- (1.)The state has filed this appeal since the third learned judge of the High Court to whom the case had been referred under section 392 of the Criminal Procedure code, in view of difference of opinion between the two learned judges hearing the criminal appeal, held that the respondent - accused cannot be convicted of murder or for culpable homicide not amounting to murder. The criminal appeal was allowed by the impugned order of the High Court following the opinion given by the third learned judge.
(2.)The respondent and the deceased were husband and wife. The marriage between them had been solemnised nearly 16 years before the death of the wife. They had three children. There were frequent quarrels between them on account of the respondent's association with another lady who was living in the neighbourhood. On 30th May, 1988 there was a quarrel between husband and wife, she was kicked and given beating by the husband. According to the prosecution the husband lifted her thereafter since she had become unconscious and he carried her to nearby land, doused her with kerosene and set her ablaze. She died due to burns. P. W. 1, the brother of the deceased reported the matter to the police wherein he expressed the opinion that his sister had committed suicide. The case was sought to be proved against the respondent on the basis of circumstantial evidence. The court of sessions convicted respondent under section 302 of the Indian Penal code and sentenced him to undergo life imprisonment.
(3.)The appeal of respondent before the high Court was heard by a division bench. The two learned judges found that the respondent throttled the deceased and when she fell unconscious, he carried her to the by lane under the impression that she was dead, doused her with kerosene and set her ablaze. Up to this there was no difference of opinion between the two learned judges. There was, however, difference of opinion regarding the nature of offence committed by the respondent. One of the learned judges was of the view that the respondent had been rightly convicted and sentenced by the trial court. The other learned judge was of the view that the offence committed was only culpable homicide not amounting to murder, therefore, the respondent could be convicted under section 304, part II of the Indian Penal Code and sentenced to imprisonment for 5 years. Under these circumstances, the case was heard by a third learned judge having been referred to the learned judge under section 392 of Criminal Procedure Code.