H.L. Gokhale, J.
1. This Appeal by the Appellant (Original Accused No. 1) seeks to challenge the judgment and order dated 6th March 2000 passed by the 3rd Additional Sessions Judge, Satara, in Sessions Case No. 182 of 1998 convicting the Appellant under Section 302, Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine Rs. 2,000/-, in default further RI for one year. The facts leading to this Appeal as follows:-
2. The Appellant (original Accused No. 1) was married to one Suman, daughter of Shakuntala Tukaram Yadav (a widow) sometimes in June 1988. The bride's side is stated to have given a dowry of Rs. 7,000/- and shouldered the entire marriage expenses. The mother of Suman hailed from village Aundh in Taluka Khatav of District Satara, whereas the Appellant resided at village Pimpari in Taluka Koregaon of the same District. The village Pimpari is at a distance of about half an hour by Bus from Aundh. For a few years after the marriage the relations between the Appellant and his wife were smooth. The couple gave birth to two sons Sachin and Krishna. However, subsequently the Appellant and his mother Draupada Hanmant Bankar (Accused No. 2) started ill-treating Suman and this ill-treatment increased particularly during one year prior to the date of the incident.
3. Accused No. 1 was addicted to liquor. He used to work as a Tractor driver. He and his mother started ill-treating Suman on the ground that she should bring a sum of Rs. 5,000/- from her parents. He used to beat her and harass on that count. The Appellant and his mother both used to tell Suman that the Appellant wanted to enter into a second marriage with one Nanda Khilare, daughter of his maternal uncle and that she should permit the same.
4. It is the case of the prosecution that on 18th May 1998 at about 9 P.M. the Appellant came home under the influence of liquor. Suman was observing fast on that day. On his coming home, she served the meals and they sat together to take their dinner. The Appellant was drunk and he started abusing her. Thereafter while taking the meal sitting by her side on the floor, he gave a blow on her left knee by hitting her with a water pot made of brass. Their house was not having any electricity connection and hence, a kerosene lamp was kept burning to provide the light. Accused No. 1 thereafter threw that kerosene lamp on to Suman. Her sari started burning. Suman shouted and ran into the courtyard of the house and doused the fire by rolling in the ground. The neighbours of the couple heard her shouts and came there. They sent a message to the sister of Suman one Vimal Chandrakant Karpe (P.W.1) which she received at about 1.30 A.M. At Aundh. Vimal, her mother and one Jivan Kamble rushed to Pimpari. Suman narrated to Vimal and Jivan as to what had transpired. Thereafter they took Suman to the civil hospital at Satara where she was admitted at about 3.15 A.M. One statement of Suman was recorded at about 3.30/4 A.M. by A.P.I. Hanmantrao S. Shinde (P.W.3) wherein she narrated whatever had happened. Suman had received burn injuries to the extent of 70% of her body. Necessary treatment was started immediately. Another statement of Suman was recorded at about 11.40/11.55 A.M. on that day i.e. on 19th May 1998 which was recorded by an Executive Magistrate. Both the aforesaid statements were recorded in the presence of two different Medical Officers who both stated that Suman was quite conscious while giving the said statements. Suman ultimately died on the next day i.e. on 20th May 1998 at about 2.30 A.M. She was 26 years of age at the time of the incident. The Police charged the Appellant and his mother initially for attempting to murder under Section 307 read with Sections 498-A and 34, Indian Penal Code. On the death of Suman, the charge was altered to Section 302 read with Sections 498-A and 34 of Indian Penal Code.
5. During the trial, the prosecution examined in all eight witnesses. The first witness was Vimal C. Karpe (P.W.1) sister of Suman. Vimal stated as to how the marriage or Suman was solemnized with Accused No. 1 and as to how after a few years Accused No. 1 started ill-treating her. She stated that he wanted her to bring an amount of Rs. 5,000/- from her parents. He wanted to undergo a second marriage with the above-mentioned Nanda and he wanted Suman to permit it. He used to consume liquor. Then she stated that at about 1.30 A.M. she got the message at her village from the people who came from Pimpari that Suman had suffered burn injuries and that, therefore, her mother, one Jivan Kamble and herself rushed to Pimpari. They saw Suman lying in the courtyard with burn injuries. There was no electricity connection in the house. Suman was groaning and asked them to move her to a hospital. Vimal asked her as to how did she get the burn injuries and Suman narrated as to what had transpired. Suman was thereafter moved to the Civil Hospital, Satara for treatment where she died on the next day. In the cross-examination, she denied that Suman was unconscious and also that Suman was not in a position to talk with her.
6. The second witness of the prosecution was Jivan M. Kamble (P.W. 2) who also spoke almost to the same effect. He also deposed as to what was told to him by Suman regarding the incident.
