Vijay Radhaji Bhandare vs The State Of Maharashtra
2022 Latest Caselaw 9761 Bom

                                                              criminal appeal 1117-15.doc

Ajay
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1117 OF 2015

       Vijay Radhaji Bhandare
       Age : 47 years, Occ.: Labour
       Residing at Mulik Vasti, Survey No.14
       Ramwadi, Pune.
       (At present accused lodged in Yerwada                     Appellant
       Central Prison, Pune. (Convict No.C-16911)             .. (Ori. Accused)

           Versus

       The State of Maharashtra.
       (At the instance of Yerwada Police Station
       Vide C.R. No.1 of 2011)                                .. Respondent

       Mr. Abhaykumar Apte, Advocate for the Appellant.
       Mr. H.J. Dedhia, APP for the Respondent - State.

                            CORAM                   : A.S. GADKARI &
                                                      MILIND N. JADHAV, JJ.
                            RESERVED ON   : 23rd August 2022.
                            PRONOUNCED ON : 26th September 2022.

       JUDGMENT (PER MILIND N. JADHAV, J.)

. This Criminal Appeal questions the legality of Judgment and

Order dated 10.11.2014 passed by learned Additional Sessions Judge,

Pune in Sessions Case No. 347/2011 (for short "Trial Court"),

convicting Appellant under Section 235(2) of Code of Criminal

procedure, 1973 (for short "Cr.PC"), for offence punishable under

Section 302 of the Indian Penal Code (for short "IPC") and sentenced

to suffer life imprisonment and to pay fine of Rs. 5,000/- (Rs. Five

Thousand Only) in default thereof to suffer simple imprisonment for

six months.

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2. We have heard Mr. Abhaykumar Apte, learned Advocate for

accused and Mr. H. J. Dedhia, learned APP for the State and with their

able assistance perused the evidence and record in the present case.

3. Appellant is convicted for committing murder of his wife

Sindhubai by setting her ablaze.

Prosecution case is based on oral dying declaration and two

written dying declarations given by Sindhubai, which have been

accepted by the Trial court for convicting Appellant. Appellant shall be

hereinafter referred to as accused for convenience.

4. Facts which emerge from record of the case are as under:-

4.1 Deceased Sindhubai and accused were married

since long and resided with their son Sumit (20 years old) at

Mulik Vasti, Survey No.14 Ramwadi, Pune. Sindhubai

worked as maid servant; Sumit worked as waiter in hotel

Sodhi and accused is a mason. Accused was heavily addicted

to drinking and used to question chastity of Sindhubai.

4.2 According to prosecution, on 31.12.2011 at about

04:30 p.m. Sindhubai reached home from work; at that time

accused was present at home in drunken condition. He

started abusing her and provoked a quarrel by accusing her

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that she had slept with some person. Thereafter Sindhubai

kept a vessel on the stove for preparing tea, but in rage

accused kicked the stove and accused Sindhubai of

maintaining illicit relationship with Sumit (their son).

Thereafter around 6:00 p.m. accused poured kerosene on

Sindhubai and set her ablaze with a matchstick. On hearing

her screams neighbours gathered at the spot and called

Sumit. Sindhubai was taken to Sassoon Hospital by Sumit

and neighbours.

4.3 On receiving information about crime, PW-6 PSI

Pralhad Holkar from Yerewada Police Station, Pune rushed

to hospital and recorded first dying declaration on

31.12.2012 at 11:45 p.m. (Exh. 33). Thereafter on

01.01.2013 at about 3:30 a.m. second dying declaration

(Exh. 34) was recorded by him in the presence of DW-2.

Both statements were duly endorsed by PW-7 Doctor.

Sindhubai succumbed to her injuries on 02.01.2011 at

about 06:30 a.m.

4.4 PW-5 - Mr. Suresh Gholap (Investigating Officer)

took over investigation and visited the spot of incident and

drew the spot panchanama (Exh. 26). He seized one bottle

containing kerosene, one cloth and one wheel company

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matchstick box from the spot of the incident. Police Head

Constable Mr. Saswade seized clothes of deceased and drew

the inquest panchanama.

4.5 Autopsy of dead body of Sindhubai was performed

by Dr. Ajay Taware (PW-4) and Dr. Chakurkar. Their

opinion for cause of death was "shock due to burn." PW 5

API Mr. Suresh Gholap arrested accused and recorded

statements of witnesses. He forwarded the seized articles to

the office of Chemical Analyser, Pune for C.A. Report. After

completion of investigation he collected the relevant

documents and submitted chargesheet in Court of learned

Judicial Magistrate First Class, Court No. 5, Pune. Since

offence under Section 302 is exclusively triable by Court of

Sessions, learned JMFC committed case for trial to Sessions

Court.

