Criminal Appeal No.1315 of 2008

30th April, 2015.

Petitioner Counsel: Mr. PRAVIN G. SAWANT
Respondent Counsel: Mr. A.S. SHITOLE

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- This appeal is preferred by the appellant - original accused against the judgment and order dated 15.11.2008 passed by the learned Additional Sessions Judge, Nashik in Sessions Case No. 117 of 2007. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-

Convicted u/S	Sentenced to
302 IPC	Life imprisonment and fine of Rs.2000/-.
498-A IPC	Rigorous imprisonment for one year and fine of Rs. 2000/- in default R.I. for three months.

The learned Sessions Judge directed that both the substantive sentences of imprisonment shall run concurrently.

2. The prosecution case briefly stated, is as under:

(a) Deceased Meenabai was the daughter of PW 4 Jagannath. Meenabai was married to the appellant. After the marriage, Meenabai started residing with the appellant and his mother at Pale Khurd in District Nashik. Meenabai and the appellant had one daughter PW 5 Sandhya. After the birth of Sandhya, the appellant started illtreating his wife Meenabai. The appellant would say that her character was not proper. The appellant would ask Meenabai to leave the matrimonial home. The appellant would also beat his wife Meenabai. On coming to know about the ill-treatment by the appellant to Meenabai, her father Jagannath went to village Pale and brought Meenabai to his house in Wadipisol in District Nashik. Meenabai stayed with her father for about a year. About two months prior to the incident, the brother of the appellant, the mother of the appellant i.e original accused No. 2 Shantabai and the brother of Shantabai came to the house of PW 4 Jagannath. They assured that henceforth, Meenabai would be treated properly, therefore, Jagannath sent his daughter Meenabai with them to her matrimonial house.

(b) The incident occurred on 12.12.2006. At about 4.00 p.m., the appellant came home. At that time, Meenabai was sleeping. The appellant woke Meenabai up and said to her that there is one Baba and she should go with him to the Baba. Meenabai did not agree to go to the Baba, hence, a quarrel took place between Meenabai and the appellant. Then the appellant picked up a can of kerosene and poured kerosene on Meenabai and set her on fire. The appellant then extinguished the fire by pouring water on Meenabai and by covering her with a blanket. Then Meenabai was taken to the hospital. In the hospital, dying declaration Exh. 13 and dying declaration Exh. 34 came to be recorded. Dying declaration Exh. 13 was recorded by PW 1 SEO Shri. Deshpande and dying declaration Exh. 34 was recorded by PW 7 PSI Shri. Sonawane. In both the dying declarations, Meenabai has stated that a quarrel took place on account of the appellant insisting that she should accompany him to one Baba. Thereafter, her husband poured kerosene on her and set her on fire. Dying declaration Exh. 34 was treated as F.I.R. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

3. Charge came to be framed against the appellant and his mother Shantabai i.e original accused No. 2 under Sections 498-A r/w 34 and 302 r/w 34 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant poured kerosene on his wife Meenabai and set her on fire.

5. The conviction of the appellant is mainly based on two dying declarations Exh. 13 and Exh. 34. Dying declaration Exh. 13 was recorded by PW 1 SEO Shri. Deshpande and dying declaration Exh. 34 was recorded by PW 7 PSI Shri. Sonawane. PW 1 SEO Shri. Deshpande has stated that at the relevant time, he was Special Judicial Magistrate. On 14.12.2006, he received a requisition requesting him to record dying declaration of one Meenabai Kedare who was admitted to Civil Hospital, Nashik. He then went to Civil Hospital, Nashik. He asked the concerned medical officer (PW 6 Dr. Ranade) to give fitness certificate about the fitness of the patient to give dying declaration. The doctor and Shri. Deshpande then went to the burn ward. The doctor examined Meenabai and found that she was physically and mentally fit to make a statement. The doctor gave an endorsement to that effect. PW 1 Shri. Deshpande asked the relatives of the patient to go out from the ward as he wanted to record the dying declaration of Meenabai. Accordingly, they left the ward. Thereafter, Shri. Deshpande recorded the dying declaration of Meenabai at 2.15 p.m. Meenabai stated that at about 4.00 p.m., her husband picked up a quarrel with her. Her husband then poured kerosene on her and set her on fire.

6. Thereafter, PW 7 PSI Sonawane recorded the dying declaration Exh. 34 of Meenabai. This dying declaration was recorded on 14.12.2006 at 6.30 p.m. PW 7 PSI Shri. Sonawane has stated that he received intimation from Civil Hospital that a woman with burn injuries was brought to the hospital. They were asked to come to the Civil Hospital and record the statement of the said patient. Then Shri. Sonawane issued a requisition letter to Special Executive Magistrate. Shri. Sonawane has stated that he also recorded the dying declaration of Meenabai. Prior to recording the dying declaration, he requested the doctor who was present, to accompany him to the ward where the injured was admitted. The doctor examined the injured lady and gave an endorsement to the effect that the injured person was mentally and physically fit to give a statement. Thereafter, Shri. Sonawane recorded the statement of Meenabai. Meenabai stated that as she refused to accompany her husband to go to one Baba, her husband poured kerosene on her and set her on fire.

