Gujarat High Court
Babubhai @ Bhaliyo Somabhai Vankar vs State Of Gujarat on 17 November, 2021
Author: A. J. Desai
Bench: A.J.Desai, Samir J. Dave
R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO.489 of 2013
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE A. J. DESAI Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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BABUBHAI @ BHALIYO SOMABHAI VANKAR
Versus
STATE OF GUJARAT
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Appearance :
MR PRATIK B BAROT for the Appellant.
MR DHARMESH DEVNANI, APP for the Respondent.
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 17/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A. J. DESAI) Page 1 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021
1. By way of the present appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short), the appellant - original accused has challenged the judgement and order of conviction dated 28.12.2012 passed by learned 8th (Adhoc) Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No.3 of 2012 by which, the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment and has been imposed a fine of Rs.10,000/- and in default of payment of fine, to undergo one year simple imprisonment as well as under Section 452 of the Indian Penal Code and has been sentenced to undergo one year rigorous imprisonment and has been imposed a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment of three months.
2. The appeal came to be admitted vide oral order dated 18.4.2013. The Registry has received the records and proceedings along with paper-book from the learned Trial Court and the same has been placed before us for perusal.
3. The short facts emerge from the record are as under :-
3.1 That on 29.9.2011, one Laliben @ Lilaben wife of Punjabhai Mulabhai Vankar, resident of Samli Limda Faliyu, Tal.
Godhra alleged that at around 10 O'clock in the morning, when she was all alone in her house, the appellant who is distance related to her in-laws entered her house in a drunken condition and when she raised questions about his conduct about entering the house in such condition, he got irritated and poured kerosene on her which was lying in the kitchen and set her ablaze by matchstick pursuant to which she started burning and at that time, the appellant ran Page 2 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 away from her house and when she came out of the house, her relatives tried to extinguish the fire and immediately, she was shifted to Godhra General Hospital. Upon receiving the said news, her son i.e. Jagdishbhai Punjabhai Vankar and her husband i.e. Punjabhai Mulabhai Vankar immediately reached the Hospital. At that time, the Medical Officer of General Hospital, Godhra handed over a letter to the son of the deceased, addressed by him to the Police Inspector, Godhra Town Police Station for recording of the complaint which was taken by the son of Laliben to the concerned Police Station and thereafter, PSO from Godhra Town Police Station came to the Hospital and recorded the FIR and the same was registered as FIR being I C.R. No.223 of 2011 against the appellant for the offences punishable under Sections 307, 452 and 504 of the Indian Penal Code (hereinafter referred to as 'IPC').
3.2 Upon registration of the FIR, the appellant came to be arrested on the next day i.e. 30.9.2011. On 3.10.2011, Laliben @ Lilaben wife of Punjabhai Mulabhai Vankar (hereinafter referred to as 'the deceased) succumbed to the injuries and accordingly, offence under Section 302 of the Indian Penal Code was added in the FIR.
3.3 Upon completion of investigation, charge sheet was filed before learned Magisterial Court. Since the offences are triable by learned Sessions Judge, the concerned learned Magistrate committed the case to the learned Sessions Judge.
3.4 A charge came to be framed against the appellant at Exh.2. Charges levelled against the accused are denied by the accused and therefore, the learned Trial Court proceeded with the trial. In all, 15 witnesses were examined by the prosecution to prove the case whereas the defence did not examine any witness in his support. The prosecution also produced various documents like Page 3 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 dying declaration of the deceased, P. M. Note, Inquest Panchnama, FSL Report and other relevant documents etc. Thereafter, further statement of the appellant under Section 313 of the Code was recorded. The accused denied the case put forward by the prosecution.
3.5 The learned Sessions Judge, after considering the oral as well as documentary evidence and considering the submissions advanced by learned advocates appearing for the respective parties, by the judgment dated 28.12.2012 rendered in Sessions Case No.3 of 2012 convicted the appellant as stated herein above.
