9. cri apeal 524-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 524 OF 2011
Hanumant Bhiva Chavan
Age - 37 Years,
R/o. Tambewadi, Tal. Malshiras,
District Solapur.
Presently detained at Yerawada Central
Prison, Pune. .. Appellant
(Org. Accused)
Versus
State of Maharashtra
Through Police Station Officer,
Natepute. .. Respondent
...................
Appearances
Ms. Ameeta Kuttikrishnan Advocate (appointed) for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : MARCH 29 & 30, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 13.4.2011 passed by the learned Ad-hoc Additional Sessions Judge, Malshiras in Sessions Case No. 9 of 2009. By the said jfoanz vkacsjdj 1 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 1000/-, in default R.I. for one year.
2. The prosecution case briefly stated, is as under:
(a) Deceased Vandana was the daughter of PW 2 Shivaji. Vandana was married to the appellant in the year 1998. The appellant was addicted to liquor and he suspected the fidelity of Vandana.
(b) The incident took place on 24.11.2008. On that day, the appellant came home in an intoxicated state. The appellant told Vandana that she should not live in the house. The appellant raised suspicion about the character of Vandana and he tried to assault her. The appellant then poured kerosene on Vandana and set her on fire.
Vandana sustained burn injuries. Vandana was
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taken to the hospital of Dr. Waghmode. PW 2 Shivaji, the father of Vandana was informed regarding admission of Vandana in the hospital. He went and met Vandana in the hospital. Vandana informed him that her husband had poured kerosene on her and set her on fire.
(c) In the hospital, PW 3 SEO Shri. Kalyani recorded the dying declaration of Vandana. The said dying declaration is at Exh. 23. Thereafter, PW 11 PHC Patil recorded the dying declaration of Vandana. The said dying declaration was treated as FIR (Exh. 62). Thereafter investigation commenced.
(d) Vandana was shifted from Waghmode Hospital which was situated in Natepute to Sassoon Hospital in Pune. There PW 7 ASI Kumbhar recorded the dying declaration of Vandana. The said dying declaration is at Exh. 40. In all the jfoanz vkacsjdj 3 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc three dying declarations, Vandana has stated that her husband i.e the appellant poured kerosene on her and set her on fire. Vandana expired on 30.11.2008.
(e) PW 6 Dr. Surwase conducted the postmortem on the dead body of Vandana. In the opinion of the Dr. Surwase, the cause of death was shock due to 77% burns. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against the appellant - original accused under Section 302 of IPC. The appellant- accused pleaded not guilty to the said charge and claimed to be tried. His defence was 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 paragraph 1 above, hence, this appeal.
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4. We have heard the learned Advocate for the appellant
and the learned APP. After giving our anxious consideration
to the facts and circumstances of the case, arguments advanced by the learned counsel 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 Vandana and set her on fire.
5. The conviction of the appellant is based on three dying declarations Exh. 23, Exh. 62 and Exh. 40. These dying declarations were recorded by PW 3 SEO Shri. Kalyani, PW 11 PHC Patil and PW 7 ASI Kumbhar respectively. In addition to the three dying declarations i.e Exh. 23, Exh. 62 and Exh. 40, the conviction is based on an oral dying declaration made by Vandana to her father i.e PW 2 Shivaji. PW 2 Shivaji has stated that Vandana was his daughter. She was married to the appellant in the year 1998. The appellant was addicted to liquor. The appellant was suspecting the fidelity of jfoanz vkacsjdj 5 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc Vandana and he used to assault her on that count. Shivaji has stated that on 24.11.2008, Dr. Waghmode (PW 5) telephoned him and informed him that his daughter had sustained burn injuries and she was admitted in his hospital. Dr. Waghmode asked Shivaji to come to the hospital to see Vandana. Hence, Shivaji went to Waghmode Hospital which was situated at Natepute. He saw that his daughter had sustained burn injuries. He made inquiry with his daughter how she had sustained burn injuries. She told him that her husband Hanumant came to the house at about 8 p.m. after consuming liquor and started quarreling with her suspecting her fidelity. At that time, she was filling kerosene in the stove. Her husband poured kerosene on her and set her on fire.
6. As stated earlier, there are three dying declarations on record. The first was recorded by PW 3 SEO Shri. Kalyani. Shri. Kalyani has stated that on 25.11.2008 at about 3.15 p.m., Natepute Police came to him and requested him to jfoanz vkacsjdj 6 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc record the dying declaration of a woman who was admitted in Dr. Waghmode Hospital as she had sustained burn injuries. Accordingly, Shri. Kalyani went to Dr. Waghmode Hospital to record the dying declaration of the woman. On going to the hospital, he met Dr. Waghmode (PW 5) and asked him whether the patient was mentally and physically fit to give a statement. Dr. Waghmode then examined the patient and told Shri. Kalyani that the patient was physically and mentally fit to give a statement. Shri. Kalyani also personally ascertained that the physical and mental condition of the patient was such that she could give her statement. Thereafter, he started recording the dying declaration of the patient. The patient told him that her name was Vandana Hanumant Chavan. She gave details regarding her age and education. Thereafter, Shri. Kalyani asked Vandana about the cause of receiving burn injuries whereupon she told him that her husband Hanumant Chavan poured kerosene on her and set her on fire. She also told him that her husband was suspecting her chastity and jfoanz vkacsjdj 7 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc hence, he set her on fire. The said dying declaration is at Exh. 23.
