SURAJ JAGANNATH JADHAV versus THE STATE OF MAHARASHTRA on 13 December 2019

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SUPREME COURT REPORTS

[2019] 15 S.C.R.

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SURAJ JAGANNATH JADHAV

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THE STATE OF MAHARASHTRA

(Criminal Appeal No. 1885 of 2019)

BDECEMBER 13, 2019

[ASHOK BHUSHAN AND M. R. SHAH, JJ.]

Penal Code, 1860 – s.300 Fourthly & Exception 4 to s.300;ss. 302 & 304 Part II – Appellant-accused killed his wife by settingher ablaze – Convicted u/s.302 – Issue limited as to alteration ofCconviction from s.302 to s.304 Part II – Held: Appellant poured thekerosene on the deceased when she was trying to run out of thehouse to save herself and was trying to open the latch of the doorof the house, the appellant threw the match-stick on her person andset her ablaze – Nothing is on record that the appellant was inDinebriated stage –Even looking to the conversation between thedeceased and the appellant, as stated in the dying declaration givenby the her, it can safely be said that the appellant was in very muchconscious condition when the incident took place – He was verymuch in senses and was conscious about what he was doing –Hewas fully conscious of the fact that if kerosene is poured and match-Estick is lit and put on the body, a person might die due to burns –Death of the deceased was culpable homicide amounting to murderand s.300 fourthly shall be applicable and not Exception 4 to s.300,as contended by the appellant – In complete agreement with theview taken by the Trial Court and the High Court convicting theFappellant for the offence punishable u/s.302.

Dismissing the appeal, the Court

HELD: In the present case, the appellant-accused pouredthe kerosene on the deceased when she was trying to run out ofthe house to save herself and was trying to open the latch of theGdoor of the house, the accused threw the match-stick on herperson and set her ablaze. Nothing is on record that the accusedwas in a highly inebriated stage. Even looking to the conversationwhich took place between the deceased and the accused, so statedin the dying declaration given by the deceased, it can safely be H

said that the accused was in very much conscious condition whenthe incident took place. He was very much in the senses and wasconscious about what he was doing. Therefore, the accused wasfully conscious of the fact that if kerosene is poured and match-stick is lit and put on the body, a person might die due to burns.Therefore, the case would fall under Section 300 fourthly andException 4 to Section 300 IPC shall not be applicable.[Paras 5.1][88-C-E]

2. The manner in which the accused poured the keroseneon the deceased and thereafter when she was trying to run awayfrom the room to save her, the accused came from behind andthrew a match-stick and set her ablaze, the death of the deceasedwas a culpable homicide amounting to murder and Section 300fourthly shall be applicable and not Exception 4 to Section 300IPC as submitted on behalf of the accused. In complete agreementwith the view taken by the Trial Court as well as the High Courtconvicting the accused for the offence punishable under Section302 of the IPC. [Para 7][92-B-C]

Kalu Ram v. State of Rajasthan (2000) 10 SCC 324 –referred to.

Santosh v. State of Maharashtra (2015) 7 SCC 641 :[2015] 4 SCR 962 ; Bhagwan Tukaram Dange v. Stateof Maharasthra (2014) 4 SCC 270 : [2014] 3 SCR753 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1885 of 2019.

From the Judgment and Order dated 09.10.2018 of the High Courtof Judicature at Bombay in Criminal Appeal No. 723 of 2013.

Sushil Karanjkar, Nikhilesh Kumar and K. N. Rai, Advs. for theAppellant.

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ANishant Ramakantrao Katneshwarkar and Anoop Kandari, Advs.for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.B1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 09.10.2018 passed by the High Court of Judicature atBombay in Criminal Appeal No. 723 of 2013, by which the High Courthas dismissed the said appeal preferred by the appellant herein-originalaccused and has confirmed the judgment and order of conviction passedby the learned Trial Court convicting the accused for the offenceCpunishable under Section 302 of the IPC, the original accused haspreferred the present appeal.