3.4. Hence, this appeal.
4. Mr. Pratik Barot, learned advocate appearing for the appellant, at the outset, would submit that the appellant accused does not want to challenge his involvement in the crime but would submit that it is not a case of murder as defined under Section 299 and 300 of the IPC but the case falls under Exception 4 to Section 300 of the IPC which is treated as culpable homicide not amounting to murder and therefore, his conviction under Section 302 IPC may be modified as the one under Section 304 Part II IPC and the sentence of the appellant may be modified accordingly.
4.1 Mr. Barot would further submit that there was no intention on the part of the appellant to commit murder of the deceased since he had not entered the house of the deceased with any weapon or kerosene. However, in a spur of moment and in sudden quarrel, the appellant lost control of himself and poured the kerosene which was lying in the kitchen. By taking us through the FIR Exh.50, he would submit that the deceased herself had stated that some altercation had taken place pursuant to which the appellant lost control of himself and set her ablaze by matchstick.
Page 4 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 Similar is the version of the deceased in her dying declaration (Exh.24) which was recorded by Executive Magistrate.
4.2 By taking through the deposition of Jagdishbhai Punjabhai Vankar (P.W.9 - Exh.34) - son of the deceased, Mr. Barot would submit that even in the oral dying declaration made by the deceased before her son, the deceased had clearly stated that some altercation had taken place. Similar is the deposition of Punjabhai Mulabhai Vankar - husband of the deceased (P.W. 10 - Exh.35). He, therefore, would submit that considering the said aspect of the matter, the case would not fall under the definition of murder and would certainly fall under Exception 4 to Section 300 IPC. He would further submit that it is a culpable homicide not amounting to murder and the same would fall under Exception 4 to Section 300 IPC. He, therefore, would submit that the appeal may be allowed and the sentence of the appellant may be converted from Section 302 IPC to Section 304 (2) IPC and the sentence may be reduced accordingly as the appellant has already undergone sentence of more than 10 years.
4.3 In support of his submissions, Mr. Barot has relied upon the decisions of the Hon'ble Apex Court in the case of Govind Singh v. State of Chhattisgarh 2019 (17) SCC 812, Kalabhai v. State of Madhya Pradesh 2019 (20) SCC 502, Maniben v. State of Gujarat, 2009 (8) SCC 796 as well as in the case of State of Rajasthan v. Santosh Savita, 2013 (12) SCC 663. He would submit that in the above referred decisions, the Hon'ble Apex Court in similar type of facts has converted the sentence from Section 302 IPC to Section 304 Part II IPC and accordingly, sentence was reduced.
4.4 Mr. Barot has further submitted that the incident has taken place on 29.9.2011 whereas the deceased has succumbed to Page 5 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 the injury on 3.10.2021 i.e. after a period of 4 days and the reason mentioned in the P.M. Note is septicemic slab due to extensive body injury. He would submit that in such cases, the Hon'ble Apex Court has held that it would not be a direct result of the injury sustained by the deceased and in support of his submission, he has relied upon the decision of the Hon'ble Apex Court in the case of B. N. Kavatakar v. State of Karnataka, 1994 (Supp1) SCC 304. He, therefore, would submit that the appeal may be allowed and the conviction may accordingly be converted from Section 302 IPC to Section 304 (II) IPC.
5. On the other hand, Mr. Dharmesh Devnani, learned Additional Public Prosecutor appearing for the respondent - State has vehemently opposed this appeal and would submit that the facts and circumstances of the case are of such nature that the learned Trial Court has committed no error in convicting the present appellant for the offence punishable under Section 302 IPC. He would further submit that it is an undisputed fact that the incident had taken place at around 10 a.m. in the house of the deceased when all the family members had gone to agricultural field for cultivation and at that time, the appellant had entered the house of the deceased and he was in a drunken condition and under the influence of alcohol and within no time, he started abusing the deceased and then poured kerosene on the deceased which was lying in the house of the deceased and set her ablaze by matchstick which resulted into 91% burn injuries on the body of the deceased. He would further submit that it is an undisputed fact that the deceased herself had immediately lodged the FIR from the Hospital itself and within no time, her dying declaration was recorded by the Executive Magistrate in which she has specifically described the manner and method in which the entire incident had taken place.
