Bombay High Court
Ambadas Chandrakant Aaretta vs The State Of Maharashtra on 12 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:23574-DB
P.H. Jayani 904 APEAL431.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 431 of 2016
WITH
INTERIM APPLICATION NO. 985 OF 2024
WITH
INTERIM APPLICATION NO. 2582 OF 2021
IN
CRIMINAL APPEAL NO. 431 OF 2016
Ambadas Chandrakant Aaretta
Age 48 years,
R/at : H.No.152/3, Ganga Chowk,
Neelam Nagar-3, Solapur,
at present lodged at Kolhapur Central Prison,
Kalamba, Solapur ..... Appellant
Vs.
The State of Maharashtra
(Through Senior Inspector of Police,
MIDC Police Station, Solapur
in C.R.No.30 of 2014) ..... Respondent
Ms. Nasreen Ayubi for the Appellant.
Ms. Sharmila Kaushik, APP for the Respondent-State.
CORAM : SARANG V. KOTWAL AND
SHYAM C. CHANDAK, JJ.
DATED : 12th JUNE, 2025
JUDGMENT :
(Per : Sarang V. Kotwal, J.):-
. The Appellant was the sole accused in Sessions Case
No.168/2014 before the learned Sessions Judge, Solapur. The learned
Judge vide his Judgment and Order dated 03/12/2014 convicted the
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Appellant for commission of the offence punishable under Section 302 of
the Indian Penal Code, 1860. He was sentenced to suffer life imprisonment
and to pay a fine of Rs.5,000/- and in default of payment of fine, he was
directed to undergo further rigorous imprisonment for six months.
2) Heard Ms. Nasreen Ayubi, learned Counsel for the Appellant
and Ms. Sharmila Kaushik, learned APP for the State.
3) The prosecution case is that the Appellant and his wife -
Pushpa were married for about 16 years. The Appellant was a tailor by
profession. However, he was not looking after his family. He used to
disappear for months. He was addicted to gambling. He was neglecting his
family. His wife Pushpa used to earn livelihood for their two daughters and
a son. She used to roll bidis to earn their livelihood. The incident took place
in February, 2014. A week prior to the incident, there used to be frequent
quarrels between the Appellant and Pushpa. Their daughter complained
about his behaviour to Pushpa's brother who met the Appellant and tried to
convince him to behave properly. The Appellant behaved properly for few
days but on 10/02/2014, in the night, at around 11:00 p.m., he again
picked up a quarrel with Pushpa. He poured kerosene on her and set her
on fire. Their children woke up. The Appellant did not make any attempt to
douse the fire. He brought the children outside and latched the door. He
prevented the children from helping Pushpa. He went away. The daughters
then opened the door. Pushpa's brother was informed. He came to their
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house. Pushpa was taken to the hospital. The police were informed.
Arrangement was made to record a dying declaration. Naib Tahsildar came
to the hospital. He made inquires with the Medical Officer and obtained his
endorsement on the dying declaration. He then recorded the dying
declaration. At the end of the recording of the dying declaration, the
Medical Officer again examined Pushpa and gave further endorsement that
she was conscious and was in a position to give the dying declaration. After
that, the Police Constable recorded her separate dying declaration after
following the same procedure of getting her examined through a Doctor
and obtaining the Doctor's endorsement at the beginning and at the end of
the dying declaration. Pushpa succumbed to her burn injuries on the next
day at about 05:00 p.m.
4) The Appellant was arrested on the same day. In the meantime,
the FIR was lodged. The spot panchanama was conducted. The dead body
was sent for Post Mortem examination and it was found that Pushpa had
suffered 94% burn injuries. The clothes of the Appellant were seized. The
Articles seized from the spot and clothes of the Appellant were sent for CA
examination. The statements of the witnesses were recorded. After
completing the investigation, the charge-sheet was filed and the case was
committed to the Court of Session.
5) During trial, the prosecution examined 11 witnesses. The main
witnesses were the daughter of the Appellant, the brother of the deceased,
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the Doctor who had conducted the Post Mortem examination, another
Doctor who had given endorsements on the two dying declarations, the
Special Executive Magistrate (SEM) who had recorded the dying
declaration and the Police Constable who had recorded the dying
declaration.
6) The defence of the Appellant through the suggestions to the
prosecution witnesses and in the examination under Section 313 of Cr.P.C.,
was of total denial.
