Fattesingh Pancham Ghodke vs State Of Maharashtra
2001 Latest Caselaw 635 Bom

JUDGMENT

J.N. Patel, J.

1. The appellant Fattesingh s/o Pancham Ghodke, was tried by the 6th Additional Sessions Judge, Nagpur on the charge of having committed murder by intentionally and knowingly causing death of his wife Smt Sharda w/o Fattesingh Ghodke by means of pouring kerosene on her person and setting her on fire on 3-8-1994 at about 2.30 p.m. In Shatabdi Nagar, Nagpur. The learned trial Judge found the accused guilty and by his judgment and order dated 24-11-1995, convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- or in default to suffer R. I. for 6 months, which is a matter of challenge in this appeal.

2. It is the prosecution's case that the appellant/accused was married to Sharda in the year 1991 and they started residing in the area known as Vakilpeth, Nagpur. Sharda was ill-treated by the appellant/accused as he suspected her character and was also in the habit of demanding money. On one occasion, the appellant/accused had also injured her by Gupti. On being injured, Sharda was brought to her mother's house at Shatabdi Nagar, Nagpur. Within 8 days, the appellant/accused also went to Shatabdi Nagar, Nagpur and started residing with them. At her mother's place also, the appellant/accused used to treat his wife with cruelty and often used to beat her. He did no work and used to pass his time in smoking Ganja.

On 3-8-1994, there was no one at home i.e. Smt. Indubai (P.W.1) mother of the deceased Sharda had gone to attend her grocery shop. The appellant/accused quarreled with Sharda suspecting her fidelity and poured kerosene on her person and set her on fire. Because of this and probably due to the alarm raised by Sharda, the attention of the neighbours was attracted. Muktabai (P.W. 3) and one Geetabai saw Sharda coming out of her house . while burning and they saw the appellant/accused running away from the place. The neighbours extinguished the fire and Sharda was taken to hospital in a rickshaw by them. Geetabai then went to the shop of Indubai and informed her about the incident.

On Sharda being admitted to Medical College and Hospital, Nagpur in burnt condition an intimation was given to the police at the police booth in Medical College and Hospital. On receiving such information, Head Constable Bhaurao (P.W. 5) went to the ward No. 39 where Sharda was admitted and met the Medical Officer. He gave a request letter to the Medical Officer on duty to give his opinion as to whether the patient (Sharda) was in a condition to give her statement and after the Medical Officer certified that the patient was in a fit condition for giving statement, he went to the room and made enquiries from the injured and recorded her statement (Ex. 39). In her statement given to Head Constable Bhaurao, Sharda gave all the particulars about her marriage with the appellant/accused, that she has a 2 year old daughter and was pregnant, her husband used to suspect her character and therefore, used to quarrel with her and beat her. Due to the cruel behaviour of her husband, she was residing with her mother Indubai at Shatabdi Nagar, Nagpur and that on that day, her husband quarreled with her and poured kerosene on her person and set her on fire. There was no one in the house and this is how she has sustained burns on her both hands, breast portions, abdomen, thighs, back and buttock portions and Geetabai, a woman residing in her neighborhood had brought her and admitted her in the Medical College, Hospital for treatment, and this is how she was there on bed No. C/3, in Ward No. 39 and undergoing treatment. This report received by Head Constable Bhaurao was then forwarded to Police Station, Ajni.

P.S.I. Akhtar who was on duty at the police station, deputed Shri Devidas (P.W. 4) to visit Medical College and record the statement of Sharda.

On this, Head Constable Devidas visited Medical College and Hospital, Nagpur and approached the Medical Officer for seeking his permission to record the Dying Declaration and as the Medical Officer certified that the patient was fit for giving statement, he recorded the statement of Sharda Fattesingh Ghodke, which is at Ex. 34. In this statement also, Sharda narrated the same story which she has given to Head Constable Bhaurao in her report Ex. 39. The report Ex. 39 was treated as F.I.R. and Crime No. 244/94 came to be registered against the appellant/accused for having committed an offence under Section 307 of I.P.C.

