Madras High Court
Selvaraj vs State Through on 5 October, 2021
Author: V.Bharathidasan
Bench: V.Bharathidasan, R. Pongiappan
Crl.A.(MD)No.336 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.10.2021
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HON'BLE MR.JUSTICE R. PONGIAPPAN
Criminal Appeal (MD) No.336 of 2018
Selvaraj ... Appellant/Sole Accused
-vs-
State through
The Inspector of Police,
Palavur Police Station,
Tirunelveli District.
(Crime No.80 of 2007) ... Respondent/Complainant
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, to call for records pertaining to conviction and sentence, dated
07.04.2016, passed in S.C.No.43 of 2008, by the learned I Additional
District and Sessions Judge, Tirunelveli.
For Appellant : Mr.R.Alagumani
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis/
Crl.A.(MD)No.336 of 2018
JUDGMENT
(Judgment of the Court was made by R.PONGIAPPAN, J.) This appeal is directed against the conviction and sentence dated 07.04.2016, made in S.C.No.43 of 2008, on the file of the I Additional District and Sessions Judge, Tirunelveli.
2.The appellant is the sole accused. He stood charged for the offence punishable under Section 302 I.P.C. After full-fledged trial, the learned I Additional District and Sessions Judge, Tirunelveli, came to the conclusion that the appellant/accused is guilty under Section 302 I.P.C., convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one year.
3.Dissatisfying with the said conviction and sentence, the appellant/accused is before this Court with this appeal.
4.The relevant facts of the case, which gave rise to filing of this appeal are necessary to be recapitulated for the disposal of this appeal.
(i) P.W.1 – Ravishankar is the brother of the deceased Paarvathi.
P.W.2 is the mother of the deceased. The accused Selvaraj is the husband of the deceased. After the marriage, the accused regularly came in a drunken 2/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 mood and made a quarrel with the deceased. On 04.06.2007, while at the time, the deceased quarrelled with his wife, the same has been seen by one Malakkiyas [P.W.3], who is the neighbour of the deceased, and thereafter, he informed the same to P.W.2, at that time, P.W.1 was also present there along with P.W.2. After hearing the information from the said Malakkiyas, both P.W.1 and P.W.2 along with one Selvi [P.W.4] rushed to the house of the accused and by following them, the said Malakkiyas also went to the house of the accused. While at the time they were nearing the compound wall, they heard a hue and cry of the deceased Paarvathi. Further, they heard the words ''Njitapy;iy nrj;J Ngh''. Immediately, after hearing the same, all were rushed to the Kitchen, wherein the fire was ablaze on the body of the said Paarvathi. After seeing the same, all of them poured water on the deceased and afterwards, by using the Van, which belongs to P.W.6 – Ramachandran, P.W.1 and P.W.2 admitted the deceased in Asari Pallam Hospital, during such time, the accused Selvaraj was also present there.
(ii) In the Hospital, P.W.7 – Dr.Mary Mala, on the same day, around 10.25 p.m., examined the deceased Paarvathi and admitted her as Inpatient. According to her, the deceased sustained 40% burn injuries. In the meantime, after admitting the deceased in the Hospital, P.W.1 went to the Police Station and lodged a complaint before P.W.13 – Vinu under Ex.P.1. 3/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018
(iii) P.W.13 – Vinu, the then Head Constable, Thisayanvilai Police Station, on 05.06.2007, received the said complaint and registered a case against the accused in Crime No.80 of 2007 under Section 307 I.P.C. The printed F.I.R. was marked as Ex.P.9. After registering the case as above, he forwarded a copy of the F.I.R. to P.W.14 - Dheepu, Inspector of Police, for investigation.
(iv) P.W.14 – Dheepu, the then Inspector of Police, Valliyur Police Station, on receipt of the copy of the F.I.R., took up the same for investigation. On the same day, around 04.30 a.m., he visited the Hospital, wherein, the deceased was admitted as Inpatient and recorded the statement from the injured. He examined P.W.1 and P.W.2 and recorded their statements. He made arrangements for recording the dying declaration from the injured. In this regard, P.W.12 – Laxmanan, the learned Judicial Magistrate, Nagercoil, on 05.06.2007, received a requisition from the Sub- Inspector of Police and on receipt of the same, on the same day, around 04.15 p.m., he visited the Hospital and after observing all the formalities, which are necessary for recording the dying declaration, recorded the dying declaration from the deceased Paarvathi. The dying declaration recorded by P.W.12 was marked as Ex.P.8. The requisition letter given by the Sub- Inspector of Police was marked as Ex.P.7.
