Madras High Court
Selvaraj vs State Through on 5 October, 2021
Crl.A.(MD)No.336 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.10.2021
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HON'BLE MR.JUSTICE R. PONGIAPPAN
Criminal Appeal (MD) No.336 of 2018
Selvaraj ... Appellant/Sole Accused
-vs-
State through
The Inspector of Police,
Palavur Police Station,
Tirunelveli District.
(Crime No.80 of 2007) ... Respondent/Complainant
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, to call for records pertaining to conviction and sentence, dated
07.04.2016, passed in S.C.No.43 of 2008, by the learned I Additional
District and Sessions Judge, Tirunelveli.
For Appellant : Mr.R.Alagumani
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
1/29
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JUDGMENT
(Judgment of the Court was made by R.PONGIAPPAN, J.)
This appeal is directed against the conviction and sentence dated
07.04.2016, made in S.C.No.43 of 2008, on the file of the I Additional
District and Sessions Judge, Tirunelveli.
2.The appellant is the sole accused. He stood charged for the offence
punishable under Section 302 I.P.C. After full-fledged trial, the learned I
Additional District and Sessions Judge, Tirunelveli, came to the conclusion
that the appellant/accused is guilty under Section 302 I.P.C., convicted and
sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-,
in default, to undergo rigorous imprisonment for one year.
3.Dissatisfying with the said conviction and sentence, the
appellant/accused is before this Court with this appeal.
4.The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal.
(i) P.W.1 – Ravishankar is the brother of the deceased Paarvathi.
P.W.2 is the mother of the deceased. The accused Selvaraj is the husband of
the deceased. After the marriage, the accused regularly came in a drunken
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mood and made a quarrel with the deceased. On 04.06.2007, while at the
time, the deceased quarrelled with his wife, the same has been seen by one
Malakkiyas [P.W.3], who is the neighbour of the deceased, and thereafter,
he informed the same to P.W.2, at that time, P.W.1 was also present there
along with P.W.2. After hearing the information from the said Malakkiyas,
both P.W.1 and P.W.2 along with one Selvi [P.W.4] rushed to the house of
the accused and by following them, the said Malakkiyas also went to the
house of the accused. While at the time they were nearing the compound
wall, they heard a hue and cry of the deceased Paarvathi. Further, they
heard the words ''Njitapy;iy nrj;J Ngh''. Immediately, after hearing
the same, all were rushed to the Kitchen, wherein the fire was ablaze on the
body of the said Paarvathi. After seeing the same, all of them poured water
on the deceased and afterwards, by using the Van, which belongs to P.W.6 –
Ramachandran, P.W.1 and P.W.2 admitted the deceased in Asari Pallam
Hospital, during such time, the accused Selvaraj was also present there.
(ii) In the Hospital, P.W.7 – Dr.Mary Mala, on the same day, around
10.25 p.m., examined the deceased Paarvathi and admitted her as Inpatient.
According to her, the deceased sustained 40% burn injuries. In the
meantime, after admitting the deceased in the Hospital, P.W.1 went to the
Police Station and lodged a complaint before P.W.13 – Vinu under Ex.P.1.
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(iii) P.W.13 – Vinu, the then Head Constable, Thisayanvilai Police
Station, on 05.06.2007, received the said complaint and registered a case
against the accused in Crime No.80 of 2007 under Section 307 I.P.C. The
printed F.I.R. was marked as Ex.P.9. After registering the case as above, he
forwarded a copy of the F.I.R. to P.W.14 - Dheepu, Inspector of Police, for
investigation.
(iv) P.W.14 – Dheepu, the then Inspector of Police, Valliyur Police
Station, on receipt of the copy of the F.I.R., took up the same for
investigation. On the same day, around 04.30 a.m., he visited the Hospital,
wherein, the deceased was admitted as Inpatient and recorded the statement
from the injured. He examined P.W.1 and P.W.2 and recorded their
statements. He made arrangements for recording the dying declaration from
the injured. In this regard, P.W.12 – Laxmanan, the learned Judicial
Magistrate, Nagercoil, on 05.06.2007, received a requisition from the Sub-
Inspector of Police and on receipt of the same, on the same day, around
04.15 p.m., he visited the Hospital and after observing all the formalities,
which are necessary for recording the dying declaration, recorded the dying
declaration from the deceased Paarvathi. The dying declaration recorded by
P.W.12 was marked as Ex.P.8. The requisition letter given by the Sub-
Inspector of Police was marked as Ex.P.7.
