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2025 DIGILAW 482 (GUJ)

State Of Gujarat v. Shaikh Rafik Shaikh Hushain

2025-06-17

CHEEKATI MANAVENDRANATH ROY, D.M.VYAS

body2025
JUDGMENT : CHEEKATI MANAVENDRANATH ROY, J. 1. Assailing the judgment dated 17.08.2013 passed in Sessions Case No. 100 of 2012 on the file of learned Additional Sessions Judge, Surat, whereby, the sole accused was acquitted of the charge for the offence publishable under Section 302 of the INDIAN PENAL CODE , 1860 (herein after referred to as “the IPC”) and was convicted for the offence punishable under Section 304, Part-II of IPC, imposing punishment of only 7 years’ rigorous imprisonment (RI) with fine of Rs.10,000/- and in default, to undergo simple imprisonment (SI) for 3 months, State has preferred the instant appeal questioning the legality and validity of acquittal of the accused for the offence punishable under Section 302 of IPC. 2. Fact of the present case lie in a narrow compass and may be stated as follow: 2.1 The deceased is the legally wedded wife of the accused. They were married about 13 years prior to the date of offence. They are blessed with two sons and two daughters during their wedlock. 2.2 On the fateful day of 21.11.2011, at about 8:30 p.m., the accused came to his house and when the deceased, who is his wife, served food to him for his dinner, the accused is not satisfied with the Curry prepared and cooked by the deceased. When he questioned her in this regard, some altercation took place between the accused and the deceased. There were heated exchange of words between them at that time. At that time, as there was no power in the house, one oil lamp was burning in the house. In the said heated exchange of words between both of them in the said quarrel, the accused became enraged and in that fit of anger, he kicked the oil lamp, which is on the floor of the house, forcibly. It went and fell on the body of his wife and she was gutted in fire in the said process. The accused, immediately, ran away from the place, even without making any attempt to rescue her by extinguishing the fire on her body. She suffered burn injuries in the said incident. 2.3 After hearing her cries, her sister took her to the hospital. On intimation given by the personnel of the hospital, the Sub Inspector of Police reached the hospital and recorded the statement of the victim. She suffered burn injuries in the said incident. 2.3 After hearing her cries, her sister took her to the hospital. On intimation given by the personnel of the hospital, the Sub Inspector of Police reached the hospital and recorded the statement of the victim. She stated in her statement given to the police that the accused has thrown the oil lamp on her when a quarrel took place between both of them as he was not satisfied with the food prepared by her for his dinner. The said statement was registered as FIR by the police for the offence punishable under Sections 307 and 504 of the IPC. The said statement was recorded at about 11:50 p.m. on that day, during the night time. On the next day i.e. on 22.11.2011, in the early morning at about 4:05 a.m., as her condition became serious in view of the fact that she sustained 85-90% burn injuries, on a requisition made by the doctor, local Executive Magistrate has reached the hospital and recorded the Dying Declaration of the victim. She stated in her Dying Declaration that when a quarrel took place between her and her husband, who is the accused, as he was not satisfied with the food prepared by her for his dinner, that the accused has kicked the oil lamp which is on the floor of the house, forcibly and that, it fell on her and she was gutted in fire and sustained burn injuries. 2.4 Thereafter, she succumbed to the said injuries on 23.11.2011. On intimation of her death to the police, FIR was altered and Section 302 of the IPC was added and the case was registered against the accused for the offences punishable under Sections 302 , 307 and 504 of the IPC. 2.5 The case was investigated and eventually, after completion of investigation, Charge-sheet was filed by the police for the offences punishable under Sections 302 , 307 and 504 of the IPC in the committal Court. The case was then committed to the Sessions Division and thereafter, it was made over to learned Additional Sessions Judge, Surat for trial. Charges for the offences punishable under Sections 302 , 307 and 504 of the IPC were framed against the accused and the same was read over and explained to him. The accused abjured the guilt and claimed to be tried. Charges for the offences punishable under Sections 302 , 307 and 504 of the IPC were framed against the accused and the same was read over and explained to him. The accused abjured the guilt and claimed to be tried. 2.6 At the culmination of trial, the accused was acquitted of the charge for the offence punishable under Section 302 of the IPC. However, he was found guilty for the offence punishable under Section 304 Part-II of the IPC by the trial Court on the ground that he never intended to commit murder of the deceased and that, the incident took place at the spur of the moment and the accused kicked the oil lamp which is on the floor of the house in a fit of anger in the said heated atmosphere and it fell on the body of the deceased and she was gutted in fire and sustained burn injuries and succumbed to the same. Therefore, the learned Additional Sessions Judge found the accused guilty only for the offence punishable under Section 304 Part-II of the IPC and accordingly, convicted him for the said offence and sentenced him to undergo imprisonment as detailed supra. 