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2013 DIGILAW 633 (BOM)

Haridas Bhanudas Kale v. State of Maharashtra

2013-03-13

P.D.KODE, V.K.TAHILRAMANI

body2013
JUDGMENT SMT. V. K. TAHILRAMANI, J. :- This appeal is directed by the appellant-original accused against the judgment and order dated 26.09.2001 passed by the learned 1st Ad-hoc Additional Sessions Judge, Pune in Sessions Case No. 390 of 2000. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to suffer imprisonment for life and fine of Rs.15000/- in default imprisonment for 2 years. 2. The prosecution case briefly stated, is as under: (a) Rehana Shaikh (deceased) was married to the appellant. Thereafter, she was named as Kalinda. Rehana had one son from her previous marriage i.e. PW 4 Farukh. At the time of the incident, the appellant, his wife Kalinda and Kalinda's son PW 4 Farukh were residing at Pathare Vasti, Loni-Kalbhor, Tal. Haveli, Dist. Pune. The appellant was addicted to drinking liquor. There used to be frequent quarrels between the appellant and Kalinda. (b) On 05.02.1999, the appellant came home. He asked Rs. 20/- from Kalinda for liquor. Kalinda told him that she had no money, therefore, the appellant started abusing her and a quarrel ensued. In the course of the quarrel, the appellant poured kerosene on the body of Kalinda and set her on fire. Kalinda was first rushed to Sane Guruji Hospital. Thereafter, she was taken to Mastood Hospital. There the dying declaration (Exh - 25) of Kalinda was recorded by PW 8 Police Constable Jagtap. The said dying declaration was treated as FIR. Thereafter, PW 3 Nayab Tahsildar Mr. Genu recorded the dying declaration (Exh.- 15) of Kalinda. In both the dying declarations, Kalinda stated that the appellant poured kerosene on her and set her on fire. Kalinda was found to have 46% burn injuries. Kalinda died on 15.02.1999 i.e. ten days after the incident. The offence was converted from Section 307 to Section 302 of IPC. After completion of investigation, charge sheet came to be filed. 3. Charge came to be framed against the appellant under Sections 302 of IPC. 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 the appellant under Section 302 of IPC and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. 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 the appellant under Section 302 of IPC 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 Kalinda and set her on fire. 5. The conviction is mainly based on the evidence of PW 4 Farukh who is the son of Kalinda and step son of the appellant. Farukh was 10 years old at the time of the incident. PW 4 Farukh has stated that the appellant was the second husband of his mother. He along with his mother was staying with the appellant. On 05.02.1999, the appellant came home. He asked Rs. 20/- from Kalinda for liquor. Kalinda told him that she had no money, therefore, the appellant started abusing her and a quarrel ensued. In the course of the quarrel, the appellant poured kerosene on the body of Kalinda and set her on fire. Thus, the evidence of this witness shows that the appellant poured kerosene on his wife Kalinda and set her on fire. 6. Besides, the evidence of eye witness PW 4 Farukh, the prosecution is relying on two dying declarations i.e. Exh-15 and Exh-25. Dying declaration (Exh.-25) was recorded by PW 8 Police Constable Jagtap in the hospital. This dying declaration was treated as F.I.R. Thereafter, PW 3 Nayab Tahsildar Mr. Genu recorded the dying declaration (Exh-15) of Kalinda. In both the dying declarations, Kalinda stated that the appellant poured kerosene on her and set her on fire. 7. Mr. Khamkar submitted that the act of the appellant would not fall under Section 302 of IPC but it would at the most fall under Section 304-II of the IPC. He submitted that the appellant had no intention to cause death of Kalinda. In support of his contention, he has placed reliance on the evidence of PW 4 Farukh who is the son of deceased Kalinda. He submitted that the appellant had no intention to cause death of Kalinda. In support of his contention, he has placed reliance on the evidence of PW 4 Farukh who is the son of deceased Kalinda. Farukh has stated that immediately after the incident, the appellant took Kalinda to the hospital. That the deceased was taken by the appellant to the hospital is also borne out by the evidence of PW 7 Dr. Kashikar. PW 7 Dr. Kashikar has stated that he was attached to Sane Guruji Hospital. On 05.02.1999 at about 12.30 p.m., the patient i.e. Kalinda was brought by Haridas Kale (appellant) i.e. the husband of the patient. Thus, the evidence of PW 4 Farukh as well as the evidence of PW 7 Dr. Kashikar shows that immediately after the incident, the appellant rushed his wife Kalinda to the hospital. Moreover, on going through the evidence of PW 4 Farukh, it is revealed that the appellant poured water on his wife Kalinda and extinguished the fire. Mr. Khamkar further submitted that the incident had occurred during the course of a sudden quarrel and the fact that the appellant immediately threw water on the body of Kalinda and rushed her to the hospital, shows that he had no intention to kill his wife Kalinda. 8. No doubt, the evidence on record shows that it was the appellant who set Kalinda on fire. However, the pivotal question which arises in the facts and circumstances of this case is what is the nature of the offence proved against the appellant? It is an admitted fact that the appellant had a quarrel with his wife Kalinda. It is stated by PW 4 Farukh as well as it is reflected in the dying declaration (Exh-25). In the course of quarrel, the appellant set Kalinda on fire. However, immediately after Kalinda caught fire, the appellant poured water on her to save her and rushed her to the hospital. This conduct cannot be seen divorced from the totality of the circumstances. Very probably the appellant would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die, he would not have immediately thrown water on her and rushed her to the hospital in an effort to rescue her. Very probably the appellant would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die, he would not have immediately thrown water on her and rushed her to the hospital in an effort to rescue her. It is also to be borne in mind that Kalinda had sustained only 46% burn injuries and that she died 10 days after the incident. In view of the evidence on record, we are inclined to think that all that the accused thought of was to inflict burns and not kill her but unfortunately the situation slipped out of his control and it went to a fatal extent. Looking to the facts and circumstances, we are of the opinion that the case would fall under Section 304-II of IPC. We stand fortified in taking this view by the observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan reported in (2000) 10 SCC 324 on which Mr. Khamkar has placed reliance. In the said case also similar facts arose and the Supreme Court held that the case would not be covered by Section 302 of IPC but it would be covered by Section 304-II of IPC. 9. In view of the above facts and circumstances, we alter the conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. Hence, the following order:- ORDER i. Appeal is partly allowed. ii. The conviction and sentence of the Appellant under section 302 of IPC imposed by the learned 1st Ad-hoc Additional Sessions Judge, Pune vide judgment and order dated 26.09.2001 in Sessions Case No. 390 of 2000 is altered, instead the appellant is convicted under section 304-II of IPC and sentenced to suffer R.I. for ten years and fine of Rs.2000/- in default, R.I. for six months. The rest of the order is maintained. iii. Office to communicate this order to the concerned prison Authorities and to the Appellant who is in jail. iv. Writ of Order be expedited. Appeal partly allowed.