Holding

The Court held that the appellant’s act, committed in a sudden fight without pre‑meditation, constitutes culpable homicide not amounting to murder under Section 304 Part II, and that Section 316 IPC applies for the death of the unborn child.

Summary

The appellant, Dattatraya, was convicted for the death of his nine‑month‑pregnant wife after he allegedly poured kerosene on her during a drunken quarrel, causing severe burns, a still‑born child and her eventual death. The prosecution relied on the dying declaration of the deceased, testimony of the maternal grandmother and aunt, and medical reports, while the defence challenged the credibility of the dying declaration and the intent behind the act. The Supreme Court examined whether the evidence proved the offence beyond reasonable doubt and whether the act fell within the fourth exception of Section 300, thereby constituting culpable homicide not amounting to murder rather than murder. It also considered the applicability of Section 316 for the death of the unborn child. The Court held that the act was committed in the heat of passion without pre‑meditation, qualifying as culpable homicide not amounting to murder under Section 304 Part II, and that Section 316 IPC applied. Consequently, the conviction under Section 302 was altered to Section 304 Part II, the appellant was sentenced to ten years’ rigorous imprisonment, and, having already served more than ten years, he was ordered to be released.

Issues considered

Whether the appellant’s conviction under Section 302 IPC for murder is justified or should be reduced to culpable homicide not amounting to murder under Section 304 Part II.
Whether the death of the quick unborn child falls within the ambit of Section 316 IPC.
Whether the prosecution evidence, including the dying declaration and eyewitness testimony, establishes guilt beyond reasonable doubt.
Whether the act falls under the fourth exception of Section 300 IPC, negating the element of pre‑meditation.

Legislation cited

Code of Criminal Procedure, 1973
Indian Penal Code, 1860s. 300, s. 302, s. 304 Part II, s. 313, s. 316

Subjects

Causing death of quick unborn child by act amounting to culpable homicideDying declarationLife imprisonmentCulpable homicide not amounting to murderKnowledge of the consequences of the actIntention to cause deathPremeditated actSudden fight and quarrel in the heat of passionProve its case beyond reasonable doubtEvidenceWitnessesSufficient proofBurn injuriesIncarceration

Judgment

[2024] 2 S.C.R. 989 : 2024 INSC 167

Dattatraya
v.
The State of Maharashtra
Criminal Appeal No. 666 of 2012
01 February 2024
[Sudhanshu Dhulia and Prasanna B. Varale, JJ.]

Issue for Consideration
Whether the courts below were justified in convicting the appellant
u/ss. 302 and 316 IPC and sentencing to undergo life imprisonment
and 10 years of R.I. respectively along with fine, for causing death
of his wife as also the child she was bearing by pouring kerosene
on her and then setting her on fire.

Headnotes
Penal Code, 1860 – ss. 304 Part II and 316 – Culpable homicide
not amounting to murder – Causing death of quick unborn
child by act amounting to culpable homicide – Prosecution
case that on the fateful night the husband in an inebriated
state, picked a fight with his nine months pregnant wife and
then poured kerosene on her, as a result she sustained in 98%
burn injuries and subsequently died – She also gave birth to
still born child – Dying declaration recorded – Maternal grand
mother of the deceased witness to the incident – Conviction
of the appellant u/ss. 302 and 316 and sentenced to life
imprisonment and 10 years of R.I. respectively along with fine
by the courts below – Correctness:
Held: Prosecution has been able to prove its case beyond
reasonable doubt regarding the incident – Maternal grand mother
of the deceased witnessed the incident – She along with the
maternal aunt clearly established the facts – Even though PW
1 who recorded dying declaration was declared hostile, there is
sufficient evidence to prove that it was the appellant who had
poured kerosene on the deceased which led to the burn injuries
and the death of the deceased and the child she was bearing –
Fact that the deceased gave birth to a stillborn child on the next
day while she was still alive and the death was caused by the act
of the appellant, makes a case u/s. 316 – From every available
990 [2024] 2 S.C.R.

