Naresh Bhaduji Dhurve vs State Of Maharashtra Thr. The ...
2021 Latest Caselaw 16526 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                             NAGPUR BENCH, NAGPUR.

                                  CRIMINAL APPEAL NO. 556/2018

                   Naresh Bhaduji Dhurve,
                   R/o. Kalamgavhan, P.S. Walgaon,
                   Tq. & Dist. Amravati
                                                                       .... APPELLANT

                                           // VERSUS //

                   State of Maharashtra,
                   (Through the Police Station Officer,
                   Police Station Walgaon)
                   Tq. & Dist. Amravati
                                                                    .... RESPONDENT

           *******************************************************************
                   Ms. Sunita Paul, Advocate (appointed) for the appellant
                     Ms. Mrunal Barabde, APP for the respondent/State
           *******************************************************************

                CORAM: M.S. SONAK & PUSHPA V. GANEDIWALA, JJ.

NOVEMBER 30, 2021

JUDGMENT : (PER:- M.S. SONAK, J.)

1] Heard Ms. Sunita Paul, learned counsel appointed under the

Legal Aid Scheme to appear on behalf of the appellant and Ms. Mrunal

Barabde, learned APP for the respondent/State.

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          2]               This appeal is directed against the judgment and order dated

09/02/2018 made by the learned Additional Sessions Judge - 2,

Amravati in Sessions Trial No. 89/2016 convicting the appellant for the

offense punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer life imprisonment and pay fine of Rs. 1000/-

and in default to suffer further simple imprisonment for three months. By

the same judgment and order, the appellant was acquitted for the offense

punishable under Section 498A of the Indian Penal Code. This appeal is

therefore restricted to the conviction and sentence under Section 302 of

the Indian Penal Code.

3] The case of the prosecution is that the appellant was addicted

to liquor and used to beat and harass his wife Anju. Therefore, Anju

along with her daughter Nilima used to go to her parental house for some

days and thereafter used to return to the matrimonial home. On

29/01/2016, when the appellant, Anju, and Nilima were at the

matrimonial home, and when Anju came to offer the morning tea to the

appellant, the two quarreled and the appellant poured kerosene on Anju

and set her on fire. The prosecution also accepts that the appellant tried

to douse the fire and in the process burnt his hands. Anju was taken to

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the hospital for having sustained 74% burn injuries. There she made a

dying declaration on 30/01/2016 stating that she poured kerosene on

herself and the appellant lit her with a matchstick. Anju also stated that

the appellant doused the fire and extinguished the same.

4] Based on the aforesaid, the learned Sessions Court framed

the charge against the appellant alleging commission of the offenses

punishable under Sections 498A & 302 of the Indian Penal Code. The

appellant denied the charge and therefore was tried and convicted by the

impugned judgment and order under Section 302 of the Indian Penal

Code. Hence, the present appeal.

5] Ms. Sunita Paul, learned counsel for the appellant submits

that there are several infirmities in the record of dying declaration. She

submits that there is no explanation as to why the dying declaration was

not recorded before an Executive Magistrate. She submits that there is no

proper certification from the Doctor. She submits that the statement is

riddled with inherent improbabilities. She relies on Ashwini Rammeher

Sharma vs. The State of Maharashtra - 2019 ALL MR (Cri) 2092 to

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submit that the dying declaration ought to have been discarded in this

case.

6] Ms. Sunita Paul, learned counsel for the appellant then

submits that there are serious discrepancies between what is set out in the

dying declaration and the testimony of Nilima (PW2), the alleged eye-

witness to the incident. She submits that apart from such discrepancies, it

is apparent that Nilima (PW2) was tutored by her maternal uncle with

whom she was staying after the incident. She submits that the learned

Additional Sessions Judge erred in relying on the testimony of Nilima

(PW2) and this is yet another ground for setting aside the conviction.

