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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: RAM PRASAD

DATE OF JUDGMENT: 04/12/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SIKRI, S.M. HEGDE, K.S.

CITATION:  1968 AIR  881            1968 SCR  (2) 522

ACT: Indian Penal Code (45 of 1860), s. 300 (Fourthly)-Scope of. Practice-Acquittal by High Court of accused of major offence and  conviction for lesser offence-Appeal against  acquittal to  Supreme Court-Right of accused to prove that he was  not guilty of any offence.

HEADNOTE: The  accused poured kerosene upon his mistress and  set  her clothes  on: fire.  There were extensive burns and she  died as  a result thereof.  On the question as do the  nature  of the offence. HELD : The accused must have known that he was committing an act so imminently dangerous that it must in all  probability cause death or such injury as was likely to cause death.  As he  had no excuse for incurring that risk the offence  falls under  s. 300 (fourthly) of the Indian Penal Code,  that  is culpable  homicide amounting to murder, even if the  accused did not intend to cause her death. [527 D-E] Although the clause is usually invoked in those cases  where there  is no intention to cause the death of any  particular person,  it may, on its terms, be used in those cases  where there  is such callousness towards the result and  the  risk taken  is  such that it may be stated that the  person  knew that the act was likely to cause death or such bodily injury as was likely to cause death. [527 C] Even  though  there is no provision to that  effect  in  the Rules of the Supreme Court, in the case of an appeal by  the State against acquittal for the major offence, it is  safer, fair  and just to the accused to give him a chance to  prove that  he  was not guilty even of the lesser offence  on  the analogy of s. 439(6) of the Criminal Procedure Code. [524 F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 92 of 1965. Appeal  by special leave from the judgment and order  dated’ October  20,  1964  of  the Madhya  Pradesh  High  Court  in Criminal Appeal No. 67 of 1964.

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I.N. Shroff and M. N. Shroff, for the appellant. O.P. Rana, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J. The respondent Ramprasad against whom  the State  of  Madhya Pradesh has filed this appeal  by  special leave was tried in the Court of Session under s. 302 of  the Indian  Penal Code.  He was convicted by the Sessions  Judge under  s.  324  of  the  Code  and  sentenced  to   rigorous imprisonment  for  six months.  The State  Government  there filed  an appeal against his acquittal under s. 302,  Indian Penal Code and also ’an application for  523 revision for the enhancement of the sentence passed on  him. The  High  Court  convicted him under s.  304  Part  II  and sentenced   him   to   4   years’   rigorous   imprisonment; concurrently  the application for revision was dismissed  as infructuous.  The State Government has now filed this appeal and  contends that the conviction of the  respondent  should have  been  under s. 302 of the Indian Penal Code  and  that there  has  been failure of justice in  the  case  requiring interference from this Court. The facts of the case are as follows : Ram Prasad was living with his mistress Mst.  Rajji at Mannaur in District  Panna. Evidence shows that they were having quarrels for some  time previous  to the incident which took place on May 24,  1963. On  that  date, Ram Prasad intended leaving  Mannaur  for  a place called Harsa, because his cattle used to be stolen  at Mannaur.  Mst.  Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking  her  to  Harsa; alternatively, she  wanted  that  he should leave her at Mannaur and give her some cattle for her maintenance.   To  either course Ram Prasad  was  unwilling. Matters  came to a head on the night of. the 24th when  Rain Prasad  ordered a van in which he began putting his  luggage with a view to leaving for Harsa.  Mst.  Rajji then went  to some  of  the  village panchas and  brought  them  over  for intercession.  It is these panchas who have now appeared  as witnesses  to  the  incident  that  took  place  immediately afterwards.   To all the panchas Mst.  Rajji again  narrated the story of her grievance and Ram Prasad insisted on taking her  away.   As  Rain Prasad would not give  in,  nor  would Rajji, the panchas could do nothing further and some of them went away to their lodging which were close to the residence of  Ram  Prasad.   Evidence  then  shows  that  Ram   Prasad approached  Mannulal (P.W.4) with a lantern in one hand  and an aluminium bowl in the other.  He asked for some  kerosene oil, because oil in his lamp had run down, but Mannulal  did not  give  any  as  he  had  none  to  spare.    Immediately thereafter  Ram Prasad went back to his room and a  cry  was heard from Mst.  Rajji that Ram Prasad had put kerosene  oil on  her  and  set her alight.  Mannulal,  Holke  and  others immediately  arrived on the scene and put out the fire,  but before  that  happened, Mst.  Rajii was  extensively  burnt. She  kept  on, accusing Ram Prasad with the  deed,  but  Ram Prasad, according to the witnesses, did not say anything  in protest.   On the other hand, when he was questioned by  the panchas  as  to why he had done so, he  retorted  that  Mst. Rajji  was his wife and what had they to do with the  matter and added that they might even get him hanged.  Mst.   Rajji was  -then  taken  on  cycle to  the  police  station  house although  the hospital was on the way.  Evidence shows  that Mst.   Rajji insisted on being taken to the  police  station house first.  There she made the statement which is Ex.   P- 7,  in, which she charged Ram Prasad with her condition  and stated also,,

