Partly allowed

Vinayak Arjun Satpute v. the State of Maharashtra

Bombay HC12 Aug 2013APEAL/481/2010

Case brief

AI extract

What is this about?

<j>The appellant challenged his conviction for murdering his wife and life imprisonment. The High Court upheld the conviction but distinguished murder from culpable homicide, considering the appellant did not flee the scene. It reduced the sentence to seven years rigorous imprisonment under IPC Section 304 Part II.

What did the court decide?

<j>The conviction under Murder was converted to Culpable Homicide and the sentence reduced from life imprisonment to seven years rigorous imprisonment.

Vinayak Arjun Satpute Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

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APEAL481_2010

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vidya

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 481 of 2010

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Vinayak Arjun Satpute Age: 25 years, Sangli ves, Chambhar Galli, Tal. Miraj, District Sangli (Presently lodged in Kolhapur Central Prison, Kolhapur) ... Appellant vs. The State of Maharashtra ... Respondent

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Smt. Sarojini Upadhyay, Advocate appointed for the appellant. Mrs. V.R. Bhonsale, APP for the State.

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CORAM: MRS. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ.

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AUGUST 12 , 2013.

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ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)

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The appellant is convicted for committing the offence of murder of

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his wife Smita on 28^th February, 2009 and is punished under section 302 of

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IPC for life imprisonment and fine.

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Deceased Smita was the wife of the appellant and was residing at

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Village Talang, Taluka Miraj, District Sangli. Out of the wedlock, they

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had one small daughter. The appellant used to earn his livelihood by

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working as a cobbler and deceased Smita used to sell vegetables along with her mother PW-2 Tulsabai Bhima Kamble. The appellant and his mother Kamal Arjun Satpute used to abuse and beat Smita on small issues. The appellant was always suspicious about the character of his wife. Smita used to complain about her husband/appellant and mother-in-law to her mother. On 28^th February, 2009, the appellant poured kerosene on Smita and set her on fire. She was taken to the Civil hospital by the appellant and her mother-in-law. Her statement was recorded by Special Executive Magistrate PW-6 Vishnu Ananda Patil. She made a statement that her husband poured kerosene on her person after quarrel and set her on fire. She made an oral dying declaration to her mother about the incident. She died on 5^th March, 2009. The police registered offence of murder against the appellant and his mother Kamal at C.R. No. 34/2009 of Miraj Police Station. The police drew spot panchnama in the presence of PW-3 Suryankant Tamanna Harale on 28^th February, 2009 at Exhibit 18. The post-mortem was conducted by PW-4 Dr. Vivek Baliram Waghachavare on 6^th March, 2009. The case of death was due to 80% superficial and deep burns. After completion of the investigation, police filed charge in the

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Court of Magistrate and the learned Magistrate committed the case to the Court of Sessions.

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The charge was framed against the appellant and his mother Kamal for the offences punishable under sections 323, 504 and 302 read with 34 of IPC. At the end of the trial, accused no. 2 Kamal (mother-in-law) was acquitted from all the offences. The appellant was acquitted from the offences punishable under sections 323 and 504 of IPC but was held guilty under section 302 of IPC. Hence, this appeal.

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This case is based on two dying declarations - (i) oral dying declaration; and (ii) written dying declaration. The prosecution has proved through the evidence of PW-4 Dr. Vivek Baliram Waghachavare that Smita died on 5^th March, 2009 due to 80% superficial and deep burn injuries. Admittedly, the incident has taken place in the matrimonial house of the appellant.

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The evidence of PW-2, mother of the deceased, is in detail thereby giving a picture of unhappy married life of the deceased. PW-2 Tulsabai,

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mother of the deceased, has stated that her daughter Smita was harassed by her husband and mother-in-law on small issues. As the appellant was not giving money for the household expenses, Smita was working with her in her business of selling vegetables and, in turn, she used to give Smita Rs.30/- daily to run her house. In this way, Smita was taking care of her small daughter Ankita without any financial support from the appellant. PW-2 Tulsabai has stated that the appellant and his mother, on consuming liquor, used to abuse and beat Smita. She has further stated that she was fully aware of the pathetic condition of her daughter, as Smita used to meet her everyday and tell her story.

