apeal 257-05.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 257 OF 2005 Krishna Manik Kamble, ] Convict No. C/14012, ] Presently lodged at Yerwada Central Prison ] Pune. ] Appellant Vs The State of Maharashtra ] Respondent Mr. D.G. Khamkar for the Appellant Ms. M.H. Mhatre, A.P.P. For the State CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 19th NOVEMBER, 2010. PRONOUCNED ON : 9th DECEMBER, 2010 JUDGMENT [ PER SMT. V.K. TAHILRAMANI,J ] 1. Through this appeal, the appellant-original accused has impugned the judgment and order dated 30.07.2004 passed by the learned 8th Additional Sessions Judge, Pune in Sessions Case No. 223 of 2003. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life and to pay fine of Rs. 1000/-, in default RI for one month. 1 apeal 257-05.doc 2. The prosecution case briefly stated is as under: The accused was residing with his wife Champabai (deceased) and children at Thergaon, District Pune. On the date of the incident i.e on 02.12.2002, the accused took Rs. 10/- from his wife and went to consume liquor. After sometime, he returned home and again demanded money from Champabai for drinking liquor. Champabai protested and quarrel took place between the accused and the deceased on that count. In a fit of anger, the accused poured kerosene from a stove on Champabai and set her on fire by means of a match stick. Champabai started shouting. The accused tried to extinguish the fire. Meanwhile, elder son of the accused DW 1 Somnath rushed to the house of brother of the deceased and called him. The brother of the deceased rushed to the spot along with his wife. They shifted Champabai to hospital. Champabai was admitted in burn ward of Sasoon General Hospital. PW 1 Dr. Panse examined her. She told the doctor that when she tried to stop her husband from drinking alcohol, he poured kerosene on her and set her on fire. PW 3 Police Head Constable Shashikant Mhaske-Patil attached to the Sasoon Hospital Police chowky learnt that Champabai had sustained accidental burn injuries, hence, he rushed to the ward. He contacted the Medical Officer PW 1 Dr. Panse. Dr. Panse informed him that the patient was in a fit condition to give her statement, hence, he recorded the dying 2 apeal 257-05.doc declaration (Exh. 10) of Champabai in presence of PW 1 Dr. Panse. On the basis of that dying declaration, C.R. No. 164 of 2002 came to be registered under Section 307 of IPC at Paud Police Station. The deceased expired on 04.12.2002, hence the offence was converted into Section 302 of IPC. The body was sent for postmortem. According to the postmortem notes, Champabai had sustained 62% burn injuries and the cause of death was shock due to burns. After completion of investigation, charge sheet came to be filed and the case was committed to the Court of Sessions. 3. Charge came to be framed against the accused under Section 302 of IPC. The accused pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. His further defence is that the father of the deceased tried to extract money from him, as he refused to pay, the father of the deceased falsely implicated him in this case. The learned Sessions Judge considered the defence of the accused and the evidence adduced by the prosecution and convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant and learned APP for the State. We have perused the evidence as well as the judgment and order passed by the learned 3 apeal 257-05.doc Sessions Judge. After giving our anxious consideration to the matter, for the reasons stated herein below, we are of the opinion that the learned Sessions Judge has rightly come to the conclusion that it was the accused who set his wife on fire and cause her death. 5. The prosecution case is mainly founded upon the dying declaration (Exh 10) recorded by PW 3 Police Head Constable Shashikant Mhaske-Patil. PW 3 Shashikant has stated that at the relevant time, he was attached to Sasoon Hospital Police Chowky. He received oral report from OPD that one Champabai had sustained burn injuries and she was admitted to Ward No. 25, hence, he contacted medical officer on duty. The medical officer examined Champabai and found that she was conscious and well oriented, hence, PW 3 Mhaske-Patil recorded dying declaration (Exh 10) in the present of medical officer PW 1 Dr. Panse. He obtained the left hand thumb impression of the deceased on the dying declaration. He also obtained endorsement and signature of Dr. Panse on the said dying declaration. He immediately sent the Dying Declaration to Haveli Police Station. On the basis of the dying declaration (Exh 10), the offence came to be registered vide C.R. No. 164 of 2002. In the said dying declaration, Champabai has stated that on 02.12.2002 at 06.00 a.m., her husband left the house after taking Rs. 10/- from her to consume liquor. 4 apeal 257-05.doc After sometime, he returned home and informed her that he was going out to drink liquor. Champabai stopped him and told him not to drink any more liquor whereupon her husband poured kerosene from a stove on her and set her on fire with a match stick. Her son Somnath who was outside the house went and brought her brother. In the meanwhile, the accused extinguished the fire. Brother and sister-in-law of Champabai then admitted Champabai in the hospital. We find that nothing has been elicited in the cross-examination of this witness so as to disbelieve his testimony. Hence, we have no hesitation in accepting his testimony. 