Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. Mr. Janjani further submitted that in fact the evidence of PW-2, PW-3 and PW-8 was that the door of the room in D which the deceased got burnt was closed from inside by lathi and stones and hence none of the prosecution witnesses PW- 2, PW-3 and PW-8 could have seen as to how actually the deceased got burnt. He submitted that therefore there is no proof of the intent of the respondent to cause the death of the E deceased and the respondent cannot be held guilty of the offence of murder under section 302, IPC and he could only be punished for the offence under Section 304, IPC. He submitted that PW-3 has clearly stated that prior to the incident which took · place on 05.03.1997 she had not noticed any mischievous act on the part of respondent. In this context, he submitted that the respondent has already undergone imprisonment for six years which may be sufficient punishment for the offence under Section 304, IPC. He further submitted that the respondent is a married person and has three grown up daughters and will suffer immense hardship if he is sent back for life G imprisonment. In support of this submission, he relied on the decision of this Court in Surendra Singh v. State of Uttaranchal [(2006) 9 SCC 531] and State of Rajasthan v. Maharaj Singh and Another[(2004) 13 SCC 165] in which this Court has taken a view on similar facts that the offence committed by the accused was one under Section 304, IPC and not under Section 302, IPC.
12. Mr. Janjani, relying on State of Uttar Pradesh v. Banne @Baijnath & Others. ((2009) 4 SCC 271] and State of Andhra Pradesh v. S. Swarnalatha and Others ((2009) 8 SCC 383], finally submitted that the scope of interference by this Court under Article 136 of the Constitution in a judgment of acquittal passed by the High Court is very limited. He submitted that this is a case where two possible views on the evidence are possible, one that the respondent is guilty and the other that c the respondent is not guilty and in such cases this Court has held that if the High Court has taken a view in favour of the accused and has acquitted him of the charges, this Court should .iiot interfere with the same. In support of his proposition, he relied on State of Kera/a vs. Nazar ((2005) 9 SCC 246] and Shri Gopal and Another vs. Subhash and Others ((2004) 13 sec 174]. Findings of the Court:
13. We have perused the first dying declaration (Ext. P-4) and we find therefrom that the deceased has clearly stated that the respondent Santosh poured kerosene on her from a can and ignited the fire by a match stick on her saree and as a result she got burnt. The dying declaration (Ext. P-4) was recorded by ASI, PW-9, within two to three hours of the incident at 2.30 p.m. on 05.03.1997 at the Female Surgical Ward General Hospital. This dying declaration (Ext.P-4) was recorded in the presence of Dr. R.C. Goyal, Medical Jurist (PW-4) when the deceased was in a condition to make a statement. The High Court appears to have doubted this dying declaration because PW-4 has stated in his cross-examination that the deceased told him that she had got burnt on her own and he has also made a note in the injury report (Ext.P-3) that the deceased had got burnt on her own. The High Court lost sight of the fact that PW- 4 has conducted the medical examination of the deceased at A the hospital at 1.45 p.m. and, as has been stated by PW-4 in his evidence, the injury report (Ext. P-3) had been prepared before the dying declaration (Ext.P-4) was recorded at 2.30 p.m. It is perhaps for this reason that in Ext.P-3, after the deceased gave her statement (Ex. P-4) to PW-9 in the 8 presence of PW-4 that PW-4 corrected the injury report (Ext.P- 3) by scoring out the words "by herself'. In other words, after PW-4 came to know later from the statement of the deceased recorded by PW-9 in his presence that the deceased did not get burnt by herself, he corrected the injury report (Ext.P-3). The c High Court has failed to appreciate the evidence in this light.
14. On a reading of the second dying declaration (Ext.P- 10) recorded by Dr. R. Gurmukhi, PW-11, at the hospital at Gwalior, to which the deceased was shifted, we find that the 0 deceased reiterated that there was a quarrel between her and the respondent and the respondent poured kerosene oil on her and ignited the fire and as a result she got burnt. We also find from the evidence of PW-11 that the deceased was in a condition to make the dying declaration on 08.03.1997. It is E true, as has been submitted by the learned counsel for the respondent that in patient case sheet (Ext. P-13) of the deceased, PW-11 has written that it is a case of homicidal burns while she was preparing meal on stove four days back, but we find on a reading of Ext.P-13 that it is also mentioned F "her husband's younger brother, Santosh, quarrel with her". Hence, in the second dying declaration (Ext.P-10) also the deceased has named the respondent Santosh as having quarreled with her and as a result she has suffered the burn injuries. The High Court was, therefore, not right in coming to G the finding that there were inconsistencies in the two dying declarations (Ext. P-4 and Ext. P-10).
15. The two dying declarations of the deceased, Ex. P-4 and Ex.P-10, are corroborated by recovery of a plastic can with some kerosene oil, burnt pieces of saree, blouse and bangles H as well as the broken matchsticks from the room (khaprail) where the incident took place. PW-2, PW-3 and PW-8 have not seen what actually had happened inside the room (khaprail) because the door of the room was closed, but they have seen the respondent coming out of the room and the deceased was in a burnt condition. PW-2, PW-3 and PW-8, therefore, have corroborated the statements of the deceased in the two dying declarations (Ext.P-4 and Ext.P-10) that none other than Santosh was in the room in which the incident took place.
16. Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, is made by a c 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, such statement is relevant. Hence, Exts. P-4 and P- 10 are relevant for deciding as to what was the exact cause of 0 the death of the deceased in this case. In this case, Exts. P-4 and P-10 were also corroborated by both circumstantial evidence regarding the recovery of plastic can with some kerosene oil, burnt pieces of saree, blouse and bangles and broken matchsticks from the place of occurrence as well as the direct evidence of PW-2, PW-3, PW-4 and PW-8, who had seen the respondent coming out of the room where the incident took place. In our view, therefore, the High Court could not have acquitted the respondent by the impugned judgment.
17. In State of Kera/av. Nazar[(2005) 9 SCC 246], cited by the learned counsel for the respondent, this Court found that the conclusion of the High Court was based on the evidence on record and there was no error in the appreciation of the evidence by the High Court and for this reason this Court did not interfere with the decision of the High Court saying that the view was a reasonable one taken on the basis of the evidence on record. In this case, on the other hand, we have found that the High Court could not have taken the view that the respondent was not guilty at all when there were two dying declarations of A the deceased corroborated by both circumstantial and direct evidence.
18. In Shri Gopa/ & Another v. Subhash & Others. [(2004) 13 sec 17 4] relied on by the learned counsel for the B respondent, this Court found that there were certain discrepancies in the prosecution case because of which the High Court had doubts with regard to the participation of the accused persons and this Court took the view that a possible view has been taken by the High Court, which should not be C interfered with by this Court under Article 136 of the Constitution. In this case, on the other hand, we have found that the view taken by the High Court was not a possible one when the name of the respondent is taken in the two dying declarations of the deceased as the cause of the fire in which the deceased was burnt and the dying declarations were corroborated by both circumstantial and direct evidence.
19. The High Court has taken a view in the present case that the Magistrate should have been requisitioned for recording the dying declaration and has considered this lapse on the part E of the prosecution as a reason for not believing the dying declaration. The Constitution Bench of this Court in Laxman v. State of Maharashtra (supra) has, on the other hand, held that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and what is essentially required is that the person who records the dying declaration must be satisfied that the deceased was in a fit state of mind. In this case, the Constitution Bench, however, has held that what evidential value or weight is to be attached to a dying declaration necessarily depends on the facts and circumstances G of each particular case. In this case, as we have found, the deceased has made two dying declarations (Ext. P-4 and Ext. P-10) and has consistently named the respondent as the person for the cause of her burn injuries and the two dying declarations are corroborated both by circumstantial evidence H and direct evidence. Hence, even though the Magistrate was not requisitioned for recording the dying declarations, the High Court ought not to have discarded the dying declarations.
20. The only other question which remains to be decided in this case is whether the respondent should be held guilty of the offence under Section 302, IPC, or Section 304 IPC. A person could be held to be guilty of offence under Section 302, IPC, if he commits murder. The relevant portion of Section 300, IPC, which defines "murder" is extracted hereunder: "300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death . is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. Under first clause, if the act by which the death is caused is done with the intention of causing death, the act amounts to murder. Under the second clause, if the act 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, the act amounts to murder. Under the third clause, if the a\.:t 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, the act amounts to murder. In each of the three clauses, intention to cause death or to cause the bodily injury is an essential ingredient of the offence of murder. Under the fourth clause, if the person committing the act knows that it is so imminently B 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, he is said to have committed murder. Hence, under the fourth clause, knowledge of the act committed C by the accused that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, is a necessary ingredient for the offence of murder.
22. In the facts of the present case, PW-2, PW-3 and PW- 8 have not seen what exactly happened inside the room (khaprail) in which the incident took place. The deceased has, however, stated in the two dying declarations (Ext.P-4 and Ext.P-10) that the respondent poured kerosene on the E deceased and ignited fire on the saree of the deceased. The two dying declarations (Ext.P-4 and Ext.P-10) are very sketchy and do not narrate the details as to how the incident took place except stating that there was a quarrel between the deceased and the respondent. From the two dying declarations (Ext.P-4 F and Ext.P-10), therefore, it is difficult to record a finding that the respondent had any intention to cause death of the deceased or had any intention to cause any bodily injury. From the two dying declarations (Ext.P-4 and Ext.P-10), it is also difficult to come to a finding that the respondent committed the G act knowing that it is so imminently dangerous that it must, in all probability, cause death of the deceased. As found by the High Court, there was some delicate relationship between the respondent and the deceased and it is difficult to believe that the respondent had any intent to cause death or bodily injury H to the deceased. Rather, it appears to us that the death of the deceased has been caused by a reckless act of the respondent with the knowledge that it is likely to cause death and for this act the respondent is guilty of culpable homicide not amounting to murder under Section 304, Part-II, IPC. The respondent has undergone imprisonment of approximately six years and the incident is of the year 1997. In the peculiar facts and circumstances of the case, the period of imprisonment undergone by the respondent-accused and a fine of Rs.2,000/ – are sufficient punishments under Section 304 Part-II, IPC.
23. The appeal of the State is allowed. The impugned judgment of the High Court is set aside and the respondent- accused is held guilty of the offence under Section 304 Part-II, IPC, and is sentenced for a period of six years undergone by him and a fine of Rs.2,000/- to be paid within two months from today, failing which he will be liable for imprisonment for a further period of two months. K.K.T. Appeal allowed.