SANTOSH S/O SHANKAR PAWAR Vs STATE OF MAHARASHTRA
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: Crl.A. No.-000683-000683 / 2015
Diary number: 14699 / 2013
Advocates: SHASHI BHUSHAN KUMAR Vs
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REPORTABLE
IN THE SUPREME COUT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 683 OF 2015 (Arising out of S.L.P. (Crl.) No.5741/2013)
SANTOSH s/o SHANKAR PAWAR …Appellant
Versus
STATE OF MAHARASHTRA ..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment of the
Nagpur Bench of the Bombay High Court passed in
Criminal Appeal No.343 of 2006 dated 2.2.2012 affirming
the conviction of the appellant under Section 302 IPC and
the sentence of life imprisonment imposed on him by the
5th Addl. Sessions Judge, Akola.
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3. Briefly stated, case of prosecution is that the
marriage of the appellant Santosh Pawar and deceased
Saraswatibai was solemnized on 17.6.2005. Due to
poverty, the deceased alongwith the accused was residing
adjacent to her parental house situated at Ramji Nagar
Boragonmanju in a rented house of one Kankale, since
one month prior to the incident. The appellant and the
deceased were earning their livelihood by doing daily
wages work. On 4.9.2005 at about 6.00 A.M., the
deceased Saraswatibai went to answer nature’s call and
on her return, the deceased was questioned by the
appellant as to why she returned late and the accused
suspected her fidelity. Inspite of deceased trying to
convince the appellant, the appellant started assaulting
her with fists and kicks. The appellant poured kerosene
from a nearby lamp and set her ablaze. Saree of the
deceased caught fire and the deceased ran towards the
accused in an attempt to catch him, thereby burning the
hands of the accused. When deceased started screaming
for help, the appellant, in order to save her, poured water
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on the deceased. In the meanwhile, the neighbours and
the parents of the deceased gathered and the deceased
was taken to the hospital. On the way to the hospital, the
deceased narrated the incident to her mother Gangabai-
PW2 and sister-in-law-Sindhu Sunil Ingole (PW3) and also
to neighbour Raju Janrao Gavai -PW1. On receipt of
information about the occurrence, Sub Inspector of Police-
Digmber Ramrao Ravrale (PW9) went to the Government
Hospital and he verified the condition of the deceased
through the Medical Officer. PW9 then recorded the
statement of deceased-Ex.24, on the basis of which FIR
was registered for the offence under Section 307 IPC. On
requisition, PW7-the then Executive Magistrate, went to
the hospital and satisfied himself about the fit mental
condition of the deceased through Dr. Vijaya Madhuarrao
Pawanikar-PW6 and thereafter PW7 recorded the dying
declaration of deceased Saraswatibai. Saraswatibai
succumbed to burn injuries on 12.09.2005. On the death
of Saraswatibai, the FIR was altered to Section 302 IPC.
Dr. Satish Udaybhanu Padhan-PW8 conducted autopsy on
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the body of deceased Saraswatibai and issued Ex.22-Post
Mortem certificate. PW8 opined that the deceased died
due to shock and septicaemia caused by 60% burn
injuries. Inquest was held and on completion and further
investigation, chargesheet was filed against the appellant
under Section 302 IPC.
4. To bring home the guilt of the accused, in the trial
court prosecution examined ten witnesses and exhibited
documents and material objects. The appellant was
questioned under Section 313 Cr.P.C. about the
incriminating evidence and circumstances and the
appellant denied all of them. The appellant pleaded that
the fire was accidental and during his questioning under
Section 313 Cr.P.C., he filed Ex.34-his statement of
defence. Upon consideration of the evidence, trial court
held that the guilt of the accused is proved beyond
reasonable doubt and convicted the appellant under
Section 302 IPC and sentenced him to undergo life
imprisonment and imposed a fine of Rs.1000/- with default
clause to suffer rigorous imprisonment for two months.
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Aggrieved by the same, appellant preferred appeal before
the High Court of Bombay and the said appeal was
dismissed confirming the conviction and sentence. The
present appeal assails the correctness of the judgment
passed by the High Court.
