Bombay High Court Ou vs The State Of Maharashtra on 7 August, 2013Bench: V.K. Tahilramani, Mridula Bhatkar

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apeal.241.2010(J).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.241 OF 2010

Shakunta Shivaji Buchade

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r/o. Yavaluj, Tal.: Panhala, Dist.: Kolhapur Presently lodged at Kolhapur Central Prisons, Kalamba, Kolhapur … Appellant C

Vs.

The State of Maharashtra … Respondent h

Mr.Shekhar A. Ingawale for the Appellant Ms.V.R. Bhonsale, APP, for Respondent – State ig CORAM: MRS.V.K. TAHILRAMANI & MRS.MRIDULA BHATKAR, JJ.

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DATE: AUGUST 7, 2013

ORAL JUDGMENT (PER MRS.BHATKAR, J.): y

1. The appeal is directed against the judgement and order dated ba

17.9.2009 passed by the Additional Sessions Judge, Kolhapur sentencing the appellant under sections 302, 309, 323 and 504 of the Indian Penal om

Code. The maximum sentence given is of life imprisonment.

2. As per the case of the prosecution, the accused Shakuntala was B

residing with her husband Shivaji Buchade, mother-in-law Banabai Buchade and her two sons Sangram, aged 4 years and Pratap, aged one year, at Kolhapur. She was residing at Vikasnagar, South of Yavluj, District Kolhapur. She was married to PW6 Shivaji Buchade, in the year 2003. On 9.12.2007, she had a fight with her husband and mother-in-law 1 / 11

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(PW5 Banabai). At around 6.30 am in the morning, PW5 Banabai was taking bath when Shakuntala hit her with a stone on her head. PW5 rt

Banabai started shouting due to head injury. On hearing her shouts, the ou

neighbours gathered in the house. Accused Shakuntala took her two sons and went to another room. She locked the room from inside and set her C

two children and herself on fire by pouring kerosene. She immediately came out burning. The neighbours extinguished the fire. She alongwith her two sons was shifted to CPR hospital, Kolhapur. PW5 Banabai was h

shifted to Rural Hospital, Panhala. ig

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A message was given to the police station from CPR hospital, Kolhapur of sustaining the burn injuries to the children and Shakuntala. On the basis of the telephonic information, PW14 Raghunath Waghmode took y

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entry in the diary (exhibit 52). He immediately went to village Yavluj. He drew spot panchanama in the presence of two panchas at exhibit 17. He also seized kerosene can, matchbox, sarees and other articles during the om

spot panchanama. Initially, the crime was registered under sections 498A and 307 of the Indian Penal Code on the basis of the statement of B

accused Shakuntala and it was transferred to Panhala police station where it was registered under C.R. No.115 of 2007. The station diary entry to that effect was taken at exhibit 53. Thereafter, the Investigating Officer PW14 Waghmode recorded statements of nearly 20 witnesses on 10.12.2007 and 11.12.2007 and thereafter, he registered the crime against 2 / 11

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Shakuntala for different offences after entry to that effect in the station diary (exhibit 54). Sangram aged, 4 years, died on 13.12.2007. Hence, rt

the offence was registered u/s 302 of the Indian Penal Code against the ou

accused Shakuntala. The station diary entry to that effect was made and was produced at exhibit 55. On 15.12.2007, Pratap, aged 1 year, C

breathed his last. The police sent the muddemal articles to C.A. The accused was arrested on 28.2.2008 after she was discharged from the hospital. Postmortem of Sangram and Pratap was conducted by PW10 h

Dr.Manisha Patil, according to whom, the cause of death was due to ig

burns. After completion of investigation, the Investigating Officer PW14 H

Waghmode submitted chargesheet to the Court of Magistrate and the learned Magistrate subsequently committed the case to the Court of y

Sessions.

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3. Charge was framed against the accused for killing her two children u/s 302 of the Indian Penal Code, for attempting to commit suicide om

punishable u/s 309 of the Indian Penal Code. She was further charged for causing injury to her mother-in-law PW5 Banabai u/s 323 and for B

intimidation to PW5 Banabai u/s 504 of the Indian Penal Code. She was also charged under sections 324 and 182 of the Indian Penal Code. However, she was acquitted from sections 324 and 182 but was held guilty on other counts. Hence, this appeal. 3 / 11

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4. This is a foolproof case against the accused. PW5 Banabai, the mother-in-law of the accused, has stated that PW6 Shivaji, her son, had rt

got married to the accused in 2003 but there were constant quarrels. The ou

accused used to go to her parents’ house after quarreling with them. Then she used to abuse PW5 Banabai and also her husband PW6 Shivaji. She C

was not taking care of her children and the family. PW6 Shivaji, husband of the accused, has deposed about the behaviour of the accused prior to the accident and about their married life which was full of quarrels since h

