Karnataka High Court

Shivaraju vs State Of Karnataka on 14 January, 2022

Bench: G.Narendar, E.S.Indiresh

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JANUARY, 2022

                           PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                                 AND

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

           CRIMINAL APPEAL NO.1208 OF 2017

BETWEEN:

Shivaraju
S/o Sannegowda
Aged about 32 years
R/at D/No.601/13
G G Block, Near Ganapathi Temple
Hunsur MainRoad, Hootagalli
Mysuru City-570 018.
                                                     ...Appellant
(By Sri Venkatesh P Dalawai, Advocate)

AND:

State of Karnataka
By Vijayanagara Police Station
Mysuru
Rept. By Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
                                                  ...Respondent
(By Sri Vijayakumar Majage, Addl. SPP)

      This Criminal Appeal is filed under Section 374(2) Cr.P.C.
praying to set aside the judgment of conviction dated 28th
March, 2017 and Sentence dated 30th March, 2017 passed by the
                                     2




II Additional Sessions Judge, Mysuru in S C No.64 of 2013
convicting the appellant/accused for the offence punishable
under Section 302 and 498(A) of Indian Penal Code.

       In this appeal arguments being heard, judgment reserved,
coming on for "Pronouncement of Orders", this day, INDIRESH
J., delivered the following:

                           JUDGMENT

This criminal appeal is filed by the appellant-accused

against the judgment of conviction dated 28th March, 2017 and

order of sentence dated 30th March, 2017 passed in SC No.64 of

2013 on the file of the II Additional Sessions Judge, Mysuru,

convicting the appellant-accused for the offence punishable

under Section 302 of Indian Penal Code and sentencing to

undergo imprisonment for life, of which five years shall be

rigorous imprisonment and further to under go simple

imprisonment; and also sentenced to undergo simple

imprisonment for a period of two years for offence punishable

under Section 498(A) of Indian Penal Code. The accused is

further sentenced to pay a fine of Rs.3,000/- for the above said

offences; in default to pay fine, shall undergo simple

imprisonment for a period of one month.

I. BRIEF FACTS

2. It is the case of prosecution that, on 29th August,

2012, accused poured kerosene and lit fire on his wife and as a

result of the same, she succumbs to burn injuries. It is averred

by the prosecution that the accused and deceased-Manjula had

two children and were residing at Hootagalli. Apart from their

children, the son of the brother of accused-Nandakumar was also

residing with them. On the unfortunate day, deceased and

accused had altercation relating to their financial condition for

not paying rent and to meet the family expenses and at around

6.00 pm, when the deceased was lighting the stove for cooking,

the accused slapped her and threatened her that he would pour

kerosene on her. Instantaneously, he poured kerosene from

behind and lit fire. The said incident was noticed by

Nandakumar-son of the brother of the accused and he informed

to the sister of the deceased telephonically and injured Manjula

was taken to K.R. Hospital, Mysuru. Medico-legal case was

registered against the accused and he was arrested on 30th

August, 2012 and the injured Manjula succumbed to injuries on

10th September, 2012. Dying declaration of the deceased was

marked as Exhibit P1. Accordingly, Vijayanagara Police Station

have registered First Information Report in Crime No.239 of

2012 for the offence punishable under Section 307 and 498(A) of

the Indian Penal Code as per Exhibit P9. Thereafter, the Police

recorded statement of deceased-Manjula as per Exhibit P11, P12

and P14. It is the case of the prosecution that PW2-Nandakumar

is the eye-witness to the incident. PW13-Investigation Officer

who visited the spot had drawn panchanama before panchas and

seized six material objects as per MO1 to MO6 as per Exhibit P4

and the same were sent to Forensic Science Laboratory for

examination. PW14 continued the investigation and filed charge

sheet before the competent Court against the accused alleging

the commission of offence under Section 498(A) and 302 of

Indian Penal Code. As the offence was exclusively triable by the

Sessions Judge, the case was committed to the Sessions Court.

3. In order to prove the guilt of the accused, the

prosecution has examined fourteen witnesses as per PW1 to

PW14 and got marked fourteen documents; and produced six

Material Objects as per MO1 to MO6. After completion of

evidence on behalf of the prosecution, the statement of accused

was recorded, as contemplated under Section 313 of the Code of

Criminal Procedure. Accused denied all the incriminating

circumstances appearing against him and also the case set up by

the prosecution. The accused neither led his defence evidence

nor got marked any documents.