7. The second dying declaration (Exh. 62) of Vandana was recorded by PW 11 PHC Patil. He has stated that on 24.11.2008, he was attached to Natepute Police Station. At about 23.45 hours, their police station received intimation from the hospital of Dr. Waghmode regarding patient Vandana Chavan being admitted in the hospital as she had sustained burn injuries. PHC Patil immediately summoned the Special Executive Magistrate in the hospital of Dr. Waghmode. The Executive Magistrate Shri. Kalyani (PW 3) recorded the dying declaration of Vandana in the hospital. Thereafter, PHC Patil went to Waghmode Hospital. He reached there on 25.11.2008. PHC Patil consulted the medical officer on duty to ascertain as to whether the patient was mentally and physically fit to give a statement. The medical officer examined the patient and informed PHC Patil that the patient was physically and mentally fit to give a jfoanz vkacsjdj 8 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc statement. Accordingly, the medical officer put his endorsement in the margin of the blank sheet. Thereafter, PHC Patil recorded the statement of Vandana Chavan as per her narration. He read it over to her. Thereafter, he obtained her signature on the said statement. He too put his signature on the said statement. PHC Patil stated that again the medical officer (PW 5 Dr. Waghmode) examined the patient and certified that she was mentally and physically fit to give a statement. PHC Patil has stated that Vandana told him that her husband suspected her chastity and on that count set her on fire by pouring kerosene on her person. PHC Patil has categorically stated that at the time of recording the dying declaration, only he and the doctor were present at the bedside of Vandana. This dying declaration was treated as FIR (Exh. 62).
8. The dying declaration (Exh. 23) recorded by PW 3 SEO Shri. Kalyani and the dying declaration / FIR (Exh. 62) recorded by PHC Patil were recorded in the hospital of PW 5 Dr. Waghmode. Dr. Waghmode has corroborated that SEO jfoanz vkacsjdj 9 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc Shri. Kalyani came to his hospital for recording dying declaration of Vandana Chavan. Shri. Kalyani asked Dr. Waghmode whether the patient was physically and mentally fit to give a statement. Dr. Waghmode, therefore, examined the patient and opined that she was physically and mentally fit to give a statement. Thereafter, Shri. Kalyani recorded the dying declaration of Vandana in presence of Dr. Waghmode. Dr. Waghmode further stated that thereafter Natepute Police came to the hospital and expressed their intention to record the statement of Vandana. Dr. Waghmode, therefore, again examined Vandana Chavan and give his opinion that she was physically and mentally fit to give a statement. Accordingly, he put his endorsement thereon. Dr. Waghmode has identified his endorsements on both the dying declarations i.e Exh. 23 and Exh. 62.
9. The third dying declaration of Vandana was recorded by PW 7 ASI Kumbhar. ASI Kumbhar has stated that on 26.11.2008, he was attached to Bundgarden Police Station, jfoanz vkacsjdj 10 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc Pune and he was deputed at Sassoon Hospital outpost. He was informed about the patient Vandana Hanumant Chavan being admitted in Sassoon Hospital as she had sustained burn injuries. He, therefore, immediately went near the bed of Vandana Chavan. He consulted the medical officer (PW 10 Dr. Moon) on duty. The medical officer examined the patient and told ASI Kumbhar that the patient was physically and mentally fit to give a statement. Accordingly, the medical officer put his endorsement in the margin of the blank sheet. Thereafter, ASI Kumbhar recorded the statement of the patient. The patient told him that her husband had set her on fire as he was suspected her chastity. Thereafter, ASI Kumbhar read over the statement to the patient. He obtained thumb impression of the patient on her statement. He put his signature on the statement. Again the medical officer examined the patient and certified regarding her physical and mental fitness from beginning to end.