2003. He had given instances of the quarrels and the disputes between ig

the accused and PW6. Though the couple had two sons, namely, H

Sangram and Pratap, the birth of the children did not improve the relationship between the husband and wife and the discord and y

unhappiness was a permanent feature in the family. PW6 has deposed ba

that earlier Shakuntala had left the house and she started living with her mother. He has stated that there was one agreement (exhibit 25) om

executed on 6th August, 2004 between the accused and her husband Shivaji that they would not fight and they had resolved all their disputes and the issues between them and they would live together happily and she B

would not try to commit suicide. Thereafter, she started residing with PW6 Shivaji. However, the evidence of PW6 Shivaji and PW5 Banabai discloses that the accused used to pick up quarrel on small issues and was very abusive and using filthy language. Both the witnesses have corroborated on the point of behaviour of the accused on 9.12.2007, i.e., a 4 / 11

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day prior to the incident. Her husband was employed in one Lashkar Orchestra. He used to play musical instrument and was to leave for tour rt

on 9.12.2007. He requested his wife to prepare some snacks. However, ou

she refused. Then the children also demanded but she refused to cook and she threatened that she would burn them by putting them in the fire of C

dung cakes. PW6 Shivaji left the house for his work on 9.12.2007 and on that night, she did not allow PW5 Banabai, her mother in law, to enter the house. PW5 Banabai has deposed that she could not go inside the house h

and hence decided not to sleep in the house out of fear of her ig

daughter-in-law Shakuntala. She slept in the house of one Bharati Chile H

and in the morning at around 5.30 am, she returned home and asked the Shakuntala for hot water for bathing. However, the accused refused to y

provide her hot water. So PW5 Banabai started bathing with cold water. ba

The accused at that time, assaulted PW5 Banabai with a stone on her head which was kept near the door of the bathroom. PW5 Banabai got om

injured, blood was coming out of her head and she started shouting loudly for help and came out of the bathroom. On hearing her shouts, the neighbours and other people in the vicinity came to the house of the B

appellant.

5. PW3 Varsha Patil, PW4 Suvarna Gosavi and PW7 Tanaji Koli had all gathered in the house. They all saw PW5 Banabai crying for help with head injury and at that time, the appellant was abusing her outside the house. PW4 Suvarna and one other lady were holding the two children 5 / 11

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Pratap and Sangram. However, Shakuntala snatched her sons from these ladies and went inside one room. She locked that room from inside. The rt

neighbours saw a fire and immediately Shakuntala opened the door and ou

came out in burning condition from the house. She was caught with fire. The neighbours extinguished the fire. She told people that her sons were C

also caught with fire in the house. So the neighbours went inside the house and extinguished the fire and thereafter with the help of these people, the accused alongwith her two children and her mother-in-law h

were taken to hospital. ig

6. The evidence of PW2 Chhaya Patil, PW3 Varsha Patil, PW4 H

Suvarna Gosavi, PW5 Banabai and PW7 Tanaji Koli are directly on the incident. They all gave consistent versions as to how the incident had y

taken place in the presence of all the witnesses and other persons. ba

Shakuntala had taken her two children from the ladies and went inside a room. She came running outside in burning condition and started rolling om

with a view to extinguish the fire on her person. Thus, this evidence is sufficient to prove that the accused had poured kerosene on her two small sons. Thereafter, she poured kerosene on herself. B

7. The evidence of the medical officer PW10 Dr.Patil shows that Sangram died on 13.12.2007. He had sustained 60% burn injuries and Pratap, who died on 15.12.2007 had 56% burn injuries. Both the children were small – one aged 4 years and the other was aged 1 year. 6 / 11

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8. The learned Defence Counsel made his submissions mainly on the point of quantum. He argued that the accused did not intend to kill her rt

children but there was continuous quarrel between her mother-in-law, her ou

husband and herself which led her to take the step. He submitted that there was persistent irritation and so the accused was angry and, C

therefore, her act is to be considered under the first Exception to Section 300 of the Indian Penal Code. He submitted that it is not to be considered a murder but it is a culpable homicide not amounting to murder. He h

argued that the accused after pouring kerosene on her children, poured ig

kerosene on her person and when she was burning, she herself opened H

the door, came out running. At that time, she told the neighbours and the persons gathered there that her two children were also caught with fire. y

