Sayaji Hanmant Bankar vs State Of Maharashtra

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 457 OF 2007

SAYAJI HANMAT BANKAR ... Appellant(s)

Versus

STATE OF MAHARASHTRA ... Respondent(s)

J U D G M E N T

V.S.SIRPURKAR,J.

1. Challenge in this appeal is to the judgment dated

11.8.2004 in Criminal Appeal No. 319 of 2000 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 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 Bankar came home under the influence of

liquor and 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 caught fire and she was engulfed by

flames. The deceased was immediately taken to the hospital

by her parents where her dying 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 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 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 through the record.

5. In our view, from the evidence on record, it does not

appear that the intention on the part of the 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 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 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

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 under

clause "fourth" of 300 IPC. Exception 4 to Section 300 IPC

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 offenders having taken undue

advantage or acted in a cruel or unusual manner"

7. It is clear from the reading of aforesaid Exception 4

that 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 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 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 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.

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.

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.

...................J. (V.S.SIRPURKAR)

....................J. (T.S.THAKUR)

New Delhi, July 13, 2011.