1. The Additional Session Judge, Thane has convicted accused Gopichand Uttamchand Keswani for having committed murder of his wife Nirmala between the night of July 3 and July 4, 1983 in Barrack No. 862, Section 19, Camp No. 3, Ulhasnagar, and sentenced him to death, subject to confirmation of the same by this Court. Hence, Confirmation Case No. 1 of 1984 has been registrated. The accused has also filed an appeal challenging his conviction and sentence and the same is registered as Criminal Appeal No. 307 of 1984. This judgment will dispose of the appeal as well as the Confirmation Case. The facts which gave rise to the Confirmation Case and the appeal may, in brief, be stated as follows :
2. The accused resided along with his wife the deceased Nirmala in Barrack No. 862, Section No. 19, Camp No. 3, Ulhasnager. They were married about 7 or 8 years prior to the date of the incident, i.e. July 4, 1983. One daughter by name Geeta was born to the deceased Nirmala out of the said wedlock. At the time of the incident, Geeta was aged about 6 years and was residing with her maternal uncle Pratap Hakikat Lalwani (P.W. 8) in the same locality. Relations between the husband and wife were not very happy. The accused used to drink and assault her. On June 7, 1983, the deceased Nirmala made a complaint to the police that her husband, the accused assaulted her merely because she asked for money for the household expenses. The said complaint is recorded as Ex. 30.
3. Jaya Vasu Nair (P.W. 1) and Lata Gopaldas Chainani (P.W. 2) were close neighbours of the deceased Nirmala. The deceased Nirmala's mother and brothers resided separately in the same locality in Camp No. 3, Ulhasnager and it takes hardly about 10-15 minutes to reach to their house from the house of the deceased Nirmala. On July 4, 1983 at about 3-30 a.m., Jaya Vasu heard the shouts of Nirmala that she was burnt by her husband and, therefore, she went to the house of the deceased. When she went near the hut of the deceased Nirmala, she found the door of the hut open. She further noticed that the deceased Nirmala was in the hut with blood flowing from upper part of the body. She claims to have seen the accused in front of his house at about 3-00 or 3-30 a.m. She, however, did not enter inside the hut as perhaps she was bewildered. She at once decided to go to the house of Lata Chainani. She, accordingly, went to the house of Lata Chainani and informed her about the incident. They decided that they should report the incident immediately to the mother of the deceased Nirmala, who was residing at some distance from them. They, accordingly, went to the house of the deceased Nirmala's mother and informed her about the incident. The mother of Nirmala along with her son Pratap came to the house of Nirmala. Jaya Vasu and Lata Chainani also came back to the house of the deceased Nirmala. They saw the deceased Nirmala in burnt condition sitting in the sink. They noticed one kerosene bottle (Article 1) and a brass lota (pot) (Article 5). After some time, Prakash Lalwani (P.W. 9), the other brother of the deceased Nirmal, also arrived there. Pratap Lalwani asked Prakash Lalwani to get an autorickshaw. An autorickshaw was, accordingly brought. Pratap Lalwani and Prakash Lalwani, along with their mother, brought the injured Nirmala to the Central Hospital at Ulhasnager, where she was examined by Dr. Prabhakar Ganesh Bhave (P.W. 5). It appears that somebody informed Head Constable Deshmukh about the incident and Deshmukh on his part informed Police Sub-inspector Shankar Mahadeo Jadhav (P.W. 4) and Police Inspector Appa Madhavrao Patil (P.W. 10). It appears that in pursuance to this information, Police Sub-inspector Jadhav left for the hospital. However, it may be observed here that the prosecution has not examines Head Constable Deshmukh. In our view, he should have been examined since it is he who appears to have given the first information to Police Sub-inspector Jadhav and Police Inspector Patil. Be that as it may, there appears to be no doubt that immediately after admission of the deceased Nirmala in the Central hospital, Police Sub-inspector Jadhav reached there and recorded the dying declaration of the deceased Nirmala, which is recorded as Ex. 11. An arrangement was also made to call an Executive Magistrate. One Vital Budhaji Sasane (P.W. 3), who is a Special Executive Magistrate, came and recorded the dying declaration of the deceased Nirmala on July 4, 1983 at about 8.35 a.m. It is Ex. 9.
