SAYAJI HANMANT BANKARversusSTATE OF MAHARASHTRA

                         [2011] 8 S.C.R. 234
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A                   SAYAJI HANMANT BANKAR
                                   v.
                    STATE OF MAHARASHTRA
                 (Criminal Appeal No. 457 of 2007)
                            JULY 13, 2011
B
            [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

         Penal Code, 1860: s.304, (Part I), s.300, Exception 4;
    s.302 - Conviction on the basis of dying declaration -
C   Allegation that accused-husband came home in drunkeri
    state and started abusing victim-wife and hit her on knee with
    brass pot and thereafter threw burning kerosene lamp on her
    - Victim was wearing a nylon sari which caught fire and she
    got engulfed in flames - In her dying declaration, she stated
D   that accused had tried to douse the fire - Courts below
    convicted accused uls.302 and awarded life imprisonment -
    On appeal, held: On facts and in view of evidence on record,
    Exception 4 to s.300 is attracted - There was sudden fight
    between accused and his wife and the act of throwing burning
E   kerosene lamp was without premeditation - The evidence did
    not show the intention on part of accused to cause death or
    such bodily injury so as to result in the death of his wife - The
    burning seemed to be more out of the fact that at the time of
    incident, the victim was wearing nylon sari and had she not
F   been wearing a nylon sari, she would not have been burnt to
    the extent of 70% - Conviction of accused altered from s.302
    to s.304 Part I and sentence modified to period already
    undergone by him.
       The prosecution case was that on the fateful night,
G the appellant-accused came home at 9 p.m. under the
  influence of liquor and started abusing his wife. There
  was petty quarrel between the accused and his wife and
  in that quarrel, the accused hit her left knee with a brass
  pot and thereafter threw a burning kerosene lamp on her.
H                             234
     SAYAJI HANMANT SANKAR v. STATE OF                 235
               MAHARASHTRA
The wife was wearing a nylon sari which immediately           A
caught fire and she was engulfed in flames. She was
taken to hospital. As per the medical report, the victim
was burnt to the extent of 70%. In her dying declaration,
she mentioned that the accused had tried -to douse the
fire. The accused had also received burn injuries to the      B
extent of 18%.
    The trial court as well as the High Court took the view
on the basis of dying declaration that the act on the part
of the accused showed his intention to commit the
murder or such bodily injury as was likely to result in her   C
death. The accused was convicted under Section 302 IPC
and sentenced to life imprisonment. The instant appeal
was filed against the order of conviction.
    Partly allowing the appeal, the Court
                                                              D
     HELD: Exception 4 to Section 300 IPC is attracted if
the act is done without premeditation .in a sudden fight
or in the heat of passion upon a sudden quarrel and the
offender does not take any undue advantage or act in a
cruel or unusual manner. The evidence on record did not
show that the intention on the part of the appellant- . E
accused was to cause death or such bodily injury as
would have resulted in the death of his wife. There would
have to be much more activity on the part of the accused
if his intention was to commit the murder of his wife. If
there was any intention to commit her murder, as F
mentioned in Section 299 IPC, there would have been
much other acts like pouring kerosene on the victim-
deceased etc. A perusal of evidence showed 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 G'
water pot and thereafter a kerosene lamp. The burning
seemed to be more out of the fact that unfortunately at ·
that time, the victim was wearing nylon sari. Had she not
been wearing a nylon sari, she could not have been burnt
to the extent of 70%. This was a case which clearly fell H
      236       SUPREME COURT REPORTS               (2011) 8 S.C.R.
                                                                       --
A 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. The
  conviction of the accused is altered from Section 302 IPC
s to Section 304 Part-I IPC and sentence is reduced to the
  period already undergone by him. [Paras 5, 7, 8, 9] [237-
  D-F; 238-B-F]
          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 457 of 2007.
c         From the Judgment & Order dated 11.8.2004 of the High
    ' Court of Judicature at Bombay in Criminal Appeal No. 319 of
      2000.
            Satyapal Khushal Chand Pasi, for the Appellant.
D           Shankar Chillarge, Asha Gopalan Nair for the Respondent.
            The Judgment of the Court was delivered by
       V.S.SIRPURKAR, J. 1. Challenge in this appeal is to the
  judgment dated 11.8.2004 in Criminal Appeal No. 319 of 2000
E passed by the High Court of Bombay affirming the judgment
  and order dated 6.3.2000 passed by the trial court by which
  the appellant was convicted for the offence under Section 302
  IPC and sentenced to imprisonment for life and to pay a fine
  of Rs. 2000/- in default to undergo further rigorous
F imprisonment for one year.
            2. The brief facts leading to case are as under:
       On 18.5.1998 at about 9 p.m., appellant-accused Sayaji
  Hanmat Sankar came home under the influence of liquor and
G abused his wife deceased-Suman. There was petty quarrel
  between the appellant and the deceased Suman and in that
  quarrel the appellant hit her left knee with a water pot made of
  brass and thereafter threw a burning kerosene lamp upon her.
  At that time, she was wearing nylon sari which immediately
H caught fire and she was engulfed by flames. The deceased was
--          SAYAJI HANMANT SANKAR v. STATE OF
             MAHARASHTRA [V.S. SIRPURKAR, J.]
                                                                   237


