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2016 DIGILAW 943 (GUJ)

State of Gujarat v. Haribhai Mangalbhai Zala

2016-05-02

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 3rd Joint District & Additional Sessions Judge, Camp at Anand, District Kheda (hereinafter referred to as "the learned trial Court") in Sessions Case No. 223/1999 whereby the learned trial Court has convicted the respondent herein-original accused for the offence punishable under Section 304 (Part-II) of the Indian Penal Code, 1860 only for which he was tried and by which the learned trial Court has sentenced him to undergo 7 years' Rigorous Imprisonment with fine of Rs. 1000/- and in default to undergo further 3 months' Simple Imprisonment and has acquitted the respondent-original accused for the offences punishable under Section 302 and 498A of the Indian Penal Code, State has preferred the present Appeal und Section 378 of the Code of Criminal Procedure. 2. The incident in question took place on 26/02/1999 in the evening at about 6:00 O' clock. The victim of the incident-Shardaben, wife of the respondent-original accused, had married to the respondent-original accused for about 12 years before the incident. Both of them were residing at village Adas and had one son aged 4 years. For last three days previous to the incident, the respondent-original accused-husband was picking up quarrels with wife-deceased-Shardaben about preparing meals. On the day of the incident, the respondent-original accused had been to labour work and returned to the house at about 6:00 p.m. Deceased-Shardaben had prepared 'khichadi' for supper. The respondent-original accused demanded Rs. 50/- from Sharadaben, but she had no money. She conveyed to her husband that she had no money and on hearing this, the respondent-original accused told her to bring money from her father, else, he would burn her. Therefore, she went in kitchen. She did not take utterance of the respondent seriously and thought that the respondent-original accused was venting bad temper. Her husband followed her in the kitchen and administered two to three slaps, and thereafter, from a tin which was lying nearby, poured kerosene over Shardaben and ignited her by matchstick. The clothes of Shardaben got flames and her body was also burnt. She started shouting for help, and on hearing this, respondent-original accused-her husband ran away from the house. Her husband followed her in the kitchen and administered two to three slaps, and thereafter, from a tin which was lying nearby, poured kerosene over Shardaben and ignited her by matchstick. The clothes of Shardaben got flames and her body was also burnt. She started shouting for help, and on hearing this, respondent-original accused-her husband ran away from the house. Hearing shouts of Shardaben, Savitaben Ravajibhai Makwana and Budha Desai Makwana, who were residing near the house of the deceased came to rescue her and by putting quilt on the body of the deceased attempted to extinguish the fire. Sharadaben went in unconsciousness stage and regained consciousness at about 12.00 O' clock in the night. Her both hands, chest and throat including back side were burnt. Whole night she stayed at home, but her husband i.e. the respondent herein-original accused did not return. Through her brother-in-law on the next day, she conveyed message to her parents at village Anklav. Her parents on receiving the message came to village Adas and Sharadaben informed them about the incident. Her parents took her to Vasad Police Station where she lodged her complaint at 10.45 a.m. on 27/02/1999. She was sent to Karamsad Medical College and Krishna Hospital at Karamsad, where she was examined by P.W. 5 Dr. Nayanjit Apurva Chaudhary where she gave history that her husband ignited her after pouring kerosene. According to Dr. Nayanjit, she had 27% burnt injuries. On 27/02/1999 in pursuance of Yadi by Vasad Police Station, Executive Magistrate-Indravadan Purshottambhai Trivedi recorded dying declaration of the deceased at about 12.30 noon. Before the Executive Magistrate, she stated that her husband demanded Rs. 50/- from her, and on refusal to give money, she was burnt by her husband. In police yadi which Executive Magistrate received, there was an endorsement of Doctor that the patient was conscious and was able to identify person and was in a position to recognize that where she was kept. During treatment, on 23/06/1999 Shardaben died and after due investigation, a charge-sheet for the offence under sec. 498-A and 302 of Indian Penal Code was filed in the Court of learned Judicial Magistrate First Class against the respondent-original accused. The case, in turn, came to be committed to the Court of Sessions at Nadiad. During treatment, on 23/06/1999 Shardaben died and after due investigation, a charge-sheet for the offence under sec. 498-A and 302 of Indian Penal Code was filed in the Court of learned Judicial Magistrate First Class against the respondent-original accused. The case, in turn, came to be committed to the Court of Sessions at Nadiad. Vide Exh 3, on 17/07/2000, learned Additional Sessions Judge, camp at Anand, framed charges against the respondent-original accused for the offence punishable under Sections 498-A and 302 of Indian Penal Code. Respondent-original accused pleaded not guilty and hence, prosecution