4. Police Inspector Appa Patil initially registered an offence under section 307 of the I.P.C. and immediately proceeded with the investigation of the case. He arrived at the scene of offence at about 10-35 a.m. on July 4, 1983 and drew a Spot Panchanama. He effected seizure of certain articles, particularly the bottle containing some quantity of kerosene, a match-box, some burnt match-sticks and burnt clothes of the injured and one brass lota (pot) from the scene of offence. Thereafter, he recorded statement of witnesses. On July 5, 1983, he received a telephone at about 3 p.m. that Nirmala had expired Accordingly, he prepared an Inquest Panchanama on the same day. On July 6, 1983, he sent certain articles to the Chemical Analyser and after receipt of the report of the Chemical Analyser, he filed a charge-sheet on October 13, 1983. The prosecution examined number of witnesses in support of its case, but the case essentially rests on two dying declarations, the first one is the one recorded by Police Sub-inspector Shankar Jadhav at Ex. 11 and the second recorded by the Special Executive Magistrate, Vithal Budhaji Sasane at Ex. 9. There is also an oral dying declaration as deposed to by Jaya Vasu (P.W. 1), Lata Chainani (P.W. 2) and Pratap Lalwani (P.W. 8)
5. The defence of the accused is merely one of total denial. The accused was specifically asked a question in his statement under S. 313 of the Cri P.C. 1973 as to why the witnesses had deposed against him. His answer has been that he did not want to say anything. Thus, this will indicate that the witnesses examined by the prosecution in this case have no axe to grind against the accused. Most of them are the immediate neighbours and are natural witnesses. There is, practically, no dispute that the deceased Nirmala was hale and hearty and was carrying on her routine affairs in a natural way prior to the date of the incident. All the prosecution witnesses, particularly Jaya Vasu (P.W. 1), Lata Chainani (P.W. 2) Pratap Lalwani (P.W. 8), have deposed that they saw her body at about 3-00 or 3-30 a.m. in the night of July 4, 1983 in a burnt condition and that she disclosed to them that she was burnt by her husband, the accused. The prosecution has examined Dr. Vasudeo Kashinath Umbarkar (P.W. 7), who did autopsy. The post-mortem report is at Ex. 22. It shows that the injuries suffered by the deceased Nirmala were all ante-mortem. It further shows that the death was due to shock due to extensive second degree burns. He has further deposed that such burns found on the person of the deceased Nirmala were possible if someone pours kerosene on the cloths of the person of the deceased Nirmala and sets fire to them. In view of the overwhelming evidence on record, including the medical evidence, there appears to be no doubt that the deceased Nirmala did not die a natural death and that it was a homicidal death as a result of the burn injuries which she suffered. There is no question of suicide nor it is so suggested. Therefore, the only question which arises is as to who is responsible for these injuries suffered by the deceased Nirmala.
6. As we have pointed out above, there is no eye-witnesses in the case and the case essentially rests on the dying declarations corroborated by other circumstances. Coming to the first dying declaration (Ex. 11) recorded by Sub-Inspector Jadhav, almost immediately after she was admitted in the hospital, she has stated that on July 4, 1983 her husband came home at about 0-30 hours and he was drunk. There was not talk between them and at that time he threw brass lota (pot) on her head and bit her on her back. Therefore, she wanted to go to the house of her mother, but the accused did not allow her to go and instead threatened her that he would not leave her alive. Thereafter, he started giving abuses for most of the time and thereafter poured kerosene on her person and by lighting a match-stick set fire to her Salwar and Kurta, which were on her person. According to this dying declaration (Ex. 11), at that time there was nobody else except she herself and her husband. She cried and the people nearby gathered and it is at that point of time that her husband went away. According to this dying declaration, it is thereafter that her relatives, namely, her elder brother Pratap Lalwani and her mother Gangabai, came to her house. She has further stated that her husband always used to come home in a drunken condition and used to beat her. She has affixed her signature in English. This dying declaration also bears the endorsement of the doctor that the patient was in a fit condition to make statement. There is an endorsement that it was read over and explained to the deceased Nirmala and it was admitted to be correct. Sub-Inspector Shankar Jadhav (P.W. 4) has deposed that he recorded the said dying declaration between 6-00 and 6-20 a.m. on July 4, 1983. He has further deposed that he ascertained from Dr. Bhave whether the victim was in a fit condition to speak and it was only when Dr. Bhave assured him that she was in a fit condition to make a statement that he proceeded to record her statement. He has deposed that he recorded whatever was narrated to him. He recorded it in the presence of Dr. Bhave. The questions were put to the lady in Hindi and she also replied in Hindi. However, the answers were written by the witness in Marathi. He has further deposed that the contents in the dying declaration were actually written by a duty constable under his instructions.
