Venu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938 CRL.A.No. 139 of 2011 ( ) -------------------------AGAINST THE JUDGMENT IN S.C.NO. 1531/2006 of SESSIONS COURT,KOLLAM DATED 18-09-2010 APPELLANT: ------------ VENU, C.NO.5478,CENTRAL PRISON,TRIVANDRU TRIVANDRUM. BY ADVS.SRI.RENJITH B.MARAR SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA RESPONDENT: -------------- STATE OF KERALA REPRESENTED .BY A PUBLIC PROSECUTOR. ## BY ADV. SMT.PRAICY JOSEPH, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2016 , THE COURT ON 30-06-2016 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & A.HARIPRASAD, JJ.** **-------------------------------------Crl.Appeal No.139 of 2011 -------------------------------------Dated this the 30[th] day of June, 2016** ## **JUDGMENT** ## A.Hariprasad, J. Appellant's challenge in this appeal is against the conviction and sentence clamped on him by the Sessions Court, Kollam, alleging that he is guilty of uxoricide. The accusations, borne out from the charge framed by the trial court, are that the appellant on 28.12.2001 at about 8.00 p.m. poured kerosene, from top to bottom, on the body of his wife Sindhu at their house and set her on fire. Later, she succumbed to the burn injuries. It is therefore alleged that the appellant intentionally committed murder of his wife and therefore liable to be punished under Section 302 of the Indian Penal Code, 1860 (“IPC”, in short). 2. The defence case, revealed from the records, especially the written statement submitted by the appellant at the time of examination under Section 313 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”, in short) as well as the appeal memorandum, is that the victim had a tendency to commit suicide and she had attempted to do so before and the appellant is not responsible for her death. 2 Crl.Appeal No.139/2011 3. The court below examined 14 witnesses on the prosecution side and one defence witness. Exts.P1 to P11 were marked by the prosecution and Ext.D1 by the defence. Material objects are MOs.1 to 4. Based on the evidence, the court below found that the appellant is guilty of murder and hence imposed imprisonment for life on him. 4. We heard Shri Renjith B.Marar, learned counsel for the appellant and Smt.Praicy Joseph, learned Public Prosecutor. 5. We shall deal with the material evidence adduced by both sides before delving into the finer aspects of the case. 6. Narration by the prosecution of the events, which led to the occurrence, is not challenged by the appellant, except the allegation that he was responsible for a homicide. On 28.12.2001 at about 8 O'clock in the night the incident had happened. Admittedly the appellant was eking out livelihood by doing some petty trade. Before the incident, the appellant was conducting trade in and around Sabarimala. He was away from his home for 41 days prior to the incident. At that time, his wife (the deceased) was in her family house as she could not stay alone in the house. The appellant after staying 41 days in Sabarimala came back and called his wife to join him. The victim went to the matrimonial home on the day of his return from Sabarimala. He had handed over `700/- to the victim. On the next day morning, he took `300/- from out of the said amount. Thereafter in the evening, he demanded balance `400/- from the deceased for which 3 Crl.Appeal No.139/2011 she was not amenable. A quarrel ensued in that connection. Appellant poured kerosine on the victim and set her ablaze with an intention to kill. In this regard the defence case is that the victim was having a tendency to kill herself and she attempted to do so even on prior occasions. Appellant contended that while he was taking bath, the victim herself poured kerosene over her body and self-immolised. Only on this aspect, there is a material difference between the contestants. 7. Prosecution heavily relied on the oral evidence adduced by PW1 Gurudevi, PW3 Haridas, PW4 Santhini and PW9 Santhamma to prove that the appellant was responsible for the homicide. Apart from their testimony, evidence adduced by PW11 Sri Murali Sreedhar, the Judicial First Class Magistrate, Thiruvananthapuram at the material time and who recorded the dying declaration of the victim from the hospital and also that of PW10 Dr.K.Sasikala, who conducted the autopsy on the body of the deceased are also relied on by the prosecution. 