1 Cr.Apeal.477-2004 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 477 OF 2004 Prakash Keru More ] (presently at Kolhapur Central ] jail) Kurbar Road, ] Kolhapur- 416 006. ] ..Appellant. Vs. The State of Maharashtra ] (Kandivali Police Station ] Kandivali, Mumbai. ] ..Respondent. ---- Ms. Tanya Dayal a/w Mr. Abhishek Patil, i/b J. Shekhar & Co., for the Appellant Miss. A.T. Javeri, A.P.P. for the State. ---- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATED : NOVEMBER 14, 2011. JUDGMENT (PER M.L. TAHALIYANI, J.):- 1. This appeal impugns the judgment and order dated 25.10.2002 passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No.975 of 1996. The appellant has been convicted by the said judgment and order for the offence punishable under Section 302 of I.P.C. and is sentenced to suffer imprisonment for life. 2 Cr.Apeal.477-2004 2. The appellant had allegedly committed murder of his wife- Pratibha by causing her death intentionally by setting her on fire. The appellant and the deceased Pratibha had been staying at Omkar Chawl Committee, Damu Nagar, Kandivali (E), Mumbai along with their minor children. The alleged incident had occurred on 1.6.1996. The deceased had gone to watch a movie on T.V. at the neighbour’s house. After returning from the house of neighbourer, she had scolded her elder son on account of his mischievous activities. The appellant therefore started abusing the deceased and there was quarrel. During the said quarrel, the appellant suspected the fidelity of the deceased. The quarrel had reached the climax, and the deceased ultimately said that if the appellant was suspecting her fidelity, it would be better that he killed her. It is at this stage the appellant had picked up kerosene can, poured kerosene on the deceased and set her on fire. Immediately thereafter he shut the door and extinguished the fire by pouring water on the deceased. He thereafter took the deceased to various hospitals and ultimately she was taken to Cooper Hospital. While the deceased was being taken to Holy Spirit Hospital before she was admitted to Cooper Hospital,mother of the deceased was also informed by 3 Cr.Apeal.477-2004 the appellant. The parents of the deceased rushed to the hospital. They were informed by the deceased that she was set on fire by the appellant. 3. The deceased died on 4.6.1996 while she was under treatment. Her dead body was sent for postmortem examination. The postmortem examination revealed that the deceased had died due to “Septicemic shock due to 65% to 66% burnt injuries”. 4. There were in all five dying declarations which were proved during the course of the trial. Three oral dying declarations were made to mother, father and the doctor. The dying declarations were also recorded by PW-7 Police Sub Inspector Shri Jagtap and PW-8 the Special Executive Magistrate Shri Laltaprasad Shivmurat Yadav. 5. The charge against the appellant was proved before the trial court mainly on the basis of evidence of PW-7 and PW-8. As far as the cause of death is concerned, there is no dispute regarding the same. 6. PW-7 was attached to Kandivali Police Station as a Sub Inspector of Police. He was on duty on 1.6.1996. He received a telephonic 4 Cr.Apeal.477-2004 message from Cooper Hospital at about 21.55 hrs. that one lady by name Pratibha More was admitted to the hospital with burn injuries. He had visited the hospital as directed by his superior Police officer on duty. The deceased Pratibha was admitted in ward no.9. PW-7 visited the said ward and recorded her statement. According to the evidence of PW-7, the deceased had stated that there was quarrel between the deceased and the appellant on account of mischievous activities of their children. Thereafter the quarrel continued for a while. The appellant started quarreling with the deceased questioning her fidelity. The deceased, therefore, got annoyed and said that the appellant might kill the deceased. The appellant poured kerosene on the deceased and set her on fire. The statement of the deceased was treated as first information report and an offence was registered at Kandivali (E) Police Station on the basis of the said first information report. The statement recorded by PW-7 was exhibited before the trial court as Exhibit-26. The Special Executive Magistrate had also recorded statement of the deceased. The Special Executive Magistrate had been examined by the prosecution as PW-8. This witness has stated that he had attended the Police Station on the call given by PW-7, and had accompanied PW-7 to Cooper Hospital. He had recorded statement of the deceased after obtaining permission from doctor. The statement given to 5 Cr.Apeal.477-2004 this witness by the deceased was more or less similar to the statement given to PW-7. The statement recorded by this witness was exhibited as Exhibit-27 before the trial court. The witness had identified his signature on the statement. He had also identified his rubber stamp and seal on the said statement. 