Bombay High Court
Balasaheb Maruti Baswant vs The State Of Maharashtra on 13 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:24504-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.410 OF 2018
Balasaheb Maruti Baswant .....Appellant
Versus
The State of Maharashtra .....Respondent
.....
WITH
INTERIM APPLICATION NO.490 OF 2023
IN
CRIMINAL APPEAL NO.410 OF 2018
.....
INTERIM APPLICATION NO.5341 OF 2024
IN
CRIMINAL APPEAL NO.410 OF 2018
-----
Ms. Nasreen Ayubi, Advocate for the Appellant.
Mr. Avinash A. Naik, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATE : 13th JUNE, 2025
ORAL JUDGMENT : [PER SARANG V. KOTWAL, J.]
1. The Appellant has challenged the judgment and order
dated 9.1.2018 passed by the Additional Sessions Judge, Thane in
Sessions Case No.356/2014. The Appellant was convicted for
commission of the offence punishable under Section 302 of IPC and
he was sentenced to suffer life imprisonment and to pay a fine of
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Rs.10,000/- and in default to suffer RI for three months. The
amount of fine, if recovered, was directed to be paid to the children
of the victim.
2. Heard Ms. Nasreen Ayubi, learned counsel for the
Appellant and Mr. Avinash A. Naik, learned APP for the
Respondent-State.
3. The prosecution case is that the Appellant was residing
with his wife Shobha and two sons Ashish and Atul. The Appellant
was addicted to liquor. On 21.12.2013, when the Appellant came
back to his house, he started scolding his elder son regarding his
non-attendance in the school . The Appellant's wife Shobha tried to
intervene. The Appellant then tied both his sons with dupattas. He
poured kerosene on Shobha and set her on fire. He ran away from
the house. The sons somehow untied the dupattas and tried to
extinguish the fire. One of them, went to their maternal uncle's
place, who was residing in the neighborhood and informed him
about the incident. He came to the spot. They took Shobha - first to
the police station, and then, to the civil hospital. She was admitted
to the hospital in the midnight. The Police Inspector tried to record
her statement in the night but at that time she was not in a position
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to give any statement as she was unconscious. She regained her
consciousness the next morning. The Police Inspector then
informed the S.E.M. Waghmare and requested him to record the
statement. The Police Inspector as well as the Special Executive
Magistrate recorded her dying declarations in the afternoon. She
had suffered injuries to the extent of 94%. Ultimately she
succumbed to her injuries. The statement recorded by the police
was treated as an FIR and the investigation was carried out. The
appellant had absconded. The postmortem examination was
conducted. The cause of death was mentioned as 'Septicemic Shock
in a case of 94% superficial to deep burns'. The spot panchnama
was conducted. The statements of the witnesses were recorded.
The Appellant was arrested after a few days from Barshi, District-
Solapur. At the conclusion of the investigation, the charge sheet
was filed.
4. The prosecution examined 10 witnesses during the
trial. There was direct evidence in the form of depositions of the
Appellant's sons who were the eyewitnesses. There were two
written dying declarations - one was recorded by the Police
Officer; and the other was recorded by the S.E.M.. The doctor, who
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had examined the deceased before recording of the dying
declaration was examined by the prosecution during the trial . The
medical officer who had conducted the postmortem examination
was examined. The articles were sent for Chemical Analysis. The
C.A. reports were produced on record. The investigating officer was
also examined.
5. The defence of the Appellant was of total denial. In
answer to a question put under Section 313 of Cr.P.C. he stated that
he was sleeping in the house at the time of the incident after
consuming liquor. Due to shouts he woke up and saw that his wife
was set on fire. Therefore, he made an attempt to extinguish the
fire and in that attempt had sustained burn injuries to his hand.
Apart from that, the Appellant has not given any explanation as to
why he absconded and as to why he did not tell anybody about the
incident and as to why he did not seek help of the neighbors.
6. The learned trial judge considered the evidence on
record. He accepted the evidence of the eyewitnesses and the
dying declarations; and based on this evidence reached the
conclusion that the Appellant had committed the said offence.