6. PW 1 Dr. Panse has stated that on 02.12.2002, he was on duty in Sasoon hospital. At about 9.16 a.m., Champabai was admitted to Ward No. 25 on account of burn injuries. He examined her and found that she was fully conscious and well oriented. She had sustained superficial to deep burns all over her body. Champabai told him that her husband was drinking alcohol, when she tried to stop him, he poured kerosene on her and set her on fire. This history furnished by Champabai was noted down by Dr. Panse in the case paper (Exh. 12). Dr. Panse has stated that the Police personnel came to record dying declaration of the deceased on the very same day at about 1.30 p.m. The said dying declaration (Exh 10) was recorded in his presence. Before recording the dying 5 apeal 257-05.doc declaration, he examined Champabai and found that she was fully conscious and oriented. After recording the dying declaration, he again examined her and found that she is fully conscious and well oriented. Accordingly, he made endorsement on the dying declaration. Thus, we find that the evidence of Dr. Panse fully corroborates the evidence of PW 3 Police Head Constable Shashikant Patil. 7. PW 1 Dr. Panse was attached to Sasoon Hospital. He attended to Champabai on 02.12.2007 and treated her. Dr. Panse is an independent witness, he had no interest against the deceased or any animus against the accused. Champabai had sustained 62% burns. Champabai personally gave history to him that her husband had set her on fire. The papers containing the history and treatment papers are at Exh. 12. Doctor Panse has stated that he gave his endorsement on the dying declaration that at the time of recording dying declaration, the patient was conscious and she was in a fit condition to give her statement. He has identified this endorsement given by him on the dying declaration. Not only there is evidence of Dr. Panse which shows that Champabai was conscious and in a fit condition to giver her statement, the evidence of Doctor also shows that Champabai had informed him that her husband had set her on fire which has been noted by the Doctor as history 6 apeal 257-05.doc in the medical papers. As stated earlier by us, Doctor Panse is an independent witness. He has deposed about the oral dying declaration made to him by Champabai. We see no reason to disbelieve the testimony of Dr. Panse. This witness as well as PW 3 Shashikant have not been shaken in their cross-examination. Hence, we have no hesitation in relying on the testimony of these two witnesses. The evidence of PW 3 Police Head Constable Shashikant and PW 1 Dr. Panse clearly brings out the complicity of the appellant in the crime. Their evidence clearly brings out the fact that it was the appellant who poured kerosene on his wife Champabai and set her on fire. We find no good reason to discard the dying declaration (Exh. 10) given by the deceased regarding the actual occurrence and the oral dying declaration to Dr. Panse which is noted in the case paper (Exh. 12). 8. Mr. Khamkar contended that when Champabai was admitted to the hospital, she was unconscious and hence, there was no question of recording her dying declaration. To support this contention, he has placed reliance on the evidence of PW 2 Parvatibai who is the mother of Champabai. Mr. Khamkar pointed out that Parvatibai stated that on 02.12.2002, her daughter was admitted to Sasoon hospital. Her grandson Somnath gave her information that Champabai was admitted to 7 apeal 257-05.doc the hospital on account of burn injuries, hence she went to Sasoon hospital to see Champabai. Mr Khamkar pointed out that Parvatibai had stated that there was no talk between her and Champabai because Champabai was unconscious. Mr. Khamkar vehemently submitted that Champabai was admitted to the hospital in an unconscious state, hence dying declaration (Exh 10) is a concocted document and no reliance can be placed on the same. 9. As far as the above aspect is concerned, it is not known at what time, Parvatibai went to Sasoon hospital to see Champabai. From her evidence, it is not even clear whether she went to see Champabai on 02.12.2002 itself or on some other date. Even assuming that she went to the hospital on 02.12.2002, it is not know at what time she went there. Hence, it is very much possible that Parvatibai reached the hospital much later by which time, Champabai may have become unconscious. It is also to be noted that Parvatibai has turned hostile. One very important factor has emerged from the cross-examination of Parvati. In cross-examination, Parvatibai has admitted that before her arrival at the hospital, the statement of Champabai was recorded. Thus, this shows that the dying declaration (Exh 10) was recorded earlier and thereafter, Parvatibai has reached the hospital by which time, probably Champabai had become unconscious. 8 apeal 257-05.doc Thus, we find that the defence cannot make any capital out of the stray statement of PW 2 Parvatibai, who has stated that there was no talk between her and Champabai at the hospital because Champa was unconscious. 