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2014 DIGILAW 2055 (BOM)

Prakash Yuvraj Sonawane v. State of Maharashtra

2014-09-24

A.R.JOSHI, V.K.TAHILRAMANI

body2014
JUDGMENT V.K. Tahilramani, J. 1. The appellant/original accused has preferred this appeal against the judgment and order dated 22nd February, 2012 passed by the learned Additional Sessions Judge. Nashik in Sessions Case No. 222 of 2011. By the said judgment and order, the learned Sessions Judge has convicted the appellant under Sections 302, 498A and 323 of IPC. For the offence punishable under Section 302 of IPC, the appellant was sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default RI for one year. For the offence punishable under Section 498A of IPC, the appellant was sentenced to RI for one year and fine of Rs. 1000/- in default RI for six months and for the offence punishable under Section 323 of IPC, the appellant was sentenced to RI for one year. The prosecution case briefly stated is as under: "(i) Deceased Jyoti was the daughter of PW-1 Ashabai and PW-2 Ajay. Jyoti was married to the appellant about five years prior to the incident. The appellant and Jyoti had two daughters. Elder daughter Nutan was aged about two years and younger daughter Pooja was aged about 7 months. Jyoti was residing along with her husband and her two children at Kuregaon, Taluka - Igatpuri. The parents of Jyoti were residing at Shirud, District - Dhule. The appellant was suspecting the character of Jyoti. On this count he used to ill-treat and assault her. Jyoti used to inform these facts to her mother Ashabai as well as her father Ajay. (ii) The incident occurred on 7.4.2011 at about 8:00 a.m.. On that day, Nutan the elder daughter of Jyoti and the appellant passed excreta in the house. As Jyoti did not clean the excreta immediately, the appellant got angry and started abusing her. He assaulted her by kick and fist blows. The appellant then took up a can of kerosene and poured it on Jyoti and set her on fire. Jyoti was taken to the hospital. Her parents were informed and hence they rushed to the hospital. In the hospital, dying declaration of Jyoti (Exhibit-23) came to be recorded by PW-6 API Tamane. Said dying declaration was treated as FIR. Another dying declaration (Exhibit-21) of Jyoti came to be recorded by Special Executive Magistrate Ms. Rajashree Ahirrao. In both the dying declarations (Exhibits-21 and 23). Her parents were informed and hence they rushed to the hospital. In the hospital, dying declaration of Jyoti (Exhibit-23) came to be recorded by PW-6 API Tamane. Said dying declaration was treated as FIR. Another dying declaration (Exhibit-21) of Jyoti came to be recorded by Special Executive Magistrate Ms. Rajashree Ahirrao. In both the dying declarations (Exhibits-21 and 23). Jyoti stated that the appellant poured kerosene on Jyoti and set her on fire. Jyoti expired on 11.4.2011. (iii) The postmortem was conducted by PW-3 Dr. Arun Pawar. He found that Jyoti had sustained 92% burn injuries and Jyoti had died due to shock due to 92% burns. After completion of investigation, the charge-sheet came to be filed. In due course, the case was committed to the Court of Sessions." 2. Charge came to be framed against the appellant under Sections 302, 498A, 323, 504and 506 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 and sentenced the appellant as stated in para-1 above, hence, this appeal. 3. We have heard the learned Advocate for the appellant and the learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, we are of the opinion that the appellant poured kerosene on his wife Jyoti and set her on fire which led to her death. 4. The conviction is mainly based on the two dying declarations Exhibit-21 and Exhibit-23. Dying declaration (Exhibit-21) was recorded by PW-5 Special Executive Magistrate Ms. Ahirrao and dying declaration (Exhibit-23) was recorded by PW-6 API Tamane. In addition to these two dying declarations (Exhibits-21 and 23), the prosecution is relying on two oral dying declarations made by Jyoti to her mother PW-I Ashabai and her father PW-2 Ajay. 5. PW-1 Ashabai has stated that her daughter was married to the appellant about five years prior to the incident. They had two children. Jyoti along with her husband and children was residing at Kuregaon. Taluka -Igatpuri. Jyoti used to tell Ashabai that her husband i.e. the appellant used to suspect