DATTATRAYA versus THE STATE OF MAHARASHTRA
[2024] 2 S.C.R. 989, Supreme Court of India, 2024
Outcome: Case Partly allowed (Granted)
Segment: Facts
[2024] 2 S.C.R. 989 : 2024 INSC 167
Dattatraya 
v. 
The State of Maharashtra
Criminal Appeal No. 666 of 2012
01 February 2024
[Sudhanshu Dhulia and Prasanna B. Varale, JJ.]
Issue for Consideration
Whether the courts below were justified in convicting the appellant 
u/ss. 302 and 316 IPC and sentencing to undergo life imprisonment 
and 10 years of R.I. respectively along with fine, for causing death 
of his wife as also the child she was bearing by pouring kerosene 
on her and then setting her on fire.
Headnotes
Penal Code, 1860 – ss. 304 Part II and 316 – Culpable homicide 
not amounting to murder – Causing death of quick unborn 
child by act amounting to culpable homicide – Prosecution 
case that on the fateful night the husband in an inebriated 
state, picked a fight with his nine months pregnant wife and 
then poured kerosene on her, as a result she sustained in 98% 
burn injuries and subsequently died – She also gave birth to 
still born child – Dying declaration recorded – Maternal grand 
mother of the deceased witness to the incident – Conviction 
of the appellant u/ss. 302 and 316 and sentenced to life 
imprisonment and 10 years of R.I. respectively along with fine 
by the courts below – Correctness:
Held: Prosecution has been able to prove its case beyond 
reasonable doubt regarding the incident – Maternal grand mother 
of the deceased witnessed the incident – She along with the 
maternal aunt clearly established the facts – Even though PW 
1 who recorded dying
declaration was declared hostile, there is 
sufficient evidence to prove that it was the appellant who had 
poured kerosene on the deceased which led to the burn injuries 
and the death of the deceased and the child she was bearing – 
Fact that the deceased gave birth to a stillborn child on the next 
day while she was still alive and the death was caused by the act 
of the appellant, makes a case u/s. 316 – From every available
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evidence placed by the prosecution, it is a case where a sudden 
fight took place between the husband and wife – Deceased at 
that time was carrying a pregnancy of nine months and it was 
the act of pouring kerosene on the deceased that resulted in the 
fire and the subsequent burn injuries and the ultimate death of 
the deceased – Said act at the hands of the appellant would be 
covered under the fourth exception given u/s 300 – Act of the 
appellant was not premeditated, but is a result of sudden fight 
and quarrel in the heat of passion – Thus, it would be a case of 
culpable homicide not amounting to murder u/s. 304 Part II in as 
much as, though the accused had knowledge of the consequences 
of the act he was committing, yet there was no intention to cause 
death – Findings of s. 302 converted to that of s. 304 Part II and 
the accused sentenced to 10 years of R.I – Since the appellant 
has already undergone incarceration for more than 10 years, he 
be released forthwith from the jail unless required in some other 
offence. [Paras 11, 12, 14, 17-21]
Case Law Cited
Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324 
– referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.
List of Keywords
Causing death of quick unborn child by act amounting to culpable 
homicide; Dying declaration; Life imprisonment; Culpable homicide 
not amounting to murder; Knowledge of the consequences of the 
act; Intention to
cause death; Premeditated act; Sudden fight and 
quarrel in the heat of passion; Prove its case beyond reasonable 
doubt; Evidence; Witnesses; Sufficient proof; Burn injuries; 
Incarceration.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.666 
of 2012
From the Judgment and Order dated 23.11.2010 of the High Court of 
Bombay at Aurangabad in CRLA No.6 of 2009
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991
Dattatraya v. The State of Maharashtra
Appearances for Parties
Sudhanshu S . Choudhari, Sr. Adv., Ms. Rucha Pande, M Veera 
Ragavan, Ms. Gautami Yadav, Pranjal Chapalgaonkar, M. A. 
Chinnasamy, Advs. for the Appellant.
Bharat Bagla, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, 
Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Adarsh Dubey, 
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
This appeal arises out of the final judgment and order dated 
23.11.2010 passed by the Aurangabad Bench of Bombay High 
Court in Criminal Appeal No. 06/2009 whereby the conviction of 
the appellant under Sections 302 and 316 of the Indian Penal Code 
(for short ‘IPC’) was upheld and the appellant was sentenced to 
undergo life imprisonment under Section 302 and 10 years of R.I. 
under Section 316 of IPC, and was directed to pay fine amount of 
Rs.5000 and Rs.2000/-, respectively.
