APPEAL
1. The appellant Anil Kumar has been convicted under Sections 302 and 498A of the Indian Penal Code1 by both the courts below and has been sentenced to life imprisonment and to pay fine of Rs.50,000/, and in default to undergo simple imprisonment for one year under Section 302 IPC and rigorous imprisonment of one year under Section 498A IPC with direction that both the sentences would run concurrently.
FACTS
2. The incident is of 26.09.2010 and had taken place at 9:00 am in the morning at the house of the appellant. The allegation is that the appellant, with the intention to kill his wife, lighted a matchstick and threw it upon her when she had already poured kerosene upon herself due to the quarrel with the appellant.
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4. On the basis of the aforesaid FIR, the appellant was charged for uxoricide.
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DEFENCE SET UP BY THE ACCUSED
6. In the trial court as well as before the High Court, the defence of the appellant was that he is not at all guilty of burning his wife. She had the suicidal tendency and had tried to immolate herself on one earlier occasion and had once even tried to cut her veins. She herself had poured kerosene upon herself and set herself on fire. The appellant had simply tried to douse the fire by pouring water from the bucket.
7. The defence so set up by the appellant was not accepted by either of the courts below in view of the overwhelming evidence on record regarding their frequent quarrel and the harassment meted out to the deceased wife. The ocular evidence of the witnesses clearly proved that on the date of the incident, there was again a quarrel between both of them though on a petty matter but the deceased wife, in order to avoid torture at the hands of the appellant and to deter him, went inside the kitchen and poured kerosene on herself. Thereafter, the appellant took advantage of the situation and set her on fire.
FACTS ON DYING DECLARATION
11. In the case at hand, admittedly, there are multiple dying declarations on record. The first dying declaration is in the form of the statement Ext.P1. This statement of the deceased wife before her death was made before the Judicial First Class Magistrate, Ernakulam, i.e. PW5. The said statement clearly reveals the cause and circumstances of the death of the deceased wife.
12. The other statement which can be read as a dying declaration is Ext.P10 recorded by PW16, Head Constable, Kuruppampady Police at General hospital, Ernakulam, wherein also the deceased wife repeated the same narration as in Ext.P1 in relation to the incident of her death.
13. Both the above statements, if read together, would reveal that on the fateful day, the appellant had assaulted the deceased wife under the influence of alcohol. He even struck a blow on her chest and pushed her. At the time of the said incident, the children were playing in the courtyard. When the assault of the appellant became unbearable, she took the cane of kerosene from kitchen and poured it on her body whereupon her husband lighted a matchstick and burnt her.
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NARRATION OF FACTS BY THE DECEASED & 96% BURN INJURIES
15. The statement of the deceased wife further categorically states that the appellant was in habit of drinking alcohol and used to assault her frequently in inebriated condition. She also stated that various criminal cases are pending against the appellant in connection with similar kind of assaults. The above aspect, as stated by the deceased, was corroborated by the testimony of PW21 (Investigating Officer). Even the DW1 (Saji Mathew) also proved that the deceased, at the time of the admission in the hospital, narrated about her burn injuries and alleged that her husband assaulted her and that she had poured kerosene on herself whereupon her husband had set her on fire. The medical report reveals that the deceased had suffered 96% burn injuries.
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19. In support of his above argument, learned counsel for the appellant relied upon Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 which was case of a similar kind in connection with uxoricide by burning. However, it would be relevant and material to refer to Exception 4 to Section 300 IPC which defines “Murder” before extending the benefit of the above decision to the appellant.
HUSBAND TOOK ADVANTAGE OF THE SITUATION AND LIGHTD A MATCHSTICK – HOMICIDE
21. The exception clearly in unequivocal term states that it would be applicable where culpable homicide is committed not only without premeditated mind in a sudden fight or quarrel but also without the offender taking “undue advantage” of the situation. In the instant case, the appellant upon seeing the deceased drenched in kerosene clearly took advantage of the situation and lighted a matchstick and threw it upon her so that she can be burnt. The appellant having taken “undue advantage” of the situation cannot be extended the benefit of Exception 4 to Section 300 IPC so as to bring the case within the ambit of PartII of 304 IPC.
22. In view of the above legal position, the ruling cited above, viz. Kalu Ram (supra) would not benefit the appellant.
23. The First Information Report and the dying declarations on record clearly contain the statement of the deceased that when she had poured kerosene upon herself to deter the appellant from fighting and assaulting, he lighted a matchstick and with the intention to kill her, threw it upon her by saying “You Die”.
24. The aforesaid evidence clinches the issue and establishes beyond doubt that the appellant is guilty of the offence of culpable homicide amounting to murder and is not entitled to benefit of the Exception 4 to Section 300 IPC.
25. Accordingly, we are of the opinion that the courts below have not committed any error of fact or law in convicting and sentencing him to a maximum punishment of life imprisonment.
Party
ANIL KUMAR vs. THE STATE OF KERALA – CRIMINAL APPEAL NO.2697 OF 2023 – 2023 INSC 965 – NOVEMBER 01, 2023.
https://main.sci.gov.in/supremecourt/2023/22932/22932_2023_9_1501_47851_Judgement_01-Nov-2023.pdf
