High Court

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APEAL-63-19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 63 OF 2019Babasaheb Pandhari CholeAge: 65 years, Occu.: Agri.,R/o Aasola, Tq. Dharur, Dist. Beed..APPELLANTVERSUSState of Maharashtra..RESPONDENT....Mr. S.J. Salunke, Advocate for appellantMs. V.S. Chaudhari, A.P.P. for respondent - State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 29th JANUARY, 2024PRONOUNCED ON : 05th FEBRUARY, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The appellant has been convicted for murder of his wife vide orderdated 29th December, 2018 passed by Additional Sessions Judge, Majalgaonin Sessions Case No. 23 of 2017, and therefore, sentenced to suffer lifeimprisonment and fine with default stipulation. He is, therefore, before us inthis appeal.2.Facts giving rise to the present appeal are as follows :-The appellant is the resident of village Aasola, Tq. Dharur, Dist.Beed. He would reside alongwith his wife, Kamalbai (deceased), son,Tukaram (P.W.3), two daughters-in-law, Alka (P.W.5) and Nirguna (P.W.6)1 / 8 APEAL-63-19.odtand their children. The appellant was addicted to alcohol. He was sixty-fiveyears of age at the relevant time. Kamalbai (deceased) was sixty years of age.The appellant would desire his wife to share bed with him every night. Shewould, however refuse to join him. She used to say that there weredaughters-in-law and grand children in the house and same did not lookgood. Still she would occasionally sleep in the appellant’s room.3.The appellant came home drunken late in the evening on 19thMarch, 2017. A quarrel ensued between him and the deceased. He pouredkerosene on the person of the deceased and set her ablaze. She raised criesin the name of her son and both the daughters-in-law loudly telling them tohave been set on fire by the appellant. P.W.3 - Tukaram broke open the doorof the room of the appellant. He and daughters-in-law of the appellantcovered the deceased with a blanket and thus extinguished fire. Kamalbaiwas rushed to the hospital. She unfortunately succumbed to the burns on22nd March, 2017.4.Based on the statement (Exh.24) given by deceased Kamalbai,crime vide C.R. No.66 of 2017 was registered for the offence punishableunder Section 307 of the I.P.C. On demise of Kamalbai, Section 302 of theI.P.C. came to be invoked. The crime was investigated. Upon completion ofinvestigation, the appellant was proceeded against by filing the charge-sheet.2 / 8 APEAL-63-19.odt5.The Court of Judicial Magistrate First Class, Ambajogai committedthe case to the Court of Additional Sessions Judge, Majalgaon (‘trial Court’).Trial Court framed the charge (Exh.6). The appellant pleaded not guilty. Hiscase is that the deceased committed suicide.6.The prosecution examined eleven witnesses and produced inevidence various documents to bring home the charge. The trial Court, onappreciation of evidence, convicted the appellant and consequently sentencedas stated above.7.The Executive Magistrate had recorded dying declaration (‘D.D.’)of the deceased. The same was, however not produced before the trial Court.He was summoned many a time for production of the D.D. and recordingevidence in proof thereof. Learned counsel for the appellant had relied on anApex Court judgment in case of Samadhan Dhudaka Koli Vs. State ofMaharashtra, (2008) 16 SCC 705 to submit that if the D.D. recorded by anExecutive Magistrate was suppressed from the Court, the convict may beentitled for benefit of doubt.8.We had, therefore, requested learned A.P.P. to communicate withthe office of the Executive Magistrate as to whether D.D. is available withhim. The concerned office took time, but ultimately produced the D.D.3 / 8 APEAL-63-19.odtrecorded by the Executive Magistrate. Learned counsel for the appellant gaveno objection to admit the said document in evidence.9.Learned counsel for the appellant would submit that it would atthe most be an offence punishable under Section 304 Part 2 of the I.P.C. Theappellant was heavily drunk. Nobody witnessed the incident. A quarrelensued between the appellant and the deceased. The appellant pouredkerosene on the person of the deceased out of an anger. The appellantappears to have attempted to douze the fire, since he too suffered 15% ofburns. He was an indoor patient for three days. Learned counsel, therefore,urged for converting the conviction from offence punishable under Section302 to Section 304 of the I.P.C.10.Learned A.P.P. would, on the other hand, submit that the case isbased on two written D.Ds. and three oral. The deceased had suffered 97%of burns. The D.Ds. were recorded within hours of the incident. The fact thatthe appellant poured kerosene and set her wife ablaze suggests he hadintended to kill his wife. According to the A.P.P., its an offence of murder.The trial Court has rightly convicted the appellant therefor. She, therefore,urged for dismissal of the appeal.11.Considered the submissions advanced. Perused the evidence onrecord. The appellant had two sons. Both were married. They were blessed4 / 8 APEAL-63-19.odtwith children. One of the sons, Dnyandeo passed away. All of them wouldreside with the appellant and his wife Kamalbai (deceased). Admittedly, theappellant was addicted to alcohol. It is, however in the evidence of P.W.5 -Alka that the appellant had given up