Mere attempt to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC.

 Mere  attempt  to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC.

Therefore, after pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 443 OF 2020

NAGABHUSHAN …APPELLANT

VERSUS

THE STATE OF KARNATAKA …RESPONDENT

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order of conviction dated 11.10.2019 passed by the High Court of

Karnataka at Bengaluru in Criminal Appeal No. 525/2013, by which the

High Court has allowed the said appeal preferred by the respondent –

State of Karnataka and has reversed the judgment and order of acquittal

passed by the learned trial Court insofar as the appellant – original

accused no.1 is concerned for the offences punishable under Sections

498A and 302 read with 34 of the IPC and consequently convicted the

1

appellant herein – original accused no.1 for the aforesaid offences,

original accused no.1 has preferred the present appeal. However, the

High Court has confirmed the judgment and order of acquittal insofar as

original accused nos. 2 and 3 are concerned.

2. As per the case of the prosecution, original accused no.1 married

the deceased, the daughter of PW3 & PW4 nine years ago, prior to the

date of the incident. That the deceased was subjected to the mental

cruelty and there was demand of dowry from the parents of the

deceased Rekha. In that regard, mediation was also held and thereafter

PW3 & PW4 gave Rs. 10,000/- and Rs. 20,000/- on two occasions. On

24.06.2010 at about 9 p.m. in the matrimonial home, appellant herein –

original accused no.1 took up quarrel with his wife Rekha (deceased)

and at that time, he took kerosene and poured the same on her and lit

the fire. The deceased was taken to the hospital. That based on the

information, the investigating officer went to the hospital and recorded

her statement on 27.06.2010 (Exhibit P5). It is alleged that even earlier

also on 25.06.2010, the statement of the deceased was recorded by the

police (Exhibit D2). On conclusion of the investigation, the investigating

officer filed the chargesheet against all the accused for the offences

punishable under Sections 498A and 302 read with 34 of the IPC. The

case was committed to the Court of Sessions. The accused pleaded not

2

guilty and therefore all of them came to be tried by the learned Sessions

Court for the aforesaid offences.

2.1 To prove the case against the accused, the prosecution examined

in all 14 witnesses and brought on record the documentary evidences

including Exhibit P5 – dying declaration and the medical evidence. That

after closure of the evidence on the side of the prosecution, further

statements of the accused under Section 313 Cr. P.C. were recorded.

Appellant herein – original accused no.1 examined himself as DW1 and

also examined a witness as DW2. The accused relied upon the earlier

statement of the deceased (Exhibit D2). That on appreciation of the

evidence and not believing the dying declaration – Exhibit P5 and having

found contradictions in two dying declarations Exhibit P5 and Exhibit D2,

the learned trial Court acquitted all the accused for the offences for

which they were tried.

3. Feeling aggrieved and dissatisfied with the impugned judgment

and order of acquittal passed by the learned trial Court, the State of

Karnataka preferred appeal before the High Court. By the impugned

judgment and order, the High Court has reversed the order of judgment

and order of acquittal insofar as the appellant herein – original accused

no.1 is concerned and has convicted the appellant herein – original

accused no.1 for the offences punishable under Sections 498A and 302

3

read with 34 of the IPC. The judgment and order of acquittal for original

accused nos. 2 & 3 has been confirmed by the High Court.

3.1 Feeling aggrieved and dissatisfied with the impugned judgment

and order of the High Court reversing the judgment and order of acquittal

and convicting the appellant herein – original accused no.1 for the

offences punishable under Sections 498A & 302 read with 34 of the IPC,

original accused no.1 has preferred the present appeal.

4. Learned counsel appearing on behalf of the appellant has

vehemently submitted that in the facts and circumstances of the case,

the High Court has committed a grave error in reversing the wellreasoned judgment and order of acquittal passed by the learned trial

Court.

4.1 It is submitted that while reversing the order of acquittal passed by

the learned trial Court, the High Court has exceeded in its jurisdiction

vested in it under Section 378 of the Cr. P.C.