Accordingly, the learned trial Judge convicted and sentenced the
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Appellant as mentioned earlier.
7. The important evidence in this case is that of the
eyewitnesses as mentioned earlier. PW-3 Ashish Basawant is the
elder son of of the Appellant and the deceased. He has stated that
in the year 2013 he, his brother Atul, their parents i.e. the
Appellant and Shobha (deceased) were staying together. In
December 2013 he was studying in the 10 th standard. On the date
of occurrence, his father returned home. He asked PW-3 as to why
he was not attending the school. PW-3 answered that since the
Appellant was consuming liquor every day and was quarreling, he
was not interested in attending the school. The Appellant became
angry and started assaulting him. PW-3's mother (the deceased)
tried to intervene. Therefore the Appellant started assaulting her.
PW-3 asked his father not to assault his mother but the assault was
continued. PW-3 further stated that the Appellant then tied his
hands by a dupatta and tied him to the iron bed. The Appellant
also tied the hands of his brother by another dupatta and tied him
to a cupboard. Shobha was in the kitchen. The Appellant went to
the kitchen. PW-3 smelt kerosene. He somehow untied his hands
and went there. He saw that the Appellant was holding a lit
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matchstick in his hand. The Appellant had already poured kerosene
on his mother Shobha. The Appellant then threw the matchstick on
Shobha's saree. PW-3 tried to extinguish the fire, but, the Appellant
kicked him and did not allow him to douse the fire. PW-3 then
untied the hands of his brother, who went to their grandmother's
house to call her. The Appellant fled away. PW-3 shouted for help.
The neighbors came there. With their help, the fire was
extinguished. PW-3 took his mother to the police station and
thereafter on their advice took her to the hospital. The doctors told
him that his mother had suffered burn injuries to the extent of
94%. The Appellant never visited the hospital to see Shobha. PW-
3's mother Shobha passed away on 24.12.2013. The Appellant did
not attend the last rites. PW-3 later came to know that the
Appellant was arrested at Barshi, District - Solapur.
. In the cross examination, he has deposed that on the
date of the incident, the Appellant had consumed liquor in large
quantity. The dupatta, which was used to tie his hands, was not
handed over to the police. He denied the suggestion that the
Appellant sustained injuries during the incident. He further
explained that after the assault, his mother stood between himself
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and the Appellant and, therefore, the Appellant did not get any
room to escape and in that attempt had sustained injuries. He
further deposed that his statement was recorded on 24.12.2013.
His mother was admitted in the hospital at 12:30 in the midnight
between 20th and 21st December, 2013. He was there throughout
till her death. Within four hours of her admission in the hospital,
she lost her consciousness and regained her consciousness at 7:30
a.m. on the next morning. He used to leave the hospital in the
morning to take bath etc. and used to return within an hour.
According to him, the police visited the hospital on the next day
morning at 8:30 a.m. and then had recorded his mother's
statement. He further stated that his mother was always sad
because the Appellant was addicted to liquor. In the further cross
examination, certain omissions from his police statement were put
to him. He could not explain as to why his police statement did not
mention that his father had tied his hands before going to the
kitchen and that when he himself entered the kitchen the kerosene
was already poured on Shobha. He could not assign any reason as
to why these two facts were not referred in his police statement. He
further admitted that he had not told the police that Shobha had
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stood between himself and the Appellant and therefore the
Appellant had sustained injuries. He denied the suggestion that
Shobha had committed suicide in a fit of anger and that the
Appellant sustained burn injuries on his hand and chest in an
attempt to extinguish the fire.
8. PW-4 Atul Basawant was the other son of the couple,
who was examined as an eye witness to the incident. He had
narrated the incident in the same manner as was narrated by PW-3.
