Partly allowed

Dinkar Dagadu Katare v. the State of Maharashtra

Bombay HC14 Aug 2013APEAL/811/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the conviction for murder (Section 302 IPC) held on multiple dying declarations. The court modified the conviction to culpable homicide not amounting to murder (Section 304-II IPC) due to lack of intent to kill during a sudden quarrel, arising from intoxication and domestic dispute.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304-II IPC; sentence modified to seven years rigorous imprisonment and fine of Rs. 2000/-.

Dinkar Dagadu Katare Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2013)

¶1

APEAL811_2010

¶2

vidya

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL APPEAL NO. 811 OF 2010

¶5

Dinkar Dagadu Katare R/o. Beghar Vasti, Khodashi Tal. Karad, Dist. Satara (Presently lodged in Kolhapur Central Prison - C/4585) ... Appellant vs. The State of Maharashtra ... Respondent

¶6

Mr. Arfan Sait, Advocate appointed for the appellant. Mrs. V.R. Bhonsale, APP for the State.

¶7

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

¶8

AUGUST 14 , 2013.

¶9

ORAL JUDGMENT (PER MRS. V.K. TAHILRAMANI, J.)

¶10

The appellant has preferred this appeal against the judgment and order dated 21^st February, 2009 passed by the learned Additional Sessions Judge, Karad in Sessions Case No. 44/2007. By the said judgment and order, the learned Sessions Judge convicted the appellant under section 302 of Indian Penal Code. For the said offence, the appellant was sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-, in default, to suffer further R.I. for one month.

¶11

1 of 9

¶12

APEAL811_2010

¶13

The prosecution case, briefly stated, is as under:

¶14

The appellant was married to deceased Kamal about 25 to 27 years prior to the incident. At the time of the incident, the appellant and his wife Kamal i.e. deceased were residing at Beghar Vasti, Khodashi, Taluka Karad, District Satara. They had four daughters and one son. Their three daughters were married and fourth daughter was residing in the house of maternal uncle. Their son Avinash went to Arvi to work as agricultural labourer. The appellant was addicted to liquor and he used to frequently quarrel with his wife Kamal. The appellant used to do labour work. He did not like his wife going out to do labour work. On 13^th March, 2007 Kamal had gone out to do labour work. She returned home at about 6 p.m. Then she started cooking food. At about 7.30 p.m. the appellant came home. He was intoxicated at that time. The appellant questioned his wife Kamal why she went for labour work and why she did not took his permission before going for labour work. Kamal retorted that the appellant used to spend all his money earned from labour work on liquor and he was not allowing her to do labour work. The quarrel took place between both of them. During the quarrel, the appellant poured kerosene on his wife Kamal and set her on fire. Kamal was taken to hospital. In the hospital,

¶15

2 of 9

¶16

APEAL811_2010

¶17

two dying declarations of Kamal were recorded. The first dying

¶18

declaration was recorded by PW-7 ASI Potekar. The said dying declaration is at Exhibit 22. The second dying declaration was recorded by PW-8 Tahsildar Jadhav. The said dying declaration is at Exhibit 25. In both the dying declarations, Kamal stated that her husband quarreled with her because she had gone out to do labour work and thereafter he poured kerosene on her and set her on fire. The dying declaration Exhibit 22 was treated as FIR. Thereafter investigation commenced. Kamal expired on 19^th March, 2007 at about 3.30 p.m. Thereafter the offence was converted from Section 307 IPC to Section 302 IPC. After completion of investigation, the charge sheet came to be filed.

¶19

Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

¶20

3 of 9

¶21

APEAL811_2010

¶22

We have heard the learned Advocate for the appellant and the learned

¶23

APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, we are of the opinion that the appellant poured kerosene on his wife Kamal and set her on fire.

¶24

The conviction is mainly based on two dying declarations given by Kamal. The first dying declaration is at Exhibit 22 which was recorded by PW-7 ASI Potekar. The second dying declaration is at Exhibit 25 which was recorded by PW-8 Tahsildar Jadhav. ASI Potekar has stated that on 13^th March, 2007 he was on duty in Krishna hospital at Karad. At 00.30 hours he received orders from P.S.O of Karad City Police Station directing him to record the statement of burn injury patient Kamal. Therefore, he went to the Ward. He met Dr. Amol Jeur PW-15 who was on duty. He asked the doctor whether the patient is in a fit condition to make statement. The doctor examined the patient and stated that the patient is in a fit condition to make statement. The doctor gave endorsement that the patient was conscious and well oriented. PW-7 ASI Kotekar recorded the statement of Kamal (Exhibit 22). In her statement, Kamal stated that her

¶25

4 of 9

¶26

APEAL811_2010

¶27

husband was addicted to liquor. On 13^th March, 2007 she returned home from labour work at 6 p.m. and then started cooking. At about 7.30 p.m. her husband came home in intoxicated condition. He questioned her why she went for labour work and why she did not take his permission before going for labour work. He started abusing her. Kamal retorted that he used to spend all his money earned from labour work on liquor and he was not allowing her to work. Immediately, on her saying so, the appellant poured kerosene on her and set her on fire.