7] Ms. Sunita Paul, learned counsel for the appellant submits

that in the alternate, the conviction under Section 302 of the Indian

Penal Code is required to be substituted with conviction under Section

304-II of the Indian Penal Code. She submits that in this case, even if the

dying declaration is accepted and relied upon, it is quite clear that the

appellant had no intention whatsoever of murdering Anju. She points out

that there was no pre-meditation and the incident took place due to a

sudden quarrel and before the heat of passion could subside. She relies on

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Kalu Ram vs. State of Rajasthan - (2000) 10 SCC 324, Ganesh Ramesh

Kamble vs. The State of Maharashtra - 2017 ALL MR (Cri) 2904 and

Suryakant Kashinath Bhoir vs. State of Maharashtra, reported in 2017

ALL MR (Cri.) 3075 in support of these alternate submissions.

8] Ms. Mrunal Barabde, learned APP defends the impugned

judgment and order based on the reasoning reflected therein. She submits

that both the dying declaration as well as the testimony of Nilima (PW2)

clearly establish that it is the appellant who lit the matchstick and set

Anju on fire. She submits that the appellant ran away from the scene and

did not even accompany Anju to the hospital. She submits that this

conduct of the appellant has been duly considered by the learned

Additional Sessions Judge and conviction under Section 302 of the

Indian Penal Code has been correctly recorded. She, therefore, submits

that this appeal may be dismissed.

9] The rival contentions now fall for our determination.

10] In this case, we are quite satisfied that the dying declaration

was correctly recorded and there were no serious procedural infirmities to

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discard the same. The incident took place on the morning of 29/01/2016

and the dying declaration (Exh. 26) was recorded on the same date.

There is medical evidence that Anju had suffered about 74% burn

injuries but was medically capable of giving the statement. The

prosecution examined Dr. Santosh Raut (PW4) who deposed that Anju

was conscious and well oriented and therefore, he opined that she was in

a fit condition to give a statement. This was at about 12:30 pm on

29/01/2016 when the incident had taken place in the morning at about

6:00 am on the same date. Dr. Raut (PW4) has deposed to how a

statement was given by Anju and recorded by the police. He has deposed

to how the thumb impression of Anju was taken. He has deposed that the

statement was recorded in front of him and he made an endorsement on

the statement itself. He also deposed that Anju expired about 45 minutes

after her statement was recorded. In such facts, clearly deposed to, we do

not think that the dying declaration was required to be discarded merely

because the same was not recorded before the Magistrate.

11] The learned Additional Sessions Judge has also analyzed the

dying declaration and has given cogent reasons as to why the same was

required to be accepted and relied upon. The dying declaration has a ring

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of truth to it, particularly since Anju, in her dying declaration, admits

that she had poured kerosene on herself and further that the appellant

doused the fire. The dying declaration also states that the daughter

Nilima was present when this incident took place. Therefore, merely

because the dying declaration was not recorded before an Executive

Magistrate, there is no case made out to discard the same.

12] There is merit in the submissions of Ms. Sunita Paul, learned

counsel for the appellant that not much reliance ought to have been

placed on the deposition of Nilima (PW2), the daughter of the appellant

and deceased Anju. At the time of the incident, Nilima (PW2) was about

8 years old. At the time of deposition, she was about 10 years old. She

admitted in her deposition that she was staying with her maternal uncle

and has come to the Court for deposition on 4 or 5 occasions along with

her maternal uncle. She has deposed that she was sent out by her father

on the date of the incident no sooner than the quarrel between her father

and mother commenced. She has then deposed that she saw from a gap in

the door, her father pouring kerosene on her mother and then setting her

ablaze. She has denied the suggestion that her father extinguished the fire

thereby burning his hands in the bargain.

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          13]              The version of Nilima (PW2) is at variance with what Anju

stated in her dying declaration (Exh. 26). Anju was quite categorical in

stating that it was she who poured the kerosene on herself. Anju was also

quite categorical in stating that the appellant doused or extinguished the

fire. Anju also stated that Nilima (PW2) was present at the time of the

incident. In contrast, Nilima (PW2) deposed that she was driven out by

her father and she was standing in the courtyard. She claims to have seen

this incident from the gap in the door while standing in the courtyard.

She then deposes to having seen her father pouring the kerosene on her

mother when in the dying declaration, the mother has categorically stated

that she poured kerosene on herself. Nilima (PW2) denies that the

appellant extinguished the fire and his hands burnt in the bargain. The

dying declaration clearly records that it was the appellant who

extinguished the fire and thereby sustained burn injuries. The medical

evidence also conforms to the burn injuries sustained by the Appellant.

