Kiran Vasant Koli vs The State Of Maharashtra
2023 Latest Caselaw 8275 Bom

2023:BHC-AS:23010-DB


                 SSK                                                         201-Apeal-224-14



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                       CRIMINAL APPELLATE JURISDICTION

                                         CRIMINAL APPEAL NO. 224 OF 2014

                 Kiran Vasant Koli
                 Age-32 years, Occupation - Driver,
                 R/o- Sahajpur, Tal- Daund, Dist-Pune,              .. Appellant
                            V/s.
                 State of Maharashtra                               .. Respondent
                                                 ......
                 • Ms. Apurva Thipsay i/by Mr. Jaydeep Mane for Appellant.
                 • Mrs. M.M.Deshmukh, APP for Respondent No.1-State.
                                                 ......

                                                 CORAM : A. S. GADKARI AND
                                                         SHIVKUMAR DIGE, JJ.

RESERVED ON : 17th July 2023 PRONOUNCED ON :11th August 2023

JUDGMENT (Per : Shivkumar Dige, J.) :-

1. Appellant (original accused) impugnes Judgment and

Order passed by the Additional Sessions Judge, Baramati, District -

Pune, whereby he is convicted for the offence punishable under

Section 302 of Indian Penal Code, 1860 (for short "IPC").

Appellant is sentenced to suffer rigiorous imprisonment for life and

to pay fine of Rs.1,000/-, in default, to suffer further rigourous

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imprisonment for one month. Appellant is acquitted for the offence

punishable under Section 498-A of IPC.

2. It is the prosecution's case that, on 26.08.2012 at about

10:00 p.m., a quarrel took place between Appellant and his wife-

Rani on account of domestic reasons. Rani got annoyed due to

quarrel and poured kerosene on her person from a plastic can. Then

Appellant ignited a match stick from match box and threw it on her

person. As a result of which, her clothes caught fire. Appellant

extinguished the fire and shifted her by an ambulance to Sassoon

General Hospital, Pune and admitted there. In hospital, Police

recorded her dying declaration. While undergoing treatment, Rani

died on 27.08.2012. PW-1 Amol P. Ankushrao, cousin brother of

deceased Rani, lodged complaint against Appellant. On the basis of

complaint, Police registered FIR. After completion of investigation,

chargesheet was filed against Appellant. Case was committed to

Additional Sesssions Court, Baramati. Charges were framed against

Appellant under above referred offences. Appellant denied charges

and claimed to be tried. After completion of the prosecution's

evidence, the statement of Appellant under Section 313 of the Code

of Criminal Procedure, 1973 (for short "Cr.P.C.) was recorded. The

defence of Appellant was of total denial.

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3. Considering the evidence on record and submissions

made on behalf of both the parties, learned trial Court by a

Judgment and Order convicted Appellant as referred above.

4. We have heard submissions of both the learned

Counsels. Perused record and Judgment and Order passed by the

learned trial Court.

5. It is the contention of learned counsel for Appellant

that, prosecution's case is based on dying declaration but the said

dying declaration is suspicious as victim had received 100% burn

injuries and therefore it was not possible for her to give dying

declaration due to it. The allegations against Appellant are

suspicious. Learned counsel further submitted that, Exhibit-31 which

is information given to Police prior to filing of FIR by PW-1 Amol

Ankushrao (first informant) recorded that, the victim had burnt

herself in fit of anger. Learned Counsel further submitted that, there

were no allegations against Appellant under Section 498-A of IPC

before the incident. Appellant and deceased were staying happily.

The version of prosecution witnesses only establishes the presence of

Appellant in the house at the time of incident but it cannot prove the

guilt of Appellant. Appellant tried to extinguish the fire and took his

wife (Rani) to hospital. Learned Counsel further submitted that, if

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this Court comes to conclusion about guilt of Appellant, then also

the act of Appellant does not fall under Section 302 but it falls

under Section 304(II) of IPC. She relied on the Judgement of

Hon'ble Supreme Court in the case of State of Rajastan Vs. Santosh

Savita1.