7. We have heard the learned counsel for the appellant and the learned A.P.P. for the State. We have also gone through the evidence recorded by the trial court, particularly the evidence of PW-7 and PW-8, and the statements recorded by these two witnesses. From the evidence of these two witnesses and other evidence, it is proved beyond reasonable doubt that the deceased was set on fire by the appellant. There is no reason to doubt the evidence adduced by the prosecution. However, one thing is absolutely clear from the evidence that there was a quarrel between the deceased and the appellant and the incident in question had occurred during the said quarrel. We have taken note of the fact that it is the deceased who herself had said that if the appellant was suspecting her fidelity, it would be better that she was killed by the appellant. It clearly indicates that the quarrel had reached the climax and during the said sudden quarrel which immediately reached the climax, the appellant picked up kerosene can and 6 Cr.Apeal.477-2004 poured kerosene on the deceased. It is abundantly clear that there was no intention on the part of the appellant to kill the deceased because immediately thereafter he took all necessary steps to save the deceased. He had extinguished the fire. He took her to various hospitals. He had informed mother of the deceased. It appears that he had great repentance for the act done by him. However, the evidence clearly establishes that the appellant had intentionally caused injuries to the deceased which were sufficient to cause death in the ordinary course of nature. Despite this finding, the case of the appellant will not attract the punishment provided under Section 302 of I.P.C. In our considered view, the case of the appellant is clearly covered by the Exception 4 of Section 300 of I.P.C. 8. After having considered the evidence on record, and the situation in which the incident had occurred, we are of the view that though the appellant had intentionally caused injuries to the deceased which were sufficient to cause death in ordinary course of nature, the evidence clearly establishes that the act committed by the appellant was during the course of sudden quarrel, without premeditation and in the heat of passion and without taking any undue advantage of the deceased. The appellant had also not exhibited any extra ordinary cruelty during the course of whole 7 Cr.Apeal.477-2004 incident. On the other hand, as stated above, the appellant had taken all necessary steps to save the deceased. We have, therefore, come to the conclusion that the culpability of the appellant would attract punishment provided under Section 304 Part-I of I.P.C. We are fortified in our view by the judgment of the Hon’ble Supreme Court in the case of Sayaji Hanmat Bankar Vs. State of Maharashtra in Criminal Appeal No.457 of 2007. In the similar set of facts, the Hon’ble Supreme Court has observed as under: “5. In our view, from the evidence on record, it does not appear that the intention on the part of the accused was to cause death or such bodily injury as would have resulted in the death of his wife. There would be much more activity on the part of the accused if his intention was to commit the murder of his wife. It seems that there was a fight as soon as he came to the house under the drunken state and in the fight, he first hit her left knee with a water pot and thereafter, threw kerosene lamp on her. It is obvious from the evidence that this was done suddenly in the heat of passion. If there was any intention to commit her murder, as mentioned in Section 299 IPC, there would have been much other acts like pouring kerosene on the deceased etc. on the part of the accused. 6. The High Court rejected the contention of learned counsel for the appellant that this case would fall under Exception 4 to Section 300 IPC. It was held by the High Court that this is certainly not a case to which exception 4 to Section 300 would get attracted but would fall under clause "fourth" of 300 IPC. Exception 4 to Section 300 IPC reads as under: 8 Cr.Apeal.477-2004 Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner" It is clear from the reading of aforesaid Exception 4 that if the act is done without premeditation in a sudden fight or in the heat of passion upon a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then Exception 4 will be attracted.” 9. In view of what has been stated hereinabove, we pass the following order: The conviction of the appellant for the offence punishable under Section 302 of I.P.C. is set aside. However, the appellant is convicted for the offence punishable under Section 304 Part-I of I.P.C. and is sentenced to suffer R.I. for 10 years and shall pay a fine of Rs.1,000/-. Set off be given to the appellant under Section 428 of Cr. P.C. for the sentence which he has already undergone. In the event, the appellant has already undergone the sentence, he be released forthwith if not required in any other case. 9 Cr.Apeal.477-2004 10. Criminal Appeal is disposed of accordingly. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)