 95% burn injuries can talk and can be conscious for
about two hours after the burns, but after two hours he may
not remain in stable mental condition. All the statements given
by the witnesses are within a short span of time and there is
no reason to disbelieve the evidence of said witnesses. It is
required to be noted that PW3 and PW4 have no animosity with
the accused in any manner so as to falsely implicate him in the
offence, and therefore, considering the evidence it is clear that
the accused has committed the aforesaid act since the deceased
had refused to marry him. It is also required to be noted that
immediately after the incident the accused was found to have
consumed poison and it is the case of the prosecution that
because of failure of the love affair he did the said act. We are
not in a position to accept the submission of the learned
counsel for the accused that the fact that accused tried to
commit suicide cannot be connected with the alleged incident of
burning deceased Vidya. It is also clear that smell of kerosene
was found from the clothes of the accused. In that view of the
matter, even the motive is also proved by the prosecution and
considering the entire evidence on record, we are of the opinion
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that the prosecution has established the case against the accused
beyond the reasonable doubt.
22. Mr.Apte, the learned Counsel for the appellant accused relied
upon the judgment of the Supreme Court in the case of Kanti
Lal V/s.State of Rajasthan, AIR 2009 SC 2703. Relying on the
said decision, it is submitted that when credibility of dying
declaration is doubtful and when no certificate is taken from
the Doctor that the deceased was in a fit state of mind to give
statement, and when no endorsement to that effect is made on
the statement, it is to be held that the alleged dying
declaration was not genuine. The learned counsel for the
appellant also relied upon the judgment of the Supreme Court
in the case of Gangotri Singh V/s.State of U.P., 1993 Supp.(1)
SCC 327, wherein dying declaration was recorded by the
Magistrate shortly after the incident while the deceased was
under treatment in the hospital and where the entry in bed-
ticket that injured stated that somebody shot at him, it was held
that it related to the manner in which the injuries were
received and not much weight could be attached to it nor it
can be treated as another dying declaration.
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23. Mr.Apte, the learned counsel for the appellant accused relied
upon the decision of the Supreme Court in the case of State of
U.P. V/s.Shishupal Singh, AIR 1994 SC 129, wherein the dying
declaration which was recorded by the Magistrate was neither
signed by the deceased nor contained the date and time of its
recording and where no explanation was given that the
deceased was not in a position to sign the dying declaration,
and when the case rested on such dying declaration, it was
held that the order of acquittal of the accused in such a case is
proper. However, in the instant case, the case is of excessive
burn injuries and the deceased had put thumb impression and
had given oral dying declaration to PW8. In the instant case, it
is required to be noted that there is no reason to disbelieve the
say of the Investigating Officer when the statement of the
deceased herself is taken and the Doctor has certified below it
that she was in a proper state of mind to give the statement,
coupled with the fact that she had also narrated the incident to
PW3, which in our view can be treated as verbal dying
declaration to PW3. In fact PW3 and PW4 have witnessed the
incident and so they are eye witnesses to the incident also.
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24. The learned counsel for the appellant relied upon the decision
of the Supreme Court in the case of Banka Naiko and Others
V/s.State of Orissa, AIR 1976 SC 2013, wherein it is held that
the accused is entitled to benefit of doubt as the dying
declaration was not proved by reliable evidence.
25. However, in the instant case, there is evidence of two eye
witnesses, coupled with the fact that the deceased as per the
evidence of the Doctor was in a proper state of mind to give
statement before the police. Even PW8 Varsha clearly stated
that she was told by the deceased that she was subjected to
pouring of kerosene and setting on fire by the accused. In our
view the evidence on record is sufficient to establish the guilt of
the accused and the evidence of PW3 who has given version in
a natural manner cannot be discarded. There is nothing to show
that there was animosity with the accused so as to falsely
implicate in the offence.
26. The prosecution has also established the motive of the accused
who wanted to marry the deceased, and because of her refusal
to marry him, he annoyed, poured kerosene on her, set her on
fire and thereafter tried to commit suicide. Considering the
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aforesaid aspects, we do not find any substance in the appeal
and there is overwhelming evidence on record, by which, it is
proved that the accused has committed the aforesaid offence.
Appeal is accordingly dismissed.
(R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)
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