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(v) In continuation of investigation, on the same day, around 08.00
a.m., P.W.14 visited the scene of occurrence and in the presence of P.W.10
– Anantharajan and one Sri Krishna Perumal, he prepared an Observation
Mahazar under Ex.P.5. He drew the rough sketch and the same was marked
as Ex.P.11. From the scene of occurrence, in the presence of the same
witnesses, he recovered a green colour Plastic Cane with one litre kerosene
[M.O.1] and a Match box [M.O.2] under the cover of Mahazar Ex.P.6. He
examined the witnesses and recorded their statements. On the same day,
around 11.30 a.m., in Vilakku Road, near Kannan Kulam, in the presence of
one Manikandan and Sudalai Mani, he arrested the accused and recorded his
confession statement. On the same day, around 13.30 hours, he made
arrangements for sending the accused to remand. Thereafter, since he got
transferred, he handed over the case records to P.W.15 – Subramanian, for
further investigation.
(vi) P.W.15 – Subramanian, the then Inspector of Police continued
the investigation and on 12.06.2007, around 17.15 hours, he received death
intimation from the Hospital authorities. The death intimation was marked
as Ex.P.2. Immediately, after receipt of the said intimation, he altered the
Section of law from 307 I.P.C. to 302 I.P.C. The Alteration Report prepared
by him was marked as Ex.P.12. On 13.06.2007, around 07.00 a.m., he held
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inquest and prepared an Inquest Report under Ex.P.13. After inquest, he
sent a requisition to the Hospital authorities for conducting autopsy over the
dead body of the deceased Paarvathi.
(vii) In this regard, after receipt of the requisition given by P.W.15,
P.W.9 – Dr.Velmurugan conducted autopsy and found the following
injuries:-
''Infected epidermo dermal burns seen over the
face, front of chest, front of abdomen, back outer
aspect of right gluteal region, both upper limbs and
lower half of front of right thigh, partial singeing of
frontal scalp hair, eyebrows, eyelashes and axillary
hair noted. Peeling of skin noted over the burnt area.
Base of the burnt area is red in colour and covered
with infected pus materials.''
He issued a Postmortem report under Ex.P.4 stating that the deceased would
appear to have died due of burns and its complication.
(viii) In continuation of investigation, P.W.15 collected the
Postmortem report from the Doctor and recorded his statement. After
concluding the investigation, he came to the positive conclusion that the
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accused is liable to be convicted under Section 302 I.P.C. He filed a final
report accordingly.
5.From the above materials, the trial Court framed charge under
Section 302 I.P.C. The accused denied the same and opted for trial. Hence,
he was put on trial.
6.During the time of trial, in order to prove their case, on the side of
the prosecution, 15 witnesses have been examined as P.W.1 to P.W.15 and
13 documents were marked as Exs.P.1 to P.13.
(i) Out of the said witnesses, P.W.1 – Ravi Shankar is the brother of
the deceased Paarvathi. He has spoken about the occurrence as before 10
years from the date of occurrence, the marriage between the accused and the
deceased was solemnized and from the date on which, the marriage was
solemnized, the accused regularly came to his house in a drunken mood and
made quarrel with the deceased. In view of the above, he arranged for a
rental house, which is situated near to his house, wherein also, both the
deceased and the accused are having some problems. On 04.06.2007 one
Malakkiyas informed to his mother as there was a quarrel between the
accused and the deceased and after hearing the same, he along with his
mother went to the accused house, during such time, they heard words as
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'INah KiwNah vd;W Njitapy;iy nrj;J Ngh'. While at the time,
they saw fire was ablaze on the body of the deceased Paarvathi and after
seeing the same, they poured water on the body of the deceased and after
admitting the deceased in the Hospital, he went to the Police Station and
lodged a complaint [Ex.P.1].
