19 Jun 2121

When there is no intention to kill the deceased, but out of anger and annoyance the incident took place, then it is an offence under section 304 Part II of the Indian Penal Code, 1860 - Bombay High Court

Case : Lata Shivram Anklu v. The State of Maharashtra Criminal Appeal No. 772 of 2018

Court : Bombay High Court

Bench : Justice Prasanna B. Varale & Justice Surendra P. Tavade

Decided on : 19 Jun 2121

Relevant Statutes

Section 302,307 & 304 Part II of Indian Penal Code,1860

Brief Facts and Procedural History

1. The deceased was a widower and the Appellant was a widow. They came into contact with each other at the cuff parade. Both decided to reside together in the deceased’s house. The Appellant was addicted of liquor and narcotic drug. Hence, she used to demand money from the Deceased.

2. On 12.12.2013 at about 10.00 a.m. the Deceased and Appellant were in the house of Deceased. The Appellant demanded Rs.600/- from the Deceased, but he gave only 100/- to her and told her that he would give the balance amount afterwards. But the Appellant got annoyed and poured kerosene on the deceased and set him ablaze. Hence, the Deceased sustained severe burn injuries on the various parts of his body. The neighbour of the deceased poured water on him.

3. On receipt of this information, police came to the spot and admitted him to the hospital. The medical officer recorded the history of the incident given by the deceased. Similarly, the police officer also recorded the statement of the Deceased with the consent of the Medical Officer, which was treated as FIR. The case was registered under section 307 of the Indian Penal Code,1860.

4. During the course of treatment, the deceased passed away. The Investigation officer seized articles and took samples from the spot and prepared panchanama. A post-mortem was conducted. In the post-mortem report, it was opined by the doctor that the cause of death of the Deceased was shock due to 85% superficial to deep burns which were unnatural. Hence, the Appellant came to be arrested.    

5. The charge was altered to Section 302 of the Indian Penal Code,1860. To prove the charge against the Appellant, the prosecution examined 7 witnesses and the appellant did not lead any evidence in support of her defence. The learned trial Court held the Appellant guilty u/s.302 of the Indian Penal Code,1860. Hence, the Appellant preferred this appeal.

6. According to Appellant, out of anger, the alleged incident was taken place. There is no intention on the part of the Appellant to commit murder of the Deceased and at the most, the case falls under Section 304 Part II of Indian Penal Code,1860.

The Issue of the Case

Whether the Appellant’s case falls under section 304 Part II of the Indian Penal Code,1860?

The Observations of the Court

1. The Honourable Bombay High Court observed that the entire prosecution case rests on the dying declarations of the Deceased. The evidence of witnesses shows that, before the death of the Deceased, Deceased stated that, the Appellant poured kerosene on him and set him at the blaze. While recording the statement, the police constable had taken precautions of obtaining the opinion of the medical officer. Similarly, he was also satisfied that the Deceased was conscious and able to make a statement and thereafter he recorded the statement of the deceased. Therefore, the dying declaration is voluntary and truthful.

2. The witness had identified the seized articles. The scene of offence panchnama and seizure of clothes of the Deceased is not denied by the Appellant. So, it can be said that the Investigating Officer had carried out the investigation properly. The prosecution has proved that the Appellant poured kerosene on the Deceased and set him on fire which resulted in his death and the said dying declarations are consistent with each other.

3. It appears that the incident had occurred on the spur of moment as the deceased did not fulfil the demand of the Appellant. No doubt, the Appellant had knowledge that due to the incident, the deceased may die, but she set him on fire. So, it can be said that the provisions of Section 304 Part II are applicable to the facts of the present case. The punishment provided under Section 304 Part II reads as under: “...or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

The Decision Held by the Court

1. The Honourable Bombay High Court allowed the criminal appeal and set aside the conviction and sentence passed against the Appellant under Section 302 of the Indian Penal Code,1860.

2. The Appellant was held guilty for the offence punishable under Section 304 Part II of Indian Penal Code,1860. She is sentenced to the period undergone by her and pay a fine of Rs.1000/-, in default, to suffer further simple imprisonment for a period of two weeks.

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