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IN
9.criapeal52411(j).doc

RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 524 OF 2011

Hanumant Bhiva Chavan

Age - 37 Years,
R/o. Tambewadi, Tal. Malshiras,
District Solapur.

Presently detained at Yerawada Central

Prison, Pune. .. Appellant
(Org. Accused)

Versus
State of Maharashtra
Through Police Station Officer,
Natepute. .. Respondent

...................
Appearances
Ms. Ameeta Kuttikrishnan Advocate(appointed)fortheAppellant
Mr. H.J. Dedia APPfortheState
...................

CORAM : SMT. V.K. TAHILRAMANI &

M.S. KARNIK, JJ.
DATE : MARCH 29 & 30, 2017.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. This appeal is preferred by the appellant-original

accused against the judgment and order dated 13.4.2011

passed by the learned Ad-hoc Additional Sessions Judge,

Malshiras in Sessions Case No. 9 of 2009. By the said

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judgment and order, the learned Session Judge convicted the

appellant for the offence punishable under Section 302 of IPC

and sentenced him to suffer rigorous imprisonment for life

and fine of Rs. 1000/-, in default R.I. for one year.

2. The prosecution case briefly stated, is as under:

(a) Deceased Vandana was the daughter of PW 2

Shivaji. Vandana was married to the appellant in

the year 1998. The appellant was addicted to

liquor and he suspected the fidelity of Vandana.

(b) The incident took place on 24.11.2008. On that

day, the appellant came home in an intoxicated

state. The appellant told Vandana that she should

not live in the house. The appellant raised

suspicion about the character of Vandana and he

tried to assault her. The appellant then poured

kerosene on Vandana and set her on fire.

Vandana sustained burn injuries. Vandana was

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taken to the hospital of Dr. Waghmode. PW 2

Shivaji, the father of Vandana was informed

regarding admission of Vandana in the hospital.

He went and met Vandana in the hospital.

Vandana informed him that her husband had

poured kerosene on her and set her on fire.

(c) In the hospital, PW 3 SEO Shri. Kalyani recorded

the dying declaration of Vandana. The said dying

declaration is at Exh. 23. Thereafter, PW 11 PHC

Patil recorded the dying declaration of Vandana.

The said dying declaration was treated as FIR

(Exh. 62). Thereafter investigation commenced.

(d) Vandana was shifted from Waghmode Hospital

which was situated in Natepute to Sassoon

Hospital in Pune. There PW 7 ASI Kumbhar

recorded the dying declaration of Vandana. The

said dying declaration is at Exh. 40. In all the

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three dying declarations, Vandana has stated that

her husband i.e the appellant poured kerosene on

her and set her on fire. Vandana expired on

30.11.2008.

(e) PW 6 Dr. Surwase conducted the postmortem on

the dead body of Vandana. In the opinion of the

Dr. Surwase, the cause of death was shock due to

77% burns. After completion of investigation, the

charge sheet came to be filed.

3. Charge came to be framed against the appellant -

original accused under Section 302 of IPC. The appellant-

accused pleaded not guilty to the said charge and claimed

to be tried. His defence was that of total denial and false

implication. After going through the evidence adduced in

this case, the learned Sessions Judge convicted and

sentenced the appellant as stated in paragraph 1 above,

hence, this appeal.

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4. We have heard the learned Advocate for the appellant

and the learned APP. 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 Sessions Judge and the

evidence on record, for the reasons stated below, we are of

the opinion that the appellant poured kerosene on Vandana

and set her on fire.

5. The conviction of the appellant is based on three dying

declarations Exh. 23, Exh. 62 and Exh. 40. These dying

declarations were recorded by PW 3 SEO Shri. Kalyani, PW 11

PHC Patil and PW 7 ASI Kumbhar respectively. In addition to

the three dying declarations i.e Exh. 23, Exh. 62 and Exh. 40,

the conviction is based on an oral dying declaration made by

Vandana to her father i.e PW 2 Shivaji. PW 2 Shivaji has

stated that Vandana was his daughter. She was married to

the appellant in the year 1998. The appellant was addicted

to liquor. The appellant was suspecting the fidelity of

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Vandana and he used to assault her on that count. Shivaji

has stated that on 24.11.2008, Dr. Waghmode (PW 5)

telephoned him and informed him that his daughter had

sustained burn injuries and she was admitted in his hospital.

Dr. Waghmode asked Shivaji to come to the hospital to see

Vandana. Hence, Shivaji went to Waghmode Hospital which

was situated at Natepute. He saw that his daughter had

sustained burn injuries. He made inquiry with his daughter

how she had sustained burn injuries. She told him that her

husband Hanumant came to the house at about 8 p.m. after

consuming liquor and started quarreling with her suspecting

her fidelity. At that time, she was filling kerosene in the

stove. Her husband poured kerosene on her and set her on

fire.

6. As stated earlier, there are three dying declarations on

record. The first was recorded by PW 3 SEO Shri. Kalyani.