3. The police, on registering F.I.R. Ex. 49, sent a requisition to Shri Manohar Gajbhiye (P.W. 2), Special Judicial Magistrate, Nagpur to record the Dying Declaration of Sharda. On receiving such request, Shri Gajbhiye (P.W. 2) visited the Government Medical College and Hospital at about 9.00 p.m. and gave a requisition to the Medical Officer of Ward No. 39 for giving permission to him for recording the statement of Sharda and also to give his opinion as to whether Sharda was in a condition to give her statement. On the medical Officer certifying that the patient is fit for giving statement, Shri Gajbhiye (P.W. 2) recorded the Dying Declaration of Sharda which is at Ex. 31. In the Dying Declaration Ex. 31, Sharda gave the same story that her husband poured kerosene from the can on her person and set her on fire with the help of matchstick and ran away and this was because he was suspecting that she is having illicit relationship with other persons.

4. P.S.I. Aziz (P.W. 6) after registering the F.I.R. visited the scene of offence but as there was no light, he revisited the spot and prepared Panchanama Ex. 14. In the course of investigation, he also recorded statement of Indubai (P.W. 1) mother of the deceased Sharda, Muktabai (P.W. 3) and Smt. Geetabai Ghodke and others. The appellant/accused came to be arrested on 4-8-1994 at about 19.30 hours. On 8-8-1994, Sharda succumbed to her injuries and therefore, entry was made in the station diary, P.S.I. Gajbhiye was sent to prepare the Inquest Panchanama and take further steps in the matter. Therefore, an inquest panchanama Ex.13 came to be prepared. The body of Sharda was sent for post mortem examination. The police altered the case to Section 302 of I.P.C. against the appellant/accused.

5. The post mortem report Ex. 19 discloses that the deceased Sharda had 56% burn injuries and the opinion as to the cause of death was "The Woman died due to SEPTICEMIA as a result of 56% infected burns of total body surface area". In the course of investigation, the entire seized property i.e. from the scene of offence, during the inquest panchanama and that from the appellant/accused on his arrest, was sent to the Forensic Science Laboratory. On completion of the investigation, charge sheet came to be filed against the appellant/accused in the Court of Additional chief Judicial Magistrate, who then committed the case of the appellant/accused to the Court of session for trial.

6. The trial of the accused was taken up by the 7th Additional Sessions Judge, Nagpur who framed charge against the appellant/accused vide Ex. 5, to which the accused/appellant pleaded not guilty. It was the case of the appellant/accused that, on the day of the incident, he had gone to attend his business and is not aware as to how Sharda suffered bum injuries as a consequence of which she died. He claimed that he had been to Medical College and Hospital, Nagpur and made an attempt to speak with Sharda but she did not talk with her and thereafter he was arrested. On conclusion of the trial, the trial Court found that the prosecution has proved that Sharda died homicidal death and it is the accused Fattesingh, who poured kerosene and thereby intentionally and knowingly caused her death and therefore, the appellant/accused is guilty of having committed an offence under Section 302 of Indian Penal Code.

7. Mr. Daga, the learned counsel for the appellant/accused submitted that the prosecution case rests on the 3 Dying Declarations of Sharda, which contains various infirmities and are not consistent. Further, the prosecution has not been able to establish that Sharda, after suffering bum injuries, was mentally and physically fit to give such Dying Declaration, and her Dying Declaration recorded by the Executive Magistrate was without obtaining the opinion of the Medical Officer as to her Physical and mental fitness to give such statement and therefore, none of the Dying Declarations are reliable.

8. Mr. Daga, submitted that insofar as Indubai (P.W. 1) and Muktabai (P.W. 4) are concerned, they are interested witnesses, as Indubai is the mother of deceased whereas Muktabai is neighbour of Indubai and they have falsely implicated the appellant/accused as he has ill-treated Sharda and therefore, their evidence cannot be accepted against the appellant/accused.

9. Mr. Daga submitted that admittedly, Sharda was not residing with the appellant/accused and that the appellant/accused is the resident of Vakilpeth and no independent witness has been examined by the prosecution to show that it was the accused/appellant who has committed the offence.

10. Mr. Daga submitted that the Medical Evidence brought on record by the prosecution rather goes to establish that Sharda did not the out of burn injuries suffered by her, but due to SEPTICEMIA i.e. Infection contacted by her while under treatment, and therefore, due to this intervening cause, she died after 5 days. Therefore, it cannot be held that the appellant/accused is responsible for causing her death. Mr. Daga submitted that a person who has suffered 56% burn injuries can very well survive, if treated properly and therefore, the conviction and sentence imposed on the accused for having committed offence under Section 302 of Indian Penal Code cannot be sustained.