her character and due to this he used to assault her. They had two children. Jyoti along with her husband and children was residing at Kuregaon. Taluka -Igatpuri. Jyoti used to tell Ashabai that her husband i.e. the appellant used to suspect her character and due to this he used to assault her. Ashabai has stated that she received a telephone call informing that her daughter Jyoti had sustained burn injuries and was admitted in the Civil Hospital at Nashik. Hence, she met Jyoti in the hospital. Jyoti told her that her elder daughter passed excreta in the house and because Jyoti did not clean it immediately, the appellant poured kerosene on Jyoti and set her on fire. Ashabai has stated that Jyoti expired on 11.4.2011. The evidence of PW-2 Ajay is on similar lines as that of PW-1 Ashabai. The evidence of both these witnesses shows that the appellant used to suspect the character of Jyoti and used to ill-treat and assault her on this count. The evidence of both these witnesses also shows that Jyoti told them that the appellant poured kerosene on her and set heron fire. 6. It is the prosecution case that the appellant poured kerosene on Jyoti and set her on fire. This is supported by the medical evidence. PW-3 Dr. Pawar conducted the postmortem on the dead body of Jyoti. He has stated that Jyoti received 92% burn injuries and she died due to shock due to 92% burns. 7. As stated earlier, the prosecution is mainly relying on the dying declarations Exhibits-21 and 23. PW-5 SF.M Ms. Ahirrao recorded the dying declaration Exhibit-21. She has stated that she went to the Civil Hospital, Nashik to record the dying declaration of Jyoti. She went to the Medical Officer and made enquiry whether the patient is conscious to give her statement. The doctor examined Jyoti and gave a certificate. The certificate shows that the patient was conscious and in a condition to give statement. Then PW-5 SEM Ms. Ahirrao introduced herself to the patient and told her that she has come to record her dying declaration. Ms. Ahirrao asked Jyoti whether she knows Marathi, to which Jyoti replied in the affirmative. Then Ms. Ahirrao asked Jyoti some preliminary questions which Jyoti replied. Then Ms. Ahirrao asked Jyoti how she had sustained burn injuries. Then PW-5 SEM Ms. Ahirrao introduced herself to the patient and told her that she has come to record her dying declaration. Ms. Ahirrao asked Jyoti whether she knows Marathi, to which Jyoti replied in the affirmative. Then Ms. Ahirrao asked Jyoti some preliminary questions which Jyoti replied. Then Ms. Ahirrao asked Jyoti how she had sustained burn injuries. Jyoti told that only both of them i.e. Jyoti and the appellant were in the house and her husband set her on fire. Jyoti told that her husband then extinguished the fire and brought her to the hospital. The evidence of PW-6 API Tamane is on similar lines as that of PW-5 SEO Ms. Ahirrao. API has deposed about recording of the dying declaration Exhibit-23. 8. Ms. Dandekar, the learned Advocate for the appellant submitted that the act of the appellant of setting Jyoti on fire would not fall under Section 302 of IPC and it would at the most fall under Section 304 Part II of IPC. She submitted that the appellant had no intention to cause death of Jyoti. In support of her contention, Ms. Dandekar placed reliance on the dying declarations Exhibits-21 and 23 and the evidence of PW-5 SEM Ms. Ahirrao. Ms. Dandekar pointed out that in dying declaration Exhibit-21 Jyoti after stating that her husband set her on tire has stated that her husband extinguished the fire and then brought her to the hospital. In dying declaration Exhibit-2.3 also Jyoti has stated that her husband extinguished the tire and brought her to Nashik Civil Hospital. In dying declaration Exhibit-23 Jyoti has further stated that while extinguishing the fire her husband had also sustained burn injuries. Ms. Dandekar further drew our attention to the evidence of PW-5 SEM Ms. Ahirrao who has stated that Jyoti told her that her husband set her on fire and then he extinguished the tire and brought her to the hospital. Ms. Dandekar further submitted that the incident had occurred during the course of a sudden quarrel and the fact that the appellant immediately extinguished the fire and rushed Jyoti to the hospital shows that he had no intention to kill his wife Jyoti. Ms. Ms. Dandekar further submitted that the