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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, AMIT B. BORKAR, JJ.
Sau. Kavita Shankar Harale - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No.146 of 2019
Decided on : 05-04-2022
Indian Penal Code, 1860 - Sections 302, 304, 300 and 449 - Code of Criminal Procedure, 1973 - Section 161 - Murder Offence – Appeal Against Conviction - Whether evidence adduced by prosecution is credible enough to sustain conviction of appellant under Section 302 of IPC - Whether an act is committed with intention of causing death or intention of causing such bodily injury as is accordingly to cause death is a question of fact and not one of law - Whether appellant's act would fall within first two Clauses of Section 300 of IPC – Held, In instant case, evidence is that deceased died four days after incident not on account of burns simpliciter but due to septicemia due to burn injuries - It is true that there was direct nexus between appellant’s act and burns suffered by deceased, but, in Court view, there were no direct nexuses between act of appellant and burns turning septic - It is possible that burns of deceased may have turned septic in Hospital - In such a situation, then, even though appellant can be attributed of knowledge that her act was imminently danger, knowledge can not be fastened to her that it would in all probability cause death or such bodily injury as is likely to cause death - Hence, Clause 4thly would not be applicable - Nevertheless, there is no getting away from fact that appellant poured kerosene on deceased; set her on fire; and she had knowledge of deceased's death as contemplated by Clause 3rdly of Section 299 of IPC, breach of which is punishable under Section 304 Part-II of IPC - In Court view, offence punishable under Section 304 Part-II is made out against the appellant - sole question which survives is quantum of sentence which should be awarded to appellant for offence under Section 304 Part-II I.P.C - Having reflected over it, Court is of judgment that a sentence of 7 years rigorous imprisonment would meet ends of justice – Appeal partly allowed.
JUDGMENT :
AMIT B. BORKAR, J.
1. Heard.
2. Through this appeal, the appellant is challenging the judgment and order dated 19.01.2019 passed by the District Judge-1 and Additional Sessions Judge, Wardha in Sessions Case No. 116/2016, whereby she has been convicted and sentenced to undergo imprisonment for life and pay fine of 5000/- for the offence Rs.500/- for the offence punishable under Sections 302 and 449 of the Indian Penal Code (IPC).
3. Shortly stated, the prosecution’s case runs as under:-
Saku Kishan Kurale -deceased/victim, was a labourer. The appellant used to reside near her house. The deceased was a part of Bhisi taken by her from the appellant and owed her an amount of 40,000/-. On the date of the incident, i.e. on 10.08.2016 at about Rs.5000/- for the offence 04.00 p.m., the appellant came to her house to recover the said amount; however, the deceased told her that she would pay her amount back by paying 500/- per week. The appellant refused to Rs.5000/- for the offence accept the said offer and started to take away the gas cylinder kept in the deceased's house. When the deceased obstructed, the appellant went to her house; brought a kerosene can; poured kerosene on the deceased; lighted a match-stick and set the deceased ablaze. At that time, the husband of the deceased was standing in the courtyard; he tried to make the appellant understand. However, the appellant poured kerosene on the deceased and set her ablaze with the intention of killing her.
4. Sunita Jadhav (PW9) and Shobha Satpute (PW10) were present when the incident took place. The deceased was taken to General Hospital, Wardha. Accordingly, Crime No. 1669/2016 came to be registered under Section 307 of the IPC. Saku succumbed to her injuries, and an offence under Section 302 of the IPC was added.
5. The investigation was conducted in the usual course, and thereafter the appellant was charge-sheeted for the offence under Section 302 of the IPC. Then, in the usual course, the case was committed to the Court of Sessions. In the Trial Court, the prosecution examined as many as 16 witnesses. It also tendered and proved various material exhibits, including one dying declaration recorded by Prabhakar Tarale (PW4). The learned Trial Court believed the evidence of two eye-witnesses, i.e. Sunita Jadhav (PW9), Shobha Satpute (PW10) and dying-declaration Exh.50 and convicted the appellant in the manner set out in paragraph no. 2, hence this appeal.
6. We have heard Shri R. M. Daga, learned Advocate of the appellant and Shri T. A. Mirza, learned APP for respondent/State, at considerable length. We have also perused the depositions of the witnesses, the material exhibits, the statement of the appellant and the impugned judgment. After giving our anxious consideration to the matter, we are firmly of the opinion that the prosecution has established its case beyond any shadow of a doubt. However, this appeal deserves to be partly allowed as the prosecution has failed to prove essential ingredients of Section 302 of the IPC and has proved its case under Part-II of Section 304 of the IPC.
7. After going through the testimony of eye-witnesses, Sunita Jadhav (PW9), Shobha Satpute (PW10) and Prabhakar Tarale (PW4), who recorded dying declaration, we are of the opinion that evidence of eye-witnesses and dying-declaration inspires confidence.
8. The evidence adduced by the prosecution in the instant case can be classified under the following two heads:-
b) Dying declaration, which is said to have been made by the deceased to Prabhakar Tarale (PW4).
9. The short question in this appeal is whether the evidence adduced by the prosecution is credible enough to sustain conviction of the appellant under Section 302 of the IPC. First, we would first like to begin with the ocular account furnished by Sunita Jadhav (PW9) and Shobha Satpute (PW10). Both these witnesses have deposed that they were present along with some othe
The judgment establishes the importance of dying declarations and the application of appropriate sections of the IPC based on the circumstances and intention of the accused.
Point of Law : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue adva....
The main legal point established in the judgment is the reliance on dying declaration as a sole basis for conviction under Section 302/34 of IPC, the interpretation of Section 498A of IPC, and the ap....
The court established that the distinction between murder and culpable homicide hinges on the intent of the accused, with Section 304 Part-I applicable when the act does not demonstrate a clear inten....
The dying declaration and complaint were considered credible evidence, and the absence of a doctor's endorsement on the dying declaration was not considered significant. The court applied Section 106....
The court clarified that actions under intoxication leading to death may constitute culpable homicide not amounting to murder, not murder itself.
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