7. The third witness of the prosecution was one Hanmantrao S. Shinde (P.W.3), A.P.I. of the Satara Police Station. He stated that he was on duty at the Satara Civil Hospital from 9 P.M. in the night of 18th May 1998 to 9 A.M. on 19th May 1998. He learnt that one Suman Sayaji Bankar was admitted in the hospital at about 3.15 A.M. He took a Medical Officer Dr. Sadashiv Desai to the patient. This doctor examined the patient and told that the patient was conscious and in a position to give a statement. Suman gave her statement which Mr. Shinde noted down in his own handwriting. He read over the statement to her. She admitted the contents. He obtained her left hand thumb impression on the said statement. He also obtained the endorsement of the Medical Officer that Suman had understood the statement that was made by her. He denied that Suman was unable to speak or she was unconscious. Suman was unable to sign and, therefore, he had taken her thumb impression.
8. This statement of Suman had been taken on record as Exhibit 22. The relevant portion of this statement, when translated from Marathi, reads as follows:-
'..... On a query being made to me in the civil hospital at Satara, I am giving in writing as follows:-
I stay at the above place with my mother-in-law Draupada Hanmant Bankar, husband and two children. I work in the house as well as in the agricultural field. For the last about one year, my husband and my mother-in-law are continuously harassing me. My mother-in-law Draupada all the time says to me that she wants to arrange the second marriage of my husband Sayaji. She all the while made a grievance that I had not brought anything from my mother's house. She has kept myself and my husband apart. She used to tell certain things against me to my husband Sayaji. All the while he used to drink and beat me. My mother, my widowed sister and her children stay at Malyacha Mala near Aundh In Taluka Khatav.
Yesterday night i.e. on 18.5.1998 at about 9 P.M. my husband Sayaji Hanmant Bankar came home in a drunken condition. I told him that I had fasted on that day since it was a Monday and let us take the meal. Then I served the meals in the plates. Both of us sat down to take our meal and started eating the food. At that time my husband was abusing me under the influence of liquor. Thereafter while sitting side by side, he gave a blow of the water pot on to my left knee. Since electric light was not available in the house, I used to keep a kerosene lamp burning for adequate light. My husband Sayaji threw that burning lamp on to me. The Sari worn by me started burning. I started screaming and went on to the courtyard and on my own doused the fire by rolling on to the floor. Since my clothes caught fire, I received burn injuries on my face, neck, chest, stomach, on the back and on both hands and legs. Some of my neighbours went to Aundh and brought my mother to my place. She brought me to the civil hospital for treatment and the treatment has started. I am fully conscious to give this statement. I have lodged a complaint against my mother-in-law Draupadi and husband Sayaji for the aforesaid incident.'
The left hand thumb impression of Suman is taken below this statement and it is recorded that it is so taken since both her hands are burnt. There is also an endorsement of the Medical Officer below the statement that the patient was conscious. There is also a signature of the above-referred Police Officer.
9. Thereafter there is the deposition of Nandkumar Sudam Gurav (P.W.4) who was working as the Executive Magistrate at the relevant time at Satara. On receiving information from Police, he had visited the civil hospital to record the declaration of Suman. He had met Dr. (Smt) Rekha Salunkhe who took him to Suman. He wrote down her statement as per her version. In the Court, he identified his handwriting on the dying declaration and stated that it is the same as was recorded by him. He further stated that he recorded the thumb impression of Suman and also the endorsement of the Medical Officer and himself. This statement of Suman is exhibited at Exhibit 26. This is also identical in the particulars with the earlier statement. The material part with respect to the injury is as follows:-
'On 18.5.1998 my husband came home at about 9 P.M. in a drunken condition. While taking meal he hit me by throwing a water pot. He also threw a kerosene lamp on to me which fell on my body. I was wearing a nylon sari which immediately caught fire. I started shouting that I was burning. The neighbours gathered. My husband tried to douse the fire by rolling on to the soil. The neighbouring people sent a Jeep to Aundh and the people from my mother's side arrived and brought me to the civil hospital.'
10. The next witness examined is one Anil N. Sandbhor (P.W.5) who is the Investigating Officer. He produced the post-mortem notes which were exhibited under Section 294 of Criminal Procedure Code and the defence did not ask for the examination of the doctor who made the report. The post-mortem report gave the percentage of burns involved as follows:-
(i) Face and neck - 8%(ii) Chest and Abdomen - 18%(iii) Back - 4%(iv) Rt. upper extremity - 9%(v) Left upper extremity - 9%(vi) Rt. Lower extremity - 10%(vii) Lt. lower extremity - 12%----------Total 70%----------The opinion as to the cause of death was given as 'shock due to 70% burns'.