2.7 Dissatisfied with the said judgment of acquittal of the accused for the offence punishable under Section 302 of the IPC and only convicting him for the offence punishable under Section 304 Part-II of the IPC, and aggrieved thereby, State has preferred the instant appeal questioning the legality and validity of the judgment of acquittal for the offence punishable under Section 302 of the IPC. 3. We have heard learned Additional Public Prosecutor Mr. Bhargav Pandya for the appellant – State and learned counsel Ms. Kiran Pandey for the respondent, at length. We have perused the record and proceedings, evidence on record and other material on record and meticulously considered the same with reference to the facts and circumstances of the case. 3.1 The fact that the deceased is wife of the accused and that their marriage took place about 13 years prior to the date of offence, is not in controversy. They are admitted facts. 3.1 The fact that the deceased is wife of the accused and that their marriage took place about 13 years prior to the date of offence, is not in controversy. They are admitted facts. The facts of the case clearly show that when the accused reached his house at about 8:30 p.m. on the night of 21.11.2011 and when the deceased, who is his wife, served food for his dinner, that the accused was not satisfied with the food prepared and cooked by her and that, he questioned her in that regard and in the said process, there was a quarrel between both of them and that there are heated exchange of words between both of them. These facts are not seriously in dispute. As there was no power supply in the house at that time, an oil lamp was burning on the floor of the house. During the quarrel that took place as discussed supra, the accused became furious and in a fit of anger and at the spur of the moment, he kicked the said oil lamp available on the floor, losing his temperament and the said oil lamp went and fell on the body of the deceased and she was gutted in fire. As per medical evidence, she sustained 85-90% burn injuries and ultimately, she succumbed to the said injuries on 23.11.2011. 3.2 After considering the evidence on record and on appreciation of the said evidence, the learned Additional Sessions Judge found that the accused is responsible for the burn injuries sustained by the deceased and that, he is responsible for her unnatural death. However, he did not find the accused guilty for the offence punishable under Section 302 of the IPC. But, as noticed supra, the learned Additional Sessions Judge found the accused guilty for the offence punishable under Section 304 Part-II of the IPC and accordingly, convicted him for the said offence and imposed sentence as detailed supra. It is the said judgment of acquittal for the offence punishable under Section 302 of the IPC, which is now assailed by the State in this appeal. So, the question to be determined now is, whether the accused deliberately committed murder of the deceased and thereby, committed an offence punishable under Section 302 of the IPC or whether, he is only liable for the offence punishable under Section 304 Part-II of the IPC, or not. So, the question to be determined now is, whether the accused deliberately committed murder of the deceased and thereby, committed an offence punishable under Section 302 of the IPC or whether, he is only liable for the offence punishable under Section 304 Part-II of the IPC, or not. 3.3 Admittedly, as can be seen from the contents of the FIR, which is the statement of the deceased and as can be seen from the Dying Declaration, which is the last statement of the deceased given before the learned Executive Magistrate, there was no allegation of any harassment caused to the deceased by the accused prior to the date of offence. There was no enmity of any nature between both of them. It appears that they were cordial in their relationship as husband and wife for the entire period of 13 years of their marital life, prior to the incident. It is only when the accused has questioned the deceased as he was not satisfied with the food prepared and cooked by her for his dinner, that a quarrel took place between both of them and there were heated exchange of words between both of them. Unfortunately, the accused, who lost his temperament in the said quarrel, in a fit of anger, kicked the oil lamp which is on the floor of the house and it went and fell on the body of the deceased and she was gutted in fire and ultimately, succumbed to the burn injuries sustained by her in the said incident. So, a careful consideration of the facts of the case and the entire gamut of evidence on record, clearly show that it was not a premeditated act committed by the accused to cause any bodily harm to the deceased with intention to cause her death or to kill her. He never intended to commit murder of the deceased. So, there is no intention to kill or commit murder of the deceased on the part of the accused. It is only on account of the fact that he has kicked the oil lamp, which is on the floor, in a fit of anger and in an infuriated state of mind, it fell on