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2020 DIGILAW 1312 (BOM)

Vinod Jaysing Kashid v. State of Maharashtra

2020-11-05

N.J.JAMADAR, SADHANA S.JADHAV

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JUDGMENT : N.J. JAMADAR, J. 1. The appellant/accused takes exception to the judgment and order dated 28th November, 2011 passed by the learned Sessions Judge, Satara in Sessions Case No. 128 of 2010 whereby he was convicted for the offence punishable under section 302 of the Indian Penal Code, 1860 (the Penal Code) and sentenced to suffer imprisonment for life and pay fine of Rs. 1,000/- with default stipulation, for having committed murder of his wife Chaya Kashid (the deceased). 2. The background facts necessary for the determination of this appeal can be summarized as under: (a) The accused was residing at Arvi, Tal. Koregaon, District Satara along with the deceased and their son Rushikesh (8 years) and daughter Rutuja (13 years), his mother Smt. Suman and sister in law Shobha and her children. The accused was serving in Indian Army. Accused was given in to the vice of consuming liquor. The said addiction resulted in abrupt termination of the services of the accused. Even after the accused lost the employment and thus came to reside at Arvi, there was no improvement in the behavior of the accused. He did not engage in any gainful work, and continued to consume liquor resulting in frequent quarrels between him and the deceased. (b) On 30th March, 2010 at about 2.00 p.m. while the children had gone to school, the accused returned home under the influence of liquor and demanded the deceased to serve food. The later remonstrated and questioned the accused as to how she would run the household if he continued to behave in the said fashion. In the exchange of words, the accused told the deceased that she should die. The accused picked up a stove and removed the stopper of its tank and sprinkled the kerosene on the person of the deceased. Thereafter, the accused ignited the matchstick and set the deceased on fire. The later raised alarm. Co-sister of the deceased, who was in the adjoining room, and the neighbours, rushed to extinguish the fire. Thereafter, she was initially shifted to Public Health Center, Wathar (Kiroli) and therefrom to Civil Hospital, Satara. (c) Upon admission Dr. Umesh Hendre (PW-3), the medical officer, recorded the history narrated by the deceased. Intimation was given to the police. Co-sister of the deceased, who was in the adjoining room, and the neighbours, rushed to extinguish the fire. Thereafter, she was initially shifted to Public Health Center, Wathar (Kiroli) and therefrom to Civil Hospital, Satara. (c) Upon admission Dr. Umesh Hendre (PW-3), the medical officer, recorded the history narrated by the deceased. Intimation was given to the police. R.L. Kanade (PW-9) the then police head constable attached to the police post Civil Hospital, Satara recorded the statement of the deceased after Dr. Hendre (PW-3) certified her fitness. The deceased narrated that the accused set her on fire after pouring kerosene on her person. On the strength of the said statement (Exhibit 42) crime was registered for the offence punishable under section 307 of the Penal Code. Investigation commenced thereon. (d) The investigating officer visited the scene of occurrence and drew panchanama. On 1st April, 2010 Mr. Dattatraya Kumbhar (PW-10), the then A.P.I. Rehmatpur police station, visited the Civil Hospital, Satara and again recorded the statement of the deceased after her fitness was certified by Dr. Jitendra Patil (PW-6). The deceased reiterated the fact that the accused had set her on fire. (e) As the condition of the deceased deteriorated, Pushpa Yadav (PW-2) the mother of the deceased shifted the deceased to Pawar hospital, Satara, on 4th April, 2010. Dr. P.V. Pawar (PW-7) again recorded the history as narrated by the deceased. Pursuant to intimation by Dr. Pawar (PW-7), Mr. G.D. Thakare (PW-8), the then A.S.I. visited Pawar Hospital and recorded the statement of the deceased in the presence of Dr. Pawar (PW-7). (f) The deceased succumbed to the injuries on 30th April, 2010. Inquest was held. Postmortem examination was conducted. The autopsy surgeon opined that the deceased died due to 70% burn injuries. The investigating officer interrogated the witnesses and recorded their statements. After finding the complicity of the accused, charge sheet was lodged against the accused for the offence punishable under section 302 of the Penal Code in the Court of jurisdictional Magistrate. 3. Upon committal, the learned Sessions Judge framed charge against the accused for the offence punishable under section 302 of the Penal Code. The accused abjured the guilt and claimed for trial. 4. At the trial, to substantiate the indictment against the accused, the prosecution examined in all 10 witnesses, including Pushpa Yadav (PW-2), the mother of the deceased, Mr. 3. Upon committal, the learned Sessions Judge framed charge against the accused for the offence punishable under section 302 of the Penal Code. The accused abjured the guilt and claimed for trial. 