4. The Sessions Court, upon considering both oral and

documentary evidence on record, has recorded a finding that the

prosecution proved that, on 29th August, 2012 at about 06.00

pm, the accused poured kerosene on his wife Manjula and lit fire

and thereby, committed an offence under Section 498(A) and

302 of the Indian Penal Code. Accordingly, the Sessions Court,

by the impugned judgment of conviction dated 27th March, 2017

and order of sentence dated 30th March, 2017, convicted the

accused for offence punishable under Section 498(A) and 302 of

Indian Penal Code and sentenced him to undergo imprisonment

for life, of which, five years shall be rigorous imprisonment and

rest would be simple imprisonment; and further sentenced to

undergo simple imprisonment for a period of two year for

offence punishable under Section 498(A) of Indian Penal Code.

The accused is further sentenced to pay a fine of Rs.3,000/- for

the above said offences; in default to pay fine shall undergo

simple imprisonment for a period of one month.

5. Being aggrieved by the impugned judgment of

conviction dated 28th March, 2017 and order of sentence dated

30th March, 2017 passed in SC No.64 of 2013 by the II

Additional Sessions Judge, Mysuru, the present appeal is

preferred by the appellant-accused.

6. We have heard Sri Venkatesh P. Dalwai, learned

counsel appearing for the appellant-accused and Sri Vijayakumar

Majage, learned State Public Prosecutor appearing for the

respondent-State.

II. ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE APPELLANT

7. Sri Venkatesh P. Dalawai, learned counsel appearing

for the appellant-accused argued that the entire case of the

prosecution is based on the evidence of PW2-Nandakumar and

the evidence of PW2 is contrary to Exhibit P1-dying declaration

and the statement made by the deceased as per Exhibits P11,

P12 and P14, and therefore, he contended that there is no eye-

witness to the incident and the said aspect of the matter was not

considered by the learned Sessions Judge. He further argued

that though Exhibit P12-statement of the deceased was recorded

on 29th August, 2012 at 11.00 pm, and no case was registered

against the accused. In this regard, there is no explanation

offered by the prosecution and the said aspect of the matter was

ignored by the trial Court. He further contended that no

complaint was lodged by the relatives of the deceased or

accused, much less by PW2, narrating the cause for the incident

and therefore, he submitted that the prosecution failed to prove

the guilt of the accused. Nextly, he contended that PW1-Taluk

Executive Magistrate, who recorded the statement of the

deceased and the said statement was acknowledged and before

recording the statement of the deceased no certificate of fitness

was received from the Doctor and therefore, the entire

prosecution case fails on this ground alone to prove the guilt of

the accused and therefore, he contended that there is infirmity

in the impugned judgment of conviction and order of sentence

passed by the trial Court.

III. ARGUMENTS ADVANCED BY LEARNED HCGP:

8. Shri Vijayakumar Majage, learned State Public

Prosecutor, argued that the learned Sessions Judge has rightly

passed the impugned Judgment of conviction and Order of

sentence, based on the material on record and in this regard, he

invited the attention of the Court to the evidence of PW1 and

PW2 and submitted that the statement of the deceased is self-

explanatory to prove the involvement of the accused to kill his

wife and therefore, he argued that no interference is called for in

this appeal.

IV. POINTS FOR DETERMINATION:

9. In view of the aforesaid rival contentions urged by

the learned Counsel appearing for the parties, the points that

arise for our consideration in the present appeal are:

(i) Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 498 and 302 of the

Indian Penal Code and sentencing him to undergo Imprisonment for life?

(ii) Whether the impugned judgment of conviction and order of sentence calls for interference in this appeal?

V. WITNESSES EXAMINED ON BEHALF OF PROSECUTION:

10. In order to re-appreciate the entire material on

record including the oral and documentary evidence, it is

relevant to consider the evidence of the prosecution witnesses

and the circumstances relied upon.

