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2013 DIGILAW 1638 (BOM)

Suresh Malhari Gaware v. State of Maharashtra

2013-08-20

MRIDULA BHATKAR, V.K.TAHILRAMANI

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JUDGMENT: Mrs. Bhatkar, J. 1. The appellant is convicted for the offence punishable u/s 302 of the Indian Penal Code and thereby sentenced to suffer imprisonment for life. The appellant and the deceased Raziyabi Nashir Khan were residing together after death of her husband. Raziyabi was having three children including PW1 Ameenabai Nasir Khan. On the night of 9.5.2001, the accused, who was addicted to liquor, came home and demanded money from Raziyabi. Raziyabi did not given money. So by pouring kerosene he set her on fire. She started shouting. So her children, who were sleeping outside the room, came running inside. The accused poured water on the deceased and ran away. Raziyabi was shifted immediately to the Sion hospital. She was treated by PW3 Dr.Vikas Krishnamkumar Bihani. She had sustained 65% burn injuries. PW6 API Prabhakar Parab, then attached to Antop hill police station, on receiving information of the incident, registered C.R. No.216 of 2001. Statement of Raziyabi was recorded by SEM Trushna Vishwasrao. She succumbed to the injuries on 20.5.2001. Inquest panchanama was drawn on PSI Solanki and thereafter, ADR No.102 of 2001 was registered for offence u/s 302 of the Indian Penal Code. On 10.5.2001, the accused was arrested. The police recorded statements, submitted chargesheet in the Court of Metropolitan Magistrate. The learned Magistrate committed the case to the Court of Sessions. 2. The accused was tried and the trial was concluded in the conviction of the accused and by judgment and order dated 16.4.2004, the accused as sentenced to imprisonment for life. Hence, this appeal. 3. The prosecution has examined in all six witnesses. PW1 Ameenabai is the daughter of Raziyabi. The incident has took place on 9.5.2001. PW1 Ameenabai was examined on 15.11.2003 i.e., two years after the incident. At the time of recording her evidence, PW1 Ameenabai was 12 years old and thus at the time of incident, she was 10 yeas old and so she remembered the incident. She has deposed that she alongwith her two brothers and one sister were staying at Wadala and after the death of her father, the appellant was staying with them as their father. She has deposed that the incident had taken place during summer vacation of her school. She has deposed that at the time of the incident, she and her brothers and one aunt Jijabai were present in the house. She has deposed that the incident had taken place during summer vacation of her school. She has deposed that at the time of the incident, she and her brothers and one aunt Jijabai were present in the house. There was quarrel between the appellant and her mother as the appellant wanted money to buy liquor. On the night at 11pm, the accused returned home and told her mother that he had consumed liquor without paying money and therefore, he wanted money. When she refused, he poured kerosene on her person and set her on fire. In the cross-examination, she admitted that she was sleeping outside the house and on hearing shouts of her mother, they came inside the house. They saw the appellant standing there and he poured water on the person of her mother and then, ran away from the spot. Nothing much is elicited in the cross-examination of this child witness. In the cross-examination, an attempt was made to confuse the witness on the point of time sequence however, the witness has remained consistent with her examination-in-chief. 4. PW2 SEM Trushna has recorded the statement of Raziyabi. The learned defence Counsel has pointed out that the PW2 SEM Trushna did not take precaution to get a certificate from the medical officer about the mental and physical condition of the deceased. It is true that on the dying declaration (exhibit 10), there is no mention of certificate of the medical officer. However, in the examination in chief, she has stated that she made enquiry with the Doctor about the condition of the patient and she came to know that she had 65% burn injuries. She put her questions to the deceased and the dying declaration was recorded in question and answer format. In the dying declaration, Raziyabi has stated that she refused to give money to the appellant with whom she was in a live-in relationship. So, the appellant quarelled and set Raziyabi on fire by pouring kerosene. She has also stated that the appellant tried to save her by pouring water on her and her sister Jijabai brought her to the Sion hospital. The dying declaration corroborates the evidence of PW1 Ameenabai who has stated that her aunt Jijabai was present at the time of the incident. Raziyabi in her dying declaration has also made reference to her sister Jijabai, who had brought her in the hospital. The dying declaration corroborates the evidence of PW1 Ameenabai who has stated that her aunt Jijabai was present at the time of the incident. Raziyabi in her dying declaration has also made reference to her sister Jijabai, who had brought her in the hospital. On going through the contents of the dying declaration, it can be inferred that the dying declaration is truthful and was made voluntarily. The dying declaration dislodges any theory of suicidal death and it confirms that it was a case of homicidal death. 