ANIL KUMARversusTHE STATE OF KERALA

                  [2023] 14 S.C.R. 173 : 2023 INSC 965



                             CASE DETAILS

                              ANIL KUMAR
                                      v.
                       THE STATE OF KERALA
                   (Criminal Appeal No. 2697 of 2023)
                          NOVEMBER 01, 2023
          [ABHAY S. OKA AND PANKAJ MITHAL, JJ.]

                              HEADNOTES

      Issue for consideration: Whether in the circumstances of the instant
case, the appellant had any premeditated mind to kill the deceased or was
it due to grave and sudden provocation which would not amount to murder
or would at best be a case of culpable homicide not amounting to murder
punishable with imprisonment for a term which may extend up to 10 years
or with fine or with both u/s. 304 Part-II of IPC.
     Penal Code, 1860 – s. 302 and s. 304 Part-II – Prosecution case that
the appellant, with the intention to kill his wife, lighted a matchstick
and threw it upon her when she had already poured kerosene upon
herself due to the quarrel with the appellant – Wife died – Appellant was
convicted u/ss. 302 and 498-A IPC by both the courts below – Appellant
contended that provisions of s.302 IPC are not applicable and at best
he can be charged u/s. 304 Part-II of IPC – Propriety:
      Held: The first dying declaration is in the form of the statement Ext.P1
and the other statement which can be read as a dying declaration is Ext.P10
– Both the statements, if read together, would reveal that on the fateful day,
the appellant had assaulted the deceased wife under the influence of alcohol
– He even struck a blow on her chest and pushed her – When the assault of
the appellant became unbearable, she took the cane of kerosene from kitchen
and poured it on her body whereupon her husband lighted a matchstick and
burnt her – Magistrate-PW5, before whom one of the dying declarations
was recorded, proves the correctness of the statement – Appellant was in

                                     173
174          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


habit of drinking alcohol and used to assault her frequently in inebriated
condition – Victim also stated that various criminal cases are pending against
the appellant in connection with similar kind of assaults – The above aspect,
as stated by the deceased, was corroborated by the testimony of PW21
(Investigating Officer) – On the day of incident, during their quarrel, a
neighbour-PW1 had visited their house and the deceased wife had shown
some injuries received by her during the assault – However, realizing the
quarrel between the two, he left saying that he would come later on – It was
thereafter that the incident of pouring kerosene and burning took place –
So, there was sufficient time in between the two acts and it cannot be said
that there was a sudden quarrel and provocation leading to burning – In the
instant case, the appellant upon seeing the deceased drenched in kerosene
clearly took advantage of the situation and lighted a matchstick and threw
it upon her so that she can be burnt – The appellant having taken “undue
advantage” of the situation cannot be extended the benefit of Exception 4
to s.300 IPC so as to bring the case within the ambit of Part-II of s.304 IPC.
[Paras 11, 12, 13, 14, 15, 20 and 21]

      LISTS OF CITATIONS AND OTHER REFERENCES

      Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 – referred to.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.2697 of 2023
     From the Judgment and Order dated 27.11.2019 of the High Court of
Kerala at Ernakulam in CRLA No.1217 of 2015.
      Appearances:
    Ms. Aparna Jha, Abhishek Yadav, Ms. Priyanka Mathur, Ms. Ipsita
Behura, Ms. Pooja Singh, Ms. Geeta Verma, Ms. Jessy Kurian, Ms. Ruby
Mohd. Wasim, Advs. for the Appellant.
    Abraham Mathew, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar,
Advs. for the respondent.
            ANIL KUMAR v. THE STATE OF KERALA                             175