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(v) In continuation of investigation, on the same day, around 08.00 a.m., P.W.14 visited the scene of occurrence and in the presence of P.W.10 – Anantharajan and one Sri Krishna Perumal, he prepared an Observation Mahazar under Ex.P.5. He drew the rough sketch and the same was marked as Ex.P.11. From the scene of occurrence, in the presence of the same witnesses, he recovered a green colour Plastic Cane with one litre kerosene [M.O.1] and a Match box [M.O.2] under the cover of Mahazar Ex.P.6. He examined the witnesses and recorded their statements. On the same day, around 11.30 a.m., in Vilakku Road, near Kannan Kulam, in the presence of one Manikandan and Sudalai Mani, he arrested the accused and recorded his confession statement. On the same day, around 13.30 hours, he made arrangements for sending the accused to remand. Thereafter, since he got transferred, he handed over the case records to P.W.15 – Subramanian, for further investigation.
(vi) P.W.15 – Subramanian, the then Inspector of Police continued the investigation and on 12.06.2007, around 17.15 hours, he received death intimation from the Hospital authorities. The death intimation was marked as Ex.P.2. Immediately, after receipt of the said intimation, he altered the Section of law from 307 I.P.C. to 302 I.P.C. The Alteration Report prepared by him was marked as Ex.P.12. On 13.06.2007, around 07.00 a.m., he held 5/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 inquest and prepared an Inquest Report under Ex.P.13. After inquest, he sent a requisition to the Hospital authorities for conducting autopsy over the dead body of the deceased Paarvathi.
(vii) In this regard, after receipt of the requisition given by P.W.15, P.W.9 – Dr.Velmurugan conducted autopsy and found the following injuries:-
''Infected epidermo dermal burns seen over the face, front of chest, front of abdomen, back outer aspect of right gluteal region, both upper limbs and lower half of front of right thigh, partial singeing of frontal scalp hair, eyebrows, eyelashes and axillary hair noted. Peeling of skin noted over the burnt area. Base of the burnt area is red in colour and covered with infected pus materials.'' He issued a Postmortem report under Ex.P.4 stating that the deceased would appear to have died due of burns and its complication.
(viii) In continuation of investigation, P.W.15 collected the Postmortem report from the Doctor and recorded his statement. After concluding the investigation, he came to the positive conclusion that the 6/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 accused is liable to be convicted under Section 302 I.P.C. He filed a final report accordingly.
5.From the above materials, the trial Court framed charge under Section 302 I.P.C. The accused denied the same and opted for trial. Hence, he was put on trial.
6.During the time of trial, in order to prove their case, on the side of the prosecution, 15 witnesses have been examined as P.W.1 to P.W.15 and 13 documents were marked as Exs.P.1 to P.13.
(i) Out of the said witnesses, P.W.1 – Ravi Shankar is the brother of the deceased Paarvathi. He has spoken about the occurrence as before 10 years from the date of occurrence, the marriage between the accused and the deceased was solemnized and from the date on which, the marriage was solemnized, the accused regularly came to his house in a drunken mood and made quarrel with the deceased. In view of the above, he arranged for a rental house, which is situated near to his house, wherein also, both the deceased and the accused are having some problems. On 04.06.2007 one Malakkiyas informed to his mother as there was a quarrel between the accused and the deceased and after hearing the same, he along with his mother went to the accused house, during such time, they heard words as 7/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 'INah KiwNah vd;W Njitapy;iy nrj;J Ngh'. While at the time, they saw fire was ablaze on the body of the deceased Paarvathi and after seeing the same, they poured water on the body of the deceased and after admitting the deceased in the Hospital, he went to the Police Station and lodged a complaint [Ex.P.1].
(ii) P.W.2 – Thiraviya Kani is the mother of the deceased. She gave evidence as after knowing the occurrence, she made arrangements for admitting the deceased in the Hospital. After giving the said evidence, she had not given any evidence in support of the prosecution, hence, she was treated as hostile witness.
