CRIAPPEAL484-2015.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 484 OF 2015
Rakesh Ganga Singh
A/21, Choudhary Niwas Chawl,
Laxmi Nagar, Dharkhadi, Vaishali Nagar,
Dahisar (E), Mumbai. ...Appellant
Versus
The State of Maharashtra
(Through Dahisar Police Station in CR
No.405/2011). ...Respondent
Ms. Farhana Shah, Appointed Advocate for the Appellant.
Mr. S. R. Agarkar, APP for the State/Respondent.
CORAM: SMT. SADHANA S. JADHAV
& N. J. JAMADAR, JJ.
RESERVED ON : 18th December, 2020 PRONOUNCED ON: 7th January, 2021 JUDGMENT : (Per: N. J. Jamadar, J.)
1. This appeal is directed against the judgment and order dated 3rd February, 2015, passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.69 of 2012, whereby the appellant - accused came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 ('the Penal Code') and sentenced to suffer imprisonment for life and pay a fne of Rs.10,000/-, with default 1/22 CRIAPPEAL484-2015.DOC stipulation, for having committed murder of his wife Seema ('the deceased').
2. The background facts leading to this appeal can be stated in brief as under:
(a) The marriage of the deceased was solemnized with the accused prior to 20 years of the occurrence. They were blessed with four children; Disha (PW-1), a daughter, and three sons. They were residing at Choudhary chawl, Laxmi Nagar, Dharkhadi, Dahisar (East). The accused used to ply auto rickshaw. The accused was given in to the vice of consuming liquor and other intoxicating substances. On account of the addiction and the resultant refusal of the accused to provide for the household expenses to sustain the family, there were frequent quarrels between the accused and the deceased.
(b) On 19th December, 2011 at about 9.00 pm. the accused returned home. After dinner, the deceased requested the accused to give money for the expenses. The accused got enraged and started to abuse the deceased. As the quarrel escalated the accused assaulted the deceased by means of fst blows and uttered that the deceased deserved to be set ablaze. In the rage, the accused took up a can containing the kerosene 2/22 CRIAPPEAL484-2015.DOC and doused the deceased with kerosene. Thereafter, the accused set the deceased on fre by igniting the match stick. The deceased caught fre and ran out of the house raising alarm. The neighbours attempted to extinguish the fre and, thereafter, shifted the deceased to Bhagwati Hospital. The accused fed away from the spot.
(c) Upon intimation, Mr. Shankar Khatke (PW-12); the then PSI Dahisar Police Station, reached Bhagvati Hospital. Requisition was sent to Special Executive Magistrate, Mrs. Jayashree Ashok Patel (PW-8) to record the statement of the deceased. Upon arrival of Mrs. Patel (PW-8), the Medical Offcer, was requested to examine the deceased and certify her ftness to give the statement. Mr. Harshwardhan Shirsat (PW-7), the Medical Offcer then attached to Bhagwati Hospital, examined the deceased at about 1.50 am. on 20 th December, 2011 and found the deceased ft to give the statement. Thereupon Mrs. Patel (PW-8) recorded the statement of the deceased as per the latter's narration. The deceased stated that a quarrel broke out over the demand of money for running the household, the accused poured kerosene on her person and set her on fre, resulting in burn injuries.
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(d) On the strength of the said statement (Exhibit-27) crime was registered at CR No.405 of 2011 at Dahisar Police Station initially for the offences punishable under Sections 504, 323 and 307 of the Penal Code. During the course of investigation, Mr. Shankar Khatke (PW-12); the Investigating Offcer, visited the scene of occurrence and drew panchnama. The incriminating articles including partly burnt quilt, saree, inner wear, a plastic can, match box, burnt and live match sticks, were seized under panchnama (Exhibit-16). The Investigating Offcer interrogated the witnesses and recorded their statements. A requisition was also sent to the Executive Magistrate to record the statement of the deceased. Smt. Rekha Harchekar (PW-6); the then Nayab Tahsildar, Borivali, visited Bhagwati Hospital on 20th December, 2011 and recorded the statement of the deceased, post certifcation of ftness by the Medical Offcer.
