Surjit Singh, J.
1. Appellant Ram Lal has preferred this appeal against the judgment dated 20-4-2000 of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Sessions Trial No. 8 of 1999, whereby he has been convicted of the offence under Section 302, Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of which he has been ordered to undergo simple imprisonment for two years.
2. Facts relevant for the disposal of the appeal may be noticed. On 20-2-1999 a telephonic call was received at Police Station, Rampur Bushahr from Sh. G.S. Guleria, Executive Engineer, I.P.H., Rampur. The caller informed that the wife of the Chowkidar, namely Ram Lal (appellant), employed in his office had caught fire in the quarter of the said chowkidar and they (the caller & some others) had extinguished the fire and sent the lady to the Referral Hospital, Rampur and that the matter may be enquired into. The report was entered in the Rojnamcha. Sh. Jeet Ram, Inspector/SHO, Police Station, Rampur Bushahr, accompanied by some police officials, went to Referral Hospital, Rampur. He made an application to the Medical Officer concerned, for conducting the medico legal examination of the lady and also for intimating whether the lady was fit to make statement. The Medical Officer gave in writing that the lady was fit to make statement. Thereafter the said Inspector, Sh. Jeet Ram, recorded the statement of the lady, under Section 154, Code of Criminal Procedure. The lady stated that she had married the appellant about two years back and that at the time of her marriage with the appellant she had a son, which she conceived from one Guddu, who had kidnapped her about 7-8 years back. She further told the appellant was already married at the time of contracting marriage with her and this fact was not disclosed to her by him. It was further stated by her that because of this often they used to quarrel and that on the day of her making the statement, i.e. 20-2-1999 also, they had a quarrel and that in a fit of rage she sprinkled kerosene on herself feeling that there was no sense in living such a miserable life and that her husband got angry and set her ablaze due to which she had been badly burnt. She also reported that she had been brought to the hospital by the people of her husband's department. Further she stated that she had been set on fire with the intention of being killed.
3. On the basis of the aforesaid statement case was formally registered against the appellant vide FIR No. 29 of 1999. The deceased was got medically examined on the same day. The doctor noticed that the lady had 90% second degree burns all over her body, except the back. She was referred to Indira Gandhi Medical College, Shimla.
4. When the complainant was still in the hospital at Rampur, the Sub Divisional Magistrate, Rampur Bushahr, on being approached by the police recorded her statement. In that statement she reiterated the same version as she gave to the Inspector/ SHO of Police Station, Rampur Bushahr in the statement under Section 154, Code of Criminal Procedure. On 1-3-1999 the lady died of burn injuries at Indira Gandhi Medical College, Shimla. Inquest was conducted. Thereafter on the request of the police, post mortem examination was conducted by the Professor and Head of the Department of Forensic Science, Indira Gandhi Medical College, Shimla. He found 90% first degree ante mortem burns on the dead body, the detail of which is as follow :--
1. Head or face -- 5% (Note: Front effaceinvolved, but scalpPortion spared).2. Upper ExtremitiesRt. Upper-9%Lt. upper- 9%3. Front of trunk -- 18% DiagrammetricallyRepresented onPage No. 4-A.4. Back of trunk -- 12%5. Ext. genitalia -- 1%6. Rt. Lower Ext. -- 18%7. Lt. ' ' -- 18%-------90%-------
5. The clothes which the lady was wearing at the time of incident were sent to the State Forensic Laboratory, Junga. The expert doctor found that the same were having traces of kerosene. The police inspected the quarter of the accused and found a can of ten litres capacity, in which there was about 3 litres blue colour liquid substance, which looked like kerosene. This can along with its contents was sealed and was also later on sent to the State Forensic Science Laboratory to seek opinion about its contents. The incharge of the Laboratory reported that the contents of the can were of kerosene.
6. On the completion of investigation, challan was filed in the Court of Additional Chief Judicial Magistrate, Rampur Bushahr, who after complying with the requirement of Section 207, Code of Criminal Procedure committed the case to the learned Sessions Judge and the latter, after putting him on trial the offence under Section 302, Indian Penal Code convicted and sentenced him, as aforesaid.
