sat 1 cri.apeal 1263-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1263 OF 2004 Ishwar Narayan Deshmukh, ) 32 year age, C-13595, ) Circle 1/7, YCP, Pune – 411006 )...Appellant vs. The State of Maharashtra ...Respondent Ms.Sonia Miskin, Advocate appointed for the Appellant. Mrs.U.V. Kejriwal, APP for the State. CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. DATED ; SEPTEMBER 16, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant is convicted by the learned 2nd Additional Sessions Judge, Baramati, District Pune, for the offence punishable u/ss. 498A, 302 IPC by the impugned judgment and order dated 29.8.2003 in Sessions Case No. 12/2002. The appellant was charged for subjecting his wife Smt.Mangala to cruelty and for having committed her murder on or about 6.12.2001 at their residential place situated at Mali- sat 2 cri.apeal 1263-2004 Ali, Rahu, District Pune. It is alleged that the appellant had poured kerosene from stove on the deceased and set her on fire with a live matchstick on 6.12.2001. The deceased was admitted in hospital for treatment. She, however, died on 13.12.2001. 2 The appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs.3000/-, in default, to undergo RI for one year for the offence punishable u/s.302 of IPC. He was further sentenced for the offence punishable u/s. 498A of IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to undergo further RI for two months. It was directed that the substantive sentences should run concurrently. The appellant is in custody since the date of his arrest i.e. 11.12.2001. 3 When the appeal was taken up for hearing, the learned Counsel Ms.Miskin for the appellant submitted that she did not challenge the conviction of appellant for the offence punishable u/s.498A of IPC and the sentence imposed by the sat 3 cri.apeal 1263-2004 learned trial court for the said conviction. As far as conviction of the appellant for the offence punishable u/s. 302 of IPC is concerned, it was submitted by the learned Counsel that the conviction recorded by the learned trial court is not sustainable inasmuch as careful examination of the evidence of the complainant before whom an oral dying declaration was made and the Police Head Constable who had recorded dying declaration in writing, would show that the appellant had no intention to commit murder of his wife. It was submitted that the appellant could have been found guilty of causing injuries to his wife during the course of sudden quarrel in a heat of passion without premeditation and without taking undue advantage of the situation. In brief, it was submitted that the appellant should have been convicted for the offence punishable under first part of Section 304 of IPC and not for the offence punishable u/s. 302 of IPC. Our attention was invited to the evidence of PW 1. PW 1 in his evidence has stated that when he visited the deceased in hospital, he was told that there was a quarrel between the deceased and the appellant and that after that the sat 4 cri.apeal 1263-2004 deceased had gone to answer the call of nature, and that the appellant had thrown kerosene on her and set her on fire after she returned after answering the call of nature. Our attention was also drawn to the evidence of PW 3. He was on duty at Sassoon Hospital where the deceased was admitted for treatment. PW 3 was on duty as Head Constable at Sassoon Hospital. He had recorded statement of the deceased after obtaining permission from the Medical Officer. The deceased had stated in her statement that the appellant had thrown kerosene on the deceased and set her on fire. It was further stated by the deceased that the appellant was suspecting fidelity of the deceased. It appears from the evidence of this witness that there was a quarrel between the deceased and the appellant and during the course of said quarrel, the appellant had thrown kerosene on the deceased and had set her on fire. It also appears from the evidence and is admitted position that the appellant himself had thrown water on the deceased to extinguish the fire immediately after the incident. In fact, the fire was extinguished by the appellant himself. sat 5 cri.apeal 1263-2004 4 As such we find substance in the arguments of the learned Counsel Ms.Miskin that there was no intention on the part of the appellant to commit murder of the deceased. However, we also find substance in the argument that the case of the appellant will be covered by Section 304 part one of IPC. Had there been intention on the part of the appellant to kill his wife, he would not have extinguished the fire. However, at the same time, it cannot be ignored that the appellant had intentionally caused injuries to the deceased to the extent of 60% burn injuries. Though the deceased had died due to septicemia after few days of the incident, it cannot be said that the injuries were not sufficient to cause death in the ordinary course of nature. The knowledge of the appellant that the injuries were sufficient to cause death was irrelevant as stated by the Hon’ble Supreme Court in the case of Virsa Singh vs. State of Punjab (1958 Criminal Law Journal 818). However, the case of the appellant is squarely covered by Exception 4 to Section 300 of IPC. We are fortified in our view by the sat 6 cri.apeal 1263-2004 judgment of the Hon’ble Supreme Court in Criminal Appeal No.457/2007 in the matter of Sayaji Hanmat Bankar vs. State of Maharashtra. For the similar set of facts, the Hon’ble Supreme Court in the said case 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: Exception 4- Culpable homicide is not murder sat 7 cri.apeal 1263-2004 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.” 5 The learned Additional PP Mrs.Kejriwal has submitted all the cases of this nature are not necessarily covered by first part of Section 304 of IPC. We are in full agreement on this issue. However, this case, in our view, attracts exception 4 of Section 300 of IPC. 6 For all these reasons we have come to the conclusion that the conviction of the appellant for the offence punishable u/s.498A of IPC will have to be maintained. His conviction for the offence punishable u/s. 302 of IPC will have to be converted to Section 304-I of IPC. Hence, we pass the following order :- sat 8 cri.apeal 1263-2004 6 The appeal is partly allowed. The Judgment and final order of the learned trial court in Sessions Case No. 12/2002 is modified as under :- 1. The conviction of the appellant for the offence punishable u/s. 498A of IPC and the sentence imposed for the said conviction is maintained, 2. The conviction of the appellant for the offence punishable u/s. 302 of IPC is set aside. 3. The appellant is convicted of the offence punishable u/s. 304-I of IPC and is sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Rs.3000/- and in default, to undergo RI for one month. 4. Both the substantive sentences shall run concurrently. 5. Set-off be given to the appellant for the period already undergone by him in the prison. 6. The order of the learned trial court with regard to disposal of property is maintained. sat 9 cri.apeal 1263-2004 7 The appeal, accordingly, stands disposed of. (M.L. TAHALIYANI, J.) (D.B. BHOSALE, J.)