Kisan vs State Of Maharashtra
2002 Latest Caselaw 1072 Bom

JUDGMENT

R.K. Batta, J.

1. The appellant was tried for the murder of his wife under Section 302 of I.P.C. The prosecution, in all, had examined 10 witnesses. The Trial Court by judgment dated 12.11.1997, which is the subject-matter of this appeal, held the appellant guilty under Section 302 of I.P.C. and sentenced the appellant to undergo life imprisonment as also fine of Rs. 3,000/-, in default R.I. for one month. The appellant was in detention in connection with this case from 4.11.1996, which was ordered to be set off under Section 428, Cr.P.C.

2. The prosecution case, in brief, is that the appellant and the deceased were married for about 22 years. On 3.11.1996 at about 2.00 p.m., the appellant was demanding money for liquor from his deceased wife, who was reluctant to give money, upon which, the appellant beat his wife and poured kerosene on her person and set her on fire, as a result of which, she suffered 93% burns. The incident was witnessed by Sushila, P.W. 6, who stays just opposite to the house of the appellant. The deceased made oral dying declaration in the presence of P.W. 3 Shrikrishna, P.W. 2 Bhagwan Khade, P.W. 6 Sushila. She is also said to have made oral dying declaration to his brother, P.W. 4 Prabhakar. In addition, her written dying declaration was recorded by Special Judicial Magistrate, P.W. 1 Mukhtar Ahmed. Before and after recording the dying declaration, he obtained necessary certificates from Dr. Madanlal Sharma, P.W. 5. The report of the Forensic Science Laboratory shows that the residues of kerosene were detected on partly burnt saree. The Trial Court has accepted the entire evidence of the prosecution and has rejected the theory put forward by the appellant that deceased died on account of catching fire while she was preparing tea, as also that the appellant had made efforts to extinguish fire.

3. The learned Counsel for the appellant urged before us that the evidence of Special Judicial Magistrate P.W. 1, cannot be believed for the simple reason that he has not even sure whether the certificates were obtained by him from Dr. Motwani or from some other doctor; that the evidence of various witnesses relating to oral dying declaration does not inspire confidence; that the appellant had suffered burn injuries in the incident, which goes to prove that the appellant, had in fact made attempt to extinguish fire and in the circumstances, the case of the appellant would fall under Section 304 Part II of I.P.C. In support of his submission, he relied upon a judgment of this Court, to which both of us were parties, namely, Bhimrao Harbaji Gedam v. State of Maharashtra, reported in 2001 All MR (Cri.) 113.

4. On the other hand, the learned A.P.P. urged before us that there is overwhelming and cogent evidence on record to come to a conclusion that it was the appellant, who had set his wife on fire on account of which, she suffered 93% burns and died. She further submitted that Dr. Madanlal Sharma P.W. 5, has categorically stated that the Special Judicial Magistrate P.W. 1, had come and asked him as to whether the deceased was in a state to give dying declaration and after examining, he found her fit to give a statement. It is pointed out that the dying declaration was recorded by P.W. 1 in the presence of doctor, P.W. 5 and that only on account of the fact that P.W. 1 Special Judicial Magistrate, got confused about the name of the said doctor, the written dying declaration cannot be rejected. It was further urged by the learned A.P.P. that in the case under consideration, there is a clear intention to kill the deceased and the ruling upon which reliance has been placed by the learned Counsel for the appellant, is not attracted to the facts and circumstances of this case, since the facts therein and the facts in the case under consideration, are altogether different. It was also pointed out that the Trial Court has rightly rejected the theory put forth by the appellant that he had made efforts to extinguish fire, inasmuch as, there was neither any injury on the hands of the appellant, nor the location of injury as also percentage of injuries would go to show that the appellant had, in fact, made efforts to extinguish fire, because if he had really made efforts to extinguish fire, he would have been suffered much more burn injuries on his person. According to the prosecution case, all the clothes of the deceased were burnt. It is, therefore, urged that the appeal be rejected.

5. The prosecution had examined eye-witness. P.W. 6 Sushila, who has stated that her house is in front of the house of appellant; in between her house and the house of the appellant, there is only one road and their houses face each other. According to her, she had returned at about 2.00 p.m. on 3.11.1996 and she found that there was quarrel between the appellant and the deceased. The appellant was demanding money from the deceased under the influence of liquor which was the cause of the quarrel. She has further stated that the appellant was beating the deceased by fists and kicks. According to her, the quarrel was going on outside the house in a Osari (shed) of the appellant. On this, the deceased said "kill her". The appellant then, removed the kerosene from the stove, poured on the person of the deceased and set her on fire with the help of a match stick. She caught fire and flames went up to the height of roof. The deceased started running and came beneath "Gondhan tree". She was shouting. On hearing her shouts, Shrikrishna P.W. 3, rushed to the spot. He came with a water container and poured water on the deceased. In that fire, all her clothes were burnt. He gave saree to Shrikrishna, who called his wife and covered the deceased with saree. Sushila P.W. 6, also went near her and at that time, she told all the persons, who gathered there that the appellant had poured kerosene on her person and set her on fire. This witness was cross-examined at length, but could not be shaken on material particulars, excepted for two contradictions/omissions. She has stated in her deposition that the appellant had removed the kerosene from the stove in big bowl (Ghamela) and then poured kerosene on the person of deceased. However, she admitted when questioned about this statement before the police that same is not mentioned in her police statement, and she could not give any reason for the omission. She also admitted that she was also questioned regarding the deceased having told to all the persons that the appellant had poured kerosene on the person of deceased and set her on fire. She further admitted that this fact is also not mentioned in her statement. However, except for these omissions in her statement, no dent could be made in her deposition relating to having seen the incident in question. The fact that the deceased had seen the incident has been duly proved from the evidence of Sushila.

