YOMESHBHAI PRANSHANKAR BHATTversusSTATE OF GUJARAT

                        [2011] 5 S.C.R. 958


A             YOMESHBHAI PRANSHANKAR BHATT
                                  v.
                       STATE OF GUJARAT
                (Criminal Appeal No. 2109 of 2009)

                           MAY 19, 2011
B                                                  .
     [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

        Constitution of India, 1950:

C        Article 136 and 142 - Limited notice issued in special
    leave petition - Power of Court to consider all issues while
    hearing the matter finally - HELD: In view of the inherent
    powers of the Court under the Rules and having regard to
    Article 142, the Supreme Court at the time of final hearing is
o   not precluded from considering the controversy in its entire
    perspective and in doing so, the Court is not inhibited by.any
    observation in an order made at the time of issuing the notice
    - Supreme Court Rules, 1966 - Or.47, rr. 1 and 6 - Inherent
    powers of Supreme Court.
E       Penal Code, 1860:

       s. 304 (part II) - During an altercation accused pouring
  kerosene on victim and setting her on fire resulting in her
  death - HELD: There being no eye-witness, the case is based
F on circumstantial evidence and statements of deceased in the
  dying declarations - Accused had no pre-mediation to kill the
  deceased or cause any bodily injury to her - The incident
  happened on the spur of the moment - The case falls u/s
  304(part II) - The sentence of 11 years and 2 months already
G undergone by the accused is more than sufficient -
  Circumstantial evidence.

        The appellant was prosecuted for committing an
    offence punishable u/s 302 IPC. The prosecution case
H                               958
                                                      .
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 959
               GUJARAT

was that on the day of incident, the woman working as a      A
maid in the house of the appellant did not turn up. He,
accompanied by one 'AP', went to her house, which was
nearby. An altercation took between the maid and the
appellant. The appellant gagged the mouth of the maid,
and emptied a can of kerosene on her and lit the             B
matchstick. PW-2, the elder sister-in-law of the victim,
reached there after hearing shouts and made
arrangem.ents for taking the victim for treatment. The
victim made thr~e dying declarations. The first one was
recorded when PW-2 took the deceased to the hospital         c
wherein the victim had informed the doctor that the
appellant tiad sprinkled kerosene on her and set her on
fire. The second and the third ones recorded by the PS1
and the Executive Magistrate, respectively were to the
same effect. Thereafter, the victim lost her consciousness   o
and died six days later in an unconscious stage. The trial
court convicted the accused u/s 302 IPC and sentenced
him to imprisonment for life. The High Court upheld the
conviction and the sentence.
     In the special leave petition filed by the appellant,   E
though the notice was confined only to the question as
to whether the appellant was guilty of an c.ffence under
an·y of the parts of s.304 IPC and not u/s 302, during the
course of hearing it was contended for the appellant that
the Court at the time of final hearing was not bound with    F
the directions given while issuing notice, and the
appellant was entitled to urge all questions including his
right tO plead for his acquittal.
    Partly allowing the appeal, the Court                    G
    HELD: 1.1. Under Article 142 of the Constitution, this
Court in exercise of its jurisdiction may pass such
decrees and may make such orders as is necessary for
doing complete justice in any case or matter pending
                                                             H
    960     SUPREME COURT REPORTS               [2011] 6 S.C.R.


A before it. It is, therefore, clear that the Court while hearing
  the matter finally, may pass such orders which the justice
  of the case demands and in doing so, no fetter is
  imposed on the Court's jurisdiction except, of course,
  any express provision of the law to the contrary. Any
8 observations which are made by the Court at the time of
  entertaining a petition by way of issuing notice are
  tentative observations. [para 9-10] [966-C-F]

         1.2. It is also clear from 0. 47, r. 6 of the Supreme
    Court Rules, 1966 that the inherent powers of the Court
C   are saved under the Rules. In view of the inherent powers
    of the Court under the Rules and having regard to the
    constitutional provision under Article 142, the Supreme
    Court at the time of final hearing is not precluded from
    considering the controversy in its entire perspective and
D   in doing so, this Court is not inhibited by any observation
    in an order made at the time of issuing the notice. This
    Court is, therefore, entitled to consider the plea of the
    appellant for acquittal despite the fact that at the time of
    issuing notice, it was limited in terms of the order dated
E   27.7.2009. However, it is made clear that this cannot be a
    universal practice in all cases. The question whether the
    Court will enlarge the scope of its inquiry at the time of
    final hearing depends on the facts and circumstances of
    the case. In the facts of the instant case, this Court finds
F   that the appellant should be heard on all points. [para
    11, 13, 17 and 18] [966-G; 967-C-D; 969-A-C]

         State of Uttaranchal vs. Alok Sharma and others 2009
    (7) SCR 1 = 2009(7) SCC 647 - relied on.

