Allabaksh Gafur Shaikh vs The State Of Maharashtra
2021 Latest Caselaw 15818 Bom

MUGDHA M                                      1     Judgment-APPEAL 658-17.odt
PARANJAPE
Digitally signed by
MUGDHA M
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PARANJAPE
Date: 2021.11.17             CRIMINAL APPELLATE JURISDICTION
14:47:21 +0530


                                CRIMINAL APPEAL NO.658 OF 2017

          Allabaksh Gafur Shaikh
          Age : 34 years,
          R/at : Opp. Dawood Kirana Stores,
          Krantinagar, Khadipar, Bhiwandi,
          Dist. Thane.
          (Presently lodged at Kalyan Prison)                      ... Appellant

                      Vs.

          The State of Maharashtra
          (Through Nijampura Police Station, Bhiwandi).            ... Respondent
                                          -------
          Mr. Aniket Vagal for the Appellant.
          Mr.S.S. Hulke, APP for the Respondent-State.
                                          -------

                                            CORAM : S.S. SHINDE AND
                                                    ABHAY AHUJA, JJ.

RESERVED ON : 12TH OCTOBER, 2021 PRONOUNCED ON : 16TH NOVEMBER, 2021

JUDGMENT : (PER ABHAY AHUJA, J.)

1. This is an Appeal preferred by the Appellant (Original

Accused) against the judgment and order dated 28 th June, 2017,

passed by the learned Additional Sessions Judge, Thane, in Sessions

Case No.586 of 2014, thereby convicting the Appellant for offence

punishable under Section 302 read with Section 504 of the Indian

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Penal Code, 1860 ("IPC") and sentencing the Appellant to suffer

imprisonment for life and fne of R.5,000/-, in default to suffer

further rigorous imprisonment for three months.

2. The case of the prosecution is briefy stated as under :-

(a) The deceased Shama Allabaksh Shaikh was wife of the

Appellant. On 6th August, 2014, at around 4.00 p.m. the Appellant

came home and asked the deceased to serve food. It is stated that

the deceased had not prepared any food as she was expecting him

for food in the evening and was yet to prepare the food. The

Appellant started quarreling with the deceased and started abusing

her, with flthy language and gave provocation to her to breach

public peace. Thereafter, the Appellant started assaulting the

deceased and then picked up the plastic can containing kerosene

and poured kerosene on the person of the deceased and after

lighting a match stick threw the same on her, setting her on fre,

knowing that the said act would cause the death of the

deceased/complainant.

(b) Shama was frst taken to Indira Gandhi Memorial

Hospital, Bhiwandi and thereafter as per the recommendation of the

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doctor there, was brought to Thane Civil Hospital by her mother, the

Appellant and a neighbour for further treatment with 85% to 90%

burns in the burns ward.

(c) On 6th August, 2014 PI Deepak Dinkar Barge, attached to

Nijampura Police Station (PW-4) went to Indira Gandhi Memorial

Hospital and after obtaining doctor's endorsement about Shama's

condition to make statement, recorded her complaint (Exhibit-26)

where she has categorically stated that at around 4.00 p.m. on 6 th

August, 2014 her husband came back to the house in a drunken

state and after abusing her and assaulting her on her failure to

prepare meals, poured kerosene from a plastic can in the house and

set her on fre and, therefore, she was making the complaint against

her husband.

(d) On 7th August, 2014 Dhondiba Gopinath Khansole (PW-

3), working as a Talathi with delegated powers as Special Executive

Magistrate, was directed to record statement of Shama Shaikh who

was admitted to Thane Civil Hospital as a burn case. After obtaining

endorsement from the doctor on the patient's condition to make a

statement, recorded statement/dying declaration (Exhibit-22) of

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the complainant/deceased by following due procedure in the

required format after Shama Shaikh stated that as she did not

prepare meals, her husband got annoyed and set her on fre.

(e) Based on the above, offence under Section 307 read with

Section 504 of the IPC was registered on 6 th August, 2014 which, as

it transpired, later on due to death of the complainant, was

converted into Section 302 read with Section 504 of the IPC.

(f) On 12th August, 2014 at 8.10 a.m., Shama succumbed to

her injuries at Thane Civil Hospital.

(g) On 12th August, 2014 itself Dr. Pradnya Ganesh Band

(PW-2) conducted postmortem of the complainant/deceased. The

Postmortem Report (Exhibit-15) shows the probable cause of death

was septicemic shock due to 85% burn injuries.

