Sekar Vs The Inspector of Police

PRAYER : Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code to call for the entire records connected to the Judgment in S.C.No.95 of 2021 on the file of the Sessions Judge, Mahila Court, Pudukkottai, dated 24.03.2023 and set aside the conviction and sentence imposed against the appellant.

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For Appellants : Mr.S.Sivasubramanian For Respondent : Mr.T.Senthil Kumar,

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Additional Public Prosecutor

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JUDGMENT

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(Judgment of this Court was delivered by R.POORNIM A, J. )

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This Criminal Appeal is filed against the conviction and sentence passed against the appellant/sole accused in the judgment dated 24.03.2023 passed by the Sessions Judge, Mahila Court, Pudukkottai in S.C.No.95 of 2021 by convicting and sentencing the appellant for the offence punishable under Sections 302 IPC and 294(b) IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.2,00,000/- in default to undergo one year rigorous imprisonment for the offence under Section 302 IPC and sentenced to undergo three years simple imprisonment and to pay a fine of Rs.5,000/- in default to undergo one month simple imprisonment for the offence under Section 294(b) IPC.

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The case of the prosecution in brief is as follows:

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(a) The complainant's sister had been living with her

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husband. She married Sekar, the accused two years ago. The accused is her relative, but her sister has no children out of the wedlock. Her husband was in the habit of consuming liquor and creating problems with her.

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(b) On 12.02.2021 at 7.45 p.m., when she was staying in her

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house, the accused had come in an inebriated condition and shouted at her, why she had not prepared dinner, abused her in a filthy language

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“njtoah kfns”, and when she had questioned him as to why he uttered unparliamentary words, he stated that he would talk only like that and taking kerosene, poured the same on the clothes found in the house and tried to burn it. In order to prevent him and to stop him from such activity, she playfully told him that she will pour kerosene on herself. For which her husband stated that, “eP ,Ue;J vd;d bra;ag;nghw. ,j;njhL brj;J bjhiy”, snatched the bottle from her, poured kerosene on her and lit fire with cigarette lighter on her left hip side. Thereafter, the neighbours came to the spot and extinguished the fire and took her to Pudukkottai Government Hospital through 108 ambulance and admitted her. The complainant prayed for action against the accused.

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(c) P.W.7, Sivakumar, Sub Inspector of Police, Aranthangi Police Station, based on the intimation received from Pudukottai Government Hospital, had gone to the hospital and recorded the statement of victim, Amirthavalli, aged about 19 years as Ex.P1 and registered FIR in Crime No.162 of 2021, under section 294(b), 307 of IPC under Ex.P.10. He had sent the original FIR to the Judicial Magistrate Court, Aranthangi, and the copies were sent to the higher officials and to the Inspector of Police for further course of action.

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(d) P.W.8, Thiru.Ravindran, Inspector of Police, after receipt of the FIR, had gone to the place of occurrence and prepared observation mahazar-Ex.P.2 and rough sketch-Ex.P.11 in the presence of witnesses Selvaraj and Muthuvel and had recovered half burnt turkey towel (M,O. 3) under a recovery mahazar-Ex.P.3 in the presence of the same witnesses. He had examined the witnesses Selvaraj, Muthuvel and recorded their statements.

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(e) On the same day, he had gone to the Government

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Hospital, Pudukkottai, in order to examine the deceased. Since she was unconscious, and he was unable to record her statement, he had enquired her sister Periyanayagi and recorded her statement and also examined mother-in-law of the victim, Smt.Papa, witness Thangaraj and recorded their statements.

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(f) On 13.02.2021, the victim who was undergoing treatment succumbed to her burn injuries. Therefore, he had altered the section of law from 294(b), 307 IPC to 294(b), 302 IPC and prepared section alteration report Ex.P.12 and had sent the same to the concerned Judicial Magistrate Court.

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(g) Thereafter, he had conducted inquest on the dead body of Amirthavalli in the presence of Panchayatars at the Government Hospital Pudukottai between 11.30 am and 13.00 pm and prepared inquest report Ex.P.13.

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(h) In order to find out the real cause for the death, he had sent requisition letter through Tmt.Nandini, women constable 1334 to the Government Doctor for conducting postmortem.

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(i) P.W.7 Dr.Valliyappan had conducted autopsy and found

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the following injuries on the dead body:-

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“General Description of body found at the Post Mortem:

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1. Length-148 cm.

