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2022 Supreme(Bom) 428
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N. R. BORKAR, JJ.
Kailas Laxman Chavan – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 298 of 2021 Along With Interim Application No.1089 of 2021
Decided on : 27-01-2022
Advocate Appeared:
For the Appellant : Mr. Vivek M Punjabi a/w. Ms. Shweta Bhagchandani
For the Respondent: Mr. Y.M. Nakhwa, Adv
Headnote:
Indian Penal Code, 1860 - Section 302, 498-A and 304 - Marriage - Used To Doubt Her Character - Assault Her Under Influence - Poured Kerosene And Put Her Ablazed - Deceased was wife of appellant - After marriage accused used to doubt her character and assault her under influence of alcohol - Accused mentally and physically harassed Shobha by suspecting her character and subjected her to cruelty by willful conduct - Thereafter, he poured kerosene on person of Shobha and put her ablazed - Thereafter, after 4 to 5 days, while being treated in hospital, (decreased) expired – Held, In light of evidence of aforesaid witnesses an irresistible conclusion is that appellant committed act of pouring kerosene on person of (deceased), and set her ablaze - However, if prelude of said incident is carefully seen, it appears that accused entered in house and saw one pot near devhara and suspected that some other person entered in house and kept pot at said spot - However, it appears from contents of dying declaration that wife of appellant told him that said pot was kept by accused himself - However, accused without pre-meditation, suddenly on suspicion that some other person has come to his house, lifted kerosene can, poured kerosene and set her wife on fire - Act of accused was not pre-meditated or designed and at relevant time as it has come in dying declaration that he was under influence of alcohol and committed said act - It is recorded in dying declaration that appellant after committing said act of pouring kerosene and setting her wife ablaze, tried to douse fire by pouring water on person of (deceased), and thereafter, taken her to hospital - Therefore, keeping in view evidence on record so also attending circumstances, Court alter conviction from Section 302 of the IPC to Section 304 Part II of the IPC, and Court impose a sentence of rigorous impressionist of 10(ten) years on appellant-accused – Appeal partly allowed.
JUDGMENT :
S.S. SHINDE, J.
1. The present appeal is preferred by the appellant (original accused) being aggrieved by the judgment and order dated 4th February, 2021, passed by Additional Sessions Judge, Nashik, thereby convicting him for the offences punishable under Section 302 and 498-A of the Indian Penal Code, 1860 (hereinafter for short ‘IPC’).
2. The case of the prosecution in nutshell can be summarized as under:-
Shobha Chavan (deceased) was the wife of the appellant. After the marriage the accused used to doubt her character and assault her under the influence of alcohol. The accused mentally and physically harassed Shobha by suspecting her character and subjected her to cruelty by willful conduct. On 11.10.2016 at about 9.00 pm, after coming home under the influence of alcohol, the accused noticed one drinking pot, which was kept near the devhara (place of worship in the house). After seeing the same, the accused asked his wife if any outsider had come. However, when Shobha (deceased) told the accused that the drinking pot was kept by the accused himself, the accused got annoyed and abused her. Thereafter, he poured kerosene on the person of Shobha and put her ablazed. Thereafter, after 4 to 5 days, while being treated in the hospital, Shobha (decreased) expired. In the meantime, on the report of the informant (the deceased), the offence was registered.
3. After registration of offence, investigation was carried out. Investigating officer carried out spot panchnama (Exhibit-16), seized various articles from the spot of incident. Thereafter, on 13.10.2016, the investigating officer arrested the accused by preparing arrest panchnama (Exhibit-51). Thereafter, she recorded the statement of witnesses and sent the seized muddemal to forensic lab along with covering letter (Exhibit-52). After completion of investigation, the investigating officer has filed chargesheet. The Judicial Magistrate First Class, Sinnar, committed the case to the Court of Sessions, since offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions. Charge was framed against the accused for the offence punishable under Section 302 of IPC and the accused pleaded not guilty. The accused took the defence that the false case has been filed against him.
4. In order to prove its case the prosecution has examined following witnesses- Kailas Uttam Gaikwad (PW1), Madhavrao Kashinath Kokate (PW2), Khandu Ganpat Jedgule (PW3), Sitaram Sahadu Lokhare (PW4), Dr. Sonali Ashok Gaidhani (PW5), Nitin Ramnath Mandlik (PW6), Nivrutti Bhavani Chavan (PW7), Ashok Fakira Ahire (PW8) and Dr. Nikhil Somnath Saindane (PW9).
5. In addition to examination of aforesaid witnesses the prosecution has also relied on the various documents including spot panchnama (Exh.16), statement of informant (deceased) (Exh.20), statement dated 12.10.2016 of the deceased (Exh. 34), inquest panchnama (Exh.41), memorandum of postmortem examination (Exh.44), muddemal pavti (Exh.50), arrest panchnama (Exh.51) and C.A. report (Exh. 54).
6. After a full fledged trial, the trial Court convicted the accused for the offences punishable under Section 302 and 498-A of the IPC. Hence, this appeal.
7. Learned counsel appearing for the appellant has made following submissions-
(i) The dying declaration recorded by the Executive Magistrate is on a printed form and is in the form of a questionnaire. Also, the questions asked by the Magistrate to the deceased have been previously framed. There is difference in the time recorded by the medical officer. The medical officer has endorsed that Shobha (deceased) was fit to give a statement at 12.30 pm., and another endorsement at 12.50 pm. The total time calculated for recording the said dying declaration is 62 minutes. So, even if the doctor gave an endorsement at the beginning of the said dying declaration and another at the end, the time of the said endorsement of the doctor is not correct and proper. The dying declaration at Exhibit-20 and th