6. P.W. 3 Shrikrishna, has stated that at about 3.30 p.m. he heard shouts of the deceased that she sustained burns. Accordingly, he lifted the container of water. He saw the appellant coming from her house and she was in flames. He poured water on her person and extinguished fired. According to him, Police Patil Bhagwan Khade P.W. 2, came there and asked the deceased as to how she sustained burn injuries and she told that her husband poured kerosene on her person and set her on fire. He also stated that all her clothes were burnt and saree was put to cover body of the deceased. He further stated that the appellant was also present there and the deceased was saying that the appellant had set her on fire. He further told the appellant not to come near her as he set her on fire. He reiterated in cross-examination that the deceased told the Police Patil that her husband poured kerosene on her person and set her on fire. The evidence of this witness could not be shaken during the cross-examination.

7. P.W. 2 Bhagwan has stated that he saw that the deceased was under Gondhan tree and she had sustained burn injuries and he enquired from her as to what had happened, she told him that her husband poured kerosene on her person and set her on fire and she asked him to save her. In cross-examination he admitted that the appellant sustained some burn injuries. He stated that he had taken the deceased to hospital and denied that it was the appellant, who took the deceased to the hospital. So also he stated that the appellant and the deceased used to quarrel with each other. The evidence of this witness also stood the test of cross-examination.

8. P.W. 4 Prabhakar, who is the brother of the deceased has stated that the deceased used to complain that the appellant used to beat her after consuming liquor and that the appellant was also insisting to bring money from her father. It is stated that he had gone to the hospital after receiving information that the deceased had suffered burn injuries and the deceased told him that her husband poured kerosene on her person and set her on fire. The testimony of this witness also remained unshaken during cross-examination.

9. Thus, the prosecution has duly proved the oral dying declaration made by the deceased in which she had implicated the appellant for having poured kerosene on her person and set her on fire. In addition to this, there is a written dying declaration which is recorded by the Special Judicial Magistrate P.W. 1, Mukhtar Ahmed. He has stated that he has received requisition at about 8.40 p.m. on 3.11.1996 to record dying declaration of the deceased. Accordingly, he went to the hospital and consulted the Medical Officer, whose name he has wrongly given as Motwani. He has further stated that he along with doctor went to Burn Ward and after doctor checked the deceased he certified that the patient was conscious and fit to record the dying declaration. A certificate to that effect was endorsed by the doctor. Thereafter, P.W. 1 asked the persons who were near the patient to go outside and they left the ward. He made inquiry with the deceased, who told him that there was quarrel between him and her husband; that her husband was in drunken state started beating her; and when she asked as to why he was beating her, the appellant told her that he will pour kerosene on her person and will kill her and even if he really does the same, there will be no harm to him. He further stated that the appellant poured kerosene on her person which was there in a stove and set her on fire. Thereafter, she ran outside the house. She further stated that for the incident her husband is responsible. After recording the statement, P.W. 1 read over the contents of the same to the deceased and she admitted the contents as correct. Thereafter, he obtained her thumb impression below the same. He has further stated that while recording the dying declaration all the while doctor was present. He further states that when he was recording her statement from beginning till end, the deceased was conscious and she was fit to give the statement. After recording the statement, doctor certified that the patient was conscious and able to give statement. The certificate was endorsed below the said statement. The recording of the dying declaration was over at 9.00 p.m. The dying declaration was proved by him. It was suggested to him that the dying declaration was not recorded by him and he had signed in the back date. On the question of name of the doctor, the Special Judicial Magistrate P.W. 1, stated that he confused about the name of the doctor and nothing turns out on the name of the doctor since the doctor P.W. 5, Madanlal Sharma, has in categorical terms stated that on 3.11.1996, Special Judicial Magistrate requested him to examine the deceased to ascertain as to whether she was conscious and able to give statement. Accordingly, he examined the deceased to ascertain and certify as to whether she was fit to give statement. On examination, he found that the deceased patient was fully conscious, well-oriented to time and place and that she was able to give her statement. He accordingly issued certificate on the proforma of the dying declaration itself. He identified the certificate. He further stated that the Magistrate recorded the statement of the deceased in his presence and while giving the statement, the deceased was conscious and well-oriented. He further stated that after recording dying declaration, he again certified about the condition of the patient. He found that the patient was fully conscious and well-oriented. He identified his endorsement on the dying declaration. He confirmed during cross-examination that Special Judicial Magistrate who recorded the dying declaration was Mr. Ahmed. He further stated that till dying declaration is recorded of burn patient, sedative drugs are not given to the patient and in this case, the sedative drugs were not given to the patient before recording her dying declaration.

