1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.395 OF 2002 Shyamrao Khandu Sonawane ..Appellant Adult, at present detained in Yeravada Central Prison Pune Samrat Ashok Nagar Pestam Sagar Nagewadi P.L.Lokhande Marg, Chembur - 89 V/s. The State of Maharashtra ..Respondent Mr.B.D.Joshi with Ms.Gauri Jadhav, advocate, for appellant Ms.S.D.Shinde, A.P.P, for the State CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 6TH JUNE, 2008 JUDGMENT (PER F.I.REBELLO, J.) . The accused herein was charged for the offence punishable under Sections 498A and 302 of the Indian Penal Code. It was the case of the prosecution that on 31st January, 1999 at about 5.00 P.M the accused threw a match stick on the deceased Lata, his wife 2 thereby setting her on fire which resulted in 80 to 85 percent burn injuries. Lata expired the next week. The learned Trial Court after considering the evidence which was led by the prosecution including the evidence of the two brothers of the deceased, one sister also the evidence of S.E.O (P.W.3) who recorded Dying Declaration of the deceased. Dying Declaration recorded by the I.O as also Oral Dying Declarations to the two brothers and sister was pleased to convict the accused of the offence punishable under Section 302 of the Indian Penal Code. Relying on the evidence of P.W.1 Pushpa Vinod Sai, who was sister as also of P.W.2 Ramesh Khandu Tuplondhe and P.W.4 Uttam Khandu Tuplondhe the brothers convicted the accused also for the offence punishable under Section 498A of the Indian Penal Code. The learned Trial Court was pleased to sentence the accused for the offence punishable under Section 302 of the Indian Penal Code to imprisonment for life and to pay fine of Rs.15,000/- in default to suffer R.I for one year and for the offence punishable under Section 498A of the Indian Penal Code sentenced the accused to suffer R.I for three years and to pay fine of Rs.5000/- in default to suffer further R.I for six months. 3 2. At the hearing of this appeal on behalf of the appellant the learned counsel submits that there was no evidence on record to sustain the conviction under Section 498A of the Indian Penal Code. In so far as the offence punishable under Section 302 of the Indian Penal Code is concerned, it is also submitted that the prosecution has been unable to prove the guilt of the accused beyond reasonable doubt, considering the evidence of the witnesses examined and as such, the appellant should be acquitted of both the charges. 3. On behalf of the respondent State the learned A.P.P has submitted that considering the Oral Dying Declaration made by the deceased to P.W.1, P.W.2 and P.W.4 as also Dying Declaration recorded by P.W.3 Ghanshyam Govind Khulbe as also the Dying Declaration recorded by the I.O it is clear that they are consistent that the accused set the deceased on fire and consequently, the learned Trial Court was right in convicting the accused of the offence punishable under Section 302 of the Indian Penal Code. It is also submitted that sufficient evidence has come through the depositions 4 of P.W.1, P.W.2 and P.W.4 of the offence of cruelty which the deceased had undergone at the hands of the accused and consequently, conviction under Section 498A is also justified. 4. We shall first examine whether the prosecution has been able to establish the case under Section 498A of the Indian Penal Code. In the evidence of P.W.1 Pushpa Vinod Sai, the sister it is on record that the deceased told her there were quarrels between her and husband and he used to come home in a drunken condition and quarrel with her. From the evidence of P.W.1, it is clear that the deceased and accused were married in the year 1982. The incident is of 31st January, 1999. Pushpa atleast does not depose to the accused assaulting or beating the deceased. All that she had deposed are to the quarrels that took place. When the marriage lasted over 16 years, there are bound to be such disputes. We have then the evidence of P.W.2 Ramesh Khandu Tuplondhe. In his evidence he has deposed that his sister used to complain about the accused assaulting her and after the assault she 5 used to come to his house with the children and after some time he used to advise her to go back. In the cross examination he admitted that when the deceased used to come to his house after the assault he never thought of lodging a complaint against the accused at the police station. The evidence of P.W.4 Uttam Khandu Tuplondhe, the elder brother, of the deceased is that after assault she used to come to stay with him for two days, four days or eight days and again used to go back to the house of the accused. 5. From the evidence of P.W.2 and P.W.4 it would be clear that one is staying at Chembur and the other Ambarnath, Mumbai. The case of both the brothers is that after the assault she used to come to their house. This assault as deposed is an improvement from the deposition of the sister Pushpa who was staying about 12 rooms away from the husband of the accused and the deceased and who would be the first person the deceased would have confident in. In our opinion, considering that no complaint was lodged by the deceased through out the 16 years of marriage with the police either by her and or by her brothers the case does not come within the 6 required predicates of Section 498A of the Indian Penal Code. In our opinion, therefore, there was no sufficient record for the learned Judge to convict the accused for the offence punishable under Section 498A of the Indian Penal Code. We, therefore, set aside the conviction under Section 498A of the Indian Penal Code. 6. In so far as the death of the deceased is concerned that it was homicidal is established by the evidence of P.W.5 Dr.Vasant Nayku Vanmore, who conducted the Post Mortem Report. In his evidence, he has given the cause of death as shock due to 91% burn. This evidence is further supported by the evidence of P.W.6 Dr.Pinky Thapar, senior Registrar attached to K.E.M.Hospital who has deposed in January, 1999 she was attached to Rajawadi Hospital as a senor Registrar. On 31st January, 1999 the deceased was admitted in the hospital at about 7.25 P.M and on checking she found the deceased conscious and had sustained 85% to 90% superficial to deep burn injury. 