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2000 CRI. L. J. 2389
BOMBAY HIGH COURT
VISHNU SAHAI AND KAKADE, JJ.
Criminal Appeal No. 8 of 1996
Decided on : 1-2-2000
Dowry Death - Criminal Law - Section 302, I.P.C. - Section 304(ii), I.P.C. - Summary: The court examined the dying declarations and found the appellant guilty of an offence punishable under Section 304(ii), I.P.C. instead of one under Section 302, I.P.C. The court held that the appellant committed an act with the knowledge that he was likely to cause death, in terms of clause thirdly of Section 299, I.P.C. The appellant was sentenced to undergo seven years R.I. under Section 304(ii), I.P.C.
Fact of the Case:
The appellant was convicted and sentenced to undergo imprisonment for life for the offence under Section 302, I.P.C. for setting his wife on fire, resulting in her death.
Finding of the Court:
The court found the appellant guilty of an offence punishable under Section 304(ii), I.P.C. instead of one under Section 302, I.P.C. based on the dying declarations and the cause of death.
Issues: The main issue was to determine the appropriate section of the Indian Penal Code under which the appellant should be convicted.
Ratio Decidendi: The court held that the appellant committed an act with the knowledge that he was likely to cause death, in terms of clause thirdly of Section 299, I.P.C., and therefore, found him guilty under Section 304(ii), I.P.C.
Final Decision: The appellant was acquitted for the offence under Section 302, I.P.C. and found guilty for the offence under Section 304(ii), I.P.C. He was sentenced to undergo seven years R.I. thereunder.
VISHNU SAHAI, J. :- The appellant aggrieved by the judgment and order dated 14-11-1995 passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 109/95 convicting and sentencing him to undergo imprisonment for life for the offence under Section 302, I.P.C. has come up in appeal before us:
2. In short prosecution case runs as under: The deceased Muktabai was the wife of appellant. She was married to him about 9 months prior to incident. Appellant under the influence of liquor used to beat and harass her. On 25-4-1995 at about 1 or 1.30 a.m. Pushpa Tadpade PW-6 a neighbour of Muktabai and appellant, heard cries of Muktabai on which she rushed to her house, followed by Mandabai Potinde PW-7 who was also Muktabai's neighbour. Pushpa Tadpade and Mandabai saw Muktabai, in a burnt condition. On seeing them Appellant ran away. Since Muktabai's sari was burnt Pushpa and Mandabai changed the same. On their asking Muktabai as to how she was burnt Muktabai replied that the appellant had poured kerosene on her and set her on fire. Shortly thereafter another neighbour Kantabai came. Kantabai's husband Madhav and one Shivaji brought Suresh Yadav PW-12 along with his rickshaw. On the rickshaw of Suresh Jadhav Muktabai was removed to Civil Hospital, Nasik, where she was admitted.
3. The evidence of Dr. Ravindra Ashtaputre PW-9 shows that on 25-4-1995 at 2.10 a.m. he admitted Muktabai as a burns case in Civil Hospital, Nasik and informed police. Thereafter immediately police came to hospital and told him that it wanted to record statement of Muktabai. Dr. Ravindra Ashtaputre examined Muktabai and isued a certificate that she was in a position to give her statement. Thereafter police havaldar Sudam Mahajan PW-3 of Bhadrakali Police Station recorded her statement, Exhibit 16, in the presence of Dr. Ravindra Ashtapure.
A perusal of Exhibit 16, in short, shows that Muktabai stated that on 24-4-1995 at about 9 p.m. she cooked meals. Thereafter appellant took her to a jeweller for purchasing mangalsutra. After purchasing it they returned to house. She started making preparations to serve dinner. Appellant stated he would go out and consume liquor. Some time later he came in a drunken condition. She asked him whether she should serve him dinner. He asked her to take dinner for he wanted to take more liquor. When she started taking her dinner he questioned her how could she take before he had taken and poured kerosene oil on her and set her on fire.
4. The evidence of police havaldar Sudam Mahajan PW-3 shows that after recording FIR he went to Bhadrakali Police Station and sent a letter of request to Special Judicial Magistrate Jaiprakash Chavan PW-1 to record Muktabai's dying declaration. On receipt of said letter Jaiprakash Chavan came to Civil Hospital Nasik at about 5 a.m. and told Dr. Ravindra Ashtaputre that he wanted to record statement of Muktabai. Dr. Ravindra Ashtaputre medically examined her and issued a certificate which is on (exhibit 10) to the effect that she was in a fit condition to make statement. He thereafter recorded her dying declaration in question and answer form in Marathi. It is Exbit 10 since question No. 3 and answer thereto is relevant for disposal of this appeal we are translating question No. 3 and answer to it in English.
Question No. 3 reads thus:
"How you got burnt?
Answer : My husband consumes liquor and for the last fortnight he is continuously beating me. Last night he came after consuming liquor and quarrelled with me. He poured kerosene on my person and set me on fire.
In response to some other questions put by Special Judicial Magistrate Jaiprakash Chavan PW-1 she replied that she doused the flames and her husband ran away instead of dowsing them.
5. The evidence of P.S.I. Shantaram Borse PW-4 shows that on 25-4-1995 at about 7.5 a.m. on the basis of Muktabai's statement recorded by Special Judicial Magistrate Jaiprakash Chavan PW-1 he registered Crime No. 69/95 under Section 307, I.P.C.
6. The evidence
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