Gurunath vs The State

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Section 302 IPC on a trial held by the Sessions Judge, Fast Track Court No. 1 at Gulbarga.

The facts reveal that Laxmi Bai (the deceased), sister of PW-1 was married to the accused five months earlier to the incident. After marriage, when she started living with the accused, she is said to have subjected to cruelty and harassment. The accused was suspecting her fidelity and ultimately on 20.06.2002 at about 8.00 PM the prosecution alleges that the appellant-accused caused her death by pouring kerosene. She sustained severe burns and was taken to the hospital by her mother-in-law and brother-in-law at 10.00 pm. When she was admitted in the hospital while under treatment, her statement was recorded by the police and on the basis of the said statement a complaint was registered in Crime No. 27/2002 for the offence punishable under Sections 498(A) and 307 of IPC and Sections 3 , 4 and 6 of the Dowry Prohibition Act. Her dying declaration was recorded by the Taluk Executive Magistrate and on 27.06.2002 she succumbed to the burn injuries.

The inquest was held in the presence of the attesting witnesses under Ex. P5 and the body was sent to the postmortem examination. The spot mahazar was held under Ex. P15, the postmortem was done under Ex. P20. During the investigation, the sketch map Ex. P-21 was drawn and the photographs of the scene of occurrence were taken. The Investigating Officer recorded the statement of the witnesses. M.O. Nos. 1 to 3 were seized during the course of investigation and were sent to the opinion of the experts. Ex. P22 the FSL report was secured. After collecting the required documents, a charge sheet was laid against the accused (the appellant herein) for the offence punishable under Sections 498(A) , 302 , 304-B of IPC and Sections 3 , 4 , and 6 of Dowry Prohibition Act.

In the course of the trial, the prosecution examined PW-1 to PW-21, the documents Exs. P-1 to P-22 were marked and M.Os. 1 to 3 were produced. Initially the Trial Court convicted the appellant for the offence punishable under Section 302 IPC and acquitted of other charges. In the appeal, the matter was remitted back and thereafter PW-22 and PW-23 were examined and Exs. P-23 and P-24 were marked. After recording the statement of the accused, D.W. -1 was examined. The Trial Court heard the counsel for the parties and under the impugned judgment and order convicted the appellant for the offence punishable under Section 302 of IPC. Aggrieved by the conviction and the sentence, this appeal is preferred by the accused.

We have heard the learned counsel for the parties. The questions that arise for our consideration in this appeal are:

"(i) Whether the Trial Court was justified in convicting the appellant for the charge under Section 302 IPC and imposing the sentence of life imprisonment?

(ii) Whether the appellant has made out any grounds to warrant interference?

(iii) For what offence the appellant is responsible?"

Learned counsel for the appellant would submit that all the material witnesses have not supported the case of the prosecution and that except the evidence of PWs-15, 16, 17, 22 and D.W. -1 there is no other evidence and the evidence placed on record is insufficient to affirm the conviction of the appellant for the charge under Section 302 IPC. He submits that all the relatives of the deceased and the accused have not supported the case of the prosecution and except the alleged dying declaration, which is unbelievable for the reason that there is insufficient evidence about her state of mind. Therefore, he would submit that the conviction order is illegal and erroneous. It is also submitted that there is no intention to cause the death and the conviction for the offence punishable under Section 302 IPC is not warranted. He submits that at the most the conviction could be under Section 304 Part-II IPC for the reason that the incident took place in a grave and sudden provocation. On these grounds, he has sought to set aside the conviction and sentence thereon.

On the other hand, learned Addl. S.P.P. submits that it is a clear case for offence punishable under Section 302 IPC and that there are two dying declarations, one in the form of a statement before the police and the other recorded by the Taluka Executive Magistrate in the presence of the doctor and looking to the circumstances, placed on record by the prosecution, he submits that the conviction and sentence for the offence punishable under Section 302 IPC is justified.

We have perused the evidence placed on record by the prosecution and also the defence. PW-1 is the brother of the deceased, PWs-2, 3, 8, 9 and 10 are the neighbourers, PWs-6 and 7 are the sisters of the deceased. All these witnesses have not supported the case of the prosecution. Their hostile statements have been marked in the evidence as per Ex. P-1 to P-4 and P6 to P10. Thus oral version of the witnesses is not helpful to establish its case.

