Vishnu Kumar vs State Of Chhattisgarh

Radhakishan Agrawal, J

This criminal appeal preferred by the appellant-accused person under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30.09.2013 passed in Sessions Trial No.112/2012 by the Court of learned First Additional Sessions Judge, Bilaspur (C.G.) whereby the appellant-accused person herein has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- and in default to pay fine amount, to further undergo R.I. for one month.

Case of the prosecution, in brief, is that Son Bai is the wife of the appellant/accused, who used to have frequent quarrels with his wife. On 08.03.2012 at 12.00 noon, it is alleged that the appellant/accused set her ablaze by pouring kerosene over a dispute with regard to distribution of partition of property from her maternal home. Immediately after the incident, Son Bai was admitted by her elder sister, namely, Bahura Bai (P.W.6) and others in Burn and Trauma Research Center, Magarpara, Bilaspur for providing medical treatment. On the same day, in the presence of Dr. Sachin (P.W.25), Constable Hanuman Prasad (P.W.10), working in Tarbahar Police Station, recorded a dying declaration of Son Bai vide Ex.P.14 and thereafter in the presence of witnesses, namely, Bishambhar (P.W.7), Devan Prasad and Dr. Sachin (P.W.25), another dying declaration (Ex.P.25) was also recorded by Dr.K.N.Choudhary (P.W.14). On the basis of information given by Bahura Bai (P.W.6), Dehati Nalishi (P.W.11) was prepared in the said Center itself and thereafter vide Ex.P.27 first information report was lodged at Police Station, Sipat, where initially offence punishable under Section 307 of IPC was registered against the appellant.

Further prosecution case is that on the date of incident, Sipat S.H.O. Rajendra Singh Parihar (P.W.19) reached the place of occurrence and prepared visual map vide Ex.P.28 and then Panchnama vide Ex.P.14. This apart, burnt saree of Son Bai, burnt blouse containing smell of kerosene oil, a five litre jerry-can filled with half litre kerosene, a matchbox and a burnt matchstick were seized on the spot vide Ex. P.15. Thereafter, statements of other witnesses including Son Bai were recorded as per their instructions.

On 01.04.2012 Son Bai has died during her treatment, on the basis of which, merg intimation vide Ex.P.26 was registered by S.I. A.K.Arya (P.W.13). Thereafter, inquest was prepared vide Ex.P.13. Dead body of deceased was sent to District Hospital, Bilaspur, where Dr. A. Tiwari (P.W.9) conducted post-mortem examination on the person of deceased and opined that mode of death was shock due to burn injuries, while submitting his report vide Ex.P.16 whereas treating doctor, namely, Dr. K.N.Choudhary (P.W.14) has opined that the death of deceased was due to septicemia on account of failure of cardio respiratory. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, vide Ex.P.30 and vide Ex.P.35, F.S.L. report was received, according to which, kerosene oil content was found on the burnt pieces of clothes worn by the deceased. Spot maps were prepared by patwari vide Ex.P.1 & Ex.P.2. Appellant was arrested on 09.03.2012 vide Ex.P.33. After death of deceased Son Bai, offence punishable under Section 302 of IPC was registered against the appellant, while preparing Final Report.

After due investigation, the appellant was charge-sheeted for the aforesaid offence. The appellant/accused person abjured his guilt and in support of his defence. examined one Babulal (D.W.1), who has stated that on hearing the screams, he went to the house of the appellant and saw the deceased in a charred condition and Horil Suryavanshi (P.W.24) extinguished the fire by pouring water over her body.

The prosecution, in order to bring home the offence, examined as many as 25 witnesses and brought into record 35 documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. The Appellant abjured his guilt, pleaded innocence and false implication & entered into defence stating that he has not committed the offence.

