Dismissed

Navnath Machindra Kandhare v. State of Maharashtra

Bombay HC13 Jul 2005APEAL/798/1997

Case brief

AI extract

What is this about?

Appeal against conviction for murder (Section 302) and cruelty (Section 498A IPC) arising from wife's death by fire. High Court held prosecution proved guilt via three consistent dying declarations despite lack of eyewitnesses, distinguishing earlier acquittal. Appeal dismissed; sentence affirmed.

What did the court decide?

Appeal dismissed; appellant to surrender to Sessions Judge to serve remainder of sentence.

Navnath Machindra Kandhare Vs State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2005)

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	IN THE HIGH	COURT	OF	JUDICATURE AT	BOBBY
	APPELLATE			SIDE JUR	ISDICTION
	CRIMINAL	APPE	AL	NO.798 OF	1997
Shri	Navnath	Ma	chindra	Kandhare	)
Age	35 years,		Oc	c. Nil,	resident)
of Narkhed,	Taluka Mohol,			)
District - So	lapur.			) ...Appellant.
	V/s
State of Ma ---	harashtra			) ...Respondent.
Mr.	N.J. Patil,	advo	cate	for the	appellant.
Mr. ---	V.R. Bhonsale,		APP	for the	State.
	CORAM:	R.C.	V.G.	PALSHIKAR CHAVAN,	& JJ.
	DATE	:		13TH JULY,	2005
ORAL	JUDGMENT:	(Per		R.C. Chavan,	J.)
1.	Being aggrieved	by	his	conviction for	offences
punishable	under sections	302	and	498A of the	Indian
Penal	Code recorded	by	the	learned Additional	Sessions

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Judge, Solapur, and the resultant sentence imposed

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upon him, the appellant has preferred this appeal.

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Facts which led to prosecution of the accused for

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harassment and murder of his wife are as under:-

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3.	Co	mplainant	Changd	eo’s	daughte	r R	ajabai	was
married	to	accused	about	11	years	prior	to	the
incident	and	the	couple		was bles	sed	with	three
children.	T	he ac	cused	was,	however,	in	habit	of

¶8

			2
consuming	liquor	and	used		to	ill-treat his	wife
suspecting	her	character.		In	spite	of attempt	by
relations,	there	was	no im	prove	ment	in the	behaviour
of the	accused.		This	led	the	appellant’s wife	to
leave for	her	parental	home,	a	few	days before	the
incident.	Howev	er,	just	a	day	before the	incident,

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she returned to her matrimonial home when her son came

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with message of his grand-father.

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4.	On	28/12/1996, the deceased had	gone	to fore	st to
collect fire	wo	od and returned at about	5.00	p.m.	She
was	waiting	for her husband, after	prepari	ng food	for
children.		The appellant returned at	8.30	p.m.	under
the inf	luence	of liquor and questioned	as to	why	she
had gone	to	forest without his permiss	ion.	He	started
beating	her	and then poured a bottle	of	kerosene	on
her person	and	set her on fire. She	raised	a cry	, ran
out of	the	house and rolled over	the	ground	to
extinguish	the	fire. Her relations	took	her	to
government	hospi	tal at Mohol where she	was	given	first
aid and		then shifted to civil hospit	al	at	Solapur.
While	under	treatment at civil hos	pital	at	Solapur,
she stat	ed	about the cause of her bur	ns, no	t only	to
Medical	Office	r but also to the Head	C	onstable	and
Special	Exec	utive Magistrate. An	o	ffence	was
registered	an	d investigation commenced.		The	victim
succumbed	to	her injuries. After	inquest,	her	body

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was sent for post-mortem examination. On completion of investigation, charge-sheet was sent to the learned Judicial Magistrate, First Class, Mohol who committed the case to the Court of Sessions at Solapur.

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The learned Additional Sessions Judge, Solapur, charged the accused of offences punishable under sections 498A and 302 of the Indian Penal Code. The

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accused pleaded not guilty and hence was put to trial.

