Gujarat High Court
State Of Gujarat vs Shaikh Rafik Shaikh Hushain on 17 June, 2025
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R/CR.A/1494/2013 JUDGMENT DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1494
of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT
Versus
SHAIKH RAFIK SHAIKH HUSHAIN
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Appearance:
MR BHARGAV PANDYA, APP for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No.
1
MS KIRAN D PANDEY(3337) for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
and
HONOURABLE MR.JUSTICE D. M. VYAS
Page 1 of 15
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Date : 17/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY)
1. Assailing the judgment dated 17.08.2013 passed in Sessions
Case No. 100 of 2012 on the file of learned Additional Sessions
Judge, Surat, whereby, the sole accused was acquitted of the charge
for the offence publishable under Section 302 of the Indian Penal
Code, 1860 (herein after referred to as "the IPC") and was
convicted for the offence punishable under Section 304, Part-II of
IPC, imposing punishment of only 7 years' rigorous imprisonment
(RI) with fine of Rs.10,000/- and in default, to undergo simple
imprisonment (SI) for 3 months, State has preferred the instant
appeal questioning the legality and validity of acquittal of the
accused for the offence punishable under Section 302 of IPC.
2. Fact of the present case lie in a narrow compass and may be
stated as follow:
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2.1 The deceased is the legally wedded wife of the accused. They
were married about 13 years prior to the date of offence. They are
blessed with two sons and two daughters during their wedlock.
2.2 On the fateful day of 21.11.2011, at about 8:30 p.m., the
accused came to his house and when the deceased, who is his wife,
served food to him for his dinner, the accused is not satisfied with
the Curry prepared and cooked by the deceased. When he
questioned her in this regard, some altercation took place between
the accused and the deceased. There were heated exchange of words
between them at that time. At that time, as there was no power in
the house, one oil lamp was burning in the house. In the said heated
exchange of words between both of them in the said quarrel, the
accused became enraged and in that fit of anger, he kicked the oil
lamp, which is on the floor of the house, forcibly. It went and fell on
the body of his wife and she was gutted in fire in the said process.
The accused, immediately, ran away from the place, even without
making any attempt to rescue her by extinguishing the fire on her
body. She suffered burn injuries in the said incident.
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2.3 After hearing her cries, her sister took her to the hospital. On
intimation given by the personnel of the hospital, the Sub Inspector
of Police reached the hospital and recorded the statement of the
victim. She stated in her statement given to the police that the
accused has thrown the oil lamp on her when a quarrel took place
between both of them as he was not satisfied with the food prepared
by her for his dinner. The said statement was registered as FIR by
the police for the offence punishable under Sections 307 and 504 of
the IPC. The said statement was recorded at about 11:50 p.m. on
that day, during the night time. On the next day i.e. on 22.11.2011,
in the early morning at about 4:05 a.m., as her condition became
serious in view of the fact that she sustained 85-90% burn injuries,
on a requisition made by the doctor, local Executive Magistrate has
reached the hospital and recorded the Dying Declaration of the
victim. She stated in her Dying Declaration that when a quarrel took
place between her and her husband, who is the accused, as he was
not satisfied with the food prepared by her for his dinner, that the
accused has kicked the oil lamp which is on the floor of the house,
forcibly and that, it fell on her and she was gutted in fire and
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sustained burn injuries.
2.4 Thereafter, she succumbed to the said injuries on 23.11.2011.
On intimation of her death to the police, FIR was altered and Section
302 of the IPC was added and the case was registered against the
accused for the offences punishable under Sections 302, 307 and 504
of the IPC.
2.5 The case was investigated and eventually, after completion of
investigation, Charge-sheet was filed by the police for the offences
punishable under Sections 302, 307 and 504 of the IPC in the
committal Court. The case was then committed to the Sessions
Division and thereafter, it was made over to learned Additional
Sessions Judge, Surat for trial. Charges for the offences punishable
under Sections 302, 307 and 504 of the IPC were framed against the
accused and the same was read over and explained to him. The
accused abjured the guilt and claimed to be tried.
2.6 At the culmination of trial, the accused was acquitted of the
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charge for the offence punishable under Section 302 of the IPC.