In view of death of Suman, the Investigating Officer converted the charge to Section 302, Indian Penal Code from the initial Section 307. He stated as to how he recorded various statements. He further stated that two children of the deceased were sent by him to the Remand Home. The prosecution then examined Dr. Rekha A. Salunkhe (P.W.6) who was the Medical Officer when the second statement of Suman was recorded by the Executive Magistrate. She stated that the patient was fully conscious when she had made the statement and that she made the endorsement thereunder accordingly. The prosecution also examined Dr. Sadashiv P. Desai (P.W.8) who was present when the above-referred statement was recorded at about 3.15 A.M. by A.P.I. Shinde.
11. There is hardly a cross-examination of any of these witnesses.As far as the statement of Accused No. 1 under Section 313 of Criminal Procedure Code is concerned, he has stated in reply to question No. 20 at the end of his deposition that Jivan Kamble and Vimal Karpe have filed a false case against him. Suman caught fire by accident as the lamp fell on her. He tried to extinguish the fire and sustained injuries.
12. Thereafter, the arguments were heard by the learned Judge. He acquitted Accused No. 2, mother of the Appellant from the charge under Section 302. He acquitted both of them from charge under Section 498-A of Indian Penal Code since he held that in his opinion the allegations in that behalf were not sufficient to invoke that section. The learned Judge held that Suman had died a homicidal death on 20th May 1998 and secondly, that it was proved that Accused No. 1 has committed her murder. These were the findings on the first two points framed by him. On point No. 3 i.e. on the question of cruelty, he acquitted both the Appellant and his mother. It is being aggrieved by this judgment and order that the present Appeal has been filed.
13. Ms. Kaushik, learned Counsel appearing for the Appellant, tried to raise the plea of the death being accidental by relying upon the statement of Accused No. 1 under Section 313 of Criminal Procedure Code, to which a reference has been made above. It is, however, seen that the Accused has not put this case to any of the witnesses in the cross-examination. Besides, he has not given any explanation as to whether the lamp was situated and how it fell upon Suman. Any such plea of accident causing the death of Suman cannot, therefore, be entertained.
14. Therefore, as far as the death of Suman being homicidal, there cannot be any dispute. The inquest panchanama (Exhibit 10) shows that she had received burn injuries to the extent of 70%. The post-mortem note has given the cause of death as shock due to 70% burn injuries. The two dying declarations made by Suman were proved by A.P.I. Anil Sandbhor. Two witnesses viz. Vikram Karpe (P.W.1) and Jivan Kambale (P.W.2) spoke with respect to the oral declarations made by her to them. There is no difficulty in accepting that she died due to burn injuries which were caused due to the kerosene lamp being thrown at her by the Accused. The post-mortem note has given the cause of death as shock due to 70% burn injuries. Therefore, there is no difficulty in accepting that this is a case of homicidal death.
15. The next question which comes up for consideration is whether this homicidal death amounts to murder or whether Accused No. 1 has any defence. Ms. Kaushik, learned Counsel appearing for the Appellant, submitted that the incident leading to the death of Suman will fall under Exception 4 to the definition of murder inasmuch as according to her it has occurred without any premeditation and subsequent to a quarrel. She pressed into service Exception 4 to Section 300 of the Indian Penal Code for that purpose. In her submission, the death of Suman will not fall in any of the four categories mentioned in Section 300 of Indian Penal Code and that it is a fit case to be treated as one of grievous hurt and at the most under the second part of ?Section 304 of Indian Penal Code viz. culpable homicide not amounting to murder. As against this, the submission of Mrs. Kejriwal, learned APP, is that this is certainly not a case to which Exception 4 to Section 300 would get attracted. In her submission, this is a case which would fall in the second category covered under Section 300 of Indian Penal Code and if not thereunder, in any case, under the fourth category thereof.
16. Therefore, before we proceed to assess these rival submissions, it will be appropriate to refer to the relevant section which is Section 300. Section 300 of the Indian Penal Code defines murder. Section 300 along with Exception 4 thereto read as follows:-
'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-
Secondly - 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-
Thirdly - If it is done with the intention of causing bodily injury to any person and the 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
Fourthly - 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.
Exception 1 .....
Exception 2 .....
Exception 3 .....
Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in cruel or unusual manner.'
17. Now, coming to the first submission of Ms. Kaushik that it is due to a sudden quarrel that this incident has taken place, we must refer to the two dying declarations given by Suman. From both these dying declarations, we get an idea as to how the incident occurred. It is clearly stated therein that the Appellant (Accused No. 1) came home in a drunken state. Suman told him that she was on a fast on that day since it was a Monday and suggested that they take the meal early. Therefore, she served the meals in the plates and they sat side by side to take their dinner. At that time, the Appellant was abusing her under the influence of liquor. He hit her left knee with a water pot and thereafter he threw the kerosene lamp on to her which burnt her sari causing the serious burn injuries. Both the dying declarations are consistent in this behalf. Exception 4 requires a quarrel to take place to begin with. Such a quarrel has to be a sudden quarrel and it should lead to a heat of passion and then to a sudden fight. This entire situation should be without the offender taking any undue advantage and acting in a cruel or unusual manner. In the instant case, there is no quarrel at all. Accused No. 1 had come home in a drunken state. He started abusing his wife. Then he hit her with pot of water and thereafter threw the kerosene lamp on her. Here the poor wife of Accused No. 1 was busy in serving him the meal. There is nothing to indicate that she said anything to him and that there was any exchange of words. Whatever has happened is entirely unilateral. It could not be said to be a quarrel. It was nothing but an attack by Accused No. 1 on his wife. There is no question therefore of applying Exception 4 to the incident leading to the death of Suman.
