Judgment:
Oral Judgment: [Smt. V.K. Tahilramani, J.]
1 This appeal is directed by the appellant-original accused against the judgment and order dated 20.10.2006 passed by the learned Ad-hoc Additional Sessions Judge-1, Niphad in Sessions Case No. 21 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 302, 307 and 498-A of IPC. For the offence under Section 302, the appellant was sentenced to R.I. for life and to pay a fine of Rs.300/- in default R.I. for three months. For the offence under section 307 of IPC, no separate sentence has been passed and for the offence under Section 498-A of IPC the appellant was sentenced to R.I. for three years and fine of Rs. 300/- in default R.I. for three months. The learned Sessions Judge directed that all the substantive sentences shall run concurrently.
2 The prosecution case briefly stated, is as under:
The appellant was married to Nababai (hereinafter referred to as the âdeceasedâ), about 14 years prior to the incident. They had four children. Appellant and the deceased were residing at Veetbhatti area of Pimpalgaon Baswant, Taluka Niphad, District Nashik. Since about 2 years prior to the incident, the appellant started suspecting the character of his wife Nababai and used to quarrel with her on this count. Appellant also used to abuse and assault her. On 2 to 3 occasions, the appellant had poured kerosene on Nababai and assaulted her. Nababai informed about this fact to her parents including P.W. 7 Shankar who was her father. On 28.8.2005, Nababai was feeling unwell, hence, she went to the hospital where she was given medicines. Nababai then came home and was lying on the bed. At about 1 p.m., her husband (appellant) came home and started abusing her. He then poured kerosene on her and set her on fire. Her brother in law and the appellant extinguished the fire. Nababai was taken to the hospital. In the hospital, the dying declaration of Nababai was recorded by P.W. 3 Police Constable Indrekar. The said dying declaration is at Exh. 14. This dying declaration was treated as F.I.R. which came to be registered under Sections 307 and 498-A of IPC. Thereafter investigation commenced. After dying declaration (Exh. 14) was recorded by P.W. 3 Police Constable Indrekar, P.W. 4 Special Executive Magistrate Shri. Kale recorded dying declaration (Exh.18) of Nababai. In both the dying declarations Nababai stated that her husband (appellant) poured kerosene on her and set her on fire. Nababai expired on 1.9.2005 i.e. four days after the incident. The dead body of Nababai was sent for post-mortem. P.W. 6 Dr. Aher conducted post-mortem on the dead body of Nababai. Dr. Aher found that Nababai sustained 46% burn injuries. The burn injuries were infected. According to him, the cause of death was due to 46% burn injuries. After death of Nababai, the offence under Section 302 of IPC was added. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3 Charge came to be framed against the appellant under sections 302, 307 and 498-A of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Ad-hoc Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.
4 The appellant has filed this appeal through jail. Smt. Sonia S. Miskin advocate came to be appointed from the legal aid panel to assist the Court. We have heard the learned counsel for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Additional Sessions Judge and the evidence on record, we are of the opinion that the learned Sessions Judge was right in coming to the conclusion that the appellant ill-treated Nababai and set her on fire, however, for the reasons stated below by us, the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge requires to be partly modified.
5 The conviction is mainly based on two dying declarations which were recorded by P.W.3 Police Constable Indrekar and P.W. 4 Special Executive Magistrate Shri. Kale. The dying declaration recorded by P.W. 3 Police Constable Indrekar is at Exh. 14 and the dying declaration recorded by S.E.M. Shri. Kale is at Exh. 18. P.W.3 Police Constable Indrekar has stated that he received information that one lady Nababai had received burn injuries, hence, he went to the Civil Hospital. He requested Medical Officer on duty to examine the patient Nababai to ascertain whether she was in a fit condition to give a statement. Accordingly, P.W.5 Dr. Jadhav who was on duty examined the patient and he gave endorsement that she was in a fit state to give her statement. Thereafter, P.W.3 Indrekar recorded the statement of Nababai as per her version. Nababai stated before him that her marriage took place with the appellant 14 to 15 years prior to the incident. Since last two years, her husband (appellant) was doubting her character. She had complained about this to her parents but did not lodge complaint. The appellant used to beat her under the influence of liquor. She stated that on the day of the incident, she was feeling unwell, hence, she went to the hospital. After taking treatment, she returned home and was sleeping. Her husband (appellant) came home at about 1 p.m. and told her that she was pretending to be sick. He then poured kerosene from nearby can on her and set her on fire. The dying declaration (Exh. 14) recorded by P.W.3 Police Constable Indrekar was treated as F.I.R. After P.W.3 Police Constable Indrekar recorded dying declaration (Exh. 14), P.W. 4 S.E.M. Shri. Kale recorded dying declaration of Nababai which is at Exh. 18. Similar facts as stated in Exh. 14 were stated by Nababai in her dying declaration Exh. 18 to S.E.M. Shri. Kale. In both the dying declarations, Nababai has stated about the ill-treatment and harassment given to her by her husband and on the day of the incident, the appellant poured kerosene on her and set her on fire.
