Vikram Rangnath Keshbhat vs The State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by the Judgment and Order dated 17th April 2012 passed by the Additional Sessions Judge-2, Aurangabad in Sessions Case No. 146 of 2010, by which the Appellant-Accused Vikram Keshbhat was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer Rigorous imprisonment for life and to pay fine of Rs. 5000/- (Rs. Five Thousand only), and in default of payment of fine, to suffer further simple imprisonment for one year, the present Appeal was filed by him.

FACTS:-

Briefly stated, it is the case of the prosecution that Appellant-Accused is the husband of deceased Sangita. On 6th January 2010 at about 11.00 a.m. he asked her that they would go towards Mala situated in Deolai Shiwar for bringing Rs. 5000/- and accordingly the Appellant with his wife Sangita and minor daughter Rani, proceeded towards the Mala. On way, he purchased one liter Petrol in a plastic bottle from the Petrol Pump and then they went near the hilly area, near the field having deep slope. They stopped there and started eating Chiku, Peru and Watana Shenga carried by them. At that time the Appellant-Accused quarreled with deceased Sangita by expressing suspicion about her character and he then suddenly poured Petrol on the person of Sangita and set her on fire. He then fled away by taking his Minor daughter Rani with him.

Deceased shouted and tried to extinguish fire but nobody came there immediately. One Satish Rameshwar Mulawat, PW-2, came on the spot upon hearing the shouts and he informed the Police by making phone call and as such PSI - R.P. Garbade of Osmanpura Police Station arrived on the spot. He found the deceased in burnt condition and made inquiry from her, when she told him that her husband i.e. Appellant-Accused poured petrol on her person and set her on fire and ran away with their daughter Rani. She was brought to the hospital. PSI Garbade then prepared Spot Panchnama and seized the pieces of Saree and Petty Coat etc. in burnt condition. He recorded her dying declaration between 6.35 PM to 7.00 PM and then registered Crime No. 1 of 2010 under Section 307 of I.P.C. against the Appellant.

On the same day, Naib Tahsildar Bharaskar also recorded her dying declaration between 7.35 PM. to 7.55 PM, in which she stated that her husband set her on fire by pouring Petrol on her person when her minor daughter aged 3 1/2 years was along with them, on the spot situated in Deolai area. Thereafter her parents came and she made oral dying declaration to them to the same effect. On 7th January 2010 at about 3.30 PM she expired. PSI Garbade prepared Inquest Panchnama and sent the body for postmortem. He then conducted investigation, recorded statements of the witnesses and then filed the charge-sheet.

The trial Judge heard the evidence. The defence was of total denial. On the contrary, Appellant''s case was that deceased herself set her on fire at the house once in past but did not succeed as the neighbourers extinguished the fire. But on the second occasion on the spot in question, she succeeded in setting herself on fire. Appellant did not examine any witness nor examined himself. The trial Court convicted the Appellant-Accused as above. Hence this Appeal.

ARGUMENTS:-

Mr. Bayas with Ms. Vaishali Deshpande, learned counsel for the Appellant submitted that the trial Court relied on the evidence of the interested witnesses, namely, the parents of the deceased, so also the Executive Magistrate and P.S.I. who wanted to bag the conviction. It is submitted that there are various infirmities in the prosecution evidence and in the wake of serious contradictions and for want of corroboration, the conviction could not have been recorded by the learned trial Judge. The counsel then submitted that the story of the prosecution was of pouring Petrol when, as a matter of fact, the C.A. Report shows Kerosene and not the Petrol, which clearly falsifies the prosecution case and therefore benefit of doubt should have been extended to the Appellant. He then contended that the learned trial Judge could not have relied upon the dying declarations recorded one after another and with no corroboration as such. The dying declarations were liable to be rejected as they were untrustworthy. The trial Judge also committed an error in not finding that deceased could not have made dying declaration as she was burnt 100%, as is clear from the medical reports. In the case of burn injuries to the extent of 100%, it would not be safe to rely on the dying declarations. The evidence of PW-7 Rani, the daughter, clearly contradicted the evidence in the dying declaration about the purchase of the Petrol from the Petrol Pump. He therefore, submitted that the entire prosecution story is doubtful and benefit of doubt must be given to the Accused.

