IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 945 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== LASHUBEN CHEMABHAI CHAUDHARY - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
MR PRATIK B BAROT for Appellant(s) : 1, MR. K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :3 /08/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B. PARDIWALA) This appeal is at the instance of a convict sentenced for the offence punishable under Section 302 of the Indian Penal Code and is directed against an order of conviction and sentence dated 28th June, 2007, passed by the learned Additional Sessions Judge, Fast Track Court No.5, Vyara, Dist. Surat, in Sessions Case No. 72 of 2006. By the aforesaid judgment and order, the learned Sessions Judge found the appellant-accused guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently, sentenced her to suffer life imprisonment and to pay a fine of Rs. 500/- for the offence punishable under Section 302 of the IPC. In default of payment of fine, the appellant-accused was directed to undergo further simple imprisonment for one month.
2. The case made out by the prosecution may be summarized thus:
2.1 The deceased Holkiben was the mother-in-law of the accused. On 3rd September, 2006, at around 19.00 hours, the accused picked up a quarrel with the deceased, alleging that the deceased was stealing articles of the accused. On such accusations being levelled by the accused against the deceased, a quarrel ensued between the two, resulting in exchange of words. The deceased tried to explain to the accused that she was not stealing any of her articles. However, the accused got enraged and when the deceased was preparing food, the accused is said to have poured kerosene on the body of the deceased and pushed the deceased in the fire of a hearth on which food was being cooked. As deceased fell in the fire, her clothes caught fire, as a result of which, the deceased sustained serious burn injuries all over the body. The deceased shouted for help and upon hearing her shouts, her son Chemabhai came running at the place of occurrence and covered the body of the deceased with a quilt, thereby saving the deceased from getting further burnt. At that point of time, one Veljibhai Damabhai Chaudhary, Khushalbhai Nadiabhai and Bhatadiyabhai Bhiladaba, all residing in the neighbourhood also came running at the place of occurrence. Thereafter, the sons of the deceased Chemabhai and Chemtabhai and one of the daughters of the deceased named Sunitaben shifted the deceased to a hospital in a jeep. Chemabhai happens to be the husband of the accused Lashuben.
2.2 On 4th September, 2006, at around 1.30 in the early morning, Police recorded the First Information Report of the deceased, Exh. 22, for the offence punishable under Section 307 of IPC. Thereafter, the Investigating Officer sent a yadi to the Executive Magistrate for the purpose of recording Dying Declaration of the deceased at Referral Hospital. Dying Declaration, Exh. 14 was recorded by the Executive Magistrate, wherein the deceased stated that at around 5' O Clock in the evening on 3rd September, 2006, the accused sprinkled kerosene on her body and with a matchstick, set her on fire. The deceased further stated that thereafter the accused ran away from the place of occurrence; the son of the deceased, Chemabhai had gone to the agricultural field; there was altercation in words with the accused; and thereafter, the accused sprinkled kerosene and ignited the matchstick. This was the version of the deceased in her Dying Declaration, Exh.14.
2.3 On 12th September, 2006, the deceased passed away. Her body was sent for postmortem and the postmortem revealed superficial to deep burns present on the face, chest, right arm and forearm, right thigh to the extent of 55%. The cause of death assigned by the doctor who performed the postmortem of the deceased was septicemia and shock due to burns.
2.4 As the victim had died, later on, a yadi was written to add the offence punishable under Section 302 IPC.
2.5 On completion of the investigation, charge-sheet was made against the accused. As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate First Class, Vyara, committed the case to the Sessions Court, under Section 209 of the Code of Criminal Procedure.
2.6 The Sessions Court framed charge against the accused, Exh.3 and the statement of the accused was also recorded. The accused did not admit the offence and claimed to be tried.
2.7 The prosecution adduced the following oral evidence in support of its case.
(i) PW-1, Dr. Alok Krishna Nandak, Exh.8, the Doctor who conducted the postmortem;
(ii) PW-2, Arjunbhai Ravjibhai Gamit, Exh.12, the Executive Magistrate who recorded the Dying Declaration of the deceased;
(iii) PW-3, Chemtabhai Nogabhai Chaudhary, Exh.15, the son of the deceased and brother-in-law of the accused;
(iv) PW-4, Sunitaben Navinbhai Chaudhary, Exh. 16, the daughter of the deceased;
(v) PW-5, Khushalbhai Nadiyabhai Chaudhary, Exh.17;
(vi) PW-6, Chemabhai Nogabhai Chaudhary, Exh. 18, the son of the deceased and husband of the accused;
(vii) PW-7, Dilipbhai Virsingbhai Chaudhary, Exh.19, panch witness;
(viii) PW-8, Samir Motilal Joshi, Exh.21, Investigating Officer;
(ix) PW-9, Dhirubhai Babarbhai, Exh. 29, panch witness.