2. At the outset, it is required to be noted that the only submissionmade by the learned counsel appearing on behalf of the appellant-originalaccused is that the death of the deceased can be said to be a culpableDhomicide not amounting to murder and the case would fall underException 4 to Section 300 IPC and therefore the case would be underSection 304 Part II IPC. Even this Court has issued the notice in thepresent appeal limited to the nature of offence.

3. Shri Sushil Karanjkar, learned counsel appearing on behalf ofEthe appellant-original accused has vehemently submitted that, as such,there was no intention on the part of the accused to kill his wife. It issubmitted that at the time when the unfortunate incident had taken place,the accused was under the influence of liquor and therefore his conditionwas such that he could not understand what he was doing. It is furtherFsubmitted by the learned counsel appearing on behalf of the appellant-original accused that even thereafter the appellant tried to save thedeceased and poured water to save her and, while doing so, even theappellant-original accused also sustained the injuries. Therefore, relyingupon the decision of this Court in the case of Kalu Ram v. State ofRajasthan (2000) 10 SCC 324, it is prayed to alter the conviction fromGSection 302 IPC to Section 304 Part II IPC.

4. On the other hand, Shri Nishant Ramakantrao Katneshwarkar,learned counsel appearing on behalf of the State, while opposing thepresent appeal, has vehemently submitted that the decision of this Courtin Kalu Ram (supra) shall not be applicable to the facts of the case onHhand. It is submitted that in that case before this Court, it was found that

the accused was in a highly inebriated condition, which is not the casehere. It is submitted that, in the present case, as such, after abusing andassaulting the deceased, the accused poured kerosene on her personand set her ablaze. It is submitted that when the deceased was trying torun out of the house to save herself, at which time, the accused camefrom behind and threw match-stick on her person and set her ablaze. Itis submitted that at the relevant time, the deceased was carryingpregnancy of 18 to 20 weeks. It is submitted that, as per the statement/dying declaration of the deceased, after the deceased came out of theroom making noise, the accused poured the water on her. It is submittedthat the act of pouring kerosene, though on spur of moment, was followedby lighting a match-stick and throwing it on the deceased and therebysetting her ablaze are intimately connected with each other and resultedin causing death of the deceased. It is submitted that the act of theaccused falls under Section 300 fourthly and therefore the death of thedeceased can be said to be culpable homicide amounting to murder. It issubmitted that every person of average intelligence would have theknowledge that the pouring of kerosene and setting a person on fire is soimminently dangerous that in all probability such an act would causeinjuries causing death. It is submitted therefore that Section 300 fourthlyshall be attracted and not Exception 4 to Section 300 IPC as submittedon behalf of the accused.

4.1 It is further submitted by Shri Katneshwarkar, learned counselfor the State that merely because subsequently the accused might havepoured the water, that is not suffice to alter the conviction from Section302 IPC to Section 304 Part II IPC. It is submitted that the subsequentact of pouring the water by the accused on the deceased appears to bean attempt to cloak his guilt since he did it only when the deceased cameout for help and made the noise. It is submitted therefore that it cannotbe considered as a mitigating factor.

4.2 Making the above submissions and relying upon the decisionsof this Court in the case of Santosh v. State of Maharashtra (2015) 7SCC 641 and in the case of Bhagwan Tukaram Dange v. State ofMaharasthra (2014) 4 SCC 270, it is prayed to dismiss the presentappeal.

5. Heard the learned counsel appearing on behalf of the respectiveparties at length. As observed hereinabove, in the present appeal, thesole question which is posed for consideration of this Court is, whether, AB

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Ain the facts and circumstances of the case, the case would fall underException 4 to Section 300 IPC or Section 300 fourthly and, therefore,whether Section 302 IPC shall be attracted or the case may fall underSection 304 Part II IPC?

