Bombay High Court
Devendra Ramesh Dhakras vs The State Of Maharashtra on 6 September, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 764 OF 2014
Devendra Ramesh Dhakras ]
Age 22 years, Occ: Nil ]
C/6904, Nasik Road Central Prison, ]
Nasik ]..Appellant
[Ori.Accused No.1 ]
Vs.
The State of Maharashtra ]..Respondent
....
Mr. Prosper D'Souza Advocate appointed for the Appellant
Mr. Arfan Sait A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
DR.SHALINI PHANSALKAR-JOSHI, JJ.
DATED : SEPTEMBER 01 / 06, 2017
ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]
1 This appeal is preferred by the appellant-original
accused no.1 against the judgment and order dated 2.4.2008
passed by the learned Sessions Judge, Raigad-Alibag in
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Sessions Case No. 170 of 2006. 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.15,000/- i/d R.I. for four years. For
the offence under Section 498-A of IPC, the appellant has been
sentenced to R.I. for three years and fine of Rs.15,000/- i/d R.I.
for one year.
2 The prosecution case briefly stated, is as under:
(i) The appellant was married to Sarika on 1.10.2004. It
was a love marriage. After the marriage, Sarika went to reside
in her matrimonial home at Vavoshi Fata, Khalapur, Dist.
Raigad. She was residing in the matrimonial house along with
her mother-in-law, father-in-law, unmarried sister-in-law Pravina
& the appellant. PW 4 Shamkant was the brother of Sarika. He
was residing at village Vadhav. The father of Sarika was
residing in Dubai since 12 years prior to the incident. After the
marriage, the appellant started demanding money & there was
illtreatment & harassment to Sarika by the appellant.
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(ii) The incident occurred on 28.8.2005 at about 6.45
p.m. in the matrimonial house. It is the prosecution case that
the appellant poured kerosene on Sarika and set her on fire.
Sarika was taken to the hospital. In the hospital, two dying
declarations of Sarika were recorded. First dying declaration is
at Exh. 20 and the second dying declaration is at Exh. 42. Exh.
20 was recorded by PW 1 ASI Warge and dying declaration Exh.
42 was recorded by PW 8 Special Executive Magistrate Walanj.
In both the dying declarations, Sarika stated that her husband
had set her on fire. Both the dying declarations were recorded
on 29.8.2005. Dying declaration Exh. 20 was recorded between
10.00 a.m. to 10.30 a.m. and the same was treated as F.I.R.
Thereafter investigation commenced. Sarika expired on
3.9.2005. PW 9 Dr. Jyoti Dake conducted the post-mortem on
the dead body of Sarika. According to Dr. Jyoti Dake, probable
cause of death was "Septicemia due to 90% deep burn
injuries". After completion of investigation, charge-sheet came
to be filed.
3 Charge came to be framed against the appellant
under Sections 302 and 498-A read with Section 34 of IPC. The
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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.
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 Sarika and set
her on fire.
5 The conviction is mainly based on two dying
declarations Exh. 20 and Exh. 42. Dying declaration Exh. 20
was recorded by PW 1 ASI Warge and dying declaration Exh. 42
was recorded by PW 8 Special Executive Magistrate Walanj.
6 PW 1 ASI Warge has stated that on 29.8.2005 he was
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posted on duty in the civil hospital. At about 10 a.m. he was
called by the Medical Officer as one patient with burn injuries
was admitted in the hospital and her statement was to be
recorded. ASI Warge requested the Medical Officer to confirm
whether the patient was in a fit condition to give her statement.
ASI Warge also noticed that the patient was able to talk.
Medical Officer allowed ASI Warge to record the statement of
the patient. ASI Warge requested the Medical Officer to remain
present while recording the statement of the patient.
Accordingly, the Medical Officer remained present. After
recording the statement, Medical Officer again examined the
patient. ASI Warge has stated that Sarika Dhakras informed
him that her husband poured kerosene on her person and set
her on fire. He read over the statement recorded to her. The
contents of the statement were admitted by her to be true and
correct. Thereafter he obtained thumb impression of the
patient.
7 PW 8 Shri. Walanj has stated that he was working as
Naib Tahsildar since November, 2004. He has stated that he
received requisition to record the dying declaration of one
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patient. Pursuant thereto, he went to civil hospital Alibag on
29.8.2005 at about 10 a.m. He contacted the medical officer
on duty. On enquiry by Shri. Walanj, the medical officer on duty
gave in writing that the patient is in a condition to give her
dying declaration. Thereafter Shri. Walanj recorded the dying
declaration of Sarika. The said dying declaration is at Exh. 42.
In the dying declaration, Sarika has stated that her husband
poured kerosene on her and set her on fire. Thus, both the
dying declarations Exhs. 20 and 42 show that the appellant
poured kerosene on his wife Sarika and set her on fire.
