IMPORTANT POINT
Murder of wife and cruelty – Accused having taken undue advantage of situation cannot be extended benefit of Exception 4 to Section 300 IPC so as to bring the case within ambit of Part-II of Section 304 of IPC.

JUDGMENT :

PANKAJ MITHAL, J.

1. The appellant Anil Kumar has been convicted under Sections 302 and 498A of the Indian Penal Code¹[“IPC”, for short] 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.

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.

3. The FIR No.621/2010 dated 26.09.2010 was initially registered under Section 307 IPC wherein it has been stated that the deceased wife, due to unbearable mental and physical harassment caused to her by the appellant, poured kerosene upon herself to deter the appellant from causing further torture to her and that the appellant with the clear intention to kill her took advantage of the situation and lighted the matchstick and threw it on her body uttering “You Die”. Thus, the deceased wife was inflicted with burn injuries at their residence by the appellant with clear intention of killing her. Subsequently, when the deceased wife died in the hospital, the case was converted into that under Sections 302 and 498A of IPC.

4. On the basis of the aforesaid FIR, the appellant was charged for uxoricide.

5. There is a clear and clinching evidence on record that the appellant used to harass the deceased wife by making demands for dowry and that both of them used to quarrel a lot. The marriage between the two was solemnized about 11 years before the date of incident and from the wedlock they had a boy and a girl. At the time of the incident, their children were playing in the courtyard and that the boy, though of a tender age, had deposed that appellant was in habit of beating his wife and there used to be frequent quarrels between his parents.

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.

8. We had heard the learned counsel for the parties.

9. 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 IPC are not applicable and at best he can be charged under Section 304 Part-II of IPC.

10. 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 lightning of matchstick and throwing it upon her would certainly cause her death.

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 Judicia