11. Mrs. Dangre, the learned A.P.P. submitted that the prosecution has established its case against the accused for having committed the murder of his wife Sharda beyond the shadow of doubt. According to her, the 3 Dyingo

Declarations of Sharda, 1st and 2nd being recorded by the Police Officers and the 3rd by a Special Judicial Magistrate, if read together, it clearly indicates that there is no doubt about the fact that deceased Sharda was done to death by her husband who is the appellant/accused. Mrs. Dangre submitted that the deceased has given a detailed and true story because of which her husband poured kerosene on her and set her on fire and then ran away from the place of incident. Mrs. Dangre submitted that the victim had suffered 56% burn injuries and was found physically and mentally fit to give her statement, as certified by the Medical Officer on duty while recording all the 3 Dying Declarations and that these Dying Declarations also stand corroborated by the evidence of Muktabai (P.W. 2), who stated in her evidence of having seen deceased Sharda coming out of her house in burnt condition and the appellant/accused running away from the scene of offence and therefore, there is no doubt that it is the accused/appellant who has committed this heinous crime.

12. Mrs. Dangre submitted that the prosecution has also placed on record the facts and circumstances to show that relations between the accused and his wife Sharda were not cordial and the appellant/accused always treated her with cruelty and used to assault her frequently. It is only after she was injured and left with no option that she came over to her mother's house to reside and even then the accused/appellant did not spare her. This fact has been brought on record by examining P.W. 2 Indubai. It is submitted by Mrs. Dangre that merely because Indubai happens to be the mother of deceased Sharda, her evidence cannot be discarded because she is the best witness as regards the cruel treatment meted out to her daughter by her husband i.e. appellant/accused and this is how her daughter Sharda was forced to leave her matrimonial house and came to reside with her and the evidence of Indubai rather goes to corroborate the Dying Declaration made by Sharda before the Police Officers and the Special Judicial Magistrate.

13. Mrs. Dangre submitted that it is settled law that Dying Declaration can be the sole basis of conviction even if the same is recorded by the Police Officer and in the present case not only the prosecution has been able to prove the 3 Dying Declarations, but also has brought on record evidence by examining Indubai P.W. 1 and Muktabai P.W. 3, who support the prosecution's case.

14. Mrs. Dangre, the learned A.P.P. submitted that the contention of the learned counsel for the appellant that the victim did not the due to bum injuries suffered by her, but because of SEPTICEMIA and, therefore, the appellant/accused cannot be held guilty for committing her murder, cannot be accepted, as the fact remains that the supervening event of SEPTICEMIA was not of any consequence as that was on account of burn injuries cause to the deceased which is clear from the opinion of the Medical Officers, who conducted the Post Mortem and which is not disputed by the

defence and therefore, there is no merit in the appeal and the same deserves to be dismissed.

15. Let us first examine the 3 Dying Declarations, Exs. 39, 34 and 31, in the order they have been recorded and whether they can be found acceptable. It is now a settled law that if the Court is satisfied that the Dying Declaration made by the victim is true and voluntary, it can base its conviction without any further corroboration. In case of "Sharad v. State of Maharashtra", , the Supreme Court laid down the following proposition after taking into consideration the case of Palaka Narayana Swami v. Emperor" as under :--

"Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death of homicide or a suicide, provided the statement relates to the cause of death or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice."

There are catena of decisions of the Apex Court as well as various High Courts which lays down on various principles governing the Dying Declaration, particularly, the case of "Paniben v. State of Gujarat, , which was followed in "Vithal Sadashiv Gaikwad v. State of Maharashtra" 1994 Cri.L.J. 2035 and Surjeet Kaur v. State of M. P., 1994 Cri. LJ. 1886, and on examining these authorities, the principles governing Dying Declaration can be summed up as under :--

(i)     it is neither a rule of law nor of prudence that a dying
declaration cannot be acted upon without corroboration Mannu
Raja v. State of M. P., .
 