4.2 It is submitted that as there were material contradictions in two

dying declarations and Exhibit D2 was the dying declaration first in time

which came to be believed by the learned trial Court, the learned trial

Court committed no error in acquitting the accused.

4

4.3 It is submitted that the learned trial Court on appreciation of

evidence, more particularly two dying declarations, disbelieved the

subsequent dying declaration (Exhibit P5) and thereby acquitted the

accused, the same was not required to be interfered with by the High

Court in exercise of the appellate jurisdiction against the judgment and

order of acquittal.

4.3 It is further submitted that while believing the dying declaration

vide Exhibit P5, the High Court has not appreciated that the same was

recorded by PW10 in the presence of PW13, PW8 and parents of the

deceased.

4.4 It is submitted that the High Court ought to have appreciated that

the earlier dying declaration vide Exhibit D2, which was recorded on

25.06.2010, was recorded immediately on the next day of the incident

wherein deceased Rekha has specifically stated that it was an accidental

fire due to which she sustained burn injuries. It is submitted that even in

the history which was recorded in the hospital, when the deceased

Rekha was admitted, it was stated that the deceased had suffered

accidental burn injuries.

4.5 It is submitted that the High Court has not properly appreciated the

fact that the dying declaration (Exhibit P5) was recorded later on and

that too after the parents of the deceased reached to the hospital.

5

4.6 It is submitted that possibility of tutoring the deceased Rekha so as

to make statement against the accused persons cannot be ruled out. It

is submitted that therefore at least the appellant is entitled to the benefit

of doubt.

4.6 It is submitted that the High Court has not at all appreciated and/or

considered the defence version that on the date of incident there was no

power supply in the house and therefore the deceased went to the

kitchen to prepare the food and found that the gas was empty and

thereafter she told the appellant that she would use the kerosene stove

to prepare the food, and that while she was preparing the food with the

help of candle light and when the same was almost exhausted, she tried

to lit another candle but the same had fallen on the ground where the

kerosene was already spread while pouring the kerosene to the stove

and as a result of which the fire was caught on her clothes.

4.7 It is submitted that even thereafter when the deceased screamed,

the appellant – original accused no.1 rushed to the spot and tried to

extinguish the fire and while extinguishing the fire, he also sustained

burn injuries in his right hand. It is submitted that the aforesaid

circumstances which were considered by the learned trial Court while

acquitting the accused have not been considered and/or appreciated by

6

the High Court while reversing the order of acquittal passed by the

learned trial Court and convicting the accused – appellant herein.

4.8 It is submitted that as such when it was an appeal against the

judgment and order of acquittal, the High Court was not justified in

reappreciating the oral as well as documentary evidence. It is submitted

that only in a case where the findings recorded by the learned trial Court

are found to be perverse, the interference by the appellate court against

the order of acquittal is warranted. It is submitted that in the present

case, as such, the view taken by the learned trial Court was a plausible

view, which was on appreciation of the evidences on record and

therefore the High Court has committed a grave error in reversing the

judgment and order of acquittal passed by the learned trial Court and

convicting the accused -appellant herein.

5. We have heard the learned counsel appearing on behalf of the

appellant at length.

5.1 Being the statutory appeal against the judgment and order of the

High Court reversing the acquittal and thereby convicting the appellant

herein – original accused no.1, we have reappreciated the entire

evidence on record.

5.2 Before considering the appeal on merits, the law on the appeal

against acquittal and the scope and ambit of Section 378 Cr.P.C. and the

7

interference by the High Court in an appeal against acquittal is required

to be considered.

5.2.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189,

this Court had reiterated the principles to be followed in an appeal

against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is

observed and held as under:

12. This Court time and again has laid down the guidelines for the High

Court to interfere with the judgment and order of acquittal passed by the

trial court. The appellate court should not ordinarily set aside a judgment of

acquittal in a case where two views are possible, though the view of the

appellate court may be the more probable one. While dealing with a

judgment of acquittal, the appellate court has to consider the entire

evidence on record, so as to arrive at a finding as to whether the views of

the trial court were perverse or otherwise unsustainable. The appellate

court is entitled to consider whether in arriving at a finding of fact, the trial

court had failed to take into consideration admissible evidence and/or had

taken into consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject-matter of

scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3

SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra

Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P

(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State

of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S.

Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206,

Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram

Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council

observed as under: (IA p. 404)

“… the High Court should and will always give proper weight and

consideration to such matters as (1) the views of the trial Judge as to the

credibility of the witnesses; (2) the presumption of innocence in favour of

the accused, a presumption certainly not weakened by the fact that he has

been acquitted at his trial; (3) the right of the accused to the benefit of any

doubt; and (4) the slowness of an appellate court in disturbing a finding of

fact arrived at by a Judge who had the advantage of seeing the

witnesses.”

14. The aforesaid principle of law has consistently been followed by this

Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of

Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963

SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan

v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of

8

M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC

755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court

reiterated the legal position as under: (SCC p. 432, para 42)

“(1) An appellate court has full power to review, reappreciate and

reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or

condition on exercise of such power and an appellate court on the

evidence before it may reach its own conclusion, both on questions of fact

and of law.

(3) Various expressions, such as, ‘substantial and compelling reasons’,

‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted

conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive

powers of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of ‘flourishes of language’ to

emphasise the reluctance of an appellate court to interfere with acquittal

than to curtail the power of the court to review the evidence and to come

to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of

acquittal, there is double presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the fundamental

principle of criminal jurisprudence that every person shall be presumed to

be innocent unless he is proved guilty by a competent court of law.

Secondly, the accused having secured his acquittal, the presumption of

his innocence is further reinforced, reaffirmed and strengthened by the trial

court.

(5) If two reasonable conclusions are possible on the basis of the evidence

on record, the appellate court should not disturb the finding of acquittal

recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated

the said view, observing that the appellate court in dealing with the cases

in which the trial courts have acquitted the accused, should bear in mind

that the trial court’s acquittal bolsters the presumption that he is innocent.

The appellate court must give due weight and consideration to the

decision of the trial court as the trial court had the distinct advantage of

watching the demeanour of the witnesses, and was in a better position to

evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again

examined the earlier judgments of this Court and laid down that: (SCC p.

374, para 20)

“20. … an order of acquittal should not be lightly interfered with even if the

court believes that there is some evidence pointing out the finger towards

the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain

illustrative circumstances in which the Court would be justified in

interfering with a judgment of acquittal by the High Court. The

circumstances include: (SCC p. 286, para 28)

9

“(i) The High Court’s decision is based on totally erroneous view of law by

ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence and documents

on record;

(iii) The entire approach of the High Court in dealing with the evidence was

patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust and unreasonable

based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the

findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when

both the Sessions Court and the High Court have recorded an order of

acquittal.”

A similar view has been reiterated by this Court in Dhanapal v. State

(2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in

exceptional cases where there are compelling circumstances, and the

judgment under appeal is found to be perverse, the appellate court can

interfere with the order of acquittal. The appellate court should bear in

mind the presumption of innocence of the accused and further that the trial

court’s acquittal bolsters the presumption of his innocence. Interference in

a routine manner where the other view is possible should be avoided,

unless there are good reasons for interference.”

(emphasis supplied)

5.2.2 When the findings of fact recorded by a court can be held to

be perverse has been dealt with and considered in paragraph 20 of the

aforesaid decision, which reads as under:

“20. The findings of fact recorded by a court can be held to be perverse if

the findings have been arrived at by ignoring or excluding relevant material

or by taking into consideration irrelevant/inadmissible material. The finding

may also be said to be perverse if it is “against the weight of evidence”, or

if the finding so outrageously defies logic as to suffer from the vice of

irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635,

Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons

1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3)

SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v.

State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P

(2009) 10 SCC 636).”

(emphasis supplied)

10

5.2.3 It is further observed, after following the decision of this

Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2

SCC 10, that if a decision is arrived at on the basis of no evidence or

thoroughly unreliable evidence and no reasonable person would act

upon it, the order would be perverse. But if there is some evidence on

record which is acceptable and which could be relied upon, the

conclusions would not be treated as perverse and the findings would not

be interfered with.

