Bombay High Court
Chandu S/O Kisanrao Chavhan vs State Of Maharashtra on 28 August, 2009
Author: A.P. Bhangale
Bench: A.P. Bhangale
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR
Criminal Appeal0 No. 214/2008
Chandu S/o Kisanrao Chavhan
aged about 37 years,
R/o Daryapur, Tq. Daryapur,
District Amravati. .. APPELLANT
.. Versus ..
State of Maharashtra,
Through Police Station Daryapur,
Tq. Daryapur, Dist. Amravati. .. RESPONDENT
----------------------------------------------------------------------------------------------------------
Mr. N.A. Badar, Advocate for appellant.
Mrs.S.S. Wandile, A.P.P. for respondent.
----------------------------------------------------------------------------------------------------------
CORAM : A.P. BHANGALE, J.
DATED:- 28th AUGUST, 2009
JUDGMENT
1. By this appeal the appellant has challenged the judgment and order delivered on 10th April, 2008 in Sessions Trial No.1/2007, by learned Ad Hoc Additional Sessions Judge, (Court No.2), Achalpur. By the impugned judgment and order, the appellant (accused) was found guilty and convicted for the offence punishable under Sec.307 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for five years and ::: Downloaded on - 09/06/2013 14:57:23 ::: (2) to pay fine in the sum of Rs.2,000/- in default to suffer further rigorous imprisonment for one year.
2. It appears a case of the prosecution that P.W.-1 Bharti Chandu Chavhan (wife of the present appellant/convict) were married since 1997 and they were residing at Banosa, Daryapur in District Amravati. Bharti and her husband Chandu had two sons from the wedlock one is Akash aged about 7 years (not examined) and second is Vishal aged about 5 years (examined as P.W.-5). The appellant (convict) was coolie by occupation.
3. Complaint was recorded by P.W.-6 M.J. Gadamode, P.S.I. from Daryapur Police Station regarding the incident, which occurred on 16/06/2006 at 11.00 am. According to Bharti she had asked her husband to bring tablets from medical shop, because she was suffering from piles. He had replied that he had no money and will not bring tablets for her and abused Bharti and also gave two slaps on her cheek, breaking necklace of black beads, which was worn by Bharti at that time. Later according to Bharti, in the anger her husband said that "now I will kill you" and thereafter he went inside the kitchen, brought can containing kerosene and poured kerosene on her person. Bharti got frightened when she was going outside by opening the front door of the house, her husband ignited a ::: Downloaded on - 09/06/2013 14:57:23 ::: (3) match stick, threw it on her person and set on her fire. Bharti raised shouts 'save, save', upon hearing shouts close relative (Her husband's brother's wife) Sou.Rani Chavan poured water on her person and extinguished fire.
Further according to Bharti, her husband by means of hand-cart brought her to Godavari Hospital of Dr.Bhattad (P.W.-7), who admitted Bharti in the hospital, but husband of Bharti went away. According to Bharti, she had sustained burn injuries on her breast, back and back side portion. Thus, FIR (Exh.24) was recorded, which was in the nature of dying declaration. The investigation had followed thereafter as also Investigating Officer, who recorded FIR (Exh.24) proceeded to the spot, drew spot panchnama in presence of panchas, seized the kerosene can, beads of mangalsutra, match box, etc. from the spot under panchnama (Exh.16). He has also seized burnt clothes of the injured under panchnama (Exh.17). Services of Tahsildar were also requisitioned to record statement of Bharti while she was undergoing medical treatment in the hospital of Dr.Bhattad. On the following day, the accused was traced and arrested under panchnama (Exh.27), his clothes were also seized under panchnama (Exh.18), certificate from the doctor was collected in the course of investigation. The seized articles were referred to Chemical Analyzer, Nagpur with requisition letter (Exh.28). Thus, after completion of investigation, the accused was chargesheeted.