Page 6 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 5.1 Mr. Devnani would further submit that there was no reason for the appellant to enter the house of the deceased where the lady was all alone. Further, when the deceased asked the appellant not to use abusive language, the appellant took charge of the entire situation and poured kerosene upon the lady who could not resist against a young man aged about 30 years. By taking us through the deposition of Jagdishbhai Punjabhai Vankar (P.W.9 - Exh.34) - son of the deceased, Mr. Devnani would submit that the deceased had also made dying declaration before her son about the manner and method in which the incident had taken place. Similar is the dying declaration of deceased before her husband as well as Executive Magistrate.
5.2 By taking us through the dying declaration (Exh.24) of the deceased recorded before Executive Magistrate - Shri Rajendrabhai Chandrakant Mahajan (P.W. 6 - Exh.22) as well as the deposition of the said Executive Magistrate, he would further submit that as per the said evidence, the appellant entered the house of the deceased in a drunken condition and poured kerosene and set her ablaze by matchstick. He, therefore, would submit that the appellant was aware that by doing the said act, there are all possibilities that the person would die and hence, the said act of the appellant would not cover under Exception 4 to Section 300 IPC.
5.3 In support of his submissions, Mr. Devnani has relied upon the decision of the Hon'ble Supreme Court in the case of Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596. By taking us through the ratio laid down by the Hon'ble Supreme Court in the above decision, particularly paragraphs 28 and 29, he would submit that the present case would not fall under any of the exceptions enumerated under Section 300 IPC wherein it is defined that culpable homicide is not Page 7 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 a murder. He would further submit that it is not a case that the present crime would fall under Exception 4 to Section 300 IPC since the incident has not taken place in a sudden fight or heat of passion upon a sudden quarrel and that the appellant has not taken any undue advantage or acted in a cruel manner or in unusual manner. He would further submit that the manner and method in which the appellant has committed the crime, the same can be treated as the appellant has taken undue advantage and has acted in a cruel manner which resulted into the death of the deceased.
5.4 Mr. Devnani has also relied upon the decision of the Hon'ble Apex Court in the case of Suraj Nagannath Jadhav v. State of Maharashtra, AIR 2020 SC 82 and would submit that the Hon'ble Apex Court has refused to accept the submission made on behalf of the appellant that there was no intention on the part of the appellant to commit murder and further held that the case would not fall under Exception 4 to Section 300 IPC. Similar is the ratio laid down by the Hon'ble Apex Court in the case of Bhagwan Tukaram Dange v. State of Maharashtra, 2014 (4) SCC 270 as well as in the case of Nagabhushan v. State of Karnataka, 2021 (5) SCC 222.
5.5 Mr. Devnani has, therefore, submitted that considering the entire facts and circumstances of the case coupled with the case law referred above, it cannot be said that the act committed by the appellant falls in clause fourthly to Section 300 IPC and the learned Trial Court has rightly convicted the appellant under Section 302 IPC and hence, the present appeal may be dismissed.
6. We have heard learned advocates appearing for the respective parties and perused the records and proceedings as well as scrutinized the oral as well as documentary evidence in detail. We have also gone through the reasons assigned by the learned Page 8 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 Trial Court.
7. As submitted by Mr. Pratik Barot, learned advocate appearing for the appellant that since the appellant does not want to challenge his involvement in the crime and seeks to alter his conviction from Section 302 IPC to 304 - II IPC, we have dealt with the case only to that extent.