2.	
The facts of this case are that the appellant (32 years of age in the 
year 2007), was married to one, Meenabai Dattatraya Gawali, (who 
was 30 years of age on the date of the incident). The wife Meenabai 
(deceased) was having a pregnancy of nine months at that time. It is 
the case of the prosecution that the appellant came home at about 
10.00 P.M. on the fateful night of 26.01.2007 in an inebriated state. 
He then picked a fight with his wife while she was cooking food in 
the kitchen and poured kerosene on her and as the stove burst, the 
wife sustained burn
injuries, which in hospital were determined as 
98%. She was taken to the Civil Hospital, Solapur at about midnight, 
where the first injury report itself indicates that she sustained burn 
injuries of about 98%. A statement is then recorded of the deceased 
at 01.30 AM on 27.01.2007, which states as under:-
“

STATEMENT
Solapur
Dated-27/01/2007
Time-01.30 AM
Saturday after completing Friday
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Patient is conscious oriental and fit for giving valid 
statement at present.
1.41 AM – 27.01.2007 – Sd/- Deshpande 
Smt.Minabai Datta Gavli, age 30 years, R/o. A. Kata 
Savargaon, Tq.Taljapur, District. Osmanabad gives 
statement that in the night on Friday 26.01.2007 at 10 PM 
there was trifle dispute between husband and wife and at 
the time of cooking Mr. Dattatraya Gavli, age 40 years, 
service-wireman with the anger of dispute poured rockel 
on me. At that time stove flared up and I burned up to 
98%. My husband is also burned 40%, Mr. Datta Gavli has 
also burnt. He got burnt while putting out the fire. At that 
time husband had drunk liquor. He was addicted to liquor. 
My grandmother admitted in Civil Hospital at night 12 am. 
Now I am under treatment and giving statement myself.
Yours faithfully 
Thumb Impression
Thumb Impression of left hand of 
Smt. Minabai Dattatraya Gavli
Before (M.V.Wagh) Executive Magistrate Office, Solapur.
Patient was conscious oriented and fit for giving valid 
statement.
(Exh.33)
Sd/- A.P.Deshpande-”
3.	
A case is then registered at Tamalwadi Police Station, as Crime No. 
12/2007, filed under Section 307 of the IPC against the appellant.
4.	
As we have already stated above, the deceased at that time was 
nine months pregnant. She gave birth to a stillborn child on the next 
day i.e., 28.01.2007 and died on 04.02.2007.
5.	
The offence which was registered under Section 307 of the IPC was
converted into an offence under Section 302 of the IPC and another 
charge under Section 3161 was added.
1	
Section 316.Causing death of quick unborn child by act amounting to culpable homicide.-- Who-
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Dattatraya v. The State of Maharashtra
6.	
The police after an investigation filed its chargesheet in the Court 
of Judicial Magistrate, F.C., Tuljapur, which was registered as RCC 
No.96/2007 and the case was committed to Sessions, where it 
was ultimately placed before Addl. Sessions Court, Usmanabad, 
Maharashtra. The appellant faced the Trial Court where he was 
convicted of offences under Sections 302 and 316 of IPC and 
sentenced to undergo life imprisonment and 10 years of rigorous 
imprisonment respectively, along with fine and default stipulation.
7.	
The matter was taken in an appeal before the Bombay High Court 
by the appellant which was dismissed.
8.	
The Special Leave Petition later was filed by the appellant before 
this Court in which leave was granted vide order dated 09.04.2012.
9.	
We have heard Mr.Sudhanshu S. Choudhari, learned counsel 
appearing for the appellant and Mr.Bharat Bagla, learned counsel 
appearing for the respondent, at some length.
10.	 The prosecution in this case had examined nine prosecution witnesses 
and placed relevant documents such as medical reports, dying 
declaration etc., in order to establish its case. The appellant gave 
his statement under Section 313 of the Cr.P.C., but did not produce 
any defence witnesses. In his statement, under Section 313 of the 
Cr.P.C., the appellant admits to the fact that at the relevant point of 
time, PW-7 who is the maternal grandmother of the deceased (the 
wife of the
appellant) was residing with them. He also admits that 
his wife was nine months pregnant at the time of the incident and 
gave birth to a stillborn child on 28.01.2007. He, however, denies 
all instances of quarreling with his wife and committing the act as 
alleged by the prosecution. PW-7 here is the star witness of the 
prosecution, who was present in the house and was witness to the 
crime. There is also a dying declaration.