3. The investigation was carried out and after completion

of investigation, the Charge (Exhibit-4) came to be framed on 1 st

April, 2017 against the Appellant (Original Accused) under Sections

302, 307, 323 and 504 of the IPC and the Appellant was

chargesheeted.

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4. According to the prosecution, while committing the said

act of pouring kerosene on the complainant and setting her on fre,

the Appellant (Original Accused) also abused the complainant/

deceased in flthy language and provoked her to commit the breach

of public peace. Therefore, on the complaint lodged by the

complainant/deceased herself, an offence initially punishable under

Section 307 read with Section 504 of the IPC was registered and

later on due to the death of the complainant, it was converted into

Section 302 of the IPC read with Section 504 of the IPC.

5. The Appellant (Original Accused) pleaded not guilty to

the said charge and claimed to be tried.

6. Prosecution has adduced evidence of Ms. Sharifa Lal

Vajir Shiakh, mother of the deceased (PW-1), Dr. Pradnya Ganesh

Band (PW-2), Mr. Dhondiba Gopinath Khansole, Talathi-cum-Special

Executive Magistrate (PW-3), PI Mr. Deepak Dinkar Barge,

Investigating Offcer (PW-4) and Dr. Vidya Pramod Chapalgaonkar,

Medical Offcer, who had admitted complainant at Civil Hospital,

Thane (PW-5), as witnesses No.1 to 5 respectively. On completion of

evidence, statement of accused was recorded as per his say. His

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defence was that of total denial and that a false case had been made

out against him.

7. After the trial of the Appellant (Original Accused) under

Section 302 read with Section 504 of the IPC, the learned Additional

Sessions Judge, Thane convicted the Appellant (Original Accused)

for the aforesaid offences and sentenced him to suffer imprisonment

for life and fne of Rs.5,000/-, in default to suffer further rigorous

imprisonment for three months.

8. Aggrieved by the aforesaid, the Appellant is in Appeal.

9. We have heard Mr. Aniket Vagal, learned counsel for the

Appellant and Mr.S.S. Hulke, the learned APP for Respondent-State.

10. Learned APP points out that the complaint was recorded

at the instance of victim herself and not only during recording her

statement in the complaint as well as in her dying declaration she

has categorically stated the incident of quarrel between herself and

the accused and that the accused himself has poured kerosene on

her person and set her on fre. According to him, the said statement

is itself suffcient to convict the accused as at the time of committing

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the said act he has set her on fre, not only by intentionally pouring

kerosene on the person of the deceased, but also with knowledge

that such act may cause serious injuries, bodily pain to complainant

or may cause her death. Therefore the act of the accused is certainly

within the four corners of Section 302 and deserves to be punished

according to said Section.

11. On the other hand, Mr. Vagal submits that except the

dying declaration there is absolutely no evidence on record which

connects the Appellant/accused person with the alleged crime.

According to him, though two statements of the victim were

recorded; one by the investigating offcer and other by so-called

Special Executive Magistrate, their admissions in the cross-

examination are itself suffcient to discard both those statements as

the complainant expired and the contents of the complaint cannot

be proved through the investigating offcer. He submits that the

offcer who had recorded the dying declaration has neither obtained

opinion of the doctor that the complainant/victim was in ft state of

mind to make the statement nor had he ever issued any such

request letter to the medical offcer to give such opinion. Therefore,

in the absence of any such document on record it is diffcult to

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accept that proper procedure was followed while recording the

dying declaration. Learned counsel also submits that the offcer had

no authority to record dying declaration. Learned counsel further

submits that the concerned medical offcer's opinion is insuffcient

to consider the dying declaration and that the said document be

discarded. It was further argued by the learned counsel that there is

absolutely no corroborative evidence to the said dying declaration

and as such in absence of any such evidence, case of the prosecution

cannot be said to be proved. Hence, he has requested that the

Appellant/accused be acquitted.

12. While making submissions in reply, the learned APP has

placed reliance on Laxman Vs. State of Maharashtra; (2002) 6 SCC

710 in order to substantiate his arguments that it is not necessary

for the person recording a dying declaration to obtain an

endorsement from doctor that declarant was in a ft state of mind to

make statement as long as there is material on record that indicates

that deceased was fully conscious and was capable of making the

statement, which statement he submits is corroborated by the

complaint at Exhibit-26. Hence, he has requested to reject the said

defence and to sustain the conviction of the accused as above.