18. Then comes the next question as to whether this would be a case falling in second category or fourth category from the definition of murder or whether it does not fall in either of them and it should be considered as a grievous hurt or a culpable homicidal not amounting to murder. Ms. Kaushik, learned Counsel appearing for the Appellant, submitted that the act on the part of the Appellant could not be said to be a premeditated act. She submitted that although the relations between the husband and wife were strained yet it could not be said to be a premeditated act. There was no planning in what he did. The Appellant was inebriated. He first hit his wife with the water pot and then the kerosene lamp. This was all under the influence of liquor without any understanding. In her submission, intention requires an application of mind and some kind of planning. In her submission the same was lacking in the present case. Ms. Kaushik then submitted that although the Accused acted in the manner as stated above, he realised the consequences the moment the sari of Suman caught fire and he made an attempt to douse it, whereby he also received burnt injuries. She referred to he certificate of injuries produced on record (Exhibit 16) which showed that the Accused had received burn injuries on his face, upper portion of the chest and right hand anteriorly.
19. As against this submission of Ms. Kaushik, Mrs. Kejriwal, learned App, submitted that it is material to note that both the persons were sitting side by side to take their meal. At that stage, the Accused had hit the deceased by water pot. If the action of the Accused was to rest at that moment, perhaps it could have been a case of causing grievous hurt but throwing of the burning lamp from such a close position causing 70% burn injuries clearly shows that the intention was not restricted to causing grievous hurt but of causing serious bodily injuries which the offender ought to be presumed to know as likely to cause the death. Mrs. Kejriwal referred to the fact that there were quarrels between the parties in the past one year. She further referred to the Chemical Analyser's Report to point out that inspite of throwing the kerosene lamp on to the deceased, some kerosene had still remained therein. The lamp was meant for lighting the room since there was no power. It was obviously a sufficiently big lamp and it was thrown from such a near position that there was no question of missing the target. Apart from this, the fact that the Appellant did not bother to give any medical treatment to the deceased after these burn injuries, is also a factor to the considered. It is only when the relatives of Suman came down that she got the treatment after she was moved to the civil hospital at about 3.15 A.M. The Appellant did not care to move her. Mrs. Kejriwal submitted that the so-called injuries on the right palm of the Accused could not be taken a much advantage of. From the second dying declaration made before the Executive Magistrate, it is clear that it is only when the neighbours gathered after hearing her shouts that the Appellant bothered to make an attempt to douse the fire. This late assistance cannot remove the factor of intention from this dastardly act.
20. To substantiate the submissions, Ms. Kaushik, learned Counsel appearing for the Appellant, referred to a judgment of the Apex Court in the case of Anda and Ors. v. The State of Rajasthan reported in : 1966CriLJ171 . With respect to the second and fourth Clauses the Apex Court observed in paragraphs 6 and 8 of its judgment as under:-
'(6) The 2ndly in Section 300 mentions one special circumstance which renders culpable homicide into murder. Putting aside the exceptions in Section 300 which reduce the offence of murder to culpable homicide not amounting to murder, culpable homicide is again murder if the offender does the act with the intention of causing such body injury which he knows to be likely to cause the death of the person to whom harm is caused. This knowledge must be in relation to the person harmed and the offence is murder even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person. If the element of knowledge be wanting the offence would not be murder but only culpable homicide not amounting to murder or even a lesser offence. Illustration (b) appended to this clause very clearly brings out the point. It reads:
'(b) A knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death.'...
'(B) The clause 4thly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause, speaking generally, covers cases in which there is no intention to cause the death of any one in particular. Illustration (d) appended to this clause reads:
'(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.'
We will deal with these submissions a little later, though we may clarify that with respect to the propositions laid down by the Apex Court, there cannot be any grievance. In fact, the elucidation of clauses, secondly and fourthly by the Apex Court does not help the Appellant at all.
21. Ms. Kaushik referred to a judgment in the case of Jayaraj v. State of Tamil Nadu reported in Jayaraj v. State of Tamil Nadu reported in 1976 S.C.C. (Cri) 293 on the question of knowledge of likelihood of death of the person as referred in the 4th clause. In para-33 of that judgment, the Apex Court observed as under:-
'33. As was pointed out by this Court in Anda v. State of Rajasthan, 'Intent' and 'knowledge' in the ingredients in Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.'
