Bombay High Court
Hanumant Bhiva Chavan vs The State Of Maharashtra on 30 March, 2017
Bench: V.K. Tahilramani
9. cri apeal 524-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 524 OF 2011
Hanumant Bhiva Chavan
Age - 37 Years,
R/o. Tambewadi, Tal. Malshiras,
District Solapur.
Presently detained at Yerawada Central
Prison, Pune. .. Appellant
(Org. Accused)
Versus
State of Maharashtra
Through Police Station Officer,
Natepute. .. Respondent
...................
Appearances
Ms. Ameeta Kuttikrishnan Advocate (appointed) for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : MARCH 29 & 30, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 13.4.2011
passed by the learned Ad-hoc Additional Sessions Judge,
Malshiras in Sessions Case No. 9 of 2009. By the said
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judgment and order, the learned Session Judge convicted the
appellant for the offence punishable under Section 302 of IPC
and sentenced him to suffer rigorous imprisonment for life
and fine of Rs. 1000/-, in default R.I. for one year.
2. The prosecution case briefly stated, is as under:
(a) Deceased Vandana was the daughter of PW 2
Shivaji. Vandana was married to the appellant in
the year 1998. The appellant was addicted to
liquor and he suspected the fidelity of Vandana.
(b) The incident took place on 24.11.2008. On that
day, the appellant came home in an intoxicated
state. The appellant told Vandana that she should
not live in the house. The appellant raised
suspicion about the character of Vandana and he
tried to assault her. The appellant then poured
kerosene on Vandana and set her on fire.
Vandana sustained burn injuries. Vandana was
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taken to the hospital of Dr. Waghmode. PW 2
Shivaji, the father of Vandana was informed
regarding admission of Vandana in the hospital.
He went and met Vandana in the hospital.
Vandana informed him that her husband had
poured kerosene on her and set her on fire.
(c) In the hospital, PW 3 SEO Shri. Kalyani recorded
the dying declaration of Vandana. The said dying
declaration is at Exh. 23. Thereafter, PW 11 PHC
Patil recorded the dying declaration of Vandana.
The said dying declaration was treated as FIR
(Exh. 62). Thereafter investigation commenced.
(d) Vandana was shifted from Waghmode Hospital
which was situated in Natepute to Sassoon
Hospital in Pune. There PW 7 ASI Kumbhar
recorded the dying declaration of Vandana. The
said dying declaration is at Exh. 40. In all the
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three dying declarations, Vandana has stated that
her husband i.e the appellant poured kerosene on
her and set her on fire. Vandana expired on
30.11.2008.
(e) PW 6 Dr. Surwase conducted the postmortem on
the dead body of Vandana. In the opinion of the
Dr. Surwase, the cause of death was shock due to
77% burns. After completion of investigation, the
charge sheet came to be filed.
3. Charge came to be framed against the appellant -
original accused under Section 302 of IPC. The appellant-
accused pleaded not guilty to the said charge and claimed
to be tried. His defence was that of total denial and false
implication. After going through the evidence adduced in
this case, the learned Sessions Judge convicted and
sentenced the appellant as stated in paragraph 1 above,
hence, this appeal.
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4. We have heard the learned Advocate for the appellant
and the learned APP. 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 Sessions Judge and the
evidence on record, for the reasons stated below, we are of
the opinion that the appellant poured kerosene on Vandana
and set her on fire.
5. The conviction of the appellant is based on three dying
declarations Exh. 23, Exh. 62 and Exh. 40. These dying
declarations were recorded by PW 3 SEO Shri. Kalyani, PW 11
PHC Patil and PW 7 ASI Kumbhar respectively. In addition to
the three dying declarations i.e Exh. 23, Exh. 62 and Exh. 40,
the conviction is based on an oral dying declaration made by
Vandana to her father i.e PW 2 Shivaji. PW 2 Shivaji has
stated that Vandana was his daughter. She was married to
the appellant in the year 1998. The appellant was addicted
to liquor. The appellant was suspecting the fidelity of
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Vandana and he used to assault her on that count. Shivaji
has stated that on 24.11.2008, Dr. Waghmode (PW 5)
telephoned him and informed him that his daughter had
sustained burn injuries and she was admitted in his hospital.
Dr. Waghmode asked Shivaji to come to the hospital to see
Vandana. Hence, Shivaji went to Waghmode Hospital which
was situated at Natepute. He saw that his daughter had
sustained burn injuries. He made inquiry with his daughter
how she had sustained burn injuries. She told him that her
husband Hanumant came to the house at about 8 p.m. after
consuming liquor and started quarreling with her suspecting
her fidelity. At that time, she was filling kerosene in the
stove. Her husband poured kerosene on her and set her on
fire.
6. As stated earlier, there are three dying declarations on
record. The first was recorded by PW 3 SEO Shri. Kalyani.