G      2.1. As regards the merits of the case, it is nobody's
  case that the appellant went to the house of the deceased,
  being armed with any weapon or he was carrying any
  inflammable substance. Therefore, any pre-meditation on
  the part of the appellant in causing any bodily harm or
H injury to the deceased is admittedly ruled out.
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 961
               GUJARAT

Surprisingly, 'AP', .who had accompanied the appellant to      A
the house of the deceased, had run away before the
incident of burning took place and he was not examined
by the prosecution at all. The only two other witnesses
in the case are the husband of the deceased (PW-1) and
her elder sister-in-law (PW-2). PW 1, in his evidence          B
abmitted that the deceased had suicidal tendencies in the
past. [para 19-20] [969-D-E; 970-8-D]

    2.2. There is no eye-witness. The case is, therefore,
entirely based on circumstantial evidence and the              C
statements of the deceased in more than one dying
declarations. Virtually, there is no inconsistency between
the dying declarations of the deceased recorded at the
interval of few hours on the day of the incident. The
evidence of PW 1 is that he was informed of the incident
and he came to see the deceased on the date of the             D
incident and found her unconscious. [para 19 and 21]
[969-0; 970-E.H]

    State of U.P. vs. Chetram and others, AIR 1989 SC
1543; and Khujji alias Sufendra Tiwari vs. State of Madhya     E
Pradesh AIR 1991 SC 1853- referred to.

    2.3. The statement of the appellant u/s 313 was
accompanied by written document. There the appellant
had taken a defence plea that he wanted to save the
deceased and in the process got his right hand burnt.          F
However, neither the trial court nor the High Court had
considered this aspect of the case. [para 24-25] [971-F-
H]
     2.4. In a case relating to circumstantial evidence, the   G
Court should see the circumstances very carefully before
arriving at a finding of guilt of the person concerned and
yet if there is any doubt which is inconsistent with the
innocence of the accused, the benefit should go to the
accused. [para 29] [972-F]                                     H
                                        -
    962      SUPREME COURT REPORTS                [2011] 6 S.C.R.

A      2.5. In the instant case, it is clear that the appellant
  had no pre-meditation to kill the deceased or cause any
  bodily harm or injury to her. Everything has happened on
  the spur of the moment. The appellant must have lost
  self-control on some provocative utterances of the
B deceased. These possibilities cannot be ruled out, having
  regard to the evidence of PW.1. However, the fact that
  kerosene was sprinkled on the deceased by the appellant
  possibly cannot be disputed, in view of concurrent
  finding by both the courts and having regard to the
c materials on record. But the case falling u/s 300, thirdly
  of IPC, is very doubtful. [para 30-31) [972-G-H; 973-A-B]

       2.6. Having regard to the facts and circumstances of
  the case and in the light of defence of the accused, this
  Court holds that the case falls u/s 304 (Part II). The
D appellant has already suffered imprisonment for 11 years
  and 2 months. In that view of the matter, this Court holds
  that the sentence which has already been undergone by
  the appellant is more than sufficient u/s 304 (Part II).
  However, the sentence of fine is set aside. [para 31) [973-
E B-C]

        Rodemadan India Ltd., v. International Trade Expo
    Centre Ltd., (2006) 11 SCC 651; and Prem Chand Garg and
    another v. Excise Commissioner, U. P. and others, 1963
F Suppl. SCR 885 =AIR 1963 SC 996 - cited.
                           Case Law Reference:
          (2006) 11 sec 651        cited                para 5
          1963 Suppl. SCR 885      cited                para 5
G
          2009 (7) SCR 1            relied on           para 14
          AIR 1989 SC 1543          referred to         para 22
          AIR 1991 SC 1853         referred to          para 23
H
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 963
               GUJARAT

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                 A
No. 2109 of 2009.

    From the Judgment & Order dated 17.3.2009 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 815 of
2001.
                                                                     B
    D.N. Ray, Lokesh K. Choudhary, Sumita Ray for the
Appellant.