11. PW1-Manjula, Tahsildar, Mysuru Taluk, has deposed

that on 30th August, 2012 around 10.15 am she received

requisition from the Vijayanagara Police Station to record

statement of the injured-Manjula and as such, she visited the

Burns Ward at K.R. Hospital at 11.30 am and noticed burn

injuries on the body of the said Manjula and she was fit and

conscious to give statement. She further deposed that the

deceased informed that, her husband poured kerosene on her,

lit fire and fled the scene and thereafter, PW2-Nandakumar, with

help of the neighbours extinguished the fire and thereafter,

taken her to K.R. Hospital, Mysuru. Statement of the deceased

was marked as Exhibit P1. She further deposed that, she

received information that the said Manjula, died on 10th

September, 2012 and thereafter she visited the spot and inquest

report was made at her instance.

12. PW2-Nandakumar, is the nephew of the accused. He

was pursuing Bachelor of Arts at Maharaja's College, Mysuru and

was residing in the house of the accused at the time of the

incident. He further deposed that the accused poured kerosene

and lit fire to the deceased and prior to that there were

altercation between the accused and the deceased. He further

deposed that he extinguished the fire and informed the sister

and brother-in-law of the deceased and thereafter they came to

the spot and the injured-Manjula was taken to K.R. Hospital,

Mysuru. She died on account of the burn injuries and in his

presence materials objects MO1 to MO6 were seized.

13. PW3-Mahadevaswamy, is a panch witness to inquest

report Exhibit P2.

14. PW4-Lakshmi, is the sister of the deceased and

panch witness to inquest report Exhibit P2. She deposed that

the accused often used to harass the deceased for dowry.

15. PW5-Doctor Mohan is the Medical Officer at K.R.

Hospital, who has received the requisition from Vijayanagara

Police Station and certified that the patient is clinically and

mentally fit to give statement as per Exhibit P3. He further

deposed that the deceased suffered burn injuries to an extent of

50-55%.

16. PW6-Lokesh Swamy, brother of deceased and

deposed in the lines of PW4.

17. PW7-Umesh, is the husband of the landlord of house

in which the accused and deceased were residing. He deposed

that he has let-out the premises to accused and his family and

he further deposed that, he unaware about dowry harassment

an alleged by prosecution.

18. PW8-Ravi, is the co-brother of the accused and

panch witness to Exhibit P4.

19. PW9-Dr. T.N. Chandrashekar, is the Dean and

Director of Chamarajanagar Medical College. He deposed that

he has done autopsy on the body of the deceased-Manjula on

10th September, 2012. He deposed that the deceased died on

account of burn injuries inflicted in an extent of 45-50%. He has

signed Post-mortem report Exhibit P6.

20. PW10-M. Srikanta, is Assistant Sub-Inspector,

Vijayanagara Police Station. He deposed that he received

Medico Legal Case information through Devaraja Police Station,

from the K.R. Hospital, as per Exhibit P7. He sent a requisition

to PW1 to record the statement of the deceased as per Exhibit

P8. Based on the statement of deceased, he registered First

Information Report in Crime No.239 of 2012 as per Exhibit P9.

21. PW11-Dr. Balasubramanyam, is the Assistant

Professor, K.R. Hospital, Mysuru. He deposed that he received

requisition from Vijayanagara Police Station to give certificate of

fitness and certified the same after examining the injured-

Manjula.

22. PW12-M. Manjunath, Assistant Sub-Inspector,

Devaraja Police Station. He received MLC from K.R. Hospital.

23. PW13-Prakash B.S, Police Sub-Inspector at

Vijayanagara Police Station. He arrested the accused on 29th

August, 2012 at 9.30 pm. He deposed that he conducted spot-

mahazar in the presence of panch witnesses as per Exhibit P4

and seized material objects MO1 to MO6.

24. PW14-Sri B.R. Lingappa, Police Inspector and the

Investigation Officer. He deposed that after completion of the

investigation, he filed charge-sheet before the competent Court.

VI. CONSIDERATION:

25. We have carefully re-appreciated the evidence of the

witnesses and perused the entire records. It is the bounden

duty of the prosecution to prove the fact that the death of

Manjula is a homicidal death. In this connection, the prosecution

has proved the same through the evidence of PW1 and PW2

supported by the corroboration of evidence of medical officers.

26. PW9-Dr. T.N. Chandrashekar, who has conducted

autopsy on the dead body of the deceased, opined that the

cause of death is due to burn injuries in an extent of 45-50%, as

per Exhibit P6 Postmortem report. Panch witnesses to the

inquest mahazar have deposed regarding the unnatural death of

Manjula due to burn injuries and therefore, the trial Court,

rightly concluded that the death of Manjula is homicidal on

account of burn injuries. However, the question that requires to

be answered is, whether the injuries so inflicted on deceased-

Manjula is by the accused or not?