(e) The deceased succumbed to the injuries on 24 th December, 2011. Postmortem examination was conducted. Postmortem report (Exhibit-38) was obtained. The accused came to be arrested. The medical examination of the accused revealed that there were burn marks on both hands of the accused. The investigation revealed the complicity of the 4/22 CRIAPPEAL484-2015.DOC accused for the offence punishable under Section 302 of the Penal Code. Thus, report under Section 173 of the Code of Criminal Procedure ('the Code') was lodged in the Court of the jurisdictional Magistrate.
(f) Upon committal, charge was framed against the accused for the offence punishable under Section 302 of the Penal code. The accused abjured his guilt and claimed for trial.
(g) At the trial, the prosecution examined 15 witnesses; the material witnesses are Disha Rakesh Singh (PW-1); the daughter of the deceased and accused, Farah Mushrat Ansari (PW-3); a neighbour and the eye witness, Javetri Phoolchand Mishra (PW-5); another eye witness, Jayashree Patel (PW-8); the Special Executive Magistrate, who had recorded the frst dying declaration (Exhibit-27), Rekha Rajiv Harchekar (PW-6); who had recorded the second dying declaration (Exhibit-21), Dr. Harshwardhan Shrikrishna Shirsat (PW-7); who had certifed the ftness of the deceased to make frst dying declaration on 20th December, 2011, Dr. Avinash Pandrikar (PW-13); another Medical Offcer attached to Bhagvati Hospital, who professed to identify the signature of Dr. Tushar Pawar, who had made endorsement (Exhibit-40) on the second dying declaration to 5/22 CRIAPPEAL484-2015.DOC certify the ftness of the deceased, Dr. Palakraj Kamwani (PW-9); who had examined the accused on 20 th December, 2011 and Mr. Shankar Khatke (PW-12); the Investigating Offcer, who had carried out substantial investigation. After closure of the prosecution evidence, the accused was examined under Section 313 of the Code. The accused did not lead any evidence in his defence which was of denial and false implication.
(h) After evaluation of the evidence the learned Additional Sessions Judge was persuaded to enter a fnding of guilt against the accused. The learned Additional Sessions Judge was of the view that the dying declarations were free from infrmities and inspired confdence. Moreover, the evidence of eye witnesses, especially Disha (PW-1), the daughter of the deceased, was convincing and reliable. Thus, the accused was convicted for the offence punishable under Section 302 of the Penal Code and sentenced, as indicated above.
3. Being aggrieved by and dissatisfed with the impugned judgment and order the accused is in appeal.
4. We have heard Ms. Farhana Shah, the learned Counsel, who has been appointed to espouse the cause of the appellant, and Mr. Agarkar, the learned APP for the State, at 6/22 CRIAPPEAL484-2015.DOC length. With the assistance of the learned Counsels we have perused the evidence and material on record.
5. Assailing the impugned judgment, Ms. Shah, the learned Counsel for the appellant, would urge that the learned Sessions Judge committed an error in placing reliance on the testimony of Disha (PW-1), the daughter of the deceased. A close scrutiny of her evidence, according to Ms. Shah, would indicate that Disha (PW-1) had not witnessed the actual occurrence. The evidence of Farah Ansari (PW-3) and Javetri Mishra (PW-5), the alleged neighbours of the deceased, also suffers from the taint of unreliability as they had no opportunity to witness the occurrence. The dying declarations (Exhibits 21 and 27) recorded by Rekha Harchekar (PW-6) and Jayashree Patel (PW-8), respectively, suffer from material infrmities and thus the learned Sessions Judge ought not to have placed implicit reliance on those dying declarations. On the aforesaid premise, Ms. Shah strenuously urged that both planks of evidence, namely, the ocular account, formed by the testimony of Disha (PW-1), Farah Ansari (PW-3) and Javetri Mishra (PW-5), and the dying declarations, sought to be proved by examining Rekha Harchekar (PW-6) and Jayashree Patel (PW-8) and the medical 7/22 CRIAPPEAL484-2015.DOC offcers, are extremely fragile and thus do not sustain the guilt of the accused.