(iii) P.W.3 – Malakkiyas has spoken about the occurrence as on 04.06.2007 after seeing the quarrel between the deceased and the accused, he informed the same to P.W.2.
(iv) P.W.4 – Selvi and P.W.5 – Tamilarasan, who are the neighbours of the deceased, did not give any evidence in support of the case of prosecution, hence, they were treated as hostile witnesses.
(v) P.W.6 – Ramachandran, Van driver, gave evidence as on 04.06.2007 around 10.30 p.m., after receipt of the information about the occurrence, he went to the occurrence place and after picking up the deceased along with her mother, brother and the accused, he went to the Hospital and admitted the deceased as Inpatient. 8/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018
(vi) P.W.7 – Dr.Mary Mala attached to the Government Hospital, Kanniyakumari, gave evidence as on 04.06.2007 around 10.25 p.m., the deceased was brought by her husband/accused for treatment. She has further stated that during such time, the deceased has stated before her as her husband on the same day around 07.00 p.m. set fire on her.
(vii) P.W.8 – Jeyapal, who is also a Doctor attached to the same Hospital, gave evidence in respect of death of the deceased as on 12.06.2007 around 05.15 p.m., in spite of necessary treatment given to the deceased, she died.
(viii) P.W.9 – Velmurugan, who was also one of the Doctors attached to the same Hosptial, has spoken about the autopsy conducted over the dead body of the deceased Paarvathi.
(ix) P.W.10 – Anantharajan, who is the attesting witness to the Observation Mahazar prepared by the Investigation Officer, gave evidence as the Observation Mahazar [Ex.P.5] and the Rough Sketch [Ex.P.11] were prepared in his presence. He has further stated that the Investigation Officer in this case recovered a green colour plastic cane with one litre kerosene [M.O.1] and Match Box [M.O.1].
(x) P.W.11 – Perumal, who is working as Wireman in the Tamil Nadu Electricity Board, gave evidence as on the day of occurrence, there was no power cut in the occurrence place.
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(xi) P.W.12 – Laxmanan, the then learned Judicial Magistrate, Nagercoil, has spoken about the receipt of requisition from the Sub- Inspector of Police for recording the dying declaration from the deceased and about the recording of dying declaration [Ex.P.8] from her.
(xii) P.W.13 – Vinu, P.W.14 – Dheepu and P.W.15 – Subramanian, who are the Police Officers, have spoken about the registration of the case, investigation and about the filing of final report.
7.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness or mark any document on his side.
8.I have heard Mr.R.Alagumani, learned counsel appearing for the appellant and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondent Police.
9.It is the submission made by the learned counsel appearing for the appellant that the evidence given by the prosecution witnesses in respect of the occurrence are having lot of contradictions. The evidence given by P.W.2 would create a doubt about the presence of P.W.1 in the occurrence place. Further, the dying declaration recorded from the deceased is not in 10/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 accordance with the verdict of various Courts. According to him, the prosecution has not proved their case beyond reasonable doubt and therefore, it should be necessary to set aside the conviction and sentence imposed upon the appellant.
10.Per contra, the learned Additional Public Prosecutor appearing for the respondent Police would contend that the sole dying declaration, which has been marked as Ex.P.8, alone is sufficient to accept the case of prosecution. In otherwise, the other lapses found in the case of prosecution cannot be taken into account for deciding this appeal.
11.I have considered the rival submissions made by the learned counsel appearing on either side and perused the materials available on record.
12.Initially, on going through the evidence given by P.W.1, it appears that when his mother [P.W.2] went to the occurrence place, he was accompanying with her. On the other hand, before treating her as hostile witness, P.W.2 gave evidence as, during the time of occurrence, neither her husband nor her son was available in the occurrence place. According to her, after hearing the news, she along with some other ladies went to the 11/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 occurrence place and after seeing the injured, they made arrangements for admitting the injured in the hospital. She has specifically stated that she did not know under what circumstance the fire was ablaze on the body of the deceased Paarvathi. Therefore, the evidence given by P.W.2 creates a doubt whether P.W.1 was present at the time of occurrence in the occurrence place. On that score, being the reason that the presence of P.W.1 in the occurrence place becomes doubtful, the occurrence narrated by him in the complaint also becomes doubtful. Apart from that, the eye-witnesses cited by the prosecution are all not supported the case of prosecution and thereby, after getting leave from the Court, they were treated as hostile witnesses.