Shri. Kalyani has stated that on 25.11.2008 at about 3.15
p.m., Natepute Police came to him and requested him to
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record the dying declaration of a woman who was admitted
in Dr. Waghmode Hospital as she had sustained burn
injuries. Accordingly, Shri. Kalyani went to Dr. Waghmode
Hospital to record the dying declaration of the woman. On
going to the hospital, he met Dr. Waghmode (PW 5) and
asked him whether the patient was mentally and physically
fit to give a statement. Dr. Waghmode then examined the
patient and told Shri. Kalyani that the patient was physically
and mentally fit to give a statement. Shri. Kalyani also
personally ascertained that the physical and mental
condition of the patient was such that she could give her
statement. Thereafter, he started recording the dying
declaration of the patient. The patient told him that her
name was Vandana Hanumant Chavan. She gave details
regarding her age and education. Thereafter, Shri. Kalyani
asked Vandana about the cause of receiving burn injuries
whereupon she told him that her husband Hanumant Chavan
poured kerosene on her and set her on fire. She also told
him that her husband was suspecting her chastity and
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hence, he set her on fire. The said dying declaration is at
Exh. 23.
7. The second dying declaration (Exh. 62) of Vandana was
recorded by PW 11 PHC Patil. He has stated that on
24.11.2008, he was attached to Natepute Police Station. At
about 23.45 hours, their police station received intimation
from the hospital of Dr. Waghmode regarding patient
Vandana Chavan being admitted in the hospital as she had
sustained burn injuries. PHC Patil immediately summoned
the Special Executive Magistrate in the hospital of Dr.
Waghmode. The Executive Magistrate Shri. Kalyani (PW 3)
recorded the dying declaration of Vandana in the hospital.
Thereafter, PHC Patil went to Waghmode Hospital. He
reached there on 25.11.2008. PHC Patil consulted the
medical officer on duty to ascertain as to whether the patient
was mentally and physically fit to give a statement. The
medical officer examined the patient and informed PHC Patil
that the patient was physically and mentally fit to give a
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statement. Accordingly, the medical officer put his
endorsement in the margin of the blank sheet. Thereafter,
PHC Patil recorded the statement of Vandana Chavan as per
her narration. He read it over to her. Thereafter, he
obtained her signature on the said statement. He too put his
signature on the said statement. PHC Patil stated that again
the medical officer (PW 5 Dr. Waghmode) examined the
patient and certified that she was mentally and physically
fit to give a statement. PHC Patil has stated that Vandana
told him that her husband suspected her chastity and on that
count set her on fire by pouring kerosene on her person.
PHC Patil has categorically stated that at the time of
recording the dying declaration, only he and the doctor were
present at the bedside of Vandana. This dying declaration
was treated as FIR (Exh. 62).
8. The dying declaration (Exh. 23) recorded by PW 3 SEO
Shri. Kalyani and the dying declaration / FIR (Exh. 62)
recorded by PHC Patil were recorded in the hospital of PW 5
Dr. Waghmode. Dr. Waghmode has corroborated that SEO
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Shri. Kalyani came to his hospital for recording dying
declaration of Vandana Chavan. Shri. Kalyani asked Dr.
Waghmode whether the patient was physically and mentally
fit to give a statement. Dr. Waghmode, therefore, examined
the patient and opined that she was physically and mentally
fit to give a statement. Thereafter, Shri. Kalyani recorded
the dying declaration of Vandana in presence of Dr.
Waghmode. Dr. Waghmode further stated that thereafter
Natepute Police came to the hospital and expressed their
intention to record the statement of Vandana. Dr.
Waghmode, therefore, again examined Vandana Chavan and
give his opinion that she was physically and mentally fit to
give a statement. Accordingly, he put his endorsement
thereon. Dr. Waghmode has identified his endorsements on
both the dying declarations i.e Exh. 23 and Exh. 62.
9. The third dying declaration of Vandana was recorded by
PW 7 ASI Kumbhar. ASI Kumbhar has stated that on
26.11.2008, he was attached to Bundgarden Police Station,
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Pune and he was deputed at Sassoon Hospital outpost. He
was informed about the patient Vandana Hanumant Chavan
being admitted in Sassoon Hospital as she had sustained
burn injuries. He, therefore, immediately went near the bed
of Vandana Chavan. He consulted the medical officer (PW 10
Dr. Moon) on duty. The medical officer examined the patient
and told ASI Kumbhar that the patient was physically and
mentally fit to give a statement. Accordingly, the medical
officer put his endorsement in the margin of the blank sheet.
Thereafter, ASI Kumbhar recorded the statement of the
patient. The patient told him that her husband had set her
on fire as he was suspected her chastity. Thereafter, ASI
Kumbhar read over the statement to the patient. He
obtained thumb impression of the patient on her statement.
He put his signature on the statement. Again the medical
officer examined the patient and certified regarding her
physical and mental fitness from beginning to end.
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10. The medical officer who gave endorsement was PW 10
Dr. Moon. Dr. Moon has stated that on 26.11.2008, he was
attached to Sassoon Hospital in Pune. He was deputed in
burns ward on that day. A patient by name Vandana
Chavan was admitted in the burn ward on that day. The
police came to him and expressed their intention to record
the statement of Vandana Chavan. He, therefore, took the
police to the bedside of the patient. At that time, only Dr.