Nilima (PW2) has also admitted that she was staying with her maternal

uncle and she has come to the Court on 3-4 occasions to depose in this

matter along with her maternal uncle. Having regard to all these factors,

we are unable to share confidence expressed by the learned Additional

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Sessions Judge in the testimony of Nilima (PW2). In the impugned

judgment and order, the learned Additional Sessions Judge placed very

heavy reliance on the testimony of Nilima (PW2) by observing that such

testimony inspires confidence. For the reasons indicated above, we are

unable to share this confidence.

14] The medical evidence in this case also supports the

circumstance that the appellant's hands sustained 15% burn injuries. This

medical evidence offers corroboration to what is to be found in the dying

declaration. Even while recording the statement under Section 313 of the

Code of Criminal Procedure, the appellant stated that Anju sustained

burn injuries accidentally and he extinguished the fire due to which his

hands were burnt. This defense has not at all been considered by the

Learned Sessions Court.

15] On evaluating the evidence on record, including more

particularly the dying declaration, the testimony of Nilima (PW2), and

the medical evidence, we agree with the alternate submission of

Ms. Sunita Paul, learned counsel for the appellant that this is not a case of

culpable homicide amounting to murder but rather, this is a case of

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culpable homicide not amounting to murder. There is evidence on

record about the strained relationship between the appellant and

deceased Anju. There is evidence about the appellant's addiction to

liquor. There is evidence that Anju used to on and off stay at her parental

home due to fights with the appellant but would eventually return to the

matrimonial home. There is evidence that on the morning of

29/01/2016, the couple had a fight and it is in the heat of passion, upon

such a sudden quarrel that Anju poured kerosene on herself.

16] Therefore, even though the appellant lit the match-stick

which was readily available at the spot, this cannot be said to be a case

where culpable homicide was committed with any premeditation or

planning. There is also no evidence on record that the appellant took

undue advantage of the situation or acted cruelly or unusually. This is

particularly because the appellant doused/extinguished the fire and in the

process, himself sustained 15% burn injuries. Not much should be read

into the circumstance about the appellant not accompanying Anju to the

hospital. The appellant's relatives, including his mother and sisters,

rushed Anju to the hospital by accompanying her in the ambulance.

From the evidence on record, it is difficult to accept that the appellant

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had any intention of murdering Anju. The unfortunate incident took

place without any premeditation, in a sudden fight in the heat of passion

upon a sudden quarrel. There is no evidence of the appellant having

taken any undue advantage of the situation or acted cruelly and

unusually.

17] Upon cumulative consideration of the aforesaid, we are quite

satisfied that the conviction under Section 302 of the Indian Penal Code

is not sustainable and the same is required to be substituted with the

conviction under Section 304-II of the Indian Penal Code. Though the

appellant may have not had the intention of causing Anju's death or even

causing such bodily injury as is likely to cause death, the appellant lit

Anju with a matchstick after she had poured kerosene on herself with the

knowledge that this act of his is likely to cause Anju's death or to cause

such bodily injury to Anju as is likely to cause her death. This is even

though he may not have had any intention to cause Anju's death.

18] In Kalu Ram (supra), the allegations against the appellant

were that he set ablaze one of his wives Vimla on the evening of

23/03/1993 because she refused to part with her ornaments to enable the

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appellant to sell and earn money for buying liquor. The prosecution

version is that the appellant doused Vimla with kerosene and supplied

her a box of matchstick so that she could light herself and die. As she

failed to ignite the matchstick, the appellant collected the matchbox, lit

one of the matchsticks, and set her ablaze. When the flames were up, he

brought water in a frantic effort to save her. She was later on moved to

the hospital where she gave her statement based on which the first

information report was lodged. She even gave her dying declaration

before the Munsif Magistrate before she succumbed to the appellant's

injuries. The appellant was convicted under Section 302 of the Indian

Penal Code by both the trial Court and the High Court.

19] The Hon'ble Supreme Court, after appreciating the totality

of the circumstances, made the following observations in paragraphs

7 & 8:-

"7. But then, what is the nature of the offence proved against him? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to light the matchstick.

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When she failed to do so he collected the matchbox and ignited one matchstick but when the flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he 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 her to die he would not have alerted this senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict 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 inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder.