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13. We have given our anxious consideration to the facts and

circumstances of the case, the arguments advanced by the learned

counsel, the evidence on record and considered the judgment

delivered by the learned Additional Sessions Judge, Thane.

14. Prosecution's case in a nutshell is that on the eventful

day, time and place within the jurisdiction of Nijampura Police

Station, Bhiwandi, accused has intentionally poured kerosene on the

person of deceased and knowingly that his act of setting fre is likely

to cause her death, has intentionally and knowingly set her on fre.

At the same time on aforesaid date, time and place, he has

intentionally insulted complainant Shama Shaikh by abusing her in

flthy language and thereby gave provocation to her to break public

peace. As per the prosecution, after the complainant was set on fre

and started shouting for help accused had frightened and then made

an attempt to extinguish the fre by pouring water on her person.

She was then admitted to the hospital, wherein investigating offcer

has recorded her statement cum complaint and on that basis has

registered offence. Prosecution has, therefore, requested that on the

basis of evidence brought before the court the conviction of the

accused be sustained. Prosecution, in order to substantiate the

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allegations, has accordingly examined aforesaid fve witnesses. Out

of the said fve witnesses, Sharifa Shaikh (PW-1), mother of

deceased, turned hostile and remaining witnesses have supported

the case of prosecution.

15. The entire case and the conviction of the Appellant is

based on the dying declaration (Exhibit-22) of the victim and the

complaint (Exhibit-26).

16. The main objection on behalf of the Appellant is that on

the dying declaration (Exhibit-22) there is absolutely no

endorsement of the concerned doctor and hence the dying

declaration (Exhibit-22) cannot be treated as such and no reliance

can be placed on it.

17. The complaint (Exhibit-26) has been recorded on 6th

August, 2014 by PI Deepak Barge (PW-4), attached to Nijampura

Police Station, after obtaining doctor's endorsement about the

victim's condition, wherein victim Shama has stated that at around

4.00 p.m. on 6th August, 2014 her husband came back to the house in

an inebriated state and after abusing and assaulting her on her

failure to prepare the meals, poured kerosene from a plastic can in

the house and set her on fre and, therefore, she was making the

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complaint against her husband. The dying declaration (Exhibit-22)

was recorded on 7th August, 2014 by Talathi, viz., Dhondiba

Khansole (PW-3) stating that after inquiring from the victim about

the incident and after following due procedure, he recorded the

dying declaration (Exhibit-22) in the required format. The dying

declaration (Exhibit-22) recorded by the Talathi, viz., Dhondiba

Khansole (PW-3), which was last statement recorded at her

instance, is corroborated by the complaint (Exhibit-26).

18. PI Deepak Barge (PW-4) in his examination-in-chief

stated that on 6th August, 2014 he was attached to Nijampura Police

Station as Police Sub-Inspector and at 5.00 p.m. he received a phone

call from an unidentifed person that at Kranti Nagar one lady has

sustained burn injuries and is admitted to Indira Gandhi Memorial

Hospital, Bhiwandi. He therefore went there and found that initial

treatment was provided to the victim and who was then shifted to

Thane Civil Hospital. He then obtained endorsement of the doctor

about patient's condition to make a statement and after the doctor's

consent, the statement of the victim was recorded. He stated that

the victim had made a statement that at about 4.00 p.m. her

husband returned back to the house in a drunken condition and on

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the ground of her failure to prepare and serve meals, has abused

and assaulted her and then has poured kerosene from the plastic

can and set her on fre, that he had written the statement in

Marathi and read it over to the victim in Hindi and, thereafter,

obtained her thumb impression on the statement, which he has

identifed and signed on the statement. He has stated that he has

registered the offence being C.R. No. I 155/2014 under Sections 307,

324, 504 of the IPC and personally investigated the matter,

prepared the spot panchanama after taking over investigation on

6th August, 2014 and on 7th August, 2014 accused was arrested and

his clothes were seized, that on 12th August, 2014 the victim

succumbed to her injuries, after which he prepared the inquest

panchanama and also recorded statement of Sharifa Shaikh (PW-1),

who has been declared hostile. He also confrms that the then

Talathi, Thane, viz., Dhondiba Khansole (PW-3) has recorded the

dying declaration and also obtained the postmortem note. He

further states that on 24th August, 2014 he has recorded the

statement of other witnesses as per their say and also forwarded

the muddemal seized to the laboratory for analysis. After

completion of investigation, he has forwarded the chargesheet

against the accused. He further stated that after recording the

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statement of the victim, he had obtained an endorsement of the

concerned doctor and that the complaint (Exhibit-26) is in the

handwriting of Police Constable Kapase. He states that on 6 th

August, 2014 itself he had issued a letter that the Tahsildar, Thane

should record a dying declaration.