(ii) P.W.2 – Thiraviya Kani is the mother of the deceased. She gave
evidence as after knowing the occurrence, she made arrangements for
admitting the deceased in the Hospital. After giving the said evidence, she
had not given any evidence in support of the prosecution, hence, she was
treated as hostile witness.
(iii) P.W.3 – Malakkiyas has spoken about the occurrence as on
04.06.2007 after seeing the quarrel between the deceased and the accused,
he informed the same to P.W.2.
(iv) P.W.4 – Selvi and P.W.5 – Tamilarasan, who are the neighbours
of the deceased, did not give any evidence in support of the case of
prosecution, hence, they were treated as hostile witnesses.
(v) P.W.6 – Ramachandran, Van driver, gave evidence as on
04.06.2007 around 10.30 p.m., after receipt of the information about the
occurrence, he went to the occurrence place and after picking up the
deceased along with her mother, brother and the accused, he went to the
Hospital and admitted the deceased as Inpatient.
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(vi) P.W.7 – Dr.Mary Mala attached to the Government Hospital,
Kanniyakumari, gave evidence as on 04.06.2007 around 10.25 p.m., the
deceased was brought by her husband/accused for treatment. She has
further stated that during such time, the deceased has stated before her as
her husband on the same day around 07.00 p.m. set fire on her.
(vii) P.W.8 – Jeyapal, who is also a Doctor attached to the same
Hospital, gave evidence in respect of death of the deceased as on
12.06.2007 around 05.15 p.m., in spite of necessary treatment given to the
deceased, she died.
(viii) P.W.9 – Velmurugan, who was also one of the Doctors attached
to the same Hosptial, has spoken about the autopsy conducted over the dead
body of the deceased Paarvathi.
(ix) P.W.10 – Anantharajan, who is the attesting witness to the
Observation Mahazar prepared by the Investigation Officer, gave evidence
as the Observation Mahazar [Ex.P.5] and the Rough Sketch [Ex.P.11] were
prepared in his presence. He has further stated that the Investigation Officer
in this case recovered a green colour plastic cane with one litre kerosene
[M.O.1] and Match Box [M.O.1].
(x) P.W.11 – Perumal, who is working as Wireman in the Tamil Nadu
Electricity Board, gave evidence as on the day of occurrence, there was no
power cut in the occurrence place.
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(xi) P.W.12 – Laxmanan, the then learned Judicial Magistrate,
Nagercoil, has spoken about the receipt of requisition from the Sub-
Inspector of Police for recording the dying declaration from the deceased
and about the recording of dying declaration [Ex.P.8] from her.
(xii) P.W.13 – Vinu, P.W.14 – Dheepu and P.W.15 – Subramanian,
who are the Police Officers, have spoken about the registration of the case,
investigation and about the filing of final report.
7.When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., he denied the same as false. However, he did
not choose to examine any witness or mark any document on his side.
8.I have heard Mr.R.Alagumani, learned counsel appearing for the
appellant and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
appearing for the respondent Police.
9.It is the submission made by the learned counsel appearing for the
appellant that the evidence given by the prosecution witnesses in respect of
the occurrence are having lot of contradictions. The evidence given by
P.W.2 would create a doubt about the presence of P.W.1 in the occurrence
place. Further, the dying declaration recorded from the deceased is not in
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accordance with the verdict of various Courts. According to him, the
prosecution has not proved their case beyond reasonable doubt and
therefore, it should be necessary to set aside the conviction and sentence
imposed upon the appellant.
10.Per contra, the learned Additional Public Prosecutor appearing for
the respondent Police would contend that the sole dying declaration, which
has been marked as Ex.P.8, alone is sufficient to accept the case of
prosecution. In otherwise, the other lapses found in the case of prosecution
cannot be taken into account for deciding this appeal.
11.I have considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record.