8. PWs.1, 3, 4 and 9 identified the appellant as the husband of deceased Sindhu. PW1 was residing in appellant's neighbourhood. It is her version that her husband was unwell at that time. Therefore, PW3 Haridas and PW4 Santhini (wife of PW3) visited her home. After sometime, PW1 stepped out of her house to see them off. Then PWs. 1, 3 and 4 heard a loud cry from the appellant's house. It appeared that someone was crying for help. When they turned to that side, they found somebody on fire 4 Crl.Appeal No.139/2011 in the appellant's house. PWs. 1, 3 and 4 rushed to the spot. At that time, they saw the deceased in a sitting posture and she was engulfed by fire. PW1 poured water on her body. PW3 went out and brought in people in the neighbourhood. By that time, PW1 could douse the fire. The victim was taken out of her house. She was seriously burned by that time. It is the version of PW1 that the appellant was not there when all these events transpired. PW3 fetched an autorickshaw and took Sindhu to a nearby hospital. Before taking her to the hospital, a neighbour by name Gangadharan asked Sindhu as to what had happened. At that time, she told that her husband poured kerosene on her body and set her on fire as she refused to give money demanded by him. By that time autorickshaw came and she was taken to the hospital. 9. PW3 Haridas also deposed almost in the same lines. It has come out in evidence that PW1's husband is the brother-in-law of PW3. This witness and PW4 spoke that they visited PW1's house as her husband was laid up. It is the version of PW3 that when they were about to leave, he heard a thud from the appellant's house followed by a screaming. When PWs.1, 3 and 4 rushed to the house of appellant, they saw deceased Sindhu squatting on the floor with fire on her whole body. At that time, the appellant came out of house and asked them whether they would save his wife. However, he simply went away without helping the victim. The same version is spoken to by PWs.1 and 4. Thereafter, as stated by 5 Crl.Appeal No.139/2011 PW1, PW3 got an autorickshaw and took the victim to the hospital. He also stated that the deceased had informed the persons gathered that her husband poured kerosene on her and set her ablaze. 10. PW4, wife of PW3, also supported his testimony and that of PW1 in all material terms. She also stated that they heard a distress cry from the appellant and hurriedly reached at the place. They saw the appellant walking out of his house and Sindhu with a burning body. It is also the version of PW4 that Sindhu answered to a query by someone that her husband was responsible for the burns. These witnesses were crossexamined by the defence counsel. No material could be elicited in crossexamination to impeach the credibility of these witnesses. We have no reason to hold that PWs. 1, 3 and 4 were falsely testifying before the court to implicate the appellant in a wrong way. On all material aspects, these three witnesses support each other and their testimony remain believable. 11. PW5 Dr.Prasanna worked as Civil Surgeon at Taluk Head Quarters Hospital, Karunagappally on 28.12.2001. She testified that at about 8.55 p.m. on that day the deceased was brought by PW3 with extensive burns. PW5 stated that history and alleged cause of injury, as stated by the victim, was that her husband poured kerosene on her body and ignited. Ext.P2 is the wound certificate proved through this witness. In Ext.P2 the said history has been narrated. PW5 deposed that the victim was conscious at that time. It was noticed by PW5 that the victim sustained 6 Crl.Appeal No.139/2011 burn injuries all over body except the pubic area and upper part of foot. According to PW5's estimation, the victim had about 90% burns. The victim was referred to the District Hospital, Kollam. All these facts are revealed from Ext.P2. PW5 was cross-examined at length. PW5 during cross-examination deposed that she did not treat the victim, but had only given first aid. When asked about the probable reaction of a person when set ablaze, PW5 deposed that some people may run away from the site, some others may cry loudly and some others may roll over the floor in panic. It is her testimony that reaction to such a situation depends on various factors, including the mental make up of the victim. PW5 asserted that a person with this kind of burn injury may retain consciousness. The defence case that the alleged history and cause of injury noted on Ext.P2 by PW5 was on account of the pressure exerted by the relatives of the victim is strongly denied. We find no valid reason to discard the testimony of PW5. However, learned counsel for the appellant contended that the statements in Ext.P2 and the testimony of PW5 go against Ext.P7 dying declaration and testimony of PW11. Those aspects shall be dealt with separately hereunder. PWs. 6 to 8 are witnesses, who proved Ext.P3 site plan, Ext.P1 inquest report and Ext.P4 scene mahazar respectively. 