Bombay High Court
Rakesh Ganga Singh vs The State Of Maharashtra on 7 January, 2021
Bench: S.S. Jadhav, N. J. Jamadar
CRIAPPEAL484-2015.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 484 OF 2015
Rakesh Ganga Singh
A/21, Choudhary Niwas Chawl,
Laxmi Nagar, Dharkhadi, Vaishali Nagar,
Dahisar (E), Mumbai. ...Appellant
Versus
The State of Maharashtra
(Through Dahisar Police Station in CR
No.405/2011). ...Respondent
Ms. Farhana Shah, Appointed Advocate for the Appellant.
Mr. S. R. Agarkar, APP for the State/Respondent.
CORAM: SMT. SADHANA S. JADHAV
& N. J. JAMADAR, JJ.
RESERVED ON : 18th December, 2020
PRONOUNCED ON: 7th January, 2021
JUDGMENT : (Per: N. J. Jamadar, J.)
1. This appeal is directed against the judgment and order
dated 3rd February, 2015, passed by the learned Additional
Sessions Judge, Greater Bombay, in Sessions Case No.69 of
2012, whereby the appellant - accused came to be convicted for
the offence punishable under Section 302 of the Indian Penal
Code, 1860 ('the Penal Code') and sentenced to suffer
imprisonment for life and pay a fne of Rs.10,000/-, with default
CRIAPPEAL484-2015.DOC
stipulation, for having committed murder of his wife Seema ('the
deceased').
2. The background facts leading to this appeal can be stated
in brief as under:
(a) The marriage of the deceased was solemnized with
the accused prior to 20 years of the occurrence. They were
blessed with four children; Disha (PW-1), a daughter, and three
sons. They were residing at Choudhary chawl, Laxmi Nagar,
Dharkhadi, Dahisar (East). The accused used to ply auto
rickshaw. The accused was given in to the vice of consuming
liquor and other intoxicating substances. On account of the
addiction and the resultant refusal of the accused to provide for
the household expenses to sustain the family, there were
frequent quarrels between the accused and the deceased.
(b) On 19th December, 2011 at about 9.00 pm. the
accused returned home. After dinner, the deceased requested
the accused to give money for the expenses. The accused got
enraged and started to abuse the deceased. As the quarrel
escalated the accused assaulted the deceased by means of fst
blows and uttered that the deceased deserved to be set ablaze.
In the rage, the accused took up a can containing the kerosene
CRIAPPEAL484-2015.DOC
and doused the deceased with kerosene. Thereafter, the
accused set the deceased on fre by igniting the match stick.
The deceased caught fre and ran out of the house raising
alarm. The neighbours attempted to extinguish the fre and,
thereafter, shifted the deceased to Bhagwati Hospital. The
accused fed away from the spot.
(c) Upon intimation, Mr. Shankar Khatke (PW-12); the
then PSI Dahisar Police Station, reached Bhagvati Hospital.
Requisition was sent to Special Executive Magistrate, Mrs.
Jayashree Ashok Patel (PW-8) to record the statement of the
deceased. Upon arrival of Mrs. Patel (PW-8), the Medical Offcer,
was requested to examine the deceased and certify her ftness to
give the statement. Mr. Harshwardhan Shirsat (PW-7), the
Medical Offcer then attached to Bhagwati Hospital, examined
the deceased at about 1.50 am. on 20 th December, 2011 and
found the deceased ft to give the statement. Thereupon Mrs.
Patel (PW-8) recorded the statement of the deceased as per the
latter's narration. The deceased stated that a quarrel broke out
over the demand of money for running the household, the
accused poured kerosene on her person and set her on fre,
resulting in burn injuries.
CRIAPPEAL484-2015.DOC
(d) On the strength of the said statement (Exhibit-27)
crime was registered at CR No.405 of 2011 at Dahisar Police
Station initially for the offences punishable under Sections 504,
323 and 307 of the Penal Code. During the course of
investigation, Mr. Shankar Khatke (PW-12); the Investigating
Offcer, visited the scene of occurrence and drew panchnama.