7) The learned Judge considered these aspects. He considered the
dying declarations in favour of the prosecution and based on the evidence
of the prosecution witnesses, he reached the conclusion that the Appellant
had committed the offence and that the prosecution has proved its case
beyond reasonable doubt. Accordingly, he convicted and sentenced the
Appellant as mentioned earlier.
8) The main evidence in this case is that of Shirisha Aaretala, the
daughter of the Appellant and deceased. She was examined as PW-3. She
has deposed that they were residing in a rented premises owned by PW-4
Balaji Madda. She was studying in the 9 th standard. Pushpa was earning
livelihood by taking on the work of rolling bidis. The Appellant was a tailor
but he was not doing any work. Pushpa used to insist that the Appellant
should do some work but he refused to pay any heed and instead he was
constantly demanding money from Pushpa. He used to beat Pushpa. A
P.H. Jayani 904 APEAL431.2016.doc
week prior to the incident on several occasions, there were quarrels
between the Appellant and the deceased. PW-3 had informed Pushpa's
brother - Balaji Nampelli (PW-5) who tried to convince the Appellant to
behave properly. For about two days there were no further incidents.
9) On the date of the incident, the Appellant told Pushpa that she
should cook food for him. PW-3 and her brother Rajesh had their meals and
they went to sleep. In the night, PW-3 heard some noise and smelt
kerosene. She noticed smoke in the house. She woke up and saw that her
mother Pushpa who had caught fire. She attempted to pour water from a
water pitcher on her mother. She has further deposed that the Appellant
removed the water pitcher from her hand and did not allow PW-3 to
extinguish the fire. He held PW-3 and her younger brother - Rajesh and
took them out of the house. He then latched the house from outside and
fled away from the spot. PW-3 then removed the latch and opened the
door. She herself, Rajesh and the landlord extinguished the fire by pouring
water on Pushpa. She has further deposed that Pushpa told her to call
Pushpa's brother; who along with PW-3's grandmother came there. Pushpa's
brother then took Pushpa to the hospital. Pushpa then succumbed to the
injuries in the hospital.
In her cross-examination, PW-3 deposed that her statement was
recorded by the police as per her version and at that time, her brother and
her maternal uncle were present. The statement was not read over to her.
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She did not know what was written in her statement. The rest of the cross-
examination is in the nature of suggestions that she was deposing falsely.
She stated in the cross-examination that her mother had come out in the
verandah when PW-4 Balaji - the landlord and others had reached there.
She further added that on that day, there was no quarrel between the
Appellant and Pushpa. She had not gone to the hospital with her mother.
After the Appellant had left after latching the house from outside, she had
raised shouts. On hearing her shouts, the neighbours had gathered. She was
crying at that time.
10) PW-4 Balaji Madda was the landlord. He was residing in the
neighbouring room. He has deposed that the Appellant was not doing any
work. He used to disappear quite frequently. He used to quarrel with his
wife whenever he was in the house. On the date of the incident, at about
10:00 p.m., PW-4 smelt kerosene and burning of flesh. He went there. He
noticed that Rajesh and PW-3 were trying to douse fire and Pushpa lay on
the ground. PW-4 then went to the house of Pushpa's brother - Balaji
Nampelli who brought the ambulance and took her to the hospital. On the
next day, the police conducted spot panchanama. PW-4 acted as the pancha
at that time. The spot panchanama was produced on record at Exhibit-14.
There is hardly any cross-examination of this witness except a few
suggestions which he has denied. The spot panchanama at Exhibit-14
shows the description of the spot. Certain articles were seized from the spot
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viz. a plastic can having ½ litre of kerosene, a matchbox, a burnt
matchstick, burnt bedsheet and two burnt mats.
11) PW-5 Balaji Nampelli was the brother of the deceased Pushpa.
He deposed that the Appellant and Pushpa were residing with their
children. The Appellant was a tailor but he was not doing any work.
Pushpa was earning livelihood by taking work of rolling bidis. She was
looking after the children. She was maintaining them. The Appellant used
to take money from Pushpa. He used to beat her if she refused. The
Appellant was addicted to gambling. He used to demand money from
Pushpa and used to beat her. Pushpa was hoping that some day he would
mend his ways but there was no change in his behaviour. Two days prior to
the incident, PW-3 Shirisha had complained to him about the Appellant
harassing Pushpa. He tried to convince the Appellant to behave properly.