The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellant/accused person for the offence as mentioned in the opening paragraph of the judgment, against which, this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

Learned counsel appearing for the appellant submits that the judgment under appeal convicting the appellant under Section 302 IPC is apparently contrary to law as the same has been passed without appreciating the evidence in its proper perspective. It is next contended that conviction of the appellant is substantially based on two dying declarations (Ex.P.14 & Ex.25) given by the deceased before her death. Since there were several conspicuous loopholes in recording of the said declarations, the conviction based on such declarations is not sustainable. It was further contended that the version of the deceased as recorded in the first and the second written dying declarations was entirely different. It is contended that there is complete contradictions and omissions in the version of the witnesses of the prosecution, as has been stated in Police Statements and also the statements recorded before the concerned trial Court and that motive has not been established by the prosecution. It was submitted that the narration as to the manner in which the deceased was set on fire was stated to be inconsistent and further contended that the evidence of the said prosecution witnesses did elicit nothing against the appellant on the above aspect. Lastly, it was contended that the finding arrived at by the learned trial Court is erroneous and the judgment of conviction without assigning the reason is cryptic because nothing material is available to implicate the present appellant in the said commission of offence as the appellant has become just scapegoat for the prosecution to fulfill its lacuna with the deliberation through and planning in order to implicate in such an heinous offence where the incident is based on the surmises and seizure which is doubtful and no reasonable and substantial with prudent reason was assigned by the trial Court as required under Section 354 (2) of the Cr.P.C.

On the other hand, learned counsel appearing for the State would support the impugned judgment and submit that the prosecution has been able to prove the offence beyond reasonable doubt and, therefore, the instant appeal deserves to be dismissed.

We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and gone through the record with utmost circumspection.

The entire issue in the present case hinges on the admissibility and evidentiary value of the dying declarations made by the deceased, which were reduced in writing and recorded by Constable Hanuman Prasad (P.W.10) and Dr. K.N.Choudhary (P.W.14) respectively in the Hospital.

The first question which falls for our consideration would be whether the death of the deceased – Son Bai was homicidal in nature which has been answered by the trial Court in affirmative relying upon the two dying declarations (Ex.P.14 and Ex.P.25) which, in our considered opinion, is correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record and we hereby affirm the said finding.

Now, the question would be, whether the trial Court has rightly held the appellant to be the author of the crime in question?

Sushila Bai (P.W.3), Poonam Bai (P.W.4), sisters-in-law of deceased deposed that deceased was burnt by kerosene oil in the house located at Pandhi, then the deceased was brought from village Pandhi to Sipat by Autorickshaw from where the deceased Son Bai was admitted in Burn and Trauma Center, Bilaspur. Rajaram (P.W.5) is the brother of the deceased, according to whom, the appellant/accused told him by phone that Son Bai was burnt. Bahura Bai (P.W.6), deceased's sister deposed further that she brought her sister Son Bai from Sipat to Bilaspur Hospital and got her admitted, thereafter Son Bai was taken by her brother for treatment in Apollo Hospital, Bilaspur. This witness had also accompanied her. This witness put forth further that except Son Bai's face, rest of the body was burnt and she was informed that both the appellant and Son Bai used to have quarrels and on account of quarrels, she had set herself on fire.

It has come in the evidence of Vishambhar (P.W.7), father of the deceased, that the appellant had picked up quarrels with his wife frequently; when Son Bai was in her house, she was burnt and the appellant was in an inebriated condition; thereafter she was shifted to this witness's house from where she was brought to Bilaspur for treatment; during treatment Son Bai told this witness that the appellant sprinkled kerosene oil over her and and set her ablaze by lighting a match stick. In cross-examination, this witness was firm.