The incriminating articles including partly burnt quilt, saree,
inner wear, a plastic can, match box, burnt and live match
sticks, were seized under panchnama (Exhibit-16). The
Investigating Offcer interrogated the witnesses and recorded
their statements. A requisition was also sent to the Executive
Magistrate to record the statement of the deceased. Smt. Rekha
Harchekar (PW-6); the then Nayab Tahsildar, Borivali, visited
Bhagwati Hospital on 20th December, 2011 and recorded the
statement of the deceased, post certifcation of ftness by the
Medical Offcer.
(e) The deceased succumbed to the injuries on 24 th
December, 2011. Postmortem examination was conducted.
Postmortem report (Exhibit-38) was obtained. The accused
came to be arrested. The medical examination of the accused
revealed that there were burn marks on both hands of the
accused. The investigation revealed the complicity of the
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accused for the offence punishable under Section 302 of the
Penal Code. Thus, report under Section 173 of the Code of
Criminal Procedure ('the Code') was lodged in the Court of the
jurisdictional Magistrate.
(f) Upon committal, charge was framed against the
accused for the offence punishable under Section 302 of the
Penal code. The accused abjured his guilt and claimed for trial.
(g) At the trial, the prosecution examined 15 witnesses;
the material witnesses are Disha Rakesh Singh (PW-1); the
daughter of the deceased and accused, Farah Mushrat Ansari
(PW-3); a neighbour and the eye witness, Javetri Phoolchand
Mishra (PW-5); another eye witness, Jayashree Patel (PW-8); the
Special Executive Magistrate, who had recorded the frst dying
declaration (Exhibit-27), Rekha Rajiv Harchekar (PW-6); who
had recorded the second dying declaration (Exhibit-21), Dr.
Harshwardhan Shrikrishna Shirsat (PW-7); who had certifed
the ftness of the deceased to make frst dying declaration on
20th December, 2011, Dr. Avinash Pandrikar (PW-13); another
Medical Offcer attached to Bhagvati Hospital, who professed to
identify the signature of Dr. Tushar Pawar, who had made
endorsement (Exhibit-40) on the second dying declaration to
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certify the ftness of the deceased, Dr. Palakraj Kamwani (PW-9);
who had examined the accused on 20 th December, 2011 and Mr.
Shankar Khatke (PW-12); the Investigating Offcer, who had
carried out substantial investigation. After closure of the
prosecution evidence, the accused was examined under Section
313 of the Code. The accused did not lead any evidence in his
defence which was of denial and false implication.
(h) After evaluation of the evidence the learned
Additional Sessions Judge was persuaded to enter a fnding of
guilt against the accused. The learned Additional Sessions
Judge was of the view that the dying declarations were free from
infrmities and inspired confdence. Moreover, the evidence of
eye witnesses, especially Disha (PW-1), the daughter of the
deceased, was convincing and reliable. Thus, the accused was
convicted for the offence punishable under Section 302 of the
Penal Code and sentenced, as indicated above.
3. Being aggrieved by and dissatisfed with the impugned
judgment and order the accused is in appeal.
4. We have heard Ms. Farhana Shah, the learned Counsel,
who has been appointed to espouse the cause of the
appellant, and Mr. Agarkar, the learned APP for the State, at
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length. With the assistance of the learned Counsels we have
perused the evidence and material on record.
5. Assailing the impugned judgment, Ms. Shah, the learned
Counsel for the appellant, would urge that the learned Sessions
Judge committed an error in placing reliance on the testimony
of Disha (PW-1), the daughter of the deceased. A close scrutiny
of her evidence, according to Ms. Shah, would indicate that
Disha (PW-1) had not witnessed the actual occurrence. The
evidence of Farah Ansari (PW-3) and Javetri Mishra (PW-5), the
alleged neighbours of the deceased, also suffers from the taint of
unreliability as they had no opportunity to witness the
occurrence. The dying declarations (Exhibits 21 and 27)
recorded by Rekha Harchekar (PW-6) and Jayashree Patel
(PW-8), respectively, suffer from material infrmities and thus
the learned Sessions Judge ought not to have placed implicit
reliance on those dying declarations. On the aforesaid premise,
Ms. Shah strenuously urged that both planks of evidence,
namely, the ocular account, formed by the testimony of Disha
(PW-1), Farah Ansari (PW-3) and Javetri Mishra (PW-5), and the
dying declarations, sought to be proved by examining Rekha
Harchekar (PW-6) and Jayashree Patel (PW-8) and the medical
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offcers, are extremely fragile and thus do not sustain the guilt
of the accused.