Digital Supreme Court Reports

evidence placed by the prosecution, it is a case where a sudden
fight took place between the husband and wife – Deceased at
that time was carrying a pregnancy of nine months and it was
the act of pouring kerosene on the deceased that resulted in the
fire and the subsequent burn injuries and the ultimate death of
the deceased – Said act at the hands of the appellant would be
covered under the fourth exception given u/s 300 – Act of the
appellant was not premeditated, but is a result of sudden fight
and quarrel in the heat of passion – Thus, it would be a case of
culpable homicide not amounting to murder u/s. 304 Part II in as
much as, though the accused had knowledge of the consequences
of the act he was committing, yet there was no intention to cause
death – Findings of s. 302 converted to that of s. 304 Part II and
the accused sentenced to 10 years of R.I – Since the appellant
has already undergone incarceration for more than 10 years, he
be released forthwith from the jail unless required in some other
offence. [Paras 11, 12, 14, 17-21]

Case Law Cited
Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324
– referred to.

List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Causing death of quick unborn child by act amounting to culpable
homicide; Dying declaration; Life imprisonment; Culpable homicide
not amounting to murder; Knowledge of the consequences of the
act; Intention to cause death; Premeditated act; Sudden fight and
quarrel in the heat of passion; Prove its case beyond reasonable
doubt; Evidence; Witnesses; Sufficient proof; Burn injuries;
Incarceration.

Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.666
of 2012
From the Judgment and Order dated 23.11.2010 of the High Court of
Bombay at Aurangabad in CRLA No.6 of 2009
[2024] 2 S.C.R. 991

Dattatraya v. The State of Maharashtra

Appearances for Parties
Sudhanshu S . Choudhari, Sr. Adv., Ms. Rucha Pande, M Veera
Ragavan, Ms. Gautami Yadav, Pranjal Chapalgaonkar, M. A.
Chinnasamy, Advs. for the Appellant.
Bharat Bagla, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
Sourav Singh, Aditya Krishna, Ms. Raavi Sharma, Adarsh Dubey,
Advs. for the Respondent.
Judgment / Order of the Supreme Court

Order
This appeal arises out of the final judgment and order dated
23.11.2010 passed by the Aurangabad Bench of Bombay High
Court in Criminal Appeal No. 06/2009 whereby the conviction of
the appellant under Sections 302 and 316 of the Indian Penal Code
(for short ‘IPC’) was upheld and the appellant was sentenced to
undergo life imprisonment under Section 302 and 10 years of R.I.
under Section 316 of IPC, and was directed to pay fine amount of
Rs.5000 and Rs.2000/-, respectively.
2. The facts of this case are that the appellant (32 years of age in the
year 2007), was married to one, Meenabai Dattatraya Gawali, (who
was 30 years of age on the date of the incident). The wife Meenabai
(deceased) was having a pregnancy of nine months at that time. It is
the case of the prosecution that the appellant came home at about
10.00 P.M. on the fateful night of 26.01.2007 in an inebriated state.
He then picked a fight with his wife while she was cooking food in
the kitchen and poured kerosene on her and as the stove burst, the
wife sustained burn injuries, which in hospital were determined as
98%. She was taken to the Civil Hospital, Solapur at about midnight,
where the first injury report itself indicates that she sustained burn
injuries of about 98%. A statement is then recorded of the deceased
at 01.30 AM on 27.01.2007, which states as under:-
“ STATEMENT
Solapur
Dated-27/01/2007
Time-01.30 AM
Saturday after completing Friday
992 [2024] 2 S.C.R.