11.	 After hearing the learned counsel for the parties and then examining 
the evidence placed by the prosecution, we find that there is an 
overwhelming evidence placed by the prosecution before the Trial 
Court regarding the incident itself. The prosecution has been able 
ever does any act under such circumstances, that if he thereby caused death he would be guilty of cul-
pable homicide, and does by such act cause the death of a quick unborn child, shall be punished with im-
prisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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to prove its case beyond reasonable doubt regarding the incident 
itself inasmuch as the incident took place on midnight of 26.01.2007 
and 27.01.2007, and the appellant who was in an inebriated state, 
picked a quarrel with his wife and while she was cooking his meal 
in the kitchen, poured kerosene on her as a result of which she 
sustained burn injuries and subsequently died.
12.	 The fact that the appellant had quarreled with the deceased and had 
poured kerosene on her is well established. The statement given by 
the deceased herself, which the prosecution has placed as a dying 
declaration, categorically states that she was being tortured at the 
hands of her husband and that her husband was having an affair 
with another woman, and that on the fateful day, he returned late 
at night in an inebriated state had a fight with her and then threw 
kerosene on her, as a result, she sustained burn injuries. But then, 
she also states that he also tried to extinguish the fire and as a 
result, he too got burn injuries. The other evidence as we have stated 
above, is in the form of PW-7, Chaturabai Tukaram Kale, who is the 
maternal grand mother of the deceased, who was residing with the 
deceased and her husband (appellant) eight to nine days prior to 
the incident, and was taking care of the deceased as she was on 
the family way. She also supports the story that the appellant was 
having an affair with another woman which
was the main reason 
for the quarrel between the couple. On the fateful day, the two were 
quarreling because of this reason alone and the appellant, thereafter, 
threw kerosene on his wife, and set her on fire. Having witnessed 
the incident she came out of the house and started shouting that 
my grand daughter has been set on fire.
13.	 Another prosecution witness which is worth mentioning here is PW-8 
i.e. Vimal Suryakant Salunkhe, who is the maternal aunt, of the 
deceased and the daughter of PW-7. This witness was told by the 
deceased that the appellant had kept a mistress and this resulted 
in frequent fights between husband and wife (i.e., the deceased). 
Deceased had also informed her that her husband i.e., the accused, 
was addicted to liquor. She was told about the incident by her mother 
(PW-7) at about 1 ‘O’ Clock in the night, and the fact that the burn 
injuries were caused by the act of the accused (the appellant). On 
information received from her mother (PW-7), she went to the Civil 
Hospital, Solapur, along with her husband where she saw Meena 
(the deceased), in a burnt condition and it was the deceased who
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told her that the appellant had kept a mistress at Kati-Sawargaon 
and it was for this reason, that he was picking quarrels with her. At 
the time of the incident, she was cooking food on the stove for her 
husband and it was for this reason that when he poured kerosene 
on her, which was lying in the can, the stove burst and she came out 
of the room shouting for help. She was also asked by people who 
had gathered at the house by that time as to why her husband has 
done this to her. This witness (PW-8), then states that the deceased 
died in the hospital after nine days. She had also recognized the 
accused who was before the Court. This witness was again put to a 
lengthy cross examination without giving any benefit to the defence.
14.	 Both PW-7 and PW-8 have clearly established the fact that the burn 
injuries were caused by the appellant and that he had returned to 
his house in an inebriated state and was under the influence of 
liquor while he did the act, after picking a quarrel with his wife. The 
presence of PW-7, being a witness, in the house at the time of the 
incident was never in doubt.
15.	 The statement was given to PW-8 by the deceased stating how she 
sustained burn injuries at the hands of her husband, i.e., the present 
appellant, and the same was first recorded in the statement which 
was given immediately after she had reached the hospital at about 
01.30 AM on 27.01.2007, before PW-1. PW-1
was working as ‘Avval 
Karkun’2 in the Tahsil Office, North Solapur, at the relevant point of 
time and was requested by the police at 12:30 AM in the night to 
record the dying declaration of the deceased at Civil Hospital, Solapur.
16.	 The examination-in-chief of PW-1 reads as under:-
“

Exam-in-Chief by APP Shri Jadhav
1.	