6. It is contention of Mrs. M. M. Deshmukh, learned APP

that, deceased has given a dying declarationa about her burn

injuries which is recorded by a Police constable. There was no

reason for her to depose against the Appellant. The said dying

declaration is endorsed by the doctor. It has come in the evidence

of Dr. Anirudha Mohite, PW-4 that, at the time of giving dying

declaration, deceased was well oriented and in conscious state of

mind. Deceased has stated the actual fact that, when she had poured

kerosene on herself, Appellant had set her on fire. If she had

intention to implicate Appellant in a false case, she would have

stated that, Appellant had poured kerosene on her and set her on

fire. There is no reason to disbelieve the dying declaration given by

the deceased. Apart from written dying declaration, oral dying

declaration was also given by deceased to PW-1 while going to the

hospital. In the said oral dying declaration also, deceased had

1 (2013) 12 SCC 663

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stated that, Appellant set her on fire. The Judgement and Order

passed by the learned trial Court is legal and valid and therefore the

Appeal may be dismissed.

7. Admittedly, prosecution's case revolves around dying

declaration which is recorded by PW-3. Dilip H. Phadtare, Police

Head Constable and PW-4 Dr.Anirudha Mohite, doctor who

endorsed on said dying declaration. Apart from written dying

declaration, the prosecution relied on oral dying declaration given to

PW-1 Amol Ankushrao, who accompanied deceased Rani and

Appellant in the ambulance to the hospital. We will now consider

the evidence led by prosecution in respect of dying declarations.

PW-1 Mr.Amol Ankushrao at Exhibit-25 has stated that,

deceased Rani was the daughter of his maternal aunt. Rani was

married with Appellant in the year 2002. After marriage, Appellant

treated Rani well for initially for a period of two years. Appellant

was not doing any work, he was not giving any money to deceased

Rani for household expenses. Deceased Rani was giving money to

Appellant by doing labour work. On 26.08.2012 at about 11:45

p.m., Appellant came to his house by ambulance. He told this

witness that, Rani had sustained serious burn injuries. This witness

boarded the said ambulance and asked Rani what happened. Rani

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disclosed him that, dispute arose between her and Appellant on

account of domestic reasons, therefore due to anger, she herself

poured kerosene oil on her person and Appellant threw burning

matchstick on her person. Therefore she sustained burn injuries.

Rani was admitted in Sasoon Hospital, Pune. He informed mother of

Rani about the incident. On 27.08.2012, at about 3.45 a.m. Rani

died. He lodged complaint against Appellant in Yawat Police Station.

It is at Exhibit-26.

In cross examination, this witness admitted that,

Appellant used to go for work of construction of Well and Appellant

used to do work. This witness denied the suggestion that, he gave

information to Police outpost at Sassoon Hospital, which is at

Exhibit-31. That, deceased told him, she got herself set on fire due

to anger. He denied that, after death of Rani he demanded Rs.1

lakh from father of Appellant for not lodging complaint and when

he failed to give the same, he filed false F.I.R. against Appellant.

From the evidence of this witness, it reveals that, deceased Rani told

him about the cause of her death. It is the case of prosecution that,

deceased had given dying declaration when she was admitted in

Sassson Hospital to prove it, the prosecution examined PW-3 Shri.

Dilip Phadtare (Exhibit-29) who recorded dying declaration of

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deceased Rani. He has stated that, on 26 th and 27.08.2012, he was

on duty at Police outpost Sassoon Hospital. On 27.08.2012 at about

12:45 a.m. Police Naik, Patil of Bund Garden Police Station informed

on his mobile that, Rani sustained 100% burn injuries and she was

admitted in Ward No. 25 of Sassoon Hospital. This witness

immediately went to Ward No. 25. Rani was admitted in that ward.