Digital Supreme Court Reports

Patient is conscious oriental and fit for giving valid
statement at present.
1.41 AM – 27.01.2007 – Sd/- Deshpande

Smt.Minabai Datta Gavli, age 30 years, R/o. A. Kata
Savargaon, Tq.Taljapur, District. Osmanabad gives
statement that in the night on Friday 26.01.2007 at 10 PM
there was trifle dispute between husband and wife and at
the time of cooking Mr. Dattatraya Gavli, age 40 years,
service-wireman with the anger of dispute poured rockel
on me. At that time stove flared up and I burned up to
98%. My husband is also burned 40%, Mr. Datta Gavli has
also burnt. He got burnt while putting out the fire. At that
time husband had drunk liquor. He was addicted to liquor.
My grandmother admitted in Civil Hospital at night 12 am.
Now I am under treatment and giving statement myself.

Yours faithfully
Thumb Impression
Thumb Impression of left hand of
Smt. Minabai Dattatraya Gavli

Before (M.V.Wagh) Executive Magistrate Office, Solapur.
Patient was conscious oriented and fit for giving valid
statement.
(Exh.33)
Sd/- A.P.Deshpande-”

3. A case is then registered at Tamalwadi Police Station, as Crime No.
12/2007, filed under Section 307 of the IPC against the appellant.
4. As we have already stated above, the deceased at that time was
nine months pregnant. She gave birth to a stillborn child on the next
day i.e., 28.01.2007 and died on 04.02.2007.
5. The offence which was registered under Section 307 of the IPC was
converted into an offence under Section 302 of the IPC and another
charge under Section 3161 was added.

1 Section 316.Causing death of quick unborn child by act amounting to culpable homicide.-- Who-
[2024] 2 S.C.R. 993

Dattatraya v. The State of Maharashtra

6. The police after an investigation filed its chargesheet in the Court
of Judicial Magistrate, F.C., Tuljapur, which was registered as RCC
No.96/2007 and the case was committed to Sessions, where it
was ultimately placed before Addl. Sessions Court, Usmanabad,
Maharashtra. The appellant faced the Trial Court where he was
convicted of offences under Sections 302 and 316 of IPC and
sentenced to undergo life imprisonment and 10 years of rigorous
imprisonment respectively, along with fine and default stipulation.
7. The matter was taken in an appeal before the Bombay High Court
by the appellant which was dismissed.
8. The Special Leave Petition later was filed by the appellant before
this Court in which leave was granted vide order dated 09.04.2012.
9. We have heard Mr.Sudhanshu S. Choudhari, learned counsel
appearing for the appellant and Mr.Bharat Bagla, learned counsel
appearing for the respondent, at some length.
10. The prosecution in this case had examined nine prosecution witnesses
and placed relevant documents such as medical reports, dying
declaration etc., in order to establish its case. The appellant gave
his statement under Section 313 of the Cr.P.C., but did not produce
any defence witnesses. In his statement, under Section 313 of the
Cr.P.C., the appellant admits to the fact that at the relevant point of
time, PW-7 who is the maternal grandmother of the deceased (the
wife of the appellant) was residing with them. He also admits that
his wife was nine months pregnant at the time of the incident and
gave birth to a stillborn child on 28.01.2007. He, however, denies
all instances of quarreling with his wife and committing the act as
alleged by the prosecution. PW-7 here is the star witness of the
prosecution, who was present in the house and was witness to the
crime. There is also a dying declaration.
11. After hearing the learned counsel for the parties and then examining
the evidence placed by the prosecution, we find that there is an
overwhelming evidence placed by the prosecution before the Trial
Court regarding the incident itself. The prosecution has been able

ever does any act under such circumstances, that if he thereby caused death he would be guilty of cul-
pable homicide, and does by such act cause the death of a quick unborn child, shall be punished with im-
prisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
994 [2024] 2 S.C.R.

