Vinod Jaysing Kashid v. The State of Maharashtra

16. In the cross examination of Dr. Umesh Hendre (P.W.3) and Dr. Jitendra Patil (P.W.6) an effort was made to draw home the point that no endorsement was made on the case papers about having examined the deceased pre and post recording of the statement. It was further elicited that it was not specifcally mentioned that patient was conscious and oriented. On these counts, the certifcation of ftness was sought to be assailed.

17. The learned Sessions Judge was not persuaded to accede to the said submission, and, in our view, rightly. The medical offcers have made a specifc endorsement that they had examined the deceased and found the later “conscious to give the statement” and “the patient was in a state of giving statement”, respectively. Absence of the use of the expression “conscious and oriented”, in the facts of the instant case, in our view, does not detract materially from their evidence. Indisputably, the deceased survived for a whole month from the dates of recording her statements: 30th March, 2010 and 1st April, 2010. Undoubtedly, the deceased had sustained 70% burn injuries. However, the material on record does not indicate that the condition of the deceased was such that she was not in a sound state of mind to make the statement.

18. The testimony of Dr. P.V.Pawar (P.W.7) puts the matter beyond the pale of controversy. Dr. P.V.Pawar (P.W.7) informed the Court that the deceased was admitted in the hospital on 4th April, 2010. On being inquired, the deceased had informed him that the accused had poured kerosene on her body and set her on fre. He claimed to have given intimation to jurisdictional police (Exhibit 54). When the police arrived on 8th April, 2010, Dr. P.V.Pawar (P.W.7) claimed to have examined the deceased and found her fully conscious and in a condition to give the statement. Accordingly, the statement of the deceased was recorded in his presence. Dr. P.V.Pawar (P.W.7) affrmed that he found that the deceased was conscious throughout and there was no change in her condition during the course of recording of her statement and thus he had made an endorsement on the statement (Exhibit 55). Nothing material could be elicited in the cross examination of Dr. P.V.Pawar (P.W.7), save and except the fact that he did not mention in the case papers that at the time of recording of the statement the deceased was conscious and oriented. As endorsement to that effect was made on the statement itself, the omission to mention the said fact in the case paper does not assume determinative signifcance.

19. In the backdrop of the aforesaid evidence, the challenge to the truthfulness and reliability of the dying declaration rested in non-recording of the dying declarations by a competent Magistrate, not making the certifcation of ftness in particular words and the manner of recording of the dying declarations, does not merit acceptance. It is trite law that if the dying declaration is found to be truthful and made in a sound state of mind, it can form the sole basis of conviction. The mode and manner of recording of dying declaration are not of decisive signifcance. It is not an immutable rule of law that the dying declaration must be recorded by and before the Magistrate. Nor the certifcation of ftness by medical offcer is peremptory, in all the cases.

20. The legal position is well neigh settled. We are thus of the view that it would be suffce to make a reference to the Constitution Bench judgment of Supreme Court in the case of Laxman vs. State of Maharashtra[1] wherein the juristic philosophy behind the acceptance of the dying declaration was expounded. It was also enunciated therein that there can be no cast iron pre-requisites of mode and manner of recording of dying declaration. This pronouncement constitutes a complete answer to the submissions sought to be advanced on behalf of the appellant. It reads as under:

21. The learned counsel for the appellant urged that there is a material variance between the multiple dying declarations. We are afraid to accede to this submission. We fnd that on the core of the occurrence, that is, the altercation between the accused and the deceased over the addiction of the accused, the accused having picked up a stove and poured kerosene on the person of the deceased and set her on fre, there is absolutely no deviation in any of the dying declarations. It is true that in the dying declaration (Exhibit 55), the deceased had stated that after she raised cries, on being set on fre, the accused made an attempt to extinguish the fre by splashing water on her and sustained burn injuries on his hands. Indeed the said statement does not fnd place in the frst dying declaration (Exhibit 42) and third dying declaration (Exhibit 55). Yet, in our view, the said fact does not erode the truthfulness of the claim of the deceased on the core of the occurrence. The dying declarations are consistent on the material aspect as to how the deceased caught the fre and the author of the said act.