8 In addition to two dying declarations Exh. 20 and Exh.
42, the prosecution is relying on oral dying declarations which
were given by Sarika to PW 3 Devta Patil and PW 4 Shamkant
Mhatre. PW 3 Devta Patil has stated that he was the paternal
uncle of Sarika. He has stated that Sarika was married with
appellant Devendra on 1.10.2004. He has stated that Sarika
used to telephone her father about the illtreatment caused to
her. The room where Sarika was residing with Devendra was at
a distance of 5 minutes from the room of Devta Patil. He has
stated that after 7 to 8 days of the marriage, Devendra started
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harassing Sarika by telling her to bring money from her father
as he wants to start a business. Devendra started beating
Sarika. Devta Patil has stated that he met Sarika on 28.8.2005
at about 12 noon. She was able to talk. On enquiry, Sarika
told him that her husband poured kerosene on her and set her
on fire. PW 4 Shamkant was the brother of Sarika. He has
stated that Sarika's husband Devendra was unemployed.
Shamkant has stated about harassment by the appellant to
Sarika. Shamkant has further stated that he received a
telephone call that Sarika had sustained burn injuries and was
admitted in the hospital, hence, he went to the hospital. On
enquiry with Sarika, she informed him that she was set on fire
by her husband.
9 That Sarika died a homicidal death is proved through
the evidence of PW 9 Dr. Dake and the other evidence on
record. Dr. Dake has stated that she performed post-mortem
on the dead body of Sarika on 3.9.2005. According to Doctor,
the probable cause of death was "septicemia due to 90% deep
burn injuries". In addition, all the dying declarations also show
that the appellant had set his wife Sarika on fire.
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10 Mr. D'Souza submitted that even assuming that the
act of the appellant caused the death of Sarika, the case would
not fall under Section 302 of IPC but it would fall under Section
304 part-II of IPC. He submitted that the appellant had not
intended to cause the death of his wife Sarika. He submitted
that as soon as Sarika caught fire, the appellant tried to
extinguish the fire and thereafter he had rushed Sarika to the
hospital in an effort to save her. To support his contention that
the appellant tried to save Sarika when she caught fire and in
the process, the appellant also sustained burn injuries, he has
placed reliance on Exh. 57 which is the injury certificate of the
appellant issued by the Primary Health Centre, Khalapur. This
shows that the appellant had sustained extensive burn injuries.
They are as under:
" 1. Burn Marks 6 x 3 cm. Rt. thumb planter and dorsal;
2. Burn Marks 5 x 4 cm. Rt. Middle finger dorsal;
3. Burn Marks 5 x 3 cm. Rt. Ring finger and little finger;
4. Burn Marks 10 x 2 cm. Rt. Ant. Cervical region;
5. Burn Marks 6 x 5 cm. sternum and Rt. Lat. Side of sternum
6. Burn Marks 3 x 2 cm. tip of Nose;
7. Burn Marks 5 x 4 cm. Mentum;
8. Burn Marks 5 x 3 cm. Both upper eye lids."
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11 In addition, Mr. D'Souza drew our attention to the
dying declaration Exh. 42 wherein Sarika has stated that she
was brought to the hospital by her husband.
12 No doubt, the evidence on record shows that it was
the appellant who set his wife Sarika 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 after Sarika caught
fire, the appellant had taken Sarika to the hospital. The medical
certificate Exh. 57 also shows that extensive injuries were
sustained by the appellant. This supports the contention of Mr.
D'Souza that as soon as Sarika caught fire, the appellant made
efforts to extinguish the fire and in the process, he sustained
extensive burn injuries. This conduct of the appellant of
extinguishing the fire and immediately taking Sarika to the
hospital, 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
such a proportion that she might die. If he had ever intended
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her to die, he would not have immediately extinguished the fire
and rushed her to the hospital in an effort to rescue her.
13 In view of the evidence on record, we are inclined to
think that all that the appellant thought of, was to frighten her
by inflicting few burn injuries and not kill her. But unfortunately
situation slipped out of his control and it went to a fatal extent.
Similar facts arose before the Supreme Court in the case of
Kalu Ram Vs. State of Rajasthan reported in 2010 SCC 324. In
the said case, the Supreme Court held that the case would be
covered by Section 304 Part-II of IPC.
14 In view of the above facts and circumstances, the
conviction and sentence of the appellant under Section 498-A of
IPC is maintained, however, indefault sentence is reduced to S.I.
for one month instead of R.I. for one year. We alter the
conviction of the appellant from Section 302 of IPC to Section
304 part-II of IPC. Both sides agreed that the appellant has
been in custody for more than nine years, hence, we reduce the
period of imprisonment under Section 304 Part-II of IPC to nine
years and fine of Rs.15,000/- in default S.I. for one month. If
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fine amount is paid, out of it, Rs.25,000/- to be paid to brother
or father of Sarika as directed by the trial Court.
15 The conviction and sentence of the appellant is
modified to the extent indicated above. If the appellant has
undergone the sentence, he be released forthwith. Appeal is
partly allowed in above terms.
16 Office to communicate this order to the appellant who
is in Nasik Road Central Prison, Nasik.
[DR.SHALINI PHANSALKAR-JOSHI, J.] [ SMT.V.K.TAHILRAMANI,J.]
kandarkar