12. Another important piece of medical evidence is the testimony of PW10 Dr.Sasikala, who conducted autopsy on the body of deceased Sindhu on 06.01.2002. She was then working as Assistant Professor of Crl.Appeal No.139/2011 7 Forensic Medicine and Deputy Police Surgeon, Medical College, Thiruvananthapuram. It is evident from the postmortem certificate (Ext.P5) that the victim had infected burns involving face, front of chest and upper part of abdomen. Further she had infected burn injury on the front of both thighs, both upper limbs, back of neck and also on back of both knees. Description of the conditions of her internal organs mentioned in Ext.P5 would show that they suffered damage on account of extensive burn injuries. Opinion stated by PW10 as to the cause of death was that it was due to burns involving approximately 90% of body surface. In crossexamination, this witness stated that she assessed 90% burn injuries with naked eyes. It has come out in her evidence that due to the burn injuries, the victim's brain became congested and oedematous and air passages also became congested. Her lungs were congested and oedematous. Ulcers were present in stomach and first part of duodenum. Liver was pale with patchy areas of necrosis and spleen was friable. Her kidneys were also damaged. Adrenal glands also showed hemorrhage. According to PW10, all these were due to the adverse effect of sustaining severe burn injuries. It is clear from Ext.P5 and testimony of PW10 that the victim died due to burn injuries and this proposition is unchallengeable. 13. PW9 is another star witness for the prosecution. She is the mother of deceased Sindhu. Although she is not an eye witness to the incident, she definitely stated that her daughter was killed by the appellant 8 Crl.Appeal No.139/2011 by pouring kerosene and setting her on fire. She also deposed that 41 days prior to the incident, the appellant went to Sabarimala and when he came back, she asked the victim to join him. Till then the victim was residing with PW9. On 28.12.2001 at about 8 O' clock in the night, her neighbour received a phone call that Sindhu sustained burn injuries and was taken to Taluk Head Quarters Hospital, Karunagappally. She rushed to the hospital and found her daughter in a state of utter distress, placed in an ambulance for being taken to the Medical College Hospital, Thiruvananthapuram. Along with the victim, PW9 went to the Medical College Hospital. PW9 asked her daughter as to what happened. Reply given was that she never attempted to commit suicide as she was anxious about her child. When PW9 pressed her to disclose as to how the incident had happened, the victim narrated that her husband demanded money for which she was not agreeable. At that time, the appellant poured kerosene through her head and when she tried to run away, he put a burning lamp on her body. It is also alleged by PW9 that the appellant did not make any attempt to save the deceased. PW9 deposed that the marital life of deceased was miserable. All the gold ornaments, except 'thali' (the sacred thread), were sold away by the appellant. The victim's child was aged four years at the time of occurrence and at that time, the child was with PW9. It is relevant to note that the appellant was conspicuously absent when the victim was taken to various hospitals. 9 Crl.Appeal No.139/2011 14. During cross-examination, it was suggested that PW9 was falsely implicating the appellant on account of the marital discord persisted between him and the deceased. This suggestion was strongly denied by PW9. It is the version of PW9 that she talked to her daughter from Medical College Hospital, Thiruvananthapuram. The defence case that the deceased was having a suicide mania is flatly denied by PW9. As we do not find any reason to disbelieve PW9, we are of the view that her testimony has to be given due weight. 15. PW11, Sri.Murali Sreedhar, was working as Judicial First Class Magistrate, Thiruvananthapuram at the relevant time. He recorded the dying declaration of the victim on 29.12.2001 at about 6.30 p.m. from the Medical College Hospital, Thiruvananthapuram. Immediately on receiving Ext.P6 request for recording the dying declaration, PW11 proceeded to the hospital. Ext.P7 is the dying declaration. Ext.P7(a) is the certificate which shows **t** hat the declaration of the victim was recorded in the presence of Dr.Raghu Kumar, Asst. Professor, Department of Surgery, Medical College Hospital, Thiruvananthapuram, who personally examined the victim. Both the learned Magistrate and the Doctor certified that the victim was conscious and oriented to give a statement. 