In the alternative, the learned counsel for the Appellant submitted that the deceased Sangita had indulged in adultery repeatedly despite the Appellant''s request to her to stop. The Appellant changed the Mohalla also but then her activities of adultery continued and when he still objected, he was assaulted by deceased Sangita and her paramour Raju and others, due to which Appellant filed S.C.C. No. 499 of 2006, criminal case, in which process was issued by the Magistrate against accused persons. There was thus grave and sudden provocation for the incident and therefore lesser offence can be said to have been proved.

Per contra, the learned A.P.P. supported the impugned Judgment and Order and submitted that the evidence tendered by the prosecution is an abundance and corroborative of each other. The learned A.P.P. submitted that the learned trial Judge has recorded reasoned Judgment with full discussion on the evidence tendered before it and it has considered the entire case-law in light of the evidence tendered before it. The Judgment is in consonance with the evidence and the prosecution has proved the case beyond any doubt and in fact it is a full proof case. He therefore prayed for dismissal of the Appeal.

CONSIDERATION:-

We have heard learned counsel for the Appellant-Accused as well as learned A.P.P. at length. We have perused the impugned Judgment and reasons recorded by the learned trial Judge for recording the order of conviction of the Appellant for the offence of murder. As the prosecution story goes, the Appellant had suspicion about the character of the deceased Sangita and on the fateful day, with proper planning, he took his wife and the minor daughter Rani aged 3 1/2 years to a distant place with a halt at Petrol Pump for purchasing the Petrol. That is what he represented to the deceased Sangita as well as Rani. The submissions made by the learned counsel for the Appellant that the material found was in fact kerosene and not petrol, would make no difference in the facts of the present case for the reason that the Appellant is a auto driver and appears to have misled the deceased as well as minor Rani stating that he purchased petrol in the bottle, when as a matter of fact, bottle carried by him contained kerosene which he ultimately utilized for burning the deceased Sangita.

Insofar as the evidence tendered by the prosecution about the act of the Appellant in burning the deceased is concerned, we have carefully seen the entire evidence, oral as well as documentary i.e. dying declarations, so also the evidence of the minor child Rani, PW-7, his daughter. Apart from this evidence, what we find is that there is immediate presence of PW-2 Satish Rameshwar Mulawat, an independent witness who heard hue and cry made by the deceased Sangita after she was burnt. He ran towards her from his company premises, which is close to the spot of incident, dialed telephone No. 100 to call the police. Then the police came and inquired from the lady, when she disclosed her name as Sangita Vikram Keshbhat and also stated that her husband set her on fire. With the help of other workers Sangita was taken to the police van. PSI Garbade, who had come on the spot in response to the telephone, recorded dying declaration, which has been duly proved.

We have perused the dying declaration recorded by PSI Garbade, so also the dying declaration recorded by PW-4 Executive Magistrate - Datta Narhari Bharaskar, who proved the dying declaration Exhibit 29. We have perused the dying declaration and we find that in answer to Question No. 2 and 6, she stated that her daughter 3 1/2 years, Rani was present when the incident took place near Deolai in the open space and she was burnt by her husband by means of petrol. Then there are oral dying declarations which are duly recorded and eye witness account of PW-7 Rani. We find that the evidence of Rani is believable since she also clearly stated that her father poured petrol on the person of her mother. Criticism levelled by the counsel for the Appellant that she is child witness and therefore her evidence is tutored one, does not appeal to us since there is nothing in the cross-examination to disbelieve this witness though a child witness.

Apart from this evidence of PW-7 Rani, oral dying declaration given by the deceased to her mother is consistent with the written dying declarations as well as the evidence of PW-2 Satish Rameshwar Mulawat. The evidence of PW-8 Ravindra Pandharinath Garbade, PSI, who recorded dying declaration and who recorded Spot Panchnama, is also seen by us, so also the cross-examination. We find that the said evidence is trustworthy and the evidence of prosecution witnesses is fully consistent. The reasons recorded by the learned trial Judge are in all details. Instead of repeating those reasons, we would quote Paragraph Nos. 20, 23 (extracted portion), 27 and 31:-