6. Per contra, Mr. Agarkar, the learned APP, stoutly
submitted that the guilt of the accused is established beyond
the shadow of doubt. Disha (PW-1) was the most natural
witness. The presence of Farah Ansari (PW-3) and Javetri
Mishra (PW-5) to witness the occurrence is also unquestionable.
To add to this, the dying declarations (Exhibits 21 and 27) which
were duly recorded by the Magistrates, post certifcations of
ftness by the medical offcers, seal issue. Thus the appeal is
devoid of substance, urged Mr. Agarkar.
7. The nature of death which the deceased met is not much
in dispute. Dr. Harwardhan Shirsat (PW-7) informed the court
that the deceased was brought at Bhagwati Hospital on 19 th
December, 2011 and he had examined her at 11.58 pm. The
deceased had narrated the history to the effect that there was a
quarrel with the accused and the latter had doused her with
kerosene and set her on fre. Dr. Shirsat (PW-7) claimed to have
noted 50% to 60% superfcial to deep thermal burn injuries.
The case papers (Exhibit-24) came to be proved in the evidence
of Dr. Shirsat (PW-7).
CRIAPPEAL484-2015.DOC
8. It would be contextually relevant to note that the
postmortem report (Exhibit-38) reveals that the deceased had
sustained 60% superfcial to deep thermal burn injuries, as
under:
Head, face, neck = 09%
Rt. Upper limb = 05%
Lt. Upper limb = 04%
Ant. Trunk = 15%
Post trunk = 15%
Perineum = 01%
Rt. Lower limb = 07%
Lt. Lower limb = 04%
-----------------------------------------
Total = 60%
-----------------------------------------
It was opined that the cause of death was septicemia
following 60% superfcial to deep thermal burns (unnatural).
9. At this juncture, recourse to the testimony of Disha
(PW-1), the daughter of the deceased would be apposite. Disha
(PW-1) deposed that at the time of the occurrence she was
studying in 5th standard. On the night of occurrence her
brothers were asleep. The deceased picked up Rs.200/- out of
the money offered to the idol by the accused. The latter was
thus enraged. The accused poured kerosene on the person of
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the deceased and set her on fre by igniting the match stick.
Her neighbours extinguished the fre.
10. During the course of cross-examination of Disha (PW-1) an
endeavour was made to bring home the point that her parents
used to quarrel frequently. It was the practice of the accused to
offer the entire earnings of the day to the idol, and thereafter
give some amount to the deceased for expenses. On the night of
occurrence also the accused had offered the entire earnings to
the idol. Disha (PW-1) however did not cave in to the suggestion
that she was also asleep and thus did not witness the
occurrence.
11. A faint attempt was made in the cross-examination of
Disha (PW-1) to demonstrate that the deceased was short-
tampered and used to rake up quarrels with the neighbours and
had threatened to commit suicide. Though Disha (PW-1)
conceded that the hands of the accused were also burnt in the
incident, nothing could elicited further to show that the
deceased met a suicidal death.
12. The situation which thus obtains is that there is evidence
to indicate that the deceased had herself narrated the history of
having been set her on fre by the accused post quarrel.
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Disha (PW-1), an unfortunate daughter, who was called upon to
depose against her father, accused of having committed murder
of her mother, categorically affrmed that the deceased was set
on fre by the accused. The presence of Disha (PW-1) at the
place and time of occurrence can hardly be questioned. In the
circumstances, a half-baked and gratuitous suggestion that the
deceased met suicidal death does not merit countenance. The
weight of evidence, on the other hand, sustains the only
inference that the deceased met a homicidal death.
13. On the aspect of authorship of death, the evidence of
Disha (PW-1) fnds unfinching corroboration in the testimony of
Farah Ansari (PW-3) and Javetri Mishra (PW-5). Farah Ansari
(PW-3), the neighbour of the deceased, lends support to the
claim of Disha (PW-1) that on the night of occurrence she had
heard the noise of quarrel emanating from the house of the
deceased. Later on, she heard the cries of the deceased bachao
bachao (save, save). She came out of her house and found the
deceased in an engulfed state and tried to extinguish the fre by
pouring water. The deceased informed her that the accused
doused her with kerosene and set her on fre. Nothing material
could be elicited in the cross-examination of Farah Ansari
(PW-3).