2.7 The following pieces of documentary evidence were adduced by the prosecution:-
1. Postmortem report of the deceased, Exh.11,
2. Dying Declaration, Exh.14,
3. Inquest panchnama, Exh.20,
4. First Information Report, Exh.22,
5. Scene of offence panchnama, Exh. 23,
6. Arrest panchnama, Exh. 24,
7. FSL Report, Exh. 25,
8. FSL Report of the scene of offence, Exh. 26,
9. FSL Report, Exh. 27.
2.8 After completion of the oral as well as documentary evidence of the prosecution, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, in which the accused stated that the complaint was a false one and she had no idea as to how the deceased sustained burn injuries. She further stated that she is innocent and her name has been falsely implicated.
2.9 At the conclusion of the trial, the learned trial Judge convicted the accused for offence punishable under Section 302 of the Indian Penal Code and sentenced her as stated hereinbefore.
3. Being dissatisfied, the accused has come up with the present appeal.
4. Mr. Pratik Barot, the learned counsel appearing on behalf of the appellant, laboriously contended that the learned Sessions Judge committed substantial error in holding the appellant guilty by relying upon the Dying Declaration of the deceased. Mr. Barot submitted that the learned trial Judge ought to have taken note of the fact that the victim had made contradictory statement as regards the incident. Mr. Barot further submitted that the version of the deceased in her Dying Declaration that the accused poured kerosene on her body and thereafter, with a matchstick set her on fire, is completely falsified by the Forensic Science Laboratory report, Exh. 27. Mr. Barot submitted that as per the report Exh. 27, no traces of petroleum hydrocarbons were found from the burnt pieces of saree, which was worn by the deceased at the time of the incident and even the soil, which was collected from the place of the occurrence said to have been stained with kerosene, did not contain any particles of petroleum hydrocarbons. Mr. Barot vehemently submitted that if it is the case of the prosecution that the accused poured kerosene on the body of the deceased and thereafter, set her on fire, then under such circumstances the traces of kerosene ought to have been found by the Forensic Science Laboratory.
4.1 Mr. Barot drew our attention to Exh.9, which is a medico legal certificate, wherein it has been stated that the deceased had sustained burns upto 55% superficial to deep, on face, neck, chest and abdomen. It has also been stated in the certificate that the victim was unable to speak properly and the victim gave history of being burnt while cooking food by daughter-in-law. In the history noted in the certificate Exh.9, it had been stated that daughter-in-law picked up quarrel and pushed her in fire. Mr. Barot submitted that even according to this version of the deceased before the doctor, there is no reference of pouring kerosene. Mr. Barot submitted that prima-facie it appears that at a later stage, the doctor has put a note in the said certificate as regards smell of kerosene.
4.2 Mr. Barot submitted that in the Dying Declaration, the deceased narrated altogether a different story of being set on fire with a matchstick. Thus, according to Mr. Barot, the Dying Declaration recorded by the Executive Magistrate could not have been made the basis of conviction as it does not inspire confidence. Such being the position, according to Mr. Barot, the Dying Declaration only remains a piece of evidence, which could have been used in support of other reliable corroborative evidence.
4.3 Mr. Barot submitted that in the present case, even if it is believed that the accused pushed the deceased in the fire of a hearth on which food was being cooked, it could not be said that the offence of murder punishable under Section 302 of IPC can be said to have been made out. According to Mr. Barot, there is no evidence on record to prove and establish that the action of the appellant-accused to push the deceased in the fire of a hearth was preceded by quarrel between the deceased and the appellant. From the aforesaid evidence on record, according to Mr. Barot, it cannot be said that the appellant has the intention that such action on her part would cause death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. According to Mr. Barot, the case cannot be said to be covered under Clause Fourthly of Section 300 of IPC, but the case of the appellant is covered under Section 304, Part-II IPC.