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6.	In its at	tempt	to	bring	home	the guilt of	the
accused,	prosecution exa	mined	i	n all	8	witnesses.	The
accused	too was	exa	mined	under	secti	on 313 of	the
Criminal	Procedure	Code		and	upon	consideration	of
prosecution	evidence,	i	n	light	of	arguments ad	vanced,
the lea	rned Additional	Ses	sions	Judge	c	ame to hold	the
accused	guilty of	both		the o	ffences	punishable	under
sections	302 and	498A	of	the I	ndian	Penal Code	and
proceeded	to senten	ce	him	to	suffer	imprisonment	for
life	and R.I.	for	one	year	respe	ctively with fine	of

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Rs 5000/- or, in default, further R.I. for one month.

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Aggrieved thereby, accused has appealed.

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7.	We	have he	ard the	lea	rned	counsel	for	the
appellant	as	also	the	lea	rned	Additi	onal	Public
Prosecutor.		There	is no	dispute	about	the	fact	that
the	victim	met with	her dea	th on	account	of	82%	burn

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injuries	as	mentio	ned	in	the notes	o	f post-	mortem
examination	at	Exh	ibit-9	and	the	cause	of	death
certified	at	Exhibit-	8.	The	question	is	how	the
victim	sustained	these		burns.	There	is,	obviously,	no
eye	witness	to	the	incident.	The	case	depends	upon

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the account of the incident given by the victim herself.

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8.	The	defence	of the	accus	ed i	s tha	t the	vict	im	gave
such	accou	nt	to the	authori	ties	on	being	tutored		by
her	father	and,	therefore,	the	accou	nt wa	s no	t to		be
believed.		It	seems	that,	acco	rding	to	the	a	ppellant,
the	victim	had	set herself	on	fire	when	he	was	n	ot at
home.	T	his	can be	found	from	his	sta	tement		under
section	313	of	Cr.P.C.	at	Exhibi	t-42.	It	is		indeed
surprising		that	the accused	sh	ould	be	able	to	tel	l as
to ho	w	the	victim su	stained	injur	ies	when	he		was
himself	not	at	home.	In	that	case,	it	wo	uld	be
enigmatic	as	to	what	prov	oked	the	victim		to	set
herself	on	fire	to put	an	end	to	her	life.		The
explanation		sought	to	be	furnish	ed by		the		accused
itself	casts	a	shadow of	doubt	on	his	versio	n of		the
incident.		We	are, how	ever,	alive	to	the		req	uirement
of	the	cann	ons of c	riminal	law	that	the		pro	secution
must	prove	its	case on	its	own	m	erits	and		cannot
depend	on	weak	ness of		the	defe	nce.		T	herefore,
disregarding		this	curious	state	ment	of	the	accu	sed	at

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Exhibit-42, we would proceed to examine the evidence

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tendered before the trial court.

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9.	In this	case,	prosecution examined	one	Somraj
Mangalpalli	-	P.W.1 at	Exhibit-16. He is	a	Special
Executive	Magistr	ate and	he is in gov	ernment	service.
He s	tates that	on	the midnight of 2	8/12/1996,	he
received	requisitio	n from	police for recordi	ng	dying
declaration	of	the	victim vide	Ex	hibit-17.
Accordingly	, he we	nt to	the hospital and	contacted	Dr.
Devulkar	who was	in-charge	of the concerned	Ward.	The
doctor	made an	endors	ement that the	victim	was
conscious	and he	could	record the statement	of	victim.
He	then recorde	d the	statement of the vict	im and	took
her	thumb	impression	thereon. Aft	er co	mpleting
recording	of	dying	declaration, the w	itness	again
requested	doctor to	certify	that the victim	was fit	to
make	statement.	Acc	ordingly, doctor certified.		The
dying	declaration	at	Exhibit-18 proved by	P.W.1	-
Somraj	categorica	lly stat	es that, at about	8.30	p.m.,
the vic	tim’s husban	d had	poured kerosene on	her	person
and	set her	on fire.	She had catego	rically	stated
that	she had	a compl	aint against her husb	and.	She
said that	her husb	and used	to drink and beat	her u	p on

¶28

suspicion about her. She stated that her husband

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tried to take her life.