This witness asked Dr. Anirudha Mohite, in-charge doctor to give his

opinion whether Rani was in a fit state of mind to give her

statement. Dr. Anirudha Mohite examined Rani in presence of this

witness and opined that, she was in fit state of mind to give her

statement. This witness recorded dying declaration of Rani as per

her say in the presence of doctor. Doctor made endorsement on

dying declaration that, patient is in a condition to give her statement

and put his signature below the statement. This witness read over

the contents of dying declaration to Rani. She admitted that, the

contents are correct and true. This witness obtained left hand thumb

impression of Rani on the dying declaration. This witness signed on

it. Dying declaration is at Exhibit-30. Rani told this witness while

recording her statement that, on 26.08.2012, at about 10 p.m.,

quarrel took place between her husband (Appellant) and herself on

account of domestic reasons. Due to anger, she poured kerosene on

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her person from plastic can which was kept in the house. She

further told this witness that, her husband saw her while pouring

kerosene oil, he ignited matchstick and threw burning matchstick on

her person, therefore, her clothes caught fire. She shouted loudly.

Appellant extinguished fire by putting quilt on her person. Her

cousin brother and Appellant shifted her to Sassoon Hospital by

ambulance.

In cross examination, this witness admitted that, the

doctor had already given injections and saline to Rani. He further

admitted that, he did not issue letter to doctor for obtaining opinion

of fitness of Rani. He did not record her dying declaration in

question and answer form. From the evidence of this witness it

reveals that, he recorded dying declaration of the Rani as per her

say.

To corroborate the evidence of this witness, prosecution

examined PW-4 Dr. Anirudha Mohite at Exhibit-34. He has stated

that, on 27.08.2012 he was in-charge of Burn Ward of Sassoon

Hospital. On that day, (at about 00.43 hours), Rani was admitted in

Burn Ward, at about 1:30 a.m. Police Officer - Shri. Dilip Phadtare

came to the ward for recording her dying declaration. He asksed this

witness to give information, whether patient Rani was fit to give her

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statement. This witness examined patient Rani and found that, she

was concious and oriented. Shri. Phadtare recorded statement of

Rani in the presence of this witness. This witness made endorsment

on dying declaration that, patient was in a condition to give oral

statement and put signature below the endorsement. This witness

proved dying declaration at Exhibit-30.

In cross examination, PW-4 admitted that, patient Rani

had sustained 100% burned injuries. After admission, saline,

antibiotic and pain killers were given to the patient. Police Officer,

Dilip Phadtare did not give in writing for giving opinion about the

fitness of the patient. He did not mention the pulse rate and BP on

the dying declaration. He did not note down the time of

examination as 1:00 a.m. on dying declaration. The word 'concious'

and 'oriented' are not mentioned in the endorsement. He denied the

suggestion that, Rani had sustained 100% burn injuries, therefore

she was not in a fit state of mind to give statement.

8. From the evidence of PW-3 and PW-5 it reveals that,

deceased Rani had sustained burn injuries due to pouring kerosene

on herself and Appellant threw burning matchstick on her person.

Thereafter Appellant tried to extinginsh fire by putting quilt.

Appellant has come with two fold defence. While cross examining

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PW-1, Appellant has come with the defence that, Rani died due to

explosion of stove while cooking food. But the evidence produced on

record does not corroborate the defence of Appellant. The spot

panchanama is at Exhibit-33. This panchanama does not mention

about the bursting of stove. From the incident spot, Police seized

one 5 liter plastic can with kerosene and pieces of saree, petticoat,

blouse and one matchstick box.

9. Considering the evidence on record and dying

declaration, it proves that, Appellant ignited the matchstick and

threw it on the person of deceased when Rani poured kerosene oil

on her person. It is the contention of learned Counsel for Appellant

that, the act of Appellant falls under Section 304(II) of IPC, as the

said act happened due to sudden quarrel and accused had no

intention to kill but he had knowledge of it. It is contention of

learned APP that, when deceased had poured kerosene on herself,

Appellant threw burning matchstick on her and set her on fire. It

shows that, Appellant knowingly and willfully set on fire deceased

Rani.

10. In our view, as per the dying declaration of deceased

Rani, it reveals that, the incident happened due to quarrel out of

domestic reasons. It happened at the spur of moment.

