Somnath Dhanaji Gavli vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant - original accused against the judgment and order dated 20.2.2009 passed by the learned Sessions Judge-3, Pune in Sessions Case Nos. 705 of 2007. By the said 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. 500/-, in default R.I. for 3 months.

The prosecution case briefly stated, is as under:

(a) Deceased Sharada was married to the appellant. The appellant was the second husband of Sharada. Sharada had one son by name Nilesh from her earlier husband. The appellant, his wife Sharada and Nilesh were all residing together at Vetalbaba Vasahat, Hadapsar, Pune. The appellant used to suspect that his wife Sharada was having an affair with some other person. Due to this, he used to abuse her and beat her.

(b) The incident occurred on 15.9.2007. At about 10.00 p.m., the appellant came home in intoxicated state. He quarreled with Sharada. Thereafter, he poured kerosene on Sharada and set her on fire. This incident occurred just outside the house of the appellant and the deceased. At that time, PW 2 Nilesh was in the house. He came outside the house. He poured water on his mother Sharada and extinguished the fire. He made inquiry with Sharada about how she sustained burn injuries, whereupon his mother Sharada told him that the appellant had poured kerosene on her and set her on fire. Oral dying declaration was made by Sharada to PW 3 Yashoda also who was her neighbour. Thereafter, Sharada was taken to the hospital.

(c) In the hospital, PW 5 PSI Survase recorded the dying declaration of Sharada. Sharada told him that on the day of the incident at about 10.00 p.m., her husband came home in intoxicated state. Her husband then poured kerosene on her and set her on fire. This dying declaration is at Exh. 27 which was treated as F.I.R. Thereafter, investigation commenced. Sharada expired on 20.9.2007. The cause of death was shock due to 45% 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 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.

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 Sharada and set her on fire.

The conviction of the appellant is mainly based on the dying declaration Exh. 27. This dying declaration was recorded by PW 5 PSI Survase. PSI Survase has stated that at about 11.00 p.m., he was on patrolling duty. He received phone call from the Police Station that one lady was set on fire after pouring kerosene on her in Vetalbaba Vasahat and she was admitted in Sassoon Hospital. PSI Survase was directed to go immediately to Sassoon Hospital. PSI Survase then went to Sassoon Hospital. He met the lady. The lady told him that her name was Sharada Somnath Gavli. She was fully conscious. PSI Survase then contacted the Doctor and inquired with him whether the lady was conscious and oriented. The Doctor (PW 8 Dr. Soni) examined the lady and stated in the affirmative. The doctor also made endorsement to that effect on the statement. At that time, it was 1.00 a.m of 16.9.2007. PSI Survase then asked the lady how the incident had occurred. She then told him that her husband used to come home in intoxicated state and suspect about her character. On that day also, her husband came home in intoxicated state. Her husband then poured kerosene on her and set her on fire with matchstick. The said statement was then read over to Sharada and she put her left thumb impression on the same and admitted the said dying declaration to be correct. This dying declaration is at Exh. 27.

PW 5 PSI Survase has stated that when he went to Sassoon Hospital, he contacted the doctor on duty and inquired whether the patient was conscious and oriented. The doctor examined the patient and answered in the affirmative and also made an endorsement to that effect on the statement. PW 8 Dr. Soni was the Resident Doctor in Sassoon Hospital at the relevant time. He has stated that on 16.9.2007 at about 12.35 a.m., the patient by name Sharada Somnath Gavli was admitted in the hospital with 45% superficial to deep burns. She gave history of homicidal burns at 11.00 p.m. on 15.9.2007. Dr. Soni informed the R.M.O. to make arrangement to record the statement of Sharada. At about 1.00 a.m., police persons came there. Along with the police, Dr. Soni went near the patient Sharada and examined her. He found that she was conscious and mentally fit to give a valid statement. In his presence, the police recorded the statement of Sharada as per her say. It was read over to Sharada and she admitted it to be correct. Then Sharada had put her left hand thumb impression on the statement. Dr. Soni has stated that he made endorsement on the said statement under his signature that the lady was conscious and in mentally sound state and was not under any influence of sedatives. Dr. Soni has identified Exh. 27 (dying declaration) as the very same statement which was recorded in his presence.