22. Ms. Kaushik then referred to a judgment in the case of Jagtar Singh v. State of Punjab reported in AIR 1983 C LJ 463 to point out that when there is a sudden quarrel on spur of moment arising out of trivial reason and when there is no premeditation, it will not amount to murder. In that case, however, what is important to note is that when the deceased was passing by the road in front of the house of the appellant, his forehead dashed with the parnala of the house of the appellant which provoked the deceased to demonstrate the appellant. Then there was exchange of abuses which led to the appellant giving a blow and leading to the death of the deceased. Thus, it was a case where obviously there was a quarrel. In our case, no such quarrel took place.
23. Then a reference was made to two judgments of this Court. The first one was in the case of Babu Sadashiv Jadhav v. State of Maharashtra reported in 1986 C LJ 739. That was also a case of causing death of a wife by the husband pouring kerosene oil on her. The Accused suspected the character of his wife Kondabai. On the relevant day he came drunk and starting beating her. She also retorted and a hot exchange of words followed. The Accused poured a little quantity of kerosene and applied a lighted match stick. After her sari started burning he tried to extinguish the fire and his hands burnt. His mother took Kondabai to adjoining hut but the Accused did not run away. She died some 15 days later. The High Court held that the hot exchange between the two led him to act in that manner but when the sari started burning, he realised his mistake and started extinguishing the fire (end of Para-14). Due to all these factors, the High Court held it to be a case under Section 304(1) and not Section 302. As against this, in our case, there was no exchange of words. Wife had provided no excuse to attack her. A lamp with half litre of kerosene is thrown on her. The Accused has made some feeble attempts to extinguish fire, but that too after the neighbour gathered. And then he arranged no medical aid. All these are distinguishing factors.
24. In Deva Dudhya Bhil v. The State of Maharashtra reported in 1979 B.L.R. 507 the wife of the Accused was sleeping in the night. At that time the Accused came drunk and lighted a match stick and threw it on her. The clothes of the lady caught fire. She was hospitalised for burn injuries where she died after 35 days. The prosecution had relied upon the dying declaration amongst other evidence. The Trial Court convicted the Appellant under Section 304(I) of Indian Penal Code. The High Court, however, converted it into one under Section 325 of Indian Penal Code. The doctor had opined that she had died due to septicemia and toxaemia following burns over 40%. The High Court held as follows:-
'Looking to the manner in which the accused lit the match stick and threw it upon the clothes of his wife, it can be reasonably inferred that the accused did intent to cause burns to the body of Sarubai and by his act voluntarily caused the said injuries. By doing so, the accused caused hurt which endangered life or, at any rate, caused the sufferer to be during the space of twenty days or more in severe bodily pain. This hurt, therefore, is covered by clause Eighthly under Section 320 of the Indian Penal Code. Since this grievous hurt was caused by a weapon which cannot be said to be dangerous, the offence which the accused has committed is covered by Section 325 of the Indian Penal Code.'
Ms. Kaushik traced the similarities but, in our view, they are hardly any. In the present case, Suman has died just one and half day after receiving the burn injuries which were 70%. The cause of death is given as shock due to these burns and the method used is to throw a burning kerosene lamp from a very near position. The facts in the present case are clearly distinguishable.
25. Mrs. Kejriwal, learned APP, on the other hand, referred to a judgment in the case of Surinder Kumar v. State (Delhi Administration) reported in 1987 C LJ 537. It was a case where after the deceased-wife of the Appellant had received burn injuries, it was urged that the Appellant put out the flames and it was argued that the Appellant would not have put out the flames, if he had set fire to his wife. On the facts of the case, the Apex Court observed in Para-B that the Appellant took that action only after the arrival of P.W.3 on the scene and he could not have remained a passive spectator to the plight of his wife. In that matter also the dying declaration clearly sets out that the appellant was in the habit of ill-treating his wife and that particular day he had abused her, beat her and on top of it, he had poured kerosene over her and set fire so her. The Apex court had maintained the conviction under Section 302 of Indian Penal Code.
26. Mrs. Kejriwal submitted that this approach of the Apex Court indicated that in such cases mere dousing of the fire by the Accused cannot be pressed into service by him. Similar are the facts in the case of Kumbhar Dhirajlal Mohanlal v. State of Gujarat reported in : 1997CriLJ769 where the Appellant-Accused sustained injuries while extinguishing the fire. The Apex Court observed in para-9 that this would not lead to the inference that the fire was accidental. The Apex Court further observed approving the comments of the High Court that a shrewd person may adopt this tactics if first setting his wife on fire and make a show to extinguish fire and thereafter remain by her side. The Apex Court further observed that the High Court was equally justified in remarking that the appellant almost succeeded in making out his defence but unfortunately for him his wife was able to speak and make statement disclosing the entire facts. In this case also the conviction under Section 302 of Indian Penal Code was sustained.
