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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N.J. JAMADAR, JJ.
Santosh Rajaram Wankhede - Appellant
Versus
The State of Maharashtra, Through Chandwad Police Station - Respondent
Criminal Appeal No. 1041 of 2015 With Interim Application No. 1067 of 2020
Decided On : 23-12-2021
Indian Penal Code, 1860 - Section 302 and 300 - Criminal Procedure Code, 1973 - Section 235(1) - Punishment for murder - Harassment and cruelty - Many a times accused used to beat deceased under influence of liquor and when second son of deceased was three months old accused administered poison to deceased - She was admitted in hospital and thereafter, she started residing with her parents - Written undertaking in form of Compromise Deed was given by accused that he would not harass deceased and thereafter deceased was sent to her matrimonial house - They cohabited well for six months and thereafter, again accused started abusing and beating deceased under influence of liquor - while deceased was cooking, accused poured kerosene on her and set her on fire - fire was extinguished by her nephew, Balu Laxman and wife of brother-in-law and deceased was taken to hospital - On date of incident at p.m. complainant received a phone call of his brother-in-law that is burnt and admitted to Civil Hospital He along with his wife went to hospital and inquired with victim about incident - Deceased told them that in evening when she was cooking accused poured kerosene on her person from 5 ltrs. plastic can and set her ablaze and so she was burnt - On next day complainant lodged a complaint at Police Station - In intervening night Special Executive Magistrate recorded dying declaration of victim after obtaining her fitness certificate.
Finding of the Court: Appellant lifted a can containing kerosene and after opening the said can, poured kerosene on the person of Manisha and set her ablaze. On a plain reading of contents of Exhibit 29, which has been reproduced hereinabove, it is abundantly clear that there was neither premeditation on the part of the accused/Appellant nor there was preparation for such commission of offence - we are of the view that Exception-4 to Section 300 of the Indian Penal Code applies to the facts of the present case and appropriate conviction would be under Section 304 Part II of the IPC - conviction of the Appellant under Section 302 of the IPC is set aside and instead, the Appellant is convicted under Section 304 Part II of the IPC. For the said offence, the Appellant is sentenced to undergo Rigorous Imprisonment of 10 years and to pay fine as ordered by the trial court. In default of payment of fine, to suffer further Simple Imprisonment for one month. Set-off be given as per Rules - Hence, the conviction of the Appellant under Section 302 of the IPC is set aside and instead, the Appellant is convicted under Section 304 Part II of the IPC. For the said offence, the Appellant is sentenced to undergo Rigorous Imprisonment of 10 years and to pay fine as ordered by the trial court. In default of payment of fine, to suffer further Simple Imprisonment for one month. Set-off be given as per Rules.
Result: Appeal disposed of.
JUDGMENT :
S.S. Shinde, J.
The Appellant has filed the present appeal challenging the judgment and order dated 20 August 2015 passed by the Additional Sessions Judge, Niphad in Sessions Case No.1 of 2014 convicting the Appellant under Section 235(1) of Cr.P.C. for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life. The Appellant was also convicted under Section 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years.
2. The case of the prosecution in brief is as under:
(I) On 16.2.2003 marriage of deceased Manisha was performed with accused at Ozar. Out of the said wedlock, deceased had begotten three children. For two years, they cohabited well. However, thereafter accused used to ill-treat and harass the deceased as she was suspecting about his adulterous relations. Many a times accused used to beat the deceased under the influence of liquor and when the second son of deceased was three months old, the accused administered poison to the deceased. She was admitted in the hospital and thereafter, she started residing with her parents.
(II) On 19.7.2011, a written undertaking in the form of Compromise Deed was given by the accused that he would not harass the deceased and thereafter the deceased was sent to her matrimonial house. They cohabited well for six months and thereafter, again, the accused started abusing and beating the deceased under the influence of liquor.
(III) On the date of incident, i.e. on 6.7.2013 at about 7.00 p.m., while deceased was cooking, accused poured kerosene on her and set her on fire. The fire was extinguished by her nephew, Balu Laxman and wife of brother-in-law, Sau Wankhede and the deceased was taken to hospital.
(IV) On the date of the incident at about 8.00 p.m. and 8.30 p.m., complainant received a phone call of his brother-in-law that Manisha is burnt and admitted to Civil Hospital, Nashik. He, along with his wife, went to the hospital and inquired with victim Manisha about the incident. Deceased told them that in the evening when she was cooking, accused poured kerosene on her person from the 5 ltrs. plastic can and set her ablaze and so she was burnt. On the next day, complainant lodged a complaint at Chandwad Police Station. In the intervening night of 6 and 7 July 2013 at about 12.30 a.m., Special Executive Magistrate recorded dying declaration of the victim after obtaining her fitness certificate.
(V) On the basis of complaint, offence came to be registered against the accused vide C.R. No.102/2013 at Chandwad Police Station for the offences punishable under Sections 307, 498-A and 323 of the IPC. Thereafter, spot panchanama was prepared, statements of the witnesses were recorded and statement of the victim was recorded on 9 July 2013. The accused was arrested.
(VI) On 13.8.2013, Section 302 of IPC came to be added as the deceased succumbed to her injuries and the case was committed to the Sessions Court. The trial court after a full-fledged trial, vide the impugned judgment and order dated 20 August 2015 convicted the Appellant under Section 235(1) of Cr.P.C. for the offence punishable under Sections 302 and sentenced him to suffer rigorous imprisonment for life and pay a fine of Rs.10,000/- and in default thereof, to suffer further rigorous imprisonment for four months. The Appellant was also convicted under Section 498-A and sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs.2000/- and in default thereof, to suffer further RI for two months.
3. Learned Counsel for the Appellant has assailed the impugned order on the following grounds:
(I) There is discrepancy in the complaint, oral dying declaration at Exhibit 20, dying declaration recorded by PW 4 ASI Hire and dying declaration recorded by Special Executive Magistrate as the said dying declarations are not identical and are inconsistent to each other.
(II) The prosecution has failed to prove the guilt of the accuse
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