IMPORTANT POINT
The court ruled that the appellant's actions constituted culpable homicide under Section 304 Part-II IPC rather than murder under Section 302, due to lack of intent to kill.

JUDGMENT :

ILESH J. VORA, J.

1. The present appeal is filed by the appellant-original accused under Section 374 of Code of Criminal Procedure, 1973 (old) (‘Cr.P.C.’ in short) against the judgment and order of conviction and sentence dated 19.02.2016 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 32 of 2013, wherein, the appellant came to be tried for offences punishable under Sections 302, 323 and 504 of the Indian Penal Code, 1860 (old) (‘IPC’ for short). At the end of the trial, the appellant came to be convicted under Sections 302 and 504 of IPC and was sentenced as under:

2. Facts and circumstances giving rise to file this appeal are as follows:

2.1. The appellant-accused Dipak Chhaganbhai Khimsuriya, as per the prosecution case, has killed his wife Anuben @ Punamben by pouring kerosene oil upon her and thereafter, she set on fire. The alleged incident took place on 18.12.2012 at about 10:30 a.m. The appellant-accused and his wife were living in a rented premise at City Jamnagar. The marriage span was of 8 years and they blessed with one daughter and baby boy. The marriage was love marriage. Despite of this, their relations were not cordial and there was matrimonial dispute between them. On the day of incident i.e. on 18.12.2012, the appellant-accused had an argument at home for no reason and then, the appellant-accused took the plastic cane filled with kerosene oil allegedly lying in the house and poured kerosene on the deceased-wife and by igniting matchstick, she was set on fire. The appellant-husband was quarreling with the deceased saying that, because of you, his father’s legs have been amputated. The appellant-accused after the incident tried to extinguish the fire by sprinkling water on the deceased and then, he ran away. The owner of the house had also tried to extinguish the fire. The ambulance 108 came after receiving the message of the incident. Meanwhile, the brother of the deceased PW-11 who was residing nearby the area, reached at the scene of offence and before him the deceased had narrated the entire incident. The deceased brought to G.G. Hospital at Jamnagar.

2.2. In the G.G. Hospital, the duty doctor examined her and before the doctor, she had narrated the facts of occurrence which had been noted in the medical case papers by the doctor. She was admitted in the Burns Department. She was under observation of Dr. Ankur Sangal PW-7 and Dr. Maulik Patel PW-8. Before the duty doctor PW-7, she had disclosed the facts of occurrence and same had been noted in the medical case papers.

2.3. The duty constable of G.G. Hospital informed the jurisdictional police station i.e. City “A” Police Station, Jamnagar and same was noted by the P.S.O. of the police station on 19.12.2012 at about 00:50. The PSI - PW-10 H.A. Piparvadiya was entrusted the duty for the inquiry. He reached at the hospital. At about 2:45 a.m., the PSI, Piparvadiya recorded the statement of the deceased and according to him, she was able to speak and mentally fit to make declaration. The said statement treated as FIR and accordingly the offence was registered as I-C.R. No. 421 of 2012 under Sections 307, 504, 323 of the Indian Penal Code. The investigation was entrusted to PW-12 - V.G. Rathod, PI.

2.4. In order to record statement of the deceased, the Executive Magistrate PW-2 - H.D. Joshi was informed at about 2:30 a.m. and the official acknowledgment of the information was noted by him at about 2:55 a.m. After receiving the written yadi whereupon the duty doctor had endorsed that the deceased was in a fit state of mind and was in a conscious mental condition. The Executive Magistrate PW-2, recorded the statement of the deceased between 3:00 a.m to 3:30 a.m. on the same day i.e. 19.12.2012. Before