27. Mrs. Kejriwal then referred to a judgment in the case of C.V. Govindappa and Ors. v. State of Karnataka reported in : 1998CriLJ1107 to point out where the plea of accident leading to the wife's death was taken, the Appellant would have certainly attempted to put out the flames and take her to the hospital. The conduct of the Appellant was undoubtedly a circumstance to be taken into account for deciding the question as to whether the Appellant was guilty or not. In that matter the Appellant had not taken the wife to the hospital nor had made any attempt to get any medical aid for her when he knew that she was suffering from burns. Admittedly, he had seen her lying on the ground burning with flames, yet he did not take any steps to help her or take her to the hospital. This is stated by the Apex Court in Para-9 of its judgment and then confirmed the conviction under Section 302 of the Indian Penal Code.
28. Lastly, Mrs. Kejriwal referred to a judgment in the case of Kailash Kaur v. State of Punjab reported in 1987 C LJ 1127 where the Apex Court has observed that in such cases where barbaric method of pouring kerosene oil and setting on fire is adopted, maximum punishment must be awarded as a deterrent.
29. Before we deal with the facts as recorded above and the rival submissions, it would be advisable to refer to some of the leading judgments on the concept of intention and knowledge. Thus, in the case of Emperor v. Mt. Dhirajlal reported in : AIR1940All486 , a Division Bench of that High Court made the following distinction between intention and knowledge:-
''Intention' appears to us to be one thing and 'knowledge' appears to us to be a different thing. In order to possess and (sic) form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been (sic), it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us-treating Mt. Dhirajlal as a sane person, which we are bound to do-to conclude that she could possible have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that baby's death. We do not think we can.
We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. '
30. Another Division of the Allahabad High Court in the case of Faqira v. State reported in : AIR1955All321 observed as follows:-
'Knowledge as contrasted with intention would more properly signify a state of mental realisation in which the mind is a passive recipient of certain ideas and impressions arising in it or passing before it. It would refer to a bare state of conscious awareness of certain facts in which human mind might itself remain supine or inactive. On the other hand, intention connotes a conscious state in which mental faculties are roused into activity and summoned into action for the deliberate purpose of being directed towards a particular and specified end which the human mind conceives and perceives before itself. Mental faculties which might be dispersed in the case of knowledge are in the case of intention concentrated and converged on a particular point and projected in a set direction. The difference between the shades of the meaning of the two words is fine but clear, and the use of the one in place of the other by the legislature cannot be without purpose. The words used by the Legislature must, therefore, be given their full effect. '
31. In Basdev v. State of Pepsu reported in : 1956CriLJ919 , the Appellant, a retired military Jamadar was charged with the murder of a young boy aged about 15 or 16. Both of them and others of the same village went to attend a wedding in another village. All of them went to the house of the bride to take the midday meal on 12-3-1954. Some had settled down in their seats and some had not. The Appellant who was very drunk and intoxicated asked the young boy to step aside a little so that he may occupy a convenient seat. But he did not move. The Appellant whipped out a pistol and shot the boy in the abdomen. The injury proved fatal. It was found that although the Accused was under the influence of drink, he was not so much under its influence that his mind was so obscured by the drink that there was incapacity in him to form the required intention. The Apex Court held that the offence was not reduced from murder to culpable homicide not amounting to murder under the second part of Section 304, Penal Code by reason of the provisions of Section 86 of the Code.'
32. In Santosh v. The State of Madhya Pradesh reported in : 1975CriLJ602 , the Sessions Judge had held that as injuries were inflicted on the limbs of the three men, who died of bleeding the intention to murder was not established since the infliction of injuries on vital parts of the body was not there. The Apex Court observed as follows in Para 6 :-
'The learned Sessions Judge appears to have overlooked the various clauses of Section 300, I.P.C. An intention to kill is not required in every case. A knowledge that the natural and probable consequence of an act would be death will suffice for a conviction under Section 302, I.P.C.'
33. Having noted the legal position on the concepts of 'intention' and 'knowledge ', we would like to refer to the other material on record including the muddemal items. We have seen the kerosene lamp which was produced as a muddemal Article No. 2. It is nothing but a circular tin of iron sheet with a loose lid which can be opened to fill it with kerosene. It is a used tin of Hindustan Petroleum Company, on which it is written in English and Hindi that it is a container of grease. It is a container of the size of half litre. At the centre of the lid of the tin, a small hole had been made, through which the wick was inserted, one end of which went down in the tin and on the other side, there would be a flame. There was no enclosure of glass or otherwise on the upper part for protection from the flame. If such a match-shift kerosene lamp container of half litre with a burning wick is thrown on to a person just sitting in the adjoining place, the natural consequence will be that the entire quantity of kerosene will fall from the tin and will catch fire. The person, therefore, committing the act of throwing such a kerosene lamp will have to be inferred as knowing that it is so imminently dangerous that it must in all probability cause such bodily injury as is likely to cause death. This is particularly when the act is committed without any excuse for incurring the risk of causing death or such injuries as aforesaid. This is what has happened in the present case. Without any provocation whatsoever the burning lamp was thrown on to Suman who was sitting by the side of the Accused. Her sari caught fire and was practically reduced to ashes. A few pieces which could be retrieved were produced as Muddemal Article No. 4. These pieces of the sari clearly indicate the severity of the fire.