4.6 Charge below Exh. 3 was framed against accused

for offence punishable under Section 302 IPC. It was read

over and explained to him in vernacular; he denied the

charge, pleaded not guilty and claimed to be tried.

5. Prosecution examined 7 witnesses in all to bring home the

guilt of accused; PW-1 Sumit Bhandare, son of Sindhubai and accused

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did not support prosecution case and was declared hostile.

6. PW 2 Subhash Popat Shinde is panch witness to seizure

panchnama (Exh. 18) of clothes of accused. PW-3 Bhaskar Namdeorao

Rokade is father of Sindhubai who deposed that after receiving the

information of incident he rushed to the hospital where Sindhubai

informed him that accused had poured kerosene on her and set her on

fire. This is the oral dying declaration.

7. PW-4 Dr. Ajay Taware conducted autopsy and prepared and

proved the postmortem report (Exh.22). He has noted the following

injuries in the PM report:-

"Superficial to deep burns seen over body parts as under: Head, neck, and face (9%) Chest (9%) Abdomen (5%) Back (12%) Upper limb right (9%) Upper limb left (9%) Lower limb right (10%) Lower limb left (8%) Genitals (0%)

------------------------------- Total (71%) ============ (2) Two venesection injuries over both ankles. (3) Venesection Injury with two stiches over right cubital fossa."

8. PW-5, Suresh Maruti Gholap, IO conducted investigation.

PW 6, PSI Prahlad Narayan Holkar recorded the first dying declaration

of Sindhubai at 11:45 p.m. He deposed that on 31.12.2010 at about

10:00 p.m. after receiving information he rushed to the Burn Ward of

Sassoon Hospital, Pune and met Sindhubai; that before recording her

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statement he made enquiry with PW-7 Doctor about her consciousness

and PW-7 informed him that she was conscious and able to give her

statement. PW-6 recorded her statement and read out the contents

thereof to her and thereafter Sindhubai put her thumb impression on

the statement and the doctor put his endorsement and signature on

the same. The second dying declaration was recorded by PW-6 in the

presence of DW-2 at 3:30 a.m. and similarly endorsed by PW-7. In

both statements, Sindhubai stated that accused was in a drunken

condition, they both quarreled and he doused her with kerosene and

set her ablaze.

It is seen that deposition of PW-3, PW-6 and PW-7 suggest

that the case is based on the two dying declarations.

9. Defense in the present matter has relied on deposition of

two defence witnesses namely DW-1 Milind Shinde (neighbor of

accused) and DW-2 Elizabeth Vergis (Special Executive Magistrate).

DW-1 received information about the incident and he reached the spot

and found Sindhubai having suffered burn injuries and was

unconscious. He alongwith Bharat Bhandari and Gulab Suttar

(neighbours) shifted Sindubai to Sassoon Hospital. DW-2 has however

deposed that police did not call her for recording statement of

Sindhubai; that in the intervening night of 31.12.2010 and

01.01.2011, she was in the church and police called her to Ramwadi

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Police chowky and asked her to give her signature on the statement

which was required for true copy.

10. In the present case, defense has examined two witnesses.

DW-1, neighbour of Sindhubai and accused. He has deposed that

accused had no vices and was happily cohabiting with Sindhubai. He

has further deposed that he took Sindhubai to Sassoon General

hospital after the incident. DW-2 is Elizabeth Joseph Vergis, Special

Executive Magistrate appointed by Government of Maharashtra and

she has deposed that the second dying declaration (Exh. 34) was not

recorded in her presence; she has stated that police called her at

Ramwadi Police chowky and asked her to put her seal on blank paper

as they required it for true copy. That apart, deposition of Sumit, PW-

1, son of Sindhubai, though the prosecution has declared him hostile,

is required to be seen as far as his deposition upto the stage of his

turning hostile. Sumit in his deposition has stated that on the date of

incident in the evening he received a telephonic message that his

mother had sustained burn injuries, he therefore rushed home and

found Sindhubai lying in burnt condition. He has stated that

Sindhubai informed him that she had on her own accord poured

kerosene on herself and set her ablaze. He has been declared hostile

hereafter. Medical case papers of admission of Sindhubai to Sassoon

hospital have been proven in evidence by PW-7 Dr. Pravin Survase

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vide Exh.46. Perusal of Exh 46 reveals that Sindhubai was admitted to

Sassoon General Hospital, Pune by Sumit Bhandare and gave history

by herself stating that she suffered homicidal burns in her home where

accused poured kerosene over her and burnt her.

11. Prosecution in the present case has undoubtedly established

that accused was suspecting the character of deceased, that he

intentionally and knowingly committed her murder by pouring

kerosene on her and set her ablaze.