6. Per contra, Mr. Agarkar, the learned APP, stoutly submitted that the guilt of the accused is established beyond the shadow of doubt. Disha (PW-1) was the most natural witness. The presence of Farah Ansari (PW-3) and Javetri Mishra (PW-5) to witness the occurrence is also unquestionable. To add to this, the dying declarations (Exhibits 21 and 27) which were duly recorded by the Magistrates, post certifcations of ftness by the medical offcers, seal issue. Thus the appeal is devoid of substance, urged Mr. Agarkar.
7. The nature of death which the deceased met is not much in dispute. Dr. Harwardhan Shirsat (PW-7) informed the court that the deceased was brought at Bhagwati Hospital on 19 th December, 2011 and he had examined her at 11.58 pm. The deceased had narrated the history to the effect that there was a quarrel with the accused and the latter had doused her with kerosene and set her on fre. Dr. Shirsat (PW-7) claimed to have noted 50% to 60% superfcial to deep thermal burn injuries. The case papers (Exhibit-24) came to be proved in the evidence of Dr. Shirsat (PW-7).
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8. It would be contextually relevant to note that the postmortem report (Exhibit-38) reveals that the deceased had sustained 60% superfcial to deep thermal burn injuries, as under:
Head, face, neck = 09%
Rt. Upper limb = 05%
Lt. Upper limb = 04%
Ant. Trunk = 15%
Post trunk = 15%
Perineum = 01%
Rt. Lower limb = 07%
Lt. Lower limb = 04%
-----------------------------------------
Total = 60%
----------------------------------------- It was opined that the cause of death was septicemia following 60% superfcial to deep thermal burns (unnatural).
9. At this juncture, recourse to the testimony of Disha (PW-1), the daughter of the deceased would be apposite. Disha (PW-1) deposed that at the time of the occurrence she was studying in 5th standard. On the night of occurrence her brothers were asleep. The deceased picked up Rs.200/- out of the money offered to the idol by the accused. The latter was thus enraged. The accused poured kerosene on the person of 9/22 CRIAPPEAL484-2015.DOC the deceased and set her on fre by igniting the match stick. Her neighbours extinguished the fre.
10. During the course of cross-examination of Disha (PW-1) an endeavour was made to bring home the point that her parents used to quarrel frequently. It was the practice of the accused to offer the entire earnings of the day to the idol, and thereafter give some amount to the deceased for expenses. On the night of occurrence also the accused had offered the entire earnings to the idol. Disha (PW-1) however did not cave in to the suggestion that she was also asleep and thus did not witness the occurrence.
11. A faint attempt was made in the cross-examination of Disha (PW-1) to demonstrate that the deceased was short- tampered and used to rake up quarrels with the neighbours and had threatened to commit suicide. Though Disha (PW-1) conceded that the hands of the accused were also burnt in the incident, nothing could elicited further to show that the deceased met a suicidal death.
12. The situation which thus obtains is that there is evidence to indicate that the deceased had herself narrated the history of having been set her on fre by the accused post quarrel. 10/22
CRIAPPEAL484-2015.DOC Disha (PW-1), an unfortunate daughter, who was called upon to depose against her father, accused of having committed murder of her mother, categorically affrmed that the deceased was set on fre by the accused. The presence of Disha (PW-1) at the place and time of occurrence can hardly be questioned. In the circumstances, a half-baked and gratuitous suggestion that the deceased met suicidal death does not merit countenance. The weight of evidence, on the other hand, sustains the only inference that the deceased met a homicidal death.
13. On the aspect of authorship of death, the evidence of Disha (PW-1) fnds unfinching corroboration in the testimony of Farah Ansari (PW-3) and Javetri Mishra (PW-5). Farah Ansari (PW-3), the neighbour of the deceased, lends support to the claim of Disha (PW-1) that on the night of occurrence she had heard the noise of quarrel emanating from the house of the deceased. Later on, she heard the cries of the deceased bachao bachao (save, save). She came out of her house and found the deceased in an engulfed state and tried to extinguish the fre by pouring water. The deceased informed her that the accused doused her with kerosene and set her on fre. Nothing material could be elicited in the cross-examination of Farah Ansari (PW-3).