     immediately taken to the hospital by her parents where her dying      A
     declaration was recorded. The medical report of the doctor
                             '\
     showed that the deceased was burnt to the extent of 70%. A
     dying declaration was recorded. During investigation the
     deceased gave the above version. In her dying declaration, it
     has also been mentioned that the accused-appellant also tried         B
     to douse the fire. It is established that he had received burn
     injuries to the extent of 18%.
          3. The trial court as well as the High Court have taken the
     . view on the basis of dying declaration that the act on the part
       of the accused showed his intention to commit the murder or         C
       such bodily injury as was likely to result in her death,
          4. We have heard Mr. S.K.C. Pasi, learned counsel
      appearing on behalf of the appellant and Mr. Shankar Chillarge,
      learned counsel appearing on behalf of the State and also gone
      thro~hthereoo~.                                                      D
            5. In our view, from the evidence on record, it does not
      appear that the intention on .the part .oflhe accused was to
      cause death or such bodily injury as would have resulted in the
      death of his wife. There would be much more activity on the part
      of the accused if his intention was to commit the murder of his      E
      wife. It seems that there was a fight as soon as he came to the
      house under the drunken state and in the fight, he first hit her
      left knee with a water pot and thereafter, threw kerosene lamp
      on her. It is obvious from the evidence that this was done
      suddenly in the heat of passion. If there was any intention to       F
      commit her murder, as mentioned in Section 299 IPC, there
      would have been much other acts like pouring kerosene on the
      deceased etc. on the part of the accused.
           6. The High Court rejected the contention of learned
      counsel for the appellant that this case would fall under            G
      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 Linder clause "fourth" of
      300 IPC. Exception 4 to Section 300 IPC i•eads as under:
          Exception ,4- Culpable homicide is not murder if it is
                                                                           H
    238       SUPREME COURT REPORTS                [2011] 8 S.C.R.       --
A         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 clearJrom the reading of aforesaid Exception 4 that
B 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
C 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
D 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
E punishable under Section 304 Part-I.
         9. We, accordingly, alter the conviction of the accused from
    Section 302 IPC to Section 304 Part-I IPC and sentence him
    to the period already undergone by him. The sentence of fine
    remains the same.
F         10. It is submitted by the learned counsel for the appellant
    that the appellant was taken into custody on 29.5.1998 and was
    never granted bail by the High Court and he has already
    undergone 13 years of sentence.
G        11. In that view of the matter, the accused-appellant is
    directed to be released from the jail forthwith unless he is
    required in any other case.
        12. The appeal is allowed partly to the extent indicated
    above.
H D.G.                                       Appeal partly allowed.