7. Though in the grounds of appeal it is alleged that the case is fabricated, concocted and the evidence led by the prosecution is self contradictory and self destructive and as such no case against the appellant is made out, the learned defence counsel (Sh. Anup Chitkara) when addressing the arguments conceded that the evidence on record viz. the statement under Section 154, Code of Criminal Procedure Ex. P.W. 7/B made by the deceased to inspector/SHO, Sh. Jeet Ram P.W. 11 and another statement Ex. PW/7/C made by the deceased to Sh. Rakesh Kanwar, Sub Divisional Magistrate, Rampur P.W. 10, which are relevant as dying declaration, under Section 32 of the Evidence Act, read with other evidence on record prove that the incident, as alleged in the statements Ex. P.W. 7/B and Ex. P.W. 7/C, has taken place. He, however, urged that from the facts and the circumstances of the case, it is clear that this is not a case of murder, punishable under Section 302, Indian Penal Code, but a one of culpable homicide not amounting to murder, punishable under Section 304, Indian Penal Code. He took us through all the four clauses of Section 300 of the Indian Penal Code, when specify the situations where a culpable homicide would amount to murder. The same are reproduced, for ready reference :--
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.
8. He argued that the case is not covered by any of the four clauses and hence it has to be treated as one under Section 304, Indian Penal Code. In support of his contention he placed reliance upon the following precedents :--
1. Kishore Singh v. The State of Madhya Pradesh : 1977CriLJ1937 .
2. Hari Shankar v. State of Rajasthan : 1999CriLJ2902 .
3. Mavila Thamban Nambiar v. State of Kerala 1997 Cri LJ 831 (SC).
4. Jagtar Singh v. State of Punjab 1983 SCC (Cri) 459 : 1983 Cri LJ 852.
5. Hari Ram v. State of Haryana 1983 SCC (Cri) 159 : 1983 Cri LJ 346.
9. In Kishore Singh v. The State of Madhya Pradesh : 1977CriLJ1937 , it has been held that culpable homicide is not murder when the case falls within any of the five exceptions to Section 300, Indian Penal Code. It has further been held that even though none of the said exceptions may be pleaded or prima facie established, the prosecution is still required to bring the case under any of the four clauses of Section 300, Indian Penal Code, to sustain the charge of murder.
10. Further it has been held that while considering whether a case falls or does not fall under clause 3rdly, viz whether the bodily injury is sufficient to cause death, the Court's enquiry is not. confined to the intention of the accused at that stage of judicial evaluation, once the intention of the accused to cause the injuries has already been established and that the Court will have to judge objectively from the nature of the injuries and other evidence, including medical opinion, as to whether the injuries intentionally inflicted by the appellants were sufficient in the ordinary course of nature to cause death.
11. In Hari Shankar v. State of Rajasthan : 1999CriLJ2902 (another precedent relied upon by the learned defence counsel) the accused had a sudden quarrel with the deceased on account of the accused making a demand for Rs. 50,000/- advanced by him to the deceased and the accused picked up a burning kerosene wick-stove which was lying nearby and threw it on the deceased. Kerosene spilled over the clothes of the deceased and with the burning wicks the clothes of the deceased caught fire due to which he sustained burn injuries and died. The Hon'ble Supreme Court observed that the appellant-accused knew that his act was likely to cause burns resulting in death and changed the conviction of the accused from Section 302, Indian Penal Code to Section 304, Indian Penal Code.
12. In Mavila Thamban Nambiar v. State of Kerala, 1997 Cri LJ 831 a quarrel took place between the accused and the deceased when the accused went to the deceased' shop to borrow a lighted petromax. The accused picked up a pair of scissors lying on the table in front of him and stabbed the deceased on the right side of his chest. The injury resulted in death. The Hon'ble Supreme Court held that though it: could reasonably be inferred that the appellant had the knowledge that the injury with a pair of scissors on the vital part would cause death, he could not be said to have intended to commit the murder and accordingly the conviction was changed from Section 302, Indian Penal Code to one under Section 304, Indian Penal Code.
13. The facts of the case reported in Hari Ram v. State of Haryana 1983 SCC (Cri) 159 : 1983 Cri LJ 346 were that a blow with a jelli was given by the accused to the deceased in the chest as a result of which the deceased died. Before hitting the deceased the appellant had remarked that the deceased be beaten to make him behave. In view of this remark which preceded the infliction of injury and the fact that only one blow had been struck, the Hon'ble Supreme Court held that the accused could not be said to have intended to kill the deceased and the conviction was, therefore, changed from Section 302, Indian Penal Code to Section 304, Indian Penal Code.