4. At the trial, to substantiate the indictment against the accused, the prosecution examined in all 10 witnesses, including Pushpa Yadav (PW-2), the mother of the deceased, Mr. R.L. Kanade (PW-9), D.D. Kumbhar (PW-10) and G.D. Thakare (PW-8) the police officers who had recorded the first, second and third dying declaration allegedly made by the deceased and Dr. Umesh Hendre (PW-3), Dr. J.M. Patil (PW-6) and Dr. P.V. Pawar (PW-7), the medical officers who had certified the fitness of the deceased on the respective occasions. 5. After the closure of the prosecution evidence, the accused was examined under section 313 of the Code of Criminal Procedure. The accused did not lead any evidence in his defence which consisted of false implication as the deceased suffered accidental burn injuries while warming the food. The accused claimed that he had tried to extinguish fire and in the process suffered burn injuries on his both hands and face. 6. After evaluation of the evidence and material on record, the learned Sessions Judge was persuaded to enter the finding of guilt. Learned Sessions Judge was of the view that the three dying declarations made by the deceased were true and genuine. The fact that the accused had attempted to extinguish the fire, after setting the deceased ablaze, was not sufficient to absolve the accused of the liability. Thus, the accused came to be convicted and sentenced for the offence punishable under section 302 of the Penal Code as indicated above. Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence, the accused has preferred this appeal. 7. We have heard Mr. Vishwanath Talkute, learned counsel for the appellant/accused and Ms. P.P. Shinde, learned A.P.P. for the State at considerable length. We have also perused the evidence and material on record. 8. To begin with, it may be apposite to note that the marital relationship between the accused and the deceased is incontestable. Indisputably, the accused, the deceased, their children, and the mother and sister in law of the accused were residing in one house. Nor the fact that the deceased died on account of burn injuries sustained in the said house is in contest. Indisputably, the accused, the deceased, their children, and the mother and sister in law of the accused were residing in one house. Nor the fact that the deceased died on account of burn injuries sustained in the said house is in contest. In the light of the defence version that the deceased suffered burn injuries accidentally and the accused also sustained injuries while extinguishing the said fire, the presence of the accused at that time and place of the occurrence is also indubitable. In the backdrop of aforesaid uncontroverted facts, the controversy revolves around the cause of burn injuries and the authorship thereof. 9. Mr. Talkute, learned counsel urged that the learned Sessions Judge committed a manifest error in placing reliance on the alleged dying declarations. Laying emphasis on the fact that none of the dying declarations was recorded by and before the Executive Magistrate though the deceased was alive for more than a month of the date she sustained the burn injuries, it was strenuously submitted that the dying declarations recorded by the police officer could not have been made a sound basis of the conviction. The evidence on record, especially the medical evidence, does not show that the deceased was conscious and oriented on all the three occasions when the dying declarations were allegedly recorded. Furthermore, the learned Sessions Judge unjustifiably brushed aside the fact that there were material inconsistencies in all the three dying declarations. The claim of the accused that he had sustained the burn injuries while extinguishing the fire found support in the medical evidence. In the face of such positive medical evidence, the absence of the said fact in two of the dying declarations bears out the untruthfulness thereof, urged Mr. Talkute. Therefore, the impugned judgment and order is legally unsustainable, submitted Mr. Talkute. 10. Per contra, Ms. Shinde, the learned A.P.P would urge that the dying declarations have been recorded by the police officers after duly ascertaining the fitness of the deceased. On each of the occasions, a competent medical officer has certified the fitness of the deceased. There is no inconsistency in the dying declarations as regards the substance of the matter, namely, the accused having poured kerosene from the stove on the person of the deceased and set her on fire. The circumstantial evidence, according to the learned A.P.P. rules out the possibility of accidental burn injuries. There is no inconsistency in the dying declarations as regards the substance of the matter, namely, the accused having poured kerosene from the stove on the person of the deceased and set her on fire. The circumstantial evidence, according to the learned A.P.P. rules out the possibility of accidental burn injuries. The mere fact that, after the deceased got engulfed in fire, the accused tried to extinguish the same, does not dilute the complicity of the accused, urged the learned A.P.P. 11. Evidently, the nature of the death which the deceased met is at the heart of the matter. For an answer, recourse to the testimony of Dr. Umesh Hendre (PW-3), who had also conducted the postmortem examination, becomes imperative. Dr. Umesh Hendre (PW-3) informed the Court that the deceased was brought at the casualty of the Civil Hospital, Satara at about 5 p.m. on 30th March 2010. He claimed to have recorded the history, as narrated by the deceased, to the effect that her husband (accused) had put kerosene on her body and set her ablaze. The case paper containing the said record of history (Exhibit 41) came to be proved in his evidence. Dr. Umesh Hendre (PW-3) asserted that he had given intimation (Exhibit 43) to the police and thereupon Mr. R.L.Kanade (PW-9) requested him to record the dying declaration vide communication (Exhibit 44). Dr. Umesh Hendre (PW-3) further affirmed that, upon arrival of the police, he had examined the deceased and found her conscious and oriented and in a condition to give the statement. Whereupon Mr. R.L. Kanade (PW-9) recorded the statement of the deceased. Post statement, Dr. Umesh Hendre (PW-3) claimed to have again examined the deceased and found her in a conscious and oriented state and thus made endorsement (Exhibit 42) to that effect on the said statement. 12. It is in the evidence of Dr. Hendre (PW-3) that on 30th April 2010 the body of the deceased was brought at the Civil Hospital for postmortem examination. He claimed to have noticed “superficial to deep burn injuries 70%.” In his opinion the cause of death was 70% burn injuries. 13. Mr. R.L. Kanade (PW-9) lends support to the claim of Dr. Hendre (PW-3). Post certification of fitness by Dr. Hendre (PW-3), Mr. R.L. Kanade (PW-9) claimed to have recorded the statement of the deceased. Mr. He claimed to have noticed “superficial to deep burn injuries 70%.” In his opinion the cause of death was 70% burn injuries. 13. Mr. R.L. Kanade (PW-9) lends support to the claim of Dr. Hendre (PW-3). Post certification of fitness by Dr. Hendre (PW-3), Mr. R.L. Kanade (PW-9) claimed to have recorded the statement of the deceased. Mr. R.L. Kanade (PW-9), in terms, affirmed that the deceased had stated that as the quarrel ensued between her and the accused over the addiction of the accused, the latter poured kerosene from the stove on her person and set her on fire after igniting the match stick. As she screamed, her sister in law, mother in law and neighbours came thereat and extinguished the fire. 14. It is imperative to note that the second statement of the deceased, which was recorded by Dattatraya Kumbhar (PW-10), the then A.P.I. Rehmatpur police station, proceeds on identical line. The only addition which the deceased made was that, after noticing that she had caught fire, the accused attempted to extinguish the fire by pouring water from the earthen pitcher and in the process the accused sustained burn injuries on his both hands. Mr. Dattatraya Kumbhar (PW-10) claimed to have recorded the statement on 1st April, 2010 after Dr. Jitendra Patil (PW-6), who was attending to the deceased, had certified that the deceased was in a condition to give the statement. 15. Dr. Jitendra Patil (PW-6) professed to lend support to the claim of Kumbhar (PW-10). Dr. Patil (PW-6) affirmed that, on being approached by the police officer, he went to the burn ward and examined the deceased and found her ft to give the statement. After the police officer recorded the statement, he again came back to the bed of the deceased and examined the deceased and found her left during the period her statement was recorded. Thereupon, Dr. Jitendra Patil (PW-6) claimed to have made endorsement on the statement (Exhibit 52). 16. In the cross-examination of Dr. Umesh Hendre (PW-3) and Dr. Jitendra Patil (PW-6) an effort was made to draw home the point that no endorsement was made on the case papers about having examined the deceased pre and post recording of the statement. It was further elicited that it was not specifically mentioned that patient was conscious and oriented. On these counts, the certification of fitness was sought to be assailed. 17. It was further elicited that it was not specifically mentioned that patient was conscious and oriented. On these counts, the certification of fitness was sought to be assailed. 17. The learned Sessions Judge was not persuaded to accede to the said submission, and, in our view, rightly. The medical officers have made a specific endorsement that they had examined the deceased and found the later “conscious to give the statement” and “the patient was in a state of giving statement” respectively. Absence of the use of the expression “conscious and oriented” in the facts of the instant case, in our view, does not detract materially from their evidence. Indisputably, the deceased survived for a whole month from the dates of recording her statements 30th March, 2010 and 1st April, 2010. Undoubtedly, the deceased had sustained 70% burn injuries. However, the material on record does not indicate that the condition of the deceased was such that she was not in a sound state of mind to make the statement. 18. The testimony of Dr. P.V. Pawar (PW-7) puts the matter beyond the pale of controversy. Dr. P.V. Pawar (PW-7) informed the Court that the deceased was admitted in the hospital on 4th April, 2010. On being inquired, the deceased had informed him that the accused had poured kerosene on her body and set her on fire. He claimed to have given intimation to jurisdictional police (Exhibit 54). When the police arrived on 8th April, 2010, Dr. P.V. Pawar (PW-7) claimed to have examined the deceased and found her fully conscious and in a condition to give the statement. Accordingly, the statement of the deceased was recorded in his presence. Dr. P.V. Pawar (PW-7) affirmed that he found that the deceased was conscious throughout and there was no change in her condition during the course of recording of her statement and thus he had made an endorsement on the statement (Exhibit 55). Nothing material could be elicited in the cross-examination of Dr. P.V. Pawar (PW-7), save and except the fact that he did not mention in the case papers that at the time of recording of the statement the deceased was conscious and oriented. As endorsement to that effect was made on the statement itself, the omission to mention the said fact in the case paper does not assume determinative significance. 