examined as many as 10 witnesses and produced on record other documentary evidence. Complainant Gamalsinh, father of the deceased is examined at Exh. 7, but he has not supported the prosecution case. Executive Magistrate - Indravadan Purshottambhai Trivedi is examined at Exh. 9 and he stated that he recorded the dying declaration of deceased Shardaben which is produced at Exh. 11. He proved in his substantive evidence, dying declaration at Exh. 11. Dr. Subhashchandra Jethanand Ramani has been examined by the prosecution at Exh. 12, who performed post mortem of deceased and according to him, the cause of death was shock due to burns. Circle Inspector Ranjitsinh Punambhai Solanki who has been examined at Exh. 16 as PW-4, has produced map of scene of offence on record. PW-5 Exh 18 Dr. Nayanjit Apurva Chaudhary examined deceased Shardaben at Karamsad Hospital first in point of time and vide his substantive evidence at Exh. 18, he stated that deceased had given the history that her husband ignited her and 27% burns injuries were found on the body of the deceased. PW-7, Exh. 20 Panch witness Udesinh Gambhirsinh Mahida has not supported the panchnama of scene of offence. Other panch witnesses Exh. 26 Vallabh Maganbhai Chavda and Exh. 28 Bhailal Khumansinh are examined to prove the panchanama Exh. 27 in respect of physical condition of deceased but none of them supported the prosecution case. PW-9 Pyarasha Fatesinh Bhalava is examined at Exh. 31 as a panch of inquest panchanama but he also has not supported the prosecution case. Lastly, PW-10 Investigating Officer, P.S.I. Kishorsinh B. Jadeja of Vasad Police Station has been examined by the prosecution at Exh. 33. PW-9 Pyarasha Fatesinh Bhalava is examined at Exh. 31 as a panch of inquest panchanama but he also has not supported the prosecution case. Lastly, PW-10 Investigating Officer, P.S.I. Kishorsinh B. Jadeja of Vasad Police Station has been examined by the prosecution at Exh. 33. In addition to this, prosecution also submitted documents on record like panchanama of scene of offence, complaint given by deceased, inquest panchanama, post mortem note, injury certificate of deceased and FSL report. 2.1 After the evidence was over, a statement of the respondent-original accused was recorded by the learned trial Court as per Section 313 of the Code of Criminal Procedure, wherein he denied the circumstances appearing against him in the evidence recorded and stated that he did not know anything about incident and stated that on the contrary, on knowing about the incident, Savitaben reached at his residence first and thereafter he reached to his residence. In his support, he requested the court to examine two witnesses as court witnesses and his request was granted under Section 311 of the Code of Criminal Procedure. Court witness No. 1 -Dr. Nareshkumar Govindlal Bhalja was examined at Exh. 41 to prove that he also had received injuries in the incident. Dr. Nareshkumar Govindlal Bhalja stated in his deposition that on 02/03/1999, he examined respondent-original accused with police yadi and had ordinary burns injuries. Likewise, the other court witness Savitaben Ravajibhai is also examined at Exh. 45 and stated that at the time of incident, she was busy with her house hold work. On hearing commotion and hearing shouting from Shardaben, she reached at her residence and put on quilts on the body of Shardaben to extinguish the fire. At that time, she and original accused were present. The respondent-original accused also attempted to extinguish the fire. 2.2 After hearing both the parties, learned trial Court came to the conclusion that though it is proved that the incident has occurred as stated by the complainant which is proved beyond doubt through unimpeachable evidence like dying declaration etc. but the respondent-original accused could not be held guilty for the offence punishable under Section 302 of Indian Penal Code. 2.2 After hearing both the parties, learned trial Court came to the conclusion that though it is proved that the incident has occurred as stated by the complainant which is proved beyond doubt through unimpeachable evidence like dying declaration etc. but the respondent-original accused could not be held guilty for the offence punishable under Section 302 of Indian Penal Code. Learned trial Court after appreciating the circumstances of the case came to the conclusion that the incident was followed by demand of money and, therefore, there may not be intention of the respondent-original accused to commit murder of Shardaben and hence, the learned trial Court convicted the respondent-original accused for the charge proved against him under Section 304 (Part-II) and sentenced him to undergo imprisonment of 7 years and to pay fine of Rs. 1000/-. It appears that respondent-original accused is acquitted of the charges under Section 498(A) of Indian Penal Code levelled against him. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court acquitting the respondent-original accused for the offences punishable under Section 302 and 498A of the Indian Penal Code and convicting the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment of seven years only with fine of Rs. 1000/- and in default to undergo further 3 months' Simple Imprisonment, State has preferred the present Appeal. 