(ii)    If the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without corroboration, State of U. P. v. Ram Sugar Yadav, ; Ramavati Devi v. State of Bihar, ; Ajit Singh v. State of Punjab, 1998 Cri.L.J. 3460 (P&H);
 

(iii)   The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assistants and was in a fit state to make the declaration, Rama Chandra Reddy v. Public Prosecutor, ;
 

(iv)   Where a dying declaration is suspicious it should not be acted upon without corroborative evidence Rasheed Beg v. State of M. P., ;
 

(v)    Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected, Kake Singh v. State of M. P. ;
 

(vi)   A dying declaration which suffers from infirmity cannot form the basis of a conviction, Ram Manorath v. State of U. P. 1981 SCC (Cri) 281 = 1981 CriLJ. 168;
 

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected, State of Maharashtra v. Krishnamurthy (Laxmipati Naidu), ;
 

(viii) Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth Surajdeo Oza v. State of Bihar, ;
 

(ix)   Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail, Nanahau Ram v. State .
 

(x)    Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon, State of U. P. v. Madan Mohan, .
 

16. Now we propose to put the 3 dying Declarations recorded in this case to test. The first one, is dying declaration recorded by the Head Constable Bhaurao (P.W. 5) and which is at Ex. 39. Head Constable Bhaurao (P.W. 5) on 3-8-1994, was on duty at Medical College and Hospital Booth from 9.00 a.m. to 9.00 p.m. He received information in writing about admission of Sharda for treatment of burn injuries. So, he immediately went to the ward and met the Medical Officer, gave a requisition letter for giving his opinion whether the patient is in a condition to give her statement. On the said request, Ex. 22, the Medical Officer on duty gave an endorsement that the patient is fit for statement. Thereafter, Bhaurao went inside the room where the Medical Officer was present. He made enquiries about the patient, about her identity and how she suffered the bum injuries and this is how, he recorded the statement given by Sharda w/o Fattesingh Ghodke, Ex. 39. In Ms evidence, he has submitted that he has also made an endorsement as per entry

No. 12 that information was sent to Police Station Ajni. He has categorically stated that at the time of recording the statement, he, the doctor and Sharda were only present. This statement recorded by Bhaurao has been treated as F.I.R. when the same was forwarded to the Ajni Police Station and it is produced before the Court as F.I.R. Ex. 49 and it is pursuant to this report that crime No. 244/1994 has been registered against the appellant/accused for having committed an offence under Section 302 of Indian Penal Code and therefore, this FIR is admissible as Dying Declaration and has been considered to be so by the trial Court. On receipt of the F.I.R., the Police Officer on duty deputed Head Constable Devidas to the Medical College and Hospital, Nagpur to record the statement of the victim Sharda. Accordingly, Head Constable Devidas P.W. 4, visited Medical College. He gave a requisition to the Medical Officer which is Ex. 17 and on the medical officer certifying that the patient was fit for giving statement, he recorded the statement of the patient (Sharda) which is at Ex. 34. The 2 statements i.e. F.I.R. recorded by Head Constable Bhaurao (P.W.5) and the one recorded by Head Constable Devidas (P.W. 4) are consistent with each other. The two statements clearly show that Sharda had given the motive because of which her husband poured kerosene on her and set her on fire and has given the clear description of the manner in which the incident took place and till she was brought to Medical College and Hospital by the neighbours and admitted for treatment.

17. Mr. Daga has objected to the acceptance of the 2 dying declarations by drawing the attention of this Court the fact that the endorsement given by the Medical Officer before recording the Dying Declaration would show that the first endorsement when Head Constable Bhaurao P.W. 5 went to record the statement which was certified by the Doctor, on 3-8-1994 at 5.15 p.m., which can be seen from Ex. 22 and according to Mr. Daga, as Bhaurao has stated in his evidence that the information about admission of Sharda was received at the Medical Booth at 2.30 p.m. and he immediately went there to record the statement, dislodges the prosecution's case that the dying declaration Ex. 39 recorded by Bhaurao was after the Medical Officer certified that Sharda was in a fit condition to give her statement as the prosecution has failed to explain the time gap from 2.30 p.m. to 5.15 p.m. Another attack made by Mr. Daga is in respect of the Dying Declaration recorded by P.W. 5 Devidas. Mr. Daga submits that in cross-examination, Devidas has stated that he recorded the statement Ex. 34 which has been treated as dying declaration at 5.05 p.m. whereas the requisition to Medical Officer Ex, 17 has an endorsement made by the Medical Officer as 7.10 p.m. Therefore, according to Mr. Daga, the prosecution has not led any evidence to reconcile these discrepancies. Therefore, both these dying declarations can not be accepted.