19. P.V. Pawar (PW-7), save and except the fact that he did not mention in the case papers that at the time of recording of the statement the deceased was conscious and oriented. As endorsement to that effect was made on the statement itself, the omission to mention the said fact in the case paper does not assume determinative significance. 19. In the backdrop of the aforesaid evidence, the challenge to the truthfulness and reliability of the dying declaration rested in non-recording of the dying declarations by a competent Magistrate, not making the certification of fitness in particular words and the manner of recording of the dying declarations, does not merit acceptance. It is trite law that if the dying declaration is found to be truthful and made in a sound state of mind, it can form the sole basis of conviction. The mode and manner of recording of dying declaration are not of decisive significance. It is not an immutable rule of law that the dying declaration must be recorded by and before the Magistrate. Nor the certification of fitness by medical officer is peremptory, in all the cases. 20. The legal position is well neigh settled. We are thus of the view that it would be suffice to make a reference to the Constitution Bench judgment of Supreme Court in the case of Laxman vs. State of Maharashtra, AIR 2002 SC 2973 , wherein the juristic philosophy behind the acceptance of the dying declaration was expounded. It was also enunciated therein that there can be no cast iron pre-requisites of mode and manner of recording of dying declaration. This pronouncement constitutes a complete answer to the submissions sought to be advanced on behalf of the appellant. It reads as under: “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a ft state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a ft mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a ft state of mind. Where it is proved by the testimony of the magistrate that the declarant was ft 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.” 21. The learned counsel for the appellant urged that there is a material variance between the multiple dying declarations. We are afraid to accede to this submission. We find that on the core of the occurrence, that is, the altercation between the accused and the deceased over the addiction of the accused, the accused having picked up a stove and poured kerosene on the person of the deceased and set her on fire, there is absolutely no deviation in any of the dying declarations. It is true that in the dying declaration (Exhibit 55), the deceased had stated that after she raised cries, on being set on fire, the accused made an attempt to extinguish the fire by splashing water on her and sustained burn injuries on his hands. Indeed the said statement does not find place in the first dying declaration (Exhibit 42) and third dying declaration (Exhibit 55). Yet, in our view, the said fact does not erode the truthfulness of the claim of the deceased on the core of the occurrence. The dying declarations are consistent on the material aspect as to how the deceased caught the fire and the author of the said act. 22. Dr. Hendre (PW-3) claimed to have examined the accused on 31st March, 2010 and found superficial to deep burn injuries on the right forearm, left limb and face of the accused. The cause of injury was thermal burns and they were sustained within 48 hours of the examination. 22. Dr. Hendre (PW-3) claimed to have examined the accused on 31st March, 2010 and found superficial to deep burn injuries on the right forearm, left limb and face of the accused. The cause of injury was thermal burns and they were sustained within 48 hours of the examination. As observed above, injuries on the person of the accused, in the instant case, establish the presence of the accused at the scene of occurrence. The endevour of the accused to bolster up the defence that those injuries were sustained as accused tried to extinguish the fire, which the deceased caught accidentally, however, does not deserve countenance for reasons more than one. Firstly, the deceased had not only made three declarations specifically attributing the role to the accused, of having set her on fire after pouring kerosene but the deceased had also narrated the history before the medical officers on 30th March, 2010 and 4th April, 2010, wherein also the same role was attributed to the accused. Secondly, the scene of occurrence panchanama (Exhibit 20), which was admitted in evidence on behalf of the accused, reveals that in the kitchen there was a gas stove. The use of kerosene stove which allegedly burst is thus rendered improbable even if we take the defence version at par that the deceased accidentally caught fire when flames thereof flickered. Thirdly, the scene of occurrence