3. Ms. Moxa Thakkar, learned APP appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in acquitting the respondent-original accused for the offences punishable under Section 302 and 498 A of the Indian Penal Code. 3.1 It is submitted by Ms. Moxa Thakkar, learned APP appearing on behalf of the State that in the present case the learned trial Court has materially erred in convicting the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code only and the learned trial Court has materially erred in imposing the sentence of 7 years' Rigorous Imprisonment only. 3.2 It is submitted that in the present case as such the learned trial Court has already held that the death of the deceased was homicidal death. 3.2 It is submitted that in the present case as such the learned trial Court has already held that the death of the deceased was homicidal death. It is submitted that in the present case even the learned trial Court has also believed the dying declaration of the deceased, which was recorded by the Executive Magistrate and the complaint, which was given by the deceased herself (Exh. 34) is also believed. It is vehemently submitted by Ms. Moxa Thakkar, learned APP appearing on behalf of the State that in the present case before the Executive Magistrate as well as before the Police Officer of Vasad Police Station, who recorded the complaint of the deceased and even in the history given by her before Dr. Nayanjit Apurva Chaudhary-P.W. 5 she had categorically stated that on 26/02/1999 her husband had poured the kerosene on her, which was followed by igniting the matchstick and she was set at ablaze by her husband. It is submitted that she has categorically stated before the Executive Magistrate as well as before the concerned Police Officer of Vasad Police Station as well as Dr. Nayanjit Apurva Chaudhary the manner in which her husband had set her ablaze. 3.3 It is further submitted that not only the above even thereafter after pouring the kerosene and after setting her ablaze, her husband ran away leaving the deceased-wife absolutely in a pitiable and helpless condition. It is submitted that the entire night wife-deceased suffered and thereafter on the next day morning when her brother-in-law-Ramanlal informed her parents and they came from village Anklav and took her to Vasad Police Station, where she gave the complaint (Exh. 34), Police Officer sent her to the hospital for medical treatment. It is further submitted by Ms. Moxa Thakkar, learned APP appearing on behalf of the State that the deceased in her complaint had stated that on earlier occasions also her husband had poured kerosene on her, however, at that time, he did not set her ablaze. It is submitted that therefore she took the pouring of the kerosene lightly. However, thereafter, the respondent-original accused lighted the matchstick and set her ablaze. It is submitted that therefore the act of the respondent-original accused to pour the kerosene on the deceased and lighting the matchstick and setting her ablaze would come under explanation Forthly of Section 300 of the Indian Penal Code. However, thereafter, the respondent-original accused lighted the matchstick and set her ablaze. It is submitted that therefore the act of the respondent-original accused to pour the kerosene on the deceased and lighting the matchstick and setting her ablaze would come under explanation Forthly of Section 300 of the Indian Penal Code. It is submitted that therefore the learned trial Court ought to have convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal code. 3.4 In support of her above submission, Ms. Moxa Thakkar, learned APP has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Santosh Vs. State of Maharashtra, reported in (2015) 7 SCC 641 (paragraph 19 to 18 of the said judgment). It is further submitted by Ms. Moxa Thakkar, learned APP appearing on behalf of the State that after the respondent-original accused poured the kerosene on her and set her ablaze the respondent-original accused ran away and when the deceased shouted for help neighbours came there and put quit on her, and therefore, she sustained less burn injuries, otherwise she would have sustained much more burn injuries. It is submitted that therefore merely because the deceased died after four months and that to by septicemia is not a ground for the learned trial Court to convict the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code only. Making the above submissions, it is requested to allow the present Appeal and convict the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code and impose punishment of Life Imprisonment. 