19. Dhondiba Khansole (PW-3), the Talathi has in his

examination-in-chief stated that he also has powers as Special

Executive Magistrate and on 7th August, 2014 he was requested to

record the statement of Shama Shaikh admitted as a burn case at

Thane Civil Hospital where he reached at about 7.00 p.m. to 7.15

p.m. and after meeting Dr. Dipti Rokade who was on duty, went to

the patient. He inquired from the patient whether she could

understand Marathi language, her name, age, address and family

background, which he noted in the format. He also inquired from

the victim as to how the incident had occurred and received her

reply that as she had not prepared meals, her husband got annoyed,

poured kerosene and set her on fre. He has stated that he had made

entries in the format and also obtained right hand thumb

impression of the patient. From the examination-in-chief and cross-

examination of Dhondiba Khansole (PW-3) it is clear that he was

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authorised to record the dying declaration being Talathi and that he

met the medical offcer and then recorded the dying declaration of

Shama Shaikh on 7th August, 2014 being Exhibit-22.

20. We have also reviewed the examination-in-chief as well

as the cross-examination of Dr. Vidya Chapalgaonkar (PW-5),

medical offcer attached to Thane Civil Hospital, who was present on

duty on 6th August, 2014 at Civil Hospital, Thane at about 6.30 p.m.

and examined the injured by name Shama Allabaksh Shaikh, who

was admitted in the hospital with burn injuries after being referred

to the Civil Hospital, Thane by Indira Gandhi Memorial Hospital,

Bhiwandi. It is stated that on clinical examination after she was

admitted in burn ward, it was found that she was sustained 85% to

90% burn injuries, that after sometime, she has again examined the

victim and opined that she was conscious and ft to make a

statement as made in Exhibit-26 and the endorsement was in her

handwriting and bears her signature and seal.

21. We have also taken a look at the examination-in-chief

and cross-examination of Dr. Pradnya Band (PW-2). Dr. Band (PW-

2) has stated that she was requested on 12 th August, 2014 through

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Thane Nagar Police to conduct the postmortem of Shama Allabaksh

Shaikh and after conducting the postmortem on the person of

Shama, has noted surface wound injuries and other required details

and stated that the probable cause of death was septicemic shock

due to 85% burn injuries and she has accordingly issued the

postmortem report dated 12th August, 2014.

22. We had the occasion to take a look at the postmortem

report (Exhibit-15) and observe that the surface wounds and

injuries referred to at Sr. No.18 have the remarks "superfcial to

deep burns of a total of 85%". At the end of the report under the

caption of 'opinion as to the cause/probable cause of death', it is

remarked "death due to septicemic shock due to 85% burns

superfcial to deep".

23. We observe that while recording the complaint (Exhibit-

26), the investigating offcer has obtained opinion of the doctor that

patient was able to make a statement. Accordingly, medical offcer's

endorsement is made on the complaint itself which is fled at

Exhibit-26. The dying declaration (Exhibit-22) is corroborated by

the complaint (Exhibit-26). He has then narrated the facts that

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initially he had asked the patient whether she understood Marathi

language and then asked her name, age and other family members

background and then recorded the actual incident in question

answer form. As such it appears that dying declaration (Exhibit-22)

was recorded while the patient was in a ft condition to make the

statement. Our view draws strength from the decision of the larger

bench of the Apex Court in the case of Laxman Vs. State of

Maharashtra (supra), where it has been held that whenever there is

material on record which indicates that deceased was fully

conscious and was capable of making statement, dying declaration

cannot be ignored only because doctor has not made any

endorsement that deceased was in a ft state of mind to make the

statement in question.

24. The Hon'ble Apex Court in the case of Sher Singh Vs.

State of Punjab; AIR 2008 SC 1426 has endorsed this view that

whenever it is proved by the testimony of the Magistrate that

declarant was ft to make a statement, even without there being a

doctor's opinion to that effect, the same can be acted upon.

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25. We therefore agree with the view of the trial court that

the argument of absence of endorsement of doctor on the dying

declaration (Exhibit-22) has to be discarded in view of the Apex

Court decision.