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The question remains whether the act of Appellant falls

under Section 302 or 304(II) of I.P.C. Considering evidence on

record, in our view, present case falls under exception 4 of Section

300 of I.P.C. which reads as under :

"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

11. From the evidence on record, it proves that, the

incident happened due to quarrel out of domestic reasons and it

happened suddenly. Appellant threw ignited matchstick on deceased

when she had poured kerosene on herself, it was without

premeditation. It is difficult to believe that, Appellant had any

intention to cause death of deceased Rani. The death has been

caused by a reckless act of Appellant with the knowledge that, it is

likely to cause death and for this act, Appellant is guilty of culpable

homicide not amounting to murder under Section 304 (II) IPC.

The Hon'ble Apex Court in the case of State of Rajastan

Vs. Santosh Savita1 has held that:

"22. The only other question which remains to be decided in this case is whether the respondent should be held guilty of the offence under Section 302, IPC, or Section 304 IPC. A person could be held to be guilty of the offence under Section 302, IPC, if he commits murder. The

1 (2013)12 SCC 663

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relevant portion of Section 300, IPC, which defines "murder" is extracted hereunder:

"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Under the first clause, if the act by which the death is caused is done with the intention of causing death, the act amounts to murder. Under the second clause, if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, the act amounts to murder. Under the third clause, if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the act amounts to murder. In each of the three clauses, intention to cause death or to cause the bodily injury is an essential ingredient of the offence of murder. Under the fourth clause, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, he is said to have committed murder. Hence, under the fourth clause, knowledge of the act committed by the accused that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, is a necessary ingredient for the offence of murder.

23. In the facts of the present case, PW-2, PW-3 and PW-8 have not seen what exactly happened inside the room (khaprail) in which the incident took place. The deceased has, however, stated in the two dying declarations (Ext.P-4 and Ext.P-10) that the respondent poured

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kerosene on the deceased and ignited fire on the saree of the deceased. The two dying declarations (Ext.P-4 and Ext.P-10) are very sketchy and do not narrate the details as to how the incident took place except stating that there was a quarrel between the deceased and the respondent. From the two dying declarations (Ext.P-4 and Ext.P-10), therefore, it is difficult to record a finding that the respondent had any intention to cause death of the deceased or had any intention to cause any bodily injury. From the two dying declarations (Ext.P-4 and Ext.P-10), it is also difficult to come to a finding that the respondent committed the act knowing that it is so imminently dangerous that it must, in all probability, cause death of the deceased.

24. As found by the High Court, there was some delicate relationship between the respondent and the deceased and it is difficult to believe that the respondent had any intent to cause death or bodily injury to the deceased. Rather, it appears to us that the death of the deceased has been caused by a reckless act of the respondent with the knowledge that it is likely to cause death and for this act the respondent is guilty of culpable homicide not amounting to murder under Section 304, Part-II, IPC. The respondent has undergone imprisonment of approximately six years and the incident is of the year 1997. In the peculiar facts and circumstances of the case, the period of imprisonment undergone by the respondent-accused and a fine of Rs.2,000/- are sufficient punishments under Section 304 Part-II, IPC."

In above case, the Hon'ble Apex Court has altered

conviction from Section 302 to 304(II) of IPC.

As observed earlier, in the present case, incident

happened due to quarrel of domestic reasons and happened

suddenly, it was without premeditation.

12. In view of the above, we pass the following Order:

            i.     The Appeal is partly allowed.








  SSK                                                           201-Apeal-224-14


            ii.    The impugned Judgment and Order of the Trial Court

                   is set aside.

iii. Appellant is convicted for the offence punishable under

Section 304(II) of IPC. He shall suffer rigorous

imprisonment for a period of 10 years and to pay a fine

of Rs.1,000/-, in default of payment of fine to further

suffer rigorous imprisonment for two months.

iv. Appellant shall be released from jail on completion of

sentence as directed, unless required in any other case/

cases.

          (SHIVKUMAR DIGE, J.)                    (A.S. GADKARI, J.)