10. We have already pointed out that as per the report of the Forensic Science Laboratory, residues of kerosene were found on the burnt saree as also earth samples taken from the scene of offence. Thus, on the basis of prosecution evidence, on record, we have absolutely no doubt in our mind that it is the appellant who has poured kerosene on the deceased and set her on fire, as a result of which, she died. Doctor P.W. 9 conducted post mortem on the dead body of the deceased and he has stated that the deceased suffered 93% burns. In his opinion, the death was caused due to septicaemnic shock due to extensive burn injuries. He stated that both the palms of the deceased were having extensively burnt. According to him, after burn injuries, there is destruction of the skin and protein material, due to that chances of organism culture becomes increased and that is why there will be infection. He denied the suggestion given to him that the person who sustained 93% burn injuries would not be able to speak or that such person will not be oriented to time and place.

11. At this stage now we shall examine the submissions made by the learned Counsel for the appellant that the case of the appellant falls within Exception 4 to Section 300, I.P.C., as a result of which, the offence in question would fall under Section 304, Part II, I.P.C. Exception 4 to Section 300, I.P.C. reads as under:

"Exception 4

Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."

In this connection, reliance has been placed by the learned Counsel for the appellant on a judgment of this Court in Bhimrao Harbaji Gedam v. State of Maharashtra (supra). The facts in the case under consideration and the facts in the aforesaid judgment upon which reliance has been placed, are different to a large extent. In that case, the appellant was demanding the sale proceeds but the deceased refused to part with the same on account of which, the appellant had beaten the deceased. The deceased in a fit of anger threw the money upon which the appellant closed the doors and told the deceased that she had thrown the money and she should now die. Thereafter in a fit of anger, the deceased poured kerosene on her person and appellant had set her on fire. It is in these circumstances and also taking into account the state of intoxication, as also the fact that the appellant tried to extinguish fire and suffered burn injuries on his hands that it was concluded that it was established that the appellant had no intention to kill the deceased. The facts in the case under consideration are that the appellant, though was under influence of liquor and had asked for money from the deceased, who had refused, upon which, the appellant beat her. However, the deceased was not ready to give money upon which the appellant dragged the deceased and told that he would kill her. It is no doubt true that she stated to him to kill her, but, this cannot be said to have caused any sudden provation or heat of passion. The appellant dragged the deceased, poured kerosene on her person and then set her on fire. The case of the appellant is that he tried to extinguish fire which the deceased had caught while preparing tea. The appellant in answer to question No. 21, in statement under Section 313, has stated that the deceased was preparing tea and at that time she caught fire. This obviously is false defence put by him in the light of categorical evidence on record that it was the appellant, who had set her on fire after having poured kerosene on her person. The falsity of defence is additional link against him. The appellant has nowhere categorically taken stand under Section 313, Cr.P.C. that he had extinguished fire. He has stated that he had poured water and covered body of the deceased with saree. This stand is also falsified by the statement of prosecution witnesses inasmuch as P. W. 3 Shrikrishna has stated that it was he who had poured water on the deceased and P.W. 6 Sushila has stated that she gave saree to Shrikrishna P.W. 3, whose wife covered the deceased with the saree. It is pertinent to note all the clothes of the deceased had been burnt on account of severe fire in which she suffered 93% burns. In case the appellant had made attempt to extinguish fire, he would have received extensive injuries on the hands or other parts of the body. The prosecution case is that the body of the deceased was in flames and the clothes of the deceased were totally burnt. The deceased had received burn injuries to the extent of 12% on the right arm below shoulder forearm right hand, neck and right side of scalp. The theory of extinguishing fire by the appellant has been disbelieved by the Trial Court and we have no reason whatsoever to accept the said theory. In view of the facts and circumstances of this case, we are of the opinion that the case of the appellant does not fall within Exception 4 to Section 300, I.P.C. so as to come within the ambit of Section 304, Part-II of I.P.C. It is also pertinent to note that the deceased had told P.W. 2 Bhagwan to save her and the deceased nowhere stated that the appellant made any attempt whatsoever to extinguish fire.

12. For the aforesaid reasons, we find that the prosecution has established the charge of murder of his wife against the appellant beyond reasonable doubt. The conviction and sentence imposed by the Trial Court, therefore, does not call for any interference whatsoever. The appeal is accordingly dismissed.