CRIAPPEAL484-2015.DOC
14. Javetri Mishra (PW-5), another neighbour of the deceased,
was in unison with Farah Ansari (PW-3). She claimed to have
heard the accused abuse the deceased and threaten to set her
on fre by uttering the words, "sali, jala dunga". She claimed to
have further witnessed the accused pouring kerosene on the
person of the deceased and setting her on fre. It was elicited in
the cross-examination of Javetri Mishra (PW-5) that her house is
at the distance of 7 ft. from the house of the deceased. She
further conceded that when the quarrel between the accused
and the deceased was going on, the residents were standing
near the house of the deceased.
15. The evidence of Farah Ansari (PW-3) and Javetri Mishra
(PW-5) is required to be appreciated in the backdrop of the fact
that the accused and the deceased were residing in a single
room tenement in a densely populated chawl. There is evidence
to indicate that the marital life of the deceased and accused was
afficted by discord on account of refusal of the accused to
provide enough money to meet the household expenses. There
were frequent quarrels between the accused and the deceased.
In this setting of the matter, the claim of the witnesses that they
had heard the noise emanating from the house of the deceased
on account of quarrel between the accused and the deceased
CRIAPPEAL484-2015.DOC
and thus they were drawn towards the house of the deceased
cannot be said to be unbelievable. We do not fnd any justifable
reason to discard the claim of Farah Ansari (PW-3) and Javetri
Mishra (PW-5).
16. In addition to the ocular account, the dying declarations
made by the deceased nail the accused in clear and categorical
terms. Jayashree Patel (PW-8), who had recorded the frst dying
declaration within hours of the deceased having been admitted
in Bhagwati Hospital, informed the Court that pursuant to the
requisition by police she had reached Bhagwati hospital at
about 1.00 am. on 20th December, 2011. She requested the
Medical Offcer to examine the deceased and certify her ftness
to give the statement. The Medical Offcer examined the
deceased and declared her ft to give the statement. Thereupon
Jayashree Patel (PW-8) herself ascertained the condition of the
deceased and found her in a sound state to make the statement.
Jayashree Patel (PW-8) wants the Court to believe that the
deceased had stated before her that on the night of occurrence
when she demanded money from the accused for the household
expenses there was a quarrel and thereupon the accused
doused her with kerosene and set her ablaze by lighting a match
CRIAPPEAL484-2015.DOC
stick. She ran out of the house and her neighbours brought her
to Bhagwati Hospital.
17. Dr. Harshwardhan Shirsat (PW-7) lends support to the
claim of Jayashree Patel (PW-8). He claimed to have examined
the deceased at 1.50 am. and found that the deceased was in a
state to give the statement. The endorsement (Exhibit-23) on
the dying declaration (Exhibit-27) came to be proved in the
evidence of Dr. Harshwardhan Shirsat (PW-7).
18. It is imperative to note that the claim of Jayashree Patel
(PW-7) of having found the deceased in a ft condition to give the
statement and, thereafter, recorded her statement (Exhibit-27)
could not be impeached during the course of her cross-
examination. Nor anything could be brought out in the cross-
examination of Dr. Shirsat (PW-7) to erode his claim that he had
certifed the ftness of the deceased to make the statement.
19. The second dying declaration was recorded by Rekha
Harchekar (PW-6), the then Nayab Tahasildar, Borivali,
pursuant to the requisition by the Investigating Offcer. She
claimed to have visited Bhagwati Hospital on 20th December,
2011 and requested the Medical Offcer to examine and certify
the ftness of the deceased. Post certifcation of ftness, Rekha
CRIAPPEAL484-2015.DOC
Harchekar (PW-6) satisfed herself about the sound state of the
deceased and thereafter recorded the statement (Exhibit-21).
The second dying declaration (Exhibit-21) also proceeds on the
line of the frst dying declaration (Exhibit-27) on the vital
aspects of the cause of injury and the authorship thereof.
