Madhya Pradesh High Court
Dashrath @ Katai vs State Of M.P. on 10 March, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
SATISH KUMAR SHARMA J.J.
Cr.A. No. 970 of 2010
Dashrath @ Katai
Vs.
State of M.P.
_______________________________________
Shri Vinay Kumar, Counsel for the Appellant.
Shri C.P. Singh, Counsel for the State.
Date of Hearing : 03-03-2022
Date of Judgment : 10th-03-2022
Approved for Reporting :
Judgment
10th- March -2022
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 29-10-2010 passed by Sessions Judge, Gwalior in S.T. No.35 of 2010 by which appellant has been convicted under Section 302 of I.P.C. and a fine of Rs. 500/- 2
Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) with default imprisonment of 1 month R.I.
2. The undisputed fact is that the deceased is wife of the appellant having married to him about 13-14 years back.
3. According to the prosecution case, on 26-2-2009, the deceased Saroj was admitted in J.A. Hospital at 11:55 P.M. in burnt condition. After receiving an information from the hospital, Omprakash Yadav (P.W.9) went to hospital and gave a requisition to the Doctor to record dying declaration. It was opined by the Doctor that Saroj has suffered 90% burns and is not in a position to speak. During the treatment, Saroj expired and merg information was given to police station and accordingly, merg enquiry no. 12/2009 under Section 174 of Cr.P.C. was registered. Safina form, Ex. P.1 was issued and Lash Panchnama Ex. P.2 was prepared. The dead body was sent for post- mortem. The statements of the witnesses were recorded. During enquiry, it was found that the deceased was preparing food on heater, and when She refused to pay money to the appellant for purchasing liquor, then after pouring kerosene oil on her, the appellant, pushed the head of the deceased near to the heater, as a result She caught fire. Accordingly, FIR in crime no.1281/209 was registered. Spot map, Ex. P.6 was prepared. The appellant was arrested. The police after completing the investigation filed charge sheet under Section 302 of IPC.
4. The Trial Court framed charge under Section 302 of IPC.
5. The appellant abjured his guilt and pleaded not guilty. 3
Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010)
6. The prosecution examined Lalaram (P.W.1), Mukesh (P.W.2), Rajabeti (P.W.3), Vimla (P.W.4), R.B. Singh (P.W.5), Vijay Kumar (P.W.6), Dr. Nikhil Agarwal (P.W.7), Devendra Singh (P.W.8), Omprakash Yadav (P.W.9), and Dr. Farukh Khan (P.W.10).
7. The appellant examined Dr. Farukh Khan (D.W.1) as his defence witness.
8. The Trial Court by the impugned judgment has convicted and sentenced the appellant for the above mentioned offence.
9. Challenging the judgment and sentence recorded by the Trial Court, the Counsel for the appellant submitted that the Court below has failed to see that the deceased herself had disclosed to the Doctor that She has got burnt accidentally while preparing meals on stove. Mukesh (P.W.2) is a child witness and it is dangerous to rely on the child witness. The prosecution has failed to prove the guilt of the appellant beyond reasonable doubt.
10. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court.
11. Heard the learned Counsel for the parties.
12. Before adverting to the facts of the case, this Court would like to find out as to whether the death of the deceased Saroj was homicidal in nature or not?
13. Dr. Nikhil Agarwal (P.W.7) has conducted the post-mortem of the deceased Saroj and found the following injuries on her body :
(i) 2nd and 3rd antemortem burn present on following parts of the 4 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) body :
Lower part of the face, chin, neck, chest, abdomen, right upper limb with dorsum and proximal half of palm, left upper limb upto dorsum, both lower limbs upto ankles, genitals swollen.
At back : from nape of neck to whole of back, left buttock as a whole, right buttock in patches, both lower limbs upto heel.
Death was due to cardio-respiratory failure as a result of burn.
Duration of death within 6 to 24 hours since post-mortem Nature of death should be decided on the basis of circumstantial evidences.
The post-mortem report is Ex. P.9
14. This witness was not cross-examined at all.
15. Thus, it is clear that the deceased Saroj died on account of burn injuries. However, the question that whether the death of the deceased Saroj was accidental, or homicidal or suicidal shall be decided after considering the evidence which has come on record.
16. Lalaram (P.W.1) is the father of the deceased Saroj and he has specifically stated that he has no personal information about the incident, although he has spoken about strain relationship of his daughter and the appellant. He further stated that he was informed by Mukesh (P.W.2) that the appellant had burn the deceased.
