Suresh Chaurey vs State of M.P.

Appellant has filed this appeal against the judgment dated 25.05.2007 passed First Additional Sessions Judge, Hoshangabad in Sessions Trial

No.192/2006 whereby the trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and

awarded sentence of life imprisonment with fine of Rs.100/-.

Prosecution case in brief is that the appellant used to drink liquor. He came to his house after taking liquor. Thereafter, he sprinkled kerosine oil

on the deceased who was his son and ablaze him. Report of the incident was lodged at the Police Station Rampur Gurra. Deceased was admitted

in the hospital. He died after 8 days of the incident. The police conducted investigation and filed chargesheet. The appellant abjured his guilt during

trial and pleaded innocence. However, the trial Court held the appellant guilty and convicted him as mentioned above.

Jyoti Bai (PW-14), mother of the deceased turned hostile. She deposed that the appellant came into the house after drinking liquor. He made a

demand of food, the deceased served him food. The food was not hot, hence, there was a quarrel between me and the appellant. In that quarrel a

chimini fell down on the deceased due to which he catch fire. He was admitted at Government Hospital. He died after 9-10 days of the incident.

Another witness Premnarayan (PW-15), who is a neighbor also turned hostile. There is a dying declaration of the deceased (Ex.P/4) which was

recorded by the Tahsildar, R.P. Banode (PW-9) on 04.05.2006. In the aforesaid dying declaration, deceased stated that on 03.05.2006 in the

night at around 8 O''clock, we were sleeping in the house, my father awaken all the children and sprinkled kerosine and thereafter, he ablaze me by

a matchbox. My mother was on the spot, I cried then neighbors came there. The appellant used to drink liquor. He was in the drunken stage.

Doctor verified this fact that the deceased was fit to give dying declaration.

R.P. Banode (PW-9), Executive Magistrate in his evidence deposed that on 04.05.2006 at around 1:00 O''clock in the night, Police Constable

came to my residence and I had gone to the Hospital and recorded the dying declaration of deceased Abhishek. He stated that he was sleeping

along with his brothers in the night. Appellant came there and he had sprinkled kerosine on him and ablaze him by a matchbox. Thereafter, other

neighbors came on the spot. The appellant used to drink liquor and used to quarrel. He deposed that the deceased was in a fit condition to give

dying declaration and Dr. Mukesh Goyal (PW-3) certified the aforesaid facts.

Dr. Sunil Mantri (PW-1) in his evidence deposed that he verified the fact that deceased was in a fit mental condition to give dying declaration

and he put his signature on the dying declaration. He further deposed that deceased was admitted in the hospital and at the time of admission

mother of the deceased told him that the appellant ablaze him. I mentioned the aforesaid fact in the medical papers (Ex.P/1). Dr. Sunil Mantri

(PW-1) further deposed that when the deceased was admitted in the hospital, he was conscious and he received 55% burn injuries. The deceased

could not get a proper treatment, death was caused due to the injuries suffered by the deceased.

Dr. Mukesh Goyal (PW-3) performed autopsy of the deceased. He deposed that on 12th May, 2006 I was posted as Assistant Professor in

Forensic Medicine Department, Gandhi Medical College, Bhopal and I performed postmortem of the deceased. The deceased died due to

cardiac respiratory failure and cause of the death was complication of the injuries suffered by the deceased due to burn injuries.

Rajendra Kumar Chourey (PW-6) deposed that mother of the deceased told me that deceased received burn injuries. Komal Chichan (PW-7)

turned hostile. Rajesh Kumar Dubey (PW-16) conducted investigation of the case, he deposed that he inspected the spot and prepared the spot

map (Ex.P/11) and signed the same. Thereafter, recorded statements of the witnesses and also seized clothes of the deceased. The seized articles

were sent to the forensic science laboratory.

The mother of the deceased turned hostile. However, there is a dying declaration of the deceased recorded by the Executive Magistrate. In the

aforesaid dying declaration, the deceased who was the son of the appellant stated that appellant ablaze him. The present appellant was present in

the house at the time of incident. Doctor certified the fact that the deceased was in a fit mental condition to give dying declaration.

The Apex Court in case of Shama vs. State of Haryana, (2017) 11 SCC 535, after considering other judgments on the point, has held that the

dying declaration if it inspires confidence could be relied by the Court for convicting the accused. The Court has held as under :-

Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of any kind

of infirmity or/and suspicious circumstances surrounding its execution, once it isi proved in evidence in accordance with law, it can be relied on for

convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and

caution. (See Panchdeo Singh v. State of Bihar)

One of the principles which is always kept in mind while examining the dying declaration of the deceased is that ""a man will not meet his

Marker with a lie in his mouth"". As aptly said by Mathew Arnold in a very old English case (see Lyre LCR in R.v. Woodcock) ""Truth sits on the

lips of a dying man"". This principle is deduced from a well-known Latin legal maxim ""nemo moriturus praesumitur mentire

In the present case, in our opinion the dying declaration of the deceased who was the son of the appellant is natural. Hence, the trial Court

rightly relied on the dying declaration of the deceased and held the appellant guilty.