I am working as Aval Karkun in Tahsil office, 
North Solapur. Since 2d Jan. 2007 I am working as 
Special Executive Magistrate. For two days, work 
of recording of dying declaration was allotted to 
me on Friday and Saturday. On 26th Jan. 2007 I 
was in my house. Police had been to my house in 
the night at about 12.30 O’clock. I was requested 
to record the dying declaration orally. Thereafter 
2	
Special Executive Magistrate
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I had been to Civil Hospital, Solapur. A letter was 
given to me for recording dying declaration of 
Meena Gawali and her husband Datta Gawali. I 
am having the copy of letter with me. I had given 
my endorsement on the office copy of the letter 
of the police. The said letter now shown to me 
is same. It is at exh.23. Thereafter I had been to 
Medical officer Shri A.P. Deshpande and requested 
him to show the patient. The patients were shown 
to me. Both the patients sustained burn injuries. 
Before recording DD I requested medical officer 
to examine the patient and certify about the same. 
Doctor examined Dattatraya Bhanudas Gawali. Dr. 
Deshpande accordingly made the endorsement 
on the statement of Dattatraya Gawali at the top 
of the same. The patient disclosed his name as 
Dattatraya Bhanudas Gawali R/o. Kati Sawargaon. 
As per the statement given by the patient, I 
recorded the same. I read over the statement to 
Dattarya and he admitted the same to be correct. 
I obtained the left thumb mark of the patient. I 
again requested the Medical officer to examine the 
patient and to tell me as to whether he is conscious 
or not. Doctor examined patient and certified the 
patient to be conscious. The endorsement now 
shown to me is of medical officer. While recording 
the statement I myself, Datta Gawali and medical 
officer only were there. I put my signature on the 
statement. The statement now shown to me is the 
same.
It is in my hand writing. It is at exh. 24. The 
patient disclosed me that on 26.01.2007, in the 
night there was quarrel between myself and my 
wife and at the relevant time, I poured kerosene 
on her person in the angry mood when she was 
cooking food. Dur to that according to the patient 
they both sustained burn injury. He told me that 
he was under the influence of liquor.
2.	
I also recorded the dying declaration of Meenabai 
Gawali and requested Dr. A.P. Deshpande to
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Dattatraya v. The State of Maharashtra
examine patient before recording her statement. 
After examining the patient Doctor told me that 
patient was conscious and was in position 
to give statement. Accordingly doctor put his 
endorsement on the dying declaration in the 
beginning of the statement. The patient disclosed 
her name as Meena Datta Gawali, R/o. Kati 
Sawargaon. Meenabai told me that in the nigh on 
26.01.2007 when she was cooking the food there 
was quarrel between herself and her husband and 
at the relevant time her husband poured kerosene 
on her person in angry mood due to which there 
was bursting of stove in which she sustained burn 
injury. She also told that her husband was under 
the influence of liquor. Accordingly I recorded 
the dying declaration given by Meenabai. The 
same was read over to the deceased which she 
admitted to be true and correct. I also obtained 
the left thumb mark of the patient on the dying 
declaration. Again I requested the medical officer 
to examine the patient and tell me as to whether 
she was in position to give statement or not. 
Doctor A.P. Deshpande again examined the 
patient and certified the patient to be conscious. 
Accordingly he put the endorsement alongwith 
his signature on the dying declaration. At the 
time of recording of dying declaration I myself, 
patient and doctor only were there. The dying 
declaration now shown to me is the same. It is 
in my hand writing. It bears my signature.
It is at 
exh. 25. The contents therein are true and correct. 
Thereafter I handed over the statements to the 
police chauky, Civil hospital, Solapur.”
17.	 This witness was cross-examined by the defence as there was 
some discrepancy in his statement as to whether the deceased was 
in a proper state of mind to give a statement. His examination-in-
chief was taken again by the Assistant Public Prosecutor and the 
witness was declared hostile only to the extent of discrepancy that 
the patient was not in a position to talk. But nothing substantially
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moves on this aspect, inasmuch as, even if we do not consider the 
dying declaration of the deceased which was given at 01.30 AM in 
the night on 27.01.2007, there is sufficient evidence to prove that 
it was the appellant who had poured kerosene on the deceased 
which led to the burn injuries and the death of the deceased and 
the child she was bearing. There is no doubt that an offence under 
Section 316 has clearly been made out. We only have to examine 
whether an offence here is under Section 302 of IPC or is it of a 
lesser magnitude.