8. We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC. Both sides conceded that the appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until

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completion of the period of seven years of imprisonment. The appeal is disposed of accordingly."

20] Based on the aforesaid, the Hon'ble Supreme Court altered

the conviction from Section 302 of the Indian Penal Code to Section

304-II of the Indian Penal Code and sentenced the appellant for seven

years of imprisonment. This decision supports the case of the present

appellant because the evidence on record in the present case establishes

that it is the deceased Anju who poured kerosene on herself. In this case,

as well, it is the appellant who extinguished the fire and in the bargain

suffered 15% burn injuries on his hands. In this case, also, it is legitimate

to infer that the appellant did not anticipate that his act would have

escalated to such a proportion that Anju might ultimately die. The

appellant did make attempts to save Anju. Therefore, by following Kalu

Ram (supra), a case is made out for altering the conviction from Section

302 of the Indian Penal Code to Section 304-II of the Indian Penal

Code.

21] In Ganesh Ramesh Kamble (supra), the allegation was that

the appellant-husband killed his wife by setting her on fire. There was

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evidence about the husband's addiction to liquor. There was evidence

that the incident occurred during a quarrel between them. There was

evidence that after the wife caught fire, the husband along with others

extinguished the fire and in that process, his both hands were burnt.

Based on this, the Division Bench of this Court, considering the conduct

of the husband, held that he had no intention of killing his wife, and

therefore, the provisions of Section 302 of the Indian Penal Code were

not attracted. The conviction was then altered to Section 304-I of the

Indian Penal Code from Section 302 of the Indian Penal Code.

22] In Suryakant Kashinath Bhoir (supra), the husband was

alleged to have poured kerosene on his wife and set her on fire. There

were three dying declarations implicating the husband. However, from

the dying declarations itself, the Division Bench concluded that the

incident took place in a sudden quarrel and there was no premeditation

involved. The Division Bench, therefore, relied upon Exception 4 to

Section 300 and altered the conviction from Section 302 of the Indian

Penal Code to Section 304-I of the Indian Penal Code.

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          23]              There are some similarities between the above two cases and

the present case. In this case, also, the evidence on record bears out that

the incident took place in a sudden fight without any premeditation on

the part of the appellant. There is evidence of the appellant's

extinguishing the fire and himself sustaining burn injuries. Having regard

to all these circumstances, we agree with Ms. Sunita Paul, learned counsel

for the appellant that the appellant had no intention of murdering his

wife and that this is a case of culpable homicide not amounting to

murder.

24] For all the aforesaid reasons, we set aside the conviction

under Section 302 of the Indian Penal Code and substitute the same with

conviction under Section 304-II of the Indian Penal Code. Insofar as the

sentence is concerned, we follow reasons in Kalu Ram (supra) as also

Pawan S/o Billu Rathod vs. The State of Maharashtra in Criminal Appeal

No. 481/2018 decided on 25/11/2021 and set aside the sentence of life

imprisonment but direct that the appellant shall suffer rigorous

imprisonment for eight years.

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          25]              This appeal is partly allowed and disposed of by making the

          following order:-



                     (a)      The conviction of the appellant under Section 302 of the

Indian Penal Code is set aside and instead the appellant is

convicted for the offense punishable under Section 304-II

of the Indian Penal Code.

(b) The sentence of life imprisonment imposed upon the

appellant is hereby set aside and instead the appellant is

directed to undergo rigorous imprisonment for eight years.

(c) The directions for payment of fine, in default sentence and

set-off as recorded in the impugned judgment and order

dated 09/02/2018 are maintained.

(d) The muddemal property be dealt with after the period of

appeal is over.

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                     (e)      The impugned judgment and order dated 09/02/2018 is

                              modified as aforesaid.



                     (f)      There shall be no order for costs. Pending application(s), if

                              any, stand(s) disposed of.



                     (g)      In this case, we appreciate the efforts put in by

Ms. Sunita Paul, learned counsel appointed on behalf of

the appellant under the Legal Aid Scheme. We thank her

for her efforts and quantify the fees payable to her at Rs.

5000/- (Rupees Five Thousand).

                            (PUSHPA V. GANEDIWALA,J.)                 (M.S. SONAK,J.)




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