Moon, the police and the patient were present in the room.
Dr. Moon examined the patient and found her physically and
mentally fit to give a statement. Accordingly, he put his
endorsement in the margin of the blank sheet on which the
police recorded her statement. He identified the
endorsement which is found at Exh. 53 on the dying
declaration Exh. 40. Dr. Moon has further stated that
thereafter the police recorded the statement of the patient.
Police read over the statement to the patient. They obtained
her signature on the statement. The policeman also signed
on the statement. Thereafter, Dr. Moon again examined the
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patient and made endorsement about her physical and
mental fitness at the end of her statement. Dr. Moon has
identified the second endorsement which is marked at Exh.
54. Thus, all the three dying declarations Exh. 23, Exh. 62
and Exh. 40 and the oral dying declaration made by Vandana
to PW 2 Shivaji show that the appellant poured kerosene on
Vandana and set her on fire due to which she sustained burn
injuries. Nothing has been elicited in cross-examination of
PW 2 Shivaji, PW 3 SEO Shri. Kalyani, PW 5 Dr. Waghmode,
PW 7 ASI Kumbhar, PW 10 Dr. Moon and PW 11 PHC Patil to
cause us to disbelieve their evidence. We find their evidence
to be totally trustworthy and hence, we have no hesitation in
relying on the same.
11. That Vandana died a homicidal death is seen from the
evidence of PW 6 Dr. Surwase as well as the other evidence.
Dr. Surwase is the doctor who conducted the postmortem on
the dead body of Vandana. He has stated that in his opinion,
the cause of death of Vandana Chavan was shock due to
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77% burns. This along with three dying declarations and oral
dying declaration show that the death of Vandana was
homicidal.
12. No doubt the evidence on record shows that it was the
appellant who set his wife 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? Ms. Kuttikrishnan, the learned Advocate for the
appellant submitted that the appellant had no intention to
cause the death of his wife Vandana which is seen from the
fact that after Vandana caught fire, the appellant
extinguished the fire and took Vandana to the hospital. To
show that the appellant extinguished the fire, Ms.
Kuttikrishnan placed reliance on dying declaration Exh. 40.
In this dying declaration, Vandana has stated that her
husband poured water on her and extinguished the fire. Ms.
Kuttikrishnan also drew our attention to the evidence of PW 5
Dr. Waghmode who has stated that it is true that the
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appellant had also sustained burn injuries while
extinguishing the fire. In order to show that the appellant
took Vandana to the hospital, Ms. Kuttikrishnan placed
reliance on the dying declaration Exh. 62 and on the
evidence of PW 5 Dr. Waghmode and the investigating
officer PW 9 PSI Nemane. We have perused the said dying
declaration and the evidence of PW 5 Dr. Waghmode and PW
9 PSI Nemane. In the dying declaration Exh. 62, Vandana
has stated that her husband took her in an auto rickshaw
and admitted her in the hospital. PW 5 Dr. Waghmode has
stated that the patient was brought to the hospital by her
husband Hanumant Chavan. The investigating officer PSI
Nemane has stated that it is true that the appellant shifted
Vandana to the hospital. Thus, from the evidence discussed
above, it is seen that after his wife caught fire, the appellant
extinguished the fire and took his wife to the hospital. This
conduct cannot be seen divorced from the totality of the
circumstances. Very probably the appellant would not have
anticipated that the act done by him would have escalated to
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such a proportion that Vandana might die. If he had ever
intended her to die, the appellant would not have
immediately thrown water on her and extinguished the fire
and thereafter, rushed her to the hospital in an effort to save
her. It was obvious that the appellant realized his folly and
was filled with remorse, therefore, he extinguished the fire
and took Vandana to the hospital. In view of the evidence on
record, we are inclined to think that all that the appellant
thought of was to inflict burns and not to kill her but
unfortunately the situation slipped out of control and it went
to a fatal extent. Similar facts arose in the case of Kalu
Ram Vs. State of Rajasthan1. In this case also, the
accused had poured kerosene on his wife and set her on fire,
however, on finding the flames flaring up, he poured water
on her to save her. In the said case, the Supreme Court held
that the case would not he covered by Section 302 of IPC but
it would be covered under Section 304-II of IPC.
1 (2000) 10 SCC 324
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13. In view of the above facts and circumstances, the
conviction of the appellant under Section 302 of IPC is set
aside, instead, the appellant is convicted under Section 304-I
of IPC and for the said offence, he is sentenced to rigorous
imprisonment for 10 years and fine of Rs. 1000/-, in default
R.I. for one year.
14. The conviction and sentence imposed by the learned
Ad-hoc Additional Sessions Judge, Malshiras by Judgment and
Order dated 13.4.2011 passed in Sessions Case No. 9 of
2009 is accordingly modified.
15. The appeal is allowed to the aforesaid extent.
16. The fees to be paid to the appointed Advocate Ms.
Ameeta Kuttikrishnan are quantified at Rs. 10000/-.
[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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