13.Now, on considering the submission made by the learned Additional Public Prosecutor with the relevant records, it seems that, before the trial Court, the dying declaration recorded by P.W.12 was marked as Ex.P.8. A careful perusal of the said dying declaration, it would appear that while at the time of recording the said statement, no certificate had been obtained from the Doctor as the injured was in fit state of mind for giving dying declaration. Further, the learned Magistrate has not stated about his subjective satisfaction as the patient was conscious at the time of recording the statement.
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14.However, it would appear that the said statement given by the deceased has been recorded on 05.06.2007 and thereafter, only on 12.06.2007 at 05.15 p.m., the death has occurred to her. Further, it is the evidence given by P.W.7 - Doctor, who admitted the injured in the Hospital as, at the time of admitting the injured in the Hospital on 04.06.2007, she sustained 40% burn injuries. Therefore, it is apparent and probable that when at the time of admitting the deceased as Inpatient in the Hospital and at the time the learned Magistrate recorded the dyeing declaration, the deceased was found conscious and she was having fit disposing state of mind for giving dying declaration. In otherwise, in the above said circumstances, because of the reason that the learned Judicial Magistrate, Nagercoil, has not followed the prescribed procedure, we cannot come to the conclusion that the entire prosecution case as false one.
15.Further, on going through the dying declaration, it appears that the learned Judicial Magistrate, Nagercoil, had mentioned the name of the Doctor, who identified the injured and about the questions, which were put to the deceased. Therefore, in our considered view, the dying declaration recorded by the learned Judicial Magistrate has to be taken as substantial evidence to decide the issue in this appeal. In the said declaration, the deceased had specifically stated as due to the reason that she has not given money to the accused, he poured kerosene and set fire on her. On other 13/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 hand, P.W.6 Van driver, who brought the deceased to the Hospital, gave evidence as, while at the time of admitting the deceased in the Hospital, the accused was also found available with them. More than that, P.W.7 Doctor, who admitted the deceased in the Hospital, has also stated that the injured was brought to the Hospital by her husband/accused. In the said situation, if really, the case of the prosecution is true one, it is not necessary for the accused to admit the injured in the Hospital. Therefore, the said facts found in the evidence given by those witnesses would reveal the fact that only by sudden provocation, the accused poured kerosene on the body of the deceased and set fire on her.
16.In this occasion, it would be necessary to extract below the relevant portions of the judgment rendered by this Court in Crl.A.(MD)No. 310 of 2018, dated 30.09.2021 [Nagendran Vs. The Inspector of Police, Town Police Station, Pudukkottai], wherein this Court while at the time of distinguishing Sections 299, 300, 304 (i) and (ii) I.P.C., has held as follows:-
''15.Section 299 of IPC, deals with culpable homicide, which reads as follows:
"299. Culpable homicide.—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 14/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 act to cause death, commits the offence of culpable homicide.
Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.—Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.—The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
(illustrations are omitted)
16.Section 299 of IPC, has three limbs. The first limb speaks about the intention of causing death. The second limb speaks about the intention of causing such bodily injury as is likely to cause death. The third limb speaks about the knowledge of the offender that his act is likely to cause death. If the act of the offender falls in any one of the three limbs, then it will amount to culpable homicide.
17.Section 300 of IPC, deals with murder, which reads as follows:
15/29
https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 "300. Murder. —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.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done 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— 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.
(illustrations are omitted) Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and 16/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing 17/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 more harm than is necessary for the purpose of such defence.
Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
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 offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
18.Section 300 IPC, contains four limbs.
(i) The first limb deals with the intention of causing death.
(ii) The second limb deals with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is 18/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 caused.
(iii) The third limb deals 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.
(iv) The fourth limb deals with the knowledge that the act is so imminently dangerous 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 injury as is mentioned above.