::: Downloaded on - 09/06/2013 14:57:23 ::: (4)4. The accused was charged under Sec.307 of Indian Penal Code as also under Sec.498-A of Indian Penal Code vide Exh.9. The accused pleaded not guilty to the charges and claimed to be tried. Accordingly his plea was recorded at Exh.10.
5. The prosecution in order to prove offence against the accused, examined seven witnesses and closed its evidence.
6. Statement of the accused was recorded under Sec.313 of Cr.P.C.
He did not dispute that he was married with P.W.-1 since 1997 and used to reside at Banosa with two sons Akash and Vishal born out of their wedlock.
He also did not dispute that on the date of the incident, Bharti had received burn injuries on her neck, back and other parts of the body and he had taken her to hospital of Dr.Bhattad and Dr.Bhattad treated her as also the fact that she also took treatment of Dr.Panpaliya from Akola for about one month. Learned APP invited my attention to answers given by the accused to question No.23 and 29 indicating that the seizure of rockel can, beads of mangalsutra, locket, match box lying on the spot in panchnama (Exh.16) are also admitted facts apart from the fact that accused/appellant had taken Bharti to Dr. Bhattad's hospital for the treatment of burn injuries on the date of incident. It does appear from the evidence led in the trial Court ::: Downloaded on - 09/06/2013 14:57:23 ::: (5) that Bharti (victim) was examined as P.W.-1, she deposed about the incident as also the background facts indicating that after her marriage in 1997 with the appellant (convict), they stayed at Banosa, Daryapur and had two sons namely Akash and Vishal. The appellant (convict) used to ply hand-cart.
Bharti had gone to Akola for medical treatment and doctor had given her certain medicines. She had asked appellant to bring those medicines for her, but he had no money to purchase medicines on that count appellant abused and beat her. According to Bharti, accused had demanded her mangalsutra in order to buy liquor and drink before the incident. She deposed that appellant (accused) had brought kerosene can and poured kerosene on her person and lighted the match stick to set her on fire, when she raised shouts and came out of house, wife of younger brother of the accused poured water on her person and younger brother of accused took her to hospital of Dr.Bhattad. She had received burn injuries on her neck, back and other parts of the body. She received treatment in the hospital of Dr.Bhattad for about two days and they went to Akola to receive further treatment from Dr.Panpaliya as an indoor patient for about one month.
Thus, according to Bharti, appellant used to beat her, he was in the habit of drinking liquor and gambling. Her evidence indicate that she appears a straight forward in her answers as she admitted that prior to the incident she had gone to her parents' house and when accused gave notice and ::: Downloaded on - 09/06/2013 14:57:23 ::: (6) called her for cohabitation, they started to reside together. Her parents-in-
law had decided to keep her husband separate from them because she had quarrel with her mother-in-law and also had quarrel with her husband. She also fairly admitted that she was suffering from piles after about one year from the date of marriage. The appellant also knew that Bharti suffered from piles. She also admitted that because of heavy pain from piles, she was fed up with the disease of piles and has required medical treatment.
Her evidence was referred to by learned Advocate for appellant (convict) on the ground that admittedly she was suffering from severe pain due to piles, she must have fed up with herself and may have attempted to commit suicide. However, looking to the entire material collected during the investigation as also contents of FIR and her evidence on oath, such inference cannot arise particularly when victim had survived. Although, she had received 52% of burn injuries in the incident she could narrate what had happened. Learned APP submitted that suffering from piles cannot be a disease, which can lead married woman with two sons to attempt on her own life. It was specifically pointed out by learned APP that in the course of evidence in cross-examination, the victim had stated about threat from the accused that she shall not tell his name to Police. Naturally when accused had shown unwillingness to spend money for her treatment and did not bring medicines for her, father of Bharti was unhappy and annoyed towards ::: Downloaded on - 09/06/2013 14:57:23 ::: (7) the accused. The conduct of accused after the incident is also be noted that he had let his wife in the hospital with burn injuries, went away and then decided that she should reside with her parents due to her burn injuries.