her body which resulted into her death on account of burn injuries sustained by her in the said incident. It is only on account of the fact that he has kicked the oil lamp, which is on the floor, in a fit of anger and in an infuriated state of mind, it fell on her body which resulted into her death on account of burn injuries sustained by her in the said incident. Although, the deceased, initially stated in the FIR recorded at about 11:50 p.m. on 21.11.2011 that the accused has thrown the oil lamp on her, she has prevaricated from the said statement and again, on the next day i.e. on 22.11.2011 at about 4:05 a.m., she has stated in her Dying Declaration before the learned Executive Magistrate that the accused kicked the lamp which is on the floor and it fell on her and she sustained burn injuries. Thus, two versions, which are inconsistent with each other, are emanating from the statements given by her, one before the police and other before the Executive Magistrate in her Dying Declaration. They are clearly inconsistent with each other. The leaned Additional Sessions Judge has believed the version and statement given by her in her Dying Declaration before the learned Executive Magistrate. In our opinion also, he has rightly taken the said version in Dying Declaration into consideration and believed the same in arriving at the conclusion that there is no offence of murder committed by him and that, he is liable only for the offence punishable under Section 304 Part-II of the IPC. 3.4 It is well settled law that when two views are possible from the evidence on record, the view which is favourable to the accused shall be taken into consideration by the Court. So, the trial Court has rightly taken the correct view as per the Dying Declaration of the deceased and correctly recorded the finding that as the accused kicked the lamp in a fit of anger during altercation, it went and fell on the body of the deceased and she sustained burn injuries and succumbed to the same. We do not find any legal flaw in recording the said finding by the trial Court. The trial Court has rightly appreciated the evidence on record and arrived at a right conclusion. We do not find any legal flaw in recording the said finding by the trial Court. The trial Court has rightly appreciated the evidence on record and arrived at a right conclusion. As already observed supra, the act of the accused is not a premeditated act and he never intended to kill her or commit murder of her and it is only on account of the fact that he kicked the oil lamp in a fit of anger, the incident took place. 3.5 Murder is defined in Section 300 of the IPC. It has carved out five Exceptions and if the case falls in any one of the said Exceptions, then it does not amount to murder and it amounts to culpable homicide not amounting to murder and then, the case is to be considered under Section 304 Part-I or Part-II of the IPC, as the case may be, depending upon the facts and circumstances of the case. So, to hold a person to be guilty and to punish him under the first or the second Part of Section 304 of the IPC, necessary ingredients to be established are that, death must be caused by the assailant under any of the circumstances mentioned in the five Exceptions to Section 300 of the IPC. The facts of the present case fall within Exception 4 of Section 300 of the IPC, which 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.” 3.6 Therefore, as discussed supra, the facts of the case clearly fall within the ambit of Exception 4 to Section 300 of the IPC, which justifies the finding of the trial Court that the accused is guilty for commission of offence punishable under Section 304 Part-II of the IPC alone. 3.7 Learned Additional Public Prosecutor vehemently contended that after the incident, the accused at least did not make any effort to save his wife by extinguishing the fire on her body or taking her to hospital and that, he ran away and this subsequent conduct of the accused shows that he intended to commit murder of her. We are unable to accede to the said contention. We are unable to accede to the said contention. The mere fact that he ran away from the place without saving her wife by itself will not prove or establish the fact that he got intention to commit murder of the deceased and that with that intention, he kicked the lamp which resulted into her death due to burn injuries sustained by her in the said incident. 3.8 The learned Additional Sessions Judge, upon considering the evidence on record and on proper appreciation of the same and also, after considering the facts of the case, arrived at a right conclusion and held the accused is guilty of the offence punishable under Section 304 Part-II of the IPC. We do not find any legal flaw in the said finding recorded by him and the conclusion reached by him. Therefore, it does not warrant any interference in this appeal. There are no perverse findings recorded by the learned trial Judge or erroneous appreciation of evidence on record by the learned trial Judge. Upon considering the said evidence on record and on reappraisal of the same, we fully agree with the findings recorded by the trial Court. Therefore, this appeal fails and is liable to be dismissed. 4. In fine, the appeal is dismissed. Notice of admission is discharged. Bail bond shall stand cancelled. R&P, be sent back to the trial Court, forthwith.