WWW.LIVELAW.IN cria229.13 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.229 OF 2013 Rani alias Anjali w/o Vaijinath Shinde, Age30 years, Occu:Household, R/oMunsi Plot Omerga, TqOmerga, DistOsmanabad ...APPELLANT VERSUS The State of Maharashtra ...RESPONDENT ... Mrs.Vinaya C. Dharurkar Advocate for Appellant. Mr. P.G. Borade, A.P.P. for Respondent. ... CORAM: S.S. SHINDE AND K.K. SONAWANE, JJ. DATE OF RESERVING JUDGMENT : 11TH JANUARY, 2017 DATE OF PRONOUNCING JUDGMENT: 17TH FEBRUARY, 2017
JUDGMENT [PER S.S. SHINDE, J.]:
1.
By way of present Appeal, the Appellant
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 2
has challenged the Judgment and order dated 3rd April 2013 passed by the learned Additional Sessions Judge, Omerga, in Sessions Case No.16 of 2012 thereby convicting the Appellant accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing her to suffer life imprisonment and to pay fine of Rs.2000/, in default of payment of fine, to suffer simple imprisonment for one month.
2.
The case of prosecution, in brief, is as
follows:
(A).
The accused Rani was married to deceased
Vaijinath s/o Subhash Shinde, R/o Munshi Plot, Omerga, TqOmerga, DistOsmanabad. Out of the said wedlock, couple was blessed with a son namely Sumit and a daughter namely Sayali. It is the prosecution case that Vaijinath used to drive auto rickshaw, but unfortunately in the accident his right leg was fractured, and therefore he was not
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 3
able to do any work. Sachin is one of the brothers of deceased Vaijinath. Earlier Subhash along with his wife Laxmibai, deceased Vaijinath, Sachin and his wife, and Amol were residing together in the same house. But as the accused Rani had made complaint against them with Mahila Takrar Nivaran Kendra, Omerga, the accused along with her husband was residing in two rooms separately in the same house. It is further case of the prosecution that, the accused used to pick up quarrel with her husband as well as inlaws despite she was residing separately with her husband. She continued to pick up the quarrels with her husband, therefore, her inlaws were not giving much attention towards their quarrel.
(B).
It is the case of prosecution that, on
31st March 2011, there was quarrel between the accused Rani and deceased Vaijinath on account of the accused going to Latur without informing Vaijinath. In the night of 31st March 2011, the
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 4
accused and her husband Vaijinath after dinner slept in their room. Sachin and his wife were sleeping on the terrace of their house. Subhash, his wife Laxmibai, Amol, another brother of Vaijinath, and both children of Vaijinath were sleeping in the house. It is the case of the prosecution that in the night at about 3.00 to 3.30 a.m., the accused Rani poured kerosene on the person of Vaijinath and set him ablaze. Vaijinath sustained burn injuries and therefore he raised shouts. On hearing his shouts, his father Subhash got up and came out of the house and he saw that the smoke was coming out from the window of the room of Vaijinath. On hearing call of Vaijinath, his brother Sachin also came down from terrace. Then Subhash and Sachin went to the room of Vaijinath. They opened the door and saw that Vaijinath was burning. Therefore, Sachin put towel on the person of Vaijinath. By that time Amol also came there, who brought quilt and put the same on the person of Vaijinath to extinguish the fire. At
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 5
that time Vaijinath was saying that Rani has set him on fire by pouring kerosene on his person. Thereafter Subhash came at the gate of their house to see where is the accused. At that time, Subhash saw that accused was standing outside the gate and she ran away from the spot. Thereafter they immediately shifted Vaijinath by auto rickshaw to the hospital of Diggikar. But as the doctor was not available in the said hospital, they immediately took Vaijinath to Civil Hospital, Omerga. Doctor on duty in Civil Hospital, Omerga had made Medico Legal Case (M.L.C.) report to police station, Omerga. Police Head Constable Mahabole of Omerga Police Station immediately rushed to the Civil Hospital, Omerga and recorded statement of injured Vaijinath Subhash Shinde. After giving preliminary treatment to Vaijinath at Civil Hospital, Omerga, he was immediately shifted to Civil Hospital, Solapur. As soon as injured Vaijinath was taken to Civil Hospital, Solapur, Medical Officer on duty informed to P.S.O. in
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 6
Civil Hospital Police Chowki, Solapur. On receiving such information, Police Head Constable Ghadge from the Police Chowki, immediately went to the patient Vaijinath Shinde, and recorded statement of Vaijinath Shinde in presence of doctor. Thereafter Police Head Constable Ghadge gave requisition letter to Executive Magistrate for recording dying declaration of Vaijinath. Accordingly Executive Magistrate Sow. Vijaya Solapurkar came to the hospital and recorded dying declaration of Vaijinath Shinde, in presence of doctor.