12.Initially, on going through the evidence given by P.W.1, it appears
that when his mother [P.W.2] went to the occurrence place, he was
accompanying with her. On the other hand, before treating her as hostile
witness, P.W.2 gave evidence as, during the time of occurrence, neither her
husband nor her son was available in the occurrence place. According to
her, after hearing the news, she along with some other ladies went to the
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occurrence place and after seeing the injured, they made arrangements for
admitting the injured in the hospital. She has specifically stated that she did
not know under what circumstance the fire was ablaze on the body of the
deceased Paarvathi. Therefore, the evidence given by P.W.2 creates a doubt
whether P.W.1 was present at the time of occurrence in the occurrence
place. On that score, being the reason that the presence of P.W.1 in the
occurrence place becomes doubtful, the occurrence narrated by him in the
complaint also becomes doubtful. Apart from that, the eye-witnesses cited
by the prosecution are all not supported the case of prosecution and thereby,
after getting leave from the Court, they were treated as hostile witnesses.
13.Now, on considering the submission made by the learned
Additional Public Prosecutor with the relevant records, it seems that, before
the trial Court, the dying declaration recorded by P.W.12 was marked as
Ex.P.8. A careful perusal of the said dying declaration, it would appear that
while at the time of recording the said statement, no certificate had been
obtained from the Doctor as the injured was in fit state of mind for giving
dying declaration. Further, the learned Magistrate has not stated about his
subjective satisfaction as the patient was conscious at the time of recording
the statement.
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14.However, it would appear that the said statement given by the
deceased has been recorded on 05.06.2007 and thereafter, only on
12.06.2007 at 05.15 p.m., the death has occurred to her. Further, it is the
evidence given by P.W.7 - Doctor, who admitted the injured in the Hospital
as, at the time of admitting the injured in the Hospital on 04.06.2007, she
sustained 40% burn injuries. Therefore, it is apparent and probable that
when at the time of admitting the deceased as Inpatient in the Hospital and
at the time the learned Magistrate recorded the dyeing declaration, the
deceased was found conscious and she was having fit disposing state of
mind for giving dying declaration. In otherwise, in the above said
circumstances, because of the reason that the learned Judicial Magistrate,
Nagercoil, has not followed the prescribed procedure, we cannot come to
the conclusion that the entire prosecution case as false one.
15.Further, on going through the dying declaration, it appears that the
learned Judicial Magistrate, Nagercoil, had mentioned the name of the
Doctor, who identified the injured and about the questions, which were put
to the deceased. Therefore, in our considered view, the dying declaration
recorded by the learned Judicial Magistrate has to be taken as substantial
evidence to decide the issue in this appeal. In the said declaration, the
deceased had specifically stated as due to the reason that she has not given
money to the accused, he poured kerosene and set fire on her. On other
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hand, P.W.6 Van driver, who brought the deceased to the Hospital, gave
evidence as, while at the time of admitting the deceased in the Hospital, the
accused was also found available with them. More than that, P.W.7 Doctor,
who admitted the deceased in the Hospital, has also stated that the injured
was brought to the Hospital by her husband/accused. In the said situation, if
really, the case of the prosecution is true one, it is not necessary for the
accused to admit the injured in the Hospital. Therefore, the said facts found
in the evidence given by those witnesses would reveal the fact that only by
sudden provocation, the accused poured kerosene on the body of the
deceased and set fire on her.
16.In this occasion, it would be necessary to extract below the
relevant portions of the judgment rendered by this Court in Crl.A.(MD)No.
310 of 2018, dated 30.09.2021 [Nagendran Vs. The Inspector of Police,
Town Police Station, Pudukkottai], wherein this Court while at the time of
distinguishing Sections 299, 300, 304 (i) and (ii) I.P.C., has held as
follows:-
''15.Section 299 of IPC, deals with culpable
homicide, which reads as follows:
"299. Culpable homicide.—Whoever causes death by
doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by such
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act to cause death, commits the offence of culpable
homicide.
Explanation 1.—A person who causes bodily injury
to another who is labouring under a disorder, disease or
bodily infirmity, and thereby accelerates the death of that
other, shall be deemed to have caused his death.