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2. Body lying in supine position, wrapped in multicolored bed sheet, gray petticoat around loin. Hospital bandages and medications over the burn injuries present. Venesection wound present over right leg inner aspect.

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3. Bilateral pupils dilated and fixed, and cernea hazy.

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4. Smell of kerosene present.

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External Examination: (Injuries):-

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1. Dermo-epidermal burn injuries are present all over the body except following areas: middle one third of face, right palm, both axilla, front and back of lower two third of abdomen, genitalia, whole of back of right thigh, whole of back of both legs, both feet, both soles, Singeing of scalp hair, eyebrows present. Blisters and blackening present at places. Red line of demarcation present between burns and unburnt areas. Burnt surface ares was approximately 80

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percent of the total body surface area Internal Examination: Scalp: Unremarkable Skull: Unremarkable Brain and meninges: Unremarkable. Mouth, Pharynx & Esophagus. Soot particles mixed with mucous present along respiratory passage. Neck: Hyoid bone intact. Thorax: Chest wall, Ribs/Sternum and Cartilage: - Unremarkable Lungs: Congested Heart: Unremarkable Liver: congested, portion sent for chemical analysis Peritoneum:- Unremarkable.

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Stomach: Contains 100ml of light greenish fluid present. Walls congested, stomach with its contents sent for chemical analysis Spleen: Unremarkable Intestine: Contain 10 ml of green color fluid, mucosa congested. portion of small intestine with its contents send for chemical analysis

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Kidneys: Congested, Half of each kidney send for chemical analysis.

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Bladder: Empty, Walls Unremarkable

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Spinal column and cord: Not Exposed.

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Uterus: Unremarkable

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Opinion:

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1. Cause of death:

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The cause of death in this case would be given after receipt of chemical analysis report. All injuries ante mortem in nature. FINAL OPINION: -

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Based on the reports referred to above, negative chemical analysis report and the findings of postmortem examination conducted by me, I am of opinion that cause of death in this case is due to burn shock consequent upon burn injuries over an area of approximately 80 percent of the total body surface area. All injuries ante mortem in nature.”

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(j) P.W.8, Thiru.Ravindran, Inspector of Police examined

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Thiru.Kali Muthu, father of the victim, Muthulakshmi, Vellaiyammal, sisters of the deceased, Maari Kannu, Chandira Kumar, Ganesan and recorded their statements.

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(k) He had arrested the accused on 13.02.2021 at about

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03.30 hours and recorded his confession statement Ex.P.6 in the presence of P.W.5 Tmt. Sakthipriya, Village Administrative Officer and her Village Assistant and recovered kerosene can and lighter under a recovery mahazar Ex.P.7.

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(l) Thereafter, the accused was sent to the judicial custody and material objects in form 95 viz., Ex.P.14 and Ex.P.15 were also sent to the Judicial Magistrate Court. He had sent the Viscera through Women Constable Tmt.Nandini for chemical analysis.

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(m) He examined P.W.4 Dr.Vijayan and had recorded his statement and obtained the accident register Ex.P.5. He had handed over the file to the station as he was transferred from the above post.

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(n) Thereafter, P.W.9 Thiru.Senthil Maran had continued the investigation, he examined P.W.6 Dr.Valiappan and had recorded his statement and received postmortem report-Ex.P.8. He examined the Assistant Director, Arun Giri, Forensic Laboratory, Trichy and received the viscera report Ex.P.16 and Serology report Ex.P.17. He recorded the statement of P.W.7 Thiru.Sivakumar, Women Constable Tmt.Nandini.

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(o) He had received the dying declaration statement under

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Ex.P.4 from the learned Judicial Magistrate.

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(p) After completing the investigation, he had filed charge

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sheet on 14.06.2021 against the accused.

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On receipt of the records, the Judicial Magistrate, Aranthangi had taken the case on file in P.R.C.No.11 of 2021 and had issued summons to the accused. After the appearance of the accused, copies of all the prosecution documents and witnesses were furnished to him free of cost under Section 207 Cr.P.C.

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Since the offence was exclusively triable by the Sessions Court, the learned Judicial Magistrate had committed the case records to the Principal District and Sessions Judge, Pudukkottai, under Section 209(A) Cr.P.C. for further action.

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The Principal District Judge, Pudukkottai had received the case records and numbered the case in S.C.No.95 of 2021 and made over

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the same to the Sessions Judge, Mahila Court, Pudukkottai for disposal according to law.