19.Section 300 IPC also contains five exceptions. A culpable homicide would amount to murder, if the act of the accused falls in any one of the four limbs of Section 300 IPC and it does not falls in any of the general exceptions to Section 300 IPC. If the act of the accused falls in any one of the four limbs of Section 300 IPC and it falls in any one of the general exceptions contained in Section 300 IPC then the act of the accused will amount to culpable homicide not amounting to murder. If the act of the accused falls under the category of murder, he will be punished under Section 302 IPC and if the act of the accused amounts to culpable homicide not amounting to murder, then he will be punished under Section 304 IPC.
20.Let us now examine the circumstances under which, the act of the accused will amount to murder or culpable homicide not amounting to murder, which incurs lesser punishment.
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21.The first limb of Section 299 IPC namely intention to cause death corresponds to first limb of Section 300 IPC, which speaks about intention to cause death. To find out whether the accused has intention to cause death of a person, Court can infer from various circumstance like the motive, gravity of injuries, weapon used by the accused for committing the act etc., Based on the available evidence, if the Court comes to the conclusion that the accused has the intention to cause death of the deceased, then it amounts to murder and the accused is liable to be punished under Section 302 IPC.
22.The second limb of Section 299 IPC, deals with the intention of the accused to cause such bodily injuries as is likely to cause death, corresponds to the second and third limb of Section 300 IPC. These limbs deals with the intention of the accused to cause bodily injuries.
23.The second limb of Section 300 IPC, speaks about the intention of causing such a bodily injury with a knowledge that, the particular victim has a specific health issue and that any injury caused to him is likely to cause death of the person, however that injury may not likely to cause the death of a person having ordinary health condition. If the accused caused any injury fully aware of the fact that the deceased is having a peculiar health issue, and causing such injury is likely to cause his death, and is resulted into death, then his act amounts to murder.
24.The third limb of Section 300 IPC, speaks about 20/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 the intention of the accused to cause bodily injury and the intended injury to be inflicted is sufficient in the ordinary course of nature to cause death.
25.The fine distinction between the second limb of Section 299 IPC and the third limb of Section 300 IPC is that the second limb of Section 299 IPC deals with injury likely to cause death, whereas the third limb of Section 300 IPC speaks that the intended injury to be inflicted is sufficient in the ordinary course of nature to cause death. The third limb of Section 300 IPC, does not speak about the resulted injury but it only speaks about the injury intended to be inflicted by the accused.
26.To bring the act of the accused under the third limb of Section 300 IPC, it should be proved that the injury inflicted is sufficient to cause death in the ordinary course of nature, and in addition to that the injury found to be present was the injury that was intended to be inflicted by the accused.
27.The Hon'ble Supreme Court in Virsa Singh Vs. State of Punjab reported in AIR 1956 SC 465 has held in para 10 has follows:
"10. Once that is found, the enquiry shifts to the next clause-
"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with 21/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining " and the bodily injury intended to be inflicted "
is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention."
28.In short, to bring the act under third limb of Section 300 IPC, the prosecution must establish that a bodily injury is present, the nature of injury sustained by the deceased and it must be proved that there was an intention to cause that particular bodily injury and it is not 22/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 intentional or some other kind of injury was intended. Finally, the injury caused by the accused is sufficient to cause death of a person in the ordinary course of nature. Once the above said four elements are established by the prosecution, the offence is murder, as it will fall under third limb of Section 300.
29.The third limb of Section 299 (b) IPC corresponds to the fourth limb of Section 300 IPC. These provisions speak about the knowledge of the accused. Both the provisions speaks about the knowledge and also the bodily injury which is likely to cause death. However the distinction between both the limbs is the degree of knowledge and also the imminent dangerous nature of the act that in all probability cause death or such bodily injury caused by the accused is likely to cause death without any excuse of incurring the risk of causing death or such injury.
30.To bring the act of the accused under the fourth limb of Section 300 IPC, it should be established that the accused is aware of the consequences of his act and the consequence is either imminently dangerous to life or bodily injury which is likely to cause death. The degree of knowledge makes the difference between the third limb of Section 299 IPC and the fourth limb of Section 300 IPC. Further to bring the act under the fourth limb of Section 300 IPC, it should be proved that it is not the knowledge of mere possibility, but the accused had knowledge that the act is imminently dangerous and that in all probability the 23/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 act is likely to cause death.