14. In Jagtar Singh v. State of Punjab 1983 SCC (Cri) 459 : 1983 Cri LJ 852 accused gave a single blow of knife to the deceased in the chest which injured the heart of the deceased. The incident took place on the spur of the moment and in a sudden and chance quarrel. It was under these circumstances that the Hon'ble Supreme Court held that this was a case of culpable homicide not amounting to murder punishable under Section 304, Indian Penal Code and not the one under Section 302, Indian Penal Code.
15. The facts and the circumstances of the case in hand are different from the facts and circumstances of the aforesaid cases relied upon by the learned defence counsel as precedents. In the cases relied upon by the learned defence counsel clauses firstly, 2ndly or 3rdly of Section 302, Indian Penal Code were the subject-matter of consideration. The case on hand, in our considered view, is covered by clause fourthly of Section 300, Indian Penal Code, which is reproduced at the cost of repetition, for ready reference:--
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.
16. The admitted facts are that the appellant and the deceased were not having good relations and they often quarrelled with each other. On the fateful day also they had a quarrel. The deceased, fed up with the tense atmosphere at home, because of almost daily quarrel, got so upset that she sprinkled kerosene on her person with a view to putting an end to her life. This she did within the view of the appellant because she and the appellant were quarrelling at that time. Now when the deceased had sprinked kerosene on her person, the accused, being her husband and as such responsible for her safety, should have immediately taken some steps to ensure that she did not set herself on fire. Instead of taking any steps to prevent her from setting herself ablaze, he himself lighted a match stick and set her on fire. His act was so imminently dangerous that in all probability it was bound to cause death or such bodily injury as was likely to cause death and he can legitimately be presumed to have been in the know of this fact because the deceased had poured kerosene on her person within his view. Thus we are of view that this is a case covered by clause fourthly, as reproduced herein-above.
17. For holding such a view we find support from a three Judges' Bench authority of the Hon'ble Supreme Court. All the precedents relied upon by the appellant's counsel are by two Judges' Benches. The citation is : 1968CriLJ1025 (State of Madhya Pradesh v. Ram Prasad). The facts of the case were that a man after having quarrelled with his second wife sprinkled kerosene on her and set her on fire. The only difference in the facts of the aforesaid case before the Hon'ble Supreme Court and the facts of the case before us is that while in the case before the Hon'ble Supreme Court the kerosene was sprinkled upon the deceased by her husband before setting her ablaze, in the case in hand the deceased herself sprinkled the kerosene on her person. This difference should not be of any consequence, because the sprinkling of kerosene by the deceased herself does not in any way mitigate the act of the appellant, so as to take it out of the purview of clause fourthly of Section 300, Indian Penal Code.
18. The learned defence counsel then argued that the case is covered by Exception-1 to Section 300, Indian Penal Code. Exception-1 reads as follows :--
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 sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
19. The argument has been noticed only to be rejected. As already stated the quarrels between the appellant and the deceased was a regular feature and, therefore, the quarrel that had taken place on the fateful day cannot be said to an act of grave and sudden provocation on the part of the deceased, which deprived the accused of the power of self-control.
20. The learned defence counsel further argued that this was a case of the commission of the act in the heat of passion upon a sudden quarrel. This argument can also not be accepted in view of the fact that this was also not a case of sudden quarrel. The appellant and the deceased had been having strained relations ever since the marriage took place, as is clear from the dying declaration of the deceased, which are Ex. P.W. 7/B and Ex. P.W. 7/C, Moreover for attraction of this exception, which is listed as exception fourthly in Section 302, Indian Penal Code, there has to be not only a sudden quarrel, but also a fight, which means use of criminal force by both the sides, i.e. the accused and the deceased. In this case admittedly no fight had taken place.
21. No other point was urged.
As a result of the above discussion, we find no merit in the submission of the learned defence counsel that this is a case of culpable homicide not amounting to murder punishable under Section 304, Indian Penal Code and not one of murder, punishable under Section 302, Indian Penal Code. Consequently, the appeal is dismissed.