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The Sessions Judge, Mahila Court, Pudukkottai had taken the case in S.C.No.95 of 2021 and had framed charges under Sections 294(b) and 302 I.P.C against the accused. The charges were explained to the accused and the accused had denied the charges and claimed to be tried. Hence, the case was posted for trial.

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In order to prove the case of the prosecution, P.W.1 to P.W.9 were examined and Ex.P1 to Ex.P17 were marked. Material Objects M.O.1 to M.O.4 were produced. On the side of the accused, no witness was examined.

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After full trial, the trial Court held the accused guilty of

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the offences punishable under Sections 294(b) and 302 IPC and convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.2,00,000/- in default to undergo one year rigorous imprisonment for the offence under Section 302 IPC and sentenced to undergo three years simple imprisonment and to pay a fine of Rs.5,000/- in default to undergo one month simple imprisonment for the offence under Section 11/43

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294(b) IPC, against which, the present Criminal Appeal is filed on the following among other grounds:-

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(i) That the instant case is not a premeditated murder. Hence

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Section 302 IPC will not be attracted. The Dying Declaration also states that the accused was under intoxicated condition. So the alleged occurrence was not a pre-planned murder.

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(ii) There is a delay of 4 hours in registering the FIR. The FIR was registered on 13.02.2021. The occurrence happened at 12.02.2021 at about 08.30 PM. The victim was immediately admitted to the hospital at 11.00 p.m. The medical treatment to the victim began at about 12:24 am and the Judicial Magistrate also recorded her Dying Declaration at about 1:03 AM. The police officer did not register the FIR immediately but they registered the FIR only at about 5.00 a.m., on 13.02.2021.

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(iii) The FIR was sent to the Judicial Magistrate Court on 15.02.2021. The Section alteration report was sent to the Court on 13.02.2021 even before the FIR could reach the Court.

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(iv) That the trial court ought to have seen that the presence of P.W.1 and mother-in-law of the victim had not been established by the prosecution beyond reasonable doubts. Therefore, the judgment of the trial Court is liable to be set aside and hence, he prays to allow the Criminal Appeal.

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The Additional Public Prosecutor appearing for the State, argued that the complaint statement was recorded from the victim when she was admitted in the Hospital. In Ex.P.4, the dying declaration recorded by the Judicial Magistrate, Pudukottai, the victim stated that the accused set fire on her when there was a quarrel between both husband and wife. P.W.1, sister of the victim spoke about the harassment meted out to the victim lady. Therefore, he argued that the offence against the accused was proved by the prosecution beyond all reasonable doubt. Hence, he prayed for dismissal of the Criminal Appeal.

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Heard the learned counsel on either side and perused the

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evidence on record.

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Now this court has to decide whether the judgement rendered by trial Court is proper or liable to be set aside ?

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On careful perusal of the entire records, the prosecution case unfolding from the evidence of P.W.1 to P.W.9 is as follows:

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(a) P.W.1, one Tmt.Periyanayagi, sister of the victim girl,

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deposed that the accused is her relative viz., aunts' son. Her sister Amirthavalli married the accused. He was in the habit of assaulting her sister and treated her cruelly. He was jobless, both herself and sister were doing coolie work. She had been living in a portion of the same house of her sister, but in a separate room. Every day after consuming alcohol, the accused had demanded money and tortured her sister. The Complainant had helped her sister, thereafter, she was not able to give her money and informed her sister to not ask money. Due to the constant pressure of the accused, her sister had given her ear stud, anklet to the accused. The accused had sold the same and consumed alcohol.

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(b) The occurrence took place on 12.02.2021. At about 07:45 p.m. the accused had come to the house in an inebriated condition.

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She heard some noise from the house of her sister. She had asked her 14/43

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aunt to go and see what happened. At that time, again they heard alarm “ma;nah mk;kh fhg;ghj;J';f”, when they had entered into the house of her sister, they witnessed her sister burning alive and she found the accused with kerosene bottle. Immediately they picked up gunny bags shawl (rhf;F. Jg;gl;o), threw it on the victim and extinguished the fire. Thereafter when she enquired her sister, what had happened, her sister informed that the accused had asked her to give dinner for which she informed him that she had not yet prepared the same, immediately the accused had abused her with filthy language, took the kerosene bottle, poured the same in the clothing and when she playfully told him that she would self immolate, the accused immediately snatched the bottle and had poured the kerosene on her and set fire with the lighter. The villagers gathered after hearing their hue and cry, called 108 ambulance and both her and her aunt took her in the ambulance. Accused had tried to escape, but the villagers compelled him to accompany the victim girl and pushed him into the ambulance. The victim was admitted in Pudukkottai Government Hospital. The Doctor examined her. The Police also came on the same day and enquired her sister. Her statement was recorded by the Police. Her sister set her left thumb impression in the said complaint. Thereafter, she became serious. The accused absconded. Her sister died

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the Court.