34. Suman had received 70% burn injuries. Chapter XI of Modi's Medical Jurisprudence & Toxicology 22nd Edition (1999) is on Injuries from Burns, Scalds, Lightning and Electricity. In the note on Classification of Burns, it is stated as follows:-
Classification of Burns
'Dupuytren classified burns into the following six degrees, according to the nature of their severity. Modern classification (Heba's classification) accords three degrees only by grouping the first and second (epidermal), third and fourth (dermoepidermal), and fifth and sixth (deep) degrees together. Another classification grades burns into superficial and deep burns.'
First and second degree or Epidermal burns are by and large superficial, whereas in third and fourth degree burns the whole skin is destroyed. Fifth and Sixth degree burns are deep burns. Thereafter the Causes of Death due to burn injuries are classified into two categories (A) Immediate and (B) Delayed Causes of Death. Immediate Causes are mentioned as three viz. (i) Shock, (ii) Suffocation and (iii) Accidents or Injuries. And as far as shock is concerned, it is stated as follows:-
'(a) Shock
Severe pain and marked protein rich fluid loss from extensive burns which result in increased capillary permeability, cause shock and produce a feeble pulse, pale and cold skin, and hypotension resulting in death instantaneously or within 24 to 48 hours.'
35. From what is narrated above, it is clear that the accused had come drunk to his residence on 18th May 1998. The deceased served him the meals and they were both sitting side by side to take the food. He was abusing her. At that time, he first hit her on her left knee with a water pot of brass. Thereafter he threw on to her the make-shift kerosene lamp (Article 2). It is a lamp made out of an iron sheet tin of half a litre with the flame on the upper side and without any enclosure of glass around it. The wick of the lamp was pierced through a hole made into the lid of the tin. The moment the lamp was thrown, obviously the lid must have become loose and the entire kerosene fell on to the victim. She was wearing a nylon saree which caught fire and the fact that hardly any pieces of the saree are left (Article 4) show the severity of the impact. The lamp was thrown from such a close distance that there was no question of missing the target. It cannot be ignored that the previous one year, the accused was harassing his wife to permit him to enter into the second marriage. He used to abuse and beat her regularly.
36. The first submission of Ms. Kaushik was that this was a case of accident, for which we have noted that the accused has led no evidence nor cross examined the prosecution witnesses in that light. Alternatively, it was submitted that it was a case of grievous hurt and reliance was placed on the judgment in the case of Deva Dudhya Bhil (supra). As we have noted, that was a case of throwing a burning match stick on the sleeping wife, who died after 35 days due to septicimia. The High Court, therefore, held that it will be case falling in the clause Eighty of Section 320 and, therefore, that of grievous hurt. Our case is of throwing a burning kerosene lamp from a near position and causing 70% burn injuries and death within 48 hours due to shock. It is, therefore, not a case of causing voluntary hurt, but that of causing death either with intention or knowledge of bodily injury as is likely to cause death, and, therefore, that of culpable homicide within the definition under Section 299 of I.P.C.
37. Then comes the question as to whether this culpable homicide amounts to murder. There is good force in the submission of Mrs. Kejriwal that the act was done with the intention of causing such bodily injury as the offender knew to be likely to cause the death of the person to whom the harm was caused, which is a submission based on the second clause of Section 300 of I.P.C. At the same time, one has also to note that there was no pre-mediation or planning. The accused came drunk on that day and without any cause being given by his wife, firstly attacked her with a water pot. He proceeded to throw the kerosene lamp on to her without any rhyme or reason. This act will, therefore, not fall under the fourth exception to Section 300 of I.P.C. (which is available in case of an act due to a quarrel), but will fall under the clause marked as 'Fourthly' while defining the concept of murder under Section 300 of I.P.C. It will have to be held that the accused knew that the act was so imminently dangerous that it must in all probability cause such bodily injury as was likely to cause death, and particularly since the act was done without any excuse for causing such an injury. For an act to fall under Section 304(II), it has to be an act done with the knowledge that it will cause death but without an intention, whereas under clause fourthly of Section 300, it has to be with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. In our view, the present case will clearly fall in clause fourthly and not under Section 300 (Part I or II). We have seen the distinction between intention and knowledge and although the accused was drunk, some minimum knowledge of his act ought to be presumed to be surviving with him. His act has led to 70% burns and the cause of death has been diagnosed as shock due to these 70 burns. As quoted from Mody's Jurisprudence, shock is a situation of severe pain and marked loss of protein rich fluid resulting from excessive burns and death within 24-48 hours. In the instant case, Suman, the wife of the accused, has died within less than 48 hours from the time when she suffered the burn injuries. The present case will, therefore, clearly fall in the fourthly clause of Section 300 of I.P.C. defining murder.