16. The statement of the victim was recorded after a _voir dire_ . From the initial answers given by the victim, it can be seen that she was conscious and sufficiently oriented to give intelligible answers. To a 10 Crl.Appeal No.139/2011 specific question as to how she sustained burn injuries, she firstly answered that her husband (appellant) poured kerosene over her head. On repeated questioning by PW11, the victim stated that a burning lamp without chimmany was placed close by and from that lamp, her night dress caught fire. She further stated that there was a quarrel between them just before the appellant poured kerosene on her as the latter had demanded money and she was not willing to spare. On going through Ext.P7, it is clear that the victim was capable of giving cogent answers to the queries. 17. PW11 amply proved Ext.P7 dying declaration. He was crossexamined by the defence counsel. It has come out in evidence that when the statement of the victim was recorded by PW11, her mother was present adjacent to the bed. The defence contention that PW9 tutored the victim to implicate the appellant cannot be accepted for the reason that her state of mind was stable and her version in Ext.P7, though slightly different from Ext.P2 wound certificate, would show that she herself narrated the cause of burn injury. It is also to be remembered that when Ext.P2 was given, admittedly PW9 was not present in the hospital as it has come out in evidence that PW9 reached the Taluk Head Quarters Hospital, Karunagappally only after laying the victim in an ambulance to be taken to Medical College Hospital, Thiruvananthapuram. We shall consider the contention of the appellant that the statements in Exts.P2 and P7 narrated by the victim are incongruous. However, it is to be seen that Ext.P7 is 11 Crl.Appeal No.139/2011 sufficiently proved by PW11 and his testimony remains credible even after cross-examination. 18. In fact the learned counsel for the appellant contended that he has no quarrel about the statements in Ext.P7 dying declaration, which, according to the appellant, do not reveal his involvement in the causation of burn injuries. 19. PWs.12 and 14 are the police officers, who recorded the first information statement and Ext.P8 first information report, conducted the investigation and laid the charge sheet, respectively. There is no dispute raised against the testimonies of these witnesses. 20. Learned counsel for the appellant contended that the testimony of PWs 1, 3 and 4 regarding the incident cannot be treated as direct evidence. According to him, they only heard a declaration made by the victim to one Gangadharan that her husband had set her on fire. We are of the firm view that this statement made by the victim is relevant under Section 6 of the Evidence Act, 1872. The Section says that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) to the said Section makes the position more clear. 21. That apart, Section 8 of the Evidence Act, 1872 is also relevant in this context. It has come out in evidence through PWs 1, 3 and 4 that 12 Crl.Appeal No.139/2011 immediately after the incident, when appellant's wife was engulfed in fire, he came out of the house and asked these witnesses whether they would help his wife. It is the further evidence of these witnesses that he, without waiting for anyone's action and also without making any attempt to save his own wife, went out. All these facts deposed to by these witnesses remain credible in spite of cross-examination. The conduct of the appellant will squarely fall within Section 8 of the Evidence Act. Therefore, the trial court correctly relied on the testimony of PWs 1, 3 and 4 to find the guilt of the appellant. 22. Learned counsel for the appellant heavily relied on Ext.P1 inquest report and Ext.P7 dying declaration to contend that the story put forward by the prosecution is highly improbable as these admitted documents show different versions. Ext.P1 inquest report was prepared by PW7, who worked as the Tahsildar, Karunagappally Taluk. It is interesting to note that his cryptic deposition proving Ext.P1 was not challenged in cross-examination. Learned counsel for the appellant argued that he has no dispute against Ext.P7 dying declaration as well. If these two documents are juxtaposed, the prosecution case of murder will become highly improbable, contended the learned counsel for the appellant. Ext.P1 inquest report contains statements of various witnesses. It is relevant to note that none of the witnesses examined at the time of inquest was examined before the court. It is well settled that mere marking of a 13 Crl.Appeal No.139/2011 document in evidence cannot be taken as proof of its contents. Statements of witnesses recorded by PW7 at the time of