26. With respect to the arguments of the learned counsel for

the Appellant that when sedative is administered to a patient, it is

diffcult to accept that such a patient was really in a ft condition to

make the statement and even though the said medical offcers have

accepted that as it was the burn injuries case patient was

administered some sedative and pain killers and have named those

medicines during cross-examination, however, all such suggestions

appear to be general in nature as observed by the learned trial judge

and we agree that no specifc suggestion was put to the said medical

offcers that due to the said sedatives or pain killers, patient was not

really in a condition to make a statement. On the other hand, the

dying declaration (Exhibit-22) and the complaint (Exhibit-26) is

corroborative in nature and the facts stated in both the statements

are identical. Therefore, it cannot be said that there was any sort of

pressure on the person making the statement at the time of

recording dying declaration (Exhibit-22) as well as complaint

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(Exhibit-26). Victim has narrated the incident which had really

occurred can be presumed. In our view, therefore the patient was in

a ft condition to make the dying declaration (Exhibit-22). On the

basis of said dying declaration (Exhibit-22) and complaint (Exhibit-

26) it can be presumed that whatever statement has been made is

in accordance with the incident occurred. We therefore accept the

dying declaration (Exhibit-22).

27. It is observed from the examination-in-chief and cross-

examination as well as from the dying declaration, the complaint,

postmortem report that there is no dispute about the presence of

the Appellant at the time of the incident. Except him and the

deceased, there is no eyewitness to the incident. Besides the

Appellant, there was nobody else in the house and whatever

occurred between the complainant/deceased and the Appellant is

something within the special knowledge of the victim and of the

Appellant alone.

28. The victim is dead after giving her complaint (Exhibit-

26) and statement (Exhibit-22), which is the dying declaration. It

was therefore expected that the Appellant would submit an

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explanation on how the incident had occurred in the context of the

complaint, the FIR, the dying declaration, but there has been no

explanation on these special facts by the Appellant. The learned

trial judge has found that the incident occurred around 4.00 p.m.

and that the material used for committing the offence, viz., plastic

can containing the remaining quantity of kerosene alongwith the

piece of the clothes of the deceased, match box, etc., have been

seized by the investigating offcer, special facts that the Appellant

had poured the kerosene on the person of the complainant/deceased

and then set her on fre and in the face of the muddemal seized, it

was only expected from the Appellant to put forth a proper

explanation as to why those articles were seized from the spot in

corroboration with the statement of the deceased. However, there

has been no explanation on this special facts, which were within the

knowledge of the Appellant. Therefore, in view of Section 106 of the

Evidence Act, which is an exception to general rule that prosecution

has to prove every fact alleged, except in the case of facts which are

in the special knowledge of the accused. We agree with the learned

trial judge that in the absence of any such plausible explanation, the

presence of the accused at the relevant time defnitely raises

questions about the defence of the Appellant. In view of the dying

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declaration (Exhibit-22) and the complaint (Exhibit-26), there was

absolutely no reason to involve the Appellant in the present matter,

if the Appellant would not have committed the said act. We,

therefore, see no reason to interfere with the aforesaid fndings of

the learned trial judge.

29. In this view of the matter we agree with the learned

Additional Sessions Judge in coming to a conclusion that the

Appellant has not put forward any plausible defence, either in the

cross-examination or while recording statement under Section 313

of the Cr.P.C. raising any doubt about the case of the prosecution

especially in the absence of any eyewitness other than the accused

and in the face of the the dying declaration (Exhibit-22) and the

complaint (Exhibit-26). We also agree that the mother of the victim,

viz., Sharifa Shaikh (PW-1) having been declared hostile, would not

make any difference in view of the above fndings. The learned trial

court is correct in saying that once the defence has admitted the

spot panchanama and articles referred to therein have been

confrmed by the investigating offcer upon the spot visit, the onus

had really shifted on the Appellant after the deposition of the fve

witnesses to put forward an explanation as to what had actually

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happened, making the prosecution's case more probable in the

absence of any such explanation. We therefore agree with the

learned trial Judge that the circumstances complete the ring of

events and the facts are suffcient to point out that crime has been

committed by the accused alone.

