Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO. 1885 OF 2019
Suraj Jagannath Jadhav .. Appellant
Versus
The State of Maharashtra .. Respondent
J U D G M E N T
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 09.10.2018 passed by the High Court of
Judicature at Bombay in Criminal Appeal No. 723 of 2013, by
which the High Court has dismissed the said appeal preferred by
Signature Not Verified
the appellant hereinoriginal accused and has confirmed the
Digitally signed by
ARJUN BISHT
Date: 2019.12.13
16:57:34 IST
Reason:
judgment and order of conviction passed by the learned Trial Court
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convicting the accused for the offence punishable under Section
302 of the IPC, the original accused has preferred the present
appeal.
2. At the outset, it is required to be noted that the only
submission made by the learned counsel appearing on behalf of the
appellantoriginal accused is that the death of the deceased can be
said to be a culpable homicide not amounting to murder and the
case would fall under Exception 4 to Section 300 IPC and therefore
the case would be under Section 304 Part II IPC. Even this Court
has issued the notice in the present appeal limited to the nature of
offence.
3. Shri Sushil Karanjkar, learned counsel appearing on behalf of
the appellantoriginal accused has vehemently submitted that, as
such, there was no intention on the part of the accused to kill his
wife. It is submitted that at the time when the unfortunate incident
had taken place, the accused was under the influence of liquor and
therefore his condition was such that he could not understand what
he was doing. It is further submitted by the learned counsel
appearing on behalf of the appellantoriginal accused that even
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thereafter the appellant tried to save the deceased and poured water
to save her and, while doing so, even the appellantoriginal accused
also sustained the injuries. Therefore, relying upon the decision of
this Court in the case of (2000)
Kalu Ram v. State of Rajasthan
10 SCC 324, it is prayed to alter the conviction from Section 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 the present appeal, has vehemently submitted that
the decision of this Court in (supra) shall not be
Kalu Ram
applicable to the facts of the case on hand. 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 case here. It is
submitted that, in the present case, as such, after abusing and
assaulting the deceased, the accused poured kerosene on her
person and set her ablaze. It is submitted that when the deceased
was trying to run out of the house to save herself, at which time,
the accused came from behind and threw matchstick on her
person and set her ablaze. It is submitted that at the relevant time,
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the deceased was carrying pregnancy of 18 to 20 weeks. It is
submitted that, as per the statement/dying declaration of the
deceased, after the deceased came out of the room making noise,
the accused poured the water on her. It is submitted that the act of
pouring kerosene, though on spur of moment, was followed by
lighting a matchstick and throwing it on the deceased and thereby
setting her ablaze are intimately connected with each other and
resulted in causing death of the deceased. It is submitted that the
act of the accused falls under Section 300 fourthly and therefore
the death of the deceased can be said to be culpable homicide
amounting to murder. It is submitted that every person of average
intelligence would have the knowledge that the pouring of kerosene
and setting a person on fire is so imminently dangerous that in all
probability such an act would cause injuries causing death. It is
submitted therefore that Section 300 fourthly shall be attracted and
not Exception 4 to Section 300 IPC as submitted on behalf of the
accused.
4.1 It is further submitted by Shri Katneshwarkar, learned
counsel for the State that merely because subsequently the accused
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might have poured the water, that is not suffice to alter the
conviction from Section 302 IPC to Section 304 Part II IPC. It is
submitted that the subsequent act of pouring the water by the
accused on the deceased appears to be an attempt to cloak his guilt
since he did it only when the deceased came out for help and made
the noise. It is submitted therefore that it cannot be considered as
a mitigating factor.
4.2 Making the above submissions and relying upon the decisions
of this Court in the case of
Santosh v. State of Maharashtra
(2015) 7 SCC 641 and in the case of Bhagwan Tukaram Dange v.
(2014) 4 SCC 270, it is prayed to dismiss
State of Maharasthra
the present appeal.
5. Heard the learned counsel appearing on behalf of the
respective parties at length. As observed hereinabove, in the
present appeal, the sole question which is posed for consideration
of this Court is, whether, in the facts and circumstances of the
case, the case would fall under Exception 4 to Section 300 IPC or
Section 300 fourthly and, therefore, whether Section 302 IPC shall
be attracted or the case may fall under Section 304 Part II IPC?