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				6
10.	It	may be	seen	that P.W.2 -	Dr. Gur	alwar	was on
casualty	duty	when	on	28/12/1996,	at about	11.05	p.m.,
the	victim	was	broug	ht to the	hospital	and	gave
history	of	homicidal	bu	rns. Dr.	Guralwar	had	proved
case-paper		at E	xhibit-20	. The	entire me	dical	case
record of th	e victim	repeatedly show	s that th	e history
of homicida	l burns g	iven by victim	was duly	recorded.

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11. P.W. 2	- Dr. Guralwar also stat	ed that		the
Magistrate arrived a	t Casualty Ward and	inquired		with
him (and not Dr.	Devulkar, as stated by P.	W.	1	-
Somraj, possibly er	roneously) about the c	ondition		of
patient. He examined	the patient and found	her	fit	to
make statement and	made an endorsement	to that		effect
on Exhibit-18.	He further stated that,	again,		when
the police sought	to record the statement	of		victim
vide Exhibit-21, he	examined the patient	and		gave
certificate about patient	being fit to	make	sta	tement.
It may be seen	that the victim had been	admitted		to
hospital on 28/12/1996	and was pronounced	dead at		2.10
a.m. on 31/12/1996.	Thus, there is	nothing	u	nnatural
about the patient’s	being well oriented and	fit		to
make statement on	29/12/1996. A small	discrepan	cy	as
to whether the patie	nt was in Intensive Car	e Ward		or
not in the evidence	of P.W. 1 Somraj and	P.W.	2	-
Dr.Guralwar is irrele	vant as what may seem	to a		lay
man as an Intensive	Care Ward, may not be	so for		the

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Guralwar

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doctor on duty. Cross-examination of Dr.

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does not create any doubt about his word that he examined the victim and gave necessary certificates.

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12.	Th	e dyi	ng declaration	at	Exhibit-21	which	too
bears	endorse	ment of	P.W.2	-	Dr.	Guralwar	was
recorded	by	P.W.	5 -	Head	Constable	Baswant	Patil.
He	stated	that	on receipt	of	direction	from	Station
House	Offic	er, he	went to		Casualty	Section,	made
necessary		inquiries	with Dr.		Guralwar	about	fitness
of	the	patient	to m	ake	statement	and	recorded
statement.		Then,	he sent	Police	Constable	to	call
Special		Executive	Magistrate.		His	cross	-examination
too	does	not	disclose any	reason	to	disbelieve	the
veracity	of	the	statement recor	ded b	y him.	He	has
stated	that	he	had taken	due	care	while	recording
statement	of	the	victim.	The	victim	had	categorically
stated	that	on	the date of	inci	dent, at	about	8.30
p.m.,	her	husband	came drunk,	asked	her as	to	why she

¶37

had gone to forest without his permission, took out Rockel Can, sprinkled rockel on her person and set her on fire.

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13.	There	is	yet	another	dying	declaration	recorded
by P.W.8	-	API	Mane	after	having	the victim	examined
by Dr.	Jadha	v -	P.W	. 6.	This	was	recorded on
29/12/1996	at	about	10.30	p.m.,	i.e.	almost	24 hours

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after t	he inc	ident.	T	his too	seems to	have	been
recorded	after	tak	ing	due	care.	This	dying
declaration	is	at	Exhi	bit-33.	Here too,	victim	has
given	same	account	but	has	only clarified	that in	her
previous	dyin	g dec	laration	she	has menti	oned that	her
husband	had	sprinkled	ke	rosene	from a	Can.	She
corrected	it to	"spr	inkled	kerose	ne from	bottle".	She
clarified	that	she	had	referred	to "Can"	because	she

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was in a puzzled state of mind when her first

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statement was recorded.