10. There is one other factor which goes against the accused i.e his conduct. It is seen that the accused, soon after the incident, absconded and he came to be arrested only on 05.12.2002. He did not even bother to take his wife Champabai to hospital and it was the brother of Champabai and her sister-in-law who admitted Champabai in the hospital. In normal circumstances, any husband would take his wife to the hospital and remain in the hospital to see that his wife gets proper medical aid. The fact that the accused ran away clearly points out to his guilt. 11. PW 4 Vasant Khalase is the panch witness relating to the scene of offence. He has stated that the house of the accused comprises of one room. Police drew panchanama of the scene of offence in his presence. They saw a stove, a burnt saree, a partly burnt muffler, towel and a match box. The partly burnt saree, muffler and the towel were smelling of kerosene. These articles were attached under panchanama (Exh 20). Thus the finding of articles smelling of kerosene at the spot is also an additional circumstance in favour of 9 apeal 257-05.doc the prosecution. All these articles were sent to the C.A. The C.A. report (Exh 15) shows that the partly burnt piece of saree, muffler and the towel tested positive for kerosene residue. Had it been a case of accidental burns, the articles found at the spot would not be smelling of kerosene or have residues of kerosene. This further corroborates the prosecution case. 12. Another circumstance which goes against the accused is that the accused came to be arrested on 05.12.2002. Clothes on his person came to be seized under panchanama (Exh 23). These clothes were also sent to C.A. and they tested positive for kerosene residue. 13. The appellant has examined his minor son Somnath in his defence as DW 1. Somnath has stated that at the relevant time, his father had gone to work as a labourer. He heard some noise, hence he rushed inside the house and saw his mother was engulfed by fire. He rushed to call his maternal uncle Devidas. He and Devidas then extinguished the fire and they took Champabai to the hospital. He has stated that Champabai was not able to speak on account of burn injuries on her face. 14. Somnath being the son of the accused is a highly 10 apeal 257-05.doc interested witness. Somnath is a minor child i.e he is a child witness. The well settled legal position is that the evidence of a child witness has to be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what other tell him and a child witness can be an easy pray to tutoring. Somnath being the son of the accused, would not want his father to go to jail and hence, it would be very easy to tutor him. Looking to the evidence on record, we find that the evidence of DW 1 Somnath who is the son of the accused cannot be believed. 15. Mr. Khamkar submitted that the act of the appellant would not fall under Section 302 of IPC but it would at the most fall under Section 304-II of the IPC. He submitted that the appellant had no intention to cause death of Champabai. In support of his contention, he has placed reliance on the dying declaration Exh. 10 recorded by PW 3 Shashikant. In dying declaration Exh. 10 Champabai has stated that her husband tried to extinguish the fire. Mr. Khamkar further submitted that the incident had occurred during the course of a sudden quarrel and the fact that the appellant immediately threw water on the body of Champabai shows that he had no intention to kill his wife Champabai. 16. No doubt, the evidence on record shows that it was the 11 apeal 257-05.doc appellant who set Champabai on fire. However, the question arises that in the facts and circumstances of this case, what is the nature of the offence proved against the appellant? It is an admitted case that the appellant had a quarrel with his wife Champabai. Thereafter, he set her on fire. However, immediately after Champabai caught fire, he frantically poured water on her to save her. This conduct cannot be seen divorced from the totality of the circumstances. Very probably the appellant would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die, he would not have immediately thrown water on her in an effort to rescue her. In view of the evidence on record, we are inclined to think that all that the accused thought of was to inflict burns and not kill her but unfortunately the situation slipped out of his control and it went to a fatal extent. We stand fortified in taking this view by the observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan reported in (2000) 10 SCC 324 on which Mr. Khamkar has placed reliance. In the said case also similar fats arose and the Supreme Court held that the case would not be covered by Section 302 of IPC but it would be covered by Section 304-II of IPC. 17. In view of the above facts and circumstances, we alter 12 apeal 257-05.doc the conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. Both sides conceded that the appellant has been in jail since 05.12.2002 i.e for a period of almost eight years. In our opinion, sentence of imprisonment of 10 years meet the ends of justice. The conviction and sentence imposed by the learned Additional Sessions Judge, Pune by judgment and order dated 30.07.2004 passed in Sessions Case No. 223 of 2003, is accordingly modified. 18. The appeal is allowed to the aforesaid extent. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA, J ] 13 apeal 257-05.doc 14