30. After the appeal hearing was almost concluded, Mr.

Vagal, learned counsel for the Appellant submitted upon

instructions, that the incident is admitted and sentence is the only

question. He therefore seeks to confne his arguments only to the

sentence part. Learned counsel for the Appellant has submitted that

while making an attempt to save the victim, accused has also

sustained injuries and when the accused came to know that

treatment is not possible at Indira Gandhi Memorial Hospital, he

has made attempt to arrange for money to administer proper

treatment to the victim and taken her to Thane Civil Hospital. He

has also submitted that accused has got two tender aged children

and there is nobody else to look after them. He therefore submits

that this Court modify the conviction of the Appellant from Section

302 to Section 304 Part II and reduce the sentence. Learned

counsel for the Appellant relies upon the decision of the Hon'ble

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

(2000) 10 SCC 324 and on the decision of this Court in the case of

Hanumant Bhiva Chavan Vs. State of Maharashtra in Criminal

Appeal No.524 of 2011.

31. On the other hand, learned APP has submitted that the

order of the learned trial judge be sustained and maximum

punishment as prescribed under the IPC be imposed on the

Appellant.

32. We, therefore, proceed to deal with the issue of

sentencing. Section 302 of the IPC is quoted as under :-

"302. Punishment for murder.--Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fne."

From a perusal of Section 302 of the IPC, we observe

that it provides either with capital punishment of death or

imprisonment for life and the accused is also be liable to pay fne.

33. The trial court has, after considering Section 302 of the

IPC convicted the Appellant for offence punishable under Section

302 and sentenced the Appellant to life imprisonment and fne.

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34. It would also be apposite here to set forth the provisions

of Section 304 of the IPC, which read thus :-

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fne, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fne, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

35. Section 304 does not defne an offence but provides for

punishment for culpable homicide not amounting to murder. It

draws a distinction for punishment in cases covered by one of the

fve exceptions in Section 300 when there was intention to kill a

person and there was only knowledge that death will likely be

caused. When it is proved that accused had the intention to cause

such bodily injury as is likely to cause death, the offence committed

is punishable under Section 304 Part I of the IPC. Section 304 Part

II is attracted when it is proved that even if the accused had no

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intention to cause such bodily injury as was likely to cause death

but had the knowledge that injury was likely to cause death.

However, in the decision of Kalu Ram Vs. State of Rajasthan (supra)

cited by the learned counsel for the Appellant, the Hon'ble Supreme

Court has, in almost similar circumstances as in the present case,

held that the conduct of accused/convict cannot be seen divorced

from the totality of the circumstances. The Hon'ble Supreme Court

goes on to observe that very probably he would not have anticipated

that the act done by him would have escalated to such a proportion

that his wife/victim might die. If he had ever intended her to die he

would not have alerted his senses to bring water in an effort to

rescue her. All that the accused thought of was to infict burns to

her and to frighten her, but unfortunately the situation slipped out

of his control and it went to the fatal extent. He would not have

intended to infict the injuries which she sustained on account of his

act. The Hon'ble Supreme Court therefore went on to hold that the

offence has to be brought down from frst degree murder to culpable

homicide not amounting to murder and altered the conviction from

Section 302 of the IPC to Section 304 Part II of the IPC.

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36. In the case at hand we note from the complaint (Exhibit-

26) lodged by the victim Shama Shaikh that she was married with

the Appellant around six years before the said incident and had two

daughters from him. She has also stated in her complaint that her

husband was a rickshaw driver operating a rickshaw on rental basis

from which income they would run their household. She has also

stated that the Appellant was addicted to liquor and in an

intoxicated state, he would abuse and subject her to violence on

trivial issues. On the date of the incident, i.e., on 6 th August, 2014

her husband, as usual went for his work, at around 10.00 a.m. and

in the afternoon around 4.00 p.m. when their two daughters had

gone to her mother's house for playing and when she was alone in

the house, her husband returned home in an inebriated state and

asked her to serve meals, to which, when she replied that while

going to work in the morning, he had said that he would come in the

evening and, therefore, she had not prepared any lunch, there was a

fght between the two of them and the Appellant abused her,

threatened her and assaulted her with fsts and blows, picked up the

plastic can containing kerosene, poured the kerosene on her person

and set her on fre. She has herself stated therein that after setting

her on fre, when she started crying loudly/shouting, her husband

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got scared and he poured water on her person and after that

covered her with a bedsheet; that he also accompanied her

alongwith her mother and neighbour to Thane Civil Hospital for

treatment. Also, we note from the Arrest/Court Surrender Form 3

in Column 14 as well as Certifcate dated 8th August, 2014 by

Medical Offcer, Grade-2, Indira Gandhi Memorial Hospital,

Bhiwandi that the fngers of both the hands of the Appellant have

injuries due to burns indicating that he did try to save the victim.

