Manoj Mahadeo Mude (In Jail) vs State Of Maharashtra, Through ...
2016 Latest Caselaw 2998 Bom

                                                        1                           apeal6.15.odt

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                        
                              CRIMINAL APPEAL NO. 6/2015




                                                                
          Manoj Mahadeo Mude,
          aged 40 Years, Occ. Labour,
          R/o Ganjare Ward, Hingi, Tah. Seloo,
          Dist. Wardha, At present in Central




                                                               
          Prison, Nagpur.                                        .....APPELLANT
                             ...V E R S U S...

          State of Maharashtra, through




                                                
          Police Station Officer, Seloo,
          Dist. Wardha.       ig                                 ...RESPONDENT

     -----------------------------------------------------------------------------------------------
     Mrs. Smita Singalkar, Advocate for appellant.
                            
     Mr. C. A. Lokhande, A.P.P. for respondent.
     -----------------------------------------------------------------------------------------------

                     CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.
                     DATED :-   
                                JUNE 20, 2016
      
   



     JUDGMENT (Per : V. M. Deshpande, J.)

1. Being aggrieved by the judgment and order of conviction

dated 11.07.2014 in Sessions Case No. 187/2011 whereby the

appellant is convicted for the offence punishable under Section 498-A

IPC and for the offence punishable under Section 302 of the IPC and

on the said count was directed to suffer rigorous imprisonment for

two years and life respectively and also to pay fine of Rs.1,000/- and

Rs.5,000/- on the said counts, the appellant is before this Court.

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2. The prosecution case is as under:

Mohd. Mustafa s/o Abdul Gani Sheikh, API (PW9) was

deputed at the Police Chouki at Sewagram Hospital, which comes

under the Police Station, Sewagram. He received information that

the victim Lata is admitted in the hospital for sustaining burn

injuries. He, therefore, visited the ward, obtained certificate from

Doctor (Exh.-32) that the patient is mentally and physically fit to give

her statement and thereafter recorded her statement (Exh.-32).

According to the statement of Lata given to Mohd. Mustafa, the

appellant used to ill treat her under the influence of liquor. On

17.08.2011, Lata received one phone call from her sister in law,

calling her to attend a religious function on 20.08.2011. Upon that,

the appellant picked up quarrel with her.

On 18.08.2011 in the morning, again the appellant picked

up quarrel and thereafter under the influence of liquor, poured

kerosene on her and set her ablaze. The scribe Mohd. Mustafa

handed over the said statement to the Police Station.

As the spot of occurrence was situated at Hingni within

the jurisdiction of Police Station, Seloo, Ravindra Kangale (PW7)

received a phone call from Sevagram Police Station that an offence is

registered under the Crime No. 0/00 for the offence punishable

under Section 307 of the IPC at Sewagram Police Station and,

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therefore, it was requested to this prosecution witness that the case

diary of the said should be taken for registration of offence at Seloo

Police Station. Accordingly, this witness went to Police Station,

Sewagram, obtained statement of Lata and thereafter he registered

the offence bearing Crime No. 147/2011 under Section 307 of the

IPC against the appellant. The printed FIR is at Exh.-26.

3. The case diary of Crime No.147/2011 was entrusted to

Laxman Hande PSI (PW15) at Police Station, Seloo. He visited the

spot of occurrence. Spot Panchanama was drawn in presence of

Pancha (Exh.-13). He also seized various articles from the spot

under seizure memo (Exh.-14). He also recorded statements of the

neighbours. Arrest of the appellant was made under arrest memo

(Exh.-59). The clothes of the appellant i.e. full pant and shirt which

were emitting kerosene smell were also seized under seizure memo

(Exh.-60). The muddemal property was sent to the Chemical

Analyser. He filed a charge-sheet in the court of law for the offence

punishable under section 307 of the IPC.

When Suresh Ganpatrao Lakhe (PW12), Police Constable

was on his duty at General Hospital, Wardha, the Doctor informed to

Police Station, Wardha on 27.02.2012 that Lata died at General

Hospital, Wardha. On the basis of the information, Accidental Death

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at '0' number was registered by this witness at Police Station,

Wardha. He conducted inquest on the dead body by drawing inquest

panchanama (Exh.-45). He also obtained Post Mortem Report and

then gave a wireless message to Seloo Police Station. Thereafter, the

offence was converted into Section 302 of the IPC and the superior of

Laxman (PW15) conducted further investigation.

On submission of the final report, the learned Magistrate

found that the case is exclusively triable by the Court of Sessions,

therefore, committal order was passed. The learned Ad hoc

Additional Sessions Judge-2, Wardha framed the charge against the

appellant in Sessions Case No. 187/2011. The appellant abjured his

guilt and claimed for his trial. After full fledge trial, Sessions Judge,

Wardha convicted and sentenced the appellant as noticed in the

opening paragraph of the judgment. Hence, this appeal.

4. We have heard Mrs. Singalkar, learned counsel for the

appellant and Mr. Lokhande, learned A.P.P. for the State. With their

able assistance, we have gone through the record and proceedings.

5. The case is based on two written dying declarations. The

first dying declaration is recorded by Mohd. Mustafa (PW9), which

was treated as FIR. This prosecution witness has recorded the

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statement of Lata, after certificate of fitness from Dr. Sahil Yadav.