5. In the SLP, notice was issued, only limited to the
nature of offence.
6. Drawing our attention to the supplementary
statement-Ex.34 of the accused, learned counsel for the
appellant contended that on the date of incident, the
appellant went out to answer nature’s call and when he
returned, he saw his wife coming out of the house ablaze
and the appellant immediately rushed and tried to
extinguish the fire due to which his hands also got burnt
and the courts below did not properly appreciate the
evidence and the statement of the accused. It was further
submitted that in any event, there was no pre-meditation
and there was no intention on the part of the appellant to
kill his wife and the facts and circumstances show that the
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appellant could not have intended to cause the death of
deceased.
7. Learned counsel for the respondent reiterated
findings of the courts below and submitted that the act of
pouring kerosene and throwing the lighted matchstick on
the deceased to set her ablaze would clearly prove that
the accused intended to cause death and courts below
rightly convicted the appellant under Section 302 IPC.
8. Insofar as the first contention that the appellant is
not responsible for the death of deceased Saraswatibai,
defence made an attempt to contend that the fire was
accidental and that the appellant tried to extinguish the
fire in order to save her and in that process, he also
suffered burn injuries. Prosecution has adduced cogent
evidence to prove that the appellant has caused the death
of deceased- Saraswatibai. Accused suspected the
deceased of infidelity and picking up a fight over it, he
kicked her and inflicted fist blows and further set her on
fire by pouring kerosene over her person. PW-6 Doctor
certified that the deceased was in a fit mental condition to
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make statement and PW7–Executive Magistrate recorded
the dying declaration-Ex.1. In the said dying declaration,
the deceased had categorically stated that on the date of
incident, the appellant poured kerosene over her person
and set her on fire. That accused poured kerosene on the
deceased and set her on fire is corroborated by the oral
testimony of PW3–Sindhu Sunil Ingole (sister-in-law) of the
deceased. PW1-Raju Janrao Gavai, neighbour of the
deceased who accompanied the deceased to the hospital
to whom the deceased is said to have made a statement
about the overt act of the accused, had only stated that
the deceased told him that the accused beat her and also
kicked her. PW1 had not supported the statement of
deceased in the dying declaration that the accused
poured kerosene on her and set her on fire. However, the
prosecution has established the guilt of the accused by
Ex.1–dying declaration and the oral evidence of mother
(PW2) and sister-in-law (PW3) and the same cannot be
doubted.
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9. Learned counsel for the appellant contended that
there was no pre-meditation and the appellant had poured
kerosene from the lamp nearby and thereafter the
appellant attempted to extinguish the fire by pouring
water on her and himself getting burn injuries in the
process. It was submitted that the conduct of the
appellant in trying to extinguish the fire immediately after
the incident would clearly show that there was no
intention on the part of the appellant to commit the
murder. In support of his contention, he placed reliance on
the judgment of this Court in Kalu Ram vs. State of
Rajasthan, (2000) 10 SCC 324.
10. The question falling for consideration is whether
the act of the accused pouring water would mitigate the
offence of murder. Where the intention to kill is present,
the act amounts to murder, where such an intention is
absent, the act amounts to culpable homicide not
amounting to murder. To determine whether the offender
had the intention or not, each case must be decided on its
facts and circumstances. From the facts and
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circumstances of the instant case, it is evident that: (i)
there was a homicide, namely the death of Saraswatibai;
(ii) the deceased was set ablaze by the appellant and this
act was not accidental or unintentional; (iii) the post
mortem certificate revealed that deceased died due to
shock and septicaemia caused by 60% burn injuries.
When the accused poured kerosene on the deceased from
the kerosene lamp and also threw the lighted matchstick
on the deceased to set her on fire, he must have intended
to cause the death of the deceased. As seen from the
evidence of PW5–Panch Witness, in the house of the
appellant kerosene lamp was prepared in an empty liquor
bottle. Whether the kerosene is poured from the
kerosene lamp or from the can is of no consequence.
When there is clear evidence as to the act of the accused
to set the deceased on fire, absence of pre-meditation will
not reduce the offence of murder to culpable homicide
not amounting to murder. Likewise, pouring of water will
not mitigate the gravity of the offence.