"20. I have carefully scrutinized the evidence of PW 8 and I am satisfied that PW 8 firstly went on the spot of offence and he has made inquiry with the deceased on which the deceased has made oral dying declaration contending therein that her husband i.e. accused was taking doubt upon her character, he has poured petrol on her person, set her on fire and thereafter he fled away by taking her daughter with him. The evidence of PW 8 further shows that thereafter he has taken away the deceased in the hospital and thereafter the Medical Officer has made endorsement vide Exh. 19 which shows that the deceased was in conscious condition and in fit state of mind to make such declaration and thereafter PW 8 has recorded dying declaration of deceased produced on record vide Exh. 45. The evidence of PW 8 further shows that he has observed that the said patient was able to walk properly and thereafter he has recorded her dying declaration produced on record vide Exh. 45. In fact the evidence of PW 8 particularly on the point of observing mental condition of the deceased before recording her dying declaration has not been so seriously challenged on behalf of accused by which I have no hesitation to rely upon his testimony who has recorded dying declaration of deceased by observing her mental condition. The evidence of PW 8 further shows that he has also obtained endorsement vide Exh. 19 of the Medical Officer before recording her statement by which I have no hesitation to rely upon his testimony. I am of the view that in such a case the person who records dying declaration must be satisfied that the deceased was in fit state of mind. However, in this case the prosecution has established the fact that really PW 8 has observed the mental condition of the deceased who was found that the deceased was in fit state of mind to make statement and thereafter he has recorded the dying declaration of deceased vide Exh. 45 by which I have no hesitation to rely upon the said dying declaration as per the principles enunciated in the Case of Laxman Vs. State of Maharashtra, .

.............. His evidence further shows that thereafter he has recorded dying declaration of deceased produced on record vide Exh. 29 (Exh. 25 � Copy). PW 4 has also stated in his evidence that the said patient disclosed her name as Sangita Vikram Kesbhat and on inquiry as to what happened she stated that her husband by pouring petrol on her person set her ablaze. PW 4 admits the fact that Exh. 23 does not bear inward and outward number of the Tahsildar Office. He admits the fact that he has received letter Exh. 23 in between the period of 7-05 and 7-10 PM on that day. He admits the fact that while giving letter to doctor, he has mentioned the name of patient as Sangita Konbhat and he has recorded the name of patient in dying declaration as Sangita Kesbhat. Further he admits the fact that he has mentioned the name of patient as Sangita Konbhat in another letter. He admits the fact that he was not knowing the name and surname of the said patient. He admits the fact that since receiving letter vide Exh. 23 till recording the dying declaration he has no meeting with PSI Garbade. He admits the fact that he did not make inquiry with the relative of patient prior to recording her dying declaration. He admits the fact that contents of Exh. 25 and 29 are not different. Admittedly Exh. 29 is the original dying declaration of deceased and Exh. 25 is its copy. PW 3 is the Medical Officer who has examined the said patient before recording the dying declaration of deceased vide Exh. 29 by PW 4. The evidence of PW-3 shows that he has made endorsement vide Exh. 20 on the letter of PW 4 which shows that the patient was conscious and in fit state of mind to give valid statement. The evidence of PW 3 clearly shows that he had examined patient and he found that the said patient was in fit state of mind and was well oriented to the time, place and person and accordingly he has made endorsement vide Exh. 20. I have already indicated that PW 4 has also observed the mental condition of the patient before recording her statement and thereafter he has recorded her statement produced on record vide Exh. 29.

"27. PW 6 is the mother of deceased. Her evidence shows that when she went in the hospital, she has asked her daughter about the incident on which her daughter (deceased) told that accused has taken away her including her daughter Rani towards Deolai hilly area for bringing money. The accused was having bottle containing petrol with him, the accused has quarreled with her by taking doubt upon her character and thereafter the accused set her on fire by pouring kerosene on her person. PW 6 admits the fact that she herself and her daughter Laxmibai went in Ghati Hospital on 06/01/2010 to meet her daughter Sangita and thereafter her daughter Sangita narrated the said incident to her in presence of police officers. She admits the fact that she herself and her daughter Laxmibai were in the hospital while recording the dying declaration of deceased by the police. I have carefully scrutinized the evidence of PW 6 and I am satisfied that she being mother of deceased has no reason to falsify the accused in the alleged crime. The evidence of PW 6 cannot be discarded as she has given admission in cross-examination that the statement of dying declaration of deceased has been recorded by the police in her presence as the evidence of PW 8 shows that he has removed the relatives of deceased outside to the hospital before recording dying declaration of deceased produced on record vide Exh. 45. In fact PW 8 admits the fact that he has removed the mother of deceased including her relatives outside to the Accident Ward for which much weightage to the admission given by PW-6 about the same cannot be given and only on that account it is not desirable to discard her evidence. In short, the evidence of PW 1 and 6 clearly shows that the deceased has made oral dying declaration before them showing her cause of death at the hands of the accused. The evidence of PW 1 & 6 is also found corroborated with the version of deceased as mentioned in dying declaration vide Exh. 45 and 29 recorded by PW 8 & PW 4. Therefore, I have no hesitation to rely upon the testimony of PW 1 & PW 4 for involving the accused in the alleged crime on the basis of dying declaration made by the deceased before them.