In support of the aforesaid contentions, Mr. Barot relied upon two decisions of the Supreme Court, namely - (i) in the case of Maniben Vs. State of Gujarat, reported in (2009) 8 SCC 796 and (ii) in the case of Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat, reported in (2011) 6 SCC 312.
Mr. Barot, therefore, prays for setting aside the order of conviction and sentence for the offence punishable under Section 302 IPC and in the alternative, also prays for altering the conviction from Sec. 302 IPC to Sec. 304, Part-II IPC, in the event if this Court believes the case of the prosecution to a certain extent.
5. On the other hand Mr. K.P. Raval, learned Additional Public Prosecutor appearing for the State-respondent supported the order of conviction and contended that the trial Judge committed no error in convicting the accused-appellant for the offence of murder punishable under Section 302 IPC, relying upon the Dying Declaration of the deceased, coupled with other circumstances emerging on the record of the case. Mr. Raval, therefore, prays for dismissal of the appeal.
6. The question that arises therefore, for determination in this appeal, is whether in the facts of the present case, the learned Sessions Judge was justified in holding that the appellant had ignited the matchstick on the body of the victim after pouring kerosene on the body of the deceased.
7. Having heard learned counsel for the respective parties and upon reappraisal of the entire evidence on record, oral as well as documentary, we are of the view that conviction of the accused could not have been based on the Dying Declaration, as relied upon by the trial Court. It is no doubt true that conviction can be recorded on the basis of Dying Declaration alone, but therefor, the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the Dying Declaration, the Court, before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. If evidence brought on record suggests that such Dying Declaration does not reveal the entire truth, it may be considered only as a piece of evidence, in which event, conviction may not be rested only on the basis thereof. The question as to whether a Dying Declaration is of impeccable character, would depend upon several factors, physical and mental condition of the deceased is one of them.
7.1 The Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in the case of Paniben v/s. State of Gujarat, reported in (1992)2 SCC 474 (SCC pp.480-81, para 18) (Emphasis supplied):
“(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja v. State of M.P. (1976) 3 SCC 104]
(ii) If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. [See State of U.P. v. Ram Sagar Yadav, (1985)1 SCC 552 and Ramawati Devi v. State of Bihar, (1983)1 SCC 211]
(iii) Supreme Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
[See K.Ramachandra Reddy v. Public Prosecutor, (1976) SCC 618]
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of M.P., (1974)4 SCC 264]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kake Singh v. State of M.P., 1981 Supp SCC 25]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath v. State of U.P., (1981)2 SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu, 1980 Supp SCC 455]
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769]
(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanhau Ram v. State of M.P., 1988 Supp SCC 152]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan, (1989)3 SCC 390]
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982)1 SCC 700]
7.2 In Puran Chand v. State of Haryana, (2010) 6 SCC 566, the Supreme Court once again reiterated the abovementioned principles.
7.3 In Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190, a Bench of three Judges of the Supreme Court reiterating various principles mentioned above, held that it cannot be laid down as an absolute rule of law that the Dying Declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.
8. In the light of the above principles, the acceptability of the alleged Dying Declaration in the instant case has to be considered. In the present case, it appears that when the deceased was admitted in the Referral Hospital on 3rd of September, 2006, her first version in the form of history before the doctor was that the accused, her daughter-in-law, came home from work, picked up a quarrel and burnt the deceased by pushing her in the fire of a hearth. It deserves to be noted that there is no reference of act of the accused pouring kerosene on the body of the deceased. When the Dying Declaration was recorded, the version of the deceased before the Executive Magistrate was altogether different. The deceased in her Dying Declaration, Exh.14 stated that the accused poured kerosene on her body and with the help of a matchstick, set the deceased on fire. When the Police recorded the First Information Report at around 1.30 in the early morning, she stated that the accused poured kerosene on her body and pushed her in a "chula" (fire of a hearth on which food was being cooked). In the FIR, the deceased further stated that since she fell on a burning chula, her body caught fire because of kerosene, which was sprinkled by the accused on her body.
It appears that the deceased made oral Dying Declaration before her son PW-3, Chemtabhai, Exh.15 and in the said oral Dying Declaration, the deceased stated that the accused poured kerosene and pushed her in a chula. The same oral Dying Declaration was made before her daughter PW-4, Sunitaben, Exh.16.