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14. Javetri Mishra (PW-5), another neighbour of the deceased, was in unison with Farah Ansari (PW-3). She claimed to have heard the accused abuse the deceased and threaten to set her on fre by uttering the words, "sali, jala dunga". She claimed to have further witnessed the accused pouring kerosene on the person of the deceased and setting her on fre. It was elicited in the cross-examination of Javetri Mishra (PW-5) that her house is at the distance of 7 ft. from the house of the deceased. She further conceded that when the quarrel between the accused and the deceased was going on, the residents were standing near the house of the deceased.
15. The evidence of Farah Ansari (PW-3) and Javetri Mishra (PW-5) is required to be appreciated in the backdrop of the fact that the accused and the deceased were residing in a single room tenement in a densely populated chawl. There is evidence to indicate that the marital life of the deceased and accused was afficted by discord on account of refusal of the accused to provide enough money to meet the household expenses. There were frequent quarrels between the accused and the deceased. In this setting of the matter, the claim of the witnesses that they had heard the noise emanating from the house of the deceased on account of quarrel between the accused and the deceased 12/22 CRIAPPEAL484-2015.DOC and thus they were drawn towards the house of the deceased cannot be said to be unbelievable. We do not fnd any justifable reason to discard the claim of Farah Ansari (PW-3) and Javetri Mishra (PW-5).
16. In addition to the ocular account, the dying declarations made by the deceased nail the accused in clear and categorical terms. Jayashree Patel (PW-8), who had recorded the frst dying declaration within hours of the deceased having been admitted in Bhagwati Hospital, informed the Court that pursuant to the requisition by police she had reached Bhagwati hospital at about 1.00 am. on 20th December, 2011. She requested the Medical Offcer to examine the deceased and certify her ftness to give the statement. The Medical Offcer examined the deceased and declared her ft to give the statement. Thereupon Jayashree Patel (PW-8) herself ascertained the condition of the deceased and found her in a sound state to make the statement. Jayashree Patel (PW-8) wants the Court to believe that the deceased had stated before her that on the night of occurrence when she demanded money from the accused for the household expenses there was a quarrel and thereupon the accused doused her with kerosene and set her ablaze by lighting a match 13/22 CRIAPPEAL484-2015.DOC stick. She ran out of the house and her neighbours brought her to Bhagwati Hospital.
17. Dr. Harshwardhan Shirsat (PW-7) lends support to the claim of Jayashree Patel (PW-8). He claimed to have examined the deceased at 1.50 am. and found that the deceased was in a state to give the statement. The endorsement (Exhibit-23) on the dying declaration (Exhibit-27) came to be proved in the evidence of Dr. Harshwardhan Shirsat (PW-7).
18. It is imperative to note that the claim of Jayashree Patel (PW-7) of having found the deceased in a ft condition to give the statement and, thereafter, recorded her statement (Exhibit-27) could not be impeached during the course of her cross- examination. Nor anything could be brought out in the cross- examination of Dr. Shirsat (PW-7) to erode his claim that he had certifed the ftness of the deceased to make the statement.
19. The second dying declaration was recorded by Rekha Harchekar (PW-6), the then Nayab Tahasildar, Borivali, pursuant to the requisition by the Investigating Offcer. She claimed to have visited Bhagwati Hospital on 20th December, 2011 and requested the Medical Offcer to examine and certify the ftness of the deceased. Post certifcation of ftness, Rekha 14/22 CRIAPPEAL484-2015.DOC Harchekar (PW-6) satisfed herself about the sound state of the deceased and thereafter recorded the statement (Exhibit-21). The second dying declaration (Exhibit-21) also proceeds on the line of the frst dying declaration (Exhibit-27) on the vital aspects of the cause of injury and the authorship thereof.
20. Though Ms. Shah made a strenuous effort to point out certain variances in the frst and the second dying declaration, yet, in our view, those variances are not signifcant and do not detract materially from the truthfulness and reliability of the dying declarations.
