Allowed

Hanmant Yashwant Kasbe v. the State of Maharashtra

Bombay HC25 Apr 2019APEAL/332/2001

Case brief

AI extract

What is this about?

The High Court of Bombay allowed the appeal, quashed the conviction under Section 304 Indian Penal Code, and acquitted the appellant. The decision rested on the benefit of doubt due to serious doubts regarding the victim's consciousness and orientation while the dying declaration was recorded, noting the administration of sedatives before the statement.

What did the court decide?

Conviction and sentence under Section 304 IPC quashed and set aside; appellant acquitted of all charges; fine refunded if paid; bail bond cancelled.

Hanmant Yashwant Kasbe Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2019)

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268.apeal332.01.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 332 OF 2001

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Hanmant Yashwant Kasbe. Age: 35 years. Occ: Service, R/o. Vimukta Zopadpatti Shaha Nagar, Solapur, (At present lodged in Solapur Central Jail.) V/s.

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The State of Maharashtra.

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..Appellant.

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..Respondent.

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Mr. Ujwal Agandsurve, advocate for appellant. Mr. S.R. Agarkar, AGP for State.

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CORAM : SMT. SADHANA S. JADHAV,J.

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DATE : APRIL 25, 2019.

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JUDGMENT :

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1 The appellant herein is convicted for the ofence punishable under section 304-I of the Indian Penal Code and sentenced to sufer R.I. for 10 years and to pay fne of Rs. 5,000/- I.d. to sufer imprisonment for 6 months by the II Addl. Sessions Judge, Solapur vide Judgment and Order dated 25/4/2001 in Sessions Case No. 61 of 2000. Hence, this appeal.

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2 Such of the facts necessary for the decision of this Appeal are as follows :

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Talwalkar

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(i) The present appellant was working as police personnel. He was married to Vaijayanta 15 years prior to the incident. On 3/1/2000 Vaijayanta was admitted in Civil Hospital with history of severe burns. Since it was a medico legal case, the doctor had informed the police for recording of the dying declaration.

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(ii) On the same day i.e. on 3/1/2000, her statement was recorded at about 4.45 p.m. by P.I. of Salgarvasti Police Station. She had disclosed that her husband was alcoholic. She is a mother of two sons. On that day, after she sent her son to school, she was alone in the company of her husband. He was under the infuence of alcohol at about 11.30 a.m. He poured kerosene on her person and set her ablaze. When she started crying for help, he had extinguished the fame and had taken her to civil hospital, Solapur.

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(iii) On the basis of her statement, Crime No. 1 of 2000 was registered against the appellant for ofences punishable under section 307 of the Indian Penal Code.

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(iv) At about the same time, the police had called Executive Magistrate who recorded her statement at about 5 p.m. She was consistent in her narration for the cause of her burns. The statement recorded by the police is at Exh. 26, whereas the statement recorded by the Executive Magistrate is

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Talwalkar

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268.apeal332.01.doc

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at Exh. 15.

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(v) Vaijayanta had succumbed to the burn injury on 4/1/2000, as she had sustained 96 percent burns. Doctor had opined the cause of death by shock and Toxemia due to 96 percent burns. Since she had succumbed to the burn injuries at about 10.30 p.m. on 4/1/2000, the ofence was registered under section 302 of the Indian Penal Code.

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3 The incident had occurred after 15 years of marriage. The learned Sessions Judge had framed charge under section 302 of the Indian Penal Code. However, upon considering the conduct of the accused to the extent that he was the one who extinguished the fames, and had taken her to civil hospital, the learned Sessions Judge has convicted the accused for ofence punishable under section 304-I of the Indian Penal Code and sentenced him to R.I. for 10 years and to pay fne of Rs. 5,000/-. In fact, conviction under section 304-I of the Indian Penal Code would show that the ofence has been proved against the accused and that he had intention to cause homicidal death. In such circumstances, conviction under section 304-I of the Indian Penal Code was unwarranted. In fact, it would be u/section 302

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Talwalkar

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268.apeal332.01.doc

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of the Indian Penal. However, the State has not fled appeal challenging the Judgment and Order of acquittal under section 302 of the Indian Penal Code.

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4 At the trial, prosecution has examined as many as 5 witnesses to bring home the guilt of the accused.

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5 P.W. 1 Suresh Jadhav happens to be the panch witness for scene of ofence panchanama and his evidence would not be relevant as it is an admitted position that the incident had occurred in the matrimonial house of the deceased and the appellant and that there was no third person in the house at the relevant time.

