Full Judgment Text
2023 INSC 965
Criminal Appeal No.2697 of 2023
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2697 OF 2023
ANIL KUMAR …APPELLANT
VERSUS
THE STATE OF KERALA …RESPONDENT
J U D G M E N T
PANKAJ MITHAL, J.
1. The appellant Anil Kumar has been convicted under Sections
1
302 and 498A of the Indian Penal Code by both the courts
below and has been sentenced to life imprisonment and to pay
fine of Rs.50,000/, and in default to undergo simple
imprisonment for one year under Section 302 IPC and rigorous
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.11.01
14:42:12 IST
Reason:
1 “IPC”, for short
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Criminal Appeal No.2697 of 2023
imprisonment of one year under Section 498A IPC with
direction that both the sentences would run concurrently.
2. The incident is of 26.09.2010 and had taken place at 9:00 am
in the morning at the house of the appellant. The allegation is
that the appellant, with the intention to kill his wife, lighted a
matchstick and threw it upon her when she had already
poured kerosene upon herself due to the quarrel with the
appellant.
3. The FIR No.621/2010 dated 26.09.2010 was initially regis
tered under Section 307 IPC wherein it has been stated that
the deceased wife, due to unbearable mental and physical ha
rassment caused to her by the appellant, poured kerosene
upon herself to deter the appellant from causing further
torture to her and that the appellant with the clear intention to
kill her took advantage of the situation and lighted the
matchstick and threw it on her body uttering “You Die” . Thus,
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the deceased wife was inflicted with burn injuries at their
residence by the appellant with clear intention of killing her.
Subsequently, when the deceased wife died in the hospital, the
case was converted into that under Sections 302 and 498A of
IPC.
On the basis of the aforesaid FIR, the appellant was charged
4.
for uxoricide.
5. There is a clear and clinching evidence on record that the
appellant used to harass the deceased wife by making
demands for dowry and that both of them used to quarrel a
lot. The marriage between the two was solemnized about 11
years before the date of incident and from the wedlock they
had a boy and a girl. At the time of the incident, their
children were playing in the courtyard and that the boy,
though of a tender age, had deposed that appellant was in
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habit of beating his wife and there used to be frequent
quarrels between his parents.
6. In the trial court as well as before the High Court, the defence
of the appellant was that he is not at all guilty of burning his
wife. She had the suicidal tendency and had tried to immolate
herself on one earlier occasion and had once even tried to cut
her veins. She herself had poured kerosene upon herself and
set herself on fire. The appellant had simply tried to douse the
fire by pouring water from the bucket.
The defence so set up by the appellant was not accepted by
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either of the courts below in view of the overwhelming evidence
on record regarding their frequent quarrel and the harassment
meted out to the deceased wife. The ocular evidence of the
witnesses clearly proved that on the date of the incident, there
was again a quarrel between both of them though on a petty
matter but the deceased wife, in order to avoid torture at the
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Criminal Appeal No.2697 of 2023
hands of the appellant and to deter him, went inside the
kitchen and poured kerosene on herself. Thereafter, the
appellant took advantage of the situation and set her on fire.
8. We had heard the learned counsel for the parties.
9. Learned counsel for the appellant had argued that the
appellant had no premeditated mind to kill the deceased wife
and that he had no intention even to kill her. Therefore, the
provisions of Section 302 IPC are not applicable and at best he
can be charged under Section 304 PartII of IPC.
10. The above submission has been strongly opposed on the
ground that the appellant had burnt the deceased wife with a
matchstick fully knowing that she was drenched in kerosene
oil and that lightning of matchstick and throwing it upon her
would certainly cause her death.
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Criminal Appeal No.2697 of 2023
11. In the case at hand, admittedly, there are multiple dying
declarations on record. The first dying declaration is in the
form of the statement Ext.P1. This statement of the deceased
wife before her death was made before the Judicial First Class
Magistrate, Ernakulam, i.e. PW5. The said statement clearly
reveals the cause and circumstances of the death of the
deceased wife.
The other statement which can be read as a dying declaration
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is Ext.P10 recorded by PW16, Head Constable, Kuruppampady
Police at General hospital, Ernakulam, wherein also the
deceased wife repeated the same narration as in Ext.P1 in
relation to the incident of her death.
Both the above statements, if read together, would reveal that
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on the fateful day, the appellant had assaulted the deceased
wife under the influence of alcohol. He even struck a blow on
her chest and pushed her. At the time of the said incident, the
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Criminal Appeal No.2697 of 2023
children were playing in the courtyard. When the assault of
the appellant became unbearable, she took the cane of
kerosene from kitchen and poured it on her body whereupon
her husband lighted a matchstick and burnt her.
The Magistrate (PW5), before whom one of the dying
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declarations was recorded, proves the correctness of the
statement and that when the statement of the deceased was
recorded, she was coherent and oriented. He also accepted
that there was no reason for him to believe that the deceased
was not in a position to make the statement or that the
statement made by her stands vitiated for any reason. The
statement of PW5 was supported by that of PW14 (Dr. K.