27. In this aspect, we have carefully re-appreciated the

entire evidence on record. It is the case of the prosecution that

PW2 is an eye-witness to the incident. Perusal of the evidence

of PW2 substantiate the fact that there is no dispute with regard

to dowry harassment meted out on the deceased by the accused

as alleged by the prosecution. In the evidence, PW2 has

deposed that he was studying in the room along with the son of

the accused at the time of the incident. In that view of the

matter, PW2 cannot be considered as an direct-witness to the

incident. However, PW2 has deposed that he heard the noise of

the deceased immediately after ignition of fire and he went near

the deceased and tried to extinguish the same along with help of

neighbours. He also deposed that deceased had given the phone

number of her sister and immediately he called to her sister and

thereafter, with the assistance of the villagers and the sister of

the deceased, injured was taken to K.R. Hospital, Mysuru in an

autorickshaw. Careful scrutiny of the evidence of PW2, would

reveal that the deceased never made allegation against the

accused for dowry and therefore, the charge levelled against the

accused relating to Section 498(A) of Indian Penal Code cannot

be accepted.

28. We have also noticed the evidence of other

witnesses which would substantiate the fact that none of the

witnesses, except the interested witness viz. PW4 and PW6,

sister and brother of the deceased, deposed against the accused

relating to dowry. PW7-Umesh, the husband of the owner of the

house, did not say about the quarrel between the accused and

the deceased relating to dowry. That apart, dying declaration-

Exhibit P1 is the basis for registering the case against the

accused. Careful reading of dying declaration-Exhibit P1,

substantiate the fact that there was no motive on the part of the

accused to kill his wife, inter alia, no allegation was made by the

deceased against the accused for dowry. The element of dowry,

as alleged by the prosecution, arose only after the death of the

deceased-Manjula and therefore, we are of the considered view

that the prosecution failed to prove the motive and the allegation

relating to dowry harassment meted out to the deceased by the

accused. It is also forthcoming from the evidence of PW2-

Nandakumar who was residing in the house of the accused and

deceased that accused and deceased were living cordially and

had two children, however, the only problem with them was with

regard to their livelihood. It is also forthcoming from the records

that the deceased was working as a tailor in a garment factory.

There is no earlier allegation or complaint against the accused by

the deceased or her family members relating to dowry and

therefore it may be safely concluded that, the evidence of PW3

and PW6 do not corroborates the element of dowry harassment

and as such, we do not find any justifiable ground to accept the

judgment of the trial Court to punish the accused for 498(A) of

Indian Penal Code.

29. As regards charge under Section 302 of Indian Penal

Code is concerned, Exhibit P1-dying declaration is the basis for

initiating criminal action against the accused. The statement of

the deceased Exhibit P1, reads as follows:

"ªÀÄ£É ¨ÁrUÉ, ªÀÄPÀÌ¼À «zÁå¨sÁå¸ÀzÀ §UÉÎ ±Á¯É ¦üÃ¸ÀÄ PÀlÄÖªÀÅzÀÄ ºÉÃUÉ JAzÀÄ PÉÃ½zÉ, DUÀ ¸ÀªÀÄAiÀÄ 6 UÀAmÉ ¸ÀAeÉ ¸ÀªÀÄAiÀÄªÁVzÀÄÝ, CqÀÄUÉ ªÀiÁqÀÄªÀÅzÀPÉÌ ¸ËÖªï ºÀZÀÄÑwÛgÀÄªÁUÀ M¼ÀUÉ §AzÀÄ PÀ¥Á¼ÀPÉÌ MAzÀÄ KlÄ MqÉzÀÄ, EzÉæ EgÀÄ E®è¢zÉæ ªÀÄPÀÌ¼À£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ¤£Àß vÁ¬Ä ªÀÄ£ÉUÉ ºÉÆÃUÀÄ JAzÀÄ ºÉÃ½zÀ. E®è CAzÉæ ¹ÃªÉÄJuÉÚ ºÀÄåzÀÄ ºÀZÀÄÑwÛÃ¤ CAvÀ ºÉÃ¼ÀÄwÛzÀÝ. £Á£ÀÄ vÀªÀiÁµÉUÉ ºÉÃ¼ÀÄvÁÛ£É CAvÀ w½zÀÄ CqÀÄUÉ ªÀiÁqÀ®Ä ±ÀÄgÀÄªÀiÁrzÉ. »A¨sÁUÀ¢AzÀ §AzÀÄ ¹ÃªÉÄJuÉÚ ¸ÀÄjzÀÄ, ¨ÉAQPÀrØ¬ÄAzÀ ¨ÉAQ J¸ÉzÀÄ ªÀÄ£É¬ÄAzÀ Nr ºÉÆÃzÀ. D ¸ÀªÀÄAiÀÄzÀ°è £À£Àß UÀAqÀ£À CtÚ£À ªÀÄUÀ ªÀÄ£ÉAiÀÄ°èzÀÝ CªÀ£ÀÄ ¨ÉAQ £ÀA¢¹, CPÀÌ-¥ÀPÀÌzÀªÀgÀÄ £À£Àß CPÀÌ-¨sÁªÀ¤UÉ ¥sÉÆÃ£ï ªÀiÁr PÀgÉ¹PÉÆAqÀÄ CªÀgÀÄUÀ¼À£ÀÄ £À£Àß£ÀÄß PÉ.Dgï. D¸ÀàvÉæUÉ DmÉÆÃzÀ°è vÀAzÀÄ aQvÉìUÉ zÁR°¹zÀgÀÄ."

(emphasis supplied by us)

30. In addition to above statement of deceased, Material

Objects were recovered from the scene of incident would indicate

that the deceased died on account of burn injuries. Doctor-PW9

who conducted the autopsy, deposed that the death was on

account of burn injuries in an extent of 45-50%. Perusal of the

evidence of PW1 would indicate that the dying declaration was

recorded by her assistant in the absence of the Doctor. In this

regard, PW1 deposed as follows:

"£Á£ÀÄ ªÉÊzÀåjUÉ ¸ÀzÀj ªÀÄAdÄ¼Á ºÉÃ½PÉ PÉÆqÀÄªÀ ¹ÜwAiÀÄ°è EzÁÝgÉÆÃ E®èªÉÇÃ J£ÀÄßªÀ §UÉÎ PÉÃ½gÀÄªÀÅ¢®è. £Á£ÉÃ F §UÉÎ ªÉÊzÀågÀ£ÀÄß zÀÈrüÃPÀj¸À®Ä PÉÃ¼ÀÄªÀÅzÀPÉÌ AiÀiÁªÀÅzÉÃ vÉÆAzÀgÉ EgÀ°®è. ªÉÊzÀågÀÄ 30.08.2021 gÀAzÀÄ ¨É¼ÀîUÉÎ 11.00 UÀAmÉUÉ zÀÈrüÃPÀj¹ zÁR¯É PÉÆnÖgÀÄvÁÛgÉ. £Á£ÀÄ gÉÆÃVAiÀÄ ºÉÃ½PÉAiÀÄ£ÀÄß CAzÀgÉ UÁAiÀiÁ¼ÀÄ ¸ÀÄlÖUÁAiÀÄUÀ½AzÀ D¸ÀàvÉæUÉ zÁR¯ÁVzÀÝ ªÀÄAdÄ¼Á CªÀgÀ ºÉÃ½PÉAiÀÄ£ÀÄß ªÀiÁrPÉÆ¼ÀÄîªÀ ¸ÀªÀÄAiÀÄzÀ°è zÀÈrüÃPÀj¹ PÉÆnÖzÀÝ ªÉÊzÀågÀÄ C°è EgÀ°®è. ªÉÊzÀågÀ JzÀÄj£À°è CAzÀgÉ ¸ÀzÀj ªÉÊzÀågÀ£ÀÄß PÀgÉ¹ CªÀgÀ JzÀÄj£À°è UÁAiÀiÁ¼ÀÄ«£À ºÉÃ½PÉ ªÀiÁrPÉÆ¼Àî®Ä £À£ÀUÉ vÉÆAzÀgÉ EgÀ°®è. F ªÀÄgÀt¥ÀÆªÀð ºÉÃ½PÉÉAiÀÄÄ £ÀªÀÄä ¹§âA¢ £À«Ã£À J£ÀÄßªÀªÀgÀ PÉÊ §gÀªÀtÂUÉAiÀÄ°è EgÀÄvÀÛzÉ. £Á£ÀÄ ºÉÃ½PÉ ªÀiÁrPÉÆ¼ÀÄîªÀÅzÀPÉÌ ¥ÀÆªÀðzÀ°è ¸ÀzÀj UÁAiÀiÁ¼ÀÄªÀ£ÀÄß ªÀiÁvÀ£Ár¹ DPÉ ºÉÃ½PÉ PÉÆqÀÄªÀ ¹ÜwAiÀÄ°èzÁÝ¼É JAzÀÄ w½zÀÄPÉÆAqÀÄ ºÁUÀÆ DPÉ ºÉÃ½PÉ PÉÆqÀÄªÀ ¹ÜwAiÀÄ°èzÁÝ¼ÉAzÀÄ £À£ÀUÉ PÀAqÀÄ §A¢zÀÝjAzÀ DPÉAiÀÄ ºÉÃ½PÉAiÀÄ£ÀÄß ªÀiÁrPÉÆArgÀÄvÉÛÃ£É."