21. It is trite law that if the dying declaration is found to be truthful and made in a sound state of mind, it can form the sole basis of conviction. The mode and manner of recording of dying declaration are not of decisive signifcance. It is not an invariable rule of law that the dying declaration must be recorded by and before the Magistrate. Nor the certifcation of ftness by the medical offcer is peremptory, in all the cases. A certifcation by the doctor is essentially a rule of caution. In the case at hand, evidently, the dying declarations are recorded by the competent Magistrates. The medical offcers have certifed the ftness of the deceased to make those declarations. The 15/22 CRIAPPEAL484-2015.DOC testimony of Rekha Harchekar (PW-6) and Jayashree Patel (PW-
8) indicates that the deceased was in a sound state of mind to make the declaration. Dr. Shirsat (PW-7) lends further support to the claim of the above witnesses by affrming that he had recorded the history as narrated by the deceased which was in conformity with the dying declarations. We do not fnd any justifable reason to jettison away the dying declarations.
22. In the totality of the circumstances, the ocular account of Disha (PW-1) lends unwavered corroboration to dying declarations made by the deceased. We are thus persuaded to hold that the prosecution has succeeded in establishing that the accused had set the deceased on fre.
23. Ms. Shah, the learned Counsel for the appellant, canvassed a submission that even if the prosecution succeeded in establishing the authorship of the homicidal death, yet, the accused could not have been convicted for the offence punishable under Section 302 of the Penal Code. Elaborating the submission, it was urged that the material on record unmistakably indicates that the incident had occurred in a spur of the moment in a sudden quarrel. The deceased provoked the accused. The latter had, in fact, sustained injuries while 16/22 CRIAPPEAL484-2015.DOC extinguishing the fre. Thus, the proved facts would take the case out of the purview of murder punishable under Section 302 of the Penal Code.
24. Mr. Agarkar, the learned APP, on the other hand, urged that the very fact that the accused had poured kerosene on the person of the deceased and set her on fre betrays a clear intention on the part of the accused to commit the murder of the deceased.
25. Upon perusal of the impugned judgment, we get an impression that the learned Sessions Judge after fnding that the accused was the perpetrator of the act of setting the deceased on fre, did not advert to the question as to whether the said act would amount to "murder" or "culpable homicide not amounting to murder", in a proper perspective. The question was determined in a single sentence by observing that "it was purely a case of murder". The learned Sessions Judge ought to have embarked upon an enquiry as to whether the proved facts fall within any of the Exceptions to Section 300 of the Penal Code. For if the case comes within any of the Exceptions enumerated in Section 300, the offence would be, "culpable 17/22 CRIAPPEAL484-2015.DOC homicide not amounting to murder', punishable under Section 304 of the Penal Code.
26. In the facts of the case, in our view, the applicability of the Fourth Exception namely death in a sudden fght warrants consideration. For applicability of Exception 4, the following conditions must be satisfed namely,
(i) A sudden fght;
(ii) No premeditation;
(iii) Act was done in a heat of passion and
(iv) The assailant did not take any undue advantage or
act in a cruel manner.
27. On the aforesaid touchstone, reverting to the facts of the case, the evidence on record indicates that the quarrel ensued between the accused and the deceased over providing money for household expenses. Disha (PW-1) affrmed that the accused got enraged as the deceased picked up a sum of Rs.200/- out of the money offered by the accused to the idol. It is imperative to note that in the dying declarations (Exhibits 21 and 27) the deceased had categorically asserted that after altercation the accused started to beat her by fst. The accused even uttered the words that deceased should be set on fre. What is of critical signifcance is the statement of the deceased, in the frst 18/22 CRIAPPEAL484-2015.DOC dying declaration (Exhibit-27), that after hearing the said threat, the deceased provoked the accused by asking him to set her on fre by uttering the words, "dal de, dal de, jala de, mar de" (pour it, pour it, set ablaze, kill me). Whereupon the accused had poured the kerosene from the can and set her on fre. As indicated above, Disha (PW-1) conceded in the cross- examination that the accused had also sustained burn injuries on his hands. The said assertion gets corroboration in the evidence of Dr. Palakraj Kamwani (PW-9), who had found 3% burn injuries on both hands of the accused, on 20 th December, 2011.