Dr. Ashutosh Tiwari was examined as P.W.9, who deposed that he conducted post-mortem examination on 02.04.2012 over the person of Son Bai and after examination he found a deep burn injury which is superficial in nature while opining that burn injury was ante-mortem and death was shock on account of burn injury. Constable Hanuman Prasad (P.W.10) stated that on 08.03.2012 he recorded the dying declaration (Ex.P.14) of Son Bai in presence of Dr. Sachin Kumar (P.W.25) and he admitted his signature in Ex.P.14. Dr. K.N.Choudhary (P.W.14) stated that prior to record her dying declaration, he has examined her whether or not she is competent to give declaration and thereafter on 08.03.2012 at 11:30 pm (night time) he recorded another dying declaration, marked as Ex.P.25, which was written by Dr. Sachin as per his instructions. He further deposed that he had made a questionnaire earlier, on the basis of which, the dying declaration of Son Bai was taken. In cross-examination, this witness was firm. The details of dying declaration are relevant for the purpose, are reproduced as under :-

Sushma (P.W.17) & Sunaina (P.W.18) are the child witnesses. The appellant and the deceased Son Bai are their parents. Both the child witnesses testify that when they went to take bath, their father slept and was in a drunken condition; their mother's saree had caught fire due to kerosene being kept there. Both these witnesses shouted a lot but due to the accused being in drunken condition, he was unable to get up, therefore, they sprinkled water on their mother. Due to cries raised by Son Bai, people residing nearby came over there and facilitated Son Bai to send in an autorickshaw to her maternal house situated at Sipat, from where she was brought to Bilaspur for treatment. Although it has come from their evidence that fire broke out on account of kerosene oil being kept there but did not say the reason as to how the fire caught, whether it was by whom or by matchbox. Barring these witnesses, their father (accused/appellant) was also present. It was reflected from their evidence that in order to save their father from the commission of offence, they did not say anything against their father. Koushal P.W.23 testified that he saw Son Bai in a burnt condition, however, he was not aware of the fact that how Son Bai was burnt, therefore, he was declared hostile. Horil Suryanvanshi (P.W.24) testified that on hearing cries of his aunt Son Bai, he rushed the courtyard of the house where she saw Son Bai was burning and immediately poured water over her so that the fire could be extinguished. Thereafter, he called his uncle (accused/appellant) and upon search, he found the accused inside the house and despite his calling, the accused/appellant did not come, then he poured water on his uncle thinking that if he is intoxicated. However, his uncle did not get up on account of he being in drunken condition. Thereafter, this witness along with one Koushal (P.W.23) as well as one another person tried to bring Son Bai to Bilaspur Hospital for treatment, but at her behest, they brought her to Sipat. It has also come in his evidence that Son Bai was not burnt much.

Perusal of testimonies of Sushila Bai (P.W.3), Poonam Bai (P.W.4), sisters-in-law of deceased, Rajaram (P.W.5), brother of deceased, Bahura Bai (P.W.6), sister of deceased, Vishambhar (P.W.7), deceased's father, Koushal (P.W.23) and Horil (P.W.24), it is clear that deceased was burnt by kerosene oil in the house located at Pandhi, then the deceased was brought from village Pandhi to Sipat by Autorickshaw from where the deceased Son Bai was admitted in Burn and Trauma Center, Bilaspur and that the appellant was present in the house although in a drunken condition, which fact was corroborated by Rajaram (P.W.5), who deposed that if the accused was so inebriated at the place of incident and he could not get up even after repeated cries raised by his children and nephew and did not save his wife Son Bai from burning, then how the accused/appellant could give information to Rajaram (P.W.5) about Son Bai's burning. This also confirms the suspicious behaviour of the accused being in that room of his house at the time of incident.

Conviction of the appellant is mainly based on dying declaration of the deceased. Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872 states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that ‘hearsay evidence is inadmissible’ and only when such an evidence is direct and is validated through cross-examination, is it considered to be trustworthy.

In the matter of Devinder alias Kala Ram and others v. State of Haryana reported in (2012) 10 SCC 763, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the Supreme Court held that statement of the deceased recorded by the doctor is relevant under Section 32 of the Evidence Act.