Digital Supreme Court Reports

to prove its case beyond reasonable doubt regarding the incident
itself inasmuch as the incident took place on midnight of 26.01.2007
and 27.01.2007, and the appellant who was in an inebriated state,
picked a quarrel with his wife and while she was cooking his meal
in the kitchen, poured kerosene on her as a result of which she
sustained burn injuries and subsequently died.
12. The fact that the appellant had quarreled with the deceased and had
poured kerosene on her is well established. The statement given by
the deceased herself, which the prosecution has placed as a dying
declaration, categorically states that she was being tortured at the
hands of her husband and that her husband was having an affair
with another woman, and that on the fateful day, he returned late
at night in an inebriated state had a fight with her and then threw
kerosene on her, as a result, she sustained burn injuries. But then,
she also states that he also tried to extinguish the fire and as a
result, he too got burn injuries. The other evidence as we have stated
above, is in the form of PW-7, Chaturabai Tukaram Kale, who is the
maternal grand mother of the deceased, who was residing with the
deceased and her husband (appellant) eight to nine days prior to
the incident, and was taking care of the deceased as she was on
the family way. She also supports the story that the appellant was
having an affair with another woman which was the main reason
for the quarrel between the couple. On the fateful day, the two were
quarreling because of this reason alone and the appellant, thereafter,
threw kerosene on his wife, and set her on fire. Having witnessed
the incident she came out of the house and started shouting that
my grand daughter has been set on fire.
13. Another prosecution witness which is worth mentioning here is PW-8
i.e. Vimal Suryakant Salunkhe, who is the maternal aunt, of the
deceased and the daughter of PW-7. This witness was told by the
deceased that the appellant had kept a mistress and this resulted
in frequent fights between husband and wife (i.e., the deceased).
Deceased had also informed her that her husband i.e., the accused,
was addicted to liquor. She was told about the incident by her mother
(PW-7) at about 1 ‘O’ Clock in the night, and the fact that the burn
injuries were caused by the act of the accused (the appellant). On
information received from her mother (PW-7), she went to the Civil
Hospital, Solapur, along with her husband where she saw Meena
(the deceased), in a burnt condition and it was the deceased who
[2024] 2 S.C.R. 995

Dattatraya v. The State of Maharashtra

told her that the appellant had kept a mistress at Kati-Sawargaon
and it was for this reason, that he was picking quarrels with her. At
the time of the incident, she was cooking food on the stove for her
husband and it was for this reason that when he poured kerosene
on her, which was lying in the can, the stove burst and she came out
of the room shouting for help. She was also asked by people who
had gathered at the house by that time as to why her husband has
done this to her. This witness (PW-8), then states that the deceased
died in the hospital after nine days. She had also recognized the
accused who was before the Court. This witness was again put to a
lengthy cross examination without giving any benefit to the defence.
14. Both PW-7 and PW-8 have clearly established the fact that the burn
injuries were caused by the appellant and that he had returned to
his house in an inebriated state and was under the influence of
liquor while he did the act, after picking a quarrel with his wife. The
presence of PW-7, being a witness, in the house at the time of the
incident was never in doubt.
15. The statement was given to PW-8 by the deceased stating how she
sustained burn injuries at the hands of her husband, i.e., the present
appellant, and the same was first recorded in the statement which
was given immediately after she had reached the hospital at about
01.30 AM on 27.01.2007, before PW-1. PW-1 was working as ‘Avval
Karkun’2 in the Tahsil Office, North Solapur, at the relevant point of
time and was requested by the police at 12:30 AM in the night to
record the dying declaration of the deceased at Civil Hospital, Solapur.
16. The examination-in-chief of PW-1 reads as under:-
“ Exam-in-Chief by APP Shri Jadhav
1. I am working as Aval Karkun in Tahsil office,
North Solapur. Since 2d Jan. 2007 I am working as
Special Executive Magistrate. For two days, work
of recording of dying declaration was allotted to
me on Friday and Saturday. On 26th Jan. 2007 I
was in my house. Police had been to my house in
the night at about 12.30 O’clock. I was requested
to record the dying declaration orally. Thereafter