inquest cannot be said to have been proved by the examination of PW7. Learned counsel for the appellant wanted to rely on the statement of the victim's father, recorded at the time of inquest, indicating that when the appellant poured kerosene over the victim's body, she tried to escape and accidentally stumbled on a lighted lamp, thereby her dress caught fire and she sustained burn injuries. According to the learned counsel, this witness should have been examined by the prosecution and withholding him from the court was unjustifiable. In answer to this argument, learned Prosecutor submitted that the statement of victim's father cannot be legally relied on as it was not proved. If the appellant had such a case, he should have summoned him as a defence witness. Prosecution's definite stand is that the statements made at the time of inquest can never have a high probative value as claimed by the appellant. Fact that the statements in Ext.P1 inquest report are not legally proved cannot be disputed. So much so, on the alleged version of the victim's father, the defence cannot build up a case. 23. Learned counsel for the appellant further contended that when the victim gave a statement before PW11 Magistrate, she did not insinuate her husband (appellant) that he ignited her body. That aspect, if taken along with the recitals in Ext.P1, would indicate a possibility of accidental fire. According to the learned Prosecutor, this theory now put forward by 14 Crl.Appeal No.139/2011 the appellant is against the proved facts in this case. 24. To buttress the defence case that consistency in dying declaration is a very relevant factor and when a contradictory and inconsistent stand was taken by the deceased at different times, the dying declaration should not be accepted on its face value, the learned counsel for the appellant relied on the decision of the Supreme Court in **Samadhan Dhudaka Koli v. State of Maharashtra (AIR 2009 SC 1059)** . The relevant portion reads as follows: _“Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.”_ 25. It is to be noted here that the learned counsel for the appellant has no quarrel with Ext.P7 dying declaration. He forcefully contended that if Ext.P7 is accepted, there is no indication to link the appellant with the causation of burn injury on the body of the deceased. In this situation, the mention in Ext.P2 wound certificate that the appellant poured kerosene and set her on fire runs contrary to Ext.P7 is the contention of the learned counsel. We are unable to accept the argument of the learned counsel that there is incongruity or irreconcilability between Exts.P2 and P7. Ext.P2 15 Crl.Appeal No.139/2011 wound certificate contains the first statement of the victim in point of time. It was properly proved by PW5 Dr. Prasanna, who attended the victim from Taluk Head Quarters Hospital, Karunagappally. It has come out in evidence through the testimony of PWs 1, 3, 4 and 9 and also through the testimony of PW5 that the victim was conscious at the time when she made the statement in Ext.P2. The statement seen in Ext.P2 was given by the victim shortly after the incident on 28.12.2001. Ext.P7 was recorded on the next day of the incident (ie. 29.12.2001) and the recitals in Ext.P7 clearly show that the victim was conscious and capable of testifying. It is true that in Ext.P7 dying declaration the victim did not in express terms name the appellant as the offender. The only inference that can be drawn from Ext.P7 is that the appellant poured kerosene on her body and set her ablaze. This version of the prosecution case derives support from the oral testimony of PWs 1, 3 and 4 and also from the recitals in Ext.P2 and the supporting evidence of PW5. PW9, mother of the victim, also supported the prosecution case to the hilt. There is no reason elicited in crossexamination of PW9 to hold that she was falsely implicating her son-in-law in the incident. As mentioned above, the matters borne out from Ext.P7, which is proved by PW11, do not run contrary to Ext.P2 and the testimony of PW5. Therefore, the contention of the appellant that if Ext.P7 is believed, Ext.P2 cannot be believed is unsustainable. 