Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.410 OF 2018
Balasaheb Maruti Baswant …..Appellant
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IN
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INTERIM APPLICATION NO.5341 OF 2024
IN
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Ms. Nasreen Ayubi, Advocate for the Appellant.
Mr. Avinash A. Naik, APP for the Respondent-State.
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ORAL JUDGMENT
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 1 of 23 Deshmane(PS) 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 2 of 23 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 3 of 23 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 4 of 23 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 10th 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 5 of 23 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 6 of 23 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 7 of 23 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 grandmother 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 8 of 23 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 9 of 23 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 10 of 23 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 11 of 23 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 12 of 23 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. 13 of 23 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 14 of 23 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 15 of 23 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 16 of 23 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 Maharashtra[1]. He also relied on the another judgment of the Hon’ble Supreme Court in the case of Anil Kumar Vs. State of Kerala[2]. 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
2 Decided by the Hon’ble Supreme Court in Criminal Appeal No.2697/2023 dated 1.11.2023 17 of 23 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, 18 of 23 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. 19 of 23
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 20 of 23 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 21 of 23 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 22 of 23 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)