Govind Ravji Bhangare vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant -original accused against the judgment and order dated 24.8.2012 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 147 of 2009. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-

The learned Sessions Judge directed that the substantive sentences of imprisonment shall run concurrently.

The prosecution case briefly stated, is as under:

(a) Deceased Geeta was the daughter of PW 3 Pandurang. Geeta was married to the appellant about 10 years prior to the incident. Geeta and the appellant had three children. Geeta and the appellant along with their children were residing in the house taken on rent from PW 4 Shahid. The said house was situated in a chawl at Kasara, Taluka Shahapur, District Thane. The appellant was working as a labourer with a contractor and Geeta used to work in one private company at Village Athgaon, Taluka Shahapur.

(b) The appellant used to suspect that Geeta was having an affair with some other person and on this count, he used to harass her and ill-treat her. The appellant also used to consume liquor and ill-treat Geeta. Geeta informed this fact to her father PW 3 Pandurang.

(c) The incident occurred on 26.3.2009. When Geeta came home, the appellant asked her why she came home late. The appellant then picked up a quarrel with Geeta. The appellant then poured kerosene on Geeta and set her on fire. Geeta started shouting. The appellant then tried to extinguish the fire with the help of a quilt. Geeta was thereafter taken to the hospital.

(d) In the hospital, two dying declarations of Geeta came to be recorded. The first dying declaration Exh. 8 was recorded by PW 2 A.S.I. Kokrale and the second dying declaration Exh. 38 was recorded by PW 10 S.E.M. Goste. PW 3 Pandurang was informed that his daughter had sustained burn injuries and was admitted in Civil Hospital, Thane. He then went to Civil Hospital, Thane and met his daughter. Pandurang made inquiry with his daughter about what had happened. His daughter Geeta told him that she came home late from work, hence, her husband assaulted her and poured kerosene on her and set her on fire. The first dying declaration Exh. 8 recorded by PW 2 A.S.I. Kokrale was treated as F.I.R.. Thereafter, investigation commenced.

(e) Geeta expired on 30.3.2009. Her dead body was sent for postmortem. It was found that Geeta died due to septicemia due to 70% superficial to deep burns. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Sections 498-A and 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.

We have heard the learned Advocate 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 Advocates 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 his wife Geeta and set her on fire.

The conviction is mainly based on two dying declarations i.e Exh. 8 and Exh. 38. Dying declaration Exh. 8 was recorded by PW 2 A.S.I. Kokrale and dying declaration Exh. 38 was recorded by PW 10 S.E.M. Shri. Goste.

PW 2 A.S.I. Kokrale recorded the dying declaration on 26.3.2009 at 11.30 p.m. A.S.I. Kokrale has stated that he was informed by the medical officer of Primary Health Centre, Kasara that one patient namely Geeta Bhangare was admitted with burn injuries. He then went to the hospital. He called one doctor that is PW 1 Doctor Suryawanshi. The doctor examined the patient. Then A.S.I. Kokrale recorded the statement of the patient. The patient told him that her husband used to suspect her character. She used to work in one company. On 26.3.2009 when she came back from work, her husband (appellant) asked her why she had come late. Her husband picked up a quarrel with her. He then poured kerosene on her person and set her on fire. She started shouting. Her husband tried to extinguish the fire with the help of quilt. Thereafter, neighbours took her to the hospital.

The evidence of PW 2 A.S.I. Kokrale shows that he had called Dr. Smt. S.R. Suryawanshi before he recorded the dying declaration Exh. 8. PW 2 Kokrale has stated that the doctor examined the patient. Thereafter, he recorded the statement of the patient Geeta Bhangare. The evidence of A.S.I. Kokrale is corroborated by the evidence of PW 1 Dr. Suryawanshi. She has stated that when she went to Primary Health Centre, she saw one woman who had sustained burn injuries. She found that the patient was conscious and able to speak. Dr. Suryawanshi has stated that the patient stated to her that when she came back home from work, there was quarrel in between her and her husband. The patient further stated that her husband was suspecting her character and her husband poured kerosene on her and set her on fire.

The second dying declaration was recorded by PW 10 S.E.M. Shri. Goste. Shri. Goste has stated that he was working as Executive Magistrate, Shahapur. On 27.3.2009, he received a letter from Shahapur Police Station to record the dying declaration of a patient Geeta Govind Bhangare. He then went to the hospital. The medical officer was on duty. He asked the medical officer whether the patient was conscious and was able to give a statement. The medical officer made an endorsement that the patient is conscious and able to give a statement. Shri. Goste then recorded the dying declaration of the patient at 11.10 a.m. The patient gave her name as Geeta Bhangare. She stated that the earlier evening, her husband suspected her character. Her husband then poured kerosene on her and set her on fire. This dying declaration is at Exh. 38.