8. As per the case of the prosecution, one Laliben @ Lilaben wife of Punjabhai Mulabhai Vankar, resident of Samli Limda Faliyu, Tal. Godhra lodged an FIR on 29.9.2011 with Police Inspector of Godhra Taluka Police Station alleging that at around 10 O'clock in the morning, when she was all alone in her house, the appellant who is distance related to her in-laws entered her house in a drunken condition and when she raised questions about his conduct about entering the house in such condition, he got irritated and poured kerosene on her which was lying in the kitchen and set her ablaze by matchstick pursuant to which she started burning and at that time, the appellant ran away from her house and when she came out of the house, her relatives tried to extinguish the fire and immediately, she was shifted to Godhra General Hospital. As per the deposition of Jagdishbhai Punjabhai Vankar (P.W.9 - Exh.34) - son of the deceased as well as Punjabhai Mulabhai Vankar - husband of the deceased (P.W. 10 - Exh.35), they have stated that as soon as they received the news, they immediately reached the Hospital. At that time, the Medical Officer of General Hospital, Godhra handed over a letter to the son of the deceased, addressed by him to the Police Inspector, Godhra Town Police Station for recording of the complaint which was taken by the son of the deceased to the concerned Police Station and thereafter, PSO from Godhra Town Police Station came to the Hospital and recorded the FIR and the same was registered as FIR being I C.R. No.223 of 2011 against the appellant for the offences punishable Page 9 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 under Sections 307, 452 and 504 of the Indian Penal Code. Thereafter, immediately on the next day i.e. 30.9.2011, the appellant came to be arrested. On 3.10.2011, the deceased succumbed to the injuries and, therefore, offence punishbale under Section 302 IPC was added in the FIR.
9. We have also gone through the dying declaration (Exh.24) of the deceased recorded before Executive Magistrate at around 13.00 to 14.00 hours on 29.9.2011 itself i.e. within couple of hours from the occurrence of incident as well as her admission in the Hospital wherein she has categorically described the incident as to in which manner, the same has happened. She has stated in her dying declaration that when the appellant had entered her house wherein she was all alone, the appellant was under the influence of alcohol and started abusing her with filthy language and subsequently, poured kerosene and set her ablaze by matchstick. Similar is the dying declaration of the deceased before her son - Jagdish Vankar and her husband - Punjabhai Vankar who have also stated same thing in their depositions. It appears from reading of all the dying declarations that the lady was in helpless condition all alone in her house and was attacked by the appellant and poured kerosene and set her ablaze by matchstick. Nothing has come on record either in the depositions of any of the witnesses or in the further statement of the appellant that there was sudden fight between the deceased and the appellant and in the heat of passion and that too upon a sudden quarrel, the incident has happened. Therefore, in our opinion, the case would not fall in clause fourthly of Section 300 IPC.
10. As far as the decision of the Hon'ble Apex Court in the case of Govind Singh v. State of Chhattisgarh (Supra) relied upon by learned advocate Mr. Barot is concerned, the facts of the said case are quite different than the case on hand. In the said Page 10 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 decision, there was quarrel between the father and daughter as to where the bulb is to be put on and in sudden quarrel and in spur of the moment, the accused of the said case threw chimney lamp on his daughter pursuant to which she sustained burn injuries and succumbed to death and in that context, the Hon'ble Apex Court has considered the case and modified the conviction of the appellant from Section 302 IPC to 304 Part II IPC and tilted the case as culpable homicide not amounting to murder and reduced the sentence accordingly.
11. As far as other decisions relied upon by learned advocate Mr. Barot in the case of Kalabhai v. State of Madhya Pradesh, Maniben v. State of Gujarat and State of Rajasthan v. Santosh Savita (Supra) are concerned, we are of the opinion that the facts and circumstances of the case before the Hon'ble Apex Court is quite different than the facts of the present case and hence, the same cannot be made applicable to the facts and circumstances of the present case.
12. The observations made by the Hon'ble Apex Court in the case of Shatrughna Baban Meshram v. State of Maharashtra (Supra) would come into play wherein the Hon'ble Apex Court has dealt with the applicability of Sections 299 and 300 of IPC. Relevant observations made in paragraphs 28 and 29 are reproduced below :-
"28. According to clause fourthly under Section 300 of IPC, the offence may come under the category of culpable homicide amounting to murder "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 Page 11 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 injury as aforesaid".