5.3 In the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5

SCC 436, this Court again had an occasion to consider the scope of

Section 378 Cr.P.C. and the interference by the High Court in an appeal

against acquittal. This Court considered catena of decisions of this

Court right from 1952 onwards. In paragraph 31, it is observed and held

as under:

“31. An identical question came to be considered before this Court in

Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the

High Court interfered with the order of acquittal passed by the learned trial

court on re-appreciation of the entire evidence on record. However, the

High Court, while reversing the acquittal, did not consider the reasons

given by the learned trial court while acquitting the accused. Confirming

the judgment of the High Court, this Court observed and held in para 10 as

under: (SCC p. 233)

“10. Once the appeal was rightly entertained against the order of

acquittal, the High Court was entitled to reappreciate the entire

evidence independently and come to its own conclusion. Ordinarily, the

High Court would give due importance to the opinion of the Sessions

Judge if the same were arrived at after proper appreciation of the

evidence. This rule will not be applicable in the present case where the

Sessions Judge has made an absolutely wrong assumption of a very

material and clinching aspect in the peculiar circumstances of the case.”

11

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court

reversed the order of acquittal passed by the learned trial court and held

the accused guilty on re-appreciation of the entire evidence on record,

however, the High Court did not record its conclusion on the question

whether the approach of the trial court in dealing with the evidence was

patently illegal or the conclusions arrived at by it were wholly untenable.

Confirming the order passed by the High Court convicting the accused on

reversal of the acquittal passed by the learned trial court, after being

satisfied that the order of acquittal passed by the learned trial court was

perverse and suffered from infirmities, this Court declined to interfere with

the order of conviction passed by the High Court. While confirming the

order of conviction passed by the High Court, this Court observed in para

8 as under: (SCC p. 416)

“8. We have perused the judgment under appeal to ascertain whether

the High Court has conformed to the aforementioned principles. We find

that the High Court has not strictly proceeded in the manner laid down

by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC

225 viz. first recording its conclusion on the question whether the

approach of the trial court in dealing with the evidence was patently

illegal or the conclusions arrived at by it were wholly untenable, which

alone will justify interference in an order of acquittal though the High

Court has rendered a well-considered judgment duly meeting all the

contentions raised before it. But then will this non-compliance per se

justify setting aside the judgment under appeal? We think, not. In our

view, in such a case, the approach of the court which is considering the

validity of the judgment of an appellate court which has reversed the

order of acquittal passed by the trial court, should be to satisfy itself if

the approach of the trial court in dealing with the evidence was patently

illegal or conclusions arrived at by it are demonstrably unsustainable

and whether the judgment of the appellate court is free from those

infirmities; if so to hold that the trial court judgment warranted

interference. In such a case, there is obviously no reason why the

appellate court’s judgment should be disturbed. But if on the other hand

the court comes to the conclusion that the judgment of the trial court

does not suffer from any infirmity, it cannot but be held that the

interference by the appellate court in the order of acquittal was not

justified; then in such a case the judgment of the appellate court has to

be set aside as of the two reasonable views, the one in support of the

acquittal alone has to stand. Having regard to the above discussion, we

shall proceed to examine the judgment of the trial court in this case.”

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309,

after observing that though there is some substance in the grievance of

the learned counsel appearing on behalf of the accused that the High

Court has not adverted to all the reasons given by the trial Judge for

according an order of acquittal, this Court refused to set aside the order of

conviction passed by the High Court after having found that the approach

of the Sessions Judge in recording the order of acquittal was not proper

and the conclusion arrived at by the learned Sessions Judge on several

aspects was unsustainable. This Court further observed that as the

Sessions Judge was not justified in discarding the relevant/material

12

evidence while acquitting the accused, the High Court, therefore, was fully

entitled to reappreciate the evidence and record its own conclusion. This

Court scrutinised the evidence of the eyewitnesses and opined that

reasons adduced by the trial court for discarding the testimony of the

eyewitnesses were not at all sound. This Court also observed that as the

evaluation of the evidence made by the trial court was manifestly

erroneous and therefore it was the duty of the High Court to interfere with

an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court

observed and held as under: (AIR pp. 809-10)