That the patient was conscious and in a fit condition to give dying declaration Exh. 38 is also borne out by the evidence of PW 9 Dr. Dhanegave. Dr. Dhanegave has stated that on 27.3.2009, he was on duty. One patient Geeta Bhangare was admitted with burn injuries in the hospital. The Executive Magistrate, Shahapur came to the hospital to record the dying declaration of the said patient. Dr. Dhanegave examined the patient and found that she was conscious and in a fit condition to speak. Accordingly, he made endorsement at the beginning and at the end of the dying declaration. He was present through out the time that the dying declaration was recorded. Dr. Dhanegave has categorically stated that the Executive Magistrate recorded the dying declaration of Geeta Bhangare after he (Dr. Dhanegave) certified that the patient was conscious and able to give a statement.

In addition to the two dying declarations Exh. 8 and Exh. 38, the prosecution is also relying on the evidence of PW 3 Pandurang who was the father of Geeta. His evidence is in relation to oral dying declaration made by Geeta to him. PW 3 Pandurang has stated that Geeta was his daughter. The appellant was his son-in-law. The marriage of Geeta and the appellant took place about 10 years prior to the incident. They had three children. The appellant was working as labourer with a contractor. His daughter Geeta used to work in a private company in Taluka Shahapur. Geeta used to tell him that her husband (appellant) was suspecting her character and he was harassing her. The appellant used to consume liquor and used to ill-treat her. Pandurang has stated that he was informed on telephone that his daughter had sustained burn injuries and was admitted in Civil Hospital, Thane. He then went to Civil Hospital, Thane to see his daughter. When he met his daughter, he asked her what had happened. His daughter Geeta told him that she came late from work, hence, her husband assaulted her, poured kerosene on her and set her on fire.

Nothing has been elicited in cross-examination of PW 2 A.S.I. Kokrale, PW 1 Dr. Suryawanshi, PW 10 S.E.M. Shri. Goste, PW 9 Dr. Dhanegave and PW 3 Pandurang to shake their testimony. We find that their evidence is cogent and reliable, hence, we have no hesitation in relying on the same.

Ms. Dandekar, learned Advocate for the appellant submitted that even assuming that the appellant set his wife Geeta on fire, the case 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 the death of his wife Geeta. In support of this contention, she has placed reliance on the evidence of PW 2 A.S.I. Kokrale as well as the dying declaration Exh. 8. In the dying declaration Exh. 8, Geeta has stated that her husband had a quarrel with her, then he poured kerosene on her. When Geeta started shouting, her husband extinguished the fire. PW 2 A.S.I. Kokrale also stated that Geeta told him that when she came back from work, a quarrel took place between her and her husband as her husband was suspecting her character. Geeta then stated that her husband poured kerosene on her and set her on fire. She started shouting. Then her husband tried to extinguish the fire by placing quilt on her person. Ms. Dandekar further submitted that the fact that the incident occurred during a sudden quarrel and the fact that the appellant immediately threw a quilt on the body of Geeta to extinguish the fire shows that the appellant had no intention to kill his wife Geeta.

No doubt, the evidence on record shows that it was the appellant who set Geeta on fire, however, the pivotal question which arises in the facts and circumstances of the case is what is the nature of the offence proved against the appellant? The evidence on record shows that the incident took place during a sudden quarrel. This is borne out by the dying declaration Exh. 8 as well as the evidence of PW 2 A.S.I. Kokrale. There was no premeditation. Moreover, immediately after the appellant set Geeta on fire, the appellant threw a quilt on Geeta to extinguish the fire. This conduct cannot be seen divorced from the totality of circumstances. Very probably, the appellant would not have anticipated that the act done by him would have escalated to such a proportion that Geeta might die. If the appellant had ever intended Geeta to die, he would not have immediately thrown a quilt on her in an effort to rescue her. It is obvious that the appellant realized his folly and felt remorse and therefore, he extinguished the fire. In view of the evidence on record, we are inclined to think that all that the appellant thought of was to frighten Geeta and not to 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 in view of the observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan, AIR 2000 SC 3630 : (2000) 10 SCC 324 . In the said case, 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 Part II of IPC.

Looking to all these facts stated above, we are of the considered opinion that the case would not fall under Section 302 of IPC. Considering the evidence on record, we are of the view that Exception 4 to Section 300 of IPC applies to the facts of the present case and the appropriate conviction would be under Section 304-II of IPC. Hence, we alter the conviction of the appellant from Section 302 of IPC to Section 304-II of IPC. In our opinion, sentence of imprisonment of seven years with fine amount of Rs. 1000/-I.D.S.I. for one month would meet the ends of justice. The conviction and sentence imposed by the learned Additional Sessions Judge, Kalyan by judgment and order dated 24.8.2012 passed in Sessions Case No. 147 of 2009 is accordingly modified.

The conviction and sentence of the appellant under Section 498A of IPC is maintained.

The substantive sentences of imprisonment shall run concurrently.

The appeal is allowed to the aforesaid extent.

Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant-original accused.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Ms. Dandekar at Rs. 5000/-.