    Hemantika Wahi, Jesal Wahi, Suveni Banerjee for the
Respondent.                                                          c
    The Judgment of the Court was delivered by

    GANGULY, J. 1. Heard learned counsel for the parties.

    2. Some important questions have come up for                     o
consideration in this case.      ·

     3. This appeal is against the concurrent finding of both the
courts convicting the appellant under Section 302 IPC and
sentencing him to suffer imprisonment for life. The judgment of      E
the Trial Court was rendered by the Additional Sessions Judge
at Vadodara in Sessions Case No. 275 of 2001 by judgment
and order dated 16.8.2001. The High Court by judgment and
order dated 17.3.2009 in Criminal Appeal No. 815 of 2001
affirmed the same.
                                                                     F
    4. At the stage of SLP, this Court by an order dated
27.7.2009 issued notice only confined to the question as to
whether the petitioner is guilty for commission of an offence
under any of the parts of Section 304 of the Indian Penal Code
and not under Section 302 thereof.                                   G

     5. Learned counsel for the appellant urged that though at
the time of issuing notice, this Court limited its rights to raise
points only within the confines of Section 304 of Indian Penal
Code, the Court is not bound at the time of final hearing with
                                                                     H
     964      SUPREME COURT REPORTS                  [2011] 6 S.C.R.


 A that direction given while issuing notice and the appellant is
    entitled to urge all questions including his right to urge that he
   should have been acquitted in the facts and circumstances of
   the case. Before examining the correctness of the aforesaid
   submission, we are inclined to look into the rules of this Court.
 s The Supreme Court Rules, 1966 (hereinafter referred to as "the
   rules") which have been framed under Article 145 of the
   Constitution are relevant in connection with this inquiry. It has
   been held by this Court that the power of Supreme Court to
   make Rules to regulate its own procedure is only subject to two
 c limitations:

         (i) These rules are subject to laws made by Parliament.
         [See Rodemadan India Ltd., v. International Trade Expo
         Centre Ltd., (2006) 11 SCC 651.]

D        (ii) These rules, being in the nature of subordinate
         legislation, cannot override the Constitutional provision.
         [See Prem Chand Garg and another v. Excise
         Commissioner, UP. and others, AIR 1963 SC 996]

E         6. However, these rules are intended to govern the
     practice and procedure of this Court.

          7. Article 145 of the Constitution provides that subject to
    the provisions of any law made by Parliament, the Supreme
    Court, may from time to time, with the approval of the President,
. F make rules for regulating the general practice and procedures
    of the court including the matters which are enumerated as
    follows:-

         (a) rules as to the persons practising before the Court;
G        (b) rules as to the procedure for hearing appeals and other
         matters pertaining to appeals including the time within
         which appeals to the Court are to be entered;

         (c ) rules as to the proceedings in the Court for the
H        enforcement of any of the rights conferred by Part Ill;
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 965
    GUJARAT [ASOK KUMAR GANGULY, J.]

    (cc) [rules as to the proceedings in the Court under [article     A
    139A];

     (d) rules as to the entertainment of appeals under sub-
     clause (c) of clause (1) of article 134;

      (e) rules as to the conditions subject to .which any judgment   B
      pronounced or order made by the Court may be reviewed
    . and the procedure for such review including the time within
      which applications to the Court for such review are to be
      entered;
                                                                      c
     (f) rules as to the costs of and incidental to any
     proceedings in the Court and as to the fees to be charged
     in respect of proceedings therein;

     (g) rules as to the granting of bail;
                                                                      D
     (h) rules as to stay of proceedings;

     (i) rules providing for the summary determination of any
     appe~I which appears to the Court to be frivolous or
     vexatious or brought for the purpose of delay;                   E

      8. We are not concerned here with other sub-articles of
Article 145. The rules which have been thus framed by this Court
under the constitutional provision must be read in
understanding the scope of its power under Article 142 of the
Constitution. Article 142 of the Constitution provides as follows:-   F

            142. Enforcement of decrees and orders of
      Supreme Court and orders as to discovery, etc. (1) The
      Supreme Court in the exercise of its jurisdiction niay pass
      such decree or make such order as is necessary for doing G
      ~omplete justice in any cause or matter pending before it,
      and any decree so passed or order so made shall be
      enforceable throughout the territory of India in such manner
      as may be prescribed by or under any law made by
    . Parliament and, until ·provision in that behalf is so made, H
    966       SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A         in such manner as the President may by order prescribed.

