IMPORTANT POINT
Murder of wife – If kerosene is poured and matchstick is lit and put on body, a person might die due to burns and case would fall under Section 300 fourthly and Exception 4 to Section 300 IPC shall not be applicable.

JUDGMENT :

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2018 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 723 of 2013, by which the High Court has dismissed the said appeal preferred by the appellant herein-original accused and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the accused for the offence punishable under Section 302 of the IPC, the original accused has preferred the present appeal.

2. At the outset, it is required to be noted that the only submission made by the learned counsel appearing on behalf of the appellant-original accused is that the death of the deceased can be said to be a culpable homicide not amounting to murder and the case would fall under Exception 4 to Section 300 IPC and therefore the case would be under Section 304 Part II IPC. Even this Court has issued the notice in the present appeal limited to the nature of offence.

3. Shri Sushil Karanjkar, learned counsel appearing on behalf of the appellant-original accused has vehemently submitted that, as such, there was no intention on the part of the accused to kill his wife. It is submitted that at the time when the unfortunate incident had taken place, the accused was under the influence of liquor and therefore his condition was such that he could not understand what he was doing. It is further submitted by the learned counsel appearing on behalf of the appellant-original accused that even thereafter the appellant tried to save the deceased and poured water to save her and, while doing so, even the appellant-original accused also sustained the injuries. Therefore, relying upon the decision of this Court in the case of Kalu Ram v. State of Rajasthan (2000) 10 SCC 324, it is prayed to alter the conviction from Section 302 IPC to Section 304 Part II IPC.

4. On the other hand, Shri Nishant Ramakantrao Katneshwarkar, learned counsel appearing on behalf of the State, while opposing the present appeal, has vehemently submitted that the decision of this Court in Kalu Ram (supra) shall not be applicable to the facts of the case on hand. It is submitted that in that case before this Court, it was found that the accused was in a highly inebriated condition, which is not the case here. It is submitted that, in the present case, as such, after abusing and assaulting the deceased, the accused poured kerosene on her person and set her ablaze. It is submitted that when the deceased was trying to run out of the house to save herself, at which time, the accused came from behind and threw matchstick on her person and set her ablaze. It is submitted that at the relevant time, the deceased was carrying pregnancy of 18 to 20 weeks. It is submitted that, as per the statement/dying declaration of the deceased, after the deceased came out of the room making noise, the accused poured the water on her. It is submitted that the act of pouring kerosene, though on spur of moment, was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze are intimately connected with each other and resulted in causing death of the deceased. It is submitted that the act of the accused falls under Section 300 fourthly and therefore the death of the deceased can be said to be culpable homicide amounting to murder. It is submitted that every person of average intelligence would have the knowledge that the pouring of kerosene and setting a person on fire is so imminently dangerous that in all probability such an act would cause injuries causing death. It is submitted therefore that Section 300 fourthly shall be attracted and not Exception 4 to Section 300 IPC as submitted on behalf of the accused.

4.1 It is further submitted by Shri Katneshwarkar, learned counsel for the State that merely because subsequently the accused might have poured the water, that is not suffice to alter the conviction from Section 302 IPC to Section 304 Part