38. In the circumstance, we are satisfied that the learned Judge was fully justified in convicting the appellant under Section 302 of I.P.C. and sentencing him for imprisonment for life as well as the fine, in default additional imprisonment. The appeal, therefore, stands dismissed.
39. Although we are dismissing this appeal, we cannot part with the matter without referring to a tragic outfall of the matter which came to our notice. It has come in the statement of the investigating Officer that after arresting the accused on 29th May 1998, he sent the two children of the deceased to a remand home. That one sentence from his evidence led to further queries. On a query to the learned Prosecutor, she told us that in the facts of the situation the step was justified since there was hardly anybody to look after them. Vimal, the sister of the deceased and her mother Shakuntala are agricultural labourers. As disclosed from the deposition of Vimal, she is a widow and has her three children and aged mother to look after. The children of the deceased could not have been left to their paternal grand mother who was herself an accused at that stage. We were anxious to know as to what is the further progress of the children after being sent to the remand home and the learned A.P.P. was good enough to take instructions from the concerned police station. The Police Officer concerned made a report dated 29th July 2004. The report informs that the two children Krishna, now aged 15 years and Sachin, aged 12 years were sent to a boarding school as per the order of a Child Welfare Committee. They are presently studying in the Xth and VIIth standard respectively in the Nageshkar Bal Gruha situated at Village Varul, Taluka Ambewadi, District Kolhapur, Vimal and her mother come and take these two children to their village Aundh during the Diwali and Summer Vacations and also come over to meet them from time to time. In fact, the officer was good enough to bring Vimal and her mother to the court, who informed us that they were quite satisfied with the present arrangement.
40. We appreciate the interest taken by the officer concerned in the welfare of the children. However, the learned counsel for the Appellant as well as the learned prosecutor expressed an anxiety that this may not be happening in similar cases and the children could become vagrants. They, therefore, jointly submitted that appropriate general guidelines to deal with such situations are necessary. We quite appreciate the suggestion made. This human problem needs an anxious consideration. We note that such children, who are in need of care and protection, come under the jurisdiction of the Child Welfare Committee constituted under Chapter III of the Juvenile Justice (Care and Protection of Children) Act, 2000. The Committee looks into their welfare and amongst others sends them to children's home for their protection and education. This Committee is a competent authority within the definition of that concept under Section 2(g) of that Act and the orders passed by the competent authority are appealable to the Court of Sessions with a further revision to the High Court in certain situations under Section 52 and 53 of the said Act. Section 36 of the Act, which provides for social auditing, confers power upon the State Government to monitor and evaluate the functioning of the children's home periodically. Looking to all these aspects, in our view, it would be desirable that in all such cases, where a police officer takes charge of such children and produces them before the Committee under Section 32(i) of the Act, he must report it to the learned Sessions Judge, who is seized of the criminal case (as is done in the present case), when the trial begins as to what is the position of the children and further as to whether they have been sent to a children's home.
41. The role of the investigating agency in such matters is undoubtedly to see to it that the guilty are brought to the book. It is however seen, as in the present case, that there are innocent sufferers like the unfortunate minors whose mother is killed at the hands of their father. We expect that in all such cases, the investigating officers produce them before the Child Welfare Committee and send them to the Children's home if there is no immediate family member to take care of them. In the event there is any such immediate family member and the children are handed over the his custody, the officer must inform the court accordingly. In the event the children are sent to the children's home, the investigating officer will request the concerned children's home to send a six monthly progress report of such children to the Sessions Court which is in charge of the matter. That will enable an appropriate supervision of their progress and, if necessary, some corrective suggestions from the learned Sessions Judge to the Child Welfare Committee which must be looking into all aspects of welfare of such children. We make it clear that this is only by way of an assistance to the Child Welfare Committee and not by way of erosion of any of its powers or interference into its jurisdiction. This will enable the administration of criminal justice to take care of the human aspect also while seeing to it that the guilty are brought to the book.
42. Appeal disposed of.
43. Ms. Kaushik, learned Counsel appearing for the Appellant, makes a request that a copy of this order be sent to the Accused-Appellant, who is in jail at Kolhapur. The request is legitimate. Office wills end a copy of this order to the Accused-Appellant, who is in jail at Kolhapur.
44. Ms. Kejriwal, learned APP, makes a request that a copy of this order be sent to the Director General of Police for forwarding it to all the Police Stations so that they follow up the directions to deal with such situation. We direct accordingly.
45. Authenticated copy of this order be provided.