However, he was found guilty for the offence punishable under
Section 304 Part-II of the IPC by the trial Court on the ground that
he never intended to commit murder of the deceased and that, the
incident took place at the spur of the moment and the accused kicked
the oil lamp which is on the floor of the house in a fit of anger in the
said heated atmosphere and it fell on the body of the deceased and
she was gutted in fire and sustained burn injuries and succumbed to
the same. Therefore, the learned Additional Sessions Judge found
the accused guilty only for the offence punishable under Section 304
Part-II of the IPC and accordingly, convicted him for the said
offence and sentenced him to undergo imprisonment as detailed
supra.
2.7 Dissatisfied with the said judgment of acquittal of the accused
for the offence punishable under Section 302 of the IPC and only
convicting him for the offence punishable under Section 304 Part-II
of the IPC, and aggrieved thereby, State has preferred the instant
appeal questioning the legality and validity of the judgment of
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acquittal for the offence punishable under Section 302 of the IPC.
3. We have heard learned Additional Public Prosecutor
Mr. Bhargav Pandya for the appellant - State and learned counsel
Ms. Kiran Pandey for the respondent, at length. We have perused
the record and proceedings, evidence on record and other material on
record and meticulously considered the same with reference to the
facts and circumstances of the case.
3.1 The fact that the deceased is wife of the accused and that their
marriage took place about 13 years prior to the date of offence, is not
in controversy. They are admitted facts. The facts of the case
clearly show that when the accused reached his house at about 8:30
p.m. on the night of 21.11.2011 and when the deceased, who is his
wife, served food for his dinner, that the accused was not satisfied
with the food prepared and cooked by her and that, he questioned her
in that regard and in the said process, there was a quarrel between
both of them and that there are heated exchange of words between
both of them. These facts are not seriously in dispute. As there was
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no power supply in the house at that time, an oil lamp was burning
on the floor of the house. During the quarrel that took place as
discussed supra, the accused became furious and in a fit of anger and
at the spur of the moment, he kicked the said oil lamp available on
the floor, losing his temperament and the said oil lamp went and fell
on the body of the deceased and she was gutted in fire. As per
medical evidence, she sustained 85-90% burn injuries and
ultimately, she succumbed to the said injuries on 23.11.2011.
3.2 After considering the evidence on record and on appreciation
of the said evidence, the learned Additional Sessions Judge found
that the accused is responsible for the burn injuries sustained by the
deceased and that, he is responsible for her unnatural death.
However, he did not find the accused guilty for the offence
punishable under Section 302 of the IPC. But, as noticed supra, the
learned Additional Sessions Judge found the accused guilty for the
offence punishable under Section 304 Part-II of the IPC and
accordingly, convicted him for the said offence and imposed
sentence as detailed supra. It is the said judgment of acquittal for the
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offence punishable under Section 302 of the IPC, which is now
assailed by the State in this appeal. So, the question to be
determined now is, whether the accused deliberately committed
murder of the deceased and thereby, committed an offence
punishable under Section 302 of the IPC or whether, he is only liable
for the offence punishable under Section 304 Part-II of the IPC, or
not.
3.3 Admittedly, as can be seen from the contents of the FIR,
which is the statement of the deceased and as can be seen from the
Dying Declaration, which is the last statement of the deceased given
before the learned Executive Magistrate, there was no allegation of
any harassment caused to the deceased by the accused prior to the
date of offence. There was no enmity of any nature between both of
them. It appears that they were cordial in their relationship as
husband and wife for the entire period of 13 years of their marital
life, prior to the incident. It is only when the accused has questioned
the deceased as he was not satisfied with the food prepared and
cooked by her for his dinner, that a quarrel took place between both
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of them and there were heated exchange of words between both of
them. Unfortunately, the accused, who lost his temperament in the
said quarrel, in a fit of anger, kicked the oil lamp which is on the
floor of the house and it went and fell on the body of the deceased
and she was gutted in fire and ultimately, succumbed to the burn
injuries sustained by her in the said incident. So, a careful
consideration of the facts of the case and the entire gamut of
evidence on record, clearly show that it was not a premeditated act
committed by the accused to cause any bodily harm to the deceased
with intention to cause her death or to kill her. He never intended to
commit murder of the deceased. So, there is no intention to kill or
commit murder of the deceased on the part of the accused. It is only
on account of the fact that he has kicked the oil lamp, which is on
the floor, in a fit of anger and in an infuriated state of mind, it fell on
her body which resulted into her death on account of burn injuries
sustained by her in the said incident. Although, the deceased,
initially stated in the FIR recorded at about 11:50 p.m. on
21.11.2011 that the accused has thrown the oil lamp on her, she has
prevaricated from the said statement and again, on the next day i.e.