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14.	The	le	arned	Counsel for	appellant won	dered	why
the	three	dying	declar	ations have	been recorded	.	It
was	also	alleged	that	whatever	is stated in	the	dying
declaration	was	the	resu	lt of	the victim	being	tutored
by her	parents.		The	cause for	tutoring was	said	to be
failure	of	the	accused	to refund	a sum of	Rs	5000/-
borrowed	by	him	fr	om fat	her-in-law.	This	seems
incredible.	F	or	non-pay	ment of	small sum	of	Rs
5000/-,	a	father	wou	ld not pro	voke his	daughter	to

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make a false statement indicating involvement of her

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husband, when the couple have three children.

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15.	The	victi	m’s	father	Chang	deo	was	e	xamined	as
P.W.3.	He	too	stated	that	on	lear	ning	of	the	incident
from	relatives,	he	reached	ho	spital	at	M	ohol	and,	from
there,	accom	panied	his	daught	er t	o	civil	ho	spital	at

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Solapur. He too	stated	that	his	daughter had	informed
him that her hu	sband	set her		on fire, e	xpressing
suspicion about her.	P.W.	3	-	Changdeo had	plainly
admitted in his	cross-	examination		that the	accused
had, indeed, borrowed	R	s 5	000/	- from him	for
improvement in his	lan	d and	had	not refunded	that
amount but denied	that	there wa	s	a quarrel on	that
count. Had the	victim	’s fathe	r	desired to make	false
accusations, he would	ha	ve deni	ed	the story abou	t his
having lent a sum of	Rs	5000/-	to	his son-in-law.	The
plainness with which	P.W.3	- C	hang	deo stated about	his
advancing a small	su	m to		his son-in-law	for

¶49

improvement of land of accused, itself lends ring of truth to the story deposed to by him.

¶50

The learned Counsel for the appellant questioned as to how three dying declarations came to be recorded. The explanation is not far to seek. It is obvious that when informed of a critically injured victim being in the hospital, Police Officer on duty was bound to first elicit from the victim the circumstances in which she sustained those injuries. He could not have predicted as to how long the victim would continue to be in a position to make a statement and, therefore, he could not have taken risk of silently waiting for the arrival of Special Executive Magistrate. As for the third dying declaration

¶51

	10
recorded	by P.W.8 - A.P.I. More, it seems		that it
became	necessary to explain the fact that	the	victim
was	sprinkled with kerosene not from a Can	but	from a
bottle	as could be seen from panchnama of	spot	drawn
up	on 29/12/1996 in presence of P.W.4 -	Raut	at about
15.15	hours. Here, a bottle containing	small	quantity
of	kerosene was found and not a Can. O	bviously	, the
Investigati	ng Officer felt that a clarificati	on	from
the	victim was necessary. Therefore, there	is	nothing
incredible	or unnatural in having three	statem	ents of
the	victim. All the statements are cohesive	and	all
indicate co	mplicity of the accused in the ghastly act.
17.	In these circumstances, hostility o	f	neighbour
P.W. 7 -	Tatya Karpe, who has been won over, is

¶52

irrelevant and can be ignored.

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18.	The learned C	ounsel	for	the	appellant s	ubmitted
that the	learned trial	judge		was	in error	in
convicting	the appellant	of	offen	ce	punishable	under
section	498A of the	Indian	Penal	Code	since the	death
had not	occurred within	seven	years	of	marriage.	This
contention	is raised on	the	incor	rect	premise that	the
offence	under section	498A	can	be	committed	only
within	seven years of	m	arriage.		The offence	of
cruelty	under section	498A	of	I.P.C.	is	neither
restricted	by the length	of	time	since	marriage nor	is

¶54

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it	restricted	to	demand of	dowry.	In	the	instant
case,	ill-treatment		meted out	to	the	victim	had
culminat	ed in		her death.	Therefore,	we	see	nothing
wrong	in	the	conviction	for an	offe	nce	punishable
under se	ction 498A I.P.C.	reco	rded by the learned
Addition	al Sessions Judge.

