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IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
S.S. SHINDE & A.I.S. CHEEMA, JJ.
Kakasaheb – Appellant
Vs.
State of Maharashtra – Respondent
Criminal Appeal No. 22 of 2012
Decided On : 24.11.2014
Dying Declaration - Murder - Indian Penal Code, 1860, Section 302 - 498-A, 323, 504, 506 - 304 Part II
Fact of the Case:
The appellant was convicted for the murder of his wife based on a dying declaration recorded by a Special Judicial Magistrate. The victim, who had suffered extensive burns, accused her husband of pouring kerosene on her and setting her on fire after a quarrel over money and alcohol consumption. The appellant was acquitted of other charges and convicted under Section 302 of the IPC.
Finding of the Court:
The court found the dying declaration to be reliable and accepted the evidence of the victim's son, who witnessed the incident. The court discredited the defense witness, the appellant's other son, and concluded that the appellant was guilty of culpable homicide. However, considering the circumstances and absence of premeditation, the court applied exception 4 of Section 300 of the IPC and convicted the appellant under Section 304 Part II of the IPC instead of Section 302.
Issues: Reliability of dying declaration, credibility of witnesses, applicability of exception 4 of Section 300 of the IPC
Ratio Decidendi: The court relied on the dying declaration, the testimony of the victim's son, and discredited the defense witness. It applied exception 4 of Section 300 of the IPC due to the absence of premeditation and convicted the appellant under Section 304 Part II of the IPC.
Final Decision: The conviction and sentence under Section 302 of the IPC were set aside, and the appellant was convicted under Section 304 Part II of the IPC, sentenced to ten years of rigorous imprisonment, and fined Rs. 2000.
A.I.S. CHEEMA, J.
1. The appellant/original accused (hereafter referred as accused) Kakasaheb Khatik has been convicted in Sessions Case No. 36 of 2010, by Additional Sessions Judge, Shrirampur on 28.6.2011 under Section 302 of the Indian Penal Code, 1860 (IPC for short) for having committed murder of his wife Bebi Kakasaheb Khatik (hereinafter referred as the victim) and has been sentenced to suffer imprisonment for life and to pay fine of Rs. 2000/- and in default, to suffer simple imprisonment for three months.
2. The facts in brief are as under:-
(a) The accused was married to the victim some time in 1989. From the marriage, he has elder son Pradeep (D.W.1) and younger son Pravin (P.W.1). They were living at Patharwala, Taluka Newasa, District Ahmednagar. The accused was doing work of driving truck and tractor. He was addicted to liquor. He was ill-treatvictim and used to beat her after consuming liquor. On 28.5.2010, in the morning around 10.00 a.m. he had beaten the victim with yoke pin which broke. On the same day, in the evening at about 8.00 p.m. he again picked up quarrel with the victim and beat her with stick and using a brick. He had consumed liquor and started abusing his wife, and in the course of the event, poured kerosene which was in a can in the house on her and put her on fire. The victim ran out of the house shouting when her children put out the fire. Hearing her shouts, people from nearby gathered. As the quarrels were usual, earlier people had not assembled, but when such incident took place, they gathered. Elder son Pradeep went and called his uncle Sanjay Kardile residing some distance away and the victim was taken in a vehicle to one Nityaseva Hospital, Shevgaon, who refused to admit her and these people proceeded to Civil Hospital at Ahmednagar.
(b) At the Civil Hospital, earlier an effort was made on request of police from Topkhana Police Station to record the statement of the victim on 29.5.2010 with the help of Special Judicial Magistrate Gorakshnath (P.W.3), but as the victim was not in a condition to give statement, the effort was given up. After treatment, when on 31.5.2010 the victim was in a condition to speak, the statement in the nature of dying declaration was recorded through the Special Judicial Magistrate Gorakshnath. The police from Topkhana Police Station forwarded the statement to the Police Station at Newasa where the offence bearing Crime No. 128 of 2010 came to be registered by P.S.O. Sahebrao Bhoite (P.W.5).
(c) The investigation was taken over by P.S.I. Vikram Gaikwad (P.W.9). He went to the spot and recorded spot panchanama in presence of panchas, collected pieces of bangles, plastic can, match box, one half burnt match stick, kerosene mixed mud from the spot and duly sealed the same and deposited the articles in the police station. Later, the articles were sent on 21.6.2010 to Chemical Analyser at Nagpur through Police Constable Hanumant Garje (P.W.6). Statements of witnesses were recorded on 1.6.2010 and accused also came to be arrested on the same day. The arrest panchanama shows accused had burn injuries to his hand, neck and nose. The shirt of the accused was also seized. The same was also sent to the Chemical Analyser. Topkhana Police Station forwarded the inquest panchanama to the Police Station, Newasa. The body of the victim was received by her brother Sanjay Kardile. Sanjay Kardile produced certain documents relating to earlier disputes where the accused had agreed to behave himself. The documents came to be seized. Post mortem report was collected from the hospital. The investigating officer produced the sons of the victim before Special Judicial Magistrate Ramkrushna Kulkarni (P.W.12) and their statements under Section 164 of the Code of Criminal Procedure, 1973 (Cr. P.C. for short) were recorded. Taking other necessary steps for the purposes of investigation and collecting C.A. report, the charge sheet came to be filed.
3. The offence being Sessions triable, mat
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