According to the learned Counsel, this shows that she wanted to save her ba

children and, therefore, should should be given the benefit of Exception 1 to Section 300. The learned Counsel relied on the Division Bench om

decision of the Madras High Court in the case of Vijayalakshmi vs. State, VII – 1992 (2) CRIMES 713, where the appellant tried to commit suicide after throwing her two children in the well. The children died but the B

mother survived as she tried to save her life at the last moment, due to natural instinct. The learned Counsel submitted that in that case, the Division Bench of the Madras High Court has brought the offence under Exception 4 to Section 300 of the Indian Penal Code and she was held guilty under section 304 part I of the Indian Penal Code. As she had 7 / 11

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already served six years and nine months imprisonment, she was released. Learned Counsel prayed that the case of the accused is also rt

similar and she deserves reduction in the sentence. ou

9. We have considered the evidence of PW3 Varsha Patil, PW4 C

Suvarna Gosavi, PW5 Banabai, PW6 Shivaji, PW7 Tanaji Koli and PW10 Dr.Patil. The prosecution has proved that the accused appellant has set her two children on fire. The conduct of the accused telling the neighbours h

that her sons were also set on fire cannot reduce the gravity of the act. ig

She took her children inside the home. She locked the room from inside. H

Then she poured the kerosene on them and set them on fire. Then, she poured kerosene on herself and set herself on fire. When she came out, she started rolling on the ground. This shows that she had natural instinct y

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to survive and live. The burns found on her person was 27%. While the burns found on the children were more i.e., Sangram – 67% and Pratap – 56%. The evidence of PW5 Banabai and PW6 Shivaji disclose that the om

accused not only used abusive and filthy language but was not caring for the children. She used to threaten them that she would do anything to her B

children as she had given birth to them and that she would also kill them. PW5 Banabai’s evidence shows that such threat was given on a day earlier to this incident i.e., on 9.12.2007. Thus, Shakuntala was not only a lady with bad temper but she was treating her children as her own property and was using them as an instrument to give threat to her 8 / 11

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husband and mother-in-law. On perusal of the evidence of all the deposition witnesses, we noticed that the accused was not subjected to rt

cruelty but she was ill – treating her children and torturing her husband ou

and mother-in-law. It cannot be accepted that when Shakuntala took the children inside the room, was not aware of the consequences of her act C

and she did not intend to kill the children. The children were small aged 4 and 1 years old. If at all, they were set on fire after pouring kerosene, due to their age, they were definitely helpless and very small to resist or to h

rescue themselves. To bring the case under Exception 1 to Section 300 ig

of the Indian Penal Code, it is necessary for the defence to show that the H

accused had lost her control by grave and sudden provocation. This is not a case of grave and sudden provocation. There was continuous quarrel y

and also there was history of quarrels between Shakuntala and her ba

husband and the mother-in-law. The evidence of neighbours shows that Shakuntala herself used to fight and used to talk in abusive language om

against her mother-in-law and her husband. Thus, the behaviour of Shakuntala was such that her act cannot be brought under grave and sudden provocation. The learned Counsel tried to take benefit of B

admission given by PW6 Shivaji in his cross-examination where he has admitted that he had not provided treatment to the accused about her neurological problems. However, this admission was an answer given to a presumptive question. The question presumed that she had a neuro problem and so the treatment was required. No importance can therefore 9 / 11

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be given to such an admission. No case put up by the defence that Shakuntala was suffering from any ailment of insanity. If the person is rt

sane but is ill-tempered and commits such a grave offence, the case ou

cannot be brought under Exception 4 to Section 300 of the Indian Penal Code. In the case of Vijaylakshmi vs. State (supra), the accused C

attempted to commit suicide after pushing her two children in the well. The children were drowned and died due to asphyxia. At the last moment, the accused tried to save herself and she survived. In the said h

case, the reason for killing her daughters and jumping in the well was on ig

account of poverty. The Division Bench has, therefore, considered that the H

unfortunate case was due to poverty and therefore there was no intention of the mother to kill her daughters and so there was reduction in the y

sentence u/s 302 to section 304 part I of the Indian Penal Code. In the ba

present case, the reason for killing the two small children cannot be considered sympathetically and no leniency can be shown to the om

appellant.

10. PW5 Banabai was injured due to assault with stone. The B

prosecution has examined PW9 Dr.Abhijeet Chavan, who was working as a medical officer in Rural hospital, Panhala. The medical officer had opined that the said injury would have caused by a hard and blunt object. There was vague tenderness over right parietal area of head. Thus, the prosecution has proved the case against the accused appellant and the 10 / 11

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learned Sessions Judge has rightly convicted the accused. We do not want to interfere with the impugned judgment. rt

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11. In the circumstances, the Appeal is dismissed. C

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

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