          2. Subject to the provisions of any law made in this behalf
          by Parliament, the Supreme Court shall, as respects the
          whole of the territory of India, have all and every power to
          make any order for the purpose of securing the attendance
B
          of any person, the discovery or production of any
          documents, or the investigation or punishment of any
          contempt of itself.

          9. The provision of Article 142 of the Constitution have
C   been construed by this Court in several judgments. However,
    one thing is clear that under Article 142 of the Constitution, this
    Court in exercise of its jurisdiction may pass such decrees and
    may make such orders as is necessary for doing complete
    justice in any case or matters pending before it. It is, therefore,
D   clear that the court while hearing the matter finally and
    considering the justice of the case may pass such orders which
    the justice of the case demands and in doing so, no fetter is
    imposed on the court's jurisdiction E?xcept of course any
    express provision of the law to the contrary, and normally this
E   Court cannot ignore the same while exercising its power under
    Article 142.

          10. An order which was passed by the court at the time of
    admitting a petition does not have the status of an express
    provision of law. Any observation which is made by the court
F   at the time of entertaining a petition by way of issuing notice
    are tentative observations. Those observations or orders cannot
    limit this court's jurisdiction under Article 142.

         11. If we look at the rules, it is also clear from the Order
G   XLVll Rule 6, that the inherent powers of the Court are saved
    under the Rules. The provision of Order XLVll Rule 6 are set
    out to demonstrate the same.

               "Nothing in these rules shall be deemed to limit or
          otherwise affect the inherent powers of the Court to make
H
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 967
    GUJARAT [ASOK KUMAR GANGULY, J.]

     such orders as may be necessary for the ends of justice          A
     or to prevent abuse of the process of the Court."

     12. Order XLVll Rule 1 is almost to the same effect and is
set out below:-

           "The Court may, for sufficient cause shown, excuse         B'
     the parties from compliance with any of the requirements
     of these rules, and may give such directions in matters of
     practice and procedure as it may consider just and
     expedient."
                                                                      c
     13. In view of this position under the rules and having regard
to the constitutional provision under Article 142, we do not think
that this Court at the time of final hearing is precluded from
considering the controversy in its entire perspective and in
doing so, this Court is not inhibited by any observation in an        0
order made at the time of issuing the notice ..

     14. Observation to that effect has been made in a judgment
of this Court in the case of State of Uttaranchal vs. Alok
Sharma and others reported in 2009(7) SCC 647. In paragraph
31 at page 658, this Court, after making an express provision         E
to Article 142 held as follows:-

           "So far as civil appeal arising out of SLP(C) No.
    6451 of 2005 and civil appeal arising out of SLP(C) no.
    8239 of 2005 are concerned, although limited notice               F
    having been issued confining the case to back wages, but
    keeping in view the order passed in the other cases, we
    are of the opinion that the said order shall be recalled and
    leave on all points should be granted. The respondents
    being placed similarly should not, in our opinion, be treated     G
    differently. This order is being passed in exercise of our
    jurisdiction under Article 142 of the Constitution of India.
    However, we make it clear that if any amount has been paid
    to the said respondents, the same should not be
     recovered. The appeals are allowed with the                      H '·
    968       SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A         aforementioned directions. No costs."

          15. By way of analogy we may refer to the provision of
    Section 100 of Civil Procedure Code. Section 100 runs as
    follows:-

B         100. Second Appeal. (1) Save as otherwise expressly
          provided in the body of this Code or by any other law for,
          the time being in force, an appeal shall lie to the High Court
          from every decree passed in appeal by any Court
          subordinate to the High Court, if the High Court is satisfied
C         that the case involves a substantial question of law.

           (2)   An appeal may lie under this section from an
                 appellate decree passed ex-parte.

           (3)   In an appeal under this Section, the memorandum
D                of appeal shall precisely state the substantial
                 question of law involved in the appeal.

           (4)   Where the High Court is satisfied that a substantial
                 question of law is involved in any case, it shall
E                formulate that question.