28. The aforesaid circumstances cumulatively indicate that the incident had occurred on the spur of the moment. The quarrel had broken out over picking up the money offered to the idol. The act was done in a heat of passion as the accused lost power of self-control. The frst dying declaration (Exhibit-27) indicates that the deceased had provoked the accused by challenging him to carry out the threat to set her ablaze. Conversely, there is no material to show that the accused took any undue advantage or acted in a cruel manner. The fact that the accused had sustained burn injuries, lends credence to his claim that he tried to extinguish the fre. All these facts, if 19/22 CRIAPPEAL484-2015.DOC construed in conjunction, sustain an inference that there was no premeditation.
29. An useful reference, in this context can be made to a judgment of the Supreme Court in the case of Devendrappa Yamanappa Biradar vs. The State of Karnataka (Criminal Appeal No.2485 of 2009), wherein the Supreme Court had observed as under:
"The evidence on record discloses that the appellant was addicted to alcohol which was the reason for the constant bickering between the appellant and the deceased. There is evidence to show that at the time of the incident, the appellant was in an inebriated condition and during the fght which he had with the deceased, he poured the kerosene on the decesaed and set her on fre. The evidence further shows that he immediately tried to save her by pouring water and he was the one who took the deceasd to the hospital.
We have carefully examined the oral and documentary evidence from the record. The evidence discloses the fact that the appellant was drunk. He committed the offence whilst being deprived the power of self control by grave and sudden provocation. Therefore, the culpable homicide is not murder. Consequently, we are of the opinion that the appellant does not deserve to be convicted under Section 302 of IPC. Instead, he is convicted under Section 304 Part I of IPC and sentenced to undergo 10 years imprisonment."
(emphasis supplied)
30. A reference can also made to the judgment of the Supreme Court in the case of Yomeshbhai Pranshankar Bhatt vs. State of Gujarat1, wherein the appellant accused had gone to the house of the deceased, who was working as maid and refused to join her work at the house of the accused. As an altercation ensued, 1 AIR 2011 SC 2328.
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CRIAPPEAL484-2015.DOC the appellant picked up the kerosene can, emptied it on the deceased and lit the match stick. The Supreme Court, in the facts of the said case, held that there was no premeditation to kill the deceased or cause any bodily harm or injury to the deceased. Everything had happened on the spur of the moment. The appellant must have lost self-control on some provocative utterances of the deceased.
31. In the light of the aforesaid legal position, reverting to the facts of the case, in our view, the Exception 4 to Section 300 will come into play. However, since the accused had poured kerosene on the person of the deceased and set her ablaze, we are persuaded to hold that the accused had requisite intention to cause the burn injuries. Thus, in our view, the act of the accused would fall within the dragnet of Section 304 Part I of the Penal Code. Having regard to the period of imprisonment already undergone by the accused and the entire gamut of the circumstances, including the situation in life of the accused, we are of the view that, a sentence of rigorous imprisonment for 10 years would meet the ends of justice.
32. The conspectus of the aforesaid consideration is that the appeal deserves to be partly allowed. Hence, the following order. 21/22
CRIAPPEAL484-2015.DOC :Order:
(a) The appeal stands partly allowed.
(b) The impugned judgment of conviction and sentence
for the offence punishable under Section 302 of the Penal Code stands set aside.
(c) The appellant - accused Rakesh Ganga Singh stands acquitted of the offence punishable under Section 302 of the Penal Code.
(d) The appellant - accused Rakesh Ganga Singh stands convicted for the offence punishable under Section 304 Part I of the Penal Code.
(e) The appellant - accused Rakesh Ganga Singh is sentenced to suffer rigorous imprisonment for 10 years and pay a fne of Rs.5000/- (Rupees Five thousand) and in default of payment of fne suffer further simple imprisonment for two months.
(f) The appellant accused is entitled to set off under Section 428 of the Code.
[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.] Digitally signed by V. S.
V. S. Parekar
Parekar Date:
2021.01.07
15:24:45
+0530
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