Well, we do not find that for these reasons, these 2 dying declarations deserves to be discarded. Head Constable Bhaurao P.W. 5, in his evidence

before the Court has stated that after receiving the information, he immediately went to the concerned Ward and gave a requisition to the Medical Officer Ex. 22. Head Constable Bhaurao does not say that he was in a position to record the statement of Sharda immediately after 2.30 p.m. There is no reason to disbelieve him on the point that it is only after taking Doctor's certificate, which is an endorsement of 5.15 p.m., that he recorded the statement of Sharda and during that time, he was alone with Sharda and the Medical Officer was also present. The confusion is created because Head Constable Devidas happens to say in his cross examination that he recorded the statement of Sharda at 5.05 p.m. Well, this mistake on the part of Devidas does not dislodge the presecution's case, because it is only after Head Constable Bhaurao P.W. 5 recorded the statement of Sharda, which was obviously after 5.15 p.m. and a report of which was sent to the Ajni Police Station and the Police Officer on duty deputed Head Constable Devidas to visit Medical College and Hospital to record statement of Sharda and obviously, it was after 5.15 p.m. Head Constable Devidas P.W. 4, has given evidence to the effect that he recorded the statement of Sharda only after the Medical Officer certified that she is fit to give statement and that was at 7.10 p.m., as can be seen from the endorsement made on the requisition to the Medical Officer which is Ex. 17. The evidence of Head Constable Bhaurao and Head Constable Devidas, therefore, does not appear inconsistent and can be accepted and so also the dying declarations recorded by them.

18. The 3rd dying declaration is recorded by Shri Gajbhiye (P.W.2) Special Judicial Magistrate. Shri Gajbhiye had been to Government Medical College and Hospital, on being requested by a requisition from Police Station, Ajni and this was after the police registered F.I.R. Ex. 49 at 20.20 hrs. on 3-8-1994. Shri Gajbhiye P.W. 2 gave evidence that at about 9.00 p.m. he gave a requisition to the Medical Officer of Ward No. 39 for giving permission to him for recording the statement of Sharda and to opine as to whether Sharda was in a condition to give her statement and the Medical Officer recorded his opinion as 'patient is fit for statement". Unfortunately, this requisition is not placed on record as evidence by the prosecution. But that by itself, would not show that evidence of Shri Gajbhiye (P.W. 2), who is an independent witness being a Special Judicial Magistrate having no interest in the case, cannot be accepted. Shri Gajbhiye has stated in his evidence as to in what manner he recorded the dying declaration of Sharda and after recording her statement, he also checked up with her that the same is recorded properly by reading the entire statement to her and only after she told that it is correctly recorded, her signature was obtained which was countersigned by Shri Gajbhiye. In his evidence Shri Gajbhiye has stated that the Medical Officer was again requested to record his opinion as to whether patient was in fit condition during the course of recording her statement, but the Medical Officer refused to issue such certificate and therefore, he made an endorsement to that effect below this certificate about the refusal of Medical Officer. It was suggested to

him in cross examination, that the dying declaration was not recorded by him and therefore, the Medical Officer has refused to give certificate, which he has specifically denied and we have no reason to disbelieve Shri Gajbhiye that he has discharged his duty faithfully while recording the dying declaration of Sharda.

19. Mr. Daga, the learned counsel for the appellant submitted that the prosecution has not proved by placing on record any document in support, that Shri Gajbhiye who was recording the dying declaration of Sharda has obtained the Certificate of the Medical Officer and they have also failed to take his endorsement on the completion of the recording of the dying declaration. It was unsafe to rely upon such dying declaration.

20. We find that Mr. Daga is in a position raised doubt on the credibility of the dying declaration Ex. 31 recorded by Shri Gajbhiye, merely because the Medical Officer did not co-operate with him. It is unfortunate that the Medical Officer, who is approached by the Special Judicial Magistrate does not co-operate with him to enable him to discharge his duties, of which due endorsement has been made by Shri Gajbhiye. We have already said that we do not find any reason to disbelieve Shri Gajbhiye, who had been to Medical College and Hospital and recorded the dying declaration of Sharda, which also bears her signature. Nothing has been brought on record to show that the said dying declaration recorded by Shri Gajbhiye is forged one, in the sense that it was recorded without questioning the deceased Sharda. Therefore, we have no hesitation to accept the dying declaration Ex. 34 as truthful, voluntary and reliable.