panchanama further records that the copper stove was lying on the floor at the scene of occurrence, which was seized under the said panchanama. If the deceased accidentally caught fire, the said stove would not have been found lying on the floor. These circumstances are incompatible with the claim that the deceased accidentally caught fire. 23. The upshot of aforesaid consideration is that the dying declarations made by the deceased appear to be genuine and truthful and inspire confidence. They are consistent on all material points. Thus, we are impelled to hold that the prosecution has succeeded in establishing not only the factum of homicidal death but authorship thereof as well. 24. The learned counsel for the appellant strenuously urged that even if the case of the prosecution is taken at par, then also the offence punishable under section 302 of the Penal Code cannot be said to have been made out. It was urged that from the own showing of the prosecution, the accused was in an inebriated condition. 24. The learned counsel for the appellant strenuously urged that even if the case of the prosecution is taken at par, then also the offence punishable under section 302 of the Penal Code cannot be said to have been made out. It was urged that from the own showing of the prosecution, the accused was in an inebriated condition. Thus, there was a quarrel between accused and the deceased. In the said quarrel the accused had poured the kerosene on the person of the deceased and set her on fire. The entire act was in the spur of the moment, when the accused was overcome by passion. Since there is unflinching evidence to indicate that the accused attempted to extinguish the fire and did sustain injuries, it justifies an inference that the accused did not intend to cause the death of the deceased. Thus, the offence, at the most, would fall within the dragnet of section 304 Part I of the Penal Code, urged Mr. Talkute. 25. In contrast, the learned A.P.P. stoutly submitted that the learned Sessions Judge has rightly convicted the accused for the offence punishable under section 302 of the Penal Code as the accused had intentionally set the deceased on fire. 26. To buttress the aforesaid submission, the learned counsel for the appellant placed reliance on the judgment of the Supreme Court in the case of Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, AIR 2011 SC 2328 . In the said case, the appellant/accused had gone to the house of the deceased, who was working as maid and refused to join her work at the house of the accused. As an altercation ensued, the appellant picked up the kerosene can, emptied it on the deceased and lit the match stick. The Supreme Court, in the facts of the said case, held that there was no pre-meditation to kill the deceased or cause any bodily harm or injury to the deceased. Everything had happened on the spur of moment. The appellant must have lost self-control on some provocative utterances of the deceased. The Court thus held that the case fell within the ambit of section 304 Part II and since the appellant had already suffered imprisonment for eleven years and two months, sentence was modified to the one already undergone. 27. Everything had happened on the spur of moment. The appellant must have lost self-control on some provocative utterances of the deceased. The Court thus held that the case fell within the ambit of section 304 Part II and since the appellant had already suffered imprisonment for eleven years and two months, sentence was modified to the one already undergone. 27. Reliance was also placed on the judgment of the Supreme Court in the case of Kalabai vs. State of Madhya Pradesh, AIR 2019 SC 2135 , wherein the appellant, in the wake of exchange of words in the tea-club of Air Force, 32 Wing (MT section) picked up a burning kerosene wick-stove and threw it on the deceased. Kerosene from stove spilled over the clothes of the deceased, they caught fire and the deceased ultimately died as a result of burns received by him. The Court held that since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. Holding thus, the conviction was altered to the offence punishable under section 304 Part II instead of section 302 of the Penal Code and the sentence was reduced to rigorous imprisonment for five years. 28. A very strong reliance was placed on the judgment and order of the Supreme Court in Criminal Appeal No. 2485 of 2009 in the matter of Devendrappa Yamanappa Biradar vs. State of Karnataka, wherein the facts resembled with the facts in the case at hand. Special emphasis was laid on the following observations: “The evidence on record discloses that the appellant was addicted to alcohol which was the reason for the constant bickering between the appellant and the deceased. There is evidence to show that at the time of the incident, the appellant was in an inebriated condition and during the fight which he had with the deceased, he poured the kerosene on the deceased and set her on fire. The evidence further shows that he immediately tried to save her by pouring water and he was the one who took the deceased to the hospital. We have carefully examined the oral and documentary evidence from the record. The evidence discloses the fact that the appellant was drunk. He committed the offence whilst being deprived the power of self control by grave and sudden provocation. We have carefully examined the oral and documentary evidence from the record. The evidence discloses the fact that the appellant was drunk. He committed the offence whilst being deprived the power of self control by grave and sudden provocation. Therefore, the culpable homicide is not murder. Consequently, we are of the opinion that the appellant does not deserve to be convicted under section 302 of IPC. Instead, he is convicted under section 304 Part I of IPC and sentenced to undergo 10 years imprisonment.” (Emphasis supplied) 29. We have given our anxious consideration to the aforesaid submissions and carefully perused the judgments cited by the learned counsel for the appellant. 