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due to injuries sustained by her. P.W1 identified the kerosene bottle in the Court.

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(c) P.W.2 Thiru.Selvaraj spoke about the preparation of

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observation mahazar and also recovery of material objects from the place of occurrence.

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(d) P.W.3, Thiru.Munikumar, Judicial Magistrate No.I, Pudukottai deposed about the confession statement made by the deceased. He stated that he had confirmed the mental state condition of the deceased from the duty doctor and after obtaining the certificate of her mental fitness by the duty Doctor, he had recorded the confession statement of the deceased. He stated that she was conscious throughout the recording of confession and after recording the same, he had read over the same and thereafter her left thumb impression was obtained in the confession statement. When he had enquired the victim how the incident occurred, she stated that due to a quarrel she had poured kerosene, her husband lit the fire with lighter by stating that she should die. Thereafter, he had poured water and extinguished the fire. She further stated that she was brought to the hospital by her sister, motherin-law and husband.

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(e) PW4, Dr.Vijayan, who had initially treated the victim testified that the victim was admitted in the hospital on 12.02.2021 at about 11.00 p.m. with 80% to 85% burn injuries in 108 ambulance, and was treated by him. He recorded the details in the accident register as per the information received from the relatives and the 108 ambulance technician, but he could not remember the same. The accident register was marked as Ex.P.5. The accident register in the column, viz., nature of injury, it was mentioned that self-inflicted burns today at 8.30 PM in her house.

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(f) P.W.5, Tmt. Sakthipriya, Village Administrative Officer deposed that on 13.02.2021 at about 02.00 p.m., the Inspector of Police had informed that he was going to arrest the accused and that she should be there to witness it. Therefore, at about 02.30 p.m, both herself and her Assistant had gone to Kurumburmedu, from there to Kumilangundu Village. In that village, near Pillaiyar Temple, the accused was found. He was arrested by the Investigating Officer and he was explained the grounds for arrest. The Investigating Officer recorded his confession statement and also recovered the material objects from the house of the accused.

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(g) P.W.6, Dr.Valliyappan, deposed about the postmortem

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injuries found on the dead body and cause of death of the victim.

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The learned counsel appearing for the appellant during

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his argument clearly stated that he is only arguing for reduction of sentence and not for acquittal. He further stated that the instant case is not that of premediated murder, hence, 302 IPC will not be attracted. He further stated that both according to the case of the prosecution as well as the dying declaration rendered by the victim, it was proved that the death was not due to a preplanned/pre-mediated murder or homicide caused due to the alleged motive.

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He further argued that the instant case does not fall under the category of intention to cause bodily injury to the deceased. That it is the case of the prosecution as well as an admitted fact in the dying declaration that he was drunk/intoxicated, and the occurrence took place while he was under the influence of alcohol. In all probability, he would have not been in a position to comprehend the imminent danger to inflict or cause death/injury upon the deceased. That it is not proved (a) Whether the weapon was carried by the appellant or was picked up from

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the spot (b) Whether there was any blow aimed at the vital parts of the body. (c) Whether the act was in the course of a sudden quarrel or sudden fight (d) Whether the incident occured by chance or whether there was any premeditation. (e) Whether there was any prior enmity (f) Whether there was any grave and sudden provocation, and if so, the cause for such grave and sudden provocation (g) Whether the person inflicting the injury has taken advantage or has acted in a cruel and unusual manner.

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On perusal of record, the complainant’s statement was recorded by the Police, Aranthangi Police Station viz., P.W.7 on 13.02.2021 morning 05.00 hours. It reads as follows:

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“thf;F%yk;- mKjts;sp taJ 19/2011 w/o.Nrfu;.

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FKshf;Fz;L. Ridaf;fhL (p.o) mwe;jhq;fp (t.k) Gjf;Nfhl;il.