(C).
On the basis of statement of Vaijinath
Shinde recorded by Police Head Constable Mahabole in Civl Hospital, Omerga, an offence punishable under Section 307 of the Indian Penal Code came to be registered against the accused Rani and A.P.I. Udate then attached to Police Station, Omerga had conducted
further
investigation.
During
investigation he visited the spot of incident
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 7
along with Panchas. At that time one quilt and pillow, T.V. and inverter in half burnt condition, one blue colour underwear in burnt condition, one piece of white colour shirt which was smelling of kerosene and ash of burnt clothes were seen on the spot of incident. All said articles were smelling of kerosene. One five liter empty Can smelling of kerosene was also found on the spot. A.P.I. Udate has seized all said articles in presence of Panchas, under Panchanama Exhibit 31. Then he recorded statements of the witnesses, arrested the accused with the help of Lady Police Constable Adatrao. Saree on the person of the accused was smelling of kerosene and therefore he got changed the said saree with the help of Lady Police Constable Adatrao and seized the said Saree, under Panchanama Exhibit 32.
(D)
On 3rd April 2011, A.P.I. Udate received
statement of injured referred by Police Head Constable of Civil Hospital Police Chowki, Solapur
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 8
and another statement recorded by Executive Magistrate, Inquest Panchnama and provisional certificate of cause of death and then he added Section 302 of the Indian Penal Code. He again recorded statements of some witnesses, sent the seized articles to Chemical Analyzer, Aurangabad vide requisition letter Exhibit 38. Viscera was also sent to Chemical Analyzer, Aurangabad and after completion of due investigation, A.P.I. Udate has filed chargesheet against the accused Rani for the offence punishable under Section 302 of the Indian Penal Code.
3.
The learned Sessions Court framed the
charge against the accused under Section 302 of the I.P. Code below Exhibit 5. The contents of charge were read over and explained to the accused in vernacular, to which she pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial.
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 9
4.
The Additional Sessions Judge, Omerga
recorded statement of the accused under Section 313 of the Code of Criminal Procedure. She has denied entire evidence of prosecution witnesses and stated that the deceased Vaijinath might have committed suicide out of frustration or his family members might have committed his murder and she has been falsely implicated in the case. The prosecution examined as many as eleven witnesses. The accused has neither examined herself on oath nor examined any witness in her defence.
5.
The trial Court considered the oral and
documentary evidence and discarded the defence of the accused and holding the accused guilty, convicted the Appellant accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer life imprisonment and to pay fine as afore stated.
6.
