SUNDER GOUNDER Vs. STATE OF GOA

JUDGEMENT

(1.) THIS is an appeal by the accused, taking exception to the Judgment and Order of conviction and sentence awarded by the Additional Sessions Judge, Mapusa in Sessions Case No.21/2009 on 18/10/2012, holding the accused guilty for commission of offence punishable under Section 302 of the Indian Penal Code (IPC) and sentencing him to suffer Imprisonment for Life and to pay a fine of Rs.5,000/ -and in default, to undergo Rigorous Imprisonment for a period of 2 months.

(2.) IT is the case of the prosecution that the deceased Shobha and the accused, who is her husband, were residing together at Indira Nagar Chimbel, along with a daughter and a son who were then minors. On the fateful day i.e. on 9th March, 2009, the accused came in intoxicated condition and started abusing his wife. The deceased, wife of the accused, after sometime sent her both the children to her mother's residence. It is alleged that at about 12 midnight, the accused again started altercation with his wife. During the course of heated exchange of words between the couple, it is alleged that the accused poured kerosene which was brought in a can on her person and set her on fire. The deceased shouted for help. The accused and some neighbours gathered and tried to extinguish the fire. She was thereafter taken to a hospital. On reaching the hospital, her complaint was reduced into writing by Shri S.L. Hanashikatti, P.S.I. Old Goa Police Station on 10th March, 2009 at about 11.30 hours. Crime bearing No.22/09 came to be recorded initially for commission of offences punishable under Sections 498 -A and 307 of the IPC. The victim died while undergoing treatment and, thereafter, charge was altered to under Section 302 of the IPC. The police, after completing the investigation, presented the charge -sheet in the Court of Judicial Magistrate, First Class, at Panaji. The offence alleged being triable by the Court of Sessions, the case was committed to the Court of Sessions at Panaji. The trial Court framed charges in respect of the commission of offence punishable under Section 302 and Section 498A of the IPC. At the trial, in order to prove the guilt of the accused, the prosecution relied upon evidence of 20 witnesses, including one dying declaration recorded by the Executive Magistrate and the complaint allegedly lodged by the deceased herself which was reduced into writing by the PSI. The defence of the accused is of total denial. According to the accused, Shobha -deceased herself poured kerosene on her person and set herself on fire. The accused noticing her engulfing in flames, tried to extinguish the fire and in the process got his hands burnt. Mangala, Pushpa, Anand, Murugh, and Subramaniam came there. Pushpa poured water on person of Shobha. Shobha stated before all those who had come there that she herself set her on fire. Srinivas and his mother took her to the hospital. The accused wanted to accompany them, however, was prevented by Srinivas. According to the accused, a false case has been lodged against him. There were antecedents of attempts by the deceased to commit suicide. On one occasion, she consumed Kerosene and was required to be admitted in a hospital. In another past incident, she tried to set herself on fire after pouring kerosene on her person. According to the accused, the deceased had suicidal tendencies and that she herself committed suicide.

(3.) SINCE the instant case is founded on the dying declaration recorded by the Executive Magistrate, as well as on the complaint recorded by the PSI immediately after the occurrence of the incident, both the dying declarations reduced into writing require a close scrutiny. Although the deceased is stated to have given her statement in Konkani language, both the dying declarations Exhibit 13 and Exhibit 72 are reduced into writing in English language. In the dying declaration recorded by the Executive Magistrate Exhibit 13, the deceased stated that she was married since last six years to Sundar Gaunder and have two children, one girl aged 6 years and a boy aged 4 years. It is stated that the incident took place at around 12.00 p.m. in the night. Her husband was playing cards outside the house and she went to call him inside the house. After about 15 minutes, he came inside the house and started quarreling. He suddenly removed a can of kerosene which was below the table and put it on her and ignited her with a match stick. She stated that at the time of the incident, no one was in the house and the children were with her mother. She shouted screaming. Thereupon, her sister -in -law Pushpa Gaunder came to her rescue and put water on her. It is stated that thereafter she (Pushpa) took her to the hospital.