The next question is that what offence the appellant has committed ?

The Apex Court in the case of Willie (William) Slaney vs State of Madhya Pradesh, AIR 1956 SC 116 has held as under about the intention

of the accused :-

Where the accused causing the death of another had no intention to kill, then the offence would be murder only if (1) the accused knew that the

injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the

accused knew that the act must in all probability cause death.

The Hon''ble Apex Court further in the case of Nankaunoo vs State of Uttar Pradesh, (2016) 3 SCC 317 has held as under in regard to

difference between intention and motive:

Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion

whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it

must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the

injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating

the principles in Virsa Singh''s case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12), this Court held as

under:-

Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p.

620, para 7)

''7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465

for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.''

The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying

down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is

present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that

particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words

Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the

second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to

prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second

part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of

the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be

established by the prosecution before the case can fall in that clause. The ''intention'' and ''knowledge'' of the accused are subjective

and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of

attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ''intention''

and ''knowledge'' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as

the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been

aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same

thing as intention that such consequences should ensue. As compared to ''knowledge'', ''intention'' requires something more than the

mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.

The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death.

The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing

of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of

the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the

nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature

must be proved and cannot be inferred from the fact that death has, in fact, taken place.

The Apex Court has specifically held that there is a difference between intention and motive as compared to knowledge. The intention requires

something more then the aforesaid of the consequences.

The Apex Court in case of Ongole Ravikanth Vs. State of A.P., AIR 2009 SC 2129 has upheld conviction of the appellant who was the wife

and awarded by the Court under Section 304 Part-I of the I.P.C. under certain circumstances. The Apex Court has held as under :-

In the light of the law laid down by this Court we have critically examined dying declaration (Ex. P-4) made by the deceased and the

surrounding circumstances. There is no doubt whatsoever the statement made by the deceased was on her own volition. It was voluntarily made

without any coercion or tutoring of anyone. The statement is natural and coherently made by the deceased in a fit state of mind. There is nothing on

record to doubt the evidence of PW- 2 who recorded the dying declaration and evidence of duty doctor (PW-13) who certified that the deceased

was in fit state of mind to make her statement. Except PW-2 and PW-13 no other individual was present when she made the statement. We do

not find any reason whatsoever not to accept the dying declaration. The question is whether the contents do not disclose any offending act by the

appellant? The deceased in clear and categorical terms stated that she poured kerosene on herself and it was the appellant who lit the match stick

resulting in fire and causing 60% burns which ultimately led to her death. The appellant instead of preventing the deceased pouring kerosene upon

herself lit the match stick resulting in fire and causing burns. The appellant knew very well that the body of the deceased was drenched with

kerosene yet he indulged in the cruel act of lighting the match stick. In the circumstances, we find it difficult to accept the submission that the

contents of dying declaration (Ex.P-4) do not disclose the commission of any offence by the appellant. Can it be said that the appellant was not

aware that his act was likely cause serious burn injuries to the deceased. The appellant was in fact charged for the offences punishable under

Sections 498A and 302 IPC. We do not know what view the court would have taken had there been an appeal by the State as against the

acquittal of the appellant under Section 302 IPC? Suffice it to say that the High Court took a very lenient view in convicting the appellant for the

offence punishable under Section 304 Part I IPC and sentencing him to undergo rigorous imprisonment only for a period of seven years.

In the present case, the deceased died after 8 days of the incident. Wife of the deceased Jyoti Bai (PW-14) and in her crossexamination

admitted the fact that the appellant had given his blood to the deceased Abhishek when he was admitted in Itarsi Hospital. As per the dying

declaration the appellant came in a drunken stage. There was some exertion about the food. Thereafter, he ablaze the deceased. Hence, in our

opinion, the offence committed by the appellant would fall under Section 304 Part-I of the I.P.C.

As per the record of the trial Court, the appellant is in jail since 17.05.2006. He has completed the actual jail sentence of 11 years. Hence, in

our opinion, it would be just and proper that the sentence awarded by the trial Court be modified as already undergone.

Consequently, the appeal filed by the appellant is partly allowed. His conviction under Section 302 of the IPC is altered under Section 304

Part-I of the IPC. The appellant is awarded the jail sentence as already undergone.

The appellant is in jail. He be released forthwith if not required in any other case.