State of Madhya Pradesh Vs. Ram Prasad
 INSC 286 (4 December 1967)
04/12/1967 HIDAYATULLAH, M.
CITATION: 1968 AIR 881 1968 SCR (2) 522
Indian Penal Code (45 of 1860), s. 300
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.
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]
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.
I.N. Shroff and M. N. Shroff, for the
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,, 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 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
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 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 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
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.