30. It appears that the learned Sessions Judge after finding that the accused was the perpetrator of the act of setting the deceased on fire did not advert to the question as to whether the said act would amount to murder or culpable homicide not amounting to murder. A three stage inquiry, delineated by the Supreme Court in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, (1976) 4 SCC 382 , was not undertaken. In the said case, Supreme Court instructively explained distinction between murder or culpable homicide not amounting to murder. In the process, the Supreme Court postulated the method of determining as to whether in the given facts the offence proved is murder or culpable homicide not amounting to murder in three stages. Paragraph 21 of the said judgment reads as under: “21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300 of Penal Code is reached. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300 of Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of section 304, depending respectively, on whether the second or the third Clause of section 299 is applicable. If this question is found in the positive, but case comes, within any of Exceptions enumerated in s.300, offence would still be culpable homicide not amounting to murder punishable under First Part section 304 of Penal Code.” 31. In the instant case, the learned Sessions Judge did not embark upon inquiry, at the third stage, namely, whether the act of the accused falls within any of the exceptions to section 300 of the Penal Code. In the facts of the case, the applicability of the fourth exception, namely, death in a sudden fight, warrants consideration. For applicability of exception 4, the following conditions must be satisfied namely: (i) A sudden fight. (ii) No pre meditation. (iii) Act was done in a heat of passion and (iv) The assailant did not take any undue advantage or act in a cruel manner. 32. On an analysis of the evidence, we find that the altercation took place between the accused and the deceased as the former returned home in a drunken state and demanded the deceased to serve food. The addiction of the deceased was stated to be the reason for the frequent quarrels between the accused and the deceased. We are conscious of the fact that voluntary drunkenness is not a defence. However, the inebriated condition, in which the accused was found, fomented the quarrel between the accused and the deceased. In all the dying declarations, the deceased claimed that she remonstrated the dipsomaniac behavior of the accused and questioned him as to how she would run household and thereupon the accused told her to die and picked up the stove and poured kerosene on her person and set her on fire. In all the dying declarations, the deceased claimed that she remonstrated the dipsomaniac behavior of the accused and questioned him as to how she would run household and thereupon the accused told her to die and picked up the stove and poured kerosene on her person and set her on fire. Evidently, the incident occurred at the spur of the moment. The act was done in the heat of passion as the accused lost self control. The inebriated condition must have fuelled the passion. There is no material to show that the accused took any undue advantage or acted in a cruel manner. On the contrary, the accused made an attempt to extinguish the fire and even sustained burn injuries in the said process. This spontaneous attempt to extinguish the fire and save the deceased, underscores the fact that there was no premeditation. 33. However, since the accused had poured the kerosene on the person of the deceased and set her ablaze, we are inclined to hold that the accused had the intention to cause the burn injuries. Thus, in our view, the act of the accused would fall within the tentacles of section 304 Part I of the Penal Code. The accused has already undergone the imprisonment for more than nine years and nine months. Having regard to the period of imprisonment already undergone and the entire gamut of the circumstances, in our view, a sentence of rigorous imprisonment for ten years would meet the ends of justice. 34. For the foregoing reasons, the appeal deserves to be partly allowed. Hence, the following order: ORDER: (a) The Appeal stands partly allowed. (b) The impugned judgment of conviction for the offence punishable under section 302 of the Penal Code and sentence of imprisonment for life stands set aside. (c) The accused Vinod Jaysing Kashid stands convicted for the offence punishable under section 304 Part I of the Penal Code. (d) The accused Vinod Jaysing Kashid is sentenced to suffer rigorous imprisonment for ten years. (e) The sentence of fine stands confirmed.