2 Special Executive Magistrate
996 [2024] 2 S.C.R.

Digital Supreme Court Reports

I had been to Civil Hospital, Solapur. A letter was
given to me for recording dying declaration of
Meena Gawali and her husband Datta Gawali. I
am having the copy of letter with me. I had given
my endorsement on the office copy of the letter
of the police. The said letter now shown to me
is same. It is at exh.23. Thereafter I had been to
Medical officer Shri A.P. Deshpande and requested
him to show the patient. The patients were shown
to me. Both the patients sustained burn injuries.
Before recording DD I requested medical officer
to examine the patient and certify about the same.
Doctor examined Dattatraya Bhanudas Gawali. Dr.
Deshpande accordingly made the endorsement
on the statement of Dattatraya Gawali at the top
of the same. The patient disclosed his name as
Dattatraya Bhanudas Gawali R/o. Kati Sawargaon.
As per the statement given by the patient, I
recorded the same. I read over the statement to
Dattarya and he admitted the same to be correct.
I obtained the left thumb mark of the patient. I
again requested the Medical officer to examine the
patient and to tell me as to whether he is conscious
or not. Doctor examined patient and certified the
patient to be conscious. The endorsement now
shown to me is of medical officer. While recording
the statement I myself, Datta Gawali and medical
officer only were there. I put my signature on the
statement. The statement now shown to me is the
same. It is in my hand writing. It is at exh. 24. The
patient disclosed me that on 26.01.2007, in the
night there was quarrel between myself and my
wife and at the relevant time, I poured kerosene
on her person in the angry mood when she was
cooking food. Dur to that according to the patient
they both sustained burn injury. He told me that
he was under the influence of liquor.
2. I also recorded the dying declaration of Meenabai
Gawali and requested Dr. A.P. Deshpande to
[2024] 2 S.C.R. 997

Dattatraya v. The State of Maharashtra

examine patient before recording her statement.
After examining the patient Doctor told me that
patient was conscious and was in position
to give statement. Accordingly doctor put his
endorsement on the dying declaration in the
beginning of the statement. The patient disclosed
her name as Meena Datta Gawali, R/o. Kati
Sawargaon. Meenabai told me that in the nigh on
26.01.2007 when she was cooking the food there
was quarrel between herself and her husband and
at the relevant time her husband poured kerosene
on her person in angry mood due to which there
was bursting of stove in which she sustained burn
injury. She also told that her husband was under
the influence of liquor. Accordingly I recorded
the dying declaration given by Meenabai. The
same was read over to the deceased which she
admitted to be true and correct. I also obtained
the left thumb mark of the patient on the dying
declaration. Again I requested the medical officer
to examine the patient and tell me as to whether
she was in position to give statement or not.
Doctor A.P. Deshpande again examined the
patient and certified the patient to be conscious.
Accordingly he put the endorsement alongwith
his signature on the dying declaration. At the
time of recording of dying declaration I myself,
patient and doctor only were there. The dying
declaration now shown to me is the same. It is
in my hand writing. It bears my signature. It is at
exh. 25. The contents therein are true and correct.
Thereafter I handed over the statements to the
police chauky, Civil hospital, Solapur.”
17. This witness was cross-examined by the defence as there was
some discrepancy in his statement as to whether the deceased was
in a proper state of mind to give a statement. His examination-in-
chief was taken again by the Assistant Public Prosecutor and the
witness was declared hostile only to the extent of discrepancy that
the patient was not in a position to talk. But nothing substantially
998 [2024] 2 S.C.R.