On the date of the incident, when he returned home from duty, he was
informed by his brother that Pushpa was set on fire by the Appellant. PW-5
then went to the spot. Pushpa was lying in the verandah. She had sustained
burn injuries on her body. On his inquiry, Pushpa told him that she was set
on fire by the Appellant. He immediately shifted Pushpa to the hospital in
ambulance. On the next date, at about 03:00 to 04:00 p.m., Pushpa
succumbed to her injuries.
In his cross-examination, he admitted that he had not told the
police that the Appellant used to beat Pushpa. He knew that the Appellant
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had borrowed money from others but he did not know the details. He
denied the suggestion that those persons were harassing the Appellant and
therefore, the Appellant used to go away to avoid them. He denied the
suggestion that the dispute between the couple was because of the
harassment by those persons.
12) PW-1 Laxmi Mangalpalli was a relative of the deceased and she
was a pancha for Inquest Panchanama.
13) PW-2 Kolappa Vitkar was a pancha in whose presence the
Appellant's clothes were seized and sealed on 11/02/2014. The
panchanama was produced on record at Exhibit-11.
14) PW-7 Ramesh Hirekerur was the Executive Magistrate. He has
deposed that on 11/02/2014, at about 02:00 a.m., he received a telephonic
call from PHC-Shri. Tanksale attached to MIDC Police Station, Solapur
requesting him to record the dying declaration of Pushpa. PW-7 has further
deposed that he reached the hospital i.e., Chatrapati Rugnalaya, Solapur.
He went to the burns ward. He met Dr. Asole and inquired with him
whether the patient was in a position to speak and whether she was in a
mental state to give statement before him. He asked the Police Constable to
go out of the burns ward. Pushpa was then examined by the Doctor; who
gave his endorsement on a piece of paper on which PW-7 started recording
the dying declaration. He questioned Pushpa about her name, age,
residence, etc. She answered all his questions clearly. She described the
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incident. She told him that the Appellant was doing tailoring work in the
factory of garments. Because of the grudge that he was holding due to past
disputes, he poured kerosene on her when she was fast asleep and set her
on fire.
15) PW-7 has further deposed that he read over the contents of her
statement. She accepted that the contents of the statement were correct. He
obtained her thumb impression on the statement and then put his own
signature. The Doctor again certified that the patient was conscious all
throughout the recording of the statement. The dying declaration recorded
by him was produced on record at Exhibit-20.
There was hardly any cross-examination of this important
witness. Only suggestions were put to him which is denied. The dying
declaration is produced on record at Exhibit-20. The endorsements of the
Doctor at the start of the dying declaration was at 02:30 a.m. on
11/02/2014 and it was mentioned that the patient was conscious and
oriented and was in a state to give valid statement. It was signed by the
said Dr. Asole. At the bottom of the dying declaration, there was another
endorsement made at 03:00 a.m. by the same Doctor. It was mentioned
that the patient was conscious and oriented throughout the statement.
That endorsement was made at 03:00 a.m. on 11/02/2014. Both these
endorsements were proved subsequently by Dr. Asole who was examined as
PW-8 and were marked as Exhibits-22 and 23 respectively. The dying
P.H. Jayani 904 APEAL431.2016.doc
declaration itself was marked at Exhibit-20. The recording started at 02:30
a.m. and was over at 02:55 a.m.
The dying declaration gives details of Pushpa's residence, full
name and background that they were married prior to about 16 years.
There is reference to her family background. As far as the incident is
concerned, he stated that Pushpa told him that, at about 11:00 p.m., the
Appellant had poured kerosene on Pushpa and had set her on fire. The fire
was doused by her daughter Shirisha. She had stated that she had this
complaint against her husband. He had set her on fire because he was
holding grudge due to quarrels.
16) PW-8 Dr. Asole had given those endorsements. He had stated
that the patient was brought to the hospital at 11:30 p.m. on 10/02/2014.