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ehd; FKshf;Fz;L vd;Dk; Cupy; vdJ fztUld; trpj;J tUfpNwd;. vdf;F jpUkzkhfp ,uz;L Mz;Lfs; MfpwJ vq;fSf;F Foe;ijfs; ,y;iy. vdJ fztu; Nrfu; vdJ khkh kfd; Mthu;. vdJ fztu; NrfUf;F Fbg;gof;fk; cz;L. jpUkzk; MdjpypUe;Nj Fbj;Jtpl;L vd;dplk; gpur;rid nra;tJ tof;fk; mNj Nghy; ,d;W 12.02.2021-k; Njjp ,uT 07.45 kzpf;F ehd; tPl;by; ,Ue;j NghJ tPl;bf;F te;j vdJ fztu; Nghijapy; vd;id ,d;Dk; rhg;ghL nra;atpy;iyah Njtbah kfNs

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vd mrpq;fkhf Ngrpdhu;. ehd; Vd; ,g;gb NgRfpwPu;fs; vdf; Nfl;ljw;f;F mg;gbj;jhz;b NgRNtd; vd;d nra;tha; vdf;$wp tPl;by; ,Ue;j kz;nzz;nza;-ia vLj;J tPl;by; cs;s Jzpkzpfspy; Cw;wp vupf;fr; nrd;whu; ehd; jLj;J kz;nzz;nza; Nfid thq;fp mtiu fl;Lg;gLj;Jk; Nehf;fj;Jld; tpisahl;lhf kz;nzz;nza; Nfid vd; kPJ Cw;wp nfhs;s Nghtjhf nrhd;Ndd;. mjw;F vd; fztu; Nrfu; eP ,Uj;J vd;db gz;z Nghw. ,j;NjhL nrj;J njhiyb vdf; $wp kz;nzz;nza;ia vd; kPJ Cw;wp tpl;L vdJ fztu; rpful; gpbf;f itj;jpUf;Fk; iyl;liu nfhz;L vd; ,lJ gf;f ,Lg;G gFjpfspy; gj;j itj;J tpl;lhu; gpd;du; mf;fk;gf;fj;jpdu; te;J jPia mizj;J 108 Mk;Gyd;]; %yk; GJf;Nfhl;il muR kUj;Jtf;fy;Y}up kUj;Jtkidapy; cs;Nehahspahf rpfpf;ifapy; cs;Nsd;. vd;id nfhiy nra;Ak; Nehf;fj;Jld; vd; kPJ jPia gw;w itj;j vdJ fztu; Nrfu; kPJ eltbf;if vLf;Fk;gb Nfl;Lf; nfhs;fpNwd;. mwe;jhq;fp Nghyprhuhfpa jhq;fs; tprhupf;f elg;igr; nrhd;Ndd;> gbf;ff; Nfl;Nld; rupahf ,Ue;jJ”

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As per the complaint statement, the accused after

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consuming alcohol used to create problems with her. On the date of

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occurrence, namely, on 12.02.2021 at about 07.45 hours, the accused had come in an inebriated condition and asked her why she had not prepared cooked food and abused her in a filthy language, “Njtbah kfNs”. When the complainant had questioned him why he uttered such unparliamentary words, for that, the accused stated that he would talk only like that and taking kerosene poured the same on the clothes lying in the house and had tried to burn them. The deceased/complainant had snatched the kerosene bottle from the accused and told him playfully that she was going to pour the kerosene on herself. The accused with intention to murder her, grabbed the kerosene bottle, poured it on her and lit the fire ablaze with his cigarette lighter. She was admitted in the hospital for treatment. The statement of the victim was recorded by P.W. 7. Thiru. Siva Kumar.

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However, much prior to the the above statement alleged

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to be recorded by P.W.7, dying declaration of the deceased was recorded by the Judicial Magistrate No.I, Pudukottai at about 1.03 hours on the same day. The Judicial Maistrate stated that after receipt of the intimation from the Government Hospital Pudukkottai, he had gone to the hospital at about 12:40 hours, and the patient was identified by the duty Doctor,

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Thiru.Neelakandan. In order to record the dying declaration, he had sent out the inmates who were staying with the patient and after obtaining certificate from the doctor about the state of fitness, consciousness of patient, he recorded the dying declaration.

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In the dying declaration, the deceased Amrithavalli, categorically stated that she had quarrelled with her husband, and had poured kerosene on herself, her husband lit the fire with his lighter and thereafter, he extinguished the fire with water and brought her to the hospital, along with her sister and mother-in-law. The initial statement recorded by the learned Judicial Magistrate is totally different from the statement alleged to be recorded by the P.W.7.