Digital Supreme Court Reports

moves on this aspect, inasmuch as, even if we do not consider the
dying declaration of the deceased which was given at 01.30 AM in
the night on 27.01.2007, there is sufficient evidence to prove that
it was the appellant who had poured kerosene on the deceased
which led to the burn injuries and the death of the deceased and
the child she was bearing. There is no doubt that an offence under
Section 316 has clearly been made out. We only have to examine
whether an offence here is under Section 302 of IPC or is it of a
lesser magnitude.
18. Having considered the entire evidence at length, we are also of the
considered opinion that under the given facts and circumstances of
the case, it would not be a case of murder but of culpable homicide
not amounting to murder for the reasons which we want to state
as under.
19. We have, by and large, accepted the case of the prosecution as to
the incident itself. There is sufficient evidence to prove that the burn
injury was caused to the deceased by an act done at the hands of
the appellant and it was the appellant who had come to his house
under the influence of liquor and poured kerosene on his wife while
she was cooking food for him on a stove, which resulted in bursting
of the stove and causing burn injuries on the deceased. There is also
sufficient proof of the fact that the husband and wife were having
frequent fights even earlier. This has come out in the deposition of
PW-7 and her cross-examination has inspired our confidence as well
as that of PW-8 though she is not an eye-witness to the incident. The
fact that the deceased gave birth to a stillborn child on the next day
i.e., 28.01.2007 while she was still alive and the death was caused
by the act of the appellant which we have already stated above, also
makes a case under Section 316 of the Indian Penal Code.
20. From every available evidence, which was placed by the prosecution,
it is a case where a sudden fight took place between the husband
and wife. The deceased at that time was carrying a pregnancy of
nine months and it was the act of pouring kerosene on the deceased
that resulted in the fire and the subsequent burn injuries and the
ultimate death of the deceased. In our considered opinion, this act at
the hands of the appellant will be covered under the fourth exception
given under Section 300 of the IPC, i.e., “Culpable homicide is not
murder if it is committed without premeditation in a sudden fight in
[2024] 2 S.C.R. 999

Dattatraya v. The State of Maharashtra

the heat of passion upon a sudden quarrel and without the offender’s
having taken undue advantage or acted in a cruel or unusual manner”.
21. The act of the appellant is not premeditated, but is a result of sudden
fight and quarrel in the heat of passion. Therefore, we convert the
findings of Section 302 to that of 304 Part-II, as we are of the opinion
that though the appellant had knowledge that such an act can result
in the death of the deceased, but there was no intention to kill the
deceased. Therefore, this is an offence which would come under
Part-II not under Part-I of Section 304 of the IPC.
On almost similar facts, (as are present in the case at hand), this
Court had converted the findings of Section 302 to that of Section
304 Part II IPC. The case of which reference is being made here is
Kalu Ram v. State of Rajasthan (2000) 10 SCC 324. The appellant
who had been convicted under Section 302 IPC for causing death of
his wife by pouring kerosene on her and then setting her on fire was
convicted by the Trial Court under Section 302, which was upheld
by the High Court. The facts of the case are as follows :-
In the above case, the appellant who in an inebriated state was
pressurizing his wife to part with some ornaments so that he could
buy some more liquor. On her refusal he poured kerosene on her and
set her on fire by lighting a matchstick. But then he also tried to pour
water on her to save her. This Court was thus of the opinion that :
“7….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 that 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 first degree murder to culpable homicide
not amounting to murder.
8. We therefore alter the conviction from Section 302
IPC to Section 304 Part II IPC...”
1000 [2024] 2 S.C.R.

Digital Supreme Court Reports

The facts of the present case, as we have already discussed above,
by and large reflect the same situation, nature of crime as well as
the act of the accused and the consequences of his action. We are
inclined to accept the arguments raised by the learned senior counsel
for the appellant, Mr. Sudhanshu S. Choudhari that under the present
circumstances it would indeed be a case of culpable homicide not
amounting to murder as given in Section 304 Part II in as much as,
though the accused had knowledge of the consequences of the act
he was committing, yet there was no intention to cause death.
The appeal is partly allowed. We convert the findings of Section 302
to that of Section 304 Part II of IPC and sentence the accused to 10
years of R.I. To this extent the findings given by the trial court and
High Court will stand modified. We have also been informed that
the appellant has already undergone incarceration for more than 10
years. Therefore, he shall be released forthwith from the jail, unless
he is required in some other offence.

Headnotes prepared by: Nidhi Jain Result of the case:
Appeal partly allowed.