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524 that  he had put kerosene oil on her and set her clothes  on fire.    Later  she  was  removed  to  the  hospital   where separately to two doctors in attendance (Dr.  Mrs. Ghosh and Dr. M. L. Gupta) she again stated that she was burnt by  her husband who had put kerosene oil on her.  Dr. Ghosh noted on the  bed head ticket "homicidal burn by husband’.  The  next day,  Mst.  Rajji died Prosecution produced the  panchas  as witnesses  to the earlier transaction in which  Mst.   Rajji and Ram Prasad had disagreed over going to Harsa and also in proof  of the statement of Mst.  Rajji that Ram  Prasad  had put  kerosene oil on her and set her clothes  alight.   They have also through the same witnesses proved the conduct  of- Ram Prasad when Mst.  Rajji accused him of having  committed the  outrage.  The prosecution has further relied  upon  the statements  made by Mst.  Rajji in Ex.  P-7 and to  the  two doctors who have deposed in the court. The  High Court and the court below have agreed  in  holding Ram Prasad responsible for the outrage.  They have  accepted the three dying declarations as well as the evidence of  the eye  witnesses  in support of the prosecution  case.   ’They have  only  ,differed as to the offence  disclosed  by  this evidence. We issued notice to the respondent to show cause against the appeal  of the State Government.  Although he  received  the notice,  he  did  not  make  any  arrangement  for  his  own representation in this Court.  We accordingly invited Mr. O. P.  Rana  to  appear  as amicus  curiae  on  behalf  of  the respondent  at State expense.  We allowed Mr. Rana to  argue not only about the nature of the offence but also on  merits with a view to point out to us any circumstance proving that the  conviction  itself  was wrong.  Although  there  is  no provision  to  this effect in the rules of  this  Court,  we thought  it safer to follow the procedure laid down for  the High  Court in the Code of Criminal Procedure when it  hears ’a  matter  after  notice of enhancement  of  sentence.   It seemed to us to be both fair and just to give the accused  a chance  to prove to the satisfaction of this Court that  the offence itself had not ’been brought home to him. In so far as the quarrel between Ram Prasad and Mst.Rajji is concerned,there  is nothing which can be said against  it.In fact  the record bristles with evidence on this  point.  All theevidence which has been brought to show that Ram Prasad was  intending  to  leave  for  Harsa  and  Mst.  Rajji  was resisting him  could not be false, because the panchas  were called and they attempted to intervene.  The real dispute is as  to whether it was Ram Prasad who poured kerosene oil  on Mst.   Rajji and set her alight or whether, as suggested  by Ram  Prasad and pleaded by Mr. Rana, it was Mst.  Rajji  who herself put her own clothes on fire and committed suicide at the same time falsely charging Ram Prasad with the  outrage. In this connection, prosecution produc-  525 ed four witnesses.  The first is Mannulal who was present at the.  calling of the panchayat by Mst.  Rajji.  In  fact  it was Mst.  Rajji herself who went to summon him to the  house of Ram Prasad and it was from him that Ram Prasad asked  for some kerosene off.  The fact that kerosene oil was asked for is  admitted by Ram Prasad himself and the  question  arises why  was  it  necessary for Ram Prasad  to  have  asked  for kerosene  oil at that moment and why immediately  afterwards Mst.   Rajji was found with her clothes burning.  No  doubt, Mannulal  did not give any kerosene oil but it seems  to  us that  the lantern which Ram Prasad carried in his  own  hand had  some  kerosene oil in it.  It was possible for  him  to

