REPORTABLE

       IN THE SUPREME COURT OF INDIA     CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL No. 457 OF 2007      

SAYAJI HANMAT BANKAR ...   Appellant(s)

                     Versus

STATE OF MAHARASHTRA ...   Respondent(s)

J U D G M E N T

V.S.SIRPURKAR,J.

1. Challenge in this appeal is to the judgment dated  

11.8.2004 in Criminal Appeal No. 319 of 2000 passed by the  

High Court of Bombay affirming the judgment and order dated  

6.3.2000 passed by the trial court by which the appellant  

was convicted  for the  offence under  Section 302  IPC and  

sentenced to imprisonment for life and to pay a fine of Rs.  

2000/- in default to undergo further rigorous imprisonment  

for one year.

2. The brief facts leading to case are as under:

On  18.5.1998  at  about  9  p.m.,   appellant-accused  

Sayaji  Hanmat  Bankar  came  home   under  the  influence  of  

liquor and abused  his wife deceased-Suman. There was petty  

quarrel between the appellant and the deceased Suman and in  

that quarrel the appellant hit her left knee with a water  

pot made of brass  and thereafter threw a burning kerosene

lamp upon her.  At that time, she was wearing nylon sari  

which  immediately  caught  fire  and  she  was  engulfed  by  

flames. The deceased was immediately taken to the hospital  

by her parents where her dying declaration was recorded.  

The medical report of the doctor showed that the deceased  

was burnt to the extent of 70%.   A dying declaration was  

recorded. During investigation the deceased gave the above  

version.  In  her  dying  declaration,  it  has   also  been  

mentioned that the accused-appellant also tried to douse the  

fire.  It is established that he had  received burn injuries  

to the extent of 18%.

3. The trial court as well as the High Court have taken  

the view on the basis of dying declaration that the  act on  

the part of the accused showed  his intention to commit the  

murder or such bodily injury as was likely to result in her  

death.  

4. We  have  heard  Mr.  S.K.C.  Pasi,  learned  counsel  

appearing  on  behalf  of  the  appellant  and  Mr.  Shankar  

Chillarge, learned counsel appearing on behalf of the State  

and also  gone through the record.

5. In our view, from the evidence on record, it does not  

appear that the intention on the part of the accused was to  

cause death or such bodily injury as would have resulted in  

the  death of his wife.  There would be much more activity  

on the part of the accused if his intention was to commit  

the murder of his wife. It seems that there was a fight as  

soon as he came to the house under the drunken state  and in

the fight, he first hit her left knee with a water pot  and  

thereafter, threw kerosene lamp on her.  It is  obvious from  

the evidence that this was done suddenly in the heat of  

passion. If there was any intention to commit her murder, as

mentioned in  Section 299 IPC, there would have been much  

other acts like pouring kerosene on the deceased etc. on the  

part of the accused.

6. The High Court rejected the contention of learned  

counsel for the appellant  that this case would   fall under  

Exception 4 to Section 300 IPC.  It was held by the High  

Court that  this is  certainly not a case to which exception  

4 to Section 300 would get attracted but would fall under  

clause “fourth” of 300 IPC.  Exception 4 to Section 300 IPC  

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  offenders  having  taken  undue  

advantage or acted in a cruel or unusual manner”

7. It is clear from the reading of aforesaid Exception 4  

that if the act is done without premeditation in a sudden  

fight or in the heat of passion upon a sudden quarrel and if  

the offender does not take any undue advantage or act in a  

cruel  or  unusual  manner,  then   Exception  4  will  be  

attracted.

8. We  have  gone  through  the  evidence  carefully.   It  

seems that as soon as the accused entered the house, there  

appeared to be some quarrel with his wife and in that fight  

first, he threw  water pot and thereafter a kerosene lamp.  

The  burning  seems  to  be  more  out  of  the  fact  that  

unfortunately at that time,  the lady  was wearing nylon  

sari.   Had  she  not  been  wearing  a  nylon  sari, it  is

difficult to imagine how she could have been burnt to the  

extent of 70%.  In our view this was a case which clearly  

fall under Exception 4 of Section 300 IPC since there was  

sudden fight. There was no premeditation either. Therefore  

the  accused-appellant  is  liable  to  be  convicted  for  the  

offence punishable under Section 304 Part-I.

9. We,  accordingly, alter the conviction of the accused  

from Section 302 IPC to Section  304 Part-I IPC and sentence  

him to the period already undergone by him.  The sentence of  

fine remains the same.

10. It  is  submitted  by  the  learned  counsel  for  the  

appellant  that  the  appellant  was  taken  into  custody  on  

29.5.1998 and was never granted bail by the High Court and  

he has already undergone 13 years of sentence.   

11. In that view of the matter, the accused-appellant is  

directed to be released from the  jail forthwith unless he  

is required in any other case.

12. The appeal is allowed partly to the extent  indicated  

above.

              ...................J.                                  (V.S.SIRPURKAR)

             ....................J.                          (T.S.THAKUR)

New Delhi, July 13, 2011.