21. A similar occasion occurred in the case of 'Koli Chunnilal Savji v. Slate of Gujarat" which was decided by the Supreme Court and reported in 7999 Cri. LJ. 4582 and the Supreme Court held as under :--

"It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital she told the doctor on duty that she is required to take the statement of deceased and she showed the doctor the police yadi. The doctor then introduced her to deceased and when she asked the doctor about the condition of deceased the said doctor categorically stated that she was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that deceased was fully

conscious. In view of the aforesaid evidence of the Magistrate in view of the endorsement of doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, the dying declaration can be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as F.I.R., and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt."

22. Now we turn our attention to the evidence of Smt. Indubai and Smt. Muktabai. Smt. Indubai is the mother of deceased Sharda. In her evidence before the Court, she has given the unfortunate story of her deceased daughter Sharda, who was married to the appellant/accused Fattesingh. On the day of the incident, when she received information that her daughter Sharda has been put on fire by her husband, she immediately went to the Medical College and Hospital. She reached there at about 3.00 p.m. and met Sharda in the hospital and asked her as to how it had happened. Thereupon, she told her that there was a quarrel in between Sharda and her husband. Thereafter, her husband poured kerosene on her and set her on fire by lighting match stick and went away. She further told her that she gave shouts and thereafter a lady came and extinguished fire to her by rolling her in a bed. She further told her that the said lady admitted her in the hospital. So, at the earliest opportunity, Sharda did disclose to her mother as to how she suffered burn injuries at the hands of the appellant/accused and she was brought to the hospital for treatment. The evidence of Indubai has been well corroborated by Smt. Muktabai (P.W. 3), who in her statement before Court has stated that her attention was drawn to the house of Indubai when she heard noise of quarrel between deceased Sharda and the appellant/accused. She came out of the house and the deceased Sharda coming out of the house of Indubai. At that time she was burning. At the same time, she saw that the husband of Sharda running away from the house of Indubai. Immediately thereafter, she along with another lady Geetabai went near Sharda and extinguished the fire with the help of gunny bag and clothes and water was given to Sharda. She has stated that at that time none was present at the house of Indubai. She along with Geetabai took Sharda to the hospital in a rickshaw and then Geetabai went to the shop of Indubai for informing her about the incident.

23. In her dying declaration, Sharda has stated about this fact that she was brought to the hospital by Smt. Geetabai Ghodke and admitted for

treatment. There is some improvement in the case of Muktabai, as regards her statement that deceased Sharda and the accused were residing in the house of Indubai for 2/3 months prior to the incident and that none was present except deceased Sharda and her husband i.e. accused/appellant. But this does not affect her evidence. Therefore, we do not find the evidence of these 2 witnesses does establish the prosecution's case that the appellant/accused is the person who has caused the burn injuries to his wife and is responsible for her murder. The evidence of these 2 witnesses also stand well corroborated by the scene of offence panchanama Ex. 14 and the report of the Chemical Analyzer in respect of the articles seized from the place of offence, which also includes, pair of shoes Article No. 8 belonging to the accused/appellant.

24. Mr. Daga, the learned counsel for the appellant has tried to canvass before us that the appellant/accused cannot be held guilty for having committed murder of his wife, who died due to SEPTICEMIA. We are unable to accept this contention of Mr. Daga, as the opinion as to the cause of death which is not disputed by the accused was as given in the Post Mortem report Ex. 19 is, "The women died due to SEPTICEMIA as a result of 56% infected burns of total body surface area". The act of the appellant/accused in pouring kerosene on his wife and setting her on fire was nothing but with an intention of causing her death and it is a case of culpable homicide amounting to murder. In case, Sharda was fortunate enough and could have been saved by the Doctors, we have no hesitation to hold that the offence would have been under Section 307 of Indian Penal Code. SEPTICEMIA was a supervening cause, which was a necessary consequence of the burn injuries suffered by the victim and it cannot be said to be a case that SEPTICEMIA was the intervening cause, which resulted in death of Smt. Sharda and the appellant/accused cannot take any advantage of this fact when the Medical opinion as to the cause of death is very clear that the woman died due to-SEPTICEMIA as a result of 56% infected burns of total body surface area.