           (5)   The appeal shall be heard on the question so
                 formulated and the respondent shall, at the hearing
                 of the appeal, be allowed to argue that the case
                 does not involve such question:
F
       Provided that nothing in this sub-section shall be deemed
  to take away or abridge the power of the Court to hear, for
  reasons to be recorded, the appeal on any other substantial
  question of law, not formulated by it, if it is satisfied that the
G case involves such question.

         16. Proviso to Section 100 of the Code makes it clear that
    the powers of High Court cannot be fettered to hear a s~cond
    appeal on a question which was not formulated by it at the time
1-1 of admitting a second appeal, if the case involves any other
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 969
    GUJARAT [ASOK KUMAR GANGULY, J.]

question. So far as the High Court is concerned, the same has A
been statutorily recognised under Section 100 in the case of •
Second Appeal. In the case of this Court, the same has been
constitutionally provided in Article 142.

     17. We are, therefore, entitled to consider the plea of the       8
appellant for acquittal despite the fact that at the time of issuing
notice, it was limited in terms of the order dated 27.7.2009.

      18. We, howev~r. make it clear that this cannot be a
universal practice in all cases. The question whether the Court
will enlarge the scope of its inquiry at the time of final hearing     C
depends on the facts and circumstances of the case. Since in
the facts of this case, we find that the appellant should be heard
on all points, we have come to the aforesaid conclusion.

     19. Now, coming to the facts of the case, we find that            D
broadly in the case against the appellant, there is no eye-
witness. The facts are that the deceased was working in the
house of the appellant as a maid. She was absent from her
duties and the appellant went to her house, which is at a nearby
area from the house of the appellant, to call her to join her          E
duties as a maid. It is nobody's case that the appellant went to
the house of the deceased, being armed with any weapon or
he was carrying any inflammable substance. Therefore, any
pre-meditation on the part of the appellant in causing any bodily
harm or injury to the deceased is admittedly ruled out.
                                                                       F
     20. The appellant went to the house of the deceased being
accompanied by one Alpesh. In the house of the deceased, an
altercation ensued between the appellant and the deceased as
the deceased was refusing to come and join her work as a
maid presumably on the ground that the amount of Rs. 375/-             G
per month which was paid by the appellant to the deceased
by way of remuneration was very low. The appellant had stated
by way of defence that the deceased had taken a loan of Rs.
10,000 from the appellant and the appellant wanted the
deceased to return the same. However, this defence has not             H
    970     SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A been accepted either by the trial court or the High Court.
  Admittedly, an altercation followed and it is alleged that the
  appellant on the spur of the moment, went to the deceased and
  gagged her mouth. The further prosecution case is that the
  deceased was cooking at the time when the appellant went to
B her house. A can of kerosene was lying nearby and the
  appellant almost emptied the can of kerosene on the deceased
  and lit the match stick. Surprisingly, Alpesh who accompanied
  the appellant to the house of the deceased ran away before
  the incident of burning had taken place and he was not
c examined by the prosecution at all. The only two other witnesses
  in this case are PW 1 husband of the deceased and PW 2 the
  elder sister-in-law of the deceased. PW 2 came to the place
  of occurrence after hearing the shouts of the deceased and
  made arrangements for taking the deceased to the doctor for
  treatment. Both PW 1 husband of the deceased and PW 2
0
  Kanta Ben, who made arrangements for taking the deceased
  for medical treatment were declared hostile. PW 1, the husband
  of the deceased, in his evidence submitted that the deceased
  had suicidal tendencies in the past.

E      21. The case is, therefore, entirely based on circumstantial
  evidence and the statement of the deceased in more than one
  dying declarations. The first dying declaration appears to have
  been recorded when PW 2 Kanta Ben took the deceased to
  hospital at 0330 hours wherein the doctor said that the
F deceased was fully conscious and had informed the doctor that
  the appellant had sprinkled kerosene on her at 0200 hours at
  her residence when she was doing her work and set her on fire
  with a match stick. The second was recorded by PSI which is
  Exh. 27 and the third one was by the Executive Magistrate (Exh.
G 31). Virtually, there is no inconsistency between these dying
  declarations of the deceased recorded at the interval of few
  hours on the day of the incident. The prosecution evidence is
  that the deceased survived for six days after the date of the
  incident and lost her consciousness and did not regain her
H consciousness till she was alive. The evidence of PW 1 is that
YOMESHBHAI PRANSHANKAR BHATI v. STATE OF 971
    GUJARAT [ASOK KUMAR GANGULY, J.]

he was informed of the incident and he came to see the              A
deceased on the date of the incident and found her
unconscious. The learned counsel for the appellant further
submitted the doctor had not given his written opinion that the
deceased was fit enough to give her statement. Though orally,
the doctor said so. Relying on this part of the evidence            8
especially the evidence of the husband of the deceased, the
learned counsel for the appellant submitted that even though
the husband may have been declared hostile, the law relating
to appreciation of evidence of hostile witnesses is not to
completely discard the evidence given by them. This Court has       C
held that even the evidence given by hostile witness may
contain elements of truth.