17. Mukesh (P.W.2) is the son of the appellant and is a child witness aged about 10 years. He is the eye witness. He has stated that he has two more siblings. He was residing along with his mother, and father in Morar. It was 10-11:00 P.M. His father demanded money from his mother. His mother was preparing meals on heater. When his mother did not give money to his father, then he 5 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) after pouring kerosene oil on his mother, pushed the face of the deceased towards the heater as a result She caught fire. His mother came out of the house in burning condition and lot of persons gathered there. The police took her mother to hospital. On the next day, his mother expired. Some body informed his maternal grand parents after the death and accordingly, they came to Gwalior and took this witness and his siblings with them. This witness was cross- examined.
18. In cross-examination, he stated that his father had the business of kerosene oil. He denied that his mother got burnt accidentally while preparing meals on heater. He denied that his father had tried to save his mother. He denied that there was no dispute between his parents on money issue. He admitted that he and his brother were sleeping on the cot, but on his own explained that he was not sleeping. He further denied that his maternal grand father has tutored him before the recording of evidence.
19. Rajabeti (P.W.3) is the mother of the deceased. She has also spoken about the strain relationship between the deceased and the appellant. She further stated that She has no personal information about the incident. She further stated that Mukesh (P.W.2) had informed her that the appellant had set the deceased on fire. This witness was cross-examined.
20. In cross-examination, this witness has stated that if the fact that Mukesh on his own had informed her about the incident is not 6 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) mentioned in her police statement,Ex. D.1, then She cannot explain the same. (It is not out of place to mention here that the fact that Mukesh (P.W.2) had informed this witness about the incident is mentioned in her police statement, Ex. D.1 but it was stated by her that after they brought the children of the deceased to Jhansi, then on query, Mukesh had informed about the incident.)
21. Vimla (P.W. 4) has turned hostile. She has further stated that the appellant under the influence of alcohol used to quarrel with the deceased and She had tried to pursue him on earlier occasion.
22. R.B. Singh (P.W.5) is the police personal. The safina form is Ex. P.1 and shav Panchnama is Ex. P.2. The letter for recording dying declaration is Ex. P.4. The viscera, scalp hair and salt solution were seized vide seizure memo Ex. P.5.
23. Vijay Kumar (P.W. 6) has turned hostile except that the police had obtained his signatures on spot map, Ex. P.6.
24. Devendra Singh (P.W.8) is the investigating officer. He had received a complaint Ex. P.9 and accordingly FIR, Ex. P10 was registered. The spot map, Ex. P.6 was prepared. The statements of witnesses were recorded, and the appellant was arrested vide arrest memo Ex. P.7. The complaint Ex P.9 was received at 3:30 P.M. The FIR was registered on the very same day. On 25-2-2009, he had enquired as to whether the injured is in condition to give statement or not. The offence was registered on 16-11-2009. Initially, the merg enquiry was done, therefore, there was delay in registration of FIR. 7
Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010)
25. Omprakash Yadav (P.W. 9) has stated that on 25-2-2009, he received an information that one lady has got burnt and accordingly, he went to Morar Hospital and gave a requisition for recording the dying declaration of the injured, however, the Doctors informed that She is not in a position to speak. In the morning of 26-2-2009, the information regarding death of the lady was received. The safina form, Ex. P.1 was issued. The inquest report is Ex. P.2. The statements of the witnesses were recorded and the seized articles were sent to F.S.L. Gwalior.
26. Dr. Farukh Khan (P.W. 10) has stated that on 25-2-2009 at 11:55 P.M., Saroj was brought in burnt condition with 85 to 90% burns. She died on 26-2-2009 at 7:00 A.M. during treatment. The information of death was given by telephone. The merg intimation is Ex. P.11. In cross-examination, he stated that the injured was conscious and was talking.
27. Dr. Farukh Khan (D.W.1) was also examined as defence witness. He stated that on 25-2-2009, the injured Saroj was admitted and She was speaking and had 80- to 85% burns. Saroj had informed that She was preparing meals on Stove and accidentally got burnt. The bed head ticket is Ex. D.3. This witness was cross-examined.
28. In cross-examination, this witness stated that it is incorrect to say that a patient with 80 to 85% burns would not be in a position to speak. He denied that Saroj was unconscious at the time of admission. He admitted that he had not recorded the dying 8 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) declaration of the deceased.