¶56

19.	The lear	ned Counsel for	the appellant relied	on a
decision	of ou	r High Court in	the case of Shri	Gautam
Damaji	Nagrale	Vs. The	State of Maharashtra	reported
in	2000 ALL	MR (Cri) 485.	He submitted that, i	n the
said	case, just	like the case	at hand, the	prosecution
was	solely depe	ndent on dying	declaration. He	pointed
out	that even,	in that case,	the accused had	sustained
burn	injuries.	According	to the learned	Counsel,
therefore,	just as	in that case	the High Court	had set
aside	conviction	and allowed	the appeal, this	appeal
ought	to be	allowed. We a	re afraid that the	learned
Counsel	for	the appellant has	chosen to pick	out only
those	similarities	which are favour	able to him.	It is
true	that in	the present case	too, the accused	had
claimed	that	his hands	sustained injuries	while
extinguis	hing fire.	Since the	injuries do not	carry a
time tag, victim wa	they could as well s set on fire.	have been caused when
20.	One	of the observations	by the Bench	deciding

¶57

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Gautam	Nagrale	’s	case	was	t	hat	the	In	vestigating
Officer	had	not	taken	proper	care	to	coll	ect	medical
case	record	from	the	hospital.		In	this	case,	entire
medical	case	record	is	before	the	C	ourt.	Furth	er, in
the	case at	hand,	the	victim	had	not	once	but	thrice
stated	that	her	husband	had	set	her	on	fire	, in
addition	to	so	stating	before	the	Me	dical	Officer	at
the	time of	her	admiss	ion.	It	is	difficult	to	brand

¶59

this consistent version as tutored replication of a

¶60

story conveyed by her parents.

¶61

21.	Courts	have to record reasons	for	the c	onclusions
which	they	draw from the material	placed	before	them.
In	criminal	cases, where conclusions	are	mostly	based
on a	ppreciation	of evidence restricted	to	question	s of
fact,	previous	judgments of Courts	o	f	coordinate
jurisdiction		could be of little use.	T	hese	judgments
would	only	point to what judges felt	on the	basis	of
testimony	app	raised by them. Thes	e obser	vations	do
not	pertain	to interpretation or expos	ition	of	any
provision	of	law and, therefore, do	not	create	any
binding	pre	cedent. Therefore, merely	because	a	Bench
of	this Co	urt had proceeded to acquit	the	accused	in
another	case	of burning of wife	based	on	dying

¶62

declaration, it does not follow that this Court too

¶63

should take the same course.

¶64

¶65

22. The learned C	ou	nsel fo	r appe	ll	ant	came	with
specious argument that th	e	vic	tim her	se	lf	had	repeated
her father’s demand for re	fu	nd of	Rs	50	00/-.	This	led
to the quarrel. Pr	ov	ocation	was	th	us	offered	by
victim and hence the	ca	se may	fall in		one	of	the
clauses of section 304		of th	e Indi	an		Penal	Code!
Comments on this	c	ontention	are	r	eally	unn	ecessary.
Yet, we may observe that		such	a defenc	e	has	not	been
taken before the trial	c	ourt.	The ac	c	used	has	not
said that he was prov	ok	ed into	putting		his	wife	on
fire. We are however		sure	that had		such	defence	been
taken before the trial	co	urt, it	would		have	been	yet

¶66

one more ground for handing down conviction of the

¶67

appellant under section 302 of the Indian Penal Code.

¶68

In the result, on reappreciation of the entire evidence, we see absolutely no reason to differ with the conclusions drawn by the learned trial judge. Not only did the prosecution prove that the appellant harassed his wife and subjected her to cruelty by expressing suspicion about her and ill-treating her in

¶69

drunken state over a period of time, but also,

¶70

ultimately, set her on fire, resulting in her death.

¶71

24.	The	appeal,	there	fore,	fails	and	is	dismissed.
The	appellant	shall sur	render	to	his	bail	before	the
learned	Sessions	Judge		who	shall		take	appropriate

¶72

¶73

steps to commit the accused to prison to serve out

¶74

rest of the sentence.

¶75

(V.G. PALSHIKAR, J.)

¶76

(R.C. CHAVAN, J. )

Navnath Machindra Kandhare v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Navnath Machindra Kandhare v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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