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6 P.W. 2 Dr. Uday Kumbhar had examined the patient in the hospital on 3/1/2000. He had given endorsement to the efect that the patient is conscious and oriented to give statement. The dying declaration was recorded after obtaining his endorsement. Cross-examination is short to bring on record the doubtfulness of her consciousness and of her orientation. However, the doctor had brought the case papers and the same are referred in the cross-examination and are marked as Exh. 20. The medical treatment paper would indicate that the injured

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Talwalkar

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268.apeal332.01.doc

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was administered Fortwin + Calmpose 15 + 5 mg at about 4 p.m. At this stage, it would be necessary to note that the frst dying declaration is recorded at 4.45 p.m. Moreover, the case papers would further show that she was given O2. The dose of Fortwin and Calmpose was repeated. There is an endorsement on the case papers that Betnovate ointment was applied on the face only after a valid statement was recorded.

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7 Upon perusal of the dying declaration, it appears that thumb mark of the injured was obtained at the end of the statement. It shows that there are fne ridges which are seen on the thumb mark. The Court cannot be oblivious of the fact that the injured had sustained about 96 percent burn. Except Singeing on the face, all other burn injuries were deep burn, so much so that she died of toximia. Poor prognosis was explained to the relative at the relevant time.

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8 P.W. 4 Dr. Bhalchandra Nilegavkar was the one who had started treatment. He had enquired with the patient the history of the burns and she had narrated that she had sustained homicidal burns. The endorsement of consciousness was given by P.W. 4. It is admitted in the cross-examination

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Talwalkar

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that there is no endorsement to the efect that the history was given by the patient herself as the thumb impression of the mother was obtained by the doctor i.e. P.W. 4. It is also elicited in the cross-examination that the police had not taken thumb mark in the presence of the doctor on the dying declaration. It is also admitted by P.W. 4 that there is no endorsement to the efect that at the time of admission, she was conscious and oriented.

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9 The fact that dying declarations were recorded after administration of Fortwin and Calmpose, it is doubtful as to whether history was given by the victim or her relatives. Since the case rests implicitly only on dying declaration and there is a serious doubt as to whether the deponent was oriented, the appellant would be entitled to beneft of doubt.

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10 The learned Counsel for the appellant submits that in the eventuality he is acquitted by extending beneft of doubt, he would loose the service beneft. This Court would make it clear that in fact, the appellant has failed to ofer any explanation under section 106 of the Indian Evidence Act by putting forth a plausible explanation for the burns sustained by his wife while in his custody. It will not be fair to give him a clear acquittal.

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Talwalkar

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268.apeal332.01.doc

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She was in exclusive custody of her husband at the time when she sustained burn injuries. The beneft of doubt is extended because of the failure on the part of the investigating agency to prove the dying declaration.

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11 The accused had fled his say as contemplated under section 313(2) of the Code of Criminal Procedure, 1973. The defence of the accused is that his father-in-law was sufering from liver disease and he had spent Rs. 60,000/-. After the demise of his father-in-law, the family had received gratuity fund and other benefts to the tune of Rs. 3 Lakhs and therefore, the appellant was seeking refund of Rs. 60,000/-. Vaijayanta had not approved of the said demand. According to him, on the date of incident, he had returned from night duty and after dropping his children to school, he was about to sleep and he had told his wife to demand money from her bother and mother and therefore, she immolated herself. According to him, he has been falsely implicated. The history of self-immolation cannot be believed.

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12 From the medical papers i.e. Exh. 25, it is seen that the mother of the appellant had taken Vaijayanta to the hospital. It was in her presence that the deceased had disclosed to the Talwalkar

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268.apeal332.01.doc

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doctors at the time of admission that her husband has set her on fre after returning home under the infuence of alcohol. The statement of Kerabai i.e. mother of the appellant was recorded. The case papers also indicate that Fortwin and Calmpose were administered only after the frst valid statement was recorded and the dose was continued. She had become serious on 4/1/2000. Kerabai has not been examined by the prosecution. The disclosure by Vaijayanta was apparent from the evidence of Dr. Bhalchandra Nilegaonkar. The appellant has not examined his mother-Kerabai as a defence witness.

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13 The incident is of the year 2000 and the impugned Judgment and Order is of 25/4/2001. It would not be appropriate to remand the accused to custody after 20 years. Hence, he is acquitted by extending to him beneft of doubt.

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14 In view of the above discussion and the fact that the recording of dying declaration has not been proved, the appellant is being granted beneft of doubt, due to the inconsistency in the procedure followed by the Investigating Agency and the prosecution. Hence, following order is passed :

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ORDER

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(i) The appeal is allowed.

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Talwalkar

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(ii) The conviction and sentence imposed against the appellant vide Judgment and Order dated 25/4/2001 in Sessions Case No. 61 of 2000 is hereby quashed and set aside. The appellant is hereby acquitted of all the charges.

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(iii) The fne amount, if paid, be refunded.

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(iv) Bail bond stands cancelled.

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(v) Writ be issued expeditiously.

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15 The appeal is disposed of accordingly.

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[SMT. SADHANA S. JADHAV, J.]

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Talwalkar

Hanmant Yashwant Kasbe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Hanmant Yashwant Kasbe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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