Preliminary treatment was given to her and she was shifted to the burns
ward. He himself made inquiry with Pushpa as to how she had sustained
burn injuries. Pushpa told him that she was set on fire. The history given by
her was recorded in the case papers by him. At 02:30 a.m., the SEM came
to the hospital for recording the dying declaration and requested PW-8 to
certify about the patient's mental and physical state. PW-8 has further
stated that he went to the burns ward and made inquires with Pushpa to
ascertain whether she was in a fit mental and physical condition. He asked
her about her name, age, address, etc. When he got proper answers, he was
satisfied that she was in a fit state to give the statement and accordingly, he
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gave his first endorsement on the dying declaration which was at Exhibit-
22. He permitted the SEM to record the dying declaration. He has further
deposed that he was present till the SEM completed recording of the dying
declaration. After that, PW-8 again satisfied himself about the patient's fit
state of mind and about her being fully conscious. Accordingly, he gave his
second endorsement on that dying declaration. The endorsement was at
Exhibit-23. After that, the Police Officers came to the hospital. In their
presence also, he followed the same procedure of ascertaining mental and
physical state and fitness of the patient and gave endorsements at the
beginning and at the end of the dying declaration recorded by the Police
Officer. Those endorsements were produced and marked as Exhibits-24 and
25.
In his cross-examination, he denied the suggestion that
Pushpa's entire face was burnt and that she was not in a position to speak.
He deposed that he had examined Pushpa's pulse and had taken
appropriate note in the case papers. There was no entry about the pulse
rate in the dying declaration. He had found that Pushpa was breathing
normally. He denied the suggestion that he gave a false endorsement.
17) PW-9 PHC - Devidas Tanksale attached to MIDC Police Station,
Solapur had recorded the second dying declaration which was treated as
the FIR. He deposed that he received a telephonic call at 12:30 a.m. on
11/02/2014 from the Officer-in-charge of the Police Station Shri. Bhoi, who
P.H. Jayani 904 APEAL431.2016.doc
told this witness to record Pushpa's statement. PW-9 then went to the
hospital at about 01:15 a.m. He sought permission from the Doctor to
record her statement. He made inquires with the Doctor whether Pushpa
was in a fit condition to give the statement. The Doctor told him that she
was fit. In the meantime, he sent a message and called the SEM for
recording the statement. He took the SEM for recording the statement. He
waited outside when the SEM came out of the burns ward. He asked the
SEM about the statement given by Pushpa. After that, he himself recorded
Pushpa's statement in the presence of the Doctor who had certified that
Pushpa was conscious and was in mentally fit state to give the statement.
He gave the endorsements at the beginning and at the end of the dying
declaration. Those endorsements are at Exhibits-24 and 25. The dying
declaration is produced on record at Exhibit-27. This dying declaration was
treated as the FIR. In this dying declaration, Pushpa had stated that she had
got married with the Appellant about 16 years earlier and they had children
from that marriage. He behaved properly for a year. He was not regular in
his work. He used to disappear for months. She used to earn the livelihood
by taking the work of rolling bidis. The Appellant was addicted to
gambling. He had taken loan from many people to the tune of Rs.50,000/-
which was repaid by Pushpa herself. Appellant used to abuse Pushpa and
used to beat her. He never helped her financially in running the house. On
10/02/2014, he came back at about 11:00 p.m. She and their children were
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sleeping. The Appellant woke her and started quarreling with her. He
pushed her, brought the kerosene can and poured kerosene on her and then
set her on fire. She raised shouts. When her daughter called her brother, he
took her to the Civil Hospital. This dying declaration was recorded at
03:05 a.m.
18) PW-6 Dr. Santosh Bhoi had conducted the Post Mortem
examination. He had found that Pushpa had suffered 94% burn injuries
which were superficial to deep burns. The cause of death was mentioned as
burn injuries. However, the Viscera was preserved for further analysis.
19) PW-10 Suresh Jadhav, Police Naik attached to MIDC Police
Station, Solapur had carried the articles to FSL.
20) PW-11 PSI - Kundan Sonawane was the Investigating Officer.
He had carried out the spot panchanama, seized the articles, arrested the
Appellant, seized the Appellant's clothes and had recorded statements of
various witnesses. He had obtained Post Mortem notes. He had filed the
charge-sheet after completion of the investigation.
21) The CA report shows that there were traces of kerosene on the
hair and skin of the deceased, in the kerosene can which was recovered and
on the pieces of blanket, bedsheet, mats and significantly on the clothes of
the Appellant.
This was the prosecution evidence.