Naturally her father could have made demand of medical expenses incurred on her from the accused. She had specifically denied suggestion that she caught fire while she was preparing food. Her evidence that burnt clothes i.e. saree, blouse and petticoat were seized in the course of investigation, are also required to be noted. It is true that P.W.-2 Madhukar Chauhan who had signed Panchnama (Exhs.16 and 17) turned hostile to the prosecution case as also P.W.-3 Madhukar Jadhav although they admitted their signatures on the panchnama (Exhs.16 and 17). But evidence of Bharti received further corroboration in the evidence of PW-4 Smt.Chandrakala Bundele (mother of Bharti) indicating that accused used to give ill-
treatment to Bharti and that he was also addicted to drink liquor. She advised Bharti to live with her husband with a hope that he will improve in future as Bharti had given birth to Akash and Vishal, but there was no improvement in the behaviour of Bharti's husband. It was naturally for Chandrakala to visit Bharti in the hospital, when she was receiving medical treatment in the hospital of Dr.Bhattad at Daryapur. and groaning with pains due to burns. The fact that Bharti narrated to her mother Chandrakala that her husband burnt her is also a corroborative evidence to the main ::: Downloaded on - 09/06/2013 14:57:23 ::: (8) evidence of Bharti. Nothing could be elicited by defence in the cross-
examination of PW-4 to dislodge her evidence that her daughter had informed her about the incident about her husband, pouring kerosene, burning Bharti. The trial Court decided not to place reliance upon evidence of PW-5 Vishal, because he is a child witness, aged about six years on the ground that possibility of his tutoring cannot be ruled out. Vishal PW-5 also gave evidence that his father poured kerosene on the person of his mother and set her on fire. Even if evidence of child witness is excluded from consideration we have other evidence on record. PW-6-Shri Gadamode, who is Investigating Officer and PSI from Daryapur Police Station, had also recorded statement of Bharti, after he obtained certificate from Dr.Bhattad that Bharti was fit to give her statement. Thus, PW-6 Shri Gadamode deposed that he had recorded statement of Bharti as per Exh.24 and Bharti had stated before him that when she asked her husband to bring medicines and on that count her husband beat her and thereafter brought kerosene can and poured on her person, lightened the match stick and set her on fire. Dr.Bhattad was also examined by the prosecution as PW-7 and it has come in his evidence that Bharti was admitted in his hospital with 52% burn injuries on frontal side of the body namely neck, chest, upper limbs both sides as also on back side portion namely neck, backbone, upper limbs anteriorly and posterior lower limbs both sides and those injuries were life ::: Downloaded on - 09/06/2013 14:57:23 ::: (9) threaten. Dr.Bhattad issued certificate as per Exh.33 with diagram of burnt portion. Thus, Bharti was found with deep burns of 52%, which were life threatening.