6 In addition to two dying declarations Exh. 14 and Exh. 18, the prosecution has also relied upon the evidence of P.W. 7 Shankar who was father of Nababai. He has stated that marriage of his daughter Nababai with the appellant had taken place about 14 years ago. Nababai and the appellant had four children. Since two years prior to the incident, the appellant started doubting the chastity of Nababai. Due to this, there were frequent quarrels between the appellant and Nababai. On two occasions, the appellant poured kerosene on Nababai and he beat her. Nababai informed this fact to her father i.e. P.W. 7 Shankar. P.W. 7 Shankar has stated in his evidence that he received message that his daughter Nababai had received burn injuries and was admitted in civil hospital, hence, he went to hospital and met Nababai. On enquiry, Nababai told him that her husband (appellant) poured kerosene on her person and set her on fire. The facts stated by Nababai in her dying declarations and the evidence of P.W. 7 Shankar show that the appellant treated his wife Nababai with cruelty. The two dying declarations and the evidence of P.W. 7 Shankar also shows that the appellant poured kerosene on Nababai and set her on fire.
7 Smt. Miskin 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 IPC. She submitted that the appellant had no intention to cause death of Nababai. In support of this contention, she has placed reliance on the dying declaration (Exh. 18) recorded by P.W. 4 S.E.M. Shri. Kale. In the dying declaration (Exh. 18), Nababai has stated that her husband extinguished the fire by putting a quilt on her. Smt. Miskin submitted that the fact that the appellant immediately extinguished the fire by throwing quilt on Nababai, shows that he had no intention to kill his wife Nababai.
8 No doubt, the evidence on record shows that it was the appellant who set Nababai on fire. However, the pivotal question which arises in the facts and circumstances of this case, is that what is the nature of the offence proved against the appellant? It is an admitted fact that after setting Nababai on fire, the appellant immediately threw quilt on Nababai in order to extinguish the fire and 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 accelerated to such proportion that Nababai might die. If the appellant had ever intended Nababai to die, he would not have immediately thrown quilt on her person in an effort to save her life. It is also to be borne in mind that Nababai had sustained only 46% burn injuries and she died more than four days after the incident. In view of the evidence on record, we are of the opinion that the intention of the appellant was to inflict burns and not to kill Nababai but unfortunately, the situation slipped out of his control and it went to the fatal incident. The conduct of the appellant immediately after the incident shows that he had no intention to cause death of his wife Nababai, hence, the case would fall under Section 304-II of IPC. We stand fortified in taking this view by observations of the Supreme Court in the case of KaluRam Vs. State of Rajasthan reported in (2000) 10 S.C.C. 324. In the said case also, similar facts 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. As far as Section 498-A of IPC is concerned, we have already observed that the evidence on record shows that the appellant treated his wife Nababai with cruelty.
9 However, it is noticed that the appellant has also been convicted under Section 307 of IPC for attempting to cause murder of his wife Nababai and he has also been convicted under Section 302 for causing murder of his wife Nababai. In view of the fact that the appellant has been convicted under Section 302 of IPC for causing the death of Nababai, the conviction under Section 307 of IPC for attempting to murder Nababai, in our opinion, is erroneous. The appellant cannot be convicted for attempt to commit murder of Nababai as well as murder of Nababai. Once Nababai expired due to burn injuries, the offence under Section 307 of IPC would be converted to Section 302 of IPC and the accused can be charged and convicted only for the offence under Section 302 of IPC and he cannot be charged or convicted under Section 307 of IPC. Thus, the conviction of the appellant under Section 307 of IPC has to be set aside.
10 In view of the above facts, the conviction of the appellant under Section 307 of IPC is set aside. However, the conviction and sentence of the appellant under Section 498-A of IPC is maintained. As far as the conviction of the appellant under Section 302 of IPC is concerned, we alter the conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. For the offence under Section 304-II of IPC, in our opinion, sentence of R.I. for eight years with fine of Rs. 2000/- (Rs. Two thousand only) in default R.I. for one month would meet the ends of justice. Accordingly, the appellant is convicted under Section 304-II of IPC and is sentenced to eight years R.I. and fine of Rs. 2000/- in default R.I. for one month. The substantive sentences of the appellant under Section 304-II and under Section 498-A of IPC shall run concurrently. The conviction and sentence of the appellant imposed by the learned Ad-hoc Additional Sessions Judge-1, Niphad in Sessions Case No. 21 of 2006 by judgment and order dated 20.10.2006, stands modified accordingly.
11 Office to communicate this order to the Superintendent of Prison where the appellant is lodged.
12 Appeal is partly allowed to the extent indicated above.
13 At this stage, we must record our appreciation for Smt. Miskin appointed from the High Court Legal Services Committee Bombay to represent the appellant. We find that she had meticulously prepared the matter and she has very ably argued the matter. We quantify legal fees to be paid to her by the High Court Legal Services Committee at Rs. 2500/-.
The said fees be paid to advocate Smt. Miskin within three months from today.