The said certificate is at Exh.-32. The dying declaration of Lata

(Exh.-38) was recorded by Mohd. Mustafa as per the version given by

Lata in presence of Dr. Sahil Yadav, who also gave the certificate

(Exh.-35) after recording statement of Lata.

Another dying declaration of Lata is recorded by Narayan

Thakre, Naib Tahsildar (PW2). On 19.08.2011, he received

requisition from Sewagram Police Station for recording the statement

of Lata, who was admitted in Sewagram Hospital. After receiving the

requisition (Exh.-17), Narayan went to Kasturba Hospital, Sewagram

in Burn Ward. He met the Medical Officer on duty. Coincidently, the

said Medical Officer was Dr. Sahil Yadav (PW8). Mr. Thakre (PW2)

expressed his desire to record statement of Lata and, therefore, he

requested the Medical Officer to examine Lata. Therefore, he

requested the Medical Officer to examine Lata. Accordingly, she was

examined by Dr. Sahil, who found that Lata is in a fit condition to

give statement. He accordingly gave a fitness certificate (Exh.-34).

Armed with said medical certificate, though Narayan (PW2) could

have straightway proceeded to record the statement, however, from

the evidence of Narayan (PW2), it is clear that he himself also

ascertained the fitness of the patient and when he found that Lata is

giving cogent answers to his questions, thereafter, he started

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recording her statement. The statement is in question and answer

form. The statement recorded by Shri Narayan Thakre also shows

that the dispute arose between the husband and wife on account of

phone call received from the sister of the injured Lata calling her to

their place for religious function and thereafter she was poured with

Kerosene and was set ablaze. The dying declaration recorded by

Narayan is at Exh.-18. Dr. Sahil also certified by giving certificate at

Exh.-35 that during the period of recording dying declaration, Lata

was fully conscious.

Though, there is no eye witness, from the dying

declaration it is clear that the appellant is responsible for the burn

injuries suffered by Lata. The record shows that Lata died at General

Hospital, Wardha on 27.02.2012. The date of pouring kerosene and

setting on fire is 19.08.2011. Thus, the death of Lata occurred after a

period of six months from the date of pouring kerosene. According

to medical appears such as intimation of death by hospital authorities

to police, extent burn injuries was 49%. Dr. Nitinkumar Nimodia

(PW16) had conducted post mortem. He proved Post Mortem Report

(Exh.-68). According to the Doctor, the death is due to shock with

injuries and burn with secondary infection (sepsis).

7 apeal6.15.odt

The question, therefore, is whether the appellant could be

convicted for the offence punishable under Section 302 of the IPC or

whether it can be altered to any other offence.

6. Janardan (PW5) is father of the deceased Lata whereas

Vandana Diwte (PW6) is mother of the deceased. Janardan Diwte's

evidence disclosed that after getting information from the Doctor, he

reached to Sewagram Hospital. Lata was an indoor patient for about

two months in the said hospital. Following portion appearing in the

evidence of Janardan Diwte, father of the deceased will be material

to answer the said question which is reproduced hereinbelow:

"...My daughter was admitted in Sewagram hospital for the period of two months. I then informed to the doctor

that I do not have money to continue treatment. Doctor said that we could not offer to give her medicines free of

charge. Doctor said that the patient should be discharged. I then took her to my house. Her health could not be improved during the period of one and half month at my house. Her health was deteriorated and therefore she was

admitted in Civil Hospital, Wardha. During the course of treatment, she died within two days."

Further, he has stated in his cross-examination that while

taking discharge of Lata from Sewagram Medical Hospital he did not

inform to the police and he had taken her to his house and given her

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treatment from the Rural Hospital, Sindi Railway. His evidence

further disclosed that Lata was staying with him for 2 ½ months but

she was not ready to come to Sindi Raiwlay Hospital. He used to go

to take medicines from Sindi Railway Hospital but the Doctor had not

seen her nor examiner her. The evidence of his wife Vandana (PW6)

is also on the same line.

7. From the aforesaid evidence, it is crystal clear that

unfortunately when Lata was discharged from Sewagram Hospital,

the said fact was not disclosed to the police by her parents. Their

evidence shows that Lata was not willing to get herself admitted in

Sindi Railway, Hospital and without her examination, she was being

treated by the Doctor.

According to the Doctor who conducted the Post Mortem,

Lata died due to septicemia, which shows that the injured was not

properly medically treated which can also be seen from the evidence

of her parents. Had there been a proper medical treatment, Lata

could have survived.

8. From the dying declaration, it appears that on a trivial

issue, the dispute arose. However, both the dying declarations show

that it is the appellant who brought auto rickshaw and had admitted

9 apeal6.15.odt

the deceased in the hospital. Therefore, in our view, the present case

on the totality of the available evidence on record, falls under the

exception-4 of Section 300. Therefore, this is a case of culpable

homicide not amounting to murder. Though, the appellant was not

having any intention to cause murder of his wife, at the same time, it

was within his knowledge that pouring of kerosene and setting her

ablaze is likely to cause death. Therefore, in our view, the case

squarely falls under part II of Section 304 of the IPC.

9. In view of above, following order is passed.

                                   ORDER
      

            (i)            The appeal is partly allowed.
            (ii)           Conviction of the appellant under Section 302
   

of the Indian Penal Code is altered to Part II of Section 304 of the Indian Penal Code. The accused is sentenced

to suffer rigorous imprisonment for 10 years.

Rest of the order is maintained.

                          (V. M. Deshpande)                       (B. R. Gavai)




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