Shri. Kalyani has stated that on 25.11.2008 at about 3.15

p.m., Natepute Police came to him and requested him to

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record the dying declaration of a woman who was admitted

in Dr. Waghmode Hospital as she had sustained burn

injuries. Accordingly, Shri. Kalyani went to Dr. Waghmode

Hospital to record the dying declaration of the woman. On

going to the hospital, he met Dr. Waghmode (PW 5) and

asked him whether the patient was mentally and physically

fit to give a statement. Dr. Waghmode then examined the

patient and told Shri. Kalyani that the patient was physically

and mentally fit to give a statement. Shri. Kalyani also

personally ascertained that the physical and mental

condition of the patient was such that she could give her

statement. Thereafter, he started recording the dying

declaration of the patient. The patient told him that her

name was Vandana Hanumant Chavan. She gave details

regarding her age and education. Thereafter, Shri. Kalyani

asked Vandana about the cause of receiving burn injuries

whereupon she told him that her husband Hanumant Chavan

poured kerosene on her and set her on fire. She also told

him that her husband was suspecting her chastity and

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hence, he set her on fire. The said dying declaration is at

Exh. 23.

7. The second dying declaration (Exh. 62) of Vandana was

recorded by PW 11 PHC Patil. He has stated that on

24.11.2008, he was attached to Natepute Police Station. At

about 23.45 hours, their police station received intimation

from the hospital of Dr. Waghmode regarding patient

Vandana Chavan being admitted in the hospital as she had

sustained burn injuries. PHC Patil immediately summoned

the Special Executive Magistrate in the hospital of Dr.

Waghmode. The Executive Magistrate Shri. Kalyani (PW 3)

recorded the dying declaration of Vandana in the hospital.

Thereafter, PHC Patil went to Waghmode Hospital. He

reached there on 25.11.2008. PHC Patil consulted the

medical officer on duty to ascertain as to whether the patient

was mentally and physically fit to give a statement. The

medical officer examined the patient and informed PHC Patil

that the patient was physically and mentally fit to give a

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statement. Accordingly, the medical officer put his

endorsement in the margin of the blank sheet. Thereafter,

PHC Patil recorded the statement of Vandana Chavan as per

her narration. He read it over to her. Thereafter, he

obtained her signature on the said statement. He too put his

signature on the said statement. PHC Patil stated that again

the medical officer (PW 5 Dr. Waghmode) examined the

patient and certified that she was mentally and physically

fit to give a statement. PHC Patil has stated that Vandana

told him that her husband suspected her chastity and on that

count set her on fire by pouring kerosene on her person.

PHC Patil has categorically stated that at the time of

recording the dying declaration, only he and the doctor were

present at the bedside of Vandana. This dying declaration

was treated as FIR (Exh. 62).

8. The dying declaration (Exh. 23) recorded by PW 3 SEO

Shri. Kalyani and the dying declaration / FIR (Exh. 62)

recorded by PHC Patil were recorded in the hospital of PW 5

Dr. Waghmode. Dr. Waghmode has corroborated that SEO

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Shri. Kalyani came to his hospital for recording dying

declaration of Vandana Chavan. Shri. Kalyani asked Dr.

Waghmode whether the patient was physically and mentally

fit to give a statement. Dr. Waghmode, therefore, examined

the patient and opined that she was physically and mentally

fit to give a statement. Thereafter, Shri. Kalyani recorded

the dying declaration of Vandana in presence of Dr.

Waghmode. Dr. Waghmode further stated that thereafter

Natepute Police came to the hospital and expressed their

intention to record the statement of Vandana. Dr.

Waghmode, therefore, again examined Vandana Chavan and

give his opinion that she was physically and mentally fit to

give a statement. Accordingly, he put his endorsement

thereon. Dr. Waghmode has identified his endorsements on

both the dying declarations i.e Exh. 23 and Exh. 62.

9. The third dying declaration of Vandana was recorded by

PW 7 ASI Kumbhar. ASI Kumbhar has stated that on

26.11.2008, he was attached to Bundgarden Police Station,

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Pune and he was deputed at Sassoon Hospital outpost. He

was informed about the patient Vandana Hanumant Chavan

being admitted in Sassoon Hospital as she had sustained

burn injuries. He, therefore, immediately went near the bed

of Vandana Chavan. He consulted the medical officer (PW 10

Dr. Moon) on duty. The medical officer examined the patient

and told ASI Kumbhar that the patient was physically and

mentally fit to give a statement. Accordingly, the medical

officer put his endorsement in the margin of the blank sheet.

Thereafter, ASI Kumbhar recorded the statement of the

patient. The patient told him that her husband had set her

on fire as he was suspected her chastity. Thereafter, ASI

Kumbhar read over the statement to the patient. He

obtained thumb impression of the patient on her statement.

He put his signature on the statement. Again the medical

officer examined the patient and certified regarding her

physical and mental fitness from beginning to end.

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10. The medical officer who gave endorsement was PW 10

Dr. Moon. Dr. Moon has stated that on 26.11.2008, he was

attached to Sassoon Hospital in Pune. He was deputed in

burns ward on that day. A patient by name Vandana

Chavan was admitted in the burn ward on that day. The

police came to him and expressed their intention to record

the statement of Vandana Chavan. He, therefore, took the

police to the bedside of the patient. At that time, only Dr.