His narration is consistent with the deposition of PW-3. After
narrating the initial part, he deposed that after untying themselves
when they went to the kitchen, they saw that their father was
trying to set their mother on fire by using a matchstick. PW-3 tried
to resist him, but,the Appellant kicked and pushed PW-4. Then the
Appellant set Shobha on fire by using a matchstick. PW-4 further
deposed that he tried to extinguish the fire by pouring water on
her. The fire spread because of her saree. He then opened the
door and ran to call his grand-mother residing nearby. His grand-
mother and maternal uncle immediately rushed to the spot. By
that time, the neighbors had gathered there. The fire was
extinguished by pouring water. In the meantime, the Appellant had
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fled away from the spot. They then took Shobha to the police
station and then she was shifted to the civil hospital. She had
sustained 94% burn injuries. She was in the hospital for four days
and then she succumbed to the injuries.
In the cross-examination, he was asked as to why his
police statement did not mention that he was tied by a rope or that
his father had poured kerosene on Shobha. He was suggested that
his mother set herself on fire and the Appellant tried to extinguish
the fire and in the process suffered burn injuries. According to
him, when he opened the door the Appellant fled away from the
spot by pushing him aside. He denied the suggestion that getting
fed-up because of the Appellant's addiction to liquor, Shobha had
committed suicide.
9. PW-2 P.I. Vikas Babar was the police officer who had
recorded the first dying declaration of the deceased which was
treated as an F.I.R. resulting in registration of C.R. No.1007/2013
at Mumbra Police Station, District-Thane. He deposed that on
20.12.2013, he was attached to Mumbra police station and was on
duty as P.S.O.. At about 1.00 a.m. i.e. in the midnight Shobha's
relatives brought her to the police station. She was in an urgent
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need of medical aid. She was immediately taken to the Civil
Hospital for treatment. He himself went to the Civil Hospital for
recording her statement. At that time, the doctor opined that she
was not in a position to give a statement. PW-2 further deposed
that he then issued a letter to the Tahsildar requesting him to
record Shobha's statement. PW-2 himself again went to the Civil
Hospital. At that time the doctor permitted recording of the
statement. Accordingly, PW-2 recorded Shobha's statement at
11.35 a.m. on 21.12.2013. The statement is produced on record at
Exhibit-15. It was treated as an F.I.R.. He deposed that Shobha
stated that, at about midnight, when her husband was scolding her
elder son, she tried to intervene and on that count the Appellant
poured kerosene on her person and set her on fire. She further told
PW-2 that the Appellant then fled away from the spot. Her
relatives and children brought her to the police station after
extinguishing the fire. PW-2 recorded this statement. He obtained
signature of Shobha's mother and Shobha's son on the said
statement. The said dying declaration is produced on record at
Exhibit-15. Based on this statement, he registered the FIR. He
visited the spot of incident and recorded the spot panchnama. He
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seized the muddemal articles at the spot, viz., plastic can having
kerosene, clothes of the deceased etc..
In the cross-examination, he stated that he did not
obtain endorsement of the medical officer at the beginning and at
the end of the statement that the injured Shobha was in a position
to give the statement. However, Exhibit-15 clearly shows that there
is an endorsement of the doctor that the patient was able to give
her statement. Therefore, this admission is not correct. He denied
the suggestion that Shobha had set herself on fire.
10. PW-5 Rajratan Waghmare was working as a Talathi at
the relevant time. He received a letter requesting to record
Shobha's statement. On 21.12.2013 he went to the civil hospital,
Thane at about 2.00 p.m.. He met the doctor and asked him
whether the patient was in a position to make a statement. The
doctor made an endorsement on the request letter that the patient
was in a position to make a statement. He recorded Shobha's
statement. On his enquiry, Shobha told him that she made an
attempt to intervene in the quarrel between her husband and her
son and because of that, her husband poured kerosene on her and
set her on fire. Her son and one Samir extinguished the fire and
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then brought her to the hospital. PW-5 obtained impression of her
toe on the said statement as her hands were in a bandage. The
dying declaration recorded by PW-5 is produced on record at
Exhibit-22.