In fact PW 2 firstly came on the spot before whom the deceased has made oral dying declaration. The evidence of PW 2 shows that the deceased disclosed that her husband i.e. accused set her on fire. PW 2 admits the fact that it did not happen that he alone went towards victim and conversation was taken place in between them. PW 2 admits the fact that he has not stated before the police that he alone went towards victim and she disclosed him that her husband set her on fire. I have carefully scrutinized the evidence of PW 2 particularly on the point of oral dying declaration made by the deceased before him, but he has given some admission showing that the deceased did not disclose anything to him. Therefore, I have no hesitation to discard the testimony of PW 2 partly particularly on the point of oral dying declaration made by the deceased before him."

We concur with the reasons recorded by the learned trial Judge above for holding that it was the Appellant who burnt the deceased.

The next question is about the nature of offence that is proved by the prosecution. In his statement recorded under Section 313 of Cr.P.C. the accused clearly stated that the deceased Sangita, despite having four children from him, indulged in illicit relations with Raju Wastad (Achari) Thombre, working in hotel Suda near Apsara Talkies, Aurangabad who was their neighbour when they were residing at Narali Bag, Aurangabad at the house of Chavan Gadi Gharwale in the Wada of Chavan. The Appellant made all efforts to break the illicit relations between them but he could not succeed. The Appellant had filed Criminal Case No. 499 of 2006 in the Court of J.M.F.C. Aurangabad in which he stated that then he changed his house and went along with his wife, the deceased and the children to reside in Nageshwar Wadi, Aurangabad. Even then the illicit relations between deceased Sangita and said Raju continued and he himself as well as witnesses saw the same number of times. He therefore, again tried to break the illicit relations but Sangita and Raju used to quarrel with him and in his absence, Raju used to come to meet her at his house and was seen in compromising position with Sangita at his house. He also lodged report to the Police Station but to no use. Then the deceased went to reside with her parents. Thereafter on 2nd July 2006 at about 4.30 p.m. when the Appellant had gone to have settlement with Sangita, he was assaulted by four persons including Sangita and Raju only because the Appellant had objected to their illicit relations. The learned trial Court issued process by order dated 16th August 2006. It appears that thereafter the said case was dismissed on 25th February 2009 due to Appellant''s absence.

It thus appears from the record that the Appellant was put to great provocation by the deceased Sangita time and again including on the day of the incident. It clearly appears that the Appellant made all efforts to break the illicit relations of his wife Sangita with the other person. He even changed his residence to some other Mohalla but to no use. When he tried to make settlement with his wife who, went to her parents house, he was assaulted by her, her paramour Raju and his friends. Appellant having four children from the deceased Sangita thus made all efforts but the provocation to him was clearly intolerable, grave and sudden. He was thus caught in such a typical situation. We think that the case should fall within the meaning of Exception I of Section 300 of the Indian Penal Code. We, therefore, hold that the offence in question could not be said to be of murder but culpable homicide not amounting to murder.

As a result, we hold Appellant guilty of offence punishable under Section 304 Part I of the Indian Penal Code. In our opinion, looking to the entire back-ground and the number of children who are required to be looked after, the sentence undergone by him from 15th February 2010 till the date of his release should be sufficient sentence.

The up-shot of the above discussion is that the Appeal must be partly allowed. In the result we make the following order:-

(I) Criminal Appeal No. 382 of 2012 is partly allowed.

(II) The Judgment and Order dated 17th April 2012 passed by the Additional Sessions Judge-2, Aurangabad in Sessions Case No. 146 of 2010, convicting the Appellant-Accused Vikram Rangnath Keshbhat for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer Rigorous imprisonment for life and to pay fine of Rs. 5000/- (Rs. Five Thousand only), and in default of payment of fine, to suffer further simple imprisonment for one year, is set aside and modified. The Appellant is convicted for offence punishable under Section 304 Part I of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment which he has already gone from the date of his arrest, namely 15th February 2010. No separate sentence of fine is imposed.

(III) The Appellant-Accused Vikram Keshbhat be released forthwith if not required in any other crime.