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PW-2 has stated that on the day of the incident, she was informed by the nephew of the appellant that a quarrel was going on between Smita, her husband and her mother-in-law and was asked to go there. Later on she was informed that Smita was burnt and was admitted in Civil Hospital, Sangli. On hearing this, PW-2 Tulsabai along with her relatives went to Civil Hospital, Sangli. She found that her daughter Smita was lying in a burnt condition. She made enquiry with Smita as to how she was burnt. Smita told that there was quarrel between her and her husband as she demanded money for household expenses. Her husband demanded divorce

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from her, but she refused. Thereafter her husband and mother-in-law again started quarreling. They abused and beat her and then the appellant poured kerosene on her person and set her on fire. Then she was taken to the Civil Hospital. PW-2, mother of deceased Smita has stated that when Smita made a statement, she was fully conscious. Smita studied upto VII Standard. Nothing more is elicited in the cross-examination of PW-2.

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PW-3 panch Suryakant Harale, in whose presence the spot panchnama was drawn on 28^th February, 2009, has deposed that kerosene was found on the floor of the house and its smell was coming from the house. Smita got burnt due to kerosene. This corroborates the dying declaration.

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The learned counsel for the appellant has submitted that this is not a case of homicidal death or murder but it is a suicide. The evidence of prosecution is not sufficient to convict the appellant much less under section 302 of IPC. The learned counsel had relied on evidence of DW-1 Dr. Vrushali Tukaram Gadkar, who has attended Smita on 28^th February, 2009 when she was admitted in Civil Hospital, Miraj. Smita was first

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taken to Civil Hospital, Miraj in burnt condition. Thereafter, she was shifted to Civil Hospital, Sangli. D.W-1 Dr. Vrushali Gadkar has taken down the history of the patient and noted the same, which is marked at Exhibit 56, on her medical case paper wherein history of suicide was given. Hence, the learned counsel submitted that the trial Court has not properly considered the evidence of defence witness. The appellant is entitled to benefit of doubt due to this history of suicidal death.

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The case entirely is based on the dying declaration which is recorded by Special Executive Magistrate and the oral dying declaration made by Smita to her mother. The veracity of these two dying declarations is to be tested on the basis of preliminary circumstances. As discussed earlier, evidence of PW-2, mother of the deceased, has thrown light on the sorrowful plight of the deceased, as the matrimonial relationship between the appellant and deceased was not smooth and she was continuously subjected to harassment. PW-2 Tulsabai used to meet her daughter everyday, so she was fully aware of the quarrels between the deceased and appellant. She has stated that on the date of the incident i.e. 28^th February, 2009, there was a quarrel between the deceased, her husband and her

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mother-in-law and at the end, the appellant poured kerosene on Smita and set her on fire. She was taken to the Civil Hospital. When PW-2 was informed about the incident, she rushed to the hospital and found that her daughter was lying in a burnt condition and was conscious. Smita informed her mother that she was set on fire by her husband by pouring kerosene. We do not find any reason to doubt the evidence of PW-2 so also to doubt the truthfulness of the oral dying declaration of Smita. Nothing much is brought by the defence to destroy the evidence of oral dying declaration of Smita. Whether this oral dying declaration is consistent with the written dying declaration or not can be seen on the basis of evidence of PW-6 Vishnu Patil, Special Executive Magistrate and the written dying declaration Exhibit 25.

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The Special Executive Magistrate has recorded her dying declaration in the afternoon of 28^th February, 2009. He reached the hospital at around 1.45 p.m. on the written request made by Miraj Rural Police. In his presence, the doctor examined Smita and gave endorsement in writing on top of the paper that she is in conscious condition and fit to give statement. At that time, the appellant and mother-in-law were present. So, PW-6 SEM

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asked them to go out and in the presence of doctor, he asked questions to Smita. Smita made elaborate statement giving details of her harassment. Smita has mentioned that the appellant was suspicious about her character and he was also having the habit of consuming liquor. On the day of the incident, there was a quarrel between Smita and appellant as she demanded money for household expenses. The appellant refused to give her money. The quarrel flared up and ultimately it resulted in appellant pouring kerosene on Smita and setting her on fire. Smita stated that she came running out of the house. Thereafter her husband and other people in the vicinity took her to Civil hospital, Miraj. In the procedure followed by the Special Executive Magistrate in recording the dying declaration, no irregularity is found and the written dying declaration Exhibit 25 is consistent with the oral dying declaration.