(emphasis supplied by me)

PW1 is unaware about the presence of the Doctor at the

time of recording dying declaration and not verified the records

pertaining to certificate of fitness of the victim to make a

statement. The above statement of PW1 corroborates that, no

doctor was present at the time of recording statement, that too,

was recorded by the assistant of PW1. In the light of the

aforesaid facts, it is relevant to mention the law declared by the

Hon'ble Apex Court in the case of NARESH KUMAR v. KALAWATI

AND OTHERS reported in AIR 2021 SC 1605, wherein at

paragraph 9 and 13 of the judgment, the Hon'ble Apex Court

observed thus:

"9. A dying declaration is admissible in evidence under Section 32 of the Indian Evidence Act, 1872. It alone can also form the basis for conviction if it has been made voluntarily and inspires confidence. If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore much shall depend on the facts of

a case. There can be no rigid standard or yardstick for acceptance or rejection of a dying declaration.

10 to 12 xxx xxx xxx

13. In the facts and circumstances of the present case, considering that the statements of the deceased have vacillated, there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. It would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents."

PW4 and PW6 are, the sister and brother of the deceased

and they have deposed about the poverty in the family of the

deceased, PW5-Doctor deposed that hospital has not maintained

the case sheet relating to the deceased and he has stated that

he has signed Exhibit P3. Careful evaluation of the evidence of

the witnesses would reveal that there is no motive or pre-

determination by the accused to cause death to the deceased.

There is no direct witness to the incident. However, perusal of

Exhibits P12 and P14, which are the earliest documents, suggest

the involvement of the accused. In that view of the matter, the

only question that remains to be considered in the facts and

circumstances of the case is that whether the offence committed

by the accused is the one punishable under Section 302 of the

Indian Penal Code. As stated supra, the entire case of the

prosecution rests on the fact that the death was on account of

burn injuries inflicted by the accused for dowry harassment.

However, it transpires from the evidence of PW2 and other

independent witnesses that there is no element of dowry

harassment in the factual aspects of the case. That apart, it is

also not forthcoming from the dying declaration made by the

deceased as per Exhibit P1, which is the earliest document to

consider the guilt of the accused. In totality, the established

facts and circumstances would show that the occurrence had

happened most unexpectedly in a sudden quarrel and without

pre-meditation during the course of which the accused caused

injury to the deceased. On re-appreciation of evidence on

record, we have come to conclusion that the accused could not

be imputed with intention to cause death of the deceased or with

the intention to cause particular fatal injury. But the accused

had a knowledge that the said injury would likely to cause death.