In the cross-examination, he admitted that he himself
did not make any endorsement on Exhibit-22 that the patient was
conscious to make statement. He obtained toe impression because
her hands were in bandage. The toe impression did not bear his
identification. There were burn injuries on the face, throat and
neck of Shobha. He denied the suggestion that when he went to
the hospital the patient was unconscious.
11. PW-8 Dr. Ujawala Kendre had examined the injured
Shobha and had given her endorsement that she was in a position
to make a statement. She deposed that on 21.12.2013, when she
was on duty, PW-5 approached her and requested to give her
opinion on Shobha's condition. PW-8 then accompanied PW-5
Waghmare to the burns ward. She examined the patient and gave
her opinion that Shobha was in a position to make a statement.
She gave her endorsement on the form of dying declaration. The
endorsement is produced on record at Exhibit-31. The
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endorsement mentions that the patient was conscious oriented and
was able to give statement. The time of the endorsement was 2.00
p.m. on 21.12.2013.
In the cross-examination, she admitted that there was
no endorsement on Exhibit-22 that she was present throughout the
recording of the dying declaration. There was a minor over-writing
on the time which she admitted was changed from 2.05 hours to
2.00 hours.
12. PW-6 Padmini Shinde was Shobha's mother. She has
narrated that Shobha's son Ashish had come to call her after the
incident and had informed PW-6 that the Appellant had poured
kerosene on her, had set her on fire and had fled away. She went
to the house of the Appellant and Shobha. By then Shobha was
already taken to the police station. She deposed that the Appellant
was in a habit of consuming liquor and was addicted to smoking
ganja, cigarette etc.. He used to beat Shobha.
In the cross-examination, she stated that she had not
lodged any complaint against the Appellant.
13. PW-7 Angad Sawant was Shobha's maternal uncle. He
was the brother of PW-6 Padmini. They were residing nearby.
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After the incident, Shobha's son came to PW-6 and narrated the
incident. He made enquiry with Shobha's son Ashish, who informed
him about the incident. Then PW-7 and others went to the spot.
They took Shobha to the police station in an auto-rickshaw. PW-7
further deposed that he asked Shobha regarding the incident and at
that time she told him that her husband had poured kerosene on
her and had set her on fire. She further told him that the Appellant
was addicted to liquor and used to quarrel with her over their
children. He further deposed that Shobha was in the hospital for
three days and then she succumbed to her injuries. They
performed her last rites but the Appellant did not attend the last
rites. He deposed that in the past when there used to be quarrels
between the couple, he used to tell the Appellant to behave
properly.
In the cross-examination, he denied the suggestion that
Shobha committed suicide because she was fed up of the
harassment.
14. PW-9 Dr.Nishigandh Rokade had conducted the
postmortem examination. He deposed that Shobha had suffered
94% burn injuries and the cause of death was 'Septicemic Shock in
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a case of 94% superficial to deep burns'.
15. PW-1 Hanifa Shaikh was a pancha for spot panchnama,
which was conducted between 1.20 p.m. to 2.20 p.m. on
21.12.2013.
16. PW-10 P.I. Parmeshwar Tawade had conducted the
investigation. He deposed that he had recorded the statements of
the eye witnesses. The Appellant was arrested from Barshi. His
clothes were seized. He was arrested. The panchnama of the
Appellant's person conducted on 5.1.2014 was produced on record
at Exhibit-40. The panchnama mentions that the Appellant had
suffered burn injuries on some parts of right side of his face, nose
and ear. His hands, some part of the chest and neck also had burn
injuries. However, there is no actual medical evidence of his burn
injuries. PW-10 then sent the articles for chemical analysis. The
C.A. reports are produced on record by this witness. The C.A.
reports show that the articles were received in the FSL on
13.1.2014. The learned Judge has not given much importance to
the evidence of C.A. reports because the articles were sent
belatedly. It is also difficult to believe that the Appellant would
continue wearing the same clothes for so many days till 5.1.2014
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when the incident had occurred on 21.12.2013.
. This, in short, is the evidence led by the prosecution.