The Supreme Court in the matter of Laxman v. State of Maharashtra (Constitution Bench), reported in (2002) 6 SCC 710 has clearly held that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise and observed as under:

“3. … Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

Following the principles of law laid down by their Lordships of the Supreme Court in Laxman (supra), recently in the matter of Jagbir Singh v. State of NCT, reported in (2019) 8 SCC 779, it has been held by the Supreme Court that even absence of the certificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

In the matter of Atbir vs. Government of NCT of Delhi reported in (2010) 9 SCC 1, the Supreme Court held that while recording dying declaration, factors such as mental condition of maker, alertness of his/her mind and memory, evidentiary value, etc. have to be taken into account, laid down principles. Paras 14 to 22 are relevant for the purpose, which read as under :-

“(A) Dying declaration

It is true that in the case on hand, conviction under Section 302 was based solely on the dying declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account.

In Munnu Raja and Another vs. The State of M.P, (1976) 3 SCC 104, this Court held: (SCC pp. 106-07 para 6)"

“6....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...."

It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.

In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126, this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement.

The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab, (2006) 12 SCC 283. Para 23 of the said judgment is relevant which reads as under:

"23. However, in State of Karnataka v. Shariff, (2003) 2 SCC 473, this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra, (2002) 6 SCC 710)."

It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR.

In State of Rajasthan vs. Wakteng, (2007) 14 SCC 550, the view in Balbir Singh case has been reiterated. The following conclusions are relevant which read as under: (Wakteng case, SCC p. 554, paras 14-15)

"14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction."

In Bijoy Das vs. State of West Bengal, (2008) 4 SCC 511, this Court after quoting various earlier decisions, reiterated the same position.

In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113, the following discussion and the ultimate conclusion are relevant which read as under: (SCC p. 120, paras 14-15)

"14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of T.N., (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat, (1992) 2 SCC 474.

The analysis of the above decisions clearly shows that,

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.”

Reverting to the facts of the present case in the light of statement of Dr. K.N.Choudhary (P.,W.14), who has examined the deceased Son Bai (while she was alive), stated that she was conscious and was able to talk at the time of admission and there were 36% burns on different parts of her body. At that stage, Dr. K.N.Choudhary (P.W.14) recorded her dying declaration, which is corroborated by Dr.Sachin Kumar (P.W.25). Admittedly, the aforesaid dying declaration was recorded in the Hospital by the said Doctor in the question and answer form, looking to the victim's fit state of mind, which is relevant and admissible evidence. When an application moved by Constable Hanuman Prasad (P.W.10) as to whether or not Son Bai was fit, Dr.K.N.Choudhary certified that patient is drowsy but oriented and able to give statement. The learned trial Court has relied upon the alleged dying declaration (Ex.P.25) to base the conviction of the appellant here, which has seriously been questioned on behalf of the appellant.

A bare perusal of evidence adduced by Dr. K.N.Choudhary (P.W.14) and Dr. Sachin Kumar (P.W.25), it is clear that Son Bai was brought in burning condition. It is evident from the evidence of Dr.K.N.Choudhary that Son Bai was examined by this witness and recorded her dying declaration, marked as Ex.P.25. The dying declaration (Ex.P.25) recorded before the Dr.K.N.Choudhary is a reliable piece of evidence and cannot be discarded. By way of such vital piece of evidence, an inference can easily be drawn against the appellant that it was the appellant who was present in the house and set Son Bai on fire by pouring kerosene by lighting a match stick over a dispute of partitioned property and none other else.

As regards dying declaration (P.W.14) recorded by Hanuman Prasad (P.W.10), it was also reduced in writing in the Hospital, that too, in presence of Dr. Sachin Kumar (P.W.25). In the said declaration also, Son Bai took the name of her husband, and stated that the appellant himself set her on fire, as a result of which, she was burnt. Although the said dying declaration was not recorded by the Doctor and was not in question and answer form, yet the fact that because of the appellant's mala fide act, the victim has to suffer burn injuries cannot be discarded. In the matter of Dilip Singh V. State of Punjab, reported in (1979) 4 SCC 332, the Supreme Court has held that a dying declaration recorded by the Police Officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act. Be that as it may, in both the dying declarations, the appellant was accused of setting his wife Son Bai on fire by matchstick after pouring kerosene over her body.