26. The appellant when examined under Section 313 Cr.P.C. filed 16 Crl.Appeal No.139/2011 a written statement. Gist of the contents in the statement is that deceased Sindhu had attempted to commit suicide two times before her death. Appellant had further stated that at the time of the incident they had a child aged two years. It is his version that when he stayed away from home in connection with his work, he used to send his wife to her family house to avoid any untoward incident. The specific case put forward by the appellant in the statement is that she herself poured kerosene on her body and accidentally caught fire from a lighted lamp. At that time, the appellant was taking bath. He tried to rescue her. He doused fire by pouring water. When he went to catch an autorickshaw to take the victim to a hospital, his neighbours took her to Taluk Hospital, Karunagappally. It is his version that his father-in-law and mother-in-law instigated the victim to falsely implicate the appellant in connection with the incident. Regarding his staying away from the hospital while his wife was in a critical condition, the appellant stated that her relatives did not allow him to go and meet the victim. It is important to note that none of these versions was suggested to any of the prosecution witnesses, who testified to the effect that the appellant was responsible for murder. We do not find any tangible reason for the appellant to walk out when his wife was burning and also to keep away from the hospital when his wife was in an extreme condition. Therefore, this defence version stands unestablished. 27. Learned Prosecutor relied on **Som Nath v. State of Haryana** 17 Crl.Appeal No.139/2011 **(AIR 1980 SC 1226)** to contend that groaning utterances of dying woman in grip of dreadful agony which could not be judged by standards of fullness of particulars which witnesses might gave in other situations. The said principle can be applied here also. In this case also the victim had initially spoken to the hearing of PWs 1, 3 and 4 that her husband had set her on fire. It was repeated by her from the first hospital, which was proved through Ext.P2 and testimony of PW5. Apart from this dying declaration, she had narrated the incident to her mother PW9. In addition to this, the victim had gave a statement to PW11, who in turn recorded Ext.P7 dying declaration. As mentioned above, there is absolutely no conflict between these versions except the fact that in Ext.P7 she did not specifically name the appellant as the aggressor. However, reliable evidence in the prosecution case will fill up the gaps in Ext.P7 and are sufficient to nail the appellant to the crime. 28. Learned counsel for the appellant heavily relied on a Division Bench decision of the Madras High Court in **In re Maragatham and another (1961(2) Cri.L.J. 781)** . For clarity the facts of the decision can be stated shortly. Appellants in that case were husband and wife. They were starving for about ten days previous to the date of occurrence. They could not find neither work nor anyone to give them food. They were determined to put an end to their lives and also the life of their female infant, probably feeling that no one would take care of the child after their death. On 18 Crl.Appeal No.139/2011 07.01.1959 at about 5.30 a.m., they proceeded to a well in their village and jumped into it carrying the female infant. Evidence adduced in this case made it clear that they tied themselves together with a rope before jumping into the well. The female infant drowned and the appellants were saved out. They stood a trial for the offences punishable under Sections 302 and 309 read with Section 34 IPC. The trial court convicted them for the said offences. In appeal, the High Court altered the sentence from one under Section 302 to Section 307 IPC and the conviction and sentence under Section 309 IPC was confirmed. Reasoning stated by the High Court for finding that the appellants were only guilty for the offence of attempt to commit murder was that their child slipped out of their hands before jumping into the well. As mentioned earlier, both of them tied together to make sure that they did not survive. However, before accomplishing their intention the child fell and they jumped thereafter. It was evident that the child accidentally fell into the well before their jumping into the well. For these reasons, the High Court modified the sentence to one under Section 307 IPC. Peculiar facts in the case prompted the Division Bench to arrive at such a conclusion. We are aware of the principle that every case has to be decided on the established facts. The said decision cannot be taken as a precedent applicable to the facts in this case. 29. Section 307 IPC reads as follows: - _“_ _**Attempt to murder** .-Whoever does any act_ 19 Crl.Appeal No.139/2011 _with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned._ _**Attempts by life convicts** .-When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”_ Learned authors **Ratanlal and Dhirajlal** on the **Indian Penal Code** (33[rd] Edition) show the essential ingredients and evidence for an offence under Section 307 IPC as follows: _“_ _**Ingredients** .