9. We have gone through the Forensic Science Laboratory report, Exh.27. It appears that four parcels were sent for chemical analysis by the Investigating Officer. Parcel marked "A" contained burnt pieces of cloth; parcel marked "B" contained a bottle containing around 150ml of kerosene; parcel "C" contained 100 gms cow-dung soil stained with kerosene and parcel "D" contained 100gms of cow-dung control soil. The Forensic Science Laboratory report reveals that in parcels marked "A", "C" and "D", no traces or any particles of petroleum hydrocarbon could be found. This is suggestive of the fact that the entire version of the deceased that kerosene was poured on her by the deceased gets falsified. If kerosene is poured on the body of a person, then under such circumstances, some kerosene may also spill on the floor of the place of occurrence. In the present case, it has been positively asserted that kerosene was poured, but no kerosene was found in the burnt pieces of clothe as well as in the cow-dung soil said to have been stained with kerosene. Thus, the whole theory of the prosecution of pouring of kerosene by the accused on the body of the deceased deserves to be discarded.
Under such circumstances, it is difficult for us to place implicit reliance on the Dying Declaration.
10. We have no hesitation in reaching to the conclusion that the Dying Declaration is not wholly reliable. In a case where suspicion can be raised as regards the correctness of the Dying Declaration, the Court, before convicting an accused on the basis thereof, would look for some corroborative evidence. Suspicion is no substitute for proof. The evidence, which has come on record, more particularly the Forensic Science Laboratory report, Exh.27 suggests that the Dying Declaration does not reveal the entire truth, and therefore, it could be considered only as a piece of evidence in which event, conviction may not be rested only on the basis thereof. It has been repeatedly pointed out that the Dying Declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness, inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, great caution must be exercised in considering the weight to be given to this species of evidence. When there is more than one Dying Declaration genuinely recorded, they must be decided on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we shall now consider as to whether the entire Dying Declaration deserves to be discarded. In short whether we should disbelieve the entire case of the prosecution and acquit the accused of the offence of murder or we should accept a part of the Dying Declaration, which could be believed considering other evidence on record.
11. No sooner the deceased was admitted in the hospital, her first version before the doctor was that the accused came home from work, picked up a quarrel and burnt the deceased by pushing her in the fire of a hearth. We cannot overlook the fact that the deceased died due to burn injuries. We have also ruled out the act of the accused pouring kerosene on the body of the deceased. The question thereafter would be as to how did the deceased sustain burn injuries. The evidence also does not suggest that it was an accident. Under such circumstances, we find that there is some element of truth in the version of the deceased that the accused was responsible for the burn injuries sustained by her. It appears on overall reappraisal of the entire evidence on record that on the fateful day of the incident, a quarrel ensued between the accused and the deceased, as the accused was of the belief that the deceased was stealing her articles, which resulted in some exchange of words between the two and thereafter, it appears that the accused pushed the deceased in the fire of a hearth. We have no doubt in our mind that everything must have happened at a spur of a moment on the accused getting agitated against the deceased. A fire of a hearth would not be a big fire like a huge pyre of fire. A hearth is meant for cooking food.
12. The deceased was admitted in the hospital with about 65% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of nine days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased die due to poisonous effect of the injuries.
13. We have already discussed above that the action of the accused in pushing the deceased in the fire of a hearth was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record, it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our view, the case cannot be said to be covered under Clause Fourthly of Section 300 IPC, however, the case of the appellant is covered under Section 304, Part-II IPC. Clause (4) to Section 300 reads as under :-
"300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
This clause covers class of cases which are very dangerous in themselves and the act is done with the knowledge that it must in all probability cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, provisions of this clause are required to be attracted only when the offender knows that his act is so imminently dangerous that it would in all probability cause death or atleast such bodily injury which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that the clause 4thly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable consequence, as can be seen from illustration (d) of Section 300 of the IPC. Under clause (4) the degree of probability or likelihood of the act resulting in fatal harm is required to be of highest level. This can be gathered from the clear wording of the clause (4), namely, "If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death ......." For applicability of this clause following are the necessary requirements :-
(1) the act must be imminently dangerous;
(2) the act must be of extraordinary recklessness;
(3) the danger to human life must be so imminent; and (5) the imminence should be such that it will in all probability cause death or cause such bodily injury as is likely to cause death.