29. Challenging the veracity of the evidence of Mukesh (P.W.2) it is submitted that he is not an eye witness. In fact the injured herself had disclosed to Dr. Farukh Khan (P.W.10 and D.W.1) at the time of her admission that She got burnt accidentally while preparing meals on stove, therefore, in fact it is a case of accidental death and not homicidal.
30. Heard the learned Counsel for the appellant.
31. As per the F.S.L. report, Ex. P. 12, presence of kerosene oil was found in scalp hair of the deceased. Thus, if the deceased Saroj had got burnt accidentally while preparing meals on stove, then kerosene oil should not have been found in the scalp hairs of the deceased. Although Dr. Farukh Khan (P.W.10 and D.W.1) has stated that the deceased herself had informed that She got burnt accidentally while preparing stove, but according to Omprakash (P.W.9), the Doctor had opined that the injured was not in a position to speak. Thus, it is clear that the evidence of Dr. Farukh Khan (P.W.10 and D.W.1) is not reliable in the light of the FSL report.
32. Mukesh (P.W.2) has specifically stated that it was the appellant who set his mother on fire after pouring kerosene oil on her. The presence of kerosene oil in the scalp hair of the deceased, clearly indicates that the kerosene oil was poured from the head of the deceased. Thus, the F.S.L. report, Ex. P.12 corroborates the evidence of Mukesh (P.W.2). Further more, the evidence of Mukesh (P.W.2) is 9 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) corroborated by Lalaram (P.W.1) and Rajabeti (P.W.3) to whom Mukesh (P.W.2) had informed about the incident.
33. In addition, the appellant was residing with his wife. He in his statement under Section 313 of Cr.P.C. has taken the following defence :
eS fuZnks"k gwa eq>s >wBk Qalk;k x;k gS] esjh ifRu ghVj ij [kkuk cuk jgh Fkh ] [kkuk cukrs le; diMksa es vkx yx xbZ eSus mls cpk;k ftlls esjs gkFk iSj cqjh rjg ty x;s Fks vkSj ty tkus ls eq>s vLirky ts ih g‚LihVy es mlh fnu HkrhZ dj fn;k x;k FkkA
34. Thus, from the defence taken by the appellant in his statement under Section 313 of Cr.P.C., it is clear that he had admitted his presence at the time of incident. The next defence of the appellant is that the deceased got accidentally burnt while preparing food on Heater.
35. Now the next question for consideration is that whether the defence of accidental burn while preparing food on heater is plausible or not?
36. As already pointed out, the deceased had suffered 80 to 85% burns. As per the F.S.L., Ex. P.12, kerosene oil was found in the scalp hairs of the deceased. Kerosene oil is never used in heater. Heater uses an electric coil and if the deceased was preparing meals on a heater, then there was no question of presence of kerosene oil in scalp hair. But Mukesh (P.W.2) has clarified the entire situation. According to him after pouring kerosene oil on the deceased, the appellant pushed the face of the deceased towards the heater, as a 10 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) result the deceased caught fire resulting in extensive burns. When the appellant was also in the house, then the deceased can suffer extensive burns only when some inflammable medium is used. As per the post-mortem report, Lower part of the face, chin, neck, chest, abdomen, right upper limb with dorsum and proximal half of palm, left upper limb upto dorsum, both lower limbs upto ankles, genitals were swollen and burns were also found on the back side of the injured i.e., from nape of neck to whole of back, left buttock as a whole, right buttock in patches, both lower limbs upto heel. Thus, it is clear that the deceased had suffered burn injuries all over her body and it is possible only when some inflammable medium is also used.
37. Thus, it is clear that it was the appellant who demanded money from the injured, and when She refused to pay money, then by pouring kerosene oil on his wife, he pushed her face towards the heater as a result the deceased suffered extensive burn injuries as the kerosene oil caught fire.
38. Further, the appellant was with the deceased at the time of incident, therefore, the burden is on him to explain as to how his wife suffered burn injuries.
39. The Supreme Court in the case of State of Rajasthan v. Kashi Ram, reported in (2006) 12 SCC 254 has held as under :
23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is 11 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re.
40. The Supreme Court in the case of Tulshiram Sahadu Suryawanshi v. State of Maharashtra, reported in (2012) 10 SCC 373 has held as under :
23*. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding 12 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar: (SCC p. 393, para 38) "38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: (AIR p. 406, para 11) '11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.'"