4. The present Appeal is vehemently opposed by Shri Pratik Barot, learned advocate appearing on behalf of the respondent-original accused. It is submitted that in the facts and circumstances of the case, in the present case, more particularly, when the deceased died after approximately four months and by septicemia, the learned trial Court has rightly not convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code and has rightly convicted the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code. It is further submitted by Shri Barot, learned advocate appearing on behalf of the respondent-original accused that in the present case even the respondent-original accused challenged the impugned judgment and order of conviction passed by the learned trial Court convicting him for the offence punishable under Section 302 (Part II) of the Indian Penal Code, being Criminal Appeal No. 354/2001, which has been dismissed by the learned Single Judge vide judgment and order dated 27/09/2004. It is submitted that therefore also the present Appeal be dismissed as the learned Single Judge has confirmed the impugned judgment and order convicting the original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code. 4.1 It is further submitted by Shri Barot, learned advocate appearing on behalf of the respondent-original accused that in the present case even the respondent-original accused also sustained burn injuries on hands. It is established and proved by the defence/accused by examining D.W. 1 and D.W. 2. It is submitted that therefore the respondent-original accused tried to save the deceased that is how he sustained the injuries on both the hands. It is submitted that therefore the aforesaid conduct on the part of the respondent-original accused would suggest that there was no intention on the part of the respondent-original accused to cause death of the deceased. It is submitted that therefore the learned trial Court has rightly not convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code and has rightly convicted the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code. It is further submitted that in the present case the father of the deceased, father-in-law of the original accused, has not supported the case of the prosecution and has turned hostile. 4.2 It is submitted that therefore when the cause of death was septicemia and the deceased had died after a period of approximately four months and when the respondent-original accused also sustained burn injuries on hands while trying to save the deceased, the learned trial Court has rightly believed and held that there was no intention on the part of the respondent-original accused to cause death of the deceased. 4.3 It is further submitted that even according to the victim so stated by her in the Complaint (Exh. 34) the respondent-original accused became angry for Rs. 4.3 It is further submitted that even according to the victim so stated by her in the Complaint (Exh. 34) the respondent-original accused became angry for Rs. 50/- only and on the spur of the moment he poured kerosene, and therefore, the learned trial Court had rightly held that there was no intention on the part of the respondent-original accused to cause the death of the respondent-original accused and thereby the learned trial Court has rightly not convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code. 4.4 Shri Barot, learned advocate appearing on behalf of the respondent-original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of B.N. Kavatakar and Anr. Vs. State of Karnataka, reported in 1994 Supp (1) SCC 304 as well as the recent decision of the Hon'ble Supreme Court in the case of Sanjay v. State of Uttar Pradesh, reported in AIR 2010 SC 282 in support of his submissions that the learned trial Court has rightly not convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code. Making the above submissions and relying upon the above decisions, it is requested to dismiss the present Appeal. 5. Heard the learned advocates appearing on behalf of the respective parties at length. We have considered the impugned judgment and order passed by the learned trial Court in detail. We have re appreciated the entire evidence on record. At the outset it is required to be noted that the respondent-original accused was tried for the offence punishable under Section 302 and 498A of the Indian Penal Code for the death of his wife, who died because of burn injuries which she sustained because of pouring the kerosene on her and igniting the matchstick and setting her ablaze by the respondent-original accused. However, though the learned trial Court has believed that the death of the deceased was homicidal death, the learned trial Court has not convicted the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code and has convicted the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code by observing that from the evidence on record it cannot be said that there was any intention on the part of the deceased to cause death of the deceased as the deceased had died because of septicemia and after four months. 5.1 However, the learned trial Court has materially erred and has committed a grave error in not properly appreciating the dying declaration of the deceased recorded by the Executive Magistrate, the complaint given by her with the Vasad Police Station (Exh. 34) and the history given by her before the Dr. Nayanjit Apurva Chaudhary. Even the learned trial Court has also not properly appreciated the conduct of the respondent-original accused after pouring kerosene by him on the deceased and after setting her ablaze. The dying declaration, which was recorded by the Executive Magistrate, P.W. 2 and even in the complaint, which was given by the deceased herself which was given at Vasad Police Station Exh. 34 she had categorically stated that earlier the respondent-original accused used to beat her. Since last three days there was quarrel between them for preparing food and at the time of the incident her husband poured the kerosene on her, however, she took it lightly as on earlier occasion also the respondent-original accused had poured kerosene on her but she was not set ablaze. She has further categorically stated that thereafter when she refused that she did not have Rs. 50/-, which was demanded by the respondent-original accused, she went to the kitchen and her husband followed her and again demanded Rs. 50/- which was not given as the deceased was not having, and therefore, the respondent-original accused became angry and poured kerosene on her and set her ablaze and thereafter he ran away. Therefore, the pouring of kerosene on the deceased and the respondent setting her ablaze by matchstick has been established and proved. 