       JUDGMENT / ORDER OF THE SUPREME COURT

                               JUDGMENT

     PANKAJ MITHAL, J.
      1. The appellant Anil Kumar has been convicted under Sections 302
and 498A of the Indian Penal Code1 by both the courts below and has been
sentenced to life imprisonment and to pay fine of Rs.50,000/-, and in default
to undergo simple imprisonment for one year under Section 302 IPC and
rigorous imprisonment of one year under Section 498A IPC with direction
that both the sentences would run concurrently.
      2. The incident is of 26.09.2010 and had taken place at 9:00 am in the
morning at the house of the appellant. The allegation is that the appellant,
with the intention to kill his wife, lighted a matchstick and threw it upon
her when she had already poured kerosene upon herself due to the quarrel
with the appellant.
      3. The FIR No.621/2010 dated 26.09.2010 was initially registered
under Section 307 IPC wherein it has been stated that the deceased wife,
due to unbearable mental and physical harassment caused to her by the
appellant, poured kerosene upon herself to deter the appellant from causing
further torture to her and that the appellant with the clear intention to kill
her took advantage of the situation and lighted the matchstick and threw
it on her body uttering “You Die”. Thus, the deceased wife was inflicted
with burn injuries at their residence by the appellant with clear intention of
killing her. Subsequently, when the deceased wife died in the hospital, the
case was converted into that under Sections 302 and 498A of IPC.
     4. On the basis of the aforesaid FIR, the appellant was charged for
uxoricide.
      5. There is a clear and clinching evidence on record that the appellant
used to harass the deceased wife by making demands for dowry and that both
of them used to quarrel a lot. The marriage between the two was solemnized
about 11 years before the date of incident and from the wedlock they had



1   “IPC”, for short
176           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


a boy and a girl. At the time of the incident, their children were playing in
the courtyard and that the boy, though of a tender age, had deposed that
appellant was in habit of beating his wife and there used to be frequent
quarrels between his parents.
      6. In the trial court as well as before the High Court, the defence of
the appellant was that he is not at all guilty of burning his wife. She had the
suicidal tendency and had tried to immolate herself on one earlier occasion
and had once even tried to cut her veins. She herself had poured kerosene
upon herself and set herself on fire. The appellant had simply tried to douse
the fire by pouring water from the bucket.
      7. The defence so set up by the appellant was not accepted by either of
the courts below in view of the overwhelming evidence on record regarding
their frequent quarrel and the harassment meted out to the deceased wife.
The ocular evidence of the witnesses clearly proved that on the date of the
incident, there was again a quarrel between both of them though on a petty
matter but the deceased wife, in order to avoid torture at the hands of the
appellant and to deter him, went inside the kitchen and poured kerosene on
herself. Thereafter, the appellant took advantage of the situation and set her
on fire.
      8. We had heard the learned counsel for the parties.
      9. Learned counsel for the appellant had argued that the appellant
had no premeditated mind to kill the deceased wife and that he had no
intention even to kill her. Therefore, the provisions of Section 302 IPC are
not applicable and at best he can be charged under Section 304 Part-II of
IPC.
      10. The above submission has been strongly opposed on the ground that
the appellant had burnt the deceased wife with a matchstick fully knowing
that she was drenched in kerosene oil and that lightning of matchstick and
throwing it upon her would certainly cause her death.
      11. In the case at hand, admittedly, there are multiple dying declarations
on record. The first dying declaration is in the form of the statement Ext.P1.
This statement of the deceased wife before her death was made before the
Judicial First Class Magistrate, Ernakulam, i.e. PW5. The said statement
clearly reveals the cause and circumstances of the death of the deceased wife.
           ANIL KUMAR v. THE STATE OF KERALA                             177
                   [PANKAJ MITHAL, J.]

     12. The other statement which can be read as a dying declaration is
Ext.P10 recorded by PW16, Head Constable, Kuruppampady Police at
General hospital, Ernakulam, wherein also the deceased wife repeated the
same narration as in Ext.P1 in relation to the incident of her death.
      13. Both the above statements, if read together, would reveal that on
the fateful day, the appellant had assaulted the deceased wife under the
influence of alcohol. He even struck a blow on her chest and pushed her.
At the time of the said incident, the children were playing in the courtyard.
When the assault of the appellant became unbearable, she took the cane of
kerosene from kitchen and poured it on her body whereupon her husband
lighted a matchstick and burnt her.
      14. The Magistrate (PW5), before whom one of the dying declarations
was recorded, proves the correctness of the statement and that when the
statement of the deceased was recorded, she was coherent and oriented. He
also accepted that there was no reason for him to believe that the deceased
was not in a position to make the statement or that the statement made by
her stands vitiated for any reason. The statement of PW5 was supported by
that of PW14 (Dr. K. Venugopal).
      15. The statement of the deceased wife further categorically states
that the appellant was in habit of drinking alcohol and used to assault her
frequently in inebriated condition. She also stated that various criminal
cases are pending against the appellant in connection with similar kind of
assaults. The above aspect, as stated by the deceased, was corroborated by
the testimony of PW21 (Investigating Officer). Even the DW1 (Saji Mathew)
also proved that the deceased, at the time of the admission in the hospital,
narrated about her burn injuries and alleged that her husband assaulted her
and that she had poured kerosene on herself whereupon her husband had
set her on fire. The medical report reveals that the deceased had suffered
96% burn injuries.
      16. The incident was also proved by the oral testimony of PW1
(Sahajan) and PW2 (Gopalakrishnan), the neighbours who took the deceased
to the hospital in a jeep and have seen the deceased in burning state.
     17. In view of the aforesaid facts and circumstances and the
overwhelming evidence on record, there is no escape from the conclusion
178           SUPREME COURT REPORTS                        [2023] 14 S.C.R.