PW-15 is the Police Sub-Inspector and he has recorded the statement of Laxmi Bai (the deceased) at 2.00 PM on 21.06.2002. Laxmi Bai was admitted in the hospital on 20.06.2002 at 10.00 PM. She was under treatment thereafter. It is on the next day that PW-15 approached the hospital authorities and recorded her statement and registered a crime in question. It is PW-15 held the spot mahazar Ex. P-15 and seized the articles M.O. 1 to M.O. 3. In the statement before PW-15 Laxmi Bai has stated that her husband, appellant herein, was suspecting her fidelity and on the date of the incident at the relevant point of time when she was talking with her sister's son (nephew), the accused quarreled with her and then set fire by pouring kerosene. It is on the basis of this statement recorded that the crime was registered and the investigation was taken up.

That apart, on the requisition of the Investigating Officer, the Taluka Executive Magistrate PW-17 went to the hospital and recorded the dying declaration of Laxmi Bai (the deceased). Ex. P-19 is the dying declaration and as could be seen from the evidence of PW-17 the Taluka Executive Magistrate, the dying declaration was recorded in question and answer format. She has stated in her statement the reasons for setting fire. She states that her husband was suspecting her fidelity on the ground that there is an affair with Raju her nephew and then there was a quarrel, the accused is said to have taken a plastic can and poured kerosene and set fire. She has also stated the circumstances in which the incident took place. She speaks of the presence of other family members at that time. This statement of the deceased was recorded in the presence of the doctor PW-23. PW-23 has stated that Laxmi Bai was conscious and was in a position to give a statement. He examined her and thereafter has certified her condition and capability to make a statement before PW-17 the Taluka Executive Magistrate. There is nothing to disbelieve the evidence of PW-23 the Doctor and no such circumstances are elicited in his cross-examination to disbelieve the version. He is an independent witness. No malafides could be attributed against him and therefore the evidence of PW-23 has to be accepted and it has to be held that Laxmi Bai was in a condition to give a statement and it is in such circumstances that PW-17 has recorded Ex. P-19.

The learned counsel for the appellant submits that this statement cannot be the basis for the conviction for the reason that there is inconsistency in the evidence of the prosecution about a stove burst and the consequent burn injuries. He has brought to our notice the evidence of PW-22 Dr. Renuka Devi who had examined and admitted Laxmi Bai (the deceased) in the hospital on the date of incident at 10.00 PM. At the time of admission she is said to have questioned Laxmi Bai and made a note in the case sheet that the incident was due to accidental burns as stated by Laxmi Bai (the deceased). So the learned counsel submits that this version of the prosecution is inconsistent with the contents of Ex. P-19 and the evidence of PW-17 the Taluka Executive Magistrate. On this aspect of the matter, he has placed reliance on the Apex Court judgment reported in Sharda Vs. State of Rajasthan, wherein there were two statements of the deceased. The one in respect of accidental burns and the other implicating the accused. The Apex Court has held that in the circumstances of that case, the subsequent dying declaration cannot be believed. This principle laid down by the Apex Court does not apply to the facts on hand for the reasons that there were statements of the deceased one before PW-22 Dr. Renuka Devi at the time of her admission, the second before the Police Officer PW-15 at Ex. P-14 and the third before PW-17 as per Ex. P-19. The subsequent two statements made by the deceased are consistent but anyhow this version is inconsistent with the statement made before PW-22 at the time of admission.

We find it proper to refer here the circumstances in which this incident has taken place. Laxmi Bai (the deceased) married the appellant just five months earlier to the incident. This is a second marriage of the appellant. His first wife has divorced. It is the consistent version of the prosecution that the appellant was suspecting the fidelity of his wife. That apart, though a defence has been put forth that there was a stove burst, as could be seen from the statement of the accused and his answer to question Nos. 1 to 6 he has stated in his statement that there was a stove burst at the time when she was preparing tea and thereby she sustained the burns. As could be seen from the spot mahazar Ex. P15, there is no stove at the place where the incident has taken place. We have seen the photographs which are admitted in the evidence by the prosecution and they reveal that the stove was in tact. That apart at the time when Laxmi Bai was admitted in the hospital, her mother-in-law and brother-in-law had accompanied her and therefore the possibility of persuading her to make such a statement cannot be overruled. Further more, Laxmi Bai was in severe pain at the time of her admission in the hospital and she was also in a shock and therefore we feel that this statement said to have been made is insufficient to discard the further two statements made before the police officer and also the Taluka Executive Magistrate PW-17.