50/- which was not given as the deceased was not having, and therefore, the respondent-original accused became angry and poured kerosene on her and set her ablaze and thereafter he ran away. Therefore, the pouring of kerosene on the deceased and the respondent setting her ablaze by matchstick has been established and proved. As observed hereinabove, as such, the learned trial Court has convicted the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code and his conviction has been upheld by the learned Single Judge of this Court, and therefore, the short question, which is posed for this Court is, whether the learned trial Court is justified in acquitting the respondent-original accused for the offence punishable under Section 302 of the Indian Penal Code and convicting the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code only? 5.2 Apart from the fact that the respondent-original accused poured the kerosene on the victim and set her ablaze has been established and proved by the prosecution even the conduct on the part of the respondent-original accused is also required to be considered. After pouring the kerosene on the deceased and setting her ablaze and despite the fact that the deceased/victim sustained burn injuries the respondent-original accused had ran away. From the complaint, which was given by the deceased herself (Exh. 34) it appears that for the whole night she suffered because of pain and burn injuries, and therefore, there was nobody to help her including the respondent-original accused and she was left by the respondent-original accused in a helpless and a pitiable condition. She has categorically stated in the complaint at Exh. 34 that for the whole night her husband had not returned and she was suffering because of pain by burn injuries and she was moving in the room. After the victim sustained burn injuries even it was the duty of the respondent-original accused/husband to take her to the hospital for medical treatment. It emerges from the evidence on record that in the morning when her brother-in-law came to the house and he saw the victim having burn injuries he called the parents of the victim/deceased and they took her first to Vasad Police Station and thereafter to the hospital/hospitals for medical treatment. It emerges from the evidence on record that in the morning when her brother-in-law came to the house and he saw the victim having burn injuries he called the parents of the victim/deceased and they took her first to Vasad Police Station and thereafter to the hospital/hospitals for medical treatment. The aforesaid conduct on the part of the respondent-original accused is required to be considered while appreciating the defence of the respondent-original accused and his case that even he also sustained burn injuries on hands while trying to save the deceased. However, looking to the above conduct on the part of the respondent-original accused i.e. running away from the place of the incident after he poured kerosene on the victim and after setting her ablaze he did not return to the house in the night, not taking her to the hospital for medical treatment, all these defenses cannot be accepted. If his above defenses is believed, in that case, he would have immediately tried to extinguish the fire and took her to the hospital for medical treatment. Under the circumstances, the aforesaid defense cannot be accepted. At this stage, the decision of the Hon'ble Supreme Court in the case of Santosh S/o Shankar Pawar (Supra) is required to be referred to and considered. In the case before the Hon'ble Supreme Court the accused came out with a defence/case that after pouring kerosene which was on the spur of the moment in order to save the victim they poured water on the deceased, and therefore, the case would not fall under Section 300 of the Indian Penal Code. However negativing the aforesaid submissions the Hon'ble Supreme Court has observed and held that the case would fall under Section 300 fourthly, and therefore there is no infirmity in the judgment of conviction under Section 302and it does not warrant any interference. In the aforesaid decision the Hon'ble Supreme Court has observed and held in paragraph Nos. 10 to 15 as under; "10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. 10 to 15 as under; "10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. It was submitted that the conduct of the appellant in trying to extinguish the fire immediately after the incident would clearly show that there was no intention on the part of the appellant to commit the murder. In support of his contention, he placed reliance on the judgment of this Court in Kalu Ram v. State of Rajasthan. 