17. Learned counsel for the Appellant submitted that there
is discrepancy between the two dying declarations. There is also
discrepancy between the evidence of the eyewitnesses inter se; and
between their versions and the dying declarations. She submitted
that the Appellant had no intention to commit this offence because
he was angry with his son not attending the school. She submitted
that the Appellant's wife Shobha should have taken the side of the
Appellant in scolding his son for not attending the school. She
submitted that there was a strong possibility that the deceased had
committed suicide because of the quarrels. The eye witnesses who
were sons of the Appellant were deposing against the Appellant
because of the obvious grudge they were holding against him. In
any case the offence would not be the one under Section 302 of
IPC because there was no premeditation or preparation to commit
the offence and the offence had occurred on the spur of the
moment. She submitted that there was discrepancy in the
description of the spot of the incident. Though the evidence of the
eyewitnesses and the dying declarations mentioned that the
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incident had taken place inside the kitchen, the spot panchnama
carried out shows that there were signs of the incident taking place
outside the kitchen.
18. Learned APP, on the other hand, submitted that the
evidence led by the prosecution in the form of direct evidence and
in the form of dying declarations is natural and consistent. There is
no discrepancy in these statements. He submitted that there is no
force in the submission that it would be a lesser offence. It is a clear
case of the offence of murder as defined under Section 300 of
I.P.C., which is made punishable under Section 302 of I.P.C.. In
support of his contention in that behalf, he relied on the judgment
of the Hon'ble Supreme Court in the case of Santosh Shankar
Pawar Vs. State of Maharashtra1. He also relied on the another
judgment of the Hon'ble Supreme Court in the case of Anil Kumar
Vs. State of Kerala2. He, therefore, submitted that there is no merit
in the Appeal and it be dismissed.
19. We have considered these submissions. This is a case
where there is a direct evidence of two eye witnesses who were the
sons of the Appellant himself. The sons were sufficiently old to
1 Decided by the Hon'ble Supreme Court in Criminal Appeal No.683/2015 dated 21.4.2015
2 Decided by the Hon'ble Supreme Court in Criminal Appeal No.2697/2023 dated 1.11.2023
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understand the proceedings. They have given cogent and clear
evidence. Their evidence is absolutely consistent. Though there is
omission in their police statements in respect of the Appellant tying
them to the bed and the cupboard; the genesis of the incident and
the actual incident of setting Shobha on fire is consistently deposed
by both of them. They are natural witnesses who were present in
the house when the incident had taken place. They had informed
the others. They had extinguished the fire and had taken Shobha to
the hospital. There is no reason to doubt their version. Both of
them have stated that initially the Appellant started scolding PW-3
for not attending the school. The deceased Shobha tried to
intervene. The Appellant got angry and then poured kerosene on
Shobha and set her on fire. Both the sons had consistently deposed
that the Appellant had fled away from the spot. Though the
panchnama at Exhibit-40 shows that the Appellant had suffered the
burn injuries, there is no explanation why the Appellant did not
extinguish the fire and why he did not help others in extinguishing
the fire. The prosecution has sufficiently proved that after the
incident the Appellant had fled away from the spot and that he was
arrested only on 5.1.2014 i.e. after two weeks from the incident,
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that too, from a distant place at Barshi. The incident had taken
place in Mumbra District-Thane. Both the sons have consistently
deposed that the Appellant had fled away from the spot instead of
helping them in extinguishing the fire.
20. Apart from the direct evidence, there is evidence in the
form of dying declarations. There is one oral dying declaration and
two written dying declarations of the deceased.
21. PW-7 Angad Sawant, who was the maternal uncle of
the deceased, has spoken about the narration given by Shobha to
him when she was being taken to the hospital. There also she had
clearly stated that the Appellant had set her on fire.
