R.S. Chauhan, J.
1. The homicidal death of Suman Bai within four years of her marriage, the existence of two dying declarations, the conviction of the appellant, vide judgment dated 20.8.2004 passed by the Additional Sessions Judge No. 2 (Fast Track) Kota, has brought the appellant before this Court. The learned Trial Judge has convicted the appellant for offence under Section 302 IPC and has sentenced him to life imprisonment and has imposed a fine of Rs. 500/- and to further undergo a simple imprisonment of fifteen days in default thereof.
2. In brief, the prosecution case is that on 7.3.2004 at 2:35 AM, the Assistant Sub-Inspector, Babulal (PW. 5) recorded the statement of deceased Suman Bai in the Burn-Ward of MBS Hospital, Kota. In her statement, she claimed that 'about four years ago, she had a court marriage with the appellant. On 6.3.2004, around 7'0 clock, the appellant came her and demanded some money in order to go and see a movie. Since she did not have any money, she refused to give him any money. Suddenly, the appellant started beating her with fist and kicks and picked up a kerosene can and poured it over her. He immediately lit a match and ignited her. She shouted for help whereupon Prem Chand and other neighbours rushed inside the room.' On the basis of this statement, initially the police recorded a formal FIR, FIR No. 99/04, for offence under Section 307 IPC. However, subsequently upon the death of Suman Bai, the offence was converted from one under Section 307 to under Section 302 IPC. During the course of investigation, the appellant was arrested. In order to prove its case, the prosecution examined five witnesses and submitted number of documents. The appellant did not examine any witness in defence. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the appellant as aforementioned. Hence, this jail appeal before this Court.
3. Since this is an appeal from jail, vide order dated 1.8.2006, this Court had appointed Ms. Sweety Mishra as Amicus Curiae in this case. Ms. Mishra has raised three contentions before this Court: firstly, the statement of the deceased was recorded twice : Firstly by the police and secondly by the Magistrate, Tirupati Kumar Gupta (PW, 3). According to the counsel, there are glaring contradictions between the two dying declarations. Therefore, the dying declarations cannot be believed. Secondly, the entire conviction has been based only on, the dying declarations as both Prem Chand (PW. 1) and Onkar Lal (PW. 2) have turned hostile and have not supported the case of the prosecution. Thirdly, According to the prosecution, the appellant had sustained injuries on his leg and on his hand and was hospitalized for three days immediately after the alleged incident. Both, according to the appellant's statements and according to Prem Chand's (PW. 1) testimony, the appellant had tried to rescue his wife while she was burning. Therefore, even if the prosecution case is taken to be true, the appellant did not have the intention to cause the death of the deceased. Hence, the offence does not travel beyond Section 304 Part II of IPC.
4. On the other-hand, Mr. Ashwini Kumar Sharma, learned Public Prosecutor for the State has strenuously argued that both the dying declarations do not suffer from great contradictions. Secondly, according to the dying declaration it is the appellant who had poured the kerosene and had burnt the deceased. Therefore, he has rightly been convicted for offence under Section 302 IPC. Thus, he has supported the impugned judgment.
We have heard both the learned Counsel for the parties, have examined the record and have perused the impugned judgment.
5. Admittedly, Babulal (PW. 5) recorded the statement given by the deceased . under Section 161 which was treated as her first dying declaration. According to the said statement, the occurrence occurred around 7'o clock in the evening. However, the second dying declaration was recorded by Tirupati Kumar Gupta (PW. 3), the Judicial Magistrate. According to this dying declaration, the incident had taken place around 1'o clock in the dead of the night. Thus, there is a minor contradiction between the two dying declarations with regard to the time of the alleged occurrence. However, considering the trauma suffered by deceased, the contradiction about the time of the occurrence is not so important as to be fatal to the prosecution. Moreover, according to the first dying declaration, the appellant was not drunk when he demanded the money. But, according to the second one, he was drunk. However, even this is a minor contradiction.
6. A holistic appreciation of the evidence available on record reveals that according to Prem Chand (PW. 1) and according to the appellant's statement given under Section 313 of Cr.P.C, both of them were watching TV when they heard the hue and cry of the deceased, Suman Bai. Both of them rushed into the room and tried to douse the flames and to rescue the deceased. In that process, both of them received injuries on their bodies. According to the arrest memo (Ex. P. 11), at the time of his arrest, the appellant had burnt injuries below the knee of his right leg, on his left hand and on his face. According to the Investigating Officer, Babulal (PW. 5), the appellant was hospitalized for two to three days after the alleged incident. Considering this evidence and considering the dying declarations which co-exist a strong possibility does exist that the appellant under the influence of liquor, in an inebriated condition, demanded for money from his wife and when she refused, in a sudden loss of temper, the appellant poured the kerosene and tried to burn her. However, once the flames lept in the air, he tried his level best to save the wife. Thus, the appellant did not intend to cause the injuries to, the deceased by which she subsequently died.
7. The present case is squarely covered by the judgment delivered in the case of Kalu Ram v. State of Rajasthan : AIR2000SC3630 , wherein the appellant, Kalu Ram had tried to save his wife, once she had started burning. The Hon'ble Supreme Court had held as under:
The conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. All that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, the offence has to be brought down from first degree murder to culpable homicide not amounting to murder. Therefore, conviction is altered from Section 302 IPC to Section 304 Part II IPC.
8. For these reasons we partly allow the appeal and instead of offence under Section 302 IPC, we convict the appellant under Section 304 Part II IPC. In the facts and circumstances of the case we impose a sentence of rigorous imprisonment of 7 years on the appellant. The impugned judgment of the learned trial Court stands modified as indicated above.