29. The interplay between clauses of Sections 299 and 300 of the IPC was considered by this Court in State of Andhra Pradesh vs. Rayavarapu Punnayya and Another as under :-
"11. The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is "murder" or "culpable homicide"
not amounting to murder.
12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, Page 12 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section 300 A person commits Subject to certain cuplable homicide if the exceptions culpable act by which the death homicide is murder if the act is caused is done - by which the death is caused is done - INTENTION
(a) With the intention (1) With the intention of causing death; or of causing death; or
(b) With the intention (2) With the intention of causing such bodily of causing such bodily injury as is likely to injury as the offender cause death; or knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death;
or
KNOWLEDGE
(c) With the (4) With the knowledge
knowledge that the act that the act is so
is likely to cause death imminently dangerous Page 13 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such jnjury as is mentioned above.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section
300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be Page 14 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death"
mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala is an apt illustration of this point.
18. IIn Virsa Singh v. State of Punjab Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500) : (AIR p.467, para 12) "12. The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be Page 15 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons 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 the 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.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", Page 16 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 of the Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
(emphasis in original)"
13. In the case of Suraj Nagannath Jadhav v. State of Maharashtra (Supra), similar facts and circumstances were there as the appellant in the said case was in drunken condition and was under the influence of liquor, the incident had taken place. However, the submission made on behalf of the appellant to alter Page 17 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 the conviction from Section 302 IPC to Section 304 Part II IPC was negated by the Hon'ble Apex Court. Relevant observations made by Hon'ble Apex Court in paragraph 13 is reproduced below :-
"13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death."
14. Similar is the ratio laid down by the Hon'ble Apex Court in the case of Bhagwan Tukaram Dange v. State of Maharashtra (Supra). Relevant observations made in paragraph 11 is reproduced below :-
"11. Intoxication, as such, is not a defence to a criminal charge. At times, it can be considered to be a mitigating circumstance if the accused is not a habitual drinker, otherwise, it has to be considered as an aggravating circumstance. The question, as to whether the drunkenness is a defence while determining sentence, came up for consideration before this Court in Bablu alias Mubarik Hussain v. State of Rajasthan (2006) 13 SCC 116, wherein this Court held that the defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence and onus of proof about reason of intoxication, due to which the accused had become incapable of having Page 18 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 particular knowledge in forming the particular intention, is on the accused. Examining Section 85 IPC, this Court held that the evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had the intention. Court held that merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. This Court, in that case, rejected the plea of drunkenness after noticing that the crime committed was a brutal and diabolic act."
15. In the case of Nagabhushan v. State of Karnataka (Supra), the Hon'ble Apex Court has while examining the decision in the case of Kalu Ram v. State of Rajasthan, (2000) 10 SCC 324 and while relying upon the decision in the case of Santosh v. State of Maharashtra (2015) 7 SCC 641, which are quoted in paragraph 10 of the said decision, has refused to alter the conviction and sentence from Section 302 IPC to Section 304 Part II IPC. Relevant observations made in paragraph 10 is reproduced below :-
"10. Now so far as the submission on behalf of the accused that even thereafter he tried to extinguish the fire and he also sustained injuries and therefore it cannot be said that the appellant has committed an offence punishable under Section 302 IPC is concerned, at the outset, it is required to be noted that in the present case the prosecution is successful in proving that the accused - appellant herein poured kerosene on the deceased. As per dying declaration Exhibit P5, it has been proved that the deceased was set ablaze by pouring kerosene on her. The Page 19 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 act of the accused falls in clause fourthly of Section 300 IPC. It emerges from the evidence on record that the accused poured kerosene on the deceased and not only poured kerosene but also set her ablaze by the matchstick. Merely because thereafter the A1 might have tried to extinguish the fire, that will not bring the case out of clause fourthly of Section 300 IPC. A somewhat similar submission was made before this Court in the case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In the case before this Court, it was contended on behalf of the accused who poured kerosene on the deceased and set her ablaze by matchstick that thereafter they tried to save the deceased by pouring water on her and therefore it was contended on behalf of the accused that by that conduct it cannot be said that the intention of the accused was to cause death of the deceased. The aforesaid has been negated by this Court by observing in paragraphs 9 to 18 as under :-