The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon nature of the act and its evident risk to human life. The danger threatened must be to human life. It must be an act in which death of human is certain or almost so, and it would cause surprise if the result was otherwise. Moreover, the danger must not only be of certain or almost certain death, but of a death which is near and may be counted by days or may be hours. Thus, it can be seen that unlike the preceding three clauses of Section 300 clause (4) revolves round the knowledge of the accused and intention of the accused is of no relevance to attract provisions of this clause.
14. We may, therefore, at this juncture refer to the provisions of Section 299 of the IPC and in particular the last part of that section and examine the said provisions vis-a-vis clause
(4) of section as both these provisions are totally based on the knowledge of the offender of the consequences of his act.
Section 299 of the IPC deals with culpable homicide. It reads as under:-
"Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
A comparative table of Section 299 and Section 300 has been aptly given in the book of Indian Penal Code by Ratanlal & Dhirajlal 28th edition - 1999 on page 364, which is as follows :-
This comparative table is quite helpful in appreciating the points of distinction between the two offences viz. offence made punishable u/S. 302 of the IPC and offence made punishable u/S. 304 II of the IPC.
Clause (c) of Section 299 and clause (4) of Section 300 in the table given above, as can be seen, are put under the head of knowledge. It is further explained by the learned authors as under:-
"Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death."
15. From aforesaid discussion, it will be sufficient to say that normally clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of such offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. In a given case this clause can be made applicable to a case wherein the offending act is done against a particular person. As against that the case would fall in the category of "culpable homicide not amounting to murder" if all the ingredients of clause (4) of section 300 of the IPC are absent and where evidence establishes that the act by which the death is caused is done with the knowledge that the act is likely to cause death. Thus it can be seen that the knowledge of the offender is closely connected with the probable result of his act. The probability in the two cases relates to the causing of death, but in one case it is comparatively not so strong as in the other. Similarly the act is in the two cases dangerous, but if it is imminently dangerous, it is prima facie murder and not merely culpable homicide.
16. In Maniben Vs. State of Gujarat (supra), the case of the prosecution was that the deceased with her youngest daughter had gone to fetch water, and while she was returning with waterpot on her head and carrying her youngest daughter with the other hand, the accused came and throw burning wick made of rags on the deceased and thereby set fire to the terylene clothe put on by the deceased. The deceased brought down her minor daughter whom she was carrying and managed to reach her house with the burn injuries. In these set of facts, the Supreme Court on the basis of the evidence on record, held that it was a case not covered under Clause Fourthly of Section 300 IPC, but was covered under Section 304, Part-II IPC as there was evidence on record to prove and establish that the action of the accused of throwing the burning wick made of rags was preceded by quarrel between the deceased and the accused-appellant and it could not be said that the accused had an intention that such action on his part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased.
17. In Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat (supra), the Court on the basis of the evidence on record took the view that the accused had no preemption to kill the deceased or cause any bodily harm or injury to the deceased. The Supreme Court noticed that everything had happened on the spur of the moment and the accused must have lost control on some provocative utterances of the deceased. Under such circumstances, the Supreme Court held that the case was not one falling under Section 300, Clause Thirdly but was one falling under Section 304, Part-II of IPC.
18. On consideration of the entire materials on record, we partly allow the appeal by altering the conviction of the accused- appellant from Section 302 IPC to one under Section 304, Part-II of IPC and modify the order of conviction and consequent sentence dated 28th June, 2007, passed by the learned Additional Sessions Judge, Fifth Fast Track Court, Vyara, Surat in Sessions Case No. 72 of 2006. We have been informed by the learned counsel appearing for the appellant that the appellant has remained in jail for more than six years and is a lady. In such circumstances, we feel that imposition of sentence of imprisonment already undergone would meet the ends of justice. Her sentence of life imprisonment is, therefore, set aside and instead accused-appellant is sentenced to suffer imprisonment already undergone.
19. Since the appellant is sentenced to suffer imprisonment already undergone, the Prison Authorities are directed to set her at liberty forthwith, if not required for any other purpose. Fine, if paid, be refunded.
(Bhaskar Bhattacharya, C.J.) */Mohandas (J.B. Pardiwala, J.)