Not Extinguishing Fire Shows Knowledge And Intention To Cause Death: Bombay High Court Upholds Man’s Murder Conviction For Killing Wife

A division bench of Justice Nitin W. Sambre and Justice R. N. Laddha held –

“the act of the accused of pouring the kerosene oil on the person of the deceased, setting her ablaze and not extinguishing the fire would speak entirely against him and demonstrates the intention and knowledge on the part of the Appellant. The deceased was the wife of the Appellant and was alone in the house. The Appellant had taken undue advantage of the situation and acted cruelly. Even if the incident in question was not premeditated and sudden, the manner of retaliation is disproportionate”.

The prosecution’s case was that after consuming liquor, the appellant used to threaten his wife that he will not keep her alive. One day he consumed liquor and stopped his wife from going to work. When she refused, he got infuriated and poured kerosene on her and set her on fire. She suffered burn injuries on her face, chest, abdomen and thighs and died. In her dying declaration, she stated that her husband poured kerosene on her and set her ablaze.

The appellant’s defence was that his wife suffered burn injuries from the bursting of kerosene stove while cooking a meal. The sessions judge relied on the dying declaration and the witness testimonies and convicted him under Section 302 of the IPC.

Advocate Abhishek Avchat for the appellant contended that the dying declaration cannot be relied on as it was not made to a magistrate but to a police officer without any explanation. Further, the deceased was not in a fit state to make a statement as she had suffered 72% burn injuries.

Additional Public Prosecutor G. P. Mulekar said that the police head constable (PHC) who recorded the dying declaration was not the investigating officer, neither was he posted at the police station. In a murder case, a truthful dying declaration even made to the police officer and not to the magistrate is sufficient to convince the accused.

The court relied on several Apex Court judgments and reiterated that the dying declaration need not necessarily be made to a magistrate only. The essential condition is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.

“It is for the defence to demonstrate that the Police Official has some agenda or motive to record a false statement or to fabricate the statement of the victim of the crime. Conviction of a person can be made solely on the basis of a dying declaration which inspires the confidence of the Court. If there is nothing suspicious about the declaration, no corroboration is necessary. The Court must be satisfied that there is no tutoring or prompting”.

The court noted the accused did not show any material to prove the case of accidental bursting of the stove. The evidence does not show the presence of kerosene stove let alone bursting of one at the spot of the incident, the court noted.

The PHC testified that he recorded the dying declaration in the presence of the medical officer. The medical officer testified that the deceased was conscious and oriented to time, place, and person before, during, and at the end of the declaration.

The court noted that there is no material to suspect that the PHC and the medical officer has any reason to fabricate the dying declaration.

The court further noted that when the deceased was admitted to the hospital, her husband was present with her. This automatically rules out the possibility of tutoring her to implicate him falsely in the case, the court held.

The court concluded that the dying declaration is truthful and voluntary and the deceased was in a sound condition to give a valid statement.

The court also noted that the appellant did not claim that he tried to rescue his wife from the burning. Therefore, the court did not believe the defence that it was a case of accidental death.

“The learned Sessions Judge in the impugned judgment has rightly observed that the act of the accused in setting ablaze the deceased was an intentional act for causing her death, and it was preceded by threats emanated from him that he would not let her alive. Thus, by no stretch of the imagination, it can be said that the offence would not be murder punishable under Section 302 of the Indian Penal Code”, the court concluded.

Case no. – Criminal Appeal No. 634 of 2014

Case Title – Uttam Anna Lande v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 63

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