It is no doubt true that at the time when Ex. P-14 was recorded by the PSI PW-15, there is a gap of only 1 1/2 hours in between the statement made before the Taluk Executive Magistrate and the PSI PW-15. She was examined by the doctor PW-23 just an hour after recording the statement Ex. P-14 and the doctor had found that she was conscious, well oriented and was in a fit state of mind to give a statement. This evidence of PW-23 would also support the version of the prosecution and her condition at the time when the Police Officer recorded the statement under Ex. P14. When her evidence could be taken into consideration, by appreciating the evidence of PW-15 and also PW-17, we feel justification in the prosecution case to plead that both these two statements Ex. P-14 and Ex. P19 have come into existence when she was in a fit state of mind. There is nothing to disbelieve the evidence of PW-15 and PW-17 and PW-23, so far as proof of Ex. P-14 and Ex. P-19 are concerned.

Irrespective of the fact that the other witnesses inclusive of the relatives of the deceased and the accused have not supported the case of the prosecution, we find justification in accepting the evidence of PW-15, PW-17 and PW-23 in support of the proof of incident of setting fire.

Another contention has been raised by the learned counsel for the appellant that there were injuries on the accused and these injuries have not been explained by the prosecution. When a person sets fire to another and the other person is in flames, there is possibilities that the person who is setting fire can also get burns incidentally or accidentally. It is in this context that the evidence placed on record has to be looked into. The learned counsel for the appellant relies upon the evidence of PW-16 Dr. Sulochana who examined the appellant and issued the certificate Ex. P-18. Perusal of the injury certificate would reveal that the appellant was examined on 23.06.2002 at 6.35 PM for treatment of burns said to have been caused on 20.06.2002. It is mentioned in the injury certificate as (1) Superficial to deep burns present on the left hand. Part of the chest, upper part of the abdomen. About 20% anti mortem burns. It is further mentioned "age of the injury is about 1 to 2 hours prior to examination" (underline is ours) and the doctor has certified that the above injuries are simple in nature. It is relevant to note that the incident occurred on 20.06.2002, the appellant was examined on the third day i.e. on 23.06.2002 at about 6.35 PM and the certificate reveals that the age of the injury was about 1 to 2 hours prior to the examination. By seeing this certificate, it cannot be said by any stretch of imagination that these injuries were sustained by the appellant on 20.06.2002. This is a serious doubt raised in the defence that has been put forth by the appellant to prove that these injuries were sustained by the appellant on 20.06.2002.

It is no doubt true that PW-16 though states in the chief examination that the injuries were 1 or 2 days prior to the examination, the cross-examination itself reveals that this statement was made on the basis of history given by the police. So this admission of PW-16 is of no help to the appellant to prove that these injuries on the appellant were caused on the date of the incident i.e. on 20.06.2002. Therefore, when the appellant did not establish that these injuries were at the time of the incident, he cannot take up such a defence for non-explanation of these injuries by the prosecution.

So looking to the material placed on record, we are of the opinion that the incident has been proved by the prosecution beyond reasonable doubt.

So far as the intention is concerned, it is relevant to note that though the appellant was suspecting the fidelity of his wife Laxmi Bai on the date of the incident, she was talking with her nephew by name Raju and it is for this reason that he had entered a doubt. There was a quarrel which preceded the incident. It is immediately at that time that he took the kerosene can, poured it on her and set fire by a match stick. The kerosene can and match box were seized at the time of the spot mahazar Ex. P15. The above said circumstance would clearly reveal that the death was caused only in a grave and sudden provocation preceded by a quarrel. In the aforesaid circumstances, we are of the opinion that the provisions of Section 302 are not attracted and it is only the provisions of Section 304 Part-II IPC which could be made applicable. So far as the grave and sudden provocation is concerned, even in the dying declaration recorded under Ex. P-19 and the statement under Ex. P-14 she has stated that there was a quarrel suspecting her fidelity. So the appellant has committed an offence punishable under Section 304 Part-II IPC and his conviction for the offence punishable under Section 302 IPC is not proper.

So far as the sentence is concerned, though the learned counsel submits that the appellant is in custody for a period exceeding 8 years, he requests to set off his custodial period on the sentence to be imposed. But here is a case where the appellant who married Laxmi Bai (the deceased) as his second wife and she died within five months of her marriage the incident though was in a grave and sudden provocation, was, by setting fire after pouring kerosene, in our opinion, it is an inhuman act on the part of the appellant. The maximum sentence permissible under Section 304 Part-II IPC has to be imposed. Therefore, we answer point No. 1 in negative, point No. 2 in affirmative and point No. 3 as per the order. In the aforesaid circumstances, we proceed to pass the following:

"ORDER

The appeal is allowed in part. The conviction of the appellant for the offence punishable under Section 302 IPC and the sentence thereon are set aside. The appellant is convicted for the offence punishable under Section 304 Part-II IPC and is ordered to undergo imprisonment for 10 years and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for three months."