7. Learned Advocate for the appellant contended that it was actually appellant (convict), who have taken Bharti to hospital of Dr.Bhattad and appellant had also paid bills. Learned Advocate for the appellant contended that these may be considered as mitigating factors. According to the learned Advocate for the appellant, considering the circumstances as Bharti had quarreled with her husband, he got angered and did the act in a fit of anger must be considered as a factors to mitigate his penal liability to Sec.308 of Indian Penal Code and, therefore, appellant be sentenced to imprisonment as already undergone. However, learned APP contended that the trial Court had rightly arrived at the conclusion of guilt under Sec. 307 of Indian Penal Code and had considered all the circumstances the sentence of imprisonment of five years and fine of Rs.2,000/-. The legal position in such cases of wife burning or attempt of wife burning may be considered with reference to relevant provisions in this regard. Section 308 of Indian Penal Code, which learned Advocate for the appellant (convict) pointed out is as follows -
Sec.308 :- It is true that if it is a case of grave and sudden provocation and ::: Downloaded on - 09/06/2013 14:57:23 ::: ( 10 ) accused under such circumstances do something instant act such as firing bullet at victim, then he may be guilty of attempting culpable homicide not amounting to murder attracting Sec.308 in such case, because if it act is done with intention or knowledge and under such circumstances that if it causes death, the act would amount to culpable homicide not amounting to murder. The question as to whether pouring of kerosene on the person of wife and setting her on fire, under the circumstances when she was asking her husband to bring medicines or while he demanded mangalsutra, she refused to hand it over. Under these circumstances, as appearing on the basis of evidence led in this case and act of pouring kerosene from the can, lighting a match stick, throwing it on the person of his wife, were such acts which had the appellant caused death of his wife it would have attracted clause fourhtly of Sec.300 of Indian Penal Code Sec.300 :- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such ::: Downloaded on - 09/06/2013 14:57:23 ::: ( 11 ) bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
8. Thus, offender in such case, who pours kerosene on the body of his wife, lighting match stick and set her on fire cannot be permitted to say that he had excuse for causing burn injuries to her likely to cause death, such act is imminently dangerous and in all probability it can result into death or such bodily injury as is likely to cause death. No such offender can be allowed to plead that he did not know that by pouring kerosene on the person of his wife, he was not likely to cause her death.
In the ruling of Urgen Sherpa -vs- State of Sikkim reported in 1985, Cri.L.J. 1988 it is observed that -
"Thus it is proved that the appellant set his wife Pema Sherpani on fire by hurling a burning lamp on her, since the latter had come home late and on being incensed by the remarks of his mother that she had gone in search of another husband. It is also proved that neither the appellant nor his mother tried to give any aid to the victim after she suffered the burn injuries. This proves beyond reasonable doubt that the act of burning, by which the death was caused, was done with the intention of causing her death or at least the appellant knew that the act was so imminently dangerous that it must in all probability have caused the death or such bodily injuries, as were likely to cause the death. Thus, the case is covered under the fourth clause of S.300 IPC not under the second clause of S.304 IPC."::: Downloaded on - 09/06/2013 14:57:23 :::
( 12 ) Taking cue from observations made in para 14 of this ruling, as also observations made in the ruling of Kailash Kaur -vs- State of Punjab, reported in 1987 Supreme Court 1368 that -
"The Apex Court was considering the evidence of victim in her dying declaration that accused in that case poured kerosene oil over body of the victim and set her on fire. The Apex Court observed that whenever such cases come before the Court and the offence is brought home to the accused beyond reasonable doubt, it is the duty of the Court to deal with it in most severe and strict manner and award the maximum penalty prescribed by the law in order that it may operate as a deterrent to other persons from committing such antisocial crimes."
It must be concluded that offences of wife burning or attempts to do so attract severe punishment.
9) Thus, looking to the nature of crime as also principle of sentencing in respect of such crime, it is clear that Sec.307 of IPC was correctly applied by the trial Court while convicting the appellant/accused.
The submission that such crime may be punishable under minor or for less aggravated offence under Sec.308 of IPC on the ground that it is an attempt to commit culpable homicide cannot be accepted in the facts and circumstances of the case. The learned Advocate for the appellant submitted that the appellant has two sons of 15 years, one of them was residing with him and prayed for reduction of the sentence, which is already ::: Downloaded on - 09/06/2013 14:57:23 ::: ( 13 ) undergone. Such prayer also cannot be accepted in the facts and circumstances of the case as deterrent sentence in such case is desired. As observed by the Apex Court in the ruling of Kailash Kaur-vs-State of Punjab, that in such case the Court should deal with most severe and strict manner and award maximum penalty. Therefore, it must be concluded that the conviction in Sec.307 of IPC is well founded and the sentence was appropriate in the facts and circumstances of the case. Therefore, the trial Court rightly convicted the appellant and the conviction and sentence do not warrant any interference. Therefore, the appeal has to be dismissed, as it lacks merits. Appeal is dismissed.
JUDGE Khunte ::: Downloaded on - 09/06/2013 14:57:23 :::