Sambhaji Mukund Suryawanshi vs State Of Maharashtra
2004 Latest Caselaw 244 Bom

JUDGMENT

V.G. Palshikar, J.

1. Being aggrieved by the judgment and order of conviction and sentence passed on 8.10.1999 by X Additional Sessions Judge, Pune in Sess. Case No. 38/99 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us.

2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinised the record and reappreciated the evidence.

3. The facts stated briefly as they emerge on our reappreciation of evidence are that the accused and the deceased were married for years. They were always quarrelling. On 8.12.1998 at about 10.00 O'clock at night there was quarrel between the two and the wife-deceased in a fit of anger poured kerosene from the stove on herself and in similar fit of anger the accused lit her. He immediately tried to douse the fire and took the victim to the hospital who subsequently died. The appellant was prosecuted and was convicted as aforesaid.

4. Exhibit 15 is the dying declaration recorded by Executive Magistrate in which the victim has clearly stated that there was a quarrel and in a fit of anger she poured kerosene on herself and the accused lit fire. It is also stated in the dying declaration that the accused tried to douse it and took her to the hospital where she ultimately died. This dying declaration has been duly proved by the Executive Magistrate, it bears certificate of the doctor and all essential ingredients of dying declaration are present. There is ample circumstantial evidence on record to corroborate the statement so made. The learned trial Judge has martialled the evidence properly and has come to right conclusion that it was the accused who was responsible for death of the victim. We have no hesitation in coming to the same conclusion that the accused was responsible for the death of the victim. The only question that arises however is whether the accused had any intention to commit murder. There is ample evidence on record to show that there used to be frequest quarrels between the man and wife. The dying declaration itself records that kerosene was poured on the person of victim by victim herself, it also records that the accused tried to douse the fire. Witness have deposed that the accused took the victim to the hospital. Witnesses also have been examined to prove before the Court that the man and wife used to quarrel frequently. It is obviously, therefore, a case of sudden flare of emotions resulting from domestic quarrels. It cannot be said that the accused had the intention to kill the wife. His conducting in trying to douse the fire, getting injured himself in the process and taking wife to the hospital militates against the conclusion of the presence of such intention. At the same time, it cannot be said that he had no knowledge that if he puts wife on fire she is likely to die. In our opinion, therefore, present is the fit case where the learned trial Judge should have convicted the accused under Section 304(II) for absence of intention and any other motive to commit murder of the wife. In the result, therefore, appeal succeeds partly and is allowed partly. The order of conviction and sentence for offence punishable under Section 302 of Indian Penal Code is set aside and instead the appellant-accused is convicted for the offence punishable under Section 304(II) of I.P.C. to suffer rigorous imprisonment for seven years. On completion of period of seven years' rigorous imprisonment the appellant-accused is entitled to be released. Appeal accordingly stands disposed of.