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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. Tahilramani, Sandeep K. Shinde, JJ.
Ganesh Ramesh Kamble - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 706 of 2013
Decided On : 12-06-2017
Indian Penal Code, 1860 - Sections 300, 302 and 304, Part I-Conviction for murder.-Accused husband having no intention to kill his wife, set her on fire during quarrel under influence of liquor, liable to be convicted under Section 304, Part I and not under Section 302, IPC.
It is an admitted fact that, the appellant set `K` on fire during the course of a sudden quarrel which took place between the appellant and `K`. However, the dying declaration, Exhibit-39 shows that, after `K` caught fire, the appellant along with others extinguished the fire. It appears that, in the process of extinguishing the fire, both the hands of the appellant were burnt. This is brought out in the evidence of PW 8, who has stated that, the appellant was also admitted in Central Hospital, Ulhasnagar as both his hands were burnt. PW 8 has also stated that the appellant was discharged from the Hospital on 26th December, 2008. Moreover, the evidence of PW 1, doctor shows that, `K` was brought to the Hospital by her husband i.e. the appellant. The dying declaration, Exhibit-33 also shows that, `K` was brought to the Hospital by the appellant. This conduct of the appellant cannot be seen divorced from the totality of the circumstances. Very probably, the appellant would not have anticipated that, the act done by him would have accelerated to such a proportion that, `K` may die. If the appellant had intended his wife `K` to die, he would not have extinguished the fire and immediately rushed her to the hospital in an effort to save her life. In view of the evidence on record Court is inclined to think that, all the appellant thought of, was to frighten `K` and not kill her, but unfortunately, the situation slipped out of control and went to a fatal incident. Looking to the facts of this case, that, the case would not fall under Section 302, IPC. Court stood fortified in taking this view by the observations of the Supreme Court, in the case of Kaluram v. State of Rajasthan, 1999 Mh LJ Online (Cri)(SC) 2 : (2000) 10 SCC 324. In the said case also, similar facts arose and the Supreme Court held that, the case would not be covered by Section 302 of IPC, but it would be covered by Section 304 (Part II), IPC.
However, as far as the submission of counsel is concerned, that the case would fall under Section 304 (Part II), looking to the extensive nature of the injuries by `K`, that, the case would fall under Section 304 (Part I) of IPC.
V.K. Tahilramani, J.
The appellant, original accused has preferred this Appeal against the judgment and order dated 24th January, 2013 passed by the Learned Additional Sessions Judge, Kalyan in Sessions Case No. 90 of 2009. By the said judgment and order, the Learned Sessions Judge convicted the appellant under Section 302 of Indian Penal Code ("IPC" for short) and sentenced him for the said offence to imprisonment for life and fine of Rs.5,000/- in default R.I. for 4 months.
2. The prosecution case briefly stated is as under :-
The appellant was married to deceased, Kavita in the year 2006. Some months after the marriage, the appellant started consuming liquor and beating Kavita. Kavita lodged criminal case against the appellant under Section 498A IPC. The said case was compromised and at the time of compromise, the appellant signed a document stating that he will not trouble Kavita and he will treat her properly. This document was executed on a stamp paper. However, even thereafter the appellant continued to ill-treat Kavita. On 14th December, 2008 the appellant came home in an intoxicated condition. Kavita questioned him about drinking liquor. Thereupon, a quarrel took place between Kavita and the appellant. The appellant then poured kerosene on Kavita and set her on fire. Kavita was taken to the Central Hospital, Ulhasnagar. In the hospital, two dying declarations of Kavita came to be recorded. The first dying declaration was recorded by P.W.8, P.I. Kamble. The said dying declaration is at Exhibit-39. Kavita told P.I. Kamble that, on 14th December, 2008 her husband came home after drinking liquor. When she questioned him about this fact, a quarrel took place between them. Her husband then poured kerosene on her and set her on fire. This dying declaration was treated as FIR. In the hospital, on the very same day i.e. on 14th December, 2008 P.W.7 Special Executive Officer, Lajwanti Motwani recorded the dying declaration of Kavita. The said dying declaration is at Exhibit-33. In this dying declaration, Kavita stated that on account of quarrel between her and her husband, he poured kerosene on her and set her on fire. After registration of FIR, investigation commenced. Kavita expired on 22nd December, 2008 in the hospital. Thereafter, the offence was converted into Section 302 IPC. After completion of investigation, charge-sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3. Charge came to be framed against the appellant under Section 302 IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was that of total denial and of false implication. After going through the evidence adduced in this case, the Learned Sessions Judge convicted and sentenced the appellant as stated in para-1 above, hence, this appeal.
4. We have heard the Learned Counsel for the appellant and the Learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the Learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the below-mentioned reasons, we are of the opinion that the appellant poured kerosene on Kavita and set her on fire which led to her death.
5. The conviction of the appellant is based on two dying declarations i.e. Exhibit-33 and Exhibit-39. The dying declaration at Exhibit-33 was recorded by P.W.7, Special Executive Officer, Smt. Lajwanti Motwani. The dying declaration at Exhibit-39 was recorded by P.W.8-P.I. Kamble. Both these dying declarations were recorded on 14th December, 2008 in the Hospital. In addition to these two dying declarations, conviction is also based on oral dying declarations made by Kavita to P.W.2-Mayurakshi, P.W.3-Meenakshi and P.W.6-Dilip. Mayurakshi was the mother of Kavita, Meenakshi was the maternal aunt of Kavita and Dilip was the father of Kavita.
6. We now proceed to deal with the first dying declaration i.e. Exhibit-39. This dying
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