Moon, the police and the patient were present in the room.

Dr. Moon examined the patient and found her physically and

mentally fit to give a statement. Accordingly, he put his

endorsement in the margin of the blank sheet on which the

police recorded her statement. He identified the

endorsement which is found at Exh. 53 on the dying

declaration Exh. 40. Dr. Moon has further stated that

thereafter the police recorded the statement of the patient.

Police read over the statement to the patient. They obtained

her signature on the statement. The policeman also signed

on the statement. Thereafter, Dr. Moon again examined the

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patient and made endorsement about her physical and

mental fitness at the end of her statement. Dr. Moon has

identified the second endorsement which is marked at Exh.

54. Thus, all the three dying declarations Exh. 23, Exh. 62

and Exh. 40 and the oral dying declaration made by Vandana

to PW 2 Shivaji show that the appellant poured kerosene on

Vandana and set her on fire due to which she sustained burn

injuries. Nothing has been elicited in cross-examination of

PW 2 Shivaji, PW 3 SEO Shri. Kalyani, PW 5 Dr. Waghmode,

PW 7 ASI Kumbhar, PW 10 Dr. Moon and PW 11 PHC Patil to

cause us to disbelieve their evidence. We find their evidence

to be totally trustworthy and hence, we have no hesitation in

relying on the same.

11. That Vandana died a homicidal death is seen from the

evidence of PW 6 Dr. Surwase as well as the other evidence.

Dr. Surwase is the doctor who conducted the postmortem on

the dead body of Vandana. He has stated that in his opinion,

the cause of death of Vandana Chavan was shock due to

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77% burns. This along with three dying declarations and oral

dying declaration show that the death of Vandana was

homicidal.

12. No doubt the evidence on record shows that it was the

appellant who set his wife on fire, however, the pivotal

question which arises in the facts and circumstances of this

case is, what is the nature of the offence proved against the

appellant? Ms. Kuttikrishnan, the learned Advocate for the

appellant submitted that the appellant had no intention to

cause the death of his wife Vandana which is seen from the

fact that after Vandana caught fire, the appellant

extinguished the fire and took Vandana to the hospital. To

show that the appellant extinguished the fire, Ms.

Kuttikrishnan placed reliance on dying declaration Exh. 40.

In this dying declaration, Vandana has stated that her

husband poured water on her and extinguished the fire. Ms.

Kuttikrishnan also drew our attention to the evidence of PW 5

Dr. Waghmode who has stated that it is true that the

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appellant had also sustained burn injuries while

extinguishing the fire. In order to show that the appellant

took Vandana to the hospital, Ms. Kuttikrishnan placed

reliance on the dying declaration Exh. 62 and on the

evidence of PW 5 Dr. Waghmode and the investigating

officer PW 9 PSI Nemane. We have perused the said dying

declaration and the evidence of PW 5 Dr. Waghmode and PW

9 PSI Nemane. In the dying declaration Exh. 62, Vandana

has stated that her husband took her in an auto rickshaw

and admitted her in the hospital. PW 5 Dr. Waghmode has

stated that the patient was brought to the hospital by her

husband Hanumant Chavan. The investigating officer PSI

Nemane has stated that it is true that the appellant shifted

Vandana to the hospital. Thus, from the evidence discussed

above, it is seen that after his wife caught fire, the appellant

extinguished the fire and took his wife to the hospital. 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

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such a proportion that Vandana might die. If he had ever

intended her to die, the appellant would not have

immediately thrown water on her and extinguished the fire

and thereafter, rushed her to the hospital in an effort to save

her. It was obvious that the appellant realized his folly and

was filled with remorse, therefore, he extinguished the fire

and took Vandana to the hospital. In view of the evidence on

record, we are inclined to think that all that the appellant

thought of was to inflict burns and not to kill her but

unfortunately the situation slipped out of control and it went

to a fatal extent. Similar facts arose in the case of Kalu

Ram Vs. State of Rajasthan1. In this case also, the

accused had poured kerosene on his wife and set her on fire,

however, on finding the flames flaring up, he poured water

on her to save her. In the said case, the Supreme Court held

that the case would not he covered by Section 302 of IPC but

it would be covered under Section 304-II of IPC.

1 (2000)10SCC324

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13. In view of the above facts and circumstances, the

conviction of the appellant under Section 302 of IPC is set

aside, instead, the appellant is convicted under Section 304-I

of IPC and for the said offence, he is sentenced to rigorous

imprisonment for 10 years and fine of Rs. 1000/-, in default

R.I. for one year.

14. The conviction and sentence imposed by the learned

Ad-hoc Additional Sessions Judge, Malshiras by Judgment and

Order dated 13.4.2011 passed in Sessions Case No. 9 of

2009 is accordingly modified.

15. The appeal is allowed to the aforesaid extent.

16. The fees to be paid to the appointed Advocate Ms.

Ameeta Kuttikrishnan are quantified at Rs. 10000/-.

[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]

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