Learned counsel appearing for the
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 10
Appellant submitted that, there is delay of five hours in lodging the F.I.R. The prosecution has not explained the delay caused in filing the F.I.R. Sachin, brother of deceased Vaijinath was all along with the deceased and therefore possibility of tutoring Vaijinath cannot be ruled out. Since Vaijinath sustained 95% burn injuries, he was not physically fit to make any statement. The Dying declarations are not proved as per law. Sachin and Amol, brother of Vaijinath are not examined by the prosecution. The lady constable who seized the clothes from the person of the accused, is also not examined. C.A. reports of the hair and skin of Vaijinath and C.A. report of the articles seized from the spot, are not filed on record. It appears from the deposition of Panch witness and PW10 Subhash Shinde that there is difference between the actual spot of incident and the panchnama drawn by the police. Postmortem report is not reliable as the fracture in the leg of Vaijinath is not reflected. No Cement water
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 11
tank appears in the photographs. Plastic Can appears to be planted on spot. Map drawn by the Circle Inspector is not matching with the description of actual spot. Vaijinath was unemployed and was under frustration. He was demanding share in the landed property of his father. In such situation the possibility of suicide cannot be ruled out. It is further submitted by learned counsel for the Appellant that if the entire evidence of the prosecution is considered, it is not sufficient so as to convict the Appellant, and therefore, the Appellant is entitled for benefit of doubt. The learned counsel submits that the Appeal deserves to be be allowed.
7.
Learned A.P.P. appearing for the State,
relying upon three dying declarations and also oral dying declaration given by the Appellant to PW10 Subhash Shinde, father of the deceased, and other evidence brought on record by the prosecution, submits that the Judgment and order
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 12
passed by the trial Court is in consonance with the evidence brought on record and therefore the Appeal may be dismissed.
8.
We have heard learned counsel appearing
for the Appellant and learned A.P.P. appearing for the State at length, with their able assistance perused the entire evidence brought on record by the prosecution and also the defence taken by the Appellant accused.
9.
Dr. Shailesh Shamling Patane was examined
as PW7. In his evidence before the Court, he deposed that dead body of Vaijinath was brought to the hospital along with panchnama for autopsy and accordingly he carried out autopsy. He found that Vaijinath sustained 95% burn injuries. The doctor deposed that area of burn in percentage was as follows:
1] Head, neck, face : 9% 2] Right Upper Limb : 9% 3] Left Upper Limb : 9%
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 13
4] Chest abdomen : 17% 5] Right leg : 17% 6] Left leg : 17% Total : 95%
.
According to this witness PW7 Dr.
Shailesh Patane, cause of death was "due to multiple burn injuries". PW7 has proved the Postmortem Report Exhibit 28.
10.
It appears that three dying declarations
of Vaijinath are recorded, which are at Exhibit 15, Exhibit 18 and Exhibit 26. The gist of the dying declaration at Exhibit 15 is that, in the night of 1st April 2011 at about 3.00 to 3.30 a.m., due to earlier quarrel, the accused poured kerosene on the person of Vaijinath and ignited the match stick. The said dying declaration at Exhibit 15 is recorded by Haridas Sadashiv Mahabole, Police Head Constable (PW1). After going through his evidence before the Court, it
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 14
inspires confidence. The manner in which dying declaration was recorded, has been categorically stated by him.
.
PW2 Dr. Nanasaheb Bajrang Gosawi deposed
before the Court that, on 1st April 2011 he was attached to Sub District Hospital, Omerga as medical officer. On that day at about 4.15 a.m. patient namely, Vaijinath Shinde was brought in the hospital as a case of burn. This witness PW2 along with police constable, went to the patient and examined the patient. The patient was conscious. Then police recorded statement of said patient in the presence of medical officer Gosawi, PW2. After recording statement of patient, this witness PW2 again examined the patient on the say of police and gave endorsement on the statement that, patient was conscious and oriented. After carefully going through the entire evidence of PW2 Dr. Gosawi, it appears that after satisfying himself that patient was conscious and oriented,
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 15
he made the endorsement to that effect before and after recording the statement. Therefore, there is no reason to disbelieve the evidence of PW1 and PW2.
11.