7. In addition to two dying declarations Exh. 13 and Exh. 34, the prosecution has relied on the evidence of PW 4 Jagannath who was the father of Meenabai. Meenabai made an oral dying declaration to Jagannath. Jagannath has stated that his daughter was married to the appellant. After marriage, Meenabai went to reside with her husband at village Pale. For two years, Meenabai was treated well. Thereafter, Meenabai came to his house for the purpose of delivery. She delivered a female child who was named as Sandhya. Then Meenabai's in-laws came to the house of Jagannath and took Meenabai and Sandhya with them to village Pale. Jagannath has further stated that Meenabai was subjected to physical torture and she was beaten by the appellant. As Jagannath came to know that the appellant was ill-treating Meenabai, he went to village Pale and brought Meenabai to his house at Wadipisol. Meenabai stayed with Jagannath for about a year. About two months prior to the incident, the brother of the appellant, the mother of the appellant i.e original accused No. 2 Shantabai and the brother of Shantabai came to the house of PW 4 Jagannath. They assured that Meenabai would be treated properly, therefore, Jagannath sent his daughter Meenabai with them to her matrimonial house.

Jagannath has further stated that two months after Meenabai was taken to village Pale, the appellant telephoned him and told him that Meenabai was not well and she was admitted in the hospital. He then went to Civil Hospital at Nashik. He met his daughter Meenabai. He noticed that she had sustained burn injuries. Meenabai told him that her husband (appellant) had set her on fire.

8. The prosecution has further relied on the evidence of PW 5 Sandhya who was the daughter of the appellant and deceased Meenabai. Sandhya is a child witness. Sandhya has stated that her father poured kerosene on her mother Meenabai and set her on fire. Then her mother was taken to the hospital by her father and grandmother.

9. Mr. Sawant, learned Advocate for the appellant, submitted that the evidence of PW 7 PSI Sonawane shows that on 12.12.2006 at about 8.00 p.m., the dying declaration of Meenabai was recorded in the Civil Hospital at Nashik by SEO Shri. Chavan. In the said dying declaration. Meenabai has stated that she sustained burn injuries on account of flaring of the stove. He submitted that this shows that two dying declarations Exh. 13 and Exh. 34 and the evidence of PW 4 Jagannath and PW 5 Sandhya is false and concocted and no reliance can be placed on the same. As far as this contention is concerned, it is seen that in the dying declarations Exh. 13 and Exh. 34, Meenabai has clearly stated that after she was set on fire, the appellant threatened her that she should state that she caught fire on account of flaring of the stove, otherwise he would kill her daughter. It is also pertinent to note that Meenabai was taken to the hospital by the appellant and his mother, therefore, at that time, Meenabai was totally under the control of the appellant and his mother and moreover, she had fear in her mind that her daughter may be killed by the appellant if she states the true facts.

The evidence of PW 4 Jagannath also shows that when he met his daughter Meenabai in the hospital, she told him that she was threatened by the appellant to tell that she had set herself on fire, otherwise they would kill her daughter Sandhya. Thus, it is seen that on account of pressure put on Meenabai by the appellant and due to fear that her daughter would be killed by the appellant, Meenabai has stated that she sustained burn injuries due to flaring of stove which is recorded in the dying declaration ( Exh. 45 ) on 12.12.2006. Thus, the prosecution has come up with clear and cogent explanation for Meenabai stating in the first dying declaration that she has sustained burn injuries on account of flaring of stove. Looking to the facts stated in the dying declarations Exh. 13 and Exh. 34 and the evidence of PW 4 Jagannath, we are of the opinion that the dying declarations Exh. 13 and Exh. 34 state the true and correct facts and the evidence in relation thereto can be safely relied on.

10. It is the prosecution case that Meenabai sustained burn injuries as the appellant had poured kerosene on her and set her on fire. This is also borne out by the medical and forensic evidence. PW 3 Dr. Patil conducted the post mortem on the dead body of Meenabai. He has stated that Meenabai sustained 100% burn injuries and she died due to septicemic shock due to 100% burns.

The partially burnt clothes of Meenabai were sent to C.A. for analysis. As per C.A. report Exh. 46, the partially burnt clothes of Meenabai tested positive for kerosene residues. This clearly shows that kerosene was poured on Meenabai and thereafter, she was set on fire. Presence of kerosene residues on the clothes of Meenabai falsifies the defence put up by the appellant that Meenabai sustained burn injuries on account of flaring of the stove.

11. The appellant has also been convicted under Section 498-A of IPC. Dying declaration Exh. 34 of Meenabai shows in detail about the ill-treatment by the appellant to Meenabai. Meenabai has stated that she gave birth to daughter Sandhya on 26.1.2002 in the house of her father. Thereafter, her in-laws brought her back to her matrimonial house. After she was brought back to the matrimonial house, her husband on petty issues used to taunt her and beat her. Her husband stopped giving money to buy grocery and told her that she would have to remain hungry. Her husband i.e the appellant told her that if she did not wish to reside in the matrimonial house, she should go to her maternal house. For some days, she stayed without food. Then she told her father about the ill-treatment given to her by the appellant. Her father then took her to his house.