“5. It has been argued by the learned counsel for the appellant that the

judgment of the trial court being one of acquittal, the High Court should not

have set it aside on mere appreciation of the evidence led on behalf of the

prosecution unless it came to the conclusion that the judgment of the trial

Judge was perverse. In our opinion, it is not correct to say that unless the

appellate court in an appeal under Section 417 CrPC came to the

conclusion that the judgment of acquittal under appeal was perverse it

could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an

appeal against an order of acquittal to review the entire evidence and to

come to its own conclusion, of course, keeping in view the wellestablished rule that the presumption of innocence of the accused is not

weakened but strengthened by the judgment of acquittal passed by the

trial court which had the advantage of observing the demeanour of

witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of

appreciation of evidence in an appeal against an order of acquittal as in

the case of an appeal against an order of conviction, subject to the riders

that the presumption of innocence with which the accused person starts in

the trial court continues even up to the appellate stage and that the

appellate court should attach due weight to the opinion of the trial court

which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in

mind, and comes to a contrary conclusion, the judgment cannot be said to

have been vitiated. (See in this connection the very cases cited at the Bar,

namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of

U.P AIR 1953 SC 122) In our opinion, there is no substance in the

contention raised on behalf of the appellant that the High Court was not

justified in reviewing the entire evidence and coming to its own

conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has

observed that where the trial court allows itself to be beset with fanciful

doubts, rejects creditworthy evidence for slender reasons and takes a view

of the evidence which is but barely possible, it is the obvious duty of the

High Court to interfere in the interest of justice, lest the administration of

justice be brought to ridicule.”

(emphasis supplied)

13

6. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand and the findings recorded by the High

Court, the High Court has specifically observed and held that the finding

recorded by the learned trial Court discarding and/or not believing the

dying declaration (Exhibit P5) is perverse and contrary to the evidence

on record. The High Court has given cogent reasons while believing

dying declaration (Exhibit P5) and has also considered in detail what is

stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical

evidence and the injuries sustained by the deceased. Therefore, as

such, the High Court has not committed any error in reappreciating the

entire evidence on record and thereafter interfering with the judgment

and order of acquittal passed by the learned trial Court, having found the

finding recorded by the learned trial Court perverse.

7. Now so far as the merits of the appeal are concerned, it cannot be

disputed that in the present case there are two dying declarations, (i)

Exhibit P5 and (ii) Exhibit D2. The High Court in the impugned judgment

and order has given cogent reasons to rely upon and believe the second

dying declaration – Exhibit P5. The High Court has also taken note of

the fact that the second dying declaration is reliable and the version in

the second dying declaration is supported by the circumstances, namely,

the injuries sustained by the deceased; no stove was found at the place

of occurrence. The High Court has also taken note of the fact that in the

14

second dying declaration, the deceased has explained her first

statement that it was a case of accident and she categorically stated in

the second dying declaration that at the time when she gave first

statement that it was a case of accident, she was given threats by the

appellant herein – original accused no.1 that he will kill her children also.

She also stated in the second dying declaration that after her parents

came, she got the courage to tell the truth. Therefore, as such, the High

Court rightly believed the second dying declaration – Exhibit P5.

8. At this stage, the decisions of this Court in the cases of Nallam

Veera Stayanandam v. Public Prosecutor (2004) 10 SCC 769; Kashmira

Devi v. State of Uttarakhand (2020) 11 SCC 343; and Ashabai v. State of

Maharashtra (2013) 2 SCC 224 are required to be referred to. In the

aforesaid decisions, this Court had an occasion to consider the cases

where there are multiple dying declarations. In the aforesaid decisions,

it is held that each dying declaration has to be considered independently

on its own merit as to its evidentiary value and one cannot be rejected

because of the contents of the other. It is also held that the Court has to

consider each of them in its correct perspective and satisfy itself which

one of them reflects the true state of affairs. When there are multiple

dying declarations, each dying declaration has to be separately

assessed and evaluated on its own merits.