22. Dr. Hendre (P.W.3) claimed to have examined the accused on 31st March, 2010 and found superfcial to deep burn injuries on the right forearm, left limb and face of the accused. The cause of injury was thermal burns and they were sustained within 48 hours of the examination. As observed above, injuries on the person of the accused, in the instant case, establish the presence of the accused at the scene of occurrence. The endevour of the accused to bolster up the defence that those injuries were sustained as accused tried to extinguish the fre, which the deceased caught accidentally, however, does not deserve countenance for reasons more than one. Firstly, the deceased had not only made three declarations specifcally attributing the role to the accused, of having set her on fre after pouring kerosene but the deceased had also narrated the history before the medical offcers on 30th March, 2010 and 4th April, 2010, wherein also the same role was attributed to the accused. Secondly, the scene of occurrence panchanama (Exhibit 20), which was admitted in evidence on behalf of the accused, reveals that in the kitchen there was a gas stove. The use of kerosene stove which allegedly burst is thus rendered improbable even if we take the defence version at par that the deceased accidentally caught fre when flames thereof flickered. Thirdly, the scene of occurrence panchanama further records that the copper stove was lying on the floor at the scene of occurrence, which was seized under the said panchanama. If the deceased accidentally caught fre, the said stove would not have been found lying on the floor. These circumstances are incompatible with the claim that the deceased accidentally caught fre.

23. The upshot of aforesaid consideration is that the dying declarations made by the deceased appear to be genuine and truthful and inspire confdence. They are consistent on all material points. Thus, we are impelled to hold that the prosecution has succeeded in establishing not only the factum of homicidal death but authorship thereof as well.

24. The learned counsel for the appellant strenuously urged that even if the case of the prosecution is taken at par, then also the offence punishable under section 302 of the Penal Code cannot be said to have been made out. It was urged that from the own showing of the prosecution, the accused was in an inebriated condition. Thus, there was a quarrel between accused and the deceased. In the said quarrel the accused had poured the kerosene on the person of the deceased and set her on fre. The entire act was in the spur of the moment, when the accused was overcome by passion. Since there is unflinching evidence to indicate that the accused attempted to extinguish the fre and did sustain injuries, it justifes an inference that the accused did not intend to cause the death of the deceased. Thus, the offence, at the most, would fall within the dragnet of section 304 Part I of the Penal Code, urged Mr. Talkute.

25. In contrast, the learned A.P.P. stoutly submitted that the learned Sessions Judge has rightly convicted the accused for the offence punishable under section 302 of the Penal Code as the accused had intentionally set the deceased on fre.

26. To buttress the aforesaid submission, the learned counsel for the appellant placed reliance on the judgment of the Supreme Court in the case of Yomeshbhai Pranshankar Bhatt vs. State of Gujrat[2] In the said case, the appellant/accused had gone to the house of the deceased, who was working as maid and refused to join her work at the house of the accused. As an 2 AIR 2011 SC 2328. altercation ensued, the appellant picked up the kerosene can, emptied it on the deceased and lit the match stick. The Supreme Court, in the facts of the said case, held that there was no pre-meditation to kill the deceased or cause any bodily harm or injury to the deceased. Everything had happened on the spur of moment. The appellant must have lost self-control on some provocative utterances of the deceased. The Court thus held that the case fell within the ambit of section 304 Part II, and since the appellant had already suffered imprisonment for eleven years and two months, sentence was modifed to the one already undergone.

27. Reliance was also placed on the judgment of the Supreme Court in the case of Kalabai vs. State of Madhya Pradesh[3]. wherein the appellant, in the wake of exchange of words in the tea-club of Air Force, 32 Wing (MT section) picked up a burning kerosene wick-stove and threw it on the deceased. Kerosene from stove spilled over the clothes of the deceased, they caught fre and the deceased ultimately died as a result of burns received by him. The Court held that since the appellant had 3 AIR 2019 SC 2135. thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. Holding thus, the conviction was altered to the offence punishable under section 304 Part II instead of section 302 of the Penal Code and the sentence was reduced to rigorous imprisonment for fve years.