5.1 It is the case on behalf of the appellant-original accused thatBas at the time when the incident took place, the accused was drunk andunder the influence of liquor and he had no intention to cause death ofthe deceased-wife and that even subsequently the accused tried to savethe deceased and poured the water on her and therefore the case wouldfall under Exception 4 to Section 300 IPC and, therefore the convictionis to be altered from Section 302 of the IPC to Section 304 Part II IPC,Chaving relied upon the decision of this Court in the case of Kalu Ram(supra). However, it is required to be noted that, in the present case, theappellant-accused poured the kerosene on the deceased when she wastrying to run out of the house to save herself and was trying to open thelatch of the door of the house, the accused threw the match-stick on herDperson and set her ablaze. Nothing is on record that the accused was ina highly inebriated stage. Even looking to the conversation which tookplace between the deceased and the accused, so stated in the dyingdeclaration given by the deceased, it can safely be said that the accusedwas in very much conscious condition when the incident took place.He was very much in the senses and was conscious about what he was Edoing. Therefore, the accused was fully conscious of the fact that ifkerosene is poured and match-stick is lit and put on the body, a personmight die due to burns. Therefore, the case would fall under Section 300fourthly and Exception 4 to Section 300 IPC shall not be applicable.

5.2 An identical question came to be considered by this Court inFthe case of Santosh (supra). In the said decision, this Court also had theoccasion to consider the inebriation due to consumption of alcohol andwhen it may be said to be a mitigating factor. In the said decision, thisCourt also considered the submission made on behalf of the accusedthat as he attempted to extinguish the fire by pouring the water on theGdeceased and himself getting burn injuries in that process and, therefore,the case would fall under Exception 4 to Section 300 IPC. In the similarfacts and circumstances of the case, this Court in the case of Santosh(supra) has observed in paragraphs 10 to 15 as under:

“11. The question falling for consideration is whether theHact of the accused pouring water would mitigate the offence of

murder. Where the intention to kill is present, the act amounts tomurder, where such an intention is absent, the act amounts toculpable homicide not amounting to murder. To determine whetherthe offender had the intention or not, each case must be decidedon its facts and circumstances. From the facts and circumstancesof the instant case, it is evident that: (i) there was a homicide,namely, the death of Saraswatibai; (ii) the deceased was set ablazeby the appellant and this act was not accidental or unintentional;and (iii) the post-mortem certificate revealed that the deceaseddied due to shock and septicaemia caused by 60% burn injuries.When the accused poured kerosene on the deceased from thekerosene lamp and also threw the lighted matchstick on thedeceased to set her on fire, he must have intended to cause thedeath of the deceased. As seen from the evidence of PW 5, panchwitness, in the house of the appellant, kerosene lamp was preparedin an empty liquor bottle. Whether the kerosene was poured fromthe kerosene lamp or from the can is of no consequence. Whenthere is clear evidence as to the act of the accused to set thedeceased on fire, absence of premeditation will not reduce theoffence of murder to culpable homicide not amounting to murder.Likewise, pouring of water will not mitigate the gravity of theoffence.

12. After attending to nature’s call, the deceased returnedto the house a little late. The accused questioned her as to whyshe was coming late and he also suspected her fidelity. Therewas no provocation for the accused to pour kerosene and set heron fire. The act of pouring kerosene, though on the spur of themoment, the same was followed by lighting a matchstick andthrowing it on the deceased and thereby setting her ablaze. Boththe acts are intimately connected with each other and resulted incausing the death of the deceased and the act of the accused ispunishable for murder.

13. Even assuming that the accused had no intention tocause the death of the deceased, the act of the accused fallsunder clause Fourthly of Section 300 IPC that is the act of causinginjury so imminently dangerous where it will in all probability causedeath. Any person of average intelligence would have theknowledge that pouring of kerosene and setting her on fire by AB

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throwing a lighted matchstick is so imminently dangerous that inall probability such an act would cause injuries causing death.

14. Insofar as the conduct of the accused in attempting toextinguish fire, placing reliance upon the judgment of this Courtin Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC (Cri) 86] , itwas contended that such conduct of the accused would bringdown the offence from murder to culpable homicide not amountingto murder. In Kalu Ram case [(2000) 10 SCC 324 : 2000 SCC(Cri) 86], the accused was having two wives. The accused in ahighly inebriated condition asked his wife to part with herornaments so that he could purchase more liquor, which led to analtercation when the wife refused to do as demanded. Infuriatedby the fact that his wife had failed to concede to his demands, theaccused poured kerosene on her and gave her a matchbox to setherself on fire. On her failure to light the matchstick, the accusedset 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. Insuch facts and circumstances, this Court held that the accusedwould not have intended to inflict the injuries which she sustainedon account of the act of the accused and the conviction was alteredfrom Section 302 IPC to Section 304 Part II IPC.

