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2013 DIGILAW 1153 (BOM)

Laxman Nagnath Mhaske v. State of Maharashtra

2013-06-25

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT MRS. V.K. TAHILRAMANI, J. The appellant - original accused has preferred this appeal against the judgement and order dated 25.9.2008 passed by the learned Sessions Judge 4, Pune in Sessions Case No. 655 of 2005. By the said judgement and order, the learned Sessions Judge convicted the appellant u/s 302 of the Indian Penal Code and sentenced him to R.I. for life and to pay a fine of Rs. 1000/- and in default R.I. for three months. 2. The prosecution case briefly stated is as under :- Deceased Vrundavani was the wife of the appellant. The appellant and the deceased alongwith their two sons and two daughters were residing at Sangramnagar slum, Nigdi, Pune. Their son PW3, Milind, was about 14 years of age at the time of the incident. The appellant was addicted to liquor and used to often quarrel and assault his wife Vrundavani. The incident took place on 25.4.2005. At about 10pm, a quarrel took place between the appellant and his wife Vrundavani. Vrundavani came out of the house for some time and then she went back into the house. Again, quarrel started between her and her husband, i.e., the appellant. At about 12 O’clock, the quarrel was going on between the appellant and his wife. In the course of the quarrel, the appellant told his wife that she should pour kerosene on herself and die. In order to frighten the appellant, Vrundavani poured a little kerosene on herself from a can. The appellant immediately took the can and poured kerosene on Vrundavani and then set her on fire. Vrundavani was taken to the hospital. In the hospital, PW2 Dr. Naphade examined Vrundavani. He recorded the history given by Vrundavani. Vrundavani told him that there was quarrel between herself and her husband and initially she herself poured kerosene on her person then her husband poured kerosene on her person and set her on fire with a matchstick. Thereafter, on the very same day, at about 3.15 pm, dying declaration of Vrundavani (exhibit 41) was recorded by PW6 PSI Kshirsagar. The said dying declaration was treated as FIR. In this dying declaration also, Vrundavani mentioned about the quarrel between her and her husband. She stated that she then poured kerosene on herself from a can. Her husband then poured kerosene on her and in a fit of anger, set her on fire. Vrundavani expired on 1.5.2005. The said dying declaration was treated as FIR. In this dying declaration also, Vrundavani mentioned about the quarrel between her and her husband. She stated that she then poured kerosene on herself from a can. Her husband then poured kerosene on her and in a fit of anger, set her on fire. Vrundavani expired on 1.5.2005. PW1 - Dr. Chandekar found that Vrundavani had sustained 72% burn injuries. In his opinion, the cause of death was shock due to burns. After completion of investigation, the charge-sheet came to be filed. 3. Charge came to be framed against the appellant u/s 302 of the Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is 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 para 1 above, hence, this appeal. 4. We have heard the learned Advocate for the appellant and learned A.P.P. for the State. We have carefully considered their arguments, the judgement and order passed by the learned Sessions Judge and the evidence on record. After minutely considering the same, we are of the opinion that the appellant poured kerosene on his wife and set her on fire with a matchstick. 5. The conviction is based on the evidence of PW3 Milind, who was the son of the appellant and the deceased as also the dying declaration (exhibit 41) recorded by PW6 PSI Kshirsagar. PW3 Milind has stated that on the day of the incident, that is, on 25.4.2005 at about 12 midnight, he heard the sound of quarrel. Therefore, he got up from sleep. He saw his father pouring kerosene on his mother and setting her on fire with a matchstick. Thus, the evidence of PW3 Milind establishes that the appellant set his wife on fire. Nothing has been elicited in the cross-examination of this witness so as to cause us to disbelieve his testimony. 