7. Mrs. Desai, the learned Counsel appearing on behalf of the accused, submitted that there are serious infirmities in the dying declaration. According to her, the dying declaration deserves to be discarded, because the same has not been recorded in the language of the maker. It is true that the statement was made in Hindi, but the same has been recorded in Marathi. Sub-Inspector Jadhav has deposed that he actually questioned the lady in Hindi and he merely recorded the same in Marathi. The endorsement that the statement was further read over and explained to the lady in Hindi was admitted to be correct. It is not a case of the defence that Sub-Inspector Jadhav did not know Hindi. It would have been certainly much better and it is always desirable that as far as possible dying declaration should be recorded in the language of the maker, but, in the present case, we do not think that it would affect the evidentiary value of the present dying declaration merely because Sub-Inspector Jadhav has recorded it in Marathi, particularly when it is not in dispute that he is well conversant with Marathi and Hindi both. Another challenge appears to be that the same has not been recorded in a 'question and answer' form. As long as there is nothing to doubt that the Sub-Inspector recorded exactly what was stated by the deceased Nirmala, it would not make any difference, in our view, merely because the same has not been recorded in a 'question and answer' form. Mrs. Desai further argued that the deceased Nirmala must be in terrific pain and she must have been administered some drugsby the doctor to relieve her of pains which may have caused drowsiness to the deceased Nirmala and, therefore, she may not have been fit to make a statement. There is no material to support this contention. In our view, this argument is based merely on surmises and conjectures. We have no reason to doubt the correctness of the document, particularly when the doctor has also placed his endorsement that the deceased Nirmala was in a fit condition to make a statement. We may here refer to the evidence of Dr. Prabhakar Bhave (P.W. 5). He has deposed that at the relevant time he was on duty in the hospital. He examined her and found that the burn injuries were up to 88 per cent. He has given details of the percentage of the burn injuries as follows :
'(1) Chest front and back 18 per cent.(2) Abdomen front and back 18 per cent.(3) Both thighs and lower limbs 36 per cent.(4) Face and neck 7 per cent.(5) Upper left extremities 9 per cent.Total 88 per cent.'
According to him, the injuries were fresh. He has proved his endorsement on the dying declaration (Ex. 11) that the deceased Nirmala was in a fit condition to make a statement. There is, practically, nothing in his cross-examinations which would throw doubt on his veracity. As we have already pointed out above, even the accused, in his statement under S. 313 of the Cri P.C. 1973, has not given any reason as to why the witnesses are deposing against him. Thus, we see no reason to doubt this dying declaration.
8. Coming to the second dying declaration (Ex. 9), which is recorded by Special Executive Magistrate Vithal Sasane at about 8-35 a.m. on July 4, 1983, the deceased Nirmala has stated that her husband used to drink and, therefore, all the money which he was earning was spent on drinking itself. According to her, on July 4, 1983 her husband came home at about 0-30 hours in the night. He was then drunk. He started abusing her in filthy language and thereafter started beating her. He beat her on the head and forehead by the brass lota (pot) as a result of which blood started coming out from injuries. This dying declaration further recites that the accused bit her on the back and, therefore, she started going to her mother's place, but the accused did not allow her to go and instead threatened her that he would finish her. She has stated that he slept for some time and then again at about 2-30 or 3-00 hours in the night got up and again started abusing her. According to her, the accused took out the bottle of kerosene and poured kerosene on her body. Thereafter, he took out the match-stick from his pocket and lighted the same and set fire to her Salwar and Kurta, which were on her person. She raised cries. She has further stated that her husband closed the door from inside. According to her after she was set on fire the accused left the house and it is at that point of time that her neighbours Jaya Vasu, Sau. Jamna Rajan, Gita Sureshlal, Gopaldas and others came and thereafter her mother and brother also came.