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Ex.P5 is the accident register issued by Dr.S.Vijayan on 12.02.2021 at 11.00 hours, in which he had mentioned in the column, nature of the injury as self-inflicted burns. He was examined as P.W.4 and deposed that he made entries as per statement of the ambulance technician and relatives.

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The statement recorded by the Judicial Magistrate and

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the statement recorded by P.W.4 tallied to an extent as the deceased, in her dying declaration clearly stated that she alone poured kerosene on her back but her husband lit the fire with cigarette lighter but he himself, extinguished the fire.

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21.P.W.4 Dr.Vijayan, clearly mentioned in the accident register Ex.P.4 that he had already informed the Police official about the occurrence at about 11.00 hours. However the statement of the victim was alleged to be recorded by the police viz., P.W.7 only at about 5.00 hours. P.W.7 deposed in his evidence that he had recorded the statement at about 3.30 a.m. But in the statement Ex.P.1, he endorsed that the statement was received at about 5.00 hours. The Investigating Officer P.W.8 categorically stated that, soon after the receipt of FIR, he had gone to the Hospital and found that the victim lady was unconscious and since she was not in a position to give her treatment, he recorded the statement of her sister P.W.1. Though it was alleged that the FIR was registered at about 5.00 hours, it did not reach the Judicial Magistrate Court soon after the registration of FIR, but it reached the Court belatedly. However, it was proved that it could reach the Court in a short time for which there was no explanation on the part of prosecution.

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22.P.W.7 clearly admitted that before recording the statement of victim he has not obtained any certificate from the Doctor to show that she is conscious oriented, fit state of mind to give statement. The victim was conscious when she admitted into hospital which was revealed by the Ex.P.5 accident register, further victim girl in her dying declaration stated to the Judicial Magistrate that, due to quarrel with her husband, she poured kerosene on her, her husband lit fire with lighter, the statement was recorded at about 12.40 hours. The Judicial Magistrate, who had recorded the dying declaration of the victim has been examined as P.W.3. He clearly stated he had obtained fitness certificate for her mental fitness and conscious state and after recording the statement, he read it over to the victim and explained to the victim lady and only thereafter, her thumb impression was obtained as she was not in a position to sign in the statement.

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23.Per contra, the statement recorded by P.W.7 is contrary to the statement recorded by the Judicial Magistrate. There is no necessity for the victim to change her version before the Police Official by stating that her husband had snatched the bottle from her and had poured kerosene on her and set ablaze. If the accused had intention to kill her,

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he need not have extinguished the fire and taken her to the hospital for treatment. It is proved from the dying declaration of the deceased and the statement of the P.W.1 that the accused had also accompanied her to the hospital for treatment. Therefore, the further statement alleged to be recorded by the Police might be stated by the sister of the victim, viz., P.W.1 who had accompanied her when she was brought to the hospital, as her thumb impression also find a place in the statement alleged to be recorded from the victim.

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24.A person expecting death not tell lies as the belief is that

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when facing imminent death, individuals are more likely to be truthful due to the gravity of situation and the idea that they have nothing left to gain by deception. The Dying declaration is considered highly credible evidence due to the assumption that they would not lie in such a situation.

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25.Section 32 (1) of the Indian Evidence Act deals with dying declaration as follows :

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“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

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Statements, written or verbal, or relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases :

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(1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

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Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

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26.The prosecution failed to prove that when PW7 recorded

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the statement of the victim, she was conscious oriented and in a fit state of mind to give statement. Therefore, we believe the statement of the victim made before the Judicial Magistrate and consider it to be the true statement stated by the victim when she was alive. But it is proved that

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though she had poured kerosene on her, the accused alone lit the fire and set her ablaze.

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27.Now we have to decide whether the act committed by the accused would amount to murder under section 300 or culpable homicide, not amount to murder.

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28.This Court has to analyze whether the offence committed by the accused falls within the definition of culpable homicide amounting to murder or culpable homicide not amounting to murder. The distinguishing factors between culpable homicide and murder are as follows :

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“What distinguish these two offences is the presence of a special mens-rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300 IPC as distinguishing murder from culpable homicide. Unless the offence can be said to involve at least one such mental attitude it cannot be murder.”

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29.For better appreciation, it is relevant to extract Section

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300 IPC along with its comments from the Indian Penal Code, by Ratanlal and Dhirajlal (32^nd enlarged edition)):-

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“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—

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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—

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Thirdly.—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—

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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.