¶28

6. Another dying declaration of Kamal was recorded by PW-8 Tahsildar

¶29

Jadhav. He also first ascertained from PW-11 Dr. Rajbir whether the patient is in a fit condition to make statement. After taking the endorsement from the doctor, he proceeded to record the statement of Kamal. Kamal stated that her husband quarreled with her on the ground that she had gone out to do labour work. He then poured kerosene on her and set her on fire. We find nothing in the cross-examination of PW-7 ASI Potekar, PW-8 Tahsildar Jadhav, PW-11 Dr. Rajbir and PW-15 Dr. Amol Jeur so as to disbelieve their testimony. We find that their testimony inspires confidence, hence, we have no hesitation in relying on the same.

¶30

5 of 9

¶31

APEAL811_2010

¶32

In addition to the two dying declarations recorded by PW-7 ASI

¶33

Potekar and PW-8 Tahsildar Jadhav, the prosecution is also relying on oral dying declaration made by Kamal to her son Avinash PW-3. Avinash has clearly stated that when he met his mother in the hospital, his mother told him that his father had poured kerosene on her and set her on fire.

¶34

The learned counsel for the appellant Mr. Sait submitted that assuming the appellant poured kerosene on his wife Kamal and set her on fire, the act of the accused would not fall under section 302 of IPC but it would fall under section 304 Part II of IPC. He submitted that the appellant had no intention to cause death of his wife Kamal. In support of his contention, he has placed reliance on the dying declaration Exhibit 22 recorded by PW-7 ASI Potekar. In the dying declaration Exhibit 22, Kamal has stated that her husband tried to extinguish the fire. Mr. Sait further submitted that the incident had occurred during the course of sudden quarrel and the fact that the appellant immediately tried to extinguish the fire shows that he had no intention to kill his wife Kamal.

¶35

No doubt, the evidence on record shows that it was the appellant

¶36

6 of 9

¶37

APEAL811_2010

¶38

who set Kamal on fire. However, the pivotal question which arises in the

¶39

facts and circumstances of this case is what is the nature of the offence proved against the Appellant? From both the dying declarations, it is seen that Kamal had stated that the incident occurred during sudden quarrel. The dying declaration Exhibit 22 shows that her husband questioned her as to why she went to do labour work and why she did not take his permission before going for labour work. Thereafter he started abusing Kamal. Kamal also retorted that the appellant spent all his money earned from labour work on consuming liquor and he was not allowing her to do work. It was during that quarrel that the appellant set Kamal on fire. However, immediately after Kamal caught fire, the appellant tried to extinguish the fire. This conduct cannot be seen divorced from the totality of the circumstances. Very probably the appellant would not have anticipated that the act done by him would have escalated to such a proportion that his wife might die. If he had ever intended her to die, he would not have immediately rushed Kamal to hospital in an effort to rescue her. In view of the evidence on record, we are inclined to think that all that the appellant thought of was to inflict burns and not kill her but unfortunately the situation slipped out of his control and it went to a fatal extent. We stand

¶40

7 of 9

¶41

APEAL811_2010

¶42

fortified in taking this view by the observations of the Supreme Court in the case of Kalu Ram Vs. State of Rajasthan, (2000) 10 SCC 324. In the said case also, similar facts arose and the Supreme Court held that the case would not be covered by Section 302 of IPC but it would be covered by Section 304-II of IPC.

¶43

In view of the above facts and circumstances, the conviction and

¶44

sentence of the appellant under section 302 of IPC is altered to Section 304-II of IPC. In our opinion, the sentence of rigorous imprisonment for 7 years with fine amount of Rs.2000/- i/d. S.I. for one month would meet the end of justice. The conviction and sentence imposed by the learned Additional Sessions Judge is accordingly modified.

¶45

Appeal is allowed to the aforesaid extent.

¶46

Office to communicate this order to the concerned prison Authorities

¶47

and to the appellant who is in jail.

¶48

At this stage, we must record our appreciation for Advocate

¶49

Mr. Arfan Sait, who is on the panel of advocates of High Court Legal

¶50

8 of 9

¶51

APEAL811_2010

¶52

Services Committee and who was appointed to represent the appellant in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee, Bombay at Rs.2500/-.

¶53

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

¶54

9 of 9

Dinkar Dagadu Katare v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dinkar Dagadu Katare 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

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vinayak Arjun Satpute Vs the State of Maharashtra

Vinayak Arjun Satpute Vs the State of Maharashtra

Popat Bhanudas Mandlik Vs the State of Maharashtra

Bharat Ananda Kumbhar Vs the State of Maharashtra

Mirza Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan Vs the State of Maharashtra

Vijay Sopan Tarade Vs the State of Maharashtra