     22. This Court has held in State of UP. vs. Chetram and
others, AIR 1989 SC 1543, that merely because the witnesses
have been declared hostile the entire evidence should not be        D
brushed aside. [See para 13 at page 1548).

     23. Similar view has been expressed by three-judge Bench
of this Court in Khujji alias Surendra Tiwari vs. State of
Madhya Pradesh, [AIR 1991 SC 1853). At para 6, page 1857            E
of the report this Court speaking through Justice Ahmadi, as
His Lordship then was, after referring to various judgments of
this Court laid down that just because the witness turned hostile
his entire evidence should not be washed out.

     24. Apart from that, the learned counsel submitted that the    F
statement of the appellant under Section 313 was
accompanied by written document. There the· appellant had
taken a defence plea that he wanted to save the deceased and
in the process got his right hand burnt.
                                                                    G
     25. However, neither the Trial Court nor the High Court had
considered this aspect of the case. The learned counsel for the
appellant has further submitted that the case of the prosecution
as presented is totally improbable. He had strenuously urged
that it was im~ossible for one individual to hold in one hand, a    H
    972      SUPREME COURT REPORTS                    (2011] 6 S.C.R.

A woman, who was struggling desparately to free herself from his
  grasp and to pour by the other hand three litres kerosene on
  her from a can with a small opening and then lit the matchstick,
  which requires the involvement by both the hands. The courts
  should have considered this aspect of the matter which would
8 show the inherent improbability in the prosecution case.
       26. It cannot be denied, as it has come on evidence, that
  as the deceased was wearing a polyster saree, the burn injuries
  were aggravated which could not have been so if she would
  have been wearing a cotton dress. The fact that she was
C wearing a polyster saree is not disputed by the prosecution.
  The learned counsel submitted that considering the aforesaid
  facts into consideration by this Court, the case cannot come
  under Section 302 IPC.

D         27. The learned counsel appearing for the State submitted
    that the case of the appellant was twice considered by the Trial
    Court and also by the High Court and both the courts have
    found concurrently against him and overruled the aforesaid
    contentions.
E       28. Learned counsel further submitted that the case falls
    squarely under Section 300, thirdly of IPC.

        29. We have considered the relevant submission. We are
  of the view that in a case relating to circumstantial evidence,
F the Court should see the circumstances very carefully before
  arriving at a finding of guilt of the person concerned and yet if
  there is any doubt which is inconsistent with the innocence of
  the accused, the benefit should go to the accused.

G         30. In the instant case, it is clear that the appellant had no
    pre-meditation to kill the deceased or cause any bodily harm
    or injury to the deceased. Everything has happened on the spur
    of the moment. The appellant must have lost self-control on
    some provocative utterances of the deceased. These
    possibilities cannot be ruled out, having regard to the evidence
H
YOMESHBHAI PRANSHANKAR BHATT v. STATE OF 973
    GUJARAT [ASOK KUMAR GANGULY, J.]

of PW.1. However, the fact that kerosene was sprinkled on the         A
deceased by the appellant possibly cannot be disputed, in view
of concurrent finding by both the courts and having regard to
the materials on record.

 . 31. But whether the case falls under Section 300, thirdly          8
of IPC, is very doubtful. Having regard to the facts and
circumstances of the case and in the light of defence of the
deceased, this Court holds that the case falls under Section
304 Part II and the appellant has already suffered imprisonment
for 11 years 2 months. In that view of the matter, this Court holds   C
that the sentence which has already been undergone by the
appellant is· more than sufficient under Section 304 Part II.
However, the sentence of fine is set aside.

     32. Having regard to our finding, that the case falls under
Section 304 Part II, the appeal is allowed to the extent indicated    D
above. The appellant should be released forthwith, if not
required in any other case.

R.P.                                      Appeal partly allowed.