As we have arrived at the conclusion that the prosecution failed

to prove the motive or pre-meditation or the accused

intentionally inflicted the injury, which in the ordinary course of

nature, was sufficient to cause death and therefore, neither

clause (i) nor clause (iii) of Section 300 of Indian Penal Code will

be attracted. Following the law declared by the Hon'ble Apex

Court in a catena of decisions, we hold in the present case that

the offence committed by the accused would fall under Section

304 Part-I but not under Section 302 of Indian Penal Code. The

entire evidence would discloses that, being provoked during the

altercation, accused inflicted fatal injuries on the deceased and it

may be safely concluded that there is no intention or mens rea

with the accused to do away with the life of his wife-Manjula. It

is also relevant to mention that, deceased-Manjula. Stated that,

accused teaser her to pour kerosene and set fire and believed

that the said statement "vÀªÀiÁµÉUÁV", would establish that they

were leading a happy life and were cordial to each other, and

therefore, we are of the opinion to bring home the guilt of the

accused to culpable homicide not amounting to murder as the

accused lost his control by sudden provocation in the altercation

between himself and his wife, and accordingly, the finding

recorded by the Sessions Court is modified to Exception 4 of

Section 300 of Indian Penal Code. This view of ours is fortified

by the law declared by the Hon'ble Apex Court in the case of RAJ

PAUL SINGH v. STATE reported in (2012)10 SCC 144 wherein it

is held that culpable homicide will not amount to murder if it is

committed without pre-meditation, in a sudden fight in the heat

of passion upon a sudden quarrel, provided the offender has not

taken undue advantage or acted in a cruel or unusual manner.

It is also relevant to extract the observation made by the Hon'ble

Supreme Court in the case of SAYAJI HANMAT BANKAR v. STATE

OF MAHARASHTRA reported in AIR 2011 SC 3172, wherein at

paragraphs 6 to 8 of the judgment, it is held has follows:

"6. The High Court rejected the contention of learned counsel for the appellant that this case would fall under Exception 4 to Section 300 IPC. It was held by the High Court that this is certainly not a case to which exception 4 to Section 300 would get attracted but would fall under clause "fourth" of 300 IPC. Exception 4 to Section 300 IPC 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 offenders having taken undue advantage or acted in a cruel or unusual manner"

7. It is clear from the reading of aforesaid Exception 4 that if the act is done without premeditation in a sudden fight or in the heat of passion upon a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then Exception 4 will be attracted.

8. We have gone through the evidence carefully. It seems that as soon as the accused entered the house, there appeared to be some quarrel with his wife and in that fight first, he threw water pot and thereafter a kerosene lamp. The burning seems to be more out of the fact that unfortunately at that time, the lady was wearing nylon sari. Had she not been wearing a nylon sari, it is difficult to imagine how she could have been burnt to the extent of 70%. In our view this was a case which clearly fall under Exception 4 of Section 300 IPC since there was sudden fight. There was no premeditation either. Therefore the accused-appellant is liable to be convicted for the offence punishable under Section 304 Part-I."

26. Following the law declared by the Hon'ble Apex Court

in the decision referred to above, we are of the opinion that in

order to invoke exception 4 to Section 300 of Indian Penal Code,

Court has to satisfy with four ingredients: (i) it was sudden fight;

(ii) there is no pre-meditation; (iii) the act was done in a heat of

passion; and (iv) the assailant had not taken any undue

advantage or acted in a cruel manner (see also SURINDER

KUMAR V. UNION TERRITORY, CHANDIGARH:1989 SCC(CRL.)

348). Applying the aforementioned ingredients to the case on

hand, the accused in a heat of passion, assaulted the deceased

(his wife) without motive to kill her and the sudden quarrel

resulted in death of his wife and therefore, the accused would be

entitled to the benefit of exception 4 to Section 300 of Indian

Penal Code. Therefore, considering the case on merits, so also,

taking into consideration the relationship between the accused

and the deceased and the manner in which the incident has

happened, we are inclined to accept the contention of the

learned counsel appearing for the appellant-accused that the act

was one which was committed without pre-meditation but 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 and as such, we concluded that the

accused is liable to be punished under Section 304 Part-I and not

under Section 302 of Indian Penal Code as held by the trial

Court. The accused is acquitted for offence under Section 498A

of Indian Penal Code for the reasons stated above that the

prosecution fails to prove the same. Hence, we pass the

following order:

ORDER

i) The appeal is partly allowed. The judgment of conviction dated 28th March, 2017 and Order of Sentence dated 30th March, 2017 convicting the appellant/accused for the offence punishable under Section 302 of IPC is modified and the appellant/accused is convicted for the offence punishable under Section 304 Part-I of Indian Penal Code;

ii) The sentence of the appellant/accused is modified from imprisonment for life to rigorous imprisonment for ten years for the offence punishable under Section 304 Part-I of Indian Penal Code;

iii) The appellant/accused shall pay a fine of Rs.15,000/- in default of payment of fine, shall undergo simple imprisonment for a period of two months;