9. Mrs. Desai has argued that the version given in the two dying declarations is not consistent and, according to her, on this short ground both the dying declarations should be discarded. However, she was unable to point out a single inconsistency on any material aspect. On the contrary, Mr. Hombalkar, the learned Public Prosecutor, has taken us through both the documents and has submitted that practically all the important incidents have been mentioned in both the documents in sequence. He has further pointed out that not a single important circumstance is missing from either of the documents. We have also carefully compared both the dying declarations recorded by two different persons and we are convinced that there is no infirmity which would warrant their rejection. On the other hand, we have found that the facts have been stated in most natural and straightforward manner. Mrs. Desai has invited our attention to the following statement in the dying declaration (Ex. 9).
'Then at 2-30 to 3-00 hours at night he got up and again started abusing me.'
According to Mrs. Desai, this is absent from the first dying declaration (Ex. 11) recorded by Sub-Inspector Jadhav. It is true that this exact statement is not there in the first dying declaration, but even in the first dying declaration, the deceased Nirmala has stated that her husband came home at about 0-30 hours in the night, he was drunk and thereafter he hit her on the head with the brass lota (pot) and bit her on the back. She has further stated that he continued to abuse her for the whole night and thereafter just before two hours he poured Kerosene and set fire to her clothes. The statement in the first dying declaration that the accused continued to give abuses for the whole night cannot be interpreted literally that he was actually abusing for the whole night. This is only to lay emphasis that he continued to give abuses for most of the night. That does not necessarily mean that there was no gap between the first incident of hitting with the brass lota (pot) and the second incident of setting fire. At any rate, this cannot be said to be a crucial part of the incident. Whether the accused gave abuses for the whole night or for most of the night, that, in our view, would not be that material. This inconsistency cannot amount to any infirmity which would affect the veracity of the documents. Moreover, we cannot forget that we are examining the dying declarations of a person who has suffered 88 per cent burns and who was under great mental agony. Such minor discrepancies here and there are but natural.
10. The next inconsistency which Mrs. Desai has pointed out is with reference to the following statement in the second dying declaration (Ex. 9).
'But my husband Shri Gopichand had shut the door from the inside.'
According to Mrs. Desai, this is not so stated in the first dying declaration (Ex. 11). In the first dying declaration, the deceased Nirmala has stated as follows :
'That time there was hot talk between us. That time he threw brass pot on my head and bit on my back. Hence, I started to go to the house of my mother. That time he did not allow me to go to my mother's house and he threatened me that he will not leave me alive.'
From the above statement, it is obvious that she did state that she wanted to go to her mother's place but was not allowed to go by her husband. In our view, the person who is in great mental agony and who has suffered extensive burns is bound to commit such minor mistakes or omissions here and there in the narrations. This also, in our view, does not relate to material part of the incident.
11. The third inconsistency which she has brought to our notice is in respect of the following statement in the second dying declaration :
'They have seen my husband while going outside.'
It is true that the deceased Nirmala has not so stated in so many words in her first dying declaration (Ex. 11). The relevant portion of her first dying declaration reads thus :
'When my husband set me on fire I cried and the people nearby my house gathered there and at that time my husband went out of the house.'
This would clearly show that in both the statements, there is reference to the coming of the neighbours and to the going of her husband from the house. In our view, there is no substance in this challenge also. We may, even at the cost of the repetition, point out that the material events are that the accused came at about 0-30 hours in a drunken condition. Thereafter, he hit the lady with the brass lota (pot) and bit her on her back. She wanted to go to her father's house, but she was not allowed to do so. Instead, he gave her and thereafter he poured kerosene oil on her clothes and set fire to her and left the house. All these events are mentioned in both the dying declarations almost in sequence. Therefore, as we have said above, there is no inconsistency on any material part of the story. Whatever inconsistencies or disparties have been pointed out by Mrs. Desai are all most minor and insignificant. The prosecution has examined Vithal Sasane (P.W. 3), the Special Executive Magistrate. He has deposed that he asked questions to the deceased Nirmala in Hindi and she answered them in Hindi, but he wrote the answers in Marathi. The same criticismwhich was levelled against Sub-Inspector Jadhav was levelled against this witness. We have already dealt with this aspect earlier. Suffice it to say that there is no challenge that the Special Executive Magistrate did not know Hindi. This dying declaration was also recorded in the presence of Prabhakar Bhave (P.W. 5) who has placed his endorsement that the patient was in a fit condition to make statement. This document has also been signed by the deceased Nirmala in English. Dr. Bhave has deposed that he was sitting throughout while the dying declaration was being recorded. The Special Executive Magistrate has been cross-examined at some length, but there is nothing in the cross-examination which will throw doubt on his veracity. He has answered in the cross-examination that he understands Hindi quite well. However, he has fairly admittedly that he is unable to write Hindi and, therefore, he recorded the answers in Marathi. Thus, we see no reasons to doubt the two dying declarations referred to above.