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have extracted some oil from the lantern.  We do not put too much emphasis upon this aspect of the case, because there is no direct evidence.  But on the side of the prosecution  and the  defence,  there is agreement that kerosene oil  was  in fact put upon the clothes before they were set on fire.   In fact  the  burnt clothes even in the court emitted  still  a smell  of kerosene oil and the aluminium bowl also smelt  of kerosene.   This was noted by the Sessions Judge  who  tried the case. It,  therefore,  stands to reason that kerosene oil  was  in fact  employed before the clothes were set on. fire and  the short  question. in this case is whether it was  Ram  Prasad who  set fire to the clothes or it was Mst.  Rajji  who  put kerosene  oil  on herself and set herself alight.   On  this part of the case, there is the evidence of Mannulal to which we  have already referred.  A similar statement was made  by Holke  (P.W. 3) and Soni (P.W. 6).  They consistently  spoke of  Ram  Prasad having asked Mannulal for kerosene  oil  and that  immediately afterwards Mst.  Rajji was found with  her clothes burning and accusing Ram Prasad of the outrage  upon her.   There is one witness, however, who did  not  entirely support this story and that is Jhallu (P.W. 4).  His version was that Mst.  Rajji stated to Ram Prasad that their quarrel had been, settled, implying thereby that she had set herself on fire and thus terminated the quarrel.  This statement was made  by the accused in his examination under S. 342 of  the Code  of Criminal Procedure and support is therefore  sought to  the contrary story from the evidence of Jhallu.   Jhallu was declared hostile and was crossexamined with reference to his  previous statement before the police.  We find that  in his  statement to the police he did not mention the fact  to which  he  deposed in the Court of Session and it  makes  us doubtful whether what he stated in the Court of Session  was true.   In fact there is nothing brought out in his  deposi- tion  beyond  this remark by Mst.  Rajji  that  the  quarrel between the bania and herself has been settled.  Mst.  Rajji in addition to making the accusation might have stated  that their  quarrel had got settled.  It is possible this  retort might  well have been uttered: with the accusation.  But  it is curious that when Mst.  Rajji roundly accused Ram  Prasad with having set fire to her clothes, Ram 526 Prasad  did  not  say anything in defence  which  one  would expect  a  reasonable man to do.  He should  have  protested then  and there.  He had no reason to state to  the  panchas that Mst.  Rajji was his wife and the panchas had nothing to do with the matter .and that they could get him hanged.  His attitude  later in not ,,going to the police  station  house and to the hospital speaks against him.  There are also  the three  statements  by  Rajji to say nothing  of  her  shouts accusing her husband which were part of the res gestae.   On the  whole, therefore, we are satisfied that the  conclusion of  the  High Court and the Sessions Judge that it  was  Ram Prasad who had put kerosene oil upon Mst.  Rajji and set her clothes  on  fire was correct in the circumstances  of  this case. The  question  then arises, what was the offence  which  Ram Prasad  can  be  said to have committed  ?  The  offence  of causing  injury  by burning is a broad spectrum  which  runs from  s.  324 causing- simple injury by burning  through  s. 326,  namely, causing grievous injury by burning to the  two major  offences, namely, culpable homicide not amounting  to murder and even murder itself.  The Sessions Judge chose the lowest  end  of  the spectrum which  is  surprising  enough, because the burns were so extensive that they were certainly