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on 22.11.2011 at about 4:05 a.m., she has stated in her Dying
Declaration before the learned Executive Magistrate that the accused
kicked the lamp which is on the floor and it fell on her and she
sustained burn injuries. Thus, two versions, which are inconsistent
with each other, are emanating from the statements given by her, one
before the police and other before the Executive Magistrate in her
Dying Declaration. They are clearly inconsistent with each other.
The leaned Additional Sessions Judge has believed the version and
statement given by her in her Dying Declaration before the learned
Executive Magistrate. In our opinion also, he has rightly taken the
said version in Dying Declaration into consideration and believed
the same in arriving at the conclusion that there is no offence of
murder committed by him and that, he is liable only for the offence
punishable under Section 304 Part-II of the IPC.
3.4 It is well settled law that when two views are possible from the
evidence on record, the view which is favourable to the accused
shall be taken into consideration by the Court. So, the trial Court
has rightly taken the correct view as per the Dying Declaration of the
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deceased and correctly recorded the finding that as the accused
kicked the lamp in a fit of anger during altercation, it went and fell
on the body of the deceased and she sustained burn injuries and
succumbed to the same. We do not find any legal flaw in recording
the said finding by the trial Court. The trial Court has rightly
appreciated the evidence on record and arrived at a right conclusion.
As already observed supra, the act of the accused is not a
premeditated act and he never intended to kill her or commit murder
of her and it is only on account of the fact that he kicked the oil lamp
in a fit of anger, the incident took place.
3.5 Murder is defined in Section 300 of the IPC. It has carved out
five Exceptions and if the case falls in any one of the said
Exceptions, then it does not amount to murder and it amounts to
culpable homicide not amounting to murder and then, the case is to
be considered under Section 304 Part-I or Part-II of the IPC, as the
case may be, depending upon the facts and circumstances of the
case. So, to hold a person to be guilty and to punish him under the
first or the second Part of Section 304 of the IPC, necessary
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ingredients to be established are that, death must be caused by the
assailant under any of the circumstances mentioned in the five
Exceptions to Section 300 of the IPC. The facts of the present case
fall within Exception 4 of Section 300 of the IPC, which reads as
under:
"Exception 4.-- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual
manner."
3.6 Therefore, as discussed supra, the facts of the case clearly fall
within the ambit of Exception 4 to Section 300 of the IPC, which
justifies the finding of the trial Court that the accused is guilty for
commission of offence punishable under Section 304 Part-II of the
IPC alone.
3.7 Learned Additional Public Prosecutor vehemently contended
that after the incident, the accused at least did not make any effort to
save his wife by extinguishing the fire on her body or taking her to
hospital and that, he ran away and this subsequent conduct of the
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accused shows that he intended to commit murder of her. We are
unable to accede to the said contention. The mere fact that he ran
away from the place without saving her wife by itself will not prove
or establish the fact that he got intention to commit murder of the
deceased and that with that intention, he kicked the lamp which
resulted into her death due to burn injuries sustained by her in the
said incident.
3.8 The learned Additional Sessions Judge, upon considering the
evidence on record and on proper appreciation of the same and also,
after considering the facts of the case, arrived at a right conclusion
and held the accused is guilty of the offence punishable under
Section 304 Part-II of the IPC. We do not find any legal flaw in the
said finding recorded by him and the conclusion reached by him.
Therefore, it does not warrant any interference in this appeal. There
are no perverse findings recorded by the learned trial Judge or
erroneous appreciation of evidence on record by the learned trial
Judge. Upon considering the said evidence on record and on
reappraisal of the same, we fully agree with the findings recorded by
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the trial Court. Therefore, this appeal fails and is liable to be
dismissed.
4. In fine, the appeal is dismissed. Notice of admission is
discharged. Bail bond shall stand cancelled. R&P, be sent back to
the trial Court, forthwith.
[ Cheekati Manavendranath Roy, J. ]
[ D. M. Vyas, J. ]
hiren/SB-I-2tss18625