The evidence of PW 4 Jagannath who is the father of Meenabai also shows that Meenabai was subjected to physical torture by the appellant. She was beaten by the appellant. When Jagannath came to know about the ill treatment to his daughter Meenabai by the appellant, he went to the matrimonial house of his daughter in village Pale and brought his daughter Meenabai to his house. Meenabai then stayed in his house for about a year. Thereafter, her mother-in-law and other relatives of the appellant came to Jagannath's house and assured that henceforth, Meenabai would be treated properly, hence, Jagannath sent his daughter Meenabai to her matrimonial house. Two months thereafter, Jagannath was informed that his daughter was not well and she was admitted to the hospital. When he went to the hospital, his daughter told him that the appellant had set her on fire. Thus, the evidence on record is sufficient to sustain the conviction of the appellant under Section 498- A of IPC.

12. Mr. Sawant submitted that even if it is accepted that the act of the appellant of setting his wife on fire resulted in her death, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC. He pointed out that the evidence on record shows that a quarrel was going on between the appellant and his wife Meenabai which is seen from the dying declarations Exh. 13 and Exh. 34 on which the prosecution has placed reliance. In the dying declaration Exh. 13, Meenabai has stated that a quarrel took place between her and her husband as her husband was insisting that she should accompany him to one Baba. In the course of the quarrel, her husband poured kerosene on her and set her on fire. In the dying declaration Exh. 34 also, Meenabai has stated that her husband came home at about 4.00 p.m. on 12.12.2006. At that time, she was sleeping. Her husband woke her up and told her to accompany him to one Baba. Meenabai did not agree to go to Baba, hence, a quarrel took place between the appellant and Meenabai. Meenabai has stated that then her husband poured kerosene on her and set her on fire. Meenabai has also stated that after she was set on fire by her husband (appellant), her husband poured water on her and covered her with a blanket in order to extinguish the fire. Mr. Sawant further drew our attention to the evidence of PW 4 Jagannath who is the father of Meenabai. Jagannath has stated that his daughter told him that her husband had set her on fire. His daughter further told him that her husband tried to extinguish the fire by throwing water on her. Mr. Sawant also placed reliance on the evidence of PW 5 Sandhya who is the daughter of the appellant and the deceased. Sandhya has stated that her father poured kerosene on her mother and set her on fire. Thereafter, her father and her grandmother took her mother to the hospital. Mr Sawant submitted that if the appellant had intended to cause the death of his wife Meenabai, he would not have poured water on Meenabai to extinguish the fire and he would not have rushed Meenabai to the hospital. He submitted that the fact that incident occurred during a sudden quarrel would bring the case under Exception 4 to Section 300 of IPC.

13. To bring a case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 of IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both the parties had worked themselves into a fury on account of verbal altercation going on between them. The appellant did not come to the spot armed with a weapon and with a pre-determined plan that on that day, he would kill his wife, instead, the appellant, during a sudden quarrel, picked up kerosene can which was available in the room and poured kerosene on Meenabai and set her on fire. The evidence on record shows that the incident occurred during a sudden quarrel and immediately after the appellant set Meenabai on fire, the appellant extinguished the fire and rushed Meenabai to the hospital. Looking to all these facts, we are of the opinion that Exception 4 to Section 300 of IPC would be attracted. However, in our view, the case would not fall under Section 304 Part II of IPC as contended by Mr. Sawant. In our view, the case would fall under Section 304 Part I of IPC because we are of the opinion that the appellant did not just have the knowledge that his act is likely to cause death as contended by Mr. Sawant but in fact, the said act was done by the appellant with intention of causing such body injury as is likely to cause the death of Meenabai. We say so on the basis of the extent of burns sustained by Meenabai which were hundred percent. Looking to all these facts, we are of the considered opinion that the case would fall under Section 304 Part I of IPC.

14. From the evidence on record, we are of the opinion that Exception 4 to Section 300 applies to the facts of the case and the appropriate conviction would be under Section 304 Part I of IPC. Hence, the conviction and sentence of the appellant under section 302 of IPC imposed by the learned Additional Sessions Judge, Nashik vide judgment and order dated 15.11.2008 in Sessions Case No. 117 of 2007, is set aside, instead, the appellant is convicted under section 304-I of IPC and sentenced to suffer R.I. for eight years and to pay a fine of Rs. 2000/- in default, S.I. for one month.

15. The conviction and sentence of the appellant under Section 498-A of IPC is maintained.

16. Both the substantive sentences of imprisonment shall run concurrently.

17. The appeal is allowed to the aforesaid extent.

18. Office to communicate this order to the appellant who is in jail.

19. We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mr. Pravin Sawant at Rs. 5000/-.

Appeal allowed.