- The essential ingredients required to be proved in the case of an offence under Section 307 are:_ _(i) that the death of a human being_ _was attempted;_ _(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and_ _(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as:_ _(a) the accused knew to be likely to cause_ 20 Crl.Appeal No.139/2011 _death; or_ _(b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life.”_ 30. We are of the definite view that the oral evidence coupled with the documents in this case clearly show that the appellant intended to kill his wife and furtherance of his action resulted in her death. It is trite that a person commits an offence under Section 307 IPC when he has an intention to commit murder and in pursuance of that intention does an act towards its commission. The Section itself makes it clear that for constituting an offence it is not essential that bodily injury capable of causing death should have been inflicted. In this case, it has come out in 21 Crl.Appeal No.139/2011 evidence that extensive burn injuries caused by the appellant ultimately resulted in the death of the injured. Therefore, we are unable to accept the contention that the appellant is only liable to be proceeded under Section 307 IPC. Hence we reject that contention. 31. Yet another contention raised by the appellant in the memorandum of appeal as well as at the time of hearing is that at the most he is only liable to be punished under Section 304 Part II of IPC. In order to understand this contention, we have to briefly consider the scope of the concepts “culpable homicide” and “murder” defined under Sections 299 and 300 IPC respectively. Homicide can be either lawful or unlawful. Lawful homicide includes several cases falling under Chapter IV IPC dealing with General Exceptions. Unlawful homicide includes culpable homicide not amounting to murder under Section 299, murder under Section 300, rash or negligent homicide under Section 304A and suicide under Sections 305 and 306 IPC. Essential ingredients of Section 299 IPC are the following: _“1. Causing of death of a human being. 2. Such death must have been caused_ _by doing an act_ _(i) with the intention of causing_ _death; or_ _(ii) with the intention of causing such bodily injury as is likely to cause death; or_ _(iii) with the knowledge that the doer_ 22 Crl.Appeal No.139/2011 _is likely by such act to cause death.”_ In Section 300 IPC the definition of culpable homicide appears in an expanded form. Each of the four clauses in Section 300 IPC requires that the act which causes death should be done intentionally or with the knowledge or means of knowing that death is a natural consequence of the act. An intention to kill is not always necessary to make out a case of murder. A knowledge that the natural and probable consequence of an act would be death will suffice for a conviction under Section 302 IPC (see **Santosh v. The State of M.P. (AIR 1975 SC 654)** ). 32. Section 304 IPC prescribes punishment for culpable homicide not amounting to murder. The Section is divided into two parts. If the act by which death is caused is done with an intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. If the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either prescription for a term which may extend to ten years or with fine or with both. 33. The appellant can only succeed in his plea that the offence proved against him falls under culpable homicide not amounting to murder and not under murder, it must be discernible from the evidence that the Crl.Appeal No.139/2011 23 criminal act attributed to him falls within any of the exceptions provided to Section 300 IPC. In this case, we are unable to find any reason to hold that the appellant neither intended to kill his wife nor was unaware of the consequences of his act of pouring kerosene and torching a human being. Therefore, we find no reason to hold that the offence committed by the appellant falls under the category of culpable homicide not amounting to murder. 34. We have carefully gone through the judgment of the learned trial Judge. He has analysed the evidence correctly and on the basis of cogent evidence, the appellant was found guilty of murder. On a careful reconsideration of the entire evidence, we agree with the learned trial Judge that the circumstances proved, coupled with unimpeachable oral and documentary evidence established the guilt of the accused. Therefore, we find no merit in the appeal. In the result, the appeal is dismissed confirming the conviction and sentence imposed on the appellant under Section 302 IPC. ## **K.T.SANKARAN, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**