20. Though Ms. Shah made a strenuous effort to point out
certain variances in the frst and the second dying declaration,
yet, in our view, those variances are not signifcant and do not
detract materially from the truthfulness and reliability of the
dying declarations.
21. It is trite law that if the dying declaration is found to be
truthful and made in a sound state of mind, it can form the
sole basis of conviction. The mode and manner of recording of
dying declaration are not of decisive signifcance. It is not an
invariable rule of law that the dying declaration must be
recorded by and before the Magistrate. Nor the certifcation of
ftness by the medical offcer is peremptory, in all the cases. A
certifcation by the doctor is essentially a rule of caution. In the
case at hand, evidently, the dying declarations are recorded by
the competent Magistrates. The medical offcers have certifed
the ftness of the deceased to make those declarations. The
CRIAPPEAL484-2015.DOC
testimony of Rekha Harchekar (PW-6) and Jayashree Patel (PW-
8) indicates that the deceased was in a sound state of mind to
make the declaration. Dr. Shirsat (PW-7) lends further support
to the claim of the above witnesses by affrming that he had
recorded the history as narrated by the deceased which was in
conformity with the dying declarations. We do not fnd any
justifable reason to jettison away the dying declarations.
22. In the totality of the circumstances, the ocular account of
Disha (PW-1) lends unwavered corroboration to dying
declarations made by the deceased. We are thus persuaded to
hold that the prosecution has succeeded in establishing that
the accused had set the deceased on fre.
23. Ms. Shah, the learned Counsel for the appellant,
canvassed a submission that even if the prosecution succeeded
in establishing the authorship of the homicidal death, yet, the
accused could not have been convicted for the offence
punishable under Section 302 of the Penal Code. Elaborating
the submission, it was urged that the material on record
unmistakably indicates that the incident had occurred in a spur
of the moment in a sudden quarrel. The deceased provoked the
accused. The latter had, in fact, sustained injuries while
CRIAPPEAL484-2015.DOC
extinguishing the fre. Thus, the proved facts would take the
case out of the purview of murder punishable under Section
302 of the Penal Code.
24. Mr. Agarkar, the learned APP, on the other hand, urged
that the very fact that the accused had poured kerosene on the
person of the deceased and set her on fre betrays a clear
intention on the part of the accused to commit the murder of
the deceased.
25. Upon perusal of the impugned judgment, we get an
impression that the learned Sessions Judge after fnding that
the accused was the perpetrator of the act of setting the
deceased on fre, did not advert to the question as to whether
the said act would amount to "murder" or "culpable homicide
not amounting to murder", in a proper perspective. The question
was determined in a single sentence by observing that "it was
purely a case of murder". The learned Sessions Judge ought to
have embarked upon an enquiry as to whether the proved facts
fall within any of the Exceptions to Section 300 of the Penal
Code. For if the case comes within any of the Exceptions
enumerated in Section 300, the offence would be, "culpable
CRIAPPEAL484-2015.DOC
homicide not amounting to murder', punishable under Section
304 of the Penal Code.
26. In the facts of the case, in our view, the applicability of the
Fourth Exception namely death in a sudden fght warrants
consideration. For applicability of Exception 4, the following
conditions must be satisfed namely,
(i) A sudden fght;
(ii) No premeditation;
(iii) Act was done in a heat of passion and
(iv) The assailant did not take any undue advantage or
act in a cruel manner.
27. On the aforesaid touchstone, reverting to the facts of the
case, the evidence on record indicates that the quarrel ensued
between the accused and the deceased over providing money for
household expenses. Disha (PW-1) affrmed that the accused
got enraged as the deceased picked up a sum of Rs.200/- out of
the money offered by the accused to the idol. It is imperative to
note that in the dying declarations (Exhibits 21 and 27) the
deceased had categorically asserted that after altercation the
accused started to beat her by fst. The accused even uttered
the words that deceased should be set on fre. What is of
critical signifcance is the statement of the deceased, in the frst
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dying declaration (Exhibit-27), that after hearing the said
threat, the deceased provoked the accused by asking him to set
her on fre by uttering the words, "dal de, dal de, jala de, mar
de" (pour it, pour it, set ablaze, kill me). Whereupon the
accused had poured the kerosene from the can and set her on
fre. As indicated above, Disha (PW-1) conceded in the cross-
examination that the accused had also sustained burn injuries
on his hands. The said assertion gets corroboration in the
evidence of Dr. Palakraj Kamwani (PW-9), who had found 3%
burn injuries on both hands of the accused, on 20 th
December, 2011.