From the record of the case, it is seen that Sindhubai was

admitted to Sassoon Hospital on 31.10.2012 at 8:52 p.m. It is seen

that PW-3 father of Sindhubai on learning about the incident reached

Sassoon hospital where Sindhubai gave an oral dying declaration to

him stating that accused had poured kerosene on her and set her

ablaze. That apart, the two dying declarations recorded vide Exh. 33

and Exh. 34 clearly spell out that accused suspected her chastity and

accused her of having illicit relationship with Sumit and therefore set

her on fire. Both these statements (Exh. 33 & 34) are by Sindhubai

herself. There is no doubt that the oral dying declaration and the two

written dying declarations are consistent with each other nor there is

any infirmity or suspiciousness in the said statements.

12. However from a minute perusal of the evidence of

prosecution witnesses as well as the two written dying declarations

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(Exh. 33 and 34), it is seen that accused was already present in the

house at around 4:30 p.m. in a drunken state and this factual

circumstance cannot be lost sight of. In that state of mind, accused

confronted Sindhubai and accused her of infidelity and had a quarrel

with her. The incident occurred at around 6:00 p.m. It has come in

evidence that before the incident, Sindhubai had kept a vessel on the

stove for preparing tea and accused being in an enraged stage kicked

the stove during the quarrel with her. Admittedly both written dying

declarations given by Sindhubai clearly state that accused was in an

inebriated drunken state at that time. The quarrel between them is

also stated to have happened before the incident by Sindhubai. This

clearly shows that accused in a fit of rage during the quarrel kicked the

stove and being enraged committed the crime. Certainly the spot

panchnama Exh.26 does not give credence to the theory of Sindhubai

having met with an accidental death. Further there was no bursting of

the stove also as can be seen from the spot and seizure panchnama.

Trial Court has convicted and sentenced accused for committing the

offence of murder as defined in Section 300 IPC under the provisions

of Section 302 IPC. However giving due consideration to the

aforementioned reasons, we are of the opinion that the judgment of

the Trial Court calls for reconsideration.

13. Exception 4 to Section 300 IPC outlines a situation where

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culpable homicide does not amount to murder. There are three

requirements for this exception to apply viz.

(i) The act of killing is committed without premeditation;

(ii) The act of killing is committed in sudden fight in a heat of passion upon a sudden quarrel; and

(iii) The offender should not have taken undue advantage or acted in a cruel or unusual manner.

14. From the discussion herein above and appreciation of the

evidence on record, we are of the firm opinion that the

aforementioned three requirements of Exception 4 to Section 300 IPC

squarely apply to the facts and circumstances of the present case and

stand satisfied as under:-

(i) from appreciation of the two written dying declarations

relied upon by prosecution, it is clearly discernible that

there was no premeditation, preparation and / or

intention harboured by accused to commit the murder

of Sindhubai. In the two statements given by

Sindhubai, it is stated that accused was present in the

house in a drunken state and picked up a quarrel with

her by accusing her for infidelity;

(ii) secondly the two statements themselves refer to a

quarrel between accused and Sindhubai. Considering

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the fact that Sindhubai was accused of infidelity,

accused on the sudden spur of the moment and in a

heat of passion kicked the stove and in a fit of rage

committed the crime;

(iii) thirdly and admittedly accused did not behave in an

unusual manner or took undue advantage or acted in a

cruel manner after the incident.

15. The act of accused could be said to have caused death of

Sindhubai but the same in our considered opinion, does not travel

beyond the offence of culpable homicide not amounting to murder in

reference to the facts of the present case. Punishment for culpable

homicide not amounting to murder has been prescribed under Part II

of Section 304 IPC. For the reasons given herein above and in the

facts and circumstances of the present case, it is concluded that the

act committed by accused falls within the ambit of Part II of Section

304 IPC. As such, the Trial Court erred in convicting and sentencing

the accused for offence of murder under Section 302 IPC. The

accused deserves to be given the benefit of exception 4 of Section 300.

16. In view of the above discussion and findings, we are of the

firm opinion that accused in a drunken state of mind and heat of

passion, acted in a manner that he knew is likely to cause death of

Sindhubai but without the intention to kill her.

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Hence the following order:-

(i) The conviction of the appellant under Section 302 IPC

is set aside; instead Appellant is convicted under Section 304

Part-II IPC and sentenced to suffer rigorous imprisonment

for 10 years and to pay a fine of Rs. 25,000/-, and in default

thereof to suffer further rigorous imprisonment for six

months;

(ii) Appellant was arrested on 01.01.2011. Since he has

undergone the sentence awarded above, he shall be released

from prison forthwith unless required in any other case /

cases.

(iii) Appeal is partly allowed in the aforesaid terms.

17. All the concerned to act on an authenticated copy of the

present Judgment and Order.

      [ MILIND N. JADHAV, J. ]                            [ A.S. GADKARI, J.]
           Digitally signed
           by RAVINDRA
RAVINDRA   MOHAN
MOHAN      AMBERKAR
AMBERKAR   Date:
           2022.09.26
           12:28:46 +0530




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