5. The objection of the learned Counsel for the defence that no certificate in respect of the mental and physical health of the deceased was obtained though is correct, however, considering the facts of the case and the contents in the dying declaration, we have no hesitation to hold that this dying declaration, even in the absence of the certificate of the Doctor, can be considered as good piece of evidence against the accused. We get support to our conclusion from one more document i.e., exhibit 14 which is a case paper produced by PW3 Dr.Vikas Bihani. PW3 Dr.Bihani was the medical officer, who had treated Raziyabi first in time when she was brought to the hospital at Sion. He has deposed that Raziyabi suffered 65% burns. Her general condition was poor but he has further mentioned that she came on her own to the hospital and narrated the history by herself as per the casualty record. He had produced medical papers. On perusal of medical papers (exhibit 14), we find a noting of the history recorded by the Department which is “history of homicidal burns at home at 11.30pm on 9.5.2001 Kings Circle, with kerosene by Suresh Gavale. No history of unconsciousness / epilepsy”. Thus, the history given by the patient shows that deceased was conscious throughout and it shows that it was not a suicidal attempt. The deceased has specifically attributed the role of setting her on fire to the appellant Suresh. Thus, we accept and rely on this document (exhibit 14) and so also the dying declaration (exhibit 10) recorded by PW2 Dr.Trushna. 6. PW14 Dr.Ajay Patil has conducted postmortem on the body of Raziyabi Khan on 21.5.2001. He has opined that the cause of death was shock due to burns (unnatural). The death was caused due to cumulative effect of burn injuries. The postmortem notes (exhibit 17) are produced. 6. PW14 Dr.Ajay Patil has conducted postmortem on the body of Raziyabi Khan on 21.5.2001. He has opined that the cause of death was shock due to burns (unnatural). The death was caused due to cumulative effect of burn injuries. The postmortem notes (exhibit 17) are produced. We do not find any good ground to reject the evidence of PW1 Ameenabai, the dying declaration (exhibit 10) and the history given in the medical report (exhibit 14). Moreover, the other circumstantial evidence that the incident had taken place in the house of the deceased where the appellant was residing with her and there was quarrel between the accused and the appellant and the appellant was demanding money to consume liquor is incriminating. Thus, the prosecution had established the motive and immediately after the incident of setting her on fire, PW1 and her relatives entered the house and they saw the accused standing there. Thus, we hold that the appellant is responsible for setting Raziyabi on fire and the resultant death. 7. Learned Counsel for the appellant had submitted that the evidence brought on record discloses that there was a quarrel between the appellant and the deceased and thereafter he set her on fire. However, he poured water on her and so the rigor of the offence can be reduced and it is not to be considered as a murder but a culpable homicide not amounting to murder. We have considered the submissions of the learned Defence Counsel on the basis of the evidence of dying declaration and also of PW1 Ameenabai. PW1 Ameenabai has specifically stated that the accused had poured water on the person of the deceased with a view to extinguish the fire. In the dying declaration also Raziyabi mentioned her husband had poured water with a view to save her. Thus, it shows that the appellant had poured kerosene and set her on fire in a fit of anger due to quarrel between the accused and the deceased as he did not get money from her and so, we are inclined to give benefit of Exception 4 to Section 300 of the Indian Penal Code to the appellant with the following order: i) The conviction of the appellant u/s 302 of the Indian Penal Code and the sentence of life imprisonment is set aside. Instead, the appellant is convicted u/s 304 part II of the Indian Penal Code. Instead, the appellant is convicted u/s 304 part II of the Indian Penal Code. ii) Accordingly, the appellant is sentenced to suffer eight years R.I. 8. Appeal is allowed accordingly. 9. Office to communicate this order to the concerned prison Authorities and to the Appellant who is presently lodged in Nashik Road Central Prison. 10. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Mr.Karandikar, who has very ably conducted the matter. We quantify total legal fees to be paid to him /her in this appeal by the High Court Legal Services Committee at Rs.2,500/-.