28. A very strong reliance was placed on the judgment and order of the Supreme Court in Criminal Appeal No. 2485 of 2009 in the matter of Devendrappa Yamanappa Biradar vs. The State of Karnataka, wherein the facts resembled with the facts in the case at hand. Special emphasis was laid on the following observations: “The evidence on record discloses that the appellant was addicted to alcohol which was the reason for the constant bickering between the appellant and the deceased. There is evidence to show that at the time of the incident, the appellant was in an inebriated condition and during the fght which he had with the deceased, he poured the kerosene on the deceased and set her on fre. The evidence further shows that he immediately tried to save her by pouring water and he was the one who took the deceased to the hospital. We have carefully examined the oral and documentary evidence from the record. The evidence discloses the fact that the appellant was drunk. He committed the offence whilst being deprived the power of self control by grave and sudden provocation. Therefore, the culpable homicide is not murder. Consequently, we are of the opinion that the appellant does not deserve to be convicted under section 302 of IPC. Instead, he is convicted under section 304 Part I of IPC and sentenced to undergo 10 years imprisonment.” (emphasis supplied)

29. We have given our anxious consideration to the aforesaid submissions and carefully perused the judgments cited by the learned counsel for the appellant.

30. It appears that the learned Sessions Judge after fnding that the accused was the perpetrator of the act of setting the deceased on fre did not advert to the question as to whether the said act would amount to ‘murder’ or ‘culpable homicide not amounting to murder’. A three stage inquiry, delineated by the Supreme Court in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr[4], was not undertaken. In the said case, Supreme Court instructively explained distinction between ‘murder’ or ‘culpable homicide not amounting to murder’. In the process, the Supreme Court postulated the method of determining as to whether in the given facts the offence proved is ‘murder’ or ‘culpable homicide not amounting 4 (1976) 4 Supreme Court Cases 382. to murder’ in three stages. Paragraph 21 of the said judgment reads as under:

31. In the instant case, the learned Sessions Judge did not embark upon inquiry, at the third stage, namely, whether the act of the accused falls within any of the exceptions to section 300 of the Penal Code. In the facts of the case, the applicability of the fourth exception, namely, death in a sudden fght, warrants consideration. For applicability of exception 4, the following conditions must be satisfed namely,

(i) A sudden fght;

(ii) No pre meditation;

(iii) Act was done in a heat of passion and

(iv) The assailant did not take any undue advantage or act in a cruel manner.

32. On an analysis of the evidence, we fnd that the altercation took place between the accused and the deceased as the former returned home in a drunken state and demanded the deceased to serve food. The addiction of the deceased was stated to be the reason for the frequent quarrels between the accused and the deceased. We are conscious of the fact that voluntary drunkenness is not a defence. However, the inebriated condition, in which the accused was found, fomented the quarrel between the accused and the deceased. In all the dying declarations, the deceased claimed that she remonstrated the dipsomaniac behavior of the accused and questioned him as to how she would run household and thereupon the accused told her to die and picked up the stove and poured kerosene on her person and set her on fre. Evidently, the incident occurred at the spur of the moment. The act was done in the heat of passion as the accused lost self control. The inebriated condition must have fuelled the passion. There is no material to show that the accused took any undue advantage or acted in a cruel manner. On the contrary, the accused made an attempt to extinguish the fre and even sustained burn injuries in the said process. This spontaneous attempt to extinguish the fre and save the deceased, underscores the fact that there was no premeditation.

33. However, since the accused had poured the kerosene on the person of the deceased and set her ablaze, we are inclined to hold that the accused had the intention to cause the burn injuries. Thus, in our view, the act of the accused would fall within the tentacles of section 304 Part I of the Penal Code. The accused has already undergone the imprisonment for more than nine years and nine months. Having regard to the period of imprisonment already undergone and the entire gamut of the circumstances, in our view, a sentence of rigorous imprisonment for ten years would meet the ends of justice.

34. For the foregoing reasons, the appeal deserves to be partly allowed. Hence, the following order.

ORDER a] The Appeal stands partly allowed. b] The impugned judgment of conviction for the offence punishable under section 302 of the Penal Code and sentence of imprisonment for life stands set aside. c] The accused Vinod Jaysing Kashid stands convicted for the offence punishable under section 304 Part I of the Penal Code. d] The accused Vinod Jaysing Kashid is sentenced to suffer rigorous imprisonment for ten years. e] The sentence of fne stands confrmed. (N.J.JAMADAR, J.) (SMT SADHANA S. JADHAV, J.)