15

9. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, and on evaluation of both dying

declarations independently, dying declaration recorded as Exhibit P5

reflects the true state of affairs and the contents are supported by the

medical evidence and the injuries sustained by the deceased. The plea

put forth by the defence that it was a case of an accident and while

pouring the kerosene from kerosene can to the bottle, the same had

fallen on the clothes placed on the ground and when the deceased tried

to remove the clothes from that place, the candle fell on the ground, as a

result, her clothes caught fire and she sustained burn injuries is

disbelieved by the High Court considering the circumstances noted by

the High Court that the deceased sustained injuries on the face, chest

and back and to the upper limbs. The main injuries are found on the

upper limbs of the body. Therefore, as rightly observed by the High

Court, the aforesaid injuries can be possible when the kerosene is

poured on the deceased. According to the defence and as per the

evidence of DW1-A1, while putting the kerosene into the stove,

accidentally the kerosene had fallen on the ground and also on her

clothes, and thereafter when the candle fell on the ground, the same had

come in contact with her clothes and kerosene. If that is the case, there

would have been injuries to her feet also. However, no burn injuries are

found on her feet. No stove was found at the place of occurrence.

16

Therefore, the defence came out with a false case of accidental fire,

which, as such, is not supported by any other reliable evidence. On the

contrary, this evidence speaks otherwise. Therefore, when A1 came

with a false defence and the dying declaration – Exhibit P5 is

corroborated by other surrounding circumstances and evidence and after

independent evaluation of Exhibit P5 and Exhibit D2, when the High

Court has found that Exhibit P5 is reliable and inspiring confidence and

thereafter when the High Court has convicted the accused, it cannot be

said that the High Court has committed any error.

10. Now so far as the submission on behalf of the accused that even

thereafter he tried to extinguish the fire and he also sustained injuries

and therefore it cannot be said that the appellant has committed an

offence punishable under Section 302 IPC is concerned, at the outset, it

is required to be noted that in the present case the prosecution is

successful in proving that the accused – appellant herein poured

kerosene on the deceased. As per dying declaration Exhibit P5, it has

been proved that the deceased was set ablaze by pouring kerosene on

her. The act of the accused falls in clause fourthly of Section 300 IPC. It

emerges from the evidence on record that the accused poured kerosene

on the deceased and not only poured kerosene but also set her ablaze

by the matchstick. Merely because thereafter the A1 might have tried to

17

extinguish the fire, that will not bring the case out of clause fourthly of

Section 300 IPC.

A somewhat similar submission was made before this Court in the

case of Santosh v. State of Maharashtra (2015) 7 SCC 641. In the case

before this Court, it was contended on behalf of the accused who poured

kerosene on the deceased and set her ablaze by matchstick that

thereafter they tried to save the deceased by pouring water on her and

therefore it was contended on behalf of the accused that by that conduct

it cannot be said that the intention of the accused was to cause death of

the deceased. The aforesaid has been negated by this Court by

observing in paragraphs 9 to 18 as under:

“9. Insofar as the first contention that the appellant is not responsible for

the death of deceased Saraswatibai, the defence made an attempt to

contend that the fire was accidental and that the appellant tried to

extinguish the fire in order to save her and in that process, he also

suffered burn injuries. The prosecution has adduced cogent evidence to

prove that the appellant has caused the death of deceased Saraswatibai.

