Gopal Bahadur , Basheer Ahmed, ... vs The State Of Telangana, Rep Pp.,
2024 Latest Caselaw 4424 Tel

Citation : 2024 Latest Caselaw 4424 Tel
Judgement Date : 12 November, 2024

Telangana High Court

Gopal Bahadur , Basheer Ahmed, ... vs The State Of Telangana, Rep Pp., on 12 November, 2024

                                   1




      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

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.

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:-

1999 Lawsuit (SC) 725

"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

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