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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

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offender's having taken undue advantage or acted in a cruel or unusual manner.

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Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.”

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30.As per penal provision under S.300 IPC except the following exceptions culpable homicide is murder.

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Exception 1- When culpable homicide is not murderCulpable 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.

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The above exception is subject to the following

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provisos:-

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First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person.

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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.

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Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense

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Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense 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 defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.

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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.

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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 having taken undue advantage or acted in a cruel or unusual manner

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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.

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The distinction between these two offences is very ably set forth by MELVILL, J., in Govinda's case and by

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SARKARIA, J., in Punnaya's caselo the relevant passages from Punnayya's case are reproduced below.

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"In the scheme of the Penal Code, 'culpable homicide' is genus and murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally 'culpable homicide sans 'special characteristics of murder' is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the Second Part of Section 304."

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The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the Courts for more than a century. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections allow themselves to be drawn into minute

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abstractions. The safest way of approach to the interpretation and application of these provisions seems to be, keep in focus the key words used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

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*Section 299*	*Section 300*
A person commits homicide if the act by death is caused is done..	culpable which the ... Subject to certain exceptions Culpable homicide is murder if the act by which death is caused is done...
	*INTENTION*
(a) With the intention death; or	of causing (1) With the intention of causing death; or
(b) With the intention such bodily injury as cause death; or	of causing is likely to (2) With the intention of causing such bodily injury as the offender known to be likely to cause the death of the person to whom the harm is caused; or
	(3) With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or *KNOWLEDGE*
(c) with the knowledge likely to cause death.	that act is (4) 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.

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In this case, the prosecution failed to prove that the accused had any motive to kill the deceased and that he had entered his residence with the intention to kill her. Except P.W.1, no one stated about the previous problems the accused and the deceased had with each other.

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P.W.1 during cross examination, admitted that her sister and the deceased got married after they fell in love each other. The victim girl in her dying declaration clearly stated that due to quarrel, she had poured kerosene on herself and the accused lit the fire, but immediately he extinguished the fire with water and also took her to the hospital, which clearly proved that the accused had no intention to kill the victim, but due to sudden fight and in a fit of anger, he lit fire, but after realizing the same, he extinguished the fire, took her to hospital for treatment in order to save her. However, he had knowledge that if he lit fire on her, it will endanger her life.

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In this case, it is clearly established that the accused had no intention to commit murder and also had no preplan to commit the murder but committed the murder when he was in a fit of anger which resulted in the the death of his wife. This would come under the exception, part two of section 304 IPC.

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We therefore hold that the offence committed by the appellant falls under culpable homicide not amounting to murder and is punishable under the second part of section 304 IPC. The first part of section 304 would apply when there is such intention, whereas the second part would apply when there is no such intention, but there is knowledge.

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In the case of Anda v. State of Rajasthan, reported in AIR 1966 SC 148 , the two relevant Sections 299 and 300 respectively are brilliantly analysed and the relevant observations are made at page 151 in para 7. Before we refer to those observations, we would refer to certain observations made earlier. They are as under:-

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“The offence of culpable homicide involves the doing of an act (which term includes illegal omissions) (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death or (c) with the knowledge that the act is likely to cause death. If the death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed................ Intent and knowledge in the ingredients of the section postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the

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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 death of the person.

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Sec. 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Sec. 300 begins by setting out the circumstances when culpable homicide turns out into murder which is punishable under sec. 302 and the exceptions in the same section tell us when offence is not murder but culpable homicide not amounting to murder punishable under sec. 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder.”

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(Emphasis supplied)

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(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the

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accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.”

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36.Relying on the ratio laid on the above judgments, we hold that the offence committed by the accused does not attract Section 300 IPC, but falls under Section 304(ii) IPC.

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37.In this regard, we need to point out with sorrow that our

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country faces number of death cases caused due to burn injuries. There are no words to describe the pain and suffering of the victim who succumbed to death due to burn injury. A burn injury is one of the most painful injuries a person can experience, viz., Acute stress disorder, Neuropathic pain, pain that is often described as shooting, burning can also feel like pins and needles or stabbing. This type of pain is caused by nerves damaged by the burn injury (research by Shelly A.Wiechman Ph.D., and Shawn T. Mason Ph.D., in collaboration with the Model System Knowledge Translation Centre (MSKTC).