7. From the evidence of P.W.1 and oral Dying Declaration 7 given by the deceased it has come on record that on that date after the deceased served food to the appellant he started demanding more food which the deceased was unable to give. There was a quarrel and in that moment of anger the deceased poured Kerosene on herself. The accused, thereafter, threw a lighted match stick on her. This oral Dying Declaration is supported by the oral Dying Declaration made by the deceased to Ramesh Tuplondhe, her brother as also to Uttam Tuplondhe, the other brother. These oral Dying Declarations are supported by the Dying Declaration by P.W.3 Ghanshyam Govind Khulbe. In his evidence, he has deposed that on the night on 31st January, 1999 at 8.00 P.M he received telephone call from PSI Praful Nigade that a woman with burnt injury was admitted to the Rajawadi Hospital and her statement has to be recorded. He, therefore, went to Chembur Police Station and thereafter, they proceed to the hospital. He enquired of the Dr. who was present there whether the deceased was in a fit condition to give the statement. Dr. informed him the lady was conscious and he can record her statement. In his evidence he has stated that at that time he ws alone in that ward along with the lady. It has further come in 8 his evidence that the deceased told him that in anger she poured Kerosene on her body and the accused threw a lighted match stick from the match box on her saree which caught fire. In burnt condition she came out of the house and the shopkeeper in her neighbourhood poured water on her and put off the fire, on her body. This witness has deposed he took signature on the said statement. In the evidence of P.W.5 Dr.Vasant Nayku Vanmore it has come on record that the fingers and palms were burnt and it was difficult for her to sign. However, in the cross examination it has been confirmed that the signature was taken by the witness. The I.O P.W.11 Bhagwan Nivrutti Kamble who recorded Dying Declaration of the deceased also confirmed the incident. In the evidence of Pushpa she has deposed that she reached the spot of the incident immediately after the incident and she told the accused that he should take the deceased to the hospital. It has come on record that it was the accused who took the deceased to the hospital. 8. It is, thus, admitted that there was a quarrel between the accused and deceased about serving of food and at that time the 9 accused was drunk. This is not a case where the accused poured Kerosene on his deceased wife. The evidence of deceased herself in the Dying Declaration shows that in her anger she poured Kerosen on herself and at that point of time the accused threw a lighted match stick on her and that is how the Saree caught fire. It was sought to be contended on behalf of the accused by the learned counsel that in the Spot Panchanama no match sticks were found. He further submits that the prosecution is unable to establish that it was the accused who had set the deceased on fire. In our opinion, it will be possible to accept this contention as we accept the Dying Declaration coupled with the occular evidence. 9. However, from the evidence which we have perused in our opinion, this is not a case falling under Section 302 of the Indian Penal Code and at the highest this is a case falling under Section 304II of the Indian Penal Code. After considering the evidence on record, in our opinion, it is clear that there was no intention on the part of the accused to has cause the death of the deceased and that death occurred on account of the fact that the deceased had poured 10 Kerosene on herself and the accused in a moment of anger threw a lighted match stick. We, therefore, set aside the conviction of the accused under Section 302 of the Indian Penal Code. We, however, convict the accused for the offence punishable under Section 304II of the Indian Penal Code. 10. The incident is of 31st January, 1999. The accused is not present. He was arrested on the same date and continued to be in custody. In our opinion, as the accused has already suffered imprisonment of nine years and about three months sentence, we direct that the accused be released forthwith, if not required in any other case. 11. In the light of the above, we proceed to pass the following order. (i) The conviction and setence of the appellant/accused under Section 498-A of the Indian Penal Code is set aside. (ii) The conviction and sentence of the appellant/accused under Section 302 of the Indian Penal Code is also set aside. 11 (iii) The appellant/accused is, however, convicted for the offence punishable under Section 304-II of the Indian Penal Code and sentenced to suffer imprisonment for the period already undergone. (iv) If the appellant/accused is not required in any other incident he is directed to be released forthwith. (F.I.REBELLO, J.) (K.U.CHANDIWAL, J.)