Anil Kumar vs The State Of Kerala

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

302 and 498A of the Indian Penal Code 1 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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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.

4. On the basis of the aforesaid FIR, the appellant was charged

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.

7. The defence so set up by the appellant was not accepted by

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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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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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.

12. The other statement which can be read as a dying declaration

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.

13. Both the above statements, if read together, would reveal that

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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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.

14. The Magistrate (PW5), before whom one of the dying

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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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.

18. Now the only point for consideration is whether in the above

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

appellant relied upon Kalu Ram v. State of Rajasthan2

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:

“Exception 4.—Culpable homicide is not 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.”

20. It is on the strength of the above exception that from the side

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

cannot take advantage of the 4th 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.

21. The exception clearly in unequivocal term states that it would

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”.

24. The aforesaid evidence clinches the issue and establishes

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.

25. Accordingly, we are of the opinion that the courts below have

not committed any error of fact or law in convicting and

sentencing him to a maximum punishment of life

imprisonment.

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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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