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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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CRIMINAL APPEAL No. 46 of 2003
KANHAIYA LAL
V/S
STATE
Mr. MAHESH BORA, for the appellant / petitioner
Mr. KR BISHNOI, PP, for the respondent
Date of Order : 17.2.2009
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
JUDGMENT
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This appeal has been filed the appellant against
the judgment of learned Sessions Judge, Dungarpur dt.
29.11.2002 convicting the appellant for the offence under
Section 302 IPC, and sentencing him to undergo imprisonment
for life, and a fine of Rs. 1000/-, in default to undergo
three months additional imprisonment, and at the same time
acquitted him of the offence under Section 498A IPC.
The incident occurred on 25.3.2001 during day
comprising of the wife of the appellant Smt. Shamu
receiving burn injuries, and having died. The case of the
prosecution is that the appellant was alcohol addict, and
used to pick up quarrel with the deceased, and on the
fateful day he poured kerosene on her, and set her ablaze,
as a result of which she received 95% injuries, and
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ultimately died on 28.3.2001 i.e. after four days.
The only contention raised by the learned counsel
for the appellant is that in view of the conduct of the
accused, in immediately attempting to extinguish the fire,
and saving the deceased, in which process he received
injuries, which are proved by the injury report of the
accused being Ex.D-1, as well as the fact that the injuries
are noticed in the arrest memo, though that arrest memo has
not been tendered in evidence by the prosecution; and that
the deceased died after four days of the incident,
according to the learned counsel, the offence does not fall
in any of the clauses of Section 300 IPC, and remains
confined only to Section 299, with the result, that the
offence made out does not travel to Section 302, but at
the most the accused can only be convicted under Section
304 Part-II IPC. He has submitted that since the accused is
in custody right from 30.3.2001 the day he was arrested,
and by now he has already remained for more than 7 years
and 10 months, and therefore, even if the offence is taken
to be falling under first part of Section 304 still the
sentence already undergone is sufficient to meet the ends
of justice. Learned counsel placed reliance on a judgment
of this Court dt. 4.4.2007 passed in D.B.Criminal Appeal
No. 284/2002 Nathulal Vs. State, wherein the case was
originally registered under Section 307 IPC, and on death
of the victim it was converted into section 302 IPC. In
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that case this Court considered the judgments of the
Hon’ble Supreme Court in Chand Vs. State of U.P. reported
in AIR 1972 SC-955, Laxman Kalu Nikalje Vs. State of
Maharashtra reported in AIR 1968 SC-1390, and State of
Assam Vs. Mafizuddin Ahmed reported in AIR 1983 SC-274, and
also considered that there was no enmity between the
deceased and the accused, and the case was resting on dying
declaration. This Court in identical circumstances after
considering the totality of circumstances of the case found
the case to be filling under Section 304 Part-II IPC, and
considering the period of imprisonment already served being
5 years and 10 months, awarded the sentence of imprisonment
already undergone.
In our view, the conduct of the accused in the
present case being in attempting to extinguish the fire,
and from the evidence on record, as has come, it is not
established, that the accused was alcohol addict, or that
on the fateful day there was any such quarrel which might
have provoked him to kill the deceased. In such
circumstances, in our view, the present case also does not
travel to Section 302, and stands confined only to Section
304 Part-II IPC. We accordingly alter the conviction to
Section 304 Part-II IPC, and since the accused has already
undergone imprisonment for a period of practically 8 years,
we award him sentence of imprisonment for the period
already undergone by him; the sentence of fine of Rs.
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1000/- is, however, maintained.
The appeal is partly allowed as above. The
conviction of the accused appellant Kanhaiya Lal is altered
from Section 302 IPC to the one under Section 304 Part-II
IPC, and he is sentenced to the period of imprisonment
already undergone. The sentence of fine of Rs. 1000/- is
maintained. The accused appellant is in jail. He be
released forthwith, if not required in any other case on
depositing fine.
( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J.
/Sushil/