-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1103 OF 2007 Bhausaheb Shivram Wagh ¦ .. Appellant. Age 34 yrs. R/o. Gole Condegaon, ¦ (Org.Accused) A/p. Kasbe Sukene, Tal. Niphad, ¦ Dist. Nashik. ¦ (at present in Jail) ¦ V/s. The State of Maharashtra ¦ .. Respondent. Through Pimpalgaon Baswant Police ¦ Station, Tal. Niphad, Dist.Nashik ¦ --- Through Jail : Mr.Rajan M. Salvi, appointed as Legal Aid, for the Appellant. Mr.Y.M. Nakhawa, APP for the Respondent- State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 25TH MARCH, 2009 DATED : 25TH MARCH, 2009 DATED : 25TH MARCH, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. The appellant was convicted for the offence punishable under section 307, 341 and 506 of the IPC and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 500/-, in default to suffer R.I. for six months, to suffer S.I. for one monthm’ to suffer R.I. for three years respectively. The appellant is, however, acquitted of the offence punishable under section section 504 of the IPC. -: 2 :- 2. The prosecution story in brief is as under : i. PW-1 Mangla is the wife of the appellant. They were residing at Niphad Karkhana in the house of PW-2 Suresh Karbhari More. The appellant -accused was addicted to drinking liquor. He had already lost his service. He always used to quarrel with PW-1-Mangla and beat her under the influence of liquor. PW-1, therefore, called her in laws to her house to complain about the appellant’s addiction to liquor. The in-laws of PW-1 had come to her house on 30.05.2006. They brought food grains and clothes and 31.05.2006 they left Mangla’s house. On 1st of June, 2006 PW-1 requested the appellant to grind wheat grains of 2 kgs. The accused went for grinding the wheat grains; however, returned at 10.00 a.m. in drunken condition without grinding the wheat grains. On asking he replied that he sold the wheat grains and consumed liquor from the price received. Two liquor bottles were found in his pocket. Quarrel took place between PW-1 and the appellant-accused. The appellant threatened PW-1 to kill. The appellant thereafter took out kerosene lamp and threw on the person of PW-1 Mangla. He ignited matchstick and threw on her person. The appellant thereafter closed the door to -: 3 :- see that PW-1 Mangla should not get out of the house. PW-2 Suresh and his wife after hearing shouts of PW-1 gave kick blows to the door and succeeded in opening the door and thereafter PW-1 Mangla was got out of the house. The neighbouring people extinguished the fire. PW-1 was taken to the private dispensary and thereafter to the Rural Hospital at Niphad and then shifted to Civil Hospital, Nashik. During the course of treatment a complaint came to be lodged on the basis of which C.R. No. 179 of 2006 was registered under sections 307, 341, 504 and 506. PW-6 Bhaskar Bhusare carried out the investigation. He recorded the statements of the witnesses and after completing investigation filed charge-sheet in the court of J.M.F.C. Pimpalgaon Baswant. Since the offence under section 307 was triable by the court of sessions, the case was committed to the Sessions Court at Niphad. 3. The charge was framed against the accused under sections 307, 341 and 504, 507 of IPC. The same was explained to the appellant in vernacular to which he pleaded not guilty and claimed to be tried. The defence of the appellant accused was of total denial and false implication. 4. In order to establish the guilt of the appellant, -: 4 :- the prosecution examined six witnesses, namely, PW- Mangala Bhausaheb Wagh; PW-2 Suresh Karbhari More, who is the landlord of the room; PW-3 Bhausaheb Banshi Borade, to whom the appellant sold wheat; PW-4 Madhav Laxman Zinzurde, the brother of PW-1; PW-5 Dr. Siddarth Barjuji Shelke and PW-6 Bhaskar Gabaji Bhusare, who was the Investigating Officer. The prosecution also relied upon the documentary evidence like panchanama of scene at Exh. 11, medical certificate at Exh. 18. 5. The learned Adhoc Additional Sessions Judge-1, Niphad after appreciating the evidence led by the prosecution and after hearing the learned counsel for the respective parties convicted the appellant for the offence punishable under sections 307, 341 and 507 of the IPC and sentenced him as stated above. 6. Mr. Salvi, the learned appointed Advocate for the appellant submitted that admittedly at the time of incident, the accused was in drunken state asmuch as two liquor bottles were also found in his possession and therefore, intention on the part of the appellant accused to commit murder of PW-1 cannot be attributed. He also submitted that taking into consideration aforesaid fact, the sentence awarded to the appellant deserves to be reduced to the sentence already undergone as he is in -: 5 :- custody since last three years. 7. Mr. Nakhawa, the learned APP per contra supported the impugned judgment and order. He submitted that there is enough evidence on record to prove the appellant’s complicity in the offence. The learned Sessions Judge rightly appreciated the evidence on record and convicted the appellant. He also submitted that the circumstances on record do show that the appellant had intended to commit murder of his wife and therefore, the provisions of section 307 are clearly attracted. He also submitted that looking to the nature of offence, the appellant is not entitled for any leniency. 8. Having heard the learned counsel for the respective parties and having gone through the evidence led by the prosecution, I am of the considered view that the appeal is devoid of any merit and as such no interference at the hands of this court in the impugned order is required. 