6. In addition to the evidence of PW3 Milind, the prosecution has relied on the evidence on PW6 PSI Kshirsagar, who recorded the dying declaration (exhibit 41). PSI Kshirsagar stated that on 25.4.2005, he received a phone call that a lady was admitted in Sassoon hospital with burn injuries. Hence, he went to Sassoon hospital at about 3 to 3.15am. 6. In addition to the evidence of PW3 Milind, the prosecution has relied on the evidence on PW6 PSI Kshirsagar, who recorded the dying declaration (exhibit 41). PSI Kshirsagar stated that on 25.4.2005, he received a phone call that a lady was admitted in Sassoon hospital with burn injuries. Hence, he went to Sassoon hospital at about 3 to 3.15am. He met Dr. Naphade (PW2), who was present in the ward. He made enquiry with Dr. Naphade whether the patient was in a position to give a statement. Dr. Naphade examined the patient and told that she was in a fit condition to give the statement. Then PSI Kshirsagar recorded the statement of Vrundavani. After recording the same, he read it over to Vrundavani. She admitted the same to be correct and put her thumb impression thereon. In the dying declaration, Vrundavani has stated that at about 10pm, a quarrel took place between her and her husband. Thereafter, she came out of the house. After some time, she went back into the house. The quarrel continued At 00.15am, her husband kept a can of kerosene in front of her and told her to burn herself and die. To frighten the appellant, Vrundavani poured some kerosene on herself. On seeing this, the appellant got angry and he poured kerosene on Vrundavani and set her on fire with a matchstick. Thus, the dying declaration (exhibit 41) also establishes that the appellant set Vrundavani on fire. 7. In addition to the dying declaration (exhibit 41), the prosecution is relying on the evidence of PW2 Dr. Naphade. Dr. Naphade has stated that a burn patient was brought at about 3 am. The said patient Vrundavani gave history that there was a quarrel between herself and her husband and initially she herself poured kerosene on her person. Then her husband poured kerosene on her person and set her on fire with a matchstick. 8. Mr. Apte 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 u/s 302 of the Indian Penal Code but it would fall u/s 304 part II or at the most, section 304 part I of the Indian Penal Code. 8. Mr. Apte 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 u/s 302 of the Indian Penal Code but it would fall u/s 304 part II or at the most, section 304 part I of the Indian Penal Code. He pointed out that the evidence on record shows that a quarrel was going on between the appellant and his wife, it has been deposed to by their son PW3 Milind and also by PW2 Dr. Naphade. Mr. Apte also drew our attention to the dying declaration (exhibit 41) in which also there is a mention of quarrel between the appellant and the deceased. Mr. Apte submitted that the assault was not premeditated or preplanned, but, it occurred on the spur of the moment in a fit of anger during the course of a sudden quarrel, hence, the case would fall under Exception 4 to section 300 of the Indian Penal Code. 9. To bring a case under 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 but he poured kerosene from the can from which the deceased herself had poured kerosene on herself. However, for the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation, it must be further shown that the offender has not taken any undue advantage or acted in cruel or unusual manner. The facts of this case show that the appellant did not take any undue advantage or acted in a cruel or unusual manner. In the present case, it is noticed that the deceased died on 1.5.2005 i.e., on the 6th day after the incident. The facts of this case show that the appellant did not take any undue advantage or acted in a cruel or unusual manner. In the present case, it is noticed that the deceased died on 1.5.2005 i.e., on the 6th day after the incident. Moreover, it is seen that the deceased had sustained 72% burn injuries, as noticed from the evidence of PW1 Dr. Chandekar. However, we are not prepared to accede to the submission of Mr. Apte that the case would fall u/s 304 part II of the Indian Penal Code. In our view, the case would fall u/s 304 part I of the Indian Penal Code because we are of the opinion that the appellant did not just have the knowledge that his act is likely to cause death of his wife but he had intention to cause death of his wife. We say so, on the basis of the injuries sustained by the deceased. The injuries as can be seen from the evidence of PW1 Dr. Chandekar are extensive in nature. Looking to all these facts, we are of the considered opinion that the case cannot fall u/s 304 part II of the Indian Penal Code. 10. Considering the evidence on record, we are of the view that Exception 4 to Section 300 of the Indian Penal Code applies to the facts of the case and the proper conviction would be u/s 304 part I of the Indian Penal Code. Hence, the conviction u/s 302 of the Indian Penal Code is set aside. Instead, the appellant is convicted u/s 304 part I of the Indian Penal Code. In our view, the custodial sentence of seven years R.I. and a fine of Rs. 1000/- in default, S.I. for two months would meet the ends of justice. 11. Appeal is allowed to the aforesaid extent. 12. Office to communicate this order to the Appellant and the Superintendent of jail where the appellant is lodged i.e., Nashik Road Central Prison. 13. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr. Apte, who was appointed to represent the appellant in this appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs. 2,500/-. Ordered accordingly.