As regards question of motive, in case of direct evidence, motive loses its importance. Even otherwise, it is aid in criminality and can be inferred from the kind of weapon used, part of body hit, nature of injury and other circumstances. In the present case, as per case of the prosecution, the appellant used to have frequent quarrels with deceased for bringing partitioned property from her maternal house and on fateful day, i.e., on 08.03.2012 the appellant had a quarrel over the same dispute and set her ablaze. This apart, under section 313 Cr.P.C., the appellant was examined and during the course of examination, the accused did not offer any explanation with respect to his conduct before and after the incident and the circumstances against him in the evidence, whereas it was the duty of the accused to explain the criminal circumstances.

Upon due and proper appreciation of the evidence led by the prosecution and after dealing with the incriminating circumstances appearing against the accused/appellant, the trial Court had rightly held the appellant to be author of the crime.

The aforesaid finding brings us to the next question for consideration as to whether the trial Court has rightly convicted the appellant for offence punishable under Section 302 of the IPC or his case is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder so that his conviction can be converted to Section 304 Part-II of the IPC.

The Supreme Court in the matter of Arjun vs. State of Chhattisgarh reported in (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :-

“20. To invoke this Exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under:-

“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

Further in the case of Arumugam v State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:- (SCC p.596, para 9)

“9. …….“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.”

In the present case, as per the statements of Sushila Bai (P.W.3), Poonam Bai (P.W.4), sisters-in-law of the deceased, Rajaram (P.W.5), brother of the deceased, Bahura Bai (P.W.6), sister of the deceased, Vishambhar (P.W.7), father of the deceased, Sushma (P.W.17) and Sunaina (P.W.18), both children are of the appellant and deceased Son Bai, it is quite vivid that on that date of incident took place on 08.03.2012, the appellant had set Son Bai on fire by pouring kerosene, resulting into, she was burnt and on account of deep burn injury, as stated above, she has died on 01.04.2012. Therefore, an inference can easily be drawn that there was no intention or premeditation to cause death of Son Bai, however, since the appellant had set Son Bai on fire by pouring kerosene, he must have had knowledge that the burn injury caused by him is sufficient to cause death. Considering the nature of burn injury it can be held that the appellant must have had the knowledge that such injury caused by him on the body of the deceased would likely to cause her death, however, it can safely be inferred that there is no premeditation on the part of the appellant to cause death of the deceased. The assault has been made in a sudden quarrel, on a sudden dispute arisen as the appellant had always wanted partitioned property from her maternal home. Considering the fact that the injury caused upon the deceased is on account of sudden quarrel that erupted between the parties and considering further that the appellant has not taken any undue advantage and has not acted in unusual manner, in our considered opinion, the present case would fall within the purview of Exception 4 to Section 300 of the IPC.

In view of aforesaid discussion, conviction of the appellant under Section 302 of IPC as well as sentence awarded to him by the learned trial Court are hereby set aside. Considering that there was no premeditation on the part of the appellants to cause death of the deceased but the injury caused by him was sufficient in the ordinary course of nature to cause death, the appellant is convicted for the offence punishable under Section 304 Part-II of IPC. Since the appellant is in jail since 09.03.2012 till now, ie., for more than 10 years, taking into consideration the period he had already undergone, we award him the sentence for ten years which he has already undergone and the fine sentence imposed by the learned trial Court shall remain intact. The appellant is said to be in jail, he be released forthwith, if not required in any other offence.

The Criminal Appeal is partly allowed to the extent indicated herein above.