We have heard the learned
counsel for the parties. Learned counsel for the appellant
had argued that the appellant had no premeditated mind to kill the deceased
wife and that he had no intention even to kill her. Therefore, the provisions
of Section 302 of IPC are not applicable and at best he can be charged
under Section 304 of IPC.
The above submission has been strongly opposed on the ground that
the appellant had burnt the deceased wife with a matchstick fully
knowing that she was drenched in kerosene oil and that lighting
of matchstick100 and throwing it upon her would certainly cause her death. In the
case at hand, admittedly, there are multiple dying120 declarations on record. The first dying declaration is in the form of
the statement P1. This statement of the deceased wife before her death was made
before the Judicial First Class Magistrate, Ernakulam. The said
statement clearly reveals the cause and circumstances of the death of the
deceased wife.
The other statement which can be read as a dying
declaration is P10 recorded by the Head Constable at General hospital,
Ernakulam, wherein also the deceased wife repeated the same narration200 as in P1 in relation to the
incident of her death. 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 struck240 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 can of
kerosene from kitchen and poured it on her body whereupon her husband lighted a
matchstick and burnt her. The Magistrate, before whom one of the300 dying declarations was recorded,
proves the correctness of the statement and that when the statement of the
deceased was recorded, she was coherent and oriented. He also
accepted that there was no reason for him to believe that the deceased
was not in a position to make the statement or that the statement made
by her stands vitiated for any360 reason. The statement of PW5 was supported by that of PW14.
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 an inebriated condition.400 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.
Even the DW1 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.480 The medical report reveals that the deceased had suffered 96 per
cent burn injuries. The incident was also proved by500 the oral testimony of PW1
and PW2, the neighbours who took the deceased to the hospital in a jeep and
have seen the deceased in burning state.
In view of the aforesaid facts and circumstances and the evidence on
record, there is no escape from the conclusion that the deceased died of burn
injuries. She had herself poured kerosene upon her body and that the appellant
set her ablaze and later tried to douse the fire by pouring water. The appellant
also accompanied the deceased to the hospital. Now the only point for
consideration is whether in the above circumstances,600 the appellant had any premeditated
mind to kill the deceased or was it due to grave and sudden provocation which
would not amount to murder or would at best be a case of culpable
homicide not amounting to murder punishable with imprisonment for a
term which may extend up to 10 years or with fine or with both under Section
304 of IPC.
In support of his
above argument, learned counsel for the appellant relied upon Kalu Ram
v. State of Rajasthan which was case of a similar kind in connection with uxoricide
by burning. However, it would be700 relevant and material to refer to Exception 4 to Section 300 of IPC
which defines "Murder" before extending the720 benefit of the above decision to
the appellant. It is on the strength of the above exception that from the
side of the appellant it has been argued that the appellant is not
guilty of murder as he had no premeditated mind and that the action of the
appellant arose out of a sudden fight. In the first place, the fight was
not sudden. The appellant and the deceased wife had a past history of quarrel
and that they had800 been quarrelling on the fateful day
before the actual incident. During their quarrel, PW1 had visited their house
and the deceased wife had shown some injuries received by her during the
assault.
However, realizing
the quarrel between the two, he840 left saying that he would come later on. It was thereafter that
the incident of pouring kerosene and burning took place. So, there was
sufficient time in between the two acts and it cannot be said that
there was a sudden quarrel and provocation leading to burning. The
appellant saw the deceased wife drenched in kerosene and was conscious that900 if lighted, she would be
burnt to death. Even then, he ignited her to fire. This shows premeditated mind
to kill her. More particularly, the appellant cannot take advantage of the 4th
Exception only on the pretext that it was not on account of
premeditated mind or out of a sudden fight or that his intentions were not bad
as960 he tried his best
to douse the fire to save the life of the deceased wife. The benefit of
the above exception would have been available to him, had he not taken
undue advantage of the situation.
The exception clearly1000 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 oil clearly took advantage of the situation and lighted a
matchstick and threw it upon her so that she could be burnt. The
appellant having taken undue advantage of the situation cannot be extended1080 the benefit of Exception 4 to
Section 300 of IPC so as to bring the case within the ambit of1100 Section 304 of IPC. In view of the above legal position, the
ruling cited above would not benefit the appellant.