In addition to the evidence of PW 5 PSI Survase, the prosecution is relying on the evidence of PW 1 Suman and PW 2 Nilesh to whom oral dying declaration was made by Sharada. Suman has stated that Sharada was her father''s sister. The appellant was the husband of Sharada. The first husband of Sharada had expired in an accident. Since last 4/5 years prior to the incident, Sharada was residing with the appellant. Sharada had a son by name Nilesh (PW 2) from her first husband. On the next day of the incident, Nilesh telephoned Suman and informed her that the appellant had set his mother Sharada on fire and she was admitted in Sassoon Hospital, hence, Suman went to Sassoon Hospital and met Sharada. At that time, Sharada was in a fit condition to talk. Suman made inquiry about how the incident had happened. Thereupon, Sharada informed her that her husband was out of the house for two days. When he returned, she asked him about it, hence, there was quarrel between them. In that quarrel, her husband poured kerosene on her and set her on fire.

The second oral dying declaration was made by Sharada to her son PW 2 Nilesh. Nilesh has stated that Sharada was his mother. The appellant was his stepfather. On the day of the incident, quarrel was going on between his mother and his father i.e the appellant. Nilesh was inside the house. At that time, his mother was set on fire outside the house. He poured water on his mother and extinguished the fire. He made inquiry with his mother how she sustained burn injuries. Thereupon, his mother told him that the appellant had poured kerosene on her and set her on fire. Nothing has been elicited in cross-examination of PW 5 PSI Survase, PW 1 Suman and PW 2 Nilesh so as to discredit their testimony. We find that their testimony inspires implicit confidence, hence, we have no hesitation in relying on the same.

It is the prosecution case that the appellant poured kerosene on his wife Sharada and set her on fire due to which Sharada sustained burn injuries and died on 20.9.2007. This is supported by the medical evidence. PW 7 Dr. Tawre conducted the postmortem on the dead body of Sharada. He has stated that he noticed 45% superficial to deep burns. In his opinion all the burn injuries were antemortem and were sufficient in ordinary course of nature to cause death. The cause of death was shock due to burns.

Mrs. Ayubi, learned Advocate for the appellant submitted that even it is accepted that the act of the appellant of setting his wife Sharada on fire resulted in her death, the case would not fall under Section 302 of IPC but it would fall under Section 304-II of IPC. She pointed out that the incident occurred during a sudden quarrel. She relied on the evidence of PW 1 Suman, PW 2 Nilesh and dying declaration Exh. 27 to support her contention that the incident occurred during a sudden quarrel. Mrs. Ayubi drew our attention to the evidence of PW 1 Suman who stated that Sharada told her that when her husband returned home after two days, she asked him about it, hence, a quarrel took place between Sharada and the appellant and in that quarrel, the appellant poured kerosene on Sharada and set her on fire. Reliance was placed on the evidence of PW 2 Nilesh who has stated that on the day of the incident, a quarrel was going on between his mother and his father i.e the appellant. Thereafter, his mother was set on fire. Lastly, Mrs. Ayubi placed reliance on the dying declaration Exh. 27 wherein Sharada has stated that on 15.9.2007 at about 10.00 p.m., her husband (appellant) came home in intoxicated state and quarreled with her and in the course of quarrel, he poured kerosene on her and set her on fire.

Mrs. Ayubi further pointed out that Sharada had sustained only 45% burn injuries and the burn injuries were superficial to deep burn injuries. She reiterated that all the 45% burn injuries sustained by Sharada were not deep burns but they were mixed superficial to deep burns. Mrs. Ayubi submitted that the act of the appellant was not premeditated or preplanned but it happened on the spur of the moment in a fit of anger. Mrs. Ayubi reiterated that the fact that the incident occurred during a sudden quarrel and the fact that Sharada had only sustained 45% burn injuries which were superficial to deep burn injuries would bring the case under Exception 4 to Section 300 of IPC and would thus, be covered by Section 304-II of IPC.

The evidence on record shows that the incident occurred during a sudden quarrel. The medical evidence also shows that Sharada has sustained 45% superficial to deep burn injuries. Looking to the evidence on record, we find much merit in the contention raised by Mrs. Ayubi that as the incident occurred during a sudden quarrel, the case would fall under Exception 4 to Section 300 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, the conviction of the appellant under Section 302 of IPC is set aside, instead, the appellant is convicted under Section 304-II of IPC. In our view, custodial sentence of eight years rigorous imprisonment and fine amount of Rs. 2000/- in default simple imprisonment for 15 days would meet the ends of justice.

The appeal is allowed to the aforesaid extent.

Office to communicate this order to the appellant who is in jail.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Mrs. Nasreen S.K. Ayubi at Rs. 5000/-.