In dying declaration Exhibit 18 Vaijinath
stated that due to quarrel took place during the night, on 1st April 2011 at about 3.00 to 3.30 a.m., his wife Rani (accused) poured kerosene on his person and set him ablaze in heat of anger, as a result he sustained burn injuries. The dying declaration Exhibit 18 is recorded by PW3 Appasaheb Gopinath Ghadge, Police Head Constable. After going through his evidence before the Court, it also inspires confidence. He has deposed that on 1st April 2011 he was on duty at civil hospital, Solapur as P.S.O. in police chowki. On that day at about 7.20 a.m. Dr. Patil (PW4) came to police chowki and told him that one patient Vaijinath Shide has been admitted in the hospital. Thereafter PW3 himself with Dr. Patil (PW4) went
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 16
near the patient and asked the relatives of the patient to go away and after PW3 asked PW4 to examine the patient. Doctor told this witness that patient can speak. Then PW3 Ghadge recorded statement of the patient as per his say. Thereafter doctor made endorsement that during course of recording statement patient was conscious. After recording statement, PW3 obtained thumb impression of the patient on the statement and also read over the same to the patient. Thus this witness PW3 Ghadge deposed in detail how he has recorded statement of Vaijinath.
.
PW4 Dr. Padmakar Madhavrao Patil deposed
before the Court that on 1st April 2011 he was working as medical officer in civil hospital, Solapur in casualty department. On that day, patient Vaijinath Shinde was referred to the hospital. The history of the patient was that on 1st April 2011 in the morning at about 3.30 a.m. he was set on fire by his wife. He further deposed
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 17
that as per the say of police, he examined the patient. Condition of the patient was good and he was able to speak. Thereafter police recorded statement of the patient, when this medical officer was also present. After recording statement PW4 Dr. Padmakar Patil again examined the patient. The patient was able to speak properly. Accordingly PW4 made endorsement on the statement Exhibit 18 recorded by police. After carefully going through the entire evidence of PW4 Dr. Padmakar Patil, it appears that after satisfying himself that patient was conscious and able to speak, he made the endorsement to that effect before and after recording the statement. Thus, there is no reason to disbelieve the evidence of PW3 and PW4.
12.
Third dying declaration at Exhibit 26 is
recorded by Executive Magistrate, which is in questionanswer form. In this dying declaration, Vaijinath stated that his wife Sou Rani Vaijinath
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 18
Shinde (accused), in a heat of anger, poured kerosene on his person and set him on fire. This dying declaration Exhibit 26 is recorded by PW6 Vijaya Surkayakant Solapurkar. PW6 Vijaya Solapurkar deposed that she was working as election Naib Tahsildar, North Solapur since 2010. She has got powers of Executive Magistrate. On 1st April 2011 police head constable Ghadge came to her and he gave requisition letter to her for recording statement of Vaijinath Shinde in civil hospital, Solapur. After receipt of requisition letter Exhibit 19, she went to civil hospital, Solapur. As per the say of this witness PW6, the doctor examined the said patient and gave opinion that patient was able to speak and she can record the statement. Thereafter PW6 Vijaya recorded the statement of Vaijinath. After recording statement Exhibit 26, she read over the same to the patient. Patient accepted it to be correct. Then PW6 obtained thumb impression of left hand of the patient. Doctor again examined the patient and
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 19
made endorsement that patient is conscious.
.
PW5 Raghav Pramod Pargaonkar, medical
officer deposed that, on 1st April 2011 he was working as an Assistant Surgery Resident Doctor in burn ward. Special Executive Magistrate came to him and requested him that, she wanted to record dying declaration of patient Vaijinath Shinde who was admitted in burn ward. Then PW5 himself and Special Executive Magistrate went to the patient. PW5 examined the patient after asking the relatives to leave the room. PW5 found that the patient was conscious and oriented. Then PW5 asked the Special Executive Magistrate that she could conduct the dying declaration. After completion of recording of dying declaration PW5 again examined the patient and found him conscious and oriented. Then PW5 entered his remarks on the statement. We have also carefully perused the cross examination of the witness PW5. Nothing contrary has been brought on record by the
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 20
defence. After carefully going through the evidence of PW5 and PW6, it appears that there is no reason to discard their oral testimony.
