Shantilal @ Lakhan Purandar ... vs The State Of Maharashtra
2016 Latest Caselaw 375 Bom

                                                            
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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION




                                                                    
                       CRIMINAL APPEAL NO. 593 OF 2014


    Shantilal @ Lakhan Purandar Kamble                          ]




                                                                   
    Age 21 years, residing at                                   ]
    Sanjay Gandhi Zopadpatti,                                   ]
    Timber Area, Sangli                                         ]
    At present at Kolhapur Central Prison                       ]
    Convict No. C-5339, Circle No. 7                            ]




                                                               
    Dist. Kolhapur Kalamba, Maharashtra                         ]
    416007                              ig                      ] ..Appellant
                                                                [Ori. Accused ]
                      Vs.
                                      
    The State of Maharashtra                                    ] ..Respondent



                                   ....
          


    Ms. Sarojini Upadhyay Advocate appointed for the Appellant
       



    Mr. H.J. Dedia A.P.P. for the State
                                   ....


                                     CORAM : SMT.V.K.TAHILRAMANI AND





                                             SMT. ANUJA PRABHUDESSAI, JJ.

DATE : MARCH 07, 2016

ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]

1 This appeal is preferred by the appellant-original

accused against the judgment and order dated 29.3.2012

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passed by the learned Sessions Judge, Sangli in Sessions Case

No. 90 of 2011. By the said judgment and order, the learned

Sessions Judge convicted the appellant under Sections 302 and

498-A of IPC. For the offence under Section 302 of IPC, the

appellant has been sentenced to life imprisonment and fine of

Rs. 50,000/- i/d R.I. for six months and for the offence under

Section 498-A of IPC, the appellant has been sentenced to R.I.

for two years and fine of Rs. 1000/- i/d R.I. for 10 days. The

learned Sessions Judge directed that substantive sentences

shall run concurrently. The learned Sessions Judge also

directed that on payment of fine amount as directed above, an

amount of Rs.30,000/- be given to the mother of deceased

Priyanka.

2 The prosecution case, briefly stated, is as under:

(i) Deceased Priyanka was the wife of the appellant. The

marriage of the appellant and Priyanka took place on

22.11.2009. After marriage, the appellant and Priyanka were

residing in Sanjay Gandhi Zopadpatti at Sangli. The appellant

was doing labour work. The appellant was addicted to liquor.

    The appellant used to                     quarrel with his wife Priyanka on the







                                                             
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    ground that she was not cooking food properly.                                       About two




                                                                                                 

months prior to the incident, the appellant was intoxicated and

assaulted Priyanka on the ground that she did not prepare food

properly. Hence, Priyanka went to her maternal home. There

she informed her parents that her husband used to quarrel with

her after coming home in an intoxicated state. Thereafter the

appellant came to the maternal house of Priyanka to take her

back.

The appellant assured parents of Priyanka that

henceforth he will not assault Priyanka and thus, parents of

Priyanka allowed the appellant to take Priyanka to matrimonial

home.

(ii) The incident occurred on 22.1.2011. Priyanka

prepared dinner. The appellant came home at about 11 p.m. in

an intoxicated state. He told Priyanka to serve him dinner.

Priyanka served him dinner. Then the appellant told Priyanka

to also have dinner with him. Priyanka refused to have dinner

with him. Then the appellant started quarreling with Priyanka

by abusing and assaulting her. The appellant told Priyanka

that they should both die and he poured kerosene on himself

and Priyanka. Thereafter, he set Priyanka on fire. On seeing

Priyanka on fire, the appellant poured water on Priyanka to

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extinguish the fire. Then the appellant opened the door of the

house and both the appellant and Priyanka came out of the

house. The appellant then admitted Priyanka in the Civil

hospital at Sangli. In the hospital, the dying declaration (Exh.

27) of Priyanka came to be recorded. This dying declaration

was treated as F.I.R. Thereafter investigation commenced.

Initially the offence came to be registered under Sections 307

and 498-A of IPC. Priyanka expired on 5.2.2011 on account of

shock due to 61% mixed infective burns. Thereupon Section

307 of IPC was converted to Section 302 of IPC. After

completion of investigation, the charge sheet came to be filed.

In due course the case was committed to the Court of Sessions.

3 Charge came to be framed against the appellant

under sections 302 and 498-A of IPC. The appellant pleaded

not guilty to the said charge and claimed to be tried. The

defence of the appellant is that of total denial and false

implication. After going through the evidence adduced in the

present case, the learned Judge convicted and sentenced the

appellant as stated in para 1 above, hence, this appeal.