incident had occurred during the course of a sudden quarrel and the fact that the appellant immediately extinguished the fire and rushed Jyoti to the hospital shows that he had no intention to kill his wife Jyoti. Ms. Dandekar pointed out and rightly so that evidence on record shows that a sudden quarrel took place because two year old Nutan who was the daughter of Jyoti and the appellant passed excreta and Jyoti did not clear up the same immediately, hence, the appellant got angry and started abusing and assaulting Jyoti and immediately thereafter the appellant poured kerosene on Jyoti and set her on lire. However. as stated earlier, the appellant extinguished the fire and rushed Jyoti to the hospital. 9. No doubt the evidence on record shows that it was the appellant who set Jyoti 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 as far as the act of setting Jyoti on fire is concerned. The evidence shows that the appellant had a quarrel with his wife Jyoti. Thereafter he set her on fire. However immediately after Jyoti caught fire, the appellant extinguished the fire 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 escalate to such a proportion that Jyoti might die. If the appellant had ever intended Jyoti to die, he would not have immediately extinguished the fire and rushed her to the hospital in an effort to rescue her. 10. 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 Jyoti but unfortunately the situation slipped out of control and it went to a fatal extent. In such case in our opinion the case would fall under Section 304 Part-II of IPC. We stand fortified in taking this view by the observations of the Supreme Court in the case of Kalu Ram v. State of Rajasthan: (2000) 10 SCC 324 . In such case in our opinion the case would fall under Section 304 Part-II of IPC. We stand fortified in taking this view by the observations of the Supreme Court in the case of Kalu Ram v. State of Rajasthan: (2000) 10 SCC 324 . 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 Part II of IPC. 11. It is noticed that the appellant has also been convicted for the offence punishable under Section 323 of IPC. Apparently the learned Sessions Judge has convicted the appellant under this section because during the course of the incident the appellant had assaulted Jyoti with kick and fist blows. However, it is seen that thereafter the appellant has set Jyoti on fire. This is part of the same incident i.e. part of the same transaction hence in such case for the very same transaction two separate convictions cannot be given and the conviction can be given only for the greater offence i.e. 302 of IPC in this case. Had the appellant assaulted some other person in the course of the same incident with kick and fist blows then the conviction could have been maintained under Section 323 of IPC. however, as the appellant assaulted Jyoti by kick and fist blows and immediately thereafter set her on fire, he cannot be convicted under Section 323 as well as Section 302 of IPC. In this view of the matter, the conviction of the appellant under Section 323 of IPC deserves to be set aside. 12. In view of the above facts and circumstances, the conviction and sentence of the appellant under Section 323 of IPC is set aside. The conviction and sentence of the appellant under Section 498A of IPC is maintained. As far as offence under Section 302 of IPC is concerned, we alter the conviction of the appellant from Section 302 to Section 304Part II of IPC. For the said offence, in our opinion, sentence of imprisonment of six years RI with fine amount of Rs. 2,000/- in default RI for three months meets the ends of justice. The substantive sentences of imprisonment shall run concurrently. For the said offence, in our opinion, sentence of imprisonment of six years RI with fine amount of Rs. 2,000/- in default RI for three months meets the ends of justice. The substantive sentences of imprisonment shall run concurrently. The conviction and sentence imposed by the learned Sessions Judge by judgment and order dated 22nd February, 2012 passed in Sessions Case No. 222 of 2011 is accordingly modified. 13. The appeal is allowed to the aforesaid extent. 14. Office to communicate this order to the appellant and the Jail Superintendent in which Jail, the appellant is lodged. We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Counsel Ms. Rohini Dandekar at Rs. 5,000/-.