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11. After attending to nature’s call, the deceased
returned to the house a little late. The accused
questioned her as to why she was coming late and he also
suspected her fidelity. There was no provocation for the
accused to pour kerosene and set her on fire. Act of
pouring kerosene, though in a spur of moment, the same
was followed by lighting a match stick and throwing it on
the deceased and thereby setting her ablaze. Both the
acts are intimately connected with each other and
resulted in causing the death of the deceased and the act
of the accused is punishable for murder.
12. Even assuming that the accused had no intention
to cause the death of the deceased, act of the accused
falls under clause (iv) of Section 300 IPC that is the act of
causing injury so imminently dangerous where it will in all
probability cause death. Any person of average
intelligence would have the knowledge that pouring of
kerosene and setting her on fire by throwing a lighted
matchstick is so imminently dangerous that in all
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probability such an act would cause injuries causing
death.
13. Insofar as the conduct of the accused in
attempting to extinguish fire, placing reliance upon the
judgment of this Court in Kalu Ram’s case (supra), it was
contended that such conduct of the accused would bring
down the offence from murder to culpable homicide not
amounting to murder. In Kalu Ram’s case (supra), the
accused was having two wives. The accused in a highly
inebriated condition asked his wife to part with her
ornaments so that he could purchase more liquor, which
led to an altercation when the wife refused to do as
demanded. Infuriated by the fact that his wife had failed
to concede to his demands, the accused poured kerosene
on her and gave her a matchbox to set herself on fire. On
her failure to light the matchstick, the accused set her
ablaze. But when he realized that the fire was flaring up,
he threw water on her person in a desperate bid to save
her. In such facts and circumstances, this Court held that
the accused would not have intended to inflict the injuries
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which she sustained on account of act of the accused and
the conviction was altered from Section 302 IPC to Section
304 Part II IPC.
14. The decision in Kalu Ram’s case cannot be applied
in the instant case. The element of inebriation ought to
be taken into consideration as it considerably alters the
power of thinking. In the instant case, the accused was in
his complete senses, knowing fully well the consequences
of his act. The subsequent act of pouring water by the
accused on the deceased also appears to be an attempt to
cloak his guilt since he did it only when the deceased
screamed for help. Therefore, it cannot be considered as a
mitigating factor. An act undertaken by a person in full
awareness, knowing its consequences cannot be treated
at par with an act committed by a person in a highly
inebriated condition where his faculty of reason becomes
blurred.
15. Within three months of her marriage, the
deceased died of burn injuries. In bride burning cases,
whenever the guilt of the accused is brought home
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beyond reasonable doubt, it is the duty of the Court to
deal with it sternly and award the maximum penalty
prescribed by the law in order that it may operate as a
deterrence to other persons from committing such
offence.
16. This Court on various occasions has stressed the
need for vigilance in cases where a woman dies of burn
injuries within a short span of her marriage and that stern
view needs to be adopted in all such cases. In Satya
Narayan Tiwari & Anr. vs. State of Uttar Pradesh,
(2010) 13 SCC 689, this Court in paragraphs (3) and (9)
has held as under:-
“3. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become—this is illustrated by this case.
9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much
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money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.”
17. Upon analysis of the evidence adduced by the
prosecution, courts below recorded concurrent findings
that the accused caused the death of deceased
Saraswatibai and convicted the appellant. It is well
settled that concurrent findings of fact cannot be
interfered with unless the findings are perverse and
unsupportable from the evidence on record. This view
has been reiterated in Dhananjay Shanker Shetty vs.
State of Maharashtra, (2002) 6 SCC 596. In the totality of
the facts and circumstances, in our view, the concurrent
findings of facts recorded by the courts below are based
on evidence and we see no infirmity in the impugned
judgment warranting interference.
18. In the result, the appeal fails and is dismissed.
……………………….J. (T.S. Thakur)
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……………………….J. (Adarsh Kumar Goel)
….…………………….J. (R. Banumathi)
New Delhi; April 21, 2015
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