22. PW-2 PI Vikas Babar had recorded the first dying
declaration, which bears an endorsement of the Medical Officer
that the deceased was able to give the statement. Shobha had
described the incident clearly as to how the Appellant had poured
kerosene on her and then had set her on fire. She had stated that
both her sons tried to extinguish the fire, but the Appellant pushed
them away. She ran towards a place where water was kept and her
sons poured water on her person. The Appellant fled away. This
version is consistent with the other evidence.
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23. Same is the version mentioned in the dying declaration
recorded by PW-5 Rajaram Waghmare. An endorsement given by
the Dr Kendre is proved at Exhibit 31. The victim had survived for
three more days. There is no reason to disbelieve these two written
dying declarations and an oral dying declaration. The postmortem
notes show that the deceased had suffered 94% burn injuries. All
this evidence is cogent and consistent. Therefore, we are satisfied
that the prosecution has proved beyond reasonable doubt that the
Appellant had set her on fire.
24. The next question is whether the offence would fall
within any of the Exceptions to Section 300 of IPC or whether it
would be an offence of murder. In that connection the learned APP
relied on the aforesaid two judgments.
25. In the case of Santosh Pawar, the facts were that the
accused had suspected the fidelity of his wife. When she tried to
convince him, he assaulted her with fist and kicks. He then poured
kerosene on her and set her ablaze. When the wife started
screaming for help, the Appellant, in order to save her, poured
water on the deceased. The Hon'ble Supreme Court observed that
there was no provocation for the accused to pour kerosene and set
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his wife on fire. The act of pouring kerosene, though in a spur of
moment, the same was followed by lighting a match-stick and
throwing it on the deceased and thereby setting her ablaze. Both
the acts are intimately connected with each other and resulted in
causing the death of the deceased and the act of the accused is
punishable for murder. It was further observed that even assuming
that the accused had no intention to cause the death of the
deceased, the act of the accused falls under clause (iv) of Section
300 of IPC that is the act of causing injury so imminently
dangerous where it will in all probability cause death. Any person
of average intelligence would have the knowledge that pouring of
kerosene and setting her on fire by throwing a lighted matchstick is
so imminently dangerous that in all probability such an act would
cause injuries causing death. These observations are squarely
applicable to the case before us.
26. Similarly, in the case of Anil Kumar, the applicability or
otherwise of Exception 4 to Section 300 was considered. It was
observed that the accused in that case could not take advantage of
the 4th Exception only on the pretext that it was not on account of
premeditated mind or was out of a sudden fight or that his
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intentions were not bad as he tried his best to douse the fire and to
save the deceased wife. It was further observed by the Hon'ble
Supreme Court that said exception clearly in unequivocal terms
states that it would be applicable where culpable homicide is
committed not only without premeditated mind in a sudden fight
or quarrel but also without the offender taking "undue advantage"
of the situation. It was observed that in the case before the Hon'ble
Supreme Court, the accused therein upon seeing the deceased
drenched in kerosene clearly took advantage of the situation and
lighted a matchstick and threw it upon her so that she could be
burnt. Thus, the accused had taken "undue advantage" of the
situation and, therefore, could not seek benefit of Exception 4 to
Section 300 of IPC to bring the case within the ambit of Part-II of
Section 304 of IPC.
27. For reference, Exception 4 of Section 300 of IPC can be
reproduced as follows :
"300. Murder. - ...........
..................
..................
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
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the offender having taken undue advantage or acted in
a cruel or unusual manner.
Explanation - It is immaterial in such cases which
party offers the provocation or commits the first
assault."
28. In the present case also the Appellant before us has
taken "undue advantage" of the situation. He acted in a cruel
manner. He had not tried to douse the fire. He, in fact, prevented
their sons from making an attempt to extinguish the fire. He fled
away from the spot. All this conduct of the Appellant shows that he
cannot take advantage of Exception 4 to Section 300 of IPC to
bring the case within Part II of Section 304 of IPC.
29. As a result of the above discussion, we do not find any
merit in this Appeal. Accordingly the Appeal is dismissed. With
dismissal of the Appeal, the connected Applications are also
disposed of.
( SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2025.06.21
10:59:32
+0530
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