Venugopal).
15. The statement of the deceased wife further categorically states
that the appellant was in habit of drinking alcohol and used to
assault her frequently in inebriated condition. She also stated
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Criminal Appeal No.2697 of 2023
that various criminal cases are pending against the appellant
in connection with similar kind of assaults. The above aspect,
as stated by the deceased, was corroborated by the testimony
of PW21 (Investigating Officer). Even the DW1 (Saji Mathew)
also proved that the deceased, at the time of the admission in
the hospital, narrated about her burn injuries and alleged that
her husband assaulted her and that she had poured kerosene
on herself whereupon her husband had set her on fire. The
medical report reveals that the deceased had suffered 96%
burn injuries.
16. The incident was also proved by the oral testimony of PW1
(Sahajan) and PW2 (Gopalakrishnan), the neighbours who
took the deceased to the hospital in a jeep and have seen the
deceased in burning state.
17. In view of the aforesaid facts and circumstances and the
overwhelming evidence on record, there is no escape from the
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conclusion that the deceased died of burn injuries. She had
herself poured kerosene upon her body and that the appellant
set her ablaze and later tried to douse the fire by pouring
water. The appellant also accompanied the deceased to the
hospital.
Now the only point for consideration is whether in the above
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circumstances, the appellant had any premeditated mind to
kill the deceased or was it due to grave and sudden
provocation which would not amount to murder or would at
best be a case of culpable homicide not amounting to murder
punishable with imprisonment for a term which may extend
up to 10 years or with fine or with both under Section 304
PartII of IPC.
19. In support of his above argument, learned counsel for the
2
appellant relied upon v.
Kalu Ram State of Rajasthan
2 (2000) 10 SCC 324
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which was case of a similar kind in connection with uxoricide
by burning. However, it would be relevant and material to
refer to Exception 4 to Section 300 IPC which defines “Murder”
before extending the benefit of the above decision to the
appellant. The said exception reads as under:
Culpable homicide is not
“Exception 4.—
murder if it is committed without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and
without the offender having taken undue
advantage or acted in a cruel or unusual
manner.
Explanation .— It is immaterial in such cases
which party offers the provocation or
commits the first assault.
”
It is on the strength of the above exception that from the side
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of the appellant it has been argued that the appellant is not
guilty of murder as he had no premeditated mind and that the
action of the appellant arose out of a sudden fight. In the first
place, the fight was not sudden. The appellant and the
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deceased wife had a past history of quarrel and that they had
been quarrelling on the fateful day also since before the actual
incident. During their quarrel, a neighbour/(Sahajan) i.e.
PW1 had visited their house and the deceased wife had shown
some injuries received by her during the assault. However,
realizing the quarrel between the two, he left saying that he
would come later on. It was thereafter that the incident of
pouring kerosene and burning took place. So, there was
sufficient time in between the two acts and it cannot be said
that there was a sudden quarrel and provocation leading to
burning. The appellant saw the deceased wife drenched in
kerosene and was conscious that if lighted, she would be
burnt to death even then ignited her to fire. This shows
premeditated mind to kill her. More particularly, the appellant
th
cannot take advantage of the 4 Exception only on the pretext
that it was not on account of premeditated mind or out of a
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sudden fight or that his intentions were not bad as he tried his
best to douse the fire and to save the life of the deceased wife
for the reason that the benefit of the above exception would
have been available to him, had he not taken undue advantage
of the situation.
The exception clearly in unequivocal term states that it would
21.
be applicable where culpable homicide is committed not only
without premeditated mind in a sudden fight or quarrel but
also without the offender taking “undue advantage” of the
situation. In the instant case, the appellant upon seeing the
deceased drenched in kerosene clearly took advantage of the
situation and lighted a matchstick and threw it upon her so
that she can be burnt. The appellant having taken “undue
advantage” of the situation cannot be extended the benefit of
Exception 4 to Section 300 IPC so as to bring the case within
the ambit of PartII of 304 IPC.
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22. In view of the above legal position, the ruling cited above, viz.
Kalu Ram (supra) would not benefit the appellant.
23. The First Information Report and the dying declarations on
record clearly contain the statement of the deceased that when
she had poured kerosene upon herself to deter the appellant
from fighting and assaulting, he lighted a matchstick and with
the intention to kill her, threw it upon her by saying “You Die” .
The aforesaid evidence clinches the issue and establishes
24.
beyond doubt that the appellant is guilty of the offence of
culpable homicide amounting to murder and is not entitled to
benefit of the Exception 4 to Section 300 IPC.
Accordingly, we are of the opinion that the courts below have
25.
not committed any error of fact or law in convicting and
sentencing him to a maximum punishment of life
imprisonment.
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Criminal Appeal No.2697 of 2023
26. The appeal accordingly lacks merit and is dismissed.
However, we would observe that the appellant who is in jail
may, in usual course, be at liberty to apply for remission in
accordance with the prevailing policy of the State.
……………………….. J.
(ABHAY S. OKA)
……………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
NOVEMBER 01, 2023.
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