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    4                 We have heard the learned counsel for the appellant




                                                                                                 

and the learned A.P.P. for the State. 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 Judge and the evidence

on record, for the below mentioned reasons, we are of the

opinion that the appellant poured kerosene on his wife

Priyanka and set her on fire which led to her death.

5 The main evidence against the appellant is that of

dying declaration (Exh. 27) of Priyanka. After the appellant set

Priyanka on fire, he extinguished the fire and took her to the

hospital. In the hospital, PW 2 Special Executive Magistrate Ms.

Malap recorded the dying declaration of Priyanka. This dying

declaration is at Exh. 27. The S.E.M. Malap has stated that on

23.1.2011 at about 3.15 a.m. she received phone call from the

police chowky informing her that one newly married lady is

admitted in the Civil hospital, Sangli with burn injuries and her

statement was to be recorded. Thereafter Ms. Malap reached

the Civil hospital at Sangli. She made enquiry with Doctor

whether the patient was in a position to give a statement.

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Doctor examined the patient and said that the patient was in a

position to give a statement. The Doctor gave his opinion in

writing. This endorsement is at Exh. 17. Thereafter Ms. Malap

put questions to the patient and recorded her statement.

Priyanka told the S.E.M. that her marriage with the appellant

took place one year two months prior to the incident. Her

husband used to drink liquor and used to beat her. Her

husband used to tell that she cannot cook food properly.

Priyanka further stated to S.E.M. that some days prior to the

incident, she was beaten by her husband, hence, she went to

the house of her parents. Thereafter her parents pacified her

and her husband who had come to take her, hence, she went

along with her husband back to her matrimonial house.

Priyanka has further stated that on the day of the incident at

about 11 p.m. her husband came home. Her husband asked

her to serve dinner. She then served dinner to her husband.

Her husband also asked to take dinner with him but she

refused. Because of this, a quarrel took place between her and

her husband. Then her husband said that he will also not take

dinner and both of them will die. Saying this, her husband

poured kerosene on her and on his own person. Then her

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husband set her on fire with match-stick.

6 PW 2 S.E.M. Malap has stated that when she reached

Civil hospital, she enquired with the Doctor whether the patient

was in a position to give a statement. The Doctor examined

the patient and stated that the patient was in a position to give

a statement. This opinion was given in writing which is at Exh.

17. PW 1 Dr. Dhanke is the Doctor who had examined Priyanka

and gave the endorsement which is at Exh. 17. Dr. Dhanke has

stated that on 23.1.2011 at about 6.00 a.m. Special Executive

Magistrate came to the hospital. She requested him to

examine the patient and to tell about the condition of the

patient. Accordingly, he examined the patient and opined that

the patient Priyanka is conscious, oriented and able to give a

statement. He gave this opinion in writing. Dr. Dhanke

identified this writing which is at Exh. 17. Dr. Dhanke further

stated that thereafter the S.E.M. recorded the statement of

Priyanka. He was present when the S.E.M. recorded the

statement of Priyanka. Dr. Dhanke has stated that after

completion of recording statement, he again examined the

patient and found that the patient was still conscious, oriented

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and cooperative during the entire process of recording the

statement.

7 In addition to the dying declaration which is at Exh.

27, Priyanka made a dying declaration to Dr. Dhanke. Dr.

Dhanke has stated that on 23.1.2011 at about 1.15 a.m.

Priyanka was admitted in the burn ward. He was working as

Resident Doctor in the burn ward.

ig He recorded the history

given by the patient i.e. Priyanka. The patient told him about a

quarrel with her husband and that her husband poured

kerosene on her and set her on fire. He recorded this history

in the case papers. The said case history is at Exh. 16.

8 In addition to the above evidence, the prosecution is

relying on the evidence of PW 3 Rahul who was the brother of

Priyanka, to show that an oral dying declaration implicating the

appellant was made by Priyanka to Rahul. Rahul has stated

that Priyanka was his sister. The marriage of his sister with the

appellant took place on 22.11.2009. Initially they were happily

cohabiting. After sometime, as the appellant was addicted to

liquor, he started illtreating his sister. His sister used to inform

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him on phone from time to time about the illtreatment by the

appellant to her. Three months prior to the incident, his sister

came to his house. She told that she was not ready to cohabit

with her husband as her husband after consuming liquor, used

to beat and illtreat her. After four days, the appellant, his

mother and one Corporator came to their house. The mother

of the appellant and Corporator explained to the appellant as

well as Priyanka and pacified them. The appellant apologized

and stated that he will not drink liquor any more hence,

Priyanka agreed and went with the appellant.

