Telangana High Court
Gopal Bahadur , Basheer Ahmed, ... vs The State Of Telangana, Rep Pp., on 12 November, 2024
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THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. ANIL KUMAR
CRIMINAL APPEAL No.41 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed aggrieved by the judgment dated 16.11.2015 in S.C.No.296 of 2011, on the file of the VIII Additional Sessions Judge, at Warangal, convicting the appellant for the offence under Section 302 of IPC.
2. Heard the learned counsel for the appellant/accused and the learned Additional Public Prosecutor for respondent- State.
3. The case of the prosecution is that the appellant married his wife (hereinafter referred as 'deceased') nearly 14 years prior to the incident. It was a love marriage. They had two sons out of their wedlock. The appellant was addicted to alcohol and used to come home in a drunken condition and used to harass the deceased. It is alleged that the incident happened on 04.12.2010 in the night at about 8:30 p.m. The appellant went to the house after consuming alcohol and there was quarrel in between the spouses. Enraged by questioning by the deceased, the appellant poured 2 kerosene/petrol on her and lit fire with a match stick. When the deceased caught fire, immediately, the appellant extinguished fire by pouring water and in the process, the appellant also sustained burn injuries to his hands and face. Then the appellant took the deceased to the hospital. On the request given by the duty Doctor, P.W.12/jurisdictional Magistrate went to the hospital and recorded dying declaration/Ex.P.20. Learned Magistrate having put preliminary questions was satisfied that the deceased was in a fit state of mind and started recording the declaration. The duty Doctor also endorsed on the dying declaration that patient was conscious, coherent and mentally fit condition while recording the dying declaration.
4. In the said dying declaration, the deceased stated that marriage with the appellant was performed 14 years ago and it was love marriage. The incident happened when the appellant came home in a drunken condition and poured kerosene/petrol on her. Though she stated it was not funny, however, the appellant immediately lit match stick and threw it at her. To the next question, the deceased stated that her husband poured water and put off the flames and brought her to the hospital.
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5. Learned Sessions Judge having considered the evidence of the deceased in the statement made found that with an intention to commit murder, appellant poured petrol and lit fire to her. The act of extinguishing flames and taking her to the hospital in no way would help the appellant. Basing on the said findings, the appellant was convicted to life imprisonment for the offence under Section 302 of IPC.
6. The only ground raised by the learned counsel appearing for the appellant is that it is admitted that the appellant was in a drunken condition and the pouring of petrol was in an intoxicated condition. However, when he lit fire, he immediately realized his acts, poured water on her. In the process of extinguishing flames, he had received injuries on his hands and face, that in itself would show that there was no intention of causing death. The said act of pouring petrol was totally unintentional. At most, the offence may fall under Section 304-II of IPC.
7. Learned counsel relied on the judgment of the Hon'ble Supreme Court in Kaluram vs State of Rajasthan1. The relevant paragraph 7 reads as under:-
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1999 Lawsuit (SC) 725 4 "But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder."
8. Learned counsel also relied on the judgment of the Hon'ble Supreme Court in Dattatraya vs. The State of Maharashtra 2. In Dattaraya's case the Hon'ble Supreme Court relying on Kaluram's case held that offence would not 2 CRl.A.No.666 of 2012 5 fall under Section 302 of IPC and falls within the four corners of Section 304-II of IPC.
9. Nowhere, the prosecution has disputed the intoxicated condition of the appellant when the incident had taken place. It is also not in dispute that the appellant having realized his folly, he immediately extinguished fire and took her to the hospital.
10. Further his receiving injuries on his hands and face and being admitting into hospital for burns was also not disputed.
11. The observation of the Hon'ble Supreme Court in both the judgments stated supra would squarely apply to the case on hand. Though the facts in the said judgments slightly vary, however, substratum of the judgments is that from the facts in a case, if it can be deduced that there is no intention on the part of the accused to murder the deceased, no offence will be made out under Section 302 of IPC, conviction can be recorded under Section 304-II of IPC.
12. As already narrated, in the present facts of the case, we do not hesitate to hold that there is absolutely no intention on the part of the appellant to commit murder of 6 the deceased. Accordingly, conviction under Section 302 of IPC is set aside and the appellant is convicted under Section 304-II of IPC.
13. The total period undergone by the appellant as on the date of grant of bail is more than 9 years, as such, we deem it suffice to inflict the sentence of period already undergone by the appellant. Since the appellant is on bail, his bail bonds shall stand discharged.
14. Accordingly, the Criminal Appeal is partly allowed.
_________________ K.SURENDER, J ___________________ J. ANIL KUMAR, J Date: 12.11.2024 dv