Explanation 2.—Where death is caused by bodily
injury, the person who causes such bodily injury shall be
deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have
been prevented.
Explanation 3.—The causing of the death of a child
in the mother's womb is not homicide. But it may amount to
culpable homicide to cause the death of a living child, if
any part of that child has been brought forth, though the
child may not have breathed or been completely born."
(illustrations are omitted)
16.Section 299 of IPC, has three limbs. The first limb
speaks about the intention of causing death. The second
limb speaks about the intention of causing such bodily
injury as is likely to cause death. The third limb speaks
about the knowledge of the offender that his act is likely to
cause death. If the act of the offender falls in any one of the
three limbs, then it will amount to culpable homicide.
17.Section 300 of IPC, deals with murder, which
reads as follows:
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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—
2ndly.—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—
3rdly.—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—
4thly.—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.
(illustrations are omitted)
Exception 1.—When culpable homicide is not
murder.—Culpable homicide is not murder if the offender,
whilst deprived of the power of self-control by grave and
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sudden provocation, causes the death of the person who
gave the provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following
provisos:—
First.—That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
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.
Thirdly.—That the provocation is not given by
anything done in the lawful exercise of the right of private
defence.
Explanation.—Whether the provocation was grave
and sudden enough to prevent the offence from amounting
to murder is a question of fact.
Exception 2.—Culpable homicide is not murder if
the offender in the exercise in good faith of the right of
private defence 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 defence
without premeditation, and without any intention of doing
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more harm than is necessary for the purpose of such
defence.
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.
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's having taken undue advantage or acted in a
cruel or unusual manner.
Explanation.—It is immaterial in such cases which
party offers the provocation or commits the first assault.
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."
18.Section 300 IPC, contains four limbs.
(i) The first limb deals with the intention of causing
death.
(ii) The second limb deals 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
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caused.
(iii) The third limb deals 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.
(iv) The fourth limb deals 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.
19.Section 300 IPC also contains five exceptions. A
culpable homicide would amount to murder, if the act of the
accused falls in any one of the four limbs of Section 300
IPC and it does not falls in any of the general exceptions to
Section 300 IPC. If the act of the accused falls in any one of
the four limbs of Section 300 IPC and it falls in any one of
the general exceptions contained in Section 300 IPC then
the act of the accused will amount to culpable homicide not
amounting to murder. If the act of the accused falls under
the category of murder, he will be punished under Section
302 IPC and if the act of the accused amounts to culpable
homicide not amounting to murder, then he will be
punished under Section 304 IPC.
20.Let us now examine the circumstances under
which, the act of the accused will amount to murder or
culpable homicide not amounting to murder, which incurs
lesser punishment.
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21.The first limb of Section 299 IPC namely
intention to cause death corresponds to first limb of Section
300 IPC, which speaks about intention to cause death. To
find out whether the accused has intention to cause death of
a person, Court can infer from various circumstance like the
motive, gravity of injuries, weapon used by the accused for
committing the act etc., Based on the available evidence, if
the Court comes to the conclusion that the accused has the
intention to cause death of the deceased, then it amounts to
murder and the accused is liable to be punished under
Section 302 IPC.
22.The second limb of Section 299 IPC, deals with
the intention of the accused to cause such bodily injuries as
is likely to cause death, corresponds to the second and third
limb of Section 300 IPC. These limbs deals with the
intention of the accused to cause bodily injuries.
23.The second limb of Section 300 IPC, speaks about
the intention of causing such a bodily injury with a
knowledge that, the particular victim has a specific health
issue and that any injury caused to him is likely to cause
death of the person, however that injury may not likely to
cause the death of a person having ordinary health
condition. If the accused caused any injury fully aware of
the fact that the deceased is having a peculiar health issue,
and causing such injury is likely to cause his death, and is
resulted into death, then his act amounts to murder.
24.The third limb of Section 300 IPC, speaks about
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the intention of the accused to cause bodily injury and the
intended injury to be inflicted is sufficient in the ordinary
course of nature to cause death.