The accused suspected the deceased of infidelity and picking up a fight

over it, he kicked her and inflicted fist-blows and further set her on fire by

pouring kerosene over her person. PW 6, doctor certified that the

deceased was in a fit mental condition to make the statement and PW 7,

the Executive Magistrate recorded the dying declaration Ext. 1. In the said

dying declaration, the deceased had categorically stated that on the date

of incident, the appellant poured kerosene over her person and set her on

fire. That accused poured kerosene on the deceased and set her on fire is

corroborated by the oral testimony of PW 3, Sindhu Sunil Ingole (sister-inlaw) of the deceased. PW 1 Raju Janrao Gavai, neighbour of the

deceased who accompanied the deceased to the hospital to whom the

deceased is said to have made a statement about the overt act of the

accused, had only stated that the deceased told him that the accused beat

her and also kicked her. PW 1 had not supported the statement of the

deceased in the dying declaration that the accused poured kerosene on

her and set her on fire. However, the prosecution has established the guilt

of the accused by Ext. 1 dying declaration and the oral evidence of the

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mother (PW 2) and the sister-in-law (PW 3) and the same cannot be

doubted.

10. The learned counsel for the appellant contended that there was no

premeditation and the appellant had poured kerosene from the lamp

nearby and thereafter the appellant attempted to extinguish the fire by

pouring water on her and himself getting burn injuries in the process. It

was submitted that the conduct of the appellant in trying to extinguish the

fire immediately after the incident would clearly show that there was no

intention on the part of the appellant to commit the murder. In support of

his contention, he placed reliance on the judgment of this Court in Kalu

Ram v. State of Rajasthan [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] .

11. The question falling for consideration is whether the act of the accused

pouring water would mitigate the offence of murder. Where the intention to

kill is present, the act amounts to murder, where such an intention is

absent, the act amounts to culpable homicide not amounting to murder. To

determine whether the offender had the intention or not, each case must

be decided on its facts and circumstances. From the facts and

circumstances of the instant case, it is evident that : (i) there was a

homicide, namely, the death of Saraswatibai; (ii) the deceased was set

ablaze by the appellant and this act was not accidental or unintentional;

and (iii) the post-mortem certificate revealed that the deceased died due to

shock and septicaemia caused by 60% burn injuries. When the accused

poured kerosene on the deceased from the kerosene lamp and also threw

the lighted matchstick on the deceased to set her on fire, he must have

intended to cause the death of the deceased. As seen from the evidence

of PW 5, panch witness, in the house of the appellant, kerosene lamp was

prepared in an empty liquor bottle. Whether the kerosene was poured from

the kerosene lamp or from the can is of no consequence. When there is

clear evidence as to the act of the accused to set the deceased on fire,

absence of premeditation will not reduce the offence of murder to culpable

homicide not amounting to murder. Likewise, pouring of water will not

mitigate the gravity of the offence.

12. After attending to nature's call, the deceased returned to the house a

little late. The accused questioned her as to why she was coming late and

he also suspected her fidelity. There was no provocation for the accused

to pour kerosene and set her on fire. The act of pouring kerosene, though

on the spur of the moment, the same was followed by lighting a matchstick

and throwing it on the deceased and thereby setting her ablaze. Both the

acts are intimately connected with each other and resulted in causing the

death of the deceased and the act of the accused is punishable for

murder.

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13. Even assuming that the accused had no intention to cause the death

of the deceased, the act of the accused falls under clause Fourthly of

Section 300 IPC that is the act of causing injury so imminently dangerous

where it will in all probability cause death. Any person of average

intelligence would have the knowledge that pouring of kerosene and

setting her on fire by throwing a lighted matchstick is so imminently

dangerous that in all probability such an act would cause injuries causing

death.

14. Insofar as the conduct of the accused in attempting to extinguish fire,

placing reliance upon the judgment of this Court in Kalu Ram case [(2000)

10 SCC 324 : 2000 SCC (Cri) 86] , it was contended that such conduct of

the accused would bring down the offence from murder to culpable

homicide not amounting to murder. In Kalu Ram case [(2000) 10 SCC

324 : 2000 SCC (Cri) 86] , the accused was having two wives. The

accused in a highly inebriated condition asked his wife to part with her

ornaments so that he could purchase more liquor, which led to an

altercation when the wife refused to do as demanded. Infuriated by the

fact that his wife had failed to concede to his demands, the accused

poured kerosene on her and gave her a matchbox to set herself on fire.