18.	 Having considered the entire evidence at length, we are also of the 
considered opinion that under the given facts and circumstances of 
the case, it would not be a case of murder but of culpable homicide 
not amounting to murder for the reasons which we want to state 
as under.
19.	 We have, by and large, accepted the case of the prosecution as to 
the incident itself. There is sufficient evidence to prove that the burn 
injury was caused to the deceased by an act done at the hands of 
the appellant and it was the appellant who had come to his house 
under the influence of liquor and poured kerosene on his wife while 
she was cooking food for him on a stove, which resulted in bursting 
of the stove and causing burn injuries on the deceased. There is also 
sufficient proof of the fact that the husband and wife were having 
frequent fights even earlier. This has come out in the
deposition of 
PW-7 and her cross-examination has inspired our confidence as well 
as that of PW-8 though she is not an eye-witness to the incident. The 
fact that the deceased gave birth to a stillborn child on the next day 
i.e., 28.01.2007 while she was still alive and the death was caused 
by the act of the appellant which we have already stated above, also 
makes a case under Section 316 of the Indian Penal Code.
20.	 From every available evidence, which was placed by the prosecution, 
it is a case where a sudden fight took place between the husband 
and wife. The deceased at that time was carrying a pregnancy of 
nine months and it was the act of pouring kerosene on the deceased 
that resulted in the fire and the subsequent burn injuries and the 
ultimate death of the deceased. In our considered opinion, this act at 
the hands of the appellant will be covered under the fourth exception 
given under Section 300 of the IPC, i.e., “Culpable homicide is not 
murder if it is committed without premeditation in a sudden fight in
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Dattatraya v. The State of Maharashtra
the heat of passion upon a sudden quarrel and without the offender’s 
having taken undue advantage or acted in a cruel or unusual manner”.
21.	  The act of the appellant is not premeditated, but is a result of sudden 
fight and quarrel in the heat of passion. Therefore, we convert the 
findings of Section 302 to that of 304 Part-II, as we are of the opinion 
that though the appellant had knowledge that such an act can result 
in the death of the deceased, but there was no intention to kill the 
deceased. Therefore, this is an offence which would come under 
Part-II not under Part-I of Section 304 of the IPC. 
On almost similar facts, (as are present in the case at hand), this 
Court had converted the findings of Section 302 to that of Section 
304 Part II IPC. The case of which reference is being made here is 
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324. The appellant 
who had been convicted under Section 302 IPC for causing death of 
his wife by pouring kerosene on her and then setting her on fire was 
convicted by the Trial Court under Section 302, which was upheld 
by the High Court. The facts of the case are as follows :-
In the above case, the appellant who in an inebriated state was 
pressurizing his wife to part with some ornaments so that he could 
buy some more liquor. On her refusal he poured kerosene on her and 
set her on fire by lighting a matchstick. But then he also tried to pour 
water on her
to save her. This Court was thus of the opinion that :
“7….Very probably he would not have anticipated that 
the act done by him would have escalated to such a 
proportion that she might die. If he had ever intended 
her to die he would not have alerted his senses to 
bring water in an effort to rescue her. We are inclined 
to think that all that the accused thought of was to 
inflict burns to her and to frighten her but unfortunately 
the situation slipped out of his control and it went to 
the fatal extent. He would not have intended to inflict 
the injuries which she sustained on account of his 
act. Therefore we are persuaded to bring down the 
offence from first degree murder to culpable homicide 
not amounting to murder.
8. We therefore alter the conviction from Section 302 
IPC to Section 304 Part II IPC...”
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The facts of the present case, as we have already discussed above, 
by and large reflect the same situation, nature of crime as well as 
the act of the accused and the consequences of his action. We are 
inclined to accept the arguments raised by the learned senior counsel 
for the appellant, Mr. Sudhanshu S. Choudhari that under the present 
circumstances it would indeed be a case of culpable homicide not 
amounting to murder as given in Section 304 Part II in as much as, 
though the accused had knowledge of the consequences of the act 
he was committing, yet there was no intention to cause death. 
The appeal is partly allowed. We convert the findings of Section 302 
to that of Section 304 Part II of IPC and sentence the accused to 10 
years of R.I. To this extent the findings given by the trial court and 
High Court will stand modified. We have also been informed that 
the appellant has already undergone incarceration for more than 10 
years. Therefore, he shall be released forthwith from the jail, unless 
he is required in some other offence.
Headnotes prepared by: Nidhi Jain
Result of the case: 
Appeal partly allowed.