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38.An Epidemiological Analysis of Deaths Due to Burns in newly married females was conducted by Assistant Professors namely, (1) Nisreen Abdul Rahman, (2) Shanmugam K., (3) Sanjay Sukumar, (4) Kusa Kumar Shaha of various Department viz., (1) Assistant Professor, Department of Forensic Medicine & Toxicology, KMCT Medical

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College, Kozhikode, Kerala, (2) Assistant Professor, Department of Forensic Medicine & Toxicology, Government Villupuram Medical College, Villupuram, Tamilnadu, (3) Additional Professor, Department of Forensic Medicine & Toxicology, Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER), Puducherry, India, (4) Professor, Department of Forensic Medicine & Toxicology, JIPMER, Puducherry, India. Through their research they found the following results :-

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“The total number of cases autopsied during the study period from January 2014 to June 2015 (18 months) were 1254 cases, of which 36.36% (n=456) cases constituted female deaths. In these 456 cases, 65 cases (5.18% of total autopsies) were newly married female deaths. But only 48 cases (3.82% of total autopsies) were female deaths due to burns within seven years of marriage. The age group of the cases brought to our hospital was ranging from 19 – 38 years. About half of them (50%) were in the age group of 22 -25 years (Fig no.1). About 56.17% (n-26) of them died within 3 years of marriage and 87.5% died within 5 years of marriage. Only 3 cases occurred within a year of marriage (Table no.1).Most of the incidences occurred in the rural area (87.5%) as compared to urban (12.5%). About 62.5 % of them were living in joint family and rest were from the nuclear family (37.5%). About two-third of burns (66.7%)

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happened during night hours (i.e. 6 pm-6 am) and rest (33.33%) during the daytime.

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We noticed that 66.67% of them were coming from low-income families and 31.25% from middle-income families. Only 2.1% were high-income families. About 25% (n-12) of them had upper primary level, 52.68% (n- 25) high school level, 16.67% (n-8) higher secondary level of education. Only 6.25% (n-3) were graduates. None of them were professionals or postgraduates. None of them were illiterates or lower primary level (Fig.no.2). Out of 48 deceased women, 40 were homemaker wives, 5 were daily labourer, and 3 employed in private firms.

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From our study, we observed that about 56.25% of victim’s husbands were daily labourers followed by 22.92% own business runners and 14.58% employed in the private/government sector. About 6.25% of them were without any jobs (Fig.no.3). The reason/motive behind death is illustrated in Table no.2. Out of 48 cases, 28 cases were suicidal, 18 accidental, and 2 homicidal cases. But at the end of our study, some of the cases got altered to different manners on inquiry to the police station by phone calls. Two suicidal cases got altered to homicides, and two accidental cases got altered to one homicide and one suicide.”

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39.Apart from the above, we learn that India has one of the

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highest rates of death caused by burn injury. Annual estimate suggests

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that 23,000 deaths have been caused due to burn injury. Roughly 20% of the global mortality burden is from burns with majority of victims being women aged 15-49 years old.

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40.The accused who caused death by burn injury to the young wife deserves no leniency.

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41.Taking into consideration the seriousness of the offence

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though, though we modify the conviction of the accused from Section 302 IPC to Section 304(ii) IPC and modify the sentence of life imprisonment, we sentence the accused to undergo imprisonment for ten (10) years rigorous imprisonment with fine of Rs.1,000/- (Rupees One Thousand only) in default, to undergo three months simple imprisonment.

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In the result,

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(i) This Criminal Appeal is partly allowed.

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(ii) The conviction under Section 302 IPC passed by the

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learned Sessions Judge, Mahila Court, Pudukkottai, dated 24.03.2023, in S.C.No.95 of 2021, is set aside and the conviction is modified to Section 304(ii) IPC.

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(iii) Accordingly, the sentence of Life Imprisonment passed

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by the Court below is set aside and the appellant is sentenced to undergo Rigorous Imprisonment for ten (10) years and to pay a fine of Rs.1,000/(Rupees One Thousand only) and in default to pay the fine amount, to undergo Simple Imprisonment for three months.

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(iv) The period of sentence already undergone by the accused/appellant shall be set off under Section 428 Cr.P.C., as against the substantive sentence.

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(v) The trial Court is directed to secure the appellant/accused

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and commit him to the prison to undergo the remaining period of

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sentence.

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(G.R.S., J.) & (R.P., J.) 30.01.2025 Index : Yes / No Internet : Yes / No NCC : Yes / No

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RM

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