"9. Insofar as the first contention that the appellant is not responsible for the death of deceased Saraswatibai, the defence made an attempt to contend that the fire was accidental and that the appellant tried to extinguish the fire in order to save her and in that process, he also suffered burn injuries. The prosecution has adduced cogent evidence to prove that the appellant has caused the death of deceased Saraswatibai. The accused suspected the deceased of infidelity and picking up a fight over it, he kicked her and inflicted fist-blows and further set her on fire by pouring kerosene over her person. PW 6, doctor certified that the deceased was in a fit mental condition to make the statement and PW 7, the Executive Magistrate recorded the dying declaration Ext. 1. In the said dying declaration, the deceased had categorically stated that on the date of incident, the appellant poured kerosene over her person and set her on fire. That accused poured kerosene on the deceased and set her on fire is corroborated by the oral testimony of PW 3, Page 20 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 Sindhu Sunil Ingole (sister-in-law) of the deceased. PW 1 Raju Janrao Gavai, neighbour of the deceased who accompanied the deceased to the hospital to whom the deceased is said to have made a statement about the overt act of the accused, had only stated that the deceased told him that the accused beat her and also kicked her. PW 1 had not supported the statement of the deceased in the dying declaration that the accused poured kerosene on her and set her on fire. However, the prosecution has established the guilt of the accused by Ext. 1 dying declaration and the oral evidence of the mother (PW 2) and the sister-in- law (PW 3) and the same cannot be doubted.
10. The learned counsel for the appellant contended that there was no premeditation and the appellant had poured kerosene from the lamp nearby and thereafter the appellant attempted to extinguish the fire by pouring water on her and himself getting burn injuries in the process. It was submitted that the conduct of the appellant in trying to extinguish the fire immediately after the incident would clearly show that there was no intention on the part of the appellant to commit the murder. In support of his contention, he placed reliance on the judgment of this Court in Kalu Ram v. State of Rajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] .
11. The question falling for consideration is whether the act of the accused pouring water would mitigate the offence of murder. Where the intention to kill is present, the act amounts to murder, where such an intention is absent, the act amounts to culpable homicide not amounting to murder. To determine whether the offender had the intention or not, each case must be decided on its facts and circumstances. From the facts and circumstances of the instant case, it is evident that : (i) there was a homicide, namely, the death of Saraswatibai; (ii) the deceased was set ablaze by the appellant and this act was not accidental or unintentional; and (iii) the post-mortem certificate revealed that the deceased died due to shock and septicaemia caused by 60% burn injuries. When the accused poured kerosene on the deceased from the kerosene lamp and also threw the lighted Page 21 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 matchstick on the deceased to set her on fire, he must have intended to cause the death of the deceased. As seen from the evidence of PW 5, panch witness, in the house of the appellant, kerosene lamp was prepared in an empty liquor bottle. Whether the kerosene was poured from the kerosene lamp or from the can is of no consequence. When there is clear evidence as to the act of the accused to set the deceased on fire, absence of premeditation will not reduce the offence of murder to culpable homicide not amounting to murder. Likewise, pouring of water will not mitigate the gravity of the offence.
12. After attending to nature's call, the deceased returned to the house a little late. The accused questioned her as to why she was coming late and he also suspected her fidelity. There was no provocation for the accused to pour kerosene and set her on fire. The act of pouring kerosene, though on the spur of the moment, the same was followed by lighting a matchstick and throwing it on the deceased and thereby setting her ablaze. Both the acts are intimately connected with each other and resulted in causing the death of the deceased and the act of the accused is punishable for murder.