13.
There is also an oral dying declaration
which is given by Vaijinath to his father Subhash Vithoba Shinde, who is examined as PW10. He has deposed about his family members. About the main incident, he deposed that on 31st March 2011 he himself, his wife, his son Amol and Sachin after taking dinner, slept in their rooms. His son Sachin and wife of Sachin went to sleep on terrace of their house. Vaijinath (deceased) and his wife were in their room. In the night at about 3.00 to 3.30 a.m. they heard the shouts of Vaijinath. Therefore witness got up and came out of the house and saw that smoke was coming out from the window of the room of Vaijinath. On hearing shouts of Vaijinath, Sachin, brother of Vaijinath, also came down from terrace. Then witness PW10 and Sachin came to the room of Vaijinath, opened the door and
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 21
pulled out Vaijinath. Sachin put towel on the person of Vaijinath. Then Amol, another brother of Vaijinath, brought Chadar (quilt) and put on the person of Vaijinath. PW10 further deposed that Vaijinath was saying that Rani (accused) has put him on fire, by poring kerosene on his person. PW10 further deposed that he came at the gate of their house to see where is Rani. At that time PW10 saw that Rani was standing outside the gate. Then she ran away till PW10 opens the gate. We have also carefully perused the cross examination of PW10.
14.
After carefully perusing the entire
evidence on record, it follows that the accused Rani committed offence as alleged against her. However, dying declaration Exhibit 26 recorded by the Special Executive Magistrate if read carefully, it appears that on the previous day of incident and also in the said night, there was quarrel between the accused Rani and her husband
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 22
Vaijinath on trifle ground. In view of the exposition by the Supreme Court in the case of Khushal Rao vs. State of Bombay 1, the dying declaration recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. The relevant portion of the dying declaration Exhibit 26, recorded by the Executive Magistrate, which stands on higher footing visavis the earlier two dying declarations recorded by the police officers, is as under:
"10-
rqeP;k vaxkojhy t[kek ;k d'kkeqGs >kY;k
vkgsr ? mRrj & IkRuh lkS- jk.kh oStwukFk f'kans fgus jkxkP;k 1 A.I.R. 1958 S.C. 22 (V 45 C 4)
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 23
Hkjkr jkWdsy vksrwu isVowu fnys ¼HkkaM.ks½( [Wife Sou. Rani Vaijunath Shinde, in a heat of anger, poured kerosene and set on fire (quarrel)].
15.
Therefore if all the dying declarations
are considered and in particular dying declaration at Exhibit 26 referred herein above, it appears that in a heat of anger, the accused Rani poured kerosene on the person of her husband Vaijinath and set him ablaze.
.
The accused Rani during the trial, while
recording her statement under Section 313 of the Code of Criminal Procedure, in reply to Question No.60, has stated thus:
"iz-dz- 60- rqyk dsl cnny vk.k[kh dkgh lkaxko;kps
vkgs dk; ? mRrj & eh vkf.k ekÖ;k irhe/;s dkgh HkkaM.k UkOgrslkljk
vkf.k
::: Uploaded on - 17/02/2017
ekÖ;k
irhe/;s
HkkaM.k
pkyw
gksrs-
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 24
lfpuus ekÖ;k irhyk ekjys gksrs o
R;kpk lokZapk jkx ekÖ;koj dk
?kjkckgsj dk
eh ?kjkckgsj >ksiys gksrs-
irhus
vkrwu
?ksryh
osGkus
dMh
ykowu
gksrh-
dkgh
xksa/kGkpk vkokt ,sdw vkyk rsOgk eh xsVtoG vkyhlkljk lfpuyk Eg.kkyk fgyk lksMw udksrdzkj ns.;klkBh iks- LVs- yk xsyh-
Eg.kwu eh
iks- LVs- e/;s
dks.khgh UkOgrs Eg.kwu eh dVV;koj clwu jkfgyhuarj ldkGh dGkys dh ?kjke/;s v'kh ?kVuk ?kMyhek>k uojk dkgh dke /kank djhr uOgrk Eg.kwu fujk'ksiksVh [kwi nk: fir gksrkvi ?kkr >kY;keqGs
dkgh
dke
R;kP;k ik;kpk /kank
gksr uOgrk-
?kjps yksd i.k R;kyk ekufld =kl nsr gksrs-
R;kus
fujk'ksiksVh vkRegR;k dsyh vlkoh vxj ?kjP;kauh rjh R;kPkk vi?kkr dsyk vlkok vlk ek>k la'k; vkgs ekÖ;k ojps vkjksi [kksVs vkgsr-"
16.