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E15. The decision in Kalu Ram case [(2000) 10 SCC 324 :2000 SCC (Cri) 86] cannot be applied in the instant case. Theelement of inebriation ought to be taken into consideration as itconsiderably alters the power of thinking. In the instant case, theaccused was in his complete senses, knowing fully well theconsequences of his act. The subsequent act of pouring water byFthe accused on the deceased also appears to be an attempt tocloak his guilt since he did it only when the deceased screamedfor help. Therefore, it cannot be considered as a mitigating factor.An act undertaken by a person in full awareness, knowing itsconsequences cannot be treated on a par with an act committedGby a person in a highly inebriated condition where his faculty ofreason becomes blurred.”

In the case of Bhagwan (supra), while considering the defenceof the accused - at the time of the pouring the kerosene and litting amatch-stick, he was under the influence of liquor and intoxication and,Htherefore, the intoxication can be said to be a mitigating circumstance and therefore the case would fall under Exception 4 to Section 300 IPC,this Court negatived the said defence by observing in paragraphs 12 and13 as under:

“12. Intoxication, as such, is not a defence to a criminalcharge. At times, it can be considered to be a mitigatingcircumstance if the accused is not a habitual drinker, otherwise, ithas to be considered as an aggravating circumstance. The question,as to whether the drunkenness is a defence while determiningsentence, came up for consideration before this Courtin Bablu v. State of Rajasthan [(2006) 13 SCC 116 : (2007) 2SCC (Cri) 590] , wherein this Court held (SCC p. 129, para 12)that the defence of drunkenness can be availed of only whenintoxication produces such a condition as the accused loses therequisite intention for the offence and onus of proof about reasonof intoxication, due to which the accused had become incapableof having particular knowledge in forming the particular intention,is on the accused. Examining Section 85 IPC, this Court held thatthe evidence of drunkenness which renders the accused incapableof forming the specific intent essential to constitute the crime shouldbe taken into account with the other facts proved in order todetermine whether or not he had the intention. The Court heldthat merely establishing that his mind was affected by drink sothat he more readily gave way to some violent passion, does notrebut the presumption that a man intends the natural consequencesof his acts. This Court, in that case, rejected the plea ofdrunkenness after noticing that the crime committed was a brutaland diabolic act.

13. We find it difficult to accept the contention of the counselthat since the appellant-accused was under the influence of liquor,the offence will fall under Section 304 Part I or Section 304 PartII. A-1 was presumed to know the consequences of his action, ofhaving lit the matchstick and set fire on the saree of the deceased,after A-2 sprinkled kerosene on her body. In our view, the accusedwas correctly charge-sheeted under Section 302 IPC and we findno reason to interfere with the conviction and sentence awardedby the trial court and affirmed by the High Court.”

6. Therefore, the decision of this Court in the case of Kalu Ram(supra) upon which the reliance has been placed by the learned counsel AB

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Aappearing on behalf of the appellant-accused shall not be of anyassistance to the accused, more particularly, in absence of any evidenceled by the accused that he was in a highly inebriated condition and/or hewas such a drunk that he lost all the senses.

7. Applying the law laid down by this Court in the cases ofBBhagwan (supra) and Santosh (supra) to the facts of the case on handand the manner in which the accused poured the kerosene on thedeceased and thereafter when she was trying to run away from theroom to save her, the accused came from behind and threw a match-stick and set her ablaze, we are of the opinion that the death of thedeceased was a culpable homicide amounting to murder and SectionC300 fourthly shall be applicable and not Exception 4 to Section 300 IPCas submitted on behalf of the accused. We are in complete agreementwith the view taken by the learned Trial Court as well as the High Courtconvicting the accused for the offence punishable under Section 302 ofthe IPC.

D8. In view of the above and for the reasons stated above, thepresent appeal fails and the same deserves to be dismissed and isaccordingly dismissed.

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Appeal dismissed.

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