Case BriefsHigh Courts

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.

Decision

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]

Case BriefsHigh Courts

Gauhati High Court: Rumi Kumari Phukan, J., allowed a criminal appeal and acquitted the appellants who were convicted under Section 304 Part-II IPC by the trial court.

The appellants were accused of killing one Abul Hussain. On the basis of FIR filed by Abul’s parents, a case was registered and they were charge-sheeted under Section 302 and 149 IPC. The trial court did not find any intention or motive on appellant’s part to commit murder. However, they were convicted for culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. Aggrieved thereby, the appellants filed the present appeal.

A.Y. Chaudhary, Advocate for the appellants contended that there was no chain of facts to establish the hypothesis of appellants’ guilt. Per contra, B.J. Dutta, Additional Public Prosecutor, appearing for the State supported the trial court’s judgment.

The High Court noted that the trial court basically relied on the fact that Abul accompanied Bapan (one of the accused) while other accused were along with him.  This according to the Court, may be one of the circumstances for the prosecution, but there was no chain of facts as regards the other incriminating circumstances. It was observed that, “from the totality of the evidence on record, it can be held that the evidence is totally insufficient to hold the present appellant to be guilty under any of the offence, while the deceased died due to drowning as per the report of the Medical Officer. Although there is genuine ground of suspicion on the part of the informant but there is a lack of legal evidence to sustain the conviction of the accused persons.” In such view of the matter, the Court held that the appellants deserved to be acquitted. Therefore, the appeal was allowed. [Akbar Hussain Laskar v. State of Assam, 2019 SCC OnLine Gau 1027, decided on 05-03-2019]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Navin Sinha and K.M. Joseph, JJ., while addressing a criminal appeal regarding assault committed during a dispute between neighbors with regard to strayed cattle in which Appellant 2 was additionally convicted under Section 304 Part II read with Section 34 IPC, altered the sentence from 8 years to 2 years.

The facts of the case as laid down in a nutshell state that some bullocks which belonged to the appellants had strayed into the compound of the deceased. The deceased, in order to drive them away from his land, used lathi which came onto the notice of the appellants and led to some altercation between the two which ended up with major injuries to the deceased and led to his death.

The contentions placed by the appellants’ counsel were that the injuries suffered by the appellants explain that they had only acted in self-defence and they were not the aggressors. There was no intention to cause death; much less the knowledge can be attributed from the nature of the assault. Further, the submissions state that the offence deserved to be reduced and or/alternatively the sentence was excessive in the facts of the case. For the stated contentions they placed reliance on Darshan Singh v. State of Punjab, 2009 (16) SCC 290 and Maqsood v. State of U.P, 2016 (15) SCC 748.

The Supreme Court on noting the circumstances, evidences and the contentions placed, concluded by stating that the occurrence had taken place at the spur of the moment without any premeditation. Appellant only intended to vent their ire against neighbour for having assaulted their bullocks. Since there was no presence of common intention that makes Appellant 2 individually answerable and as the occurrence had taken place in 1980, the Court was convinced to reduce the sentence to 2 years by putting reliance on the case aforementioned.  The appeal was allowed to the stated extent. [Lakshmi Chand v. State of U.P., 2018 SCC OnLine SC 1135, decided on 24-08-2018]

Case BriefsHigh Courts

Gauhati High Court: A Division Bench comprising of Ajit Singh, CJ, and Achintya Malla Bujor Barua, J. held the accused-appellant guilty under Section 304 Part II IPC as he was unable to give any explanation for the injuries suffered by the deceased.

The appellant was accused of murdering his wife. The dead body of the wife was found in the house of the appellant; it was found that except for the appellant and his three years old daughter, there was nobody else in the house; and as such, the appellant was expected to explain under what circumstances his wife died inside the house with injuries on her head. The trial court convicted the appellant under Section 302. Aggrieved thus, the appellant preferred the instant appeal.

The High Court perused the record and referred to the Supreme Court decision in Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 wherein mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused. The same principles was reiterated in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681. In the instant case, the appellant, in one instance, stated that the wife died due to over-consumption of alcohol. At another, he stated that he slapped her which resulted in her death. Both the statements were found to be not true in light of the medical report that showed that the deceased suffered serious head injury. The Court held that the appellant did not offer any explanation for the injuries suffered by the deceased, and as such, the appellant was the perpetrator of the crime. However, it was found that appellant as well as deceased used to consume alcohol and quarreled with each other. The Court was of the view that the appellant dealt a blow on the head of the deceased in a fit of anger. It was held that though the appellant had no intention to kill the deceased, however, he had knowledge that such an assault might cause her death. Resultantly, the conviction of the accused was modified from that under Section 302 to Section 304 Part II. The appeal was, thus, partly allowed. [Rajesh Mahali v. State of Assam,2018 SCC OnLine Gau 904, dated 09-08-2018]