28. The aforesaid circumstances cumulatively indicate that
the incident had occurred on the spur of the moment. The
quarrel had broken out over picking up the money offered to the
idol. The act was done in a heat of passion as the accused lost
power of self-control. The frst dying declaration (Exhibit-27)
indicates that the deceased had provoked the accused by
challenging him to carry out the threat to set her ablaze.
Conversely, there is no material to show that the accused took
any undue advantage or acted in a cruel manner. The fact that
the accused had sustained burn injuries, lends credence to his
claim that he tried to extinguish the fre. All these facts, if
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construed in conjunction, sustain an inference that there was
no premeditation.
29. An useful reference, in this context can be made to a
judgment of the Supreme Court in the case of Devendrappa
Yamanappa Biradar vs. The State of Karnataka (Criminal
Appeal No.2485 of 2009), wherein the Supreme Court had
observed as under:
"The evidence on record discloses that the appellant
was addicted to alcohol which was the reason for the constant
bickering between the appellant and the deceased. There is
evidence to show that at the time of the incident, the
appellant was in an inebriated condition and during the fght
which he had with the deceased, he poured the kerosene on
the decesaed and set her on fre. The evidence further shows
that he immediately tried to save her by pouring water and he
was the one who took the deceasd to the hospital.
We have carefully examined the oral and documentary
evidence from the record. The evidence discloses the fact that
the appellant was drunk. He committed the offence whilst
being deprived the power of self control by grave and sudden
provocation. Therefore, the culpable homicide is not murder.
Consequently, we are of the opinion that the appellant does
not deserve to be convicted under Section 302 of IPC. Instead,
he is convicted under Section 304 Part I of IPC and sentenced
to undergo 10 years imprisonment."
(emphasis supplied)
30. A reference can also made to the judgment of the Supreme
Court in the case of Yomeshbhai Pranshankar Bhatt vs. State of
Gujarat1, wherein the appellant accused had gone to the house
of the deceased, who was working as maid and refused to join
her work at the house of the accused. As an altercation ensued,
1 AIR 2011 SC 2328.
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the appellant picked up the kerosene can, emptied it on the
deceased and lit the match stick. The Supreme Court, in the
facts of the said case, held that there was no premeditation to
kill the deceased or cause any bodily harm or injury to the
deceased. Everything had happened on the spur of the moment.
The appellant must have lost self-control on some provocative
utterances of the deceased.
31. In the light of the aforesaid legal position, reverting to the
facts of the case, in our view, the Exception 4 to Section 300 will
come into play. However, since the accused had poured
kerosene on the person of the deceased and set her ablaze, we
are persuaded to hold that the accused had requisite intention
to cause the burn injuries. Thus, in our view, the act of the
accused would fall within the dragnet of Section 304 Part I of
the Penal Code. Having regard to the period of imprisonment
already undergone by the accused and the entire gamut of the
circumstances, including the situation in life of the accused, we
are of the view that, a sentence of rigorous imprisonment for 10
years would meet the ends of justice.
32. The conspectus of the aforesaid consideration is that the
appeal deserves to be partly allowed. Hence, the following order.
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:Order:
(a) The appeal stands partly allowed.
(b) The impugned judgment of conviction and sentence
for the offence punishable under Section 302 of the
Penal Code stands set aside.
(c) The appellant - accused Rakesh Ganga Singh stands
acquitted of the offence punishable under Section
302 of the Penal Code.
(d) The appellant - accused Rakesh Ganga Singh stands
convicted for the offence punishable under Section
304 Part I of the Penal Code.
(e) The appellant - accused Rakesh Ganga Singh is
sentenced to suffer rigorous imprisonment for 10
years and pay a fne of Rs.5000/- (Rupees Five
thousand) and in default of payment of fne suffer
further simple imprisonment for two months.
(f) The appellant accused is entitled to set off under
Section 428 of the Code.
[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.]
Digitally
signed by
V. S.
V. S. Parekar
Parekar Date:
2021.01.07
15:24:45
+0530