drinking. Same, however appears to beincorrect since D.D. (Exh.X-1) recorded by the Executive Magistrate suggeststhe appellant came home drunk.12.The appellant was sixty-five years of age at the relevant time. Thedeceased was sixty years old. It is in the testimony of P.W.3 - Tukaram andboth the daughters-in-law Alka (P.W.5) and Nirguna (P.W.6) that theappellant would desire his wife (deceased) to sleep with him every night.The deceased would not like the same, in view of there being daughters-in-law in the house. She still used to share bed with the appellant occasionally.It is in the oral evidence of these witnesses that on the fateful night theappellant took his wife (deceased) to his room. The appellant pouredkerosene on her person and set her ablaze. It was 02:00 a.m. of 19th March,2017. On hearing her cries, all of them woke up. P.W.3 - Tukaram brokeopen the door. According to them, the appellant went away. The deceasedwas covered with a blanket so as to extinguish fire and then was rushed tothe hospital.13.During cross-examination of these three witnesses, it wassuggested that the deceased was annoyed with her son as he was addicted to5 / 8 APEAL-63-19.odtalcohol and gambling. He had lost a sum of Rs.10,000/- in gambling. She,therefore, committed suicide. All these suggestions have been denied. Theappellant examined his mother in his defence to make out his such defence.There is, however nothing to infer the same.14.The fact remains that the appellant at about 02:00 a.m. on 19thMarch, 2017 set ablaze his wife after pouring kerosene on her person. Shesuffered 97% of burns. A Police Head Constable on duty at the hospitalrecorded her statement (F.I.R.-cum-D.D.) (Exh.24). Before recording thesame he verified from P.W.11 – Dr. Shinde, Medical Officer on duty thatthe patient was conscious oriented to make the statement. P.W.11 – Dr.Shinde, Medical Officer after examining her gave endorsement to that effecttwice, first before recording and then after recording her statement. Ondemise of Kamalbai, the F.I.R. became D.D. It has been recorded therein thatshe was sleeping by the side of her daughter-in-law, P.W.6 - Nirguna. Theappellant woke her up and took her to his room. He assaulted her and thenset her ablaze. On hearing her cries, P.W.3 - Tukaram rushed to the room.She was covered with a blanket and then she rushed to the hospital. TheD.D. (Exh.X-1) recorded by the Executive Magistrate bears endorsement ofP.W.11 – Dr. Shinde, Medical Officer certifying the declarant (deceased) to beconscious oriented to give statement. The deceased stated in her D.D. thatthe appellant came home drunk. There was quarrel between her and him.6 / 8 APEAL-63-19.odtThe appellant poured kerosene on her person and set her ablaze. Her sonand daughters-in-law extinguished fire and rushed her to the hospital.15.Both the D.Ds. are consistent with each other. The oral evidenceof son and daughters-in-law of the appellant is also consistent in materialparticulars. The evidence on record indicate the appellant was heavilyaddicted to alcohol. He was even admitted to rehabilitation/de-addictioncenter. It, however appears that the same had no effect. On the fateful night,the appellant came home drunk. He had a quarrel with his wife (deceased).He then set her ablaze after pouring kerosene on her person. It was 02:00a.m. The appellant was sixty-five years of age at the relevant time. Thedeceased was sixty.16.The question is whether it is an offence of murder or culpablehomicide not amounting to murder. Pouring kerosene and setting thedeceased ablaze may prima facie indicate it to be a case of intention to kill.There is, however other aspect of the matter. The appellant was admittedlyaddicted to alcohol. At the relevant time, he was under influence of alcohol.He might not have been in his senses. He had a quarrel with the deceased.He then set her ablaze. There is on record one discharge card (Exh.62) thatindicate the appellant was an indoor patient for three days. He suffered 15%of burns. Clothes on his person were burnt. His hand had suffered extensiveburns. Same leads us to infer the appellant to have attempted to extinguish7 / 8 APEAL-63-19.odtfire with a view to save his wife. Same suggests the appellant had notintended to kill his wife. The incident took place was preceded by a quarrel.In our view, therefore, it is not a case of offence of murder. The appellanthas, however to be attributed with knowledge that by such act, death wouldbe a consequence. It is, therefore, an offence punishable under Section 304Part II of the I.P.C. The appellant is behind the bars for about seven years.17.For all the aforesaid reasons, we are inclined to partly allow theappeal. Hence, the following order :-(I)Criminal appeal is partly allowed.(II)The order dated 29th December, 2018 passed byAdditional Sessions Judge, Majalgaon in Sessions Case No. 23 of2017 and thereby convicting the appellant for the offencepunishable under Section 302 of the Indian Penal Code is herebyset aside.(III)He is convicted for offence punishable under Section304 Part II of the Indian Penal Code, and therefore, sentenced tosuffer rigorous imprisonment for nine years and to pay fine ofRs.5,000/- (Rupees Five Thousand).(IV)The fine amount has already been paid by the appellantin trial Court.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD8 / 8