Bombay High Court: A Division Bench of Ranjit More and Surendra P. Tavadae, JJ., while disposing of the present appeal altered the conviction under Section 302 to Section 304 Part-II of Penal Code, 1860.
The Judgment and order of the Sessions Judge who had convicted the appellant under Section 302 IPC was challenged.
The facts pertinent to the case are that, the appellant was addicted to liquor and in the influence of the same he used to abuse and assault the deceased (Sarika). On the night of the incident, appellant picked up a quarrel on a petty ground and poured thinner on the person of Sarika and set her on fire. Later, appellant himself tried to extinguish the fire by putting water on the person of Sarika and took her to the hospital.
On the basis of the statement of Sarika, crime initially came to be registered under Section 307 of IPC. During the treatment, Sarika succumbed to injuries. After the post-mortem was performed, the offence under Section 302 IPC was added by the Investigating Officer. Later the appellant as arrested.
Advocate for the appellant submitted that the prosecution heavily relied on two written dying declarations and one oral dying declaration of the deceased. He further states that there are major flaws in recording the two dying declarations and they are concocted. Defence of the appellant is more probable than the prosecution theory.
Adding to his submissions, he stated that the appellant had no intention to kill his wife. Therefore the case falls under Section 304 Part-II of IPC.
APP for the State submitted that the dying declarations are consistent and there no flaws in recording the same. Thus, the same can form the basis for conviction under Section 302 IPC. Adding to his submission, APP stated that prior to the incident the appellant had threatened to kill his wife by setting her on fire and with this, it cannot be said that he had no intention of killing his wife.
The entire theory of prosecution depends on dying declarations alleged to have been given by the deceased immediately after the incident. Sarika (deceased) had disclosed her brother that the appellant poured thinner and set her on fire by a match stick. She also stated that the appellant had threatened that if she disclosed the name she would be killed.
Further, it is to be noted that the sum and substance of the first written dying declaration shows that deceased disclosed the cause of the incident as a quarrel over a petty count. The second dying declaration was recorded by the Special Executive Magistrate.
While going through both the declarations, they both appear to be consistent and there seems to be no scope for concoction. The first oral dying declaration was made by Sarika to her brother and thereafter, Police and Special Executive Magistrate recorded Sarika’s statement with the opinion of Medical Officer. Nothing was brought on record to establish that the dying declarations were concocted.
APP relied on the Supreme Court’s decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324; wherein it was held that the conduct cannot be seen divorced from totality of circumstances.
In the present case, it is established on record that due to quarrel between the appellant over a petty issue he poured thinner on the person of deceased and set her on fire. Taking into consideration the same it cannot be said that the appellant out of control did act of setting his wife on fire but subsequently he extinguished the fire by showing his remorse towards the act of setting fire. Therefore, the appellant had no intention to kill his wife and the said act cannot fall into the purview of Section 302 IPC but it squarely falls under the provisions of Section 304 Part-II IPC.
Thus, relying on the ratio of the decision in Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324, Court was inclined to alter the conviction punishable under Section 302 to 304 Part-II IPC. [Avinash Baburao Rayate v. State of Maharashtra, Criminal Appeal No. 873 of 2010, decided on 31-01-2020]