31.If the prosecution bring the act of the accused within the ambit of any one of the four limbs of Section 300 IPC, the act of the accused will be culpable homicide amounting to murder. However, if the act of the accused, falls within the definition of murder and it falls within any one of the five exceptions enumerated under Section 300 IPC, the offence would be culpable homicide not amounting to murder, which is punishable under Section 304 IPC.
32.Section 304 IPC contains two parts which reads as follows:
"304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
33.The first part provides for punishment for culpable homicide not amounting to murder, if the act of 24/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 the accused is done with the intention of causing death or such bodily injury as is likely to cause death. The intention of the accused is essential requirement under the first part of Section 304 IPC. The second part deals with the knowledge of the accused. If the accused has knowledge that his act is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.
34.To put it more clearly, if it is proved that the act of the accused is culpable homicide not amounting to murder, and it falls either under the first or second limb of Section 299 IPC, then the accused is liable to be punished under Section 304(i) of IPC. If the act of the accused is proved as culpable homicide not amounting to murder and falls within the ambit, third limb of Section 299 IPC, the accused is liable to be punished under Section 304(ii) of IPC. Likewise, if the act of the accused falls within first, second or third limb of Section 300 IPC and if it falls under any one of the exceptions enumerated in Section 300 IPC, then the act of the accused is only culpable homicide not amounting to murder and the accused is liable to be punished under Section 304(i) IPC. If the act of the accused falls within the fourth limb of Section 300 IPC and if it falls under any one of the exceptions enumerated in Section 300 IPC, it is punishable under Section 304(ii) IPC. [Vide Ganesan v. State of T.N., 2012-2- L.W. (Crl) 733] '' 25/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018
17.Keeping the above principles in mind, here it is a case, from the available evidence, it is seen that both the accused and the deceased were leading a happy matrimonial life under the same roof and in view of a quarrel between the accused and the deceased, the accused poured kerosene on the body of the deceased and set fire with an intention to cause bodily injury, which is sufficient to cause death of the deceased in the ordinary course of nature. Hence, the act of the accused will fall under the third limb of Section 300 I.P.C. Further, the accused without any premeditation, in a sudden fight and without taking any undue advantage, has poured kerosene on the body of the deceased and set fire on her. In the said circumstances, the act of the accused will fall under fourth exception to Section 300 I.P.C. Hence, the appellant is liable to be convicted under Section 304 (i) I.P.C. and not under Section 302 I.P.C.
18.Insofar as the quantum of sentence is concerned, the accused is now aged about 53 years and is having two children and has no bad antecedents, further, he has a chance to reform himself, the occurrence has taken place in the heat of passion on a sudden quarrel between the accused and the deceased and the accused has poured kerosene available in the scene of occurrence and set fire on the deceased, and there is no serious motive attributed against him. Further, the occurrence took place on 04.06.2007, 26/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 she died only on 12.06.2007 at 05.15 p.m., due to complication, more probably out of Sepsis. Considering the above mitigating as well as the aggravating circumstances, we are of the considered view that sentencing the appellant to undergo 10 years of rigorous imprisonment will meet the ends of justice.
19.In the result, this Criminal Appeal is partly allowed, and the conviction under Section 302 IPC, is set aside, instead, the appellant is convicted under Section 304(i) IPC, and sentenced to undergo 10 years rigorous imprisonment and also to pay a fine of Rs.1,000/- in default, to undergo one year rigorous imprisonment. The period of sentence already undergone by the appellant/accused shall be given set off under Section 428 Cr.P.C.
Speaking/Non-speaking order
Index : Yes / No [V.B.D., J.] [R.P.A., J.]
Internet : Yes 05.10.2021
smn2
27/29
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD)No.336 of 2018
To
1.The I Additional District and Sessions Judge, Tirunelveli.
2.The Inspector of Police, Palavur Police Station, Tirunelveli District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai.
28/29 https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.336 of 2018 V.BHARATHIDASAN, J.
AND R.PONGIAPPAN, J.
smn2 Judgment in Criminal Appeal (MD) No.336 of 2018 05.10.2021 29/29 https://www.mhc.tn.gov.in/judis/