Penal Code, 1860 – s. 302 and s. 304 Part-II – Prosecution case 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 – Wife died – Appellant was convicted u/ss. 302 and 498-A IPC by both the courts below – Appellant contended that provisions of s.302 IPC are not applicable and at best he can be charged u/s. 304 Part-II of IPC – Propriety: Held: The first dying declaration is in the form of the statement Ext.P1 and the other statement which can be read as a dying declaration is Ext.P10 – Both the 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 struck a blow on her chest and pushed her – When the assault of the appellant became unbearable, she took the cane of kerosene from kitchen and poured it on her body whereupon her husband lighted a matchstick and burnt her – Magistrate-PW5, before whom one of the dying declarations was recorded, proves the correctness of the statement – Appellant was in habit of drinking alcohol and used to assault her frequently in inebriated condition – Victim 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 (Investigating Officer) – On the day of incident, during their quarrel, a neighbour-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, he 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 – In the instant case, the appellant upon seeing the deceased drenched in kerosene clearly took advantage of the situation and lighted a matchstick and threw it upon her so that she can be burnt – The appellant having taken “undue advantage” of the situation cannot be extended the benefit of Exception 4 to s.300 IPC so as to bring the case within the ambit of Part-II of s.304 IPC. [Paras 11, 12, 13, 14, 15, 20 and 21]
LISTS OF CITATIONS AND OTHER REFERENCES
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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