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2013 DIGILAW 1544 (BOM)

Nalini Ramchandra Anpat v. State of Maharashtra

2013-08-07

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT : Mrs. Tahilramani, J. 1. The appellant – accused has preferred this appeal against the judgment and order dated 23.10.2008 passed by the learned Additional Sessions Judge, Satara in Sessions Case No.213 of 2007. By the said judgment and order, the learned Additional Sessions Judge convicted the appellant u/s 302 of the Indian Penal Code and sentenced her to imprisonment for life and to pay fine of Rs.5,000/- and in default, R.I. for one year. 2. The prosecution case briefly stated is as under: Deceased Sharda was residing at Anpatwadi, Taluka Koregaon, District Satara. She was residing there alongwith her husband and son Akshay. The appellant is the wife of the elder brother in law of Sharda i.e., she was the wife of the elder brother of the husband of Sharda. There were disputes in relation to partition between the family of Sharda and the family of the appellant. The incident occurred on 30.4.2007. At about 9pm, the minor son of Sharda had put on Television on loud volume. The appellant who was residing next to the house of Sharda, went there and asked why the volume was increased. Thereafter, a fight took place in relation to the partition of the property. In the course of the quarrel, the appellant took a can of kerosene from the house of Sharda and poured kerosene on Sharda and set her on fire. Sharda was taken to the hospital. Three dying declarations of Sharda were recorded i.e., exhibit 29, exhibit 34 and exhibit 38. Dying declaration (exhibit 29) was recorded by PW3 Police Head Constable Bhimrao Chormale, dying declaration (exhibit 34) was recorded by PW4 SEM Prakash Rajapur and dying declaration (exhibit 38) was recorded by PW6 Head Constable Sapkal. The first dying declaration of Sharda was treated as FIR. Thereafter, investigation commenced. Sharda expired due to burns on 6.5.2007. The body of Sharda was sent for postmortem. PW2 Dr.Jadhav performed the postmortem on the dead body of Sharda. According to him, death was caused due to burns. After completion of investigation, the chargesheet 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 completion of investigation, the chargesheet 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 and the defence raised by the appellant, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above, hence, this Appeal. 4. The conviction is based on three dying declarations – exhibits 29, 34 and 38. Exhibit 29 was recorded by PW3 police constable Chormale. Exhibit 34 was recorded by PW4 SEM Prakash Rajapur. Dying declaration (exhibit 38) was recorded by PW6 police head constable Sapkal. In the dying declaration (exhibit 38), Sharda had stated that on the day of the incident, at about 9pm, her son had put on TV as well as FM radio. Hence, her sister-in-law i.e., the appellant came there and quarrel took place between both of them on account of the volume of the TV and FM. Thereafter, quarrel took place between them about the partition of the property. Then the appellant took a can of kerosene from the house of Sharda and poured kerosene on her and set her on fire. The other two dying declarations are on similar lines as dying declaration at exhibit 38. Nothing has been elicited in the cross-examination of PW3 police constable Chormale, PW4 SEM and PW6 Head Constable Sapkal so as to disbelieve their testimony. All the three dying declarations are consistent. They show that the appellant poured kerosene on Sharda and set her on fire. 5. Mr.Khamkar submitted that even if it is to be accepted that the act of the appellant of setting her sister in law on fire resulted in her death, the case would not fall u/s 302 but it would fall under section 304 part II of the Indian Penal Code. He pointed out that the evidence on record shows that quarrel was going on between the appellant and the deceased Sharda which has been stated by Sharda herself in her dying declaration. Mr.Khamkar pointed out that the act was not premeditated or preplanned as the appellant had not come to the house of Sharda with a can of kerosene or matchstick in her hand. Mr.Khamkar pointed out that the act was not premeditated or preplanned as the appellant had not come to the house of Sharda with a can of kerosene or matchstick in her hand. The quarrel had happened on the spur of the moment and in a fit of anger. After the quarrel ensued, the appellant took kerosene from the house of Sharda and poured it on Sharda and set Sharda on fire. Mr.Khamkar submitted that the fact that the incident occurred during a sudden quarrel would bring the case under Exception 4 to section 300 of the Indian Penal Code. 6. 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 word '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 i.e., she did not come to the spot pre-armed with a kerosene can and a matchstick. But she took kerosene from the house of Sharda and poured it on Sharda and set her on fire. There was no pre-meditation or pre-planning on the part of the appellant and the incident had occurred on the spur of the moment in a fit of anger. Looking to all these facts, we are of the considered opinion that the case will fall under section 304 part II of the Indian Penal Code. 7. Considering the evidence on record, we are of the view that Exception 4 to section 300 applies to the facts of the present case and the appropriate conviction would be u/s 304 part II of the Indian Penal Code. Hence, the conviction of the appellant u/s 302 of the IPC is set aside and instead, the appellant is convicted u/s 304 part II of the Indian Penal Code. For the said offence, the appellant is sentenced to custodial imprisonment of six years R.I. The fine and i/d sentence, as imposed by the learned Sessions Judge, is maintained. 8. Appeal is accordingly partly allowed.