1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 46 of 2003 KANHAIYA LAL V/S STATE Mr. MAHESH BORA, for the appellant / petitioner Mr. KR BISHNOI, PP, for the respondent Date of Order : 17.2.2009 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. JUDGMENT -------- This appeal has been filed the appellant against the judgment of learned Sessions Judge, Dungarpur dt. 29.11.2002 convicting the appellant for the offence under Section 302 IPC, and sentencing him to undergo imprisonment for life, and a fine of Rs. 1000/-, in default to undergo three months additional imprisonment, and at the same time acquitted him of the offence under Section 498A IPC. The incident occurred on 25.3.2001 during day comprising of the wife of the appellant Smt. Shamu receiving burn injuries, and having died. The case of the prosecution is that the appellant was alcohol addict, and used to pick up quarrel with the deceased, and on the fateful day he poured kerosene on her, and set her ablaze, as a result of which she received 95% injuries, and 2 ultimately died on 28.3.2001 i.e. after four days. The only contention raised by the learned counsel for the appellant is that in view of the conduct of the accused, in immediately attempting to extinguish the fire, and saving the deceased, in which process he received injuries, which are proved by the injury report of the accused being Ex.D-1, as well as the fact that the injuries are noticed in the arrest memo, though that arrest memo has not been tendered in evidence by the prosecution; and that the deceased died after four days of the incident, according to the learned counsel, the offence does not fall in any of the clauses of Section 300 IPC, and remains confined only to Section 299, with the result, that the offence made out does not travel to Section 302, but at the most the accused can only be convicted under Section 304 Part-II IPC. He has submitted that since the accused is in custody right from 30.3.2001 the day he was arrested, and by now he has already remained for more than 7 years and 10 months, and therefore, even if the offence is taken to be falling under first part of Section 304 still the sentence already undergone is sufficient to meet the ends of justice. Learned counsel placed reliance on a judgment of this Court dt. 4.4.2007 passed in D.B.Criminal Appeal No. 284/2002 Nathulal Vs. State, wherein the case was originally registered under Section 307 IPC, and on death of the victim it was converted into section 302 IPC. In 3 that case this Court considered the judgments of the Hon'ble Supreme Court in Chand Vs. State of U.P. reported in AIR 1972 SC-955, Laxman Kalu Nikalje Vs. State of Maharashtra reported in AIR 1968 SC-1390, and State of Assam Vs. Mafizuddin Ahmed reported in AIR 1983 SC-274, and also considered that there was no enmity between the deceased and the accused, and the case was resting on dying declaration. This Court in identical circumstances after considering the totality of circumstances of the case found the case to be filling under Section 304 Part-II IPC, and considering the period of imprisonment already served being 5 years and 10 months, awarded the sentence of imprisonment already undergone. In our view, the conduct of the accused in the present case being in attempting to extinguish the fire, and from the evidence on record, as has come, it is not established, that the accused was alcohol addict, or that on the fateful day there was any such quarrel which might have provoked him to kill the deceased. In such circumstances, in our view, the present case also does not travel to Section 302, and stands confined only to Section 304 Part-II IPC. We accordingly alter the conviction to Section 304 Part-II IPC, and since the accused has already undergone imprisonment for a period of practically 8 years, we award him sentence of imprisonment for the period already undergone by him; the sentence of fine of Rs. 4 1000/- is, however, maintained. The appeal is partly allowed as above. The conviction of the accused appellant Kanhaiya Lal is altered from Section 302 IPC to the one under Section 304 Part-II IPC, and he is sentenced to the period of imprisonment already undergone. The sentence of fine of Rs. 1000/- is maintained. The accused appellant is in jail. He be released forthwith, if not required in any other case on depositing fine. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/