13. Even assuming that the accused had no intention to cause the death of the deceased, the act of the accused falls under clause Fourthly of Section 300 IPC that is the act of causing injury so imminently dangerous where it will in all probability cause death. Any person of average intelligence would have the knowledge that pouring of kerosene and setting her on fire by throwing a lighted matchstick is so imminently dangerous that in all probability such an act would cause injuries causing death.
14. Insofar as the conduct of the accused in attempting to extinguish fire, placing reliance upon the judgment of this Court in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , it was contended that such conduct of the accused would bring down the offence from murder to culpable homicide not amounting to murder. In Kalu Ram Page 22 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , the accused was having two wives. The accused in a highly inebriated condition asked his wife to part with her ornaments so that he could purchase more liquor, which led to an altercation when the wife refused to do as demanded. Infuriated by the fact that his wife had failed to concede to his demands, the accused poured kerosene on her and gave her a matchbox to set herself on fire. On her failure to light the matchstick, the accused set her ablaze. But when he realised that the fire was flaring up, he threw water on her person in a desperate bid to save her. In such facts and circumstances, this Court held that the accused would not have intended to inflict the injuries which she sustained on account of the act of the accused and the conviction was altered from Section 302 IPC to Section 304 Part II IPC.
15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] cannot be applied in the instant case. The element of inebriation ought to be taken into consideration as it considerably alters the power of thinking. In the instant case, the accused was in his complete senses, knowing fully well the consequences of his act. The subsequent act of pouring water by the accused on the deceased also appears to be an attempt to cloak his guilt since he did it only when the deceased screamed for help. Therefore, it cannot be considered as a mitigating factor. An act undertaken by a person in full awareness, knowing its consequences cannot be treated on a par with an act committed by a person in a highly inebriated condition where his faculty of reason becomes blurred.
16. Within three months of her marriage, the deceased died of burn injuries. In bride burning cases, whenever the guilt of the accused is brought home beyond reasonable doubt, it is the duty of the court to deal with it sternly and award the maximum penalty prescribed by the law in order that it may operate as a deterrence to other persons from committing such offence.Page 23 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022
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17. This Court on various occasions has stressed the need for vigilance in cases where a woman dies of burn injuries within a short span of her marriage and that stern view needs to be adopted in all such cases. In Satya Narayan Tiwari v. State of U.P. [(2010) 13 SCC 689 : (2011) 2 SCC (Cri) 393] , this Court in paras 3 and 9 has held as under : (SCC pp. 692 & 693) "
3. Indian society has become a sick society. This is evident from the large number of cases coming up in this Court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in- laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become -- this is illustrated by this case.
9. Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand."
18. Upon analysis of the evidence adduced by the prosecution, the courts below recorded concurrent findings that the accused caused the death of deceased Saraswatibai and convicted the appellant. It is well settled that concurrent findings of fact cannot be interfered with unless the findings are perverse and unsupportable from the evidence on record. This view has been reiterated Page 24 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022 R/CR.A/489/2013 JUDGMENT DATED: 17/11/2021 in Dhananjay Shanker Shetty v. State of Maharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the totality of the facts and circumstances, in our view, the concurrent findings of facts recorded by the courts below are based on evidence and we see no infirmity in the impugned judgment warranting interference". Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC."
16. Considering the above ratio laid down by the Hon'ble Apex Court and for the reasons stated above, we are of the considered opinion that the submission made on behalf of the appellant to alter the conviction from Section 302 IPC to Section 304 Part II IPC cannot be accepted. We are in complete agreement with the reasons assigned and conclusion reached by the learned Trial Court in the impugned judgment and order of conviction. Hence, the present appeal fails and is accordingly dismissed.
Registry is directed to send back the Records and Proceedings to the concerned Court forthwith.
Sd/-
(A. J. DESAI, J) Sd/-
(SAMIR J. DAVE,J) SAVARIYA Page 25 of 25 Downloaded on : Wed Jan 12 01:23:06 IST 2022