22) Learned Counsel for the Appellant submitted that there was
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discrepancy in the evidence of the witnesses i.e., Pushpa's daughter, the
landlord and Pushpa's brother. There is discrepancy in the two dying
declarations. She submitted that since Pushpa had suffered 94% burn
injuries, it was not possible for her to have given any dying declaration.
There was no pre-meditation. Therefore, the offence may not fall within the
meaning of Section 300 of IPC. At the highest, it could be an offence
punishable under Section 304(I) of IPC.
23) Learned APP, on the other hand, opposed these submissions.
She supported the prosecution evidence. She submitted that there are dying
declarations which are consistent. There are endorsements on both the
dying declarations. There is evidence of the Doctor giving endorsements
and therefore, the prosecution has sufficiently proved the case beyond
reasonable doubt against the Appellant. She submitted that the Appellant's
case would not fall within the Exception 4 to Section 300 of IPC because
the Appellant had acted in a cruel and unusual manner. All the requisite
intention and knowledge are quite clearly made out from the evidence. She,
therefore, submitted that the Appeal be dismissed.
24) We have considered these submissions. The important evidence
in this case is in the form of dying declarations and the direct evidence of
the Appellant's daughter - PW-3. We do not find any material discrepancy
in both the dying declarations. The story is consistent that, at about 10:00
p.m., the Appellant picked up a quarrel with the deceased Pushpa. He
P.H. Jayani 904 APEAL431.2016.doc
poured kerosene on her and set her on fire. Both these dying declarations
are consistent. There are endorsements of the concerned Doctor on both
these dying declarations. Those endorsements are at the beginning and at
the conclusion of both these dying declarations. The endorsements are clear
enough. The SEM himself had put questions to the deceased and after being
satisfied about her state, he had recorded the dying declaration. Therefore,
we find that there was no irregularity in recording those two dying
declarations. The endorsements thereon, are consistent and cogent.
25) There is oral dying declaration made by Pushpa to her own
brother. Even there, the story is consistent.
26) Another important incriminating piece of evidence is in the
form of evidence of the Appellant and the deceased's daughter PW-3
Shirisha. She has described the incident in detail. She was very much
present in the house. She had seen that Pushpa had caught fire. The
Appellant was present there. He had pulled PW-3 and her brother out of the
house and then had latched the house from outside when Pushpa was
inside the house and had caught fire. This clearly shows that the Appellant
had prevented the children from helping Pushpa and saw to it that Pushpa
suffered fatal burn injuries. His presence on the spot is further substantiated
by the fact that traces of kerosene were found on his clothes. It is not
his defence that he was not present in the house at the time of the incident.
He had not tried to extinguish the fire. He had run away from the spot after
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causing sufficient damage. PW-3's presence in the house was quite natural.
There is no reason to disbelieve her evidence at all. PW-4 Balaji Madda and
PW-5 Balaji Nampelli have also corroborated PW-3's presence at the spot.
PW-5 and PW-3 had given the account of dispute between the deceased and
the Appellant and as to how the Appellant used to constantly harass the
deceased. He was addicted to gambling. He was not earning anything. He
used to ask money from the deceased and used to harass her on all these
counts. All this evidence is consistent and unerringly points to the guilt of
the Appellant.
27) We are also not satisfied that the offence could be the one
punishable under Section 304 Part I of IPC and not punishable under
Section 302 of IPC. Exception 4 to Section 300 of IPC reads thus :-
" 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."
The important consideration is that, to take recourse to this
benefit, the offender should not have acted in a cruel or unusual manner.
In the present case, after setting Pushpa on fire, the Appellant took the
children out of the house and had latched the door from outside when
Pushpa was still burning inside. He prevented anybody else to help Pushpa.
He had thrown kerosene on her and had set her on fire. All this conduct is
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definitely cruel and he had taken undue advantage of the vulnerability of
his own wife and children. Therefore, the Appellant cannot claim benefit of
taking his case within Exception 4 to Section 300 of IPC.
28) As a result of the above discussion, we do not find any reason
to interfere with the impugned Judgment and Order. The learned Judge has
given proper reasons in convicting and sentencing the Appellant. As a
result, the Appeal fails and is accordingly dismissed.
29) With the disposal of this Appeal, the connected Interim
Applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
PREETI
HEERO
JAYANI