On her failure to light the matchstick, the accused set her ablaze. But

when he realised that the fire was flaring up, he threw water on her person

in a desperate bid to save her. In such facts and circumstances, this Court

held that the accused would not have intended to inflict the injuries which

she sustained on account of the act of the accused and the conviction was

altered from Section 302 IPC to Section 304 Part II IPC.

15. The decision in Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri)

86] cannot be applied in the instant case. The element of inebriation ought

to be taken into consideration as it considerably alters the power of

thinking. In the instant case, the accused was in his complete senses,

knowing fully well the consequences of his act. The subsequent act of

pouring water by the accused on the deceased also appears to be an

attempt to cloak his guilt since he did it only when the deceased screamed

for help. Therefore, it cannot be considered as a mitigating factor. An act

undertaken by a person in full awareness, knowing its consequences

cannot be treated on a par with an act committed by a person in a highly

inebriated condition where his faculty of reason becomes blurred.

16. Within three months of her marriage, the deceased died of burn

injuries. In bride burning cases, whenever the guilt of the accused is

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brought home beyond reasonable doubt, it is the duty of the court to deal

with it sternly and award the maximum penalty prescribed by the law in

order that it may operate as a deterrence to other persons from committing

such offence.

17. This Court on various occasions has stressed the need for vigilance in

cases where a woman dies of burn injuries within a short span of her

marriage and that stern view needs to be adopted in all such cases.

In Satya Narayan Tiwari v. State of U.P. [(2010) 13 SCC 689 : (2011) 2

SCC (Cri) 393] , this Court in paras 3 and 9 has held as under : (SCC pp.

692 & 693)

“3. Indian society has become a sick society. This is evident from the

large number of cases coming up in this Court (and also in almost all

courts in the country) in which young women are being killed by their

husbands or by their in-laws by pouring kerosene on them and

setting them on fire or by hanging/strangulating them. What is the

level of civilisation of a society in which a large number of women are

treated in this horrendous and barbaric manner? What has our

society become—this is illustrated by this case.

***

9. Crimes against women are not ordinary crimes committed in a fit

of anger or for property. They are social crimes. They disrupt the

entire social fabric. Hence, they call for harsh punishment.

Unfortunately, what is happening in our society is that out of lust for

money people are often demanding dowry and after extracting as

much money as they can they kill the wife and marry again and then

again they commit the murder of their wife for the same purpose.

This is because of total commercialisation of our society, and lust for

money which induces people to commit murder of the wife. The time

has come when we have to stamp out this evil from our society, with

an iron hand.”

18. Upon analysis of the evidence adduced by the prosecution, the courts

below recorded concurrent findings that the accused caused the death of

deceased Saraswatibai and convicted the appellant. It is well settled that

concurrent findings of fact cannot be interfered with unless the findings are

perverse and unsupportable from the evidence on record. This view has

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been reiterated in Dhananjay Shanker Shetty v. State of

Maharashtra [(2002) 6 SCC 596 : 2002 SCC (Cri) 1444] . In the totality of

the facts and circumstances, in our view, the concurrent findings of facts

recorded by the courts below are based on evidence and we see no

infirmity in the impugned judgment warranting interference”.

Therefore, after pouring kerosene on the deceased and thereafter

setting her ablaze, thereafter merely because the accused might have

tried to extinguish the fire will not take the case out of the clutches of

clause fourthly of Section 300 of the IPC. The act of the accused

pouring kerosene on the deceased and thereafter setting her ablaze by

matchstick is imminently dangerous which, in all probability, will cause

death. Therefore, the High Court has rightly convicted the accused for

the offence under Section 302 IPC.

11. In view of the above and for the reasons stated above, the present

appeal fails. We see no reason to interfere with the impugned judgment

and order of conviction passed by the High Court. The appeal deserves

to be dismissed and is accordingly dismissed.

……………………………………..J.

[Dr. Dhananjaya Y. Chandrachud]

New Delhi; …………………………………….J.

March 8, 2021. [M.R. Shah]

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