minal Appeal No 92 of 1965
Appeal by special leave from the judgment and order dated  October 20 1964 of the Madhya Pradesh High Court in Criminal Appeal No 67 of 1964
IN Shroff and M N Shroff for the appellant
OP Rana for the respondent
The Judgment of the Court was delivered by Hidayatullah J
The respondent Ramprasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of Session under section 302 of the Indian Penal Code
He was convicted by the Sessions Judge under section 324 of the Code and sentenced to rigorous imprisonment for six months
The State Government there filed an appeal against his acquittal under section 302 Indian Penal Code and also an application for 523 revision for the enhancement of the sentence passed on him
The High Court convicted him under section 304 Part II and sentenced him to 4 years  rigorous imprisonment concurrently the application for revision was dismissed as infructuous
The State Government has now filed this appeal and contends that the conviction of the respondent should have been under section 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court
The facts of the case are as follows  Ram Prasad was living with his mistress Mst
Rajji at Mannaur in District Panna
Evidence shows that they were having quarrels for some time previous to the incident which took place on May 24 1963
On that date Ram Prasad intended leaving Mannaur for a place called Harsa because his cattle used to be stolen at Mannaur
Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking her to Harsa alternatively she wanted that he should leave her at Mannaur and give her some cattle for her maintenance
To either course Ram Prasad was unwilling
Matters came to a head on the night of
the 24th when Rain Prasad ordered a van in which he began putting his luggage with a view to leaving for Harsa
Rajji then went to some of the village panchas and brought them over for intercession
It is these panchas who have now appeared as witnesses to the incident that took place immediately afterwards
To all the panchas Mst
Rajji again narrated the story of her grievance and Ram Prasad insisted on taking her away
As Rain Prasad would not give in nor would Rajji the panchas could do nothing further and some of them went away to their lodging which were close to the residence of Ram Prasad
Evidence then shows that Ram Prasad approached Mannulal PW4 with a lantern in one hand and an aluminium bowl in the other
He asked for some kerosene oil because oil in his lamp had run down but Mannulal did not give any as he had none to spare
Immediately thereafter Ram Prasad went back to his room and a cry was heard from Mst
Rajji that Ram Prasad had put kerosene oil on her and set her alight
Mannulal Holke and others immediately arrived on the scene and put out the fire but before that happened Mst
Rajii was extensively burnt
She kept on accusing Ram Prasad with the deed but Ram Prasad according to the witnesses did not say anything in protest
On the other hand when he was questioned by the panchas as to why he had done so he retorted that Mst
Rajji was his wife and what had they to do with the matter and added that they might even get him hanged
Rajji was then taken on cycle to the police station house although the hospital was on the way
Evidence shows that Mst
Rajji insisted on being taken to the police station house first
There she made the statement which is exhibit P 7 in which she charged Ram Prasad with her condition and stated also 524 that he had put kerosene oil on her and set her clothes on fire
Later she was removed to the hospital where separately to two doctors in attendance Dr Mrs Ghosh and Dr M L Gupta she again stated that she was burnt by her husband who had put kerosene oil on her
Dr Ghosh noted on the bed head ticket homicidal burn by husband 
The next day Mst
Rajji died Prosecution produced the panchas as witnesses to the earlier transaction in which Mst
Rajji and Ram Prasad had disagreed over going to Harsa and also in proof of the statement of Mst
Rajji that Ram Prasad had put kerosene oil on her and set her clothes alight
They have also through the same witnesses proved the conduct of Ram Prasad when Mst
Rajji accused him of having committed the outrage
The prosecution has further relied upon the statements made by Mst
Rajji in exhibit P 7 and to the two doctors who have deposed in the court
The High Court and the court below have agreed in holding Ram Prasad responsible for the outrage
They have accepted the three dying declarations as well as the evidence of the eye witnesses in support of the prosecution case They have only differed as to the offence disclosed by this evidence
We issued notice to the respondent to show cause against the appeal of the State Government
Although he received the notice he did not make any arrangement for his own representation in this Court
We accordingly invited Mr O P Rana to appear as amicus curiae on behalf of the respondent at State expense
We allowed Mr Rana to argue not only about the nature of the offence but also on merits with a view to point out to us any circumstance proving that the conviction itself was wrong
Although there is no provision to this effect in the rules of this Court we thought it safer to follow the procedure laid down for the High Court in the Code of Criminal Procedure when it hears a matter after notice of enhancement of sentence
It seemed to us to be both fair and just to give the accused a chance to prove to the satisfaction of this Court that the offence itself had not been brought home to him
In so far as the quarrel between Ram Prasad and Mst
Rajji is concernedthere is nothing which can be said against it
In fact the record bristles with evidence on this point
All theevidence which has been brought to show that Ram Prasad was intending to leave for Harsa and Mst
Rajji was resisting him could not be false because the panchas were called and they attempted to intervene
The real dispute is as to whether it was Ram Prasad who poured kerosene oil on Mst
Rajji and set her alight or whether as suggested by Ram Prasad and pleaded by Mr Rana it was Mst
Rajji who herself put her own clothes on fire and committed suicide at the same time falsely charging Ram Prasad with the outrage
In this connection prosecution produc 525 ed four witnesses
The first is Mannulal who was present at the
calling of the panchayat by Mst
Rajji
In fact it was Mst
Rajji herself who went to summon him to the house of Ram Prasad and it was from him that Ram Prasad asked for some kerosene off
The fact that kerosene oil was asked for is admitted by Ram Prasad himself and the question arises why was it necessary for Ram Prasad to have asked for kerosene oil at that moment and why immediately afterwards Mst
Rajji was found with her clothes burning
No doubt Mannulal did not give any kerosene oil but it seems to us that the lantern which Ram Prasad carried in his own hand had some kerosene oil in it
It was possible for him to have extracted some oil from the lantern
We do not put too much emphasis upon this aspect of the case because there is no direct evidence
But on the side of the prosecution and the defence there is agreement that kerosene oil was in fact put upon the clothes before they were set on fire
In fact the burnt clothes even in the court emitted still a smell of kerosene oil and the aluminium bowl also smelt of kerosene
This was noted by the Sessions Judge who tried the case
It therefore stands to reason that kerosene oil was in fact employed before the clothes were set on
fire and the short question
in this case is whether it was Ram Prasad who set fire to the clothes or it was Mst
Rajji who put kerosene oil on herself and set herself alight
On this part of the case there is the evidence of Mannulal to which we have already referred
A similar statement was made by Holke PW 3 and Soni PW 6
They consistently spoke of Ram Prasad having asked Mannulal for kerosene oil and that immediately afterwards Mst
Rajji was found with her clothes burning and accusing Ram Prasad of the outrage upon her
There is one witness however who did not entirely support this story and that is Jhallu PW 4
His version was that