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Smita though has stated in the statement that her mother-in-law used to abuse and beat her occasionally and on that date, her mother-in-law also participated in the quarrel, she did not attribute any role to her mother-inlaw that her mother-in-law either had poured kerosene or ignited the matchstick but she attributed the entire role of setting her on fire to her

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husband. Thus, it can be said that Smita though was not in good terms with her mother-in-law, she was not vindictive towards her and excluded her totally from the actual act of setting her on fire. We are of the opinion that the statement made by Smita is truthful and voluntary.

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The last point which we would like to deal with is the defence taken by the appellant. Dr. Vrushali Gadkar, Medical Officer, who attended the deceased first in time has taken down the history of the patient at Exhibit 56. The said case paper shows that "history of burn, suicidal at 12.00 noon today with history of pouring of kerosene on body". This though is contradictory to the contents in the dying declaration, we do not wish to give any weightage to this particular contradiction and history given in the case paper. The answer of this inconsistency finds in the evidence of Dr. Vrushali Gadkar itself.

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Smita has stated to her mother PW-2 that she was brought to Civil Hospital, Miraj by her husband. Thus, when she was brought to the Civil Hospital, Miraj, her husband and persons staying in their vicinity were with her and therefore Smita was definitely under the pressure and under control

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of her husband and hence she gave history of pouring kerosene on her person and setting herself on fire. This statement of Smita though found inconsistent with her written dying declaration and oral dying declaration does not destroy the case of the prosecution. This statement made by giving history can be very well explained as her husband has brought her to the hospital and the statement was made when her husband was present. PW-6 SEM Vishnu Patil has stated that when he reached to the Civil Hospital, Sangli and wanted to record the dying declaration, he asked the appellant and mother-in-law of Smita to leave the room and thereafter he started recording the statement. Thus, the dying declaration was made in the absence of mother-in-law and the appellant. The oral dying declaration was made to mother of Smita. Naturally, after meeting her mother, Smita would talk freely without fear with her mother and so she had stated the true facts that it was not homicidal but was done by the appellant. Therefore, the learned Sessions Judge has rightly discarded the defence witness and did not rely on the history which is mentioned in Exhibit 56. Thus, we are of the view that no interference is required in the judgment and order passed by the learned Sessions Judge.

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The learned counsel for the appellant has urged that this is not a case

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of murder but it can be reduced to a culpable homicide not amounting to murder. She submitted that it was not a pre-planned assault. There was quarrel between the appellant and deceased, which ended in setting Smita on fire. She further submitted that the prosecution witnesses have deposed that the appellant has admitted Smita to Civil Hospital, Miraj and thereafter to Civil Hospital, Sangli. If the appellant really intended to kill her, then the appellant would have ran away from the house and would not have taken Smita to the Civil Hospital for medical treatment.

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After going through the evidence and considering the submissions made by the learned counsel for the appellant, we find that the act of the appellant has taken place out of anger as there was quarrel earlier between the deceased and appellant and suddenly he poured kerosene on Smita and set her on fire. It is a fact that he did not run away from the place but he took his wife to Civil Hospital for medical treatment and he was there throughout along with his mother. These are mitigating circumstances as per Exception 4 of Section 300 of IPC and we are inclined to give the benefit of this exception to the appellant. Hence, the order on the point of

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sentence is modified as follows:

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“We hold the appellant guilty for culpable homicide of his wife Smita. He is held guilty under section 304 Part II of IPC. The sentence of life imprisonment is set aside and we sentence him to suffer rigorous imprisonment for 7 years for the said offence.”

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Office to communicate this order to the concerned jail authorities and to the appellant, who is in jail.

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At this stage, we must record our appreciation for Advocate Smt. Sarojini Upadhyay, who is on the panel of advocates of High Court Legal Services Committee and who was appointed to represent the appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee, Bombay at Rs.2500/-.

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(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)

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Vinayak Arjun Satpute v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vinayak Arjun Satpute v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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