There is also a certifcate by a Medical Offcer, Class-2 of Indira

Gandhi Memorial Hospital, Bhiwandi, where the deceased was

taken for the frst time, where after examination of the Appellant on

8th August, 2014, the said offcer has certifed that the injuries are

noted on the left hand four fngers except thumb and right hand

three fngers except thumb and index fnger of the Appellant which

are approximately 48 hours old.

37. The above suggests that there was no premeditation to

commit the offence nor an intention to kill. The Appellant was upset

that the victim did not serve him food and the fght began. It is not

as if the Appellant planned that he would go home and kill his wife.

The conduct of the Appellant post the incident, viz., to pour water in

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an attempt to douse the fames, cover her with a bedsheet and to

accompany her to a Civil Hospital strongly suggests that he wanted

to save her. The whole thing just went out of the control.

38. Even though we fnd no good reason to discard the dying

declaration of the victim and the complaint corroborating the same,

but considering the fact that the Appellant was in an inebriated

state, while committing the said act of setting Shama Shaikh on fre

and then making frantic attempts to save and treat her leads us to

believe that the Appellant probably would not have anticipated that

the act done by him would have escalated to such a proportion that

she might die. If he had intended her to die, he would not have made

the efforts to rescue/save her. Following the principles laid down in

the case of Kalu Ram Vs. State of Rajasthan (supra), we are inclined

to believe that the Appellant though thought of inficting burns on

the victim and to frighten her, but the situation slipped out of his

control and became fatal. The Appellant would not have intended to

infict the injuries which the victim sustained on account of his act

with an intention to cause death and, therefore, we are persuaded to

bring down the offence from frst degree murder to culpable

homicide not amounting to murder. We, therefore, alter the

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conviction from Section 302 of the IPC to Section 304 Part II of the

IPC.

39. Our aforesaid view also draws strength from the decision

of this Court in the case of Hanumant Bhiva Chavan Vs. State of

Maharashtra (supra), where in almost similarly placed

circumstances, this Court relying upon the Hon'ble Supreme Court

decision in the case of Kalu Ram Vs. State of Rajasthan; (2000) 10

SCC 324 set aside the conviction of the Appellant under Section 302

of the IPC and instead of convicting him under Section 304-I IPC for

the said offence, sentenced him to rigorous imprisonment of 10

years and fne of Rs.1,000/-, in default rigorous imprisonment for

one year. The relevant paragraphs in the said judgment are quoted

as under :-

"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 77% burns. This along with three dying declarations and oral dying declaration show that the death of Vandana was homicidal.

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                               29      Judgment-APPEAL 658-17.odt

12. No doubt the evidence on record shows that it was the appellant who set his wife on fre, 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 fre, the appellant extinguished the fre and took Vandana to the hospital. To show that the appellant extinguished the fre, 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 fre. Ms. Kuttikrishnan also drew our attention to the evidence of PW 5 Dr. Waghmode who has stated that it is true that the appellant had also sustained burn injuries while extinguishing the fre. 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 offcer 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

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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 offcer 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 fre, the appellant extinguished the fre 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 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 fre and thereafter, rushed her to the hospital in an effort to save her. It was obvious that the appellant realized his folly and was flled with remorse, therefore, he extinguished the fre 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 infict 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 Rajasthan;

(2000) 10 SCC 324. In this case also, the accused

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had poured kerosene on his wife and set her on fre, however, on fnding the fames faring 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.

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 fne 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 modifed."

40. In view of the above discussion, we set aside the

conviction of the Appellant under Section 302 of the IPC and

instead the Appellant is convicted under Section 304 Part II of the

IPC and for the said offence, he is sentenced to rigorous

imprisonment for eight years and fne of Rs.2,000/- and in default

rigorous imprisonment of one month.

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41. The conviction and sentence imposed by the learned

Additional Sessions Judge by judgment and order dated 28 th June,

2017 passed in Sessions Case No.586 of 2014 is accordingly

modifed.

42. The Appeal is allowed to the aforesaid extent.

43. Offce to communicate this order to the Superintendent

of Police of the prison where the Appellant is lodged.

44. All parties to act on the authenticated copy of this order.

(ABHAY AHUJA, J.)                              (S.S. SHINDE, J.)




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