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5.1 It is the case on behalf of the appellantoriginal accused that
as at the time when the incident took place, the accused was drunk
and under the influence of liquor and he had no intention to cause
death of the deceasedwife and that even subsequently the accused
tried to save the deceased and poured the water on her and
therefore the case would fall under Exception 4 to Section 300 IPC
and, therefore the conviction is to be altered from Section 302 of the
IPC to Section 304 Part II IPC, having relied upon the decision of
this Court in the case of (supra). However, it is required
Kalu Ram
to be noted that, in the present case, the appellantaccused poured
the kerosene on the deceased when she was trying to run out of the
house to save herself and was trying to open the latch of the door of
the house, the accused threw the matchstick on her person and
set her ablaze. Nothing is on record that the accused was in a
highly inebriated stage. Even looking to the conversation which took
place between the deceased and the accused, so stated in the
dying declaration given by the deceased, it can safely be said that
the accused was in very much conscious condition when the
incident took place. He was very much in the senses and was
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conscious about what he was doing. Therefore, the accused was
fully 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 and
Exception 4 to Section 300 IPC shall not be applicable.
5.2 An identical question came to be considered by this Court in
the case of (supra). In the said decision, this Court also
Santosh
had the occasion to consider the inebriation due to consumption of
alcohol and when it may be said to be a mitigating factor. In the
said decision, this Court also considered the submission made on
behalf of the accused that as he attempted to extinguish the fire by
pouring the water on the deceased and himself getting burn injuries
in that process and, therefore, the case would fall under Exception
4 to Section 300 IPC. In the similar facts and circumstances of the
case, this Court in the case of Santosh (supra) has observed in
paragraphs 10 to 15 as under:
The question falling for consideration is
“11.
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
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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
postmortem 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.
After attending to nature's call, the
12.
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.
Insofar as the conduct of the accused in
14.
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.
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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.”
In the case of Bhagwan (supra), while considering the defence of
the accused at the time of the pouring the kerosene and litting a
matchstick, he was under the influence of liquor and intoxication
and, therefore, 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 and 13 as under:
Intoxication, as such, is not a defence to
“12.
a criminal charge. At times, it can be considered to
be a mitigating circumstance if the accused is not a
habitual drinker, otherwise, it has to be considered
as an aggravating circumstance. The question, as to
whether the drunkenness is a defence while
determining sentence, came up for consideration
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before this Court in Bablu v. State of
Rajasthan [(2006) 13 SCC 116 : (2007) 2 SCC (Cri)
590] , wherein this Court held (SCC p. 129, para 12)
that the defence of drunkenness can be availed of
only when intoxication produces such a condition
as the accused loses the requisite intention for the
offence and onus of proof about reason of
intoxication, due to which the accused had become
incapable of having particular knowledge in forming
the particular intention, is on the accused.
Examining Section 85 IPC, this Court held that the
evidence of drunkenness which renders the accused
incapable of forming the specific intent essential to
constitute the crime should be taken into account
with the other facts proved in order to determine
whether or not he had the intention. The Court held
that merely establishing that his mind was affected
by drink so that he more readily gave way to some
violent passion, does not rebut the presumption
that a man intends the natural consequences of his
acts. This Court, in that case, rejected the plea of
drunkenness after noticing that the crime
committed was a brutal and diabolic act.
13. We find it difficult to accept the contention
of the counsel that since the appellantaccused was
under the influence of liquor, the offence will fall
under Section 304 Part I or Section 304 Part II. A1
was presumed to know the consequences of his
action, of having lit the matchstick and set fire on
the saree of the deceased, after A2 sprinkled
kerosene on her body. In our view, the accused was
correctly chargesheeted under Section 302 IPC and
we find no reason to interfere with the conviction
and sentence awarded by the trial court and
affirmed by the High Court.”
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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 appearing on behalf of the appellantaccused shall not be of
any assistance to the accused, more particularly, in absence of any
evidence led by the accused that he was in a highly inebriated
condition and/or he was such a drunk that he lost all the senses.
7. Applying the law laid down by this Court in the cases of
(supra) and (supra) to the facts of the case on
Bhagwan Santosh
hand and the manner in which the accused poured the kerosene on
the deceased and thereafter when she was trying to run away from
the room to save her, the accused came from behind and threw a
matchstick and set her ablaze, we are of the opinion that the death
of the deceased was a culpable homicide amounting to murder and
Section 300 fourthly shall be applicable and not Exception 4 to
Section 300 IPC as submitted on behalf of the accused. We are in
complete agreement with the view taken by the learned Trial Court
as well as the High Court convicting the accused for the offence
punishable under Section 302 of the IPC.
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8. In view of the above and for the reasons stated above, the
present appeal fails and the same deserves to be dismissed and is
accordingly dismissed.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi,
December 13, 2019.