41. It is next contended by the Counsel for the appellant, that since, the incident took place all of a sudden without any premeditation, and the appellant also tried to extinguish the fire, therefore, the act of the appellant would not be an offence under Section 302 of IPC and would be punishable under Section 304 Part I of IPC.
42. Considered the submissions made by the Counsel for the appellant.
43. The Supreme Court in the case of Suraj Jagannath Jadhav v.
State of Maharashtra, reported in (2020) 2 SCC 693 has held as under :
8. Heard the learned counsel appearing on behalf of the 13 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) respective parties at length. As observed hereinabove, in the present appeal, the sole question which is posed for consideration of this Court is, whether, in the facts and circumstances of the case, the case would fall under Exception 4 to Section 300 IPC or Section 300 Fourthly and, therefore, whether Section 302 IPC shall be attracted or the case may fall under Section 304 Part II IPC? 8.1. It is the case on behalf of the appellant-original accused that as at the time when the incident took place, the accused was drunk and under the influence of liquor and he had no intention to cause death of the deceased wife and that even subsequently the accused tried to save the deceased and poured water on her and, therefore, the case would fall under Exception 4 to Section 300 IPC and, therefore the conviction is to be altered from Section 302 IPC to Section 304 Part II IPC, having relied upon the decision of this Court in Kalu Ram. However, it is required to be noted that, in the present case, the appellant-accused poured kerosene on the deceased when she was trying to run out of the house to save herself and was trying to open the latch of the door of the house, the accused threw the matchstick on her person and set her ablaze. Nothing is on record that the accused was in a highly inebriated stage. Even looking to the conversation which took place between the deceased and the accused, so stated in the dying declaration given by the deceased, it can safely be said that the accused was in very much conscious condition when the incident took place. He was very much in the senses and was conscious about what he was doing. Therefore, the accused was fully conscious of the fact that if kerosene is poured and matchstick is lit and put on the body, a person might die due to burns. Therefore, the case would fall under Section 300 Fourthly, and Exception 4 to Section 300 IPC shall not be applicable.
8.2. An identical question came to be considered by this Court in Santosh. In the said decision, this Court also had the occasion to consider the inebriation due to consumption of alcohol and when it may be said to be a mitigating factor. In the said decision, this Court also considered the submission made on behalf of the accused that as he attempted to extinguish the fire by pouring water on the deceased and himself getting burn injuries in that process and, therefore, the case would fall under Exception 4 to Section 300 IPC. In the similar facts and circumstances of the case, this Court in Santosh has observed in paras 11 to 15 as under: (SCC pp. 645-46) "11. The question falling for consideration is whether 14 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that: (i) there was a homicide, namely, the death of Saraswatibai; (ii) the deceased was set ablaze by the appellant and this act was not accidental or unintentional; and (iii) the post-mortem certificate revealed that the deceased died due to shock and septicaemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether kerosene was poured from the kerosene lamp or from the can is of no consequence. When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence.
12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder.
13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by 15 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death.
14. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case3, it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram case, the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC.
15. The decision in Kalu Ram case cannot be applied in the instant case. The element of inebriation ought to be taken into consideration as it considerably alters the power of thinking. In the instant case, the accused was in his complete senses, knowing fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be considered as a mitigating factor. An act undertaken by a person in full awareness, knowing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blurred."
8.3. In Bhagwan, while considering the defence of the accused, at the time of pouring the kerosene and lighting a matchstick, he was under the influence of liquor and intoxication and, therefore, the intoxication can be said to be a mitigating circumstance and, therefore, the case would fall under Exception 4 to Section 300 IPC, this Court negatived the said defence by observing in paras 12 and 13 as under: (SCC p. 276) 16 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) "12. Intoxication, as such, is not a defence to a criminal charge. At times, it can be considered to be a mitigating circumstance if the accused is not a habitual drinker, otherwise, it has to be considered as an aggravating circumstance. The question, as to whether drunkenness is a defence while determining sentence, came up for consideration before this Court in Bablu v. State of Rajasthan, wherein this Court held (SCC p. 129, para 12) that the defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence and onus of proof about reason of intoxication, due to which the accused had become incapable of having particular knowledge in forming the particular intention, is on the accused. Examining Section 85 IPC, this Court held that the evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had the intention. The Court held that merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. This Court, in that case, rejected the plea of drunkenness after noticing that the crime committed was a brutal and diabolic act.
