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2008 DIGILAW 151 (BOM)

Nagesh Sable s/o. Ishwar Sable v. State

2008-01-31

D.B.BHOSALE

body2008
JUDGMENT:- This criminal appeal is directed against the Judgment and Order dated 30.8.05, rendered by the Sessions Judge, Margao, in Sessions Case No.02/05, convicting the accused of the offence punishable under Section 304, (Part-II) of I.P.C. and sentencing him to suffer Rigorous Imprisonment of 7 years and to pay a fine of Rs.1,000/- in default, to suffer Rigorous Imprisonment for 3 months. 2. Briefly stated, the case of the prosecution is that on 30.9.2004 at 20.00 hours, at Bepquegal, Curchorem, the accused in a fit of rage, poured petrol on the person of his wife Meenabai Sable who, at the relevant time, was sitting by the side of fire place (chullah) and was busy in cooking and, as a result thereof, she caught fire and sustained about 30 % burn injuries. She was immediately shifted to Goa Medical College, Bambolim and while in the hospital, on 11-10-2004, she succumbed to the injuries. The alleged incident was witnessed by PW.3-Sacubai Kamble. After her death, an offence was registered under Section 302, I.P.C. and on completion of the investigation, the charge-sheet was filed and thereafter, the accused was tried and convicted for the offence under Section 304, (Part-II), I.P.C. 3. The learned Counsel for the appellant, at the outset, fairly stated that looking to the evidence on record, this i$ not a case of acquittal and she further submitted that the manner in which the victim was neglected by the doctors at the hospital while treating her for 30% burn injuries, this is a case where the sentence could be brought down from 7 years to the period already undergone. Though the learned Counsel did not press this appeal for acquittal, to satisfy my conscious, t went through the entire evidence and more particularly, the evidence of PW.3~Sacubai, the eye witnen, PW .4-80n of the accused and the victim, PW.20 anesh Kamble and PW.7 and PW.8 - the Doctors who treated her and conducted the postmortem, so also the dying declaration and the evidence of the constable and the Magistrate-PW.9 who recorded the dying declarations. 4. It appears from the evidence of PW.3-Sacubai Kamble that the alleged incident occurred in her presence. She has given a detailed account as to how the incident occurred and what led the accused to commit the alleged crime. 4. It appears from the evidence of PW.3-Sacubai Kamble that the alleged incident occurred in her presence. She has given a detailed account as to how the incident occurred and what led the accused to commit the alleged crime. Her evidence is corroborated by PW.2OlUtesh Kamble and PW.4-1eetendra Sable, the son of the victim who were in the court yard of the house at the relevant time. They have stated that the accused had threatened the victim 2-3 days before and also about the frequent quarrels between the two on the issue of the drinking, the accused at the relevant time was drunk. Even the Medical evidence in the form of postmortem notes and the depositions of PWs,' and 8 clearly support her version. Though the first dying declaration recorded by the constable ho been discarded by due learned Judge on the ground that endorsement was made by the Doctor before and after the dying declaration was recorded, the learned judge has believed the second dying declaration and the evidence of the Magistrate who to worded the, avoid statement. Pantsuit of the dying dltlt1ltion and the depositiort of the Magistrate clearly show that the accused committed the al1eged offence. In the cross examination of the witness; the accused could hardly elicit anything to make their deposition untrustworthy. As a matter of fact, all the witnesses have deposed in a straight forward manner and given the detailed account of the happenings in their presence. The evidence of all these witnesses is found to be trustworthy and the trial Court has rightly relied on the evidence on record and convicted the accused. 5. In so far as the offence is concerned, what weighed with the trial court was the medical evidence on the basis of which the learned Judge has convicted the accused under Section 304(11) of I.P.C. instead of 302. It is true that if proper care was taken, the doctor could have saved the life of the deceased by avoiding contamination to the outside visitors and with decent cover of antibiotics. I have perused the medical evidence find, in my opinion, the obsertl1tions made by the trial Judge, in that regard, cannot be faulted. In fact, for the reasons best known to the prosecution, the prosecution failed to examine the doctors when treated the victim for 11 days in the Goa Medical College. I have perused the medical evidence find, in my opinion, the obsertl1tions made by the trial Judge, in that regard, cannot be faulted. In fact, for the reasons best known to the prosecution, the prosecution failed to examine the doctors when treated the victim for 11 days in the Goa Medical College. They have not produced any medical papers, expect the postmortem report ort record. Usually, the patients with the burn injuries are admitted it is a aseptic surgical air-conditioned ward to avoid contamifiatiot1 to the outside visitors and with decent cover of antibiotics for speedy recovery. In the present case, no proper Cafe was taken either by the doctors or by the hospital authorities, as a result of which, the victim who had suffered hardly 30% burn injuries, succumbed to the injuries and died after 11 days. The set of the accused, undoubtedly, it unpardonable. Not only the victim lost her life, but the four minor children lost their mother. The learned Counsel for the appel1al1t submitted that if the sentence is reduced that would give some relief to the children, who are deprived of the love and affection of both, the mother and the father. She submitted that all the four children have love for their father and ate presently living at the mercy of others. 6. Having regard to the overall facts and circumstance of the case, though 1 am not inclined to accede to the prayer of the learned Counsel for the appellant to reduce the sentence to the period undergone, I am inclined to reduce it to 5 years. Hence, I pass the following order: The appeal is party allowed. the order of conviction of the accused for the offence punishable under Section 304, (Part-II), IPC is confirmed. However, the sentence stands reduced from 7 years to 5 years. Operative portion of the impugned judgment stands modified only to that extent. Rest of the judgment remains unaltered. The appeal is, accordingly, disposed of. Appeal partly allowed.