9. PW-1 Mangala deposed at Exh. 9. She testified about the drinking habits of her husband and that she called her in laws in matrimonial house to complain about appellant’s drinking habits. She stated that she complained about the conduct of the appellant to her in-laws and they accordingly came on 30th of May, 2006 to the matrimonial -: 6 :- house. They brought food grains like wheat grains and rice. Her in-laws left the house on 31st May, 2006. On 1st of June, 2006 she gave 2 kgs of wheat grains to her husband, the appellant, for grinding. However, the appellant sold those 2 kgs wheat grains to PW-3 Babasaheb Borade and obtained Rs. 24/- and had consumed drinks. When the appellant accused returned to the house, the PW-1 saw two more bottles of liquor in appellant’s pocket and therefore, quarrel took place between the appellant and PW-1 Mangla. The appellant thereafter lifted the kerosene lamp and threw on the person of PW-1 Mangla and set her on fire with the help of matchsticks. Before that the appellant threatened PW-1 Mangla to kill. PW-1 was wearing polyester sari which caught immediate fire. The accused closed door from inside. She further testified that PW-2 Suresh, after hearing commotions came alongwith his wife and opened the door by blow of kicks. Thereafter, the other neighbours also gathered in the house and they extinguished the fire. The PW-1 Mangla was taken to the private hospital and thereafter to the Rural Hospital at Naphad. Thereafter she was again shifted to the Civil Hospital, Nasik. 10. Evidence of PW-1 is cogent,consistent, reliable and trustworthy. There is no reason for PW-1 to implicate the appellant falsely in the alleged offence. PW-1 was cross -: 7 :- examined at length. However, nothing could be brought on record so as to shatter her evidence given in the examination-in-chief. 11. The evidence of PW-1 is corroborated, by the PW-2 Suresh, who in terms deposed that on the date of incident the appellant had gone to grind food grains and returned home under the influence of liquor and therefore, quarrel took place between the appellant and his wife Mangla. Door of the house was closed from inside. PW-2 and his wife on hearing shouts of PW-1 reached the house of the appellant and opened the door by giving kick blows. On opening the door, he however, noticed that sari of PW-1 had caught fire. The people gathered there extinguished fire of PW-1. He testified that PW-1 sustained burn injuries and thereafter she was taken to the private hospital. PW-2 specifically deposed that the appellant and the PW-1 was present in the house when the door was broke open. 12. PW-3 Babasaheb B. Borade deposed that on the date of incident the appellant had come to him and requested for Rs.30. PW-3 however paid cash of Rs.24/- to the appellant accused and the appellant gave him 2 kgs. wheat grains. This evidence of PW-3 is also corroborated with the evidence of PW-1 that on the fateful day the PW-1 had -: 8 :- requested the appellant to grind wheat grains and she gave 2 kgs. wheat to the appellant for grinding. PW-5 Dr. Siddarth B. Shelke was at Rural Health Hospital, Niphad. He deposed that he examined the patient Mangla on 1.6.2002 and she was found to sustained burn injuries to the extent of 16%. She was admitted in the hospital. During the admission, the police recorded her statement. PW-5 specifically stated that the injury sustained by PW-1 were sufficient in ordinary course of nature to cause death if she was not been treated in time. 13. Thus evidence of PW-1 which is corroborated by PW-2 and PW-3 and PW-5 is sufficient to the prove beyond reasonable doubt that on the date of incident the appellant threw kerosene lamp on the person of PW-1 and set her on fire with the help of matchsticks. 14. Now let us consider the submission of Mr. Salvi, the learned counsel appearing for the appellant accused. Firstly, he submitted that the accused had no intention to commit murder of PW-1 as he was under influence of the liquor and therefore, case under section 307 is not made out. This submission in my view is without any merit. The evidence on record show that the accused had drunk on the date of the incident. However, that itself cannot be a circumstance to prove that the appellant had no -: 9 :- intention to kill his wife PW-1. The evidence on record disclosed that the appellant threw kerosene lamp on the person of PW-1 and set her on fire with the help of matchsticks and thereafter, sari of PW-1 caught fire. PW-1’ evidence further disclosed that the appellant had threatened to kill her and after PW-1 was set on fire, the appellant accused bolted the door from inside. This conduct of the appellant unequivocally goes to show that he had the intention to kill PW-1, his wife. Had the incident occurred in a heat of passion, the appellant would have tried to extinguished the fire and saved his wife PW-1 Mangla. However, there is nothing on record to show any attempt by the appellant accused to save life of his wife. In any case, the appellant had a knowledge that in all probability his action of setting the PW-1 on fire will cause her death. In these circumstances, I find that the appellant is rightly convicted under section 307 of the IPC by the trial court. 15. The next submission of Mr. Salvi about reduction of the sentence has also no merit. The appellant not only attempted to kill and commit murder of PW-1 but also saw that nobody will intervene and save the life of PW-1. The appellant did not try to extinguish fire on the PW-1 and not allowed anybody to extinguish the fire by closing the door of the house from inside. Fortunately, PW-2 and his -: 10 :- wife broke open the door and extinguished the fire on PW-1 Mangala. This conduct of the appellant, in my opinion, dis-entitles him from claiming any leniency. The maximum punishment under section 307 is life imprisonment and already leniency is shown by the trial court by awarding him seven years imprisonment only. 16. Sofar as the charge under sections 341 and 506 of IPC is concerned, the evidence of PW-1 disclose that the appellant had threatened to kill her. Her evidence further shows that she was confined in the house and that she was set on fire. The confinement of PW-1 by the appellant by bolting the door from inside do show the intention of the appellant of committing murder of her wife. Therefore, charges under the said sections are also proved. 17. The learned Additional Sessions Judge has approached the matter from correct point of view and rightly held that the guilt of the accused is proved beyond reasonable doubt. Therefore no interference is required in the present appeal. 18. In the result the appeal is dismissed accordingly. ( R.V. MORE,J.)