13. We find it difficult to accept the contention of the counsel that since the appellant-accused was under the influence of liquor, the offence will fall under Section 304 Part I or Section 304 Part II. A-1 was presumed to know the consequences of his action, of having lit the matchstick and set fire on the saree of the deceased, after A-2 sprinkled kerosene on her body. In our view, the accused was correctly charge-sheeted under Section 302 IPC and we find no reason to interfere with the conviction and sentence awarded by the trial court and affirmed by the High Court."
9. Therefore, the decision of this Court in Kalu Ram upon which reliance has been placed by the learned counsel appearing on behalf of the appellant-accused shall not be of any assistance to the accused, more particularly, in absence of any evidence led by the accused that he was in a highly inebriated condition and/or he was so drunk that he lost all the senses.
Applying the law laid down by this Court in Bhagwan and Santosh to the facts of the case on hand and the manner in 17 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) which the accused poured kerosene on the deceased and, thereafter, when she was trying to run away from the room to save her, the accused came from behind and threw a matchstick and set her ablaze, we are of the opinion that the death of the deceased was a culpable homicide amounting to murder and Section 300 Fourthly shall be applicable and not Exception 4 to Section 300 IPC, as submitted on behalf of the accused. We are in complete agreement with the view taken by the learned trial court as well as the High Court convicting the accused for the offence punishable under Section 302 IPC.
44. Even if the defence of the appellant that he had also tried to extinguish the fire is considered, then it is sufficient to hold that merely because the appellant had tried to extinguish the fire after setting her on fire, the subsequent act of the appellant would not be indicative of fact that he never intended to kill his wife. The gruesome act of pouring kerosene oil and setting his wife on fire would clearly indicate intention and knowledge on the part of the appellant to kill his wife.
45. The next limb of submission is that according to Mukesh (P.W.2), the appellant had demanded money from the deceased, and when She refused to give, then the appellant after pouring kerosene oil on her, pushed here face towards the heater as a result She caught fire. It is submitted that thus, it is clear that the incident took place all of a sudden without any premeditation, therefore, the act of the appellant would be punishable under Section 304 Part I of IPC.
46. Considered the submissions made by the Counsel for the appellant.
47. In order to bring the act of an accused within the purview of 18 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) Section 304 Part 1 or II of IPC, it is not sufficient to prove that the incident took place all of a sudden without any premeditation, but it is also to be proved that the accused did not take undue advantage or did not act in a cruel manner. The Supreme Court in the case of Nandlal Vs. State of Maharashtra reported in (2019) 5 SCC 224 has held as under :
13. In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied: (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offenders having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner.
14. Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is disproportionate to the offence and if the accused had taken undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, this Court held as under: (SCC pp. 396-97, paras 7-8) "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. ... There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offenders having taken 19 Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010) undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning.
A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
(emphasis supplied) The same principle was reiterated in Pappu v. State of M.P. and in Surain Singh v. State of Punjab where the conviction under Section 302 IPC was modified under Section 304 Part II IPC.
48. Pouring Kerosene Oil on his wife and thereafter, pushing her face nearer to the heater, is clear indicative of the intention or knowledge on the part of the appellant. Further it can be safely said that the appellant had also acted in a cruel manner and since, the deceased was unarmed and there was no instigation on her part, therefore, it can also be held that the appellant had taken undue advantage of the situation. Thus, by no stretch of imagination, it can be said that the offence would not be that of murder punishable under Section 302 of IPC.
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Dashrath @ Katai Vs. State Of M.P. (Cr.A. No. 970 of 2010)
49. No other argument is advanced by the Counsel for the appellant.
50. Considering the totality of the facts and circumstances of the Case, this Court is of the considered opinion, that the prosecution has succeeded in establishing the guilt of the appellant under Section 302 of IPC, beyond reasonable doubt. Therefore, he is held guilty of offence under Section 302 of IPC.
51. So far as the question of sentence is concerned, the minimum sentence is Life Imprisonment, therefore, it doesnot call for any interference.
52. Ex-consequenti, the judgment and sentence dated 29-10-2010 passed by Sessions Judge, Gwalior in S.T. No.35 of 2010 is hereby Affirmed.
53. The appellant is in jail. He shall undergo the remaining jail sentence.
54. Let a copy of the judgment be provided immediately to the appellant, free of cost.
55. The record of the Trial Court be send back immediately with a copy of this judgment for necessary information and compliance.
56. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Satish Kumar Sharma)
Judge Judge
ARUN KUMAR MISHRA
2022.03.10 16:33:54 +05'30'