11. The question falling for consideration is whether the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that (I) there was a homicide, namely, the death of Saraswatibai, (ii) the deceased was set ablaze by the appellant and this act was not accidental or unintentional; and (iii) the post-septicemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted matchstick on the deceased to set her on fir, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether the kerosene was poured from the kerosene lamp or from the can is of no consequence. When there is clear evidence as to the act of the accused to set the deceased on fir, absence of premeditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence. 12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fir. Likewise, pouring of water will not mitigate the gravity of the offence. 12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fir. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder. 13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death. 14. In so far as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case, it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram case the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC. 15. The decision in Kalu Ram case cannot be applied in the instant case. The element of inebriation ought to be taken into consideration as it considerably alters the powers of thinking. In the instant case, the accused was in his complete senses, knowing fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be considered as a mitigating factor. An act undertaken by a person in full awareness, knowing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blurred." 5.3 Now so far as the submission on behalf of the respondent-original accused that in the present case even the father of the victim (father-in-law) has not supported the case of the prosecution is concerned, it appears that because of the fact that her daughter (deceased victim) at the time of the incident was having a child of only four years that might be the compelling reason for the said witness not to support the case of the prosecution. Even in the examination by the prosecution the said witness has specifically and categorically admitted that his son-in-law-original accused is in jail and they are compelled to keep the child with them, and therefore, he wishes that Haribhai (original accused) does not remain in jail. 5.4 In any case and as observed hereinabove the act of the respondent-original accused pouring the kerosene on the victim/deceased and setting her ablaze has been held to be proved even by the learned trial Court while convicting the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code. 5.4 In any case and as observed hereinabove the act of the respondent-original accused pouring the kerosene on the victim/deceased and setting her ablaze has been held to be proved even by the learned trial Court while convicting the respondent-original accused for the offence punishable under Section 304 (Part II) of the Indian Penal Code. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of B.N. Kavatakar and Anr. (Supra) and Sanjay (Supra) relied upon by the learned advocate appearing on behalf of the respondent-original accused in support of his submissions that as the deceased had died due to septicemia and after a long period and therefore the respondent-original accused cannot be held guilty for the offence punishable under Section 302 of the Indian Penal Code is concerned, in the facts and circumstances of the case and on considering the decision of the Hon'ble Supreme Court in the case of B.N. Kavatakar and Anr. (Supra) we are of the opinion that the said decision would not be applicable to the facts of the case on hand in light of the evidence before the Court. Even in the case before the Hon'ble Supreme Court in the case of Sanjay (Supra) on facts and considering the evidence on record the Hon'ble Supreme Court found that there was no evidence on record with respect to the injuries sustained by the deceased who died because of septicemia. In the present case, it is categorical stated that the injuries sustained by the respondent-original accused were sufficient to cause death. Even in the aforesaid case the Hon'ble Supreme Court has convicted the accused for the offence punishable under Section 304 Part I of the Indian Penal Code and has sentenced him to undergo 10 years' Rigorous Imprisonment. 6. In view of the above impugned judgment and order dated 18/04/2001 passed by the learned 3rd Joint District & Additional Sessions Judge, Camp at Anand, District Kheda in Sessions Case No. 223/1999 by which the original accused is convicted for the offence under Section 304 (Part-II) of the Indian Penal Code, 1860 and sentenced to undergo 7 years' Rigorous Imprisonment with fine of Rs. 1000/- and in default to undergo further 3 months' Simple Imprisonment, is hereby modified to the extent the original accused is held guilty for the offence under Section 304 (Part-I) of the Indian Penal Code, 1860 and sentenced to undergo life imprisonment and the sentence of fine is maintained. It is reported that the original accused has already served the sentence imposed by the learned trial Court and therefore, the original accused shall surrender within 6 weeks from today for serving the remaining sentence as imposed by this Court. Record & Proceedings of the case be sent back to the learned trial Court forthwith.