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grievous by all account.  The High Court placed the  offence a little higher, namely, culpable homicide not amounting  to murder.  We think that the matter goes a little further than -this.   As  death has been caused the question  has  to  be considered in the light of homicide to determine whether the action  of  Ram Prasad Calls within  culpable  homicide  not amounting to murder or the higher offence of murder  itself. Here  we  see  that death has actually been  caused  by  the criminal  act; in other words, there has been  homicide  and since it is not accidental or suicidal death, responsibility for  the  homicide,  in the absence of  any  exceptions  ;or extenuating  circumstances, must be borne by the person  who ,caused it.  The High Court has apparently stopped short  by holding  that  this  was a case  of  culpable  homicide  not amounting  -to murder.  The question is whether the  offence falls in any of the clauses of s. 300 Indian Penal Code.  In this  connection  it  is difficult to say  that  Ram  Prasad intended causing the death of Mst.  Rajji although it  might well  be the truth.  That he set fire to her  clothes  after pouring  kerosene  oil is a patent fact  and  therefore  the matter has to be viewed not only with regard to the  firstly of s. 300, but all the other clauses also.  We do not  -wish to  consider the second and the third clauses,  because  the question then would arise what was the extent of the  injury which  Ram Prasad intended to cause or knew would be  caused to Mst.  Rajji.  That would be a matter of speculation.   In our opinion, this matter can ’be disposed of with  reference to clause fourthly ,of s. 300.  That clause reads as follows :-                .......  culpable homicide is murder.....  if               the person committing the act knows that it is               so imminently                 527                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 or  causing               death or such injury as aforesaid." It  is  obvious that there was no excuse for Ram  Prasad  to have  taken  the risk of causing the death  or  such  bodily injury as was likely to cause death.  The question therefore arises  whether  Ram  Prasad  knew  that  his  act  was   so imminently  dangerous that it must in all probability  cause death or such bodily injury as is likely to cause death,  so as  to bring the matter within the clause.  Although  clause fourthly is usually invoked in those cases where there is no intention  to cause the death of any particular  person  (as the illustration shows) the clause may on its terms be  used in  those cases where there is such callousness towards  the result and the risk taken is such that it may be stated that the  person knows that the act is likely to cause  death  or such  bodily  injury as is likely to cause  death.   In  the present case, Ram Prasad poured kerosene upon the clothes of Mst.   Rajji and set fire to those clothes.  It  is  obvious that  such fire spreads rapidly and burns  extensively.   No special knowledge is needed to know that one may cause death by  burning  if  he sets fire to the clothes  of  a  person. Therefore,  it  is obvious that Ram Prasad must  have  known that  he was running the risk of causing the death of  Rajji or such bodily injury as was likely to cause her death.   As he  had no excuse for incurring that risk, the offence  must be taken to fall within 4thly of S. 300, Indian Penal  Code. In other words, his offence was culpable homicide  amounting to  murder  even if he did not intend causing the  death  of Mst.   Rajji.  He committed an act so  imminently  dangerous

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that  it was in all probability likely to cause death or  to result in an injury that was likely to cause death.  We  are accordingly  of  the  opinion that the High  Court  and  the Sessions  Judge were both wrong in holding that the  offence did not fall within murder. Mr. Rana contended that there was no proof from the  medical reports  that kerosene oil was employed because  the  wounds did  not smell of kerosene.  Apart from the fact  that  both the  courts  have held that kerosene was  so  employed,  the evidence  is  quite satisfactory that kerosene was  in  fact poured upon the victim before the clothes were set on  fire. The  omission of this fact in the medical reports is not  of consequence. We accordingly allow this appeal, substitute the  conviction under  s.  302  of the Indian Penal-Code  in  place  of  the conviction  under s. 304 Part II and sentence Ram Prasad  to imprisonment for life. V.P.S.              Appeal allowed. 528