25.The fine distinction between the second limb of
Section 299 IPC and the third limb of Section 300 IPC is
that the second limb of Section 299 IPC deals with injury
likely to cause death, whereas the third limb of Section 300
IPC speaks that the intended injury to be inflicted is
sufficient in the ordinary course of nature to cause death.
The third limb of Section 300 IPC, does not speak about the
resulted injury but it only speaks about the injury intended
to be inflicted by the accused.
26.To bring the act of the accused under the third
limb of Section 300 IPC, it should be proved that the injury
inflicted is sufficient to cause death in the ordinary course
of nature, and in addition to that the injury found to be
present was the injury that was intended to be inflicted by
the accused.
27.The Hon'ble Supreme Court in Virsa Singh Vs.
State of Punjab reported in AIR 1956 SC 465 has held in
para 10 has follows:
"10. Once that is found, the enquiry shifts to the next
clause-
"and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part
of the section, namely, the infliction of bodily injury with
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the intention to inflict it, that is to say, if the circumstances
justify an inference that a man's intention was only to
inflict a blow on the lower part of the leg, or some lesser
blow, and it can be shown that the blow landed in the
region of the heart by accident, then, though all injury to
the heart is shown to be present, the intention to inflict ail
injury in that region, or of that nature, is not proved. In
that case, the first part of the clause does not come into
play. But once it is proved that there was an intention to
inflict the injury that is found to be present, then the earlier
part of the clause we are now examining
" and the bodily injury intended to be inflicted "
is merely descriptive. All it means is that it is not enough to
prove that the injury found to be present is sufficient to
cause death in the ordinary course of nature; it must in
addition be shown that the injury is of the kind that falls
within the earlier clause, namely, that the injury found to
be present was the injury that was intended to be inflicted.
Whether it was sufficient to cause death in the ordinary
course of nature is a matter of inference or deduction from
the proved facts about the nature of the injury and has
nothing to do with the question of intention."
28.In short, to bring the act under third limb of
Section 300 IPC, the prosecution must establish that a
bodily injury is present, the nature of injury sustained by
the deceased and it must be proved that there was an
intention to cause that particular bodily injury and it is not
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Crl.A.(MD)No.336 of 2018
intentional or some other kind of injury was intended.
Finally, the injury caused by the accused is sufficient to
cause death of a person in the ordinary course of nature.
Once the above said four elements are established by the
prosecution, the offence is murder, as it will fall under third
limb of Section 300.
29.The third limb of Section 299 (b) IPC corresponds
to the fourth limb of Section 300 IPC. These provisions
speak about the knowledge of the accused. Both the
provisions speaks about the knowledge and also the bodily
injury which is likely to cause death. However the
distinction between both the limbs is the degree of
knowledge and also the imminent dangerous nature of the
act that in all probability cause death or such bodily injury
caused by the accused is likely to cause death without any
excuse of incurring the risk of causing death or such injury.
30.To bring the act of the accused under the fourth
limb of Section 300 IPC, it should be established that the
accused is aware of the consequences of his act and the
consequence is either imminently dangerous to life or
bodily injury which is likely to cause death. The degree of
knowledge makes the difference between the third limb of
Section 299 IPC and the fourth limb of Section 300 IPC.
Further to bring the act under the fourth limb of Section
300 IPC, it should be proved that it is not the knowledge of
mere possibility, but the accused had knowledge that the
act is imminently dangerous and that in all probability the
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Crl.A.(MD)No.336 of 2018
act is likely to cause death.
31.If the prosecution bring the act of the accused
within the ambit of any one of the four limbs of Section 300
IPC, the act of the accused will be culpable homicide
amounting to murder. However, if the act of the accused,
falls within the definition of murder and it falls within any
one of the five exceptions enumerated under Section 300
IPC, the offence would be culpable homicide not
amounting to murder, which is punishable under Section
304 IPC.
32.Section 304 IPC contains two parts which reads as
follows:
"304. Punishment for culpable homicide not
amounting to murder.—Whoever commits culpable
homicide not amounting to murder, shall be punished with
1 [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine, if the act by which the death is
caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both, if
the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death."