9 Rahul has further stated that on 30.12.2010 his sister

came to house on occasion of his marriage. At that time, his

sister told him about illtreatment and beating to her at the

hands of her husband. Priyanka was not willing to go back to

the house of the appellant. Then the appellant talked with the

elder sister of Priyanka and promised her that he will not drink

liquor and he will not give illtreatment to Priyanka. On this

promise about 15 days prior to the incident, Priyanka went to

cohabit with the appellant On 23.1.2011, Rahul was informed

that that the appellant had poured kerosene on Priyanka and

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set her on fire, hence, he went to civil hospital at Sangli to

meet Priyanka. He met her on 24.1.2011 at about 1 a.m. On

enquiry, Priyanka told him that the appellant came to the

house after consuming liquor and quarrled with her on account

of taking dinner. Priyanka then told him that the appellant

poured kerosene on her and set her on fire.

It is the prosecution case that the appellant poured

kerosene on his wife Priyanka and set her on fire. The

prosecution case is also supported by the post-mortem notes

which show that Priyanka had sustained 61% burns. It is

further supported by C.A. report Exh. 37 which shows that the

maxi worn by Priyanka and baniyan worn by the appellant

tested positive for kerosene residues.

11 Thus, all the evidence taken together shows that the

appellant poured kerosene on his wife Priyanka and set her on

fire.

12 Mrs. Upadhyay submitted that the present case would

not fall under Section 302 of IPC but it would, at the most, fall

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under Section 304 Part-II of IPC. She submitted that the

appellant had no intention to cause death of his wife Priyanka.

In support of this contention, she placed reliance on the dying

declaration (Exh. 27) recorded by PW 2 S.E.M. Ms. Malap. In

the dying declaration, Priyanka has stated that after her

husband set her on fire, he extinguished the fire and in the

process, her husband also sustained burn injuries. Thereafter

her husband admitted her in the Civil hospital. Ms. Upadhyay

submitted that the fact that the appellant extinguished the fire

and admitted Priyanka in the hospital, shows that he had no

intention to kill his wife Priyanka.

13 No doubt, the evidence on record shows that it was

the appellant who set Priyanka 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 ? It is an admitted fact that the appellant set

Priyanka on fire. However, after Priyanka caught fire, the

appellant poured water on fire and extinguished the fire.

Thereafter the appellant admitted Priyanka in the Civil hospital.

This conduct cannot be seen divorced from the totality of the

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circumstances. Very probably the appellant would not have

anticipated that the act done by him would have escalated to

such a proportion that she might die. If he had ever intended

Priyanka to die, he would not have poured water on Priyanka in

an effort to save her. In view of the evidence on record, we are

inclined to think that all that the appellant thought of was to

inflict burns on her and to frighten her but unfortunately the

situation slipped out of his control and it went to a fatal extent.

We stand fortified in taking this view by observations of the

Supreme Court in the case of Kalu Ram Vs. State of

Rajasthan1. In the said case also similar facts arose and the

Supreme Court held that the case would not be covered by

Section 302 of IPC but it would be covered by Section 304-II of

IPC. In the facts of this case, it is obvious that the appellant

realized his folly and was filled with remorse and therefore, he

extinguished the fire.

14 In view of the above facts and circumstances, the

conviction and sentence under Section 498-A of IPC is

maintained, however, we alter the conviction of the appellant

1 (2000) 10 S.C.C. 324

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from Section 302 of IPC to Section 304-II of IPC. In our opinion,

sentence of imprisonment of eight years with fine as imposed

by the trial Court in default R.I. for three months, meets the

ends of justice. The substantive sentences of imprisonment

shall run concurrently. The conviction and sentence imposed

by the learned Sessions Judge by judgment and order dated

29.3.2012 in Sessions Case No. 90 of 2011, is accordingly

modified.

15 Appeal partly allowed to the aforesaid extent.

16 Office to communicate this order to the appellant

through the concerned Superintendent of Prison.

17 We quantify legal fees to be paid by the High Court

Legal Services Committee to appointed advocate Ms. Sarojini

Upadhyay at Rs.5000/-.

[SMT. ANUJA PRABHUDESSAI, J.] [ SMT.V.K.TAHILRAMANI, J. ]

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