12. Now, coming to the oral dying declaration as deposed to by Jaya Vasu (P.W. 1), there is no dispute that she is a close neighbour of the deceased Nirmala. According to her, she awoke on hearing the shouts of Nirmala that her husband Gopi had burnt her. She immediately went near her hut and found the door of the hut open. She noticed blood was flowing over the upper part of the body of the deceased Nirmala. It is true that in her examination-in-chief, she was not deposed that she did not know as to where her husband had gone and that he was not seen anywhere around. However, she corrected herself immediately and then deposed that she saw the accused in front of his hut at about 3-00 or 3-30 a.m. She was fairly admitted that she did not enter inside the hut because on seeing the ghastly sight, she was bewildered and, therefore, she decided to go to the house of Lata Chainani (P.W. 2), who was also staying close by. She, accordingly, went to the house of Lata Chainani and informed her about the incident. Then, both of them went to the house of the mother of the deceased Nirmala. They informed her about the incident. In pursuance of this information, the deceased Nirmala's mother and brother Pratap Lalwani (P.W. 8.) came to the house of the deceased Nirmala along with Jaya Vasu and Lata Chainani. Mrs. Desai has argued that she cannot be termed as a witness to whom any dying declaration was made. She has also criticised witness Jaya Vasu's evidence on the ground that there is inconsistency in her evidence on the point as to whether she saw the accused or not at about 3-00 or 3.30 at the time of the incident. It is true that she cannot be termed as a direct witness to the dying declaration, but there can be no doubt that she heard the shouts of the deceased Nirmala that it was her husband who had burnt her. She does not claim to have talked to the deceased Nirmala. On the contrary, she has fairly admitted that she had fainted and at once decided to go to Lata Chainani to tell her everything. We have no doubt in accepting her evidence on the point that she heard the shouts of the deceased Nirmala that her husband had burnt her. It is true that there is inconsistency in her evidence on the point as to whether she actually saw the accused at the relevant time in front of his hut. Even if we treat this as an infirmity and accept that she did not see the accused at the relevant time in front of the hut, that in our view would not make any difference. As we have already observed above, we have no doubt that she heard the shouts of the deceased Nirmala that it was accused who burnt her. Therefore, her evidence definitely implicates the accused. Her evidence is further corroboratedby the evidence of Lata. Lata has deposed that Jaya Vasu told her that the accused had burnt his wife Nirmala. Thereafter, both of them went to the house of the mother of the deceased Nirmala and informed her about the same. Lata has further deposed that she came to the house of the deceased Nirmala along with the mother of Nirmala, Pratap and Jaya. She has further deposed that when they entered the hut, they found the deceased Nirmala in burnt condition sitting in the sink. She also noticed empty kerosene bottle lying nearby the sink and one brass lota (pot). She has further deposed that the bottle contained some liquid. According to her, Pratap (P.W. 8) asked deceased Nirmala as to what had happened and Nirmala told him that the accused had burnt her. Lata is a witness to this oral dying declaration. She has also deposed that when she entered the hut, she smelled kerosene inside the hut. There is absolutely nothing in the cross-examination. Not a single inconsistency or disparity is brought on record. She is the most natural witness and we see no reason to doubt her testimony. She has fully corroborated the evidence of Jaya Vasu (P.W. 1) and has confirmed Jaya Vasu's presence near the hut at the relevant time.