25. The Division Bench of this High Court in its judgment rendered in case of "Nandkumar v. State of Maharashtra", 1987 Mh.LJ. 820 = 1988 Cri. LJ. 1313, had examined the case of a person who died due to septicemia, and whether it can be said that it was not the act of the accused who caused the death of such victim and held as under :--

"We have examined this apparently attractive submission of Miss Sharma with all the care that it deserves and we are unable to accept the same. In order to appreciate this submission, we think it necessary to refer also to the evidence of P.W. 9 Dr. Tamboli, whose case papers have been produced before the Court at Ex. 10. He has stated that treatment was given to Vimal for burn shock. Though she came out of that shock, later on account of extensive burns, she developed complications, including sepsis due to infection. In reply to questions in cross examination, he has reaffirmed this position. He has stated that pus formation must have started on the second or third day of

admission. He accepts the proposition put to him that septicemia may lead to septic shock. But it had not been brought out that septicemia was not the result of the bum injuries suffered by Vimal. On the other hand, as we have already seen, in the examination-in-chief he has asserted that on account of the extensive burns Vimal developed complications, including sepsis due to infection. The summary of the medical evidence is that the burn injuries which the accused had caused by setting the clothes of Vimat on fire were 30%. They caused burn shock. Though the patient came out of the same due to treatment, on account of the extensive burns received by her, she developed complications, including sepsis. The next condition was septicemia leading to septic shock. Septicemia itself is the species of larger disease known as erysipelas. The question now, therefore, is whether the death of Vimal can be attributed to the act of the accused, which was that of pouring kerosene on the clothes of Vimal and setting them on fire?

At one stage Miss Sharma suggested that the intention of the accused was only, if at all, to cause grievous hurt and it was not his intention to cause her death. We emphatically reject this submission. Though one may agree that a person committing an offence relating to human bodies is not always aware of the consequence of his act, in the present case, the act of pouring kerosene on the clothes of Vimal and setting them on fire, in our opinion, necessarily implies an intention on the part of the accused to cause her death. If a person pours kerosene on the clothes of another person then sets fire to the same, the only intention that could be inferred is that of causing the death of the other person. That a person who is set on fire is bound to suffer serious injuries and is bound to the as a result of those injuries is a part of the knowledge which must necessarily be attributed to the person who indulges in such act. In "B. Venkateswarlu v. State of A. P.", ," it was held that when one of the accused poured kerosene on the boy after which the appellant lighted a match and set fire to his clothes, the intention was necessarily to cause the death of that boy. There was no doubt about that intention.

In "State of Madhya Pradesh v. Ram Prasad", (1968) 2 SCJ 355 = (1968 Cri. LJ. 1025). the accused had put kerosene oil upon his wife and then set her clothes on fire. The Supreme Court held that it was obvious that the accused must have known that he was running the risk of causing the death of his wife or such bodily injury which was likely to cause her death. The Supreme Court held that the act could even be covered under clause Fourthly of Section 300 of the Indian Penal Code. It was, therefore, held that his offence was - culpable homicide amounting to murder even if he had not intended to cause the death. There, naturally, the Supreme Court examined a

position alternative to the First Clause of Section 300 of the Indian Penal Code and held that even if that alternative position was accepted, still the offence would be one covered by Section 300 and punishable under Section 302 of the Indian Penal Code. We are of the opinion that person who pours kerosene on the clothes of another and sets fire to the same must be attributed with the intention of causing the death of that other person. In the instant case, therefore, we hold that the accused did the act which is proved to have been committed by him with the intention of causing the death of Vimal."

26. Another decision on similar line has been rendered by the Supreme Court in the case of "State of Haryana v. Pala and Ors. ", , in which the Apex Court held that the supervening event of septicemia was not of any consequence as the death was only on account of head injuries and other injuries caused to the deceased.

27. Therefore, it can be safely concluded that the appellant has committed the murder of his own wife by pouring kerosene on her and setting her on fire, as a result of which she suffered 56% bum injuries and as a consequence of which she died.

28. To conclude, we do not find that the learned trial Judge was in error in arriving at a finding that the appellant/accused is guilty of having committed the murder of his wife. There is no merit in the appeal. The same is dismissed.

29. Appeal dismissed.