It is also the case of the Appellant that
there was delay of five hours in recording the F.I.R. and also the father and brothers of Vaijinath were accompanying him in the hospital all the time and therefore all the dying declarations are result of tutoring. While addressing on the sentence, the learned defence
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 25
counsel submitted before the trial Court that the Appellant has two children and the probable defence taken by the Appellant may be accepted.
17.
We have also carefully gone through the
expositions in the reported Judgments of the Supreme Court and the Bombay High Court, relied on by the learned counsel appearing for the Appellant, in support of her submissions. The learned counsel for the Appellant relied on the Judgments in the case of Chinnathaman vs. State rep. by Inspector of Police 2, Mohan Sadhu Kawale vs. State of Maharashtra3, Shivaji vs. The State of Maharashtra4, Dada vs. The State of Maharashtra5, Kakasaheb vs. The State of Maharashtra6, Hasan Geblya Padvi vs. The State of Maharashtra 7, Komalsing vs. The State of Maharashtra8.
2 3 4 5 6 7 8
A.I.R. 2008 S.C. 784 2004 Cri.L.J. 4167 2015 All M.R.(Cri) 4680 2014 All M.R.(Cri) 3496 2016 All M.R.(Cri) 849 2010(110)BOM.L.R. 3395 2014 All M.R.(Cri) 3265
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 26
18.
As
already
observed,
dying
declarations at Exhibit 15, Exhibit 18 and Exhibit 26 have been proved by prosecution beyond reasonable doubt and same get complete corroboration from the evidence of PW10 Subhash Shinde, to whom Vaijinath made oral dying declaration. In that view of the matter, inevitable conclusion is that, the Appellant did commit the offence, as alleged by the prosecution. However, upon careful perusal of the contents of the dying declaration at Exhibit 26, which is recorded by the Special Executive Magistrate, it appears that Appellant Rani, in a heat of anger, due to quarrel took place in the night, poured kerosene on the person of Vaijinath and set him on fire. On plain reading of this version from the said dying declaration, it is abundantly clear that, there was neither premeditation on the part of the accused, nor there was preparation for such commission of offence. It appears that, the incident had taken place in a heat of anger due to
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 27
quarrel on trifle issue. Therefore, the accused committed offence in a heat of anger upon a sudden quarrel and the act was committed by the accused without premeditation. In that view of the matter, taking
into
consideration
aforementioned
mitigating circumstances, we are of the view that, exception 4 to Section 300 of the Indian Penal Code applies to the facts of the present case and appropriate conviction would be under Section 304 Part II of the Indian Penal Code.
19.
Hence, the conviction of the Appellant
under Section 302 of the Indian Penal Code is set aside and instead, the Appellant is convicted under Section 304 Part II of the Indian Penal Code. For the said offence, the Appellant is sentenced to rigorous imprisonment of Seven Years and to pay fine of Rs.2000/, in default of payment of fine, to suffer further simple imprisonment for one month. Set off be given as per rules.
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
WWW.LIVELAW.IN cria229.13 28
20.
Criminal Appeal is accordingly partly
allowed.
[K.K. SONAWANE, J.] [S.S. SHINDE, J.] asb/FEB17
::: Uploaded on - 17/02/2017
::: Downloaded on - 21/02/2017 20:43:34 :::