13. The next important witness is Pratap Lalwani (P.W. 8). He is the step elder brother of the deceased Nirmala. He was living separate from his sister. He has deposed that the deceased Nirmala was married to the accused 7 or 8 years back and that a daughter by name Geeta was born out of this wedlock. He has further deposed that Geeta was residing with him since last 3 or 4 years. He has deposed that deceased Nirmala told him that her husband poured kerosene on her clothes and set fire to them by lighting a match-stick. The deceased Nirmala also told him that just little while ago her husband had beaten her up and thereafter poured kerosene on her clothes and set fire to them. He has also referred to the injury on the forehead of the deceased Nirmala. On enquiry, the deceased Nirmala pointed at the brass lota (pot), which was lying there, and said that the accused hit her with that brass lota. It is he who removed the deceased Nirmala to the hospital with the assistance of his younger brother Prakash Lalwani (P.W. 9) He has also deposed to the strained relations between the deceased Nirmala and her husband. According to him, the accused used to drink and beat the deceased Nirmala. He has also referred to the bottle containing kerosene, burnt match-sticks and burnt pieces of clothes, which were all lying on the ground. His evidence has been criticised essentially on the ground that he is an interested witness, being brother of the deceased Nirmala. In our view, this argument has no substance at all. Ordinarily, a close relation would be the last person to implicate an innocent man and leave the real culprit. It is difficult to accept in a case like that the victim would not know the assailant, and if she knew her assailant, she is bound to tell it to her close relations like her brother Pratap. In our view, the oral evidence of Jaya Vasu (P.W. 1), Lata Chainani (P.W. 2) and Pratap Lalwani (P.W. 8) fully corroborated the two dying declarations referred supra. Besides the evidence discussed above, the prosecution has also examined one Geeta Suresh Sharma (P.W. 6). She has, however, been declared hostile and her evidence is of no assistance to either the prosecution or the defence and none placed any reliance on the same. We think it safe to exclude her evidence completely. The prosecution has also examined Prakash Lalwani (P.W. 9), the real younger brother of the deceased Nirmala. He arrived at the scene of the incident just a few minutes after his elder brother Pratap Lalwani (P.W. 8). It appears from his evidence and from the evidence of Pratap Lalwani that as soon as he reached there, he was asked to get auto rickshaw. He assisted his brother in lifting the deceased. Nirmala and removing her to the hospital. We do not think that his evidence is at all material. It is not necessary to discuss his evidence in details.
14. The prosecution has placed on record the report of the Chemical Analyser (i.e. Assistant Director, Forensic Science Laboratory, State of Maharashtra, Bombay) at Ex. 32. Ex. 1 is the kerosene bottle which was sent to the Chemical Analyser for a report. The result shows that the liquid in the bottle was kerosene. Exs. 2 and 3 are match-sticks and burnt match-sticks. However, they were found to be not suitable for examination. A partly burnt cloth piece was also sent to the Chemical Analyser which is marked Ex. 4. It is a very small piece of the bottom of Salwar. The result of the analysis of this exhibit is negative. Relying on this report, Mrs. Desai has argued that this report completely negatives the prosecution story. According to her, the entire prosecution case is that the accused set fire to the deceased Nirmala after pouring kerosene oil on her clothes. According to her, had it been so, then the result of the analysis could not have been negative so far as the burnt cloth piece was concerned. Since we were dealing with a confirmation case, we thought it fit, in the interest of justice, to examine Mrs. Rukmini Krushnamurthy, who gave the report under Ex. 32. We have passed a separate order to this effect on September 12, 1984. She was examined as a Court witness and was cross-examined by the prosecution as well as the defence. She has categorically stated that it cannot be necessarily concluded from the negative report that no kerosene was poured on the clothes. She gave three reasons in support of her evidence as under :
'1. The nature of the exhibits submitted for examination.
2. The degree of the burns suffered by the exhibit submitted for examination.
3. The amount of kerosene poured on the exhibit submitted for examination.'
She has further deposed that if the entire cloth on which the kerosene was put burns completely, obviously, no residue will be left. Her evidence was criticised by Mrs. Desai on the ground that she has not supported her evidence by any authority. The witness has stated that such crimes are common only in India and, therefore, no books of foreign authors are available on the subject. She has asserted that there is no direct authority to substantiate her opinion, but she was certain about the correctness of the proposition on account of her long experience in the field. From her qualifications, it appears that she is M.Sc. in Chemistry and appears to have fairly long experience in this field. She has also referred to certain papers published by the Director of her institute. We have gone through her evidence and we do not see any reason to doubt the same. In view of her evidence, the defence cannot take any advantage of the negative report submitted by the Chemical Analyser. We may here also refer to the Spot Panchanama (Ex. 26) wherein it is recited that the flooring had a smell of rock oil and that the pieces of Salwar and Kurta also had a smell of rock oil. This panchanama was recorded almost immediately after the incident on July 4, 1983. Besides this Panchanama, the witnesses, namely, Lata and Pratap, have also stated that when they entered the hut, they noticed smell of kerosene. All this, in our view, lends complete support to the prosecution story that the incident must have occurred in the manner as deposed to by the prosecution witnesses.