that the deceased died of burn injuries. She had herself poured kerosene
upon her body and that the appellant set her ablaze and later tried to douse
the fire by pouring water. The appellant also accompanied the deceased to
the hospital.
     18. Now the only point for consideration is whether in the above
circumstances, the appellant had any premeditated mind to kill the deceased
or was it due to grave and sudden provocation which would not amount to
murder or would at best be a case of culpable homicide not amounting to
murder punishable with imprisonment for a term which may extend up to
10 years or with fine or with both under Section 304 Part-II of IPC.
      19. In support of his above argument, learned counsel for the appellant
relied upon Kalu Ram v. State of Rajasthan2 which was case of a similar kind
in connection with uxoricide by burning. However, it would be relevant and
material to refer to Exception 4 to Section 300 IPC which defines “Murder”
before extending the benefit of the above decision to the appellant. The said
exception 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.
      Explanation.—It is immaterial in such cases which party offers the
      provocation or commits the first assault.”
      20. It is on the strength of the above exception that from the side of
the appellant it has been argued that the appellant is not guilty of murder as
he had no premeditated mind and that the action of the appellant arose out
of a sudden fight. In the first place, the fight was not sudden. The appellant
and the deceased wife had a past history of quarrel and that they had been
quarrelling on the fateful day also since before the actual incident. During
their quarrel, a neighbour/(Sahajan) i.e. PW1 had visited their house and the
deceased wife had shown some injuries received by her during the assault.
However, realizing the quarrel between the two, he left saying that he would
come later on. It was thereafter that the incident of pouring kerosene and


2     (2000) 10 SCC 324
           ANIL KUMAR v. THE STATE OF KERALA                             179
                   [PANKAJ MITHAL, J.]

burning took place. So, there was sufficient time in between the two acts and
it cannot be said that there was a sudden quarrel and provocation leading
to burning. The appellant saw the deceased wife drenched in kerosene and
was conscious that if lighted, she would be burnt to death even then ignited
her to fire. This shows premeditated mind to kill her. More particularly, the
appellant cannot take advantage of the 4th Exception only on the pretext
that it was not on account of premeditated mind or out of a sudden fight
or that his intentions were not bad as he tried his best to douse the fire and
to save the life of the deceased wife for the reason that the benefit of the
above exception would have been available to him, had he not taken undue
advantage of the situation.
      21. The exception clearly in unequivocal term states that it would
be applicable where culpable homicide is committed not only without
premeditated mind in a sudden fight or quarrel but also without the offender
taking “undue advantage” of the situation. In the instant case, the appellant
upon seeing the deceased drenched in kerosene clearly took advantage of
the situation and lighted a matchstick and threw it upon her so that she can
be burnt. The appellant having taken “undue advantage” of the situation
cannot be extended the benefit of Exception 4 to Section 300 IPC so as to
bring the case within the ambit of Part-II of 304 IPC.
     22. In view of the above legal position, the ruling cited above, viz.
Kalu Ram (supra) would not benefit the appellant.
      23. The First Information Report and the dying declarations on record
clearly contain the statement of the deceased that when she had poured
kerosene upon herself to deter the appellant from fighting and assaulting,
he lighted a matchstick and with the intention to kill her, threw it upon her
by saying “You Die”.
     24. The aforesaid evidence clinches the issue and establishes beyond
doubt that the appellant is guilty of the offence of culpable homicide
amounting to murder and is not entitled to benefit of the Exception 4 to
Section 300 IPC.
    25. Accordingly, we are of the opinion that the courts below have not
committed any error of fact or law in convicting and sentencing him to a
maximum punishment of life imprisonment.
180            SUPREME COURT REPORTS                     [2023] 14 S.C.R.


      26. The appeal accordingly lacks merit and is dismissed. However,
we would observe that the appellant who is in jail may, in usual course, be
at liberty to apply for remission in accordance with the prevailing policy
of the State.


Headnotes prepared by:                                      Appeal dismissed.
Ankit Gyan