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10. The medical officer who gave endorsement was PW 10 Dr. Moon. Dr. Moon has stated that on 26.11.2008, he was attached to Sassoon Hospital in Pune. He was deputed in burns ward on that day. A patient by name Vandana Chavan was admitted in the burn ward on that day. The police came to him and expressed their intention to record the statement of Vandana Chavan. He, therefore, took the police to the bedside of the patient. At that time, only Dr. Moon, the police and the patient were present in the room. Dr. Moon examined the patient and found her physically and mentally fit to give a statement. Accordingly, he put his endorsement in the margin of the blank sheet on which the police recorded her statement. He identified the endorsement which is found at Exh. 53 on the dying declaration Exh. 40. Dr. Moon has further stated that thereafter the police recorded the statement of the patient. Police read over the statement to the patient. They obtained her signature on the statement. The policeman also signed on the statement. Thereafter, Dr. Moon again examined the jfoanz vkacsjdj 12 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc patient and made endorsement about her physical and mental fitness at the end of her statement. Dr. Moon has identified the second endorsement which is marked at Exh.
54. Thus, all the three dying declarations Exh. 23, Exh. 62 and Exh. 40 and the oral dying declaration made by Vandana to PW 2 Shivaji show that the appellant poured kerosene on Vandana and set her on fire due to which she sustained burn injuries. Nothing has been elicited in cross-examination of PW 2 Shivaji, PW 3 SEO Shri. Kalyani, PW 5 Dr. Waghmode, PW 7 ASI Kumbhar, PW 10 Dr. Moon and PW 11 PHC Patil to cause us to disbelieve their evidence. We find their evidence to be totally trustworthy and hence, we have no hesitation in relying on the same.
11. That Vandana died a homicidal death is seen from the evidence of PW 6 Dr. Surwase as well as the other evidence. Dr. Surwase is the doctor who conducted the postmortem on the dead body of Vandana. He has stated that in his opinion, the cause of death of Vandana Chavan was shock due to jfoanz vkacsjdj 13 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc 77% burns. This along with three dying declarations and oral dying declaration show that the death of Vandana was homicidal.
12. No doubt the evidence on record shows that it was the appellant who set his wife 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? Ms. Kuttikrishnan, the learned Advocate for the appellant submitted that the appellant had no intention to cause the death of his wife Vandana which is seen from the fact that after Vandana caught fire, the appellant extinguished the fire and took Vandana to the hospital. To show that the appellant extinguished the fire, Ms. Kuttikrishnan placed reliance on dying declaration Exh. 40. In this dying declaration, Vandana has stated that her husband poured water on her and extinguished the fire. Ms. Kuttikrishnan also drew our attention to the evidence of PW 5 Dr. Waghmode who has stated that it is true that the jfoanz vkacsjdj 14 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc appellant had also sustained burn injuries while extinguishing the fire. In order to show that the appellant took Vandana to the hospital, Ms. Kuttikrishnan placed reliance on the dying declaration Exh. 62 and on the evidence of PW 5 Dr. Waghmode and the investigating officer PW 9 PSI Nemane. We have perused the said dying declaration and the evidence of PW 5 Dr. Waghmode and PW 9 PSI Nemane. In the dying declaration Exh. 62, Vandana has stated that her husband took her in an auto rickshaw and admitted her in the hospital. PW 5 Dr. Waghmode has stated that the patient was brought to the hospital by her husband Hanumant Chavan. The investigating officer PSI Nemane has stated that it is true that the appellant shifted Vandana to the hospital. Thus, from the evidence discussed above, it is seen that after his wife caught fire, the appellant extinguished the fire and took his wife 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 jfoanz vkacsjdj 15 of 17 ::: Uploaded on - 07/04/2017 ::: Downloaded on - 27/08/2017 21:27:07 :::
9. cri apeal 524-11 (j).doc such a proportion that Vandana might die. If he had ever intended her to die, the appellant would not have immediately thrown water on her and extinguished the fire and thereafter, rushed her to the hospital in an effort to save her. It was obvious that the appellant realized his folly and was filled with remorse, therefore, he extinguished the fire and took Vandana to the hospital. In view of the evidence on record, we are inclined to think that all that the appellant thought of was to inflict burns and not to kill her but unfortunately the situation slipped out of control and it went to a fatal extent. Similar facts arose in the case of Kalu Ram Vs. State of Rajasthan1. In this case also, the accused had poured kerosene on his wife and set her on fire, however, on finding the flames flaring up, he poured water on her to save her. In the said case, the Supreme Court held that the case would not he covered by Section 302 of IPC but it would be covered under Section 304-II of IPC.
1 (2000) 10 SCC 324
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13. In view of the above facts and circumstances, the conviction of the appellant under Section 302 of IPC is set aside, instead, the appellant is convicted under Section 304-I of IPC and for the said offence, he is sentenced to rigorous imprisonment for 10 years and fine of Rs. 1000/-, in default R.I. for one year.
14. The conviction and sentence imposed by the learned Ad-hoc Additional Sessions Judge, Malshiras by Judgment and Order dated 13.4.2011 passed in Sessions Case No. 9 of 2009 is accordingly modified.
15. The appeal is allowed to the aforesaid extent.
16. The fees to be paid to the appointed Advocate Ms. Ameeta Kuttikrishnan are quantified at Rs. 10000/-.
[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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