15. Besides the dying declarations, there also appears to be motive on the part of the accused. Mr. Hombalkar has invited our attention to the complaint made by the deceased Nirmala to the police on June 7, 1983 (Ex. 30). From this complaint, it is quiet clear that the accused does embroidery work but he does not give anything for the household expenses and whenever Nirmala demanded money for the household expenses, her husband assaulted her with fist blows. There is no challenge to this statement, which has been proved by Police Inspector Appa Patil (P.W. 10). Thus, we see much substance in the submissions of Mr. Hombalkar that the prosecution has established motive on the part of the accused.
16. The last circumstance which, in our view, is equally relevant is the conduct of the accused. A husband is expected to protect his wife, but in the present case we see that the accused left the house after setting fire to his wife and was arrested the next day at about 12-30 p.m. at Ulhasnager. Inspector Appa Patil (P.W. 10) has deposed that it was only after search that the accused could be arrested. There is no explanation as to why he was not present at his house in the night at about 3-30 a.m. and thereafter. This conduct, in our view, is consistent with his guilt. Thus, in our view, the prosecution has proved beyond the pale of reasonable doubt that it was the accused who was responsible for the commission of the offence. We are convinced that he is guilty of the offence of murder of his wife, the deceased Nirmala, punishable under S. 302 of the Indian Penal Code.
17. On the point of sentence, we heard both the Counsel. The learned Additional Sessions Judge has given reasons for imposing the death sentence. According to him, the murder has been committed at odd hours in the night at about 3-00 or 3-30 a.m. and the accused must have chosen this time so that he could avoid intervention from the neighbours. The learned Additional Sessions Judge has also referred to the degree of the burns. According to him, it was a case of extensive burns of as much as 88 percent. He has also taken into consideration the relationship of husband and wife. According to him, it is the duty of the husband to protect his wife and here is a husband who instead of protecting her kills her mercilessly. He has also taken into consideration the increase in the number of such type of cases. Lastly, according to him the deceased Nirmala was a helpless woman and the manner in which the murder is committed is inhuman and cold-blooded. Mr. Hombalkar has strongly defended the reasons given by the learned Additional Sessions Judge and has pressed for a death sentence.
18. As against this, Mrs. Desai has placed several circumstances before us for taking a lenient view. She has submitted that after amendment of the Cr.P.C. 1973, the normal sentence for an offence under S. 302 of the Indian Penal Code is imprisonment of life and it is only in exceptional cases that a death sentence is awarded. She has submitted that there is nothing unusual in this case and there was no justification for the learned Additional Sessions Judge to inflict the extreme penalty of death. According to her, this is like any other routine murder cases where usually the punishment inflicted is imprisonment for life. She has further submitted that at the time of commission of the murder, the accused was heavily drunk and it is possibly that he may not have really understood the nature of his act. It is also possible that he may not have been in proper senses. She has also invited our attention to the evidence on record that he has a young daughter aged about 7 years and that she has already lost her mother. Lastly, she has submitted that the accused is a young man aged about 32 years. She has invited our attention to two decisions of the Supreme Court reported in the case of Bachan Singh v. State of Punjab, : 1980CriLJ636 , and in the case of Machhi Singh v. State of Punjab, : 1983CriLJ1457 . The Supreme Court has laid down the principles and guidelines about the cases which may be termed as 'the rarest of the rare cases.' We have given our anxious consideration to the submissions advanced on behalf of the defence as well as the prosecution. We see much substance in the submissions of Mrs. Desai Even according to the prosecution, the accused was heavily drunk and it appears that their married life was not very happy. That must have also caused some frustration to the accused. It appears that at the time of the incident, he was under the influence of liquor and there is every like hood that he may not have been in proper senses. He has a young daughter who would need him, particularly when she has already lost her mother. It may be too harsh if she is also to lose her father. His age also appears to be relevant factor.
19. For all these reasons, we feel that the sentence of death may be too harsh in the facts and circumstances of this case. We are afraid that the present case may not fall in the category of one of 'the rarest of the rare cases' The Reference made by the learned Additional Sessions Judge, Thane is not accepted. Confirmation case No. 1 of 1984 is rejected. The accused is convicted for the offence under S. 302 of the I.P.C. and sentenced to suffer imprisonment for life. Criminal Appeal No. 307 of 1984 is, accordingly, dismissed.
20. Order accordingly.