33.The first part provides for punishment for
culpable homicide not amounting to murder, if the act of
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Crl.A.(MD)No.336 of 2018
the accused is done with the intention of causing death or
such bodily injury as is likely to cause death. The intention
of the accused is essential requirement under the first part
of Section 304 IPC. The second part deals with the
knowledge of the accused. If the accused has knowledge
that his act is likely to cause death but without any
intention to cause death or to cause such bodily injury as is
likely to cause death.
34.To put it more clearly, if it is proved that the act
of the accused is culpable homicide not amounting to
murder, and it falls either under the first or second limb of
Section 299 IPC, then the accused is liable to be punished
under Section 304(i) of IPC. If the act of the accused is
proved as culpable homicide not amounting to murder and
falls within the ambit, third limb of Section 299 IPC, the
accused is liable to be punished under Section 304(ii) of
IPC. Likewise, if the act of the accused falls within first,
second or third limb of Section 300 IPC and if it falls under
any one of the exceptions enumerated in Section 300 IPC,
then the act of the accused is only culpable homicide not
amounting to murder and the accused is liable to be
punished under Section 304(i) IPC. If the act of the accused
falls within the fourth limb of Section 300 IPC and if it falls
under any one of the exceptions enumerated in Section 300
IPC, it is punishable under Section 304(ii) IPC. [Vide
Ganesan v. State of T.N., 2012-2- L.W. (Crl) 733] ''
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Crl.A.(MD)No.336 of 2018
17.Keeping the above principles in mind, here it is a case, from the
available evidence, it is seen that both the accused and the deceased were
leading a happy matrimonial life under the same roof and in view of a
quarrel between the accused and the deceased, the accused poured kerosene
on the body of the deceased and set fire with an intention to cause bodily
injury, which is sufficient to cause death of the deceased in the ordinary
course of nature. Hence, the act of the accused will fall under the third limb
of Section 300 I.P.C. Further, the accused without any premeditation, in a
sudden fight and without taking any undue advantage, has poured kerosene
on the body of the deceased and set fire on her. In the said circumstances,
the act of the accused will fall under fourth exception to Section 300 I.P.C.
Hence, the appellant is liable to be convicted under Section 304 (i) I.P.C.
and not under Section 302 I.P.C.
18.Insofar as the quantum of sentence is concerned, the accused is
now aged about 53 years and is having two children and has no bad
antecedents, further, he has a chance to reform himself, the occurrence has
taken place in the heat of passion on a sudden quarrel between the accused
and the deceased and the accused has poured kerosene available in the scene
of occurrence and set fire on the deceased, and there is no serious motive
attributed against him. Further, the occurrence took place on 04.06.2007,
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Crl.A.(MD)No.336 of 2018
she died only on 12.06.2007 at 05.15 p.m., due to complication, more
probably out of Sepsis. Considering the above mitigating as well as the
aggravating circumstances, we are of the considered view that sentencing
the appellant to undergo 10 years of rigorous imprisonment will meet the
ends of justice.
19.In the result, this Criminal Appeal is partly allowed, and the
conviction under Section 302 IPC, is set aside, instead, the appellant is
convicted under Section 304(i) IPC, and sentenced to undergo 10 years
rigorous imprisonment and also to pay a fine of Rs.1,000/- in default, to
undergo one year rigorous imprisonment. The period of sentence already
undergone by the appellant/accused shall be given set off under Section 428
Cr.P.C.
Speaking/Non-speaking order
Index : Yes / No [V.B.D., J.] [R.P.A., J.]
Internet : Yes 05.10.2021
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Crl.A.(MD)No.336 of 2018
To
1.The I Additional District and Sessions Judge,
Tirunelveli.
2.The Inspector of Police,
Palavur Police Station,
Tirunelveli District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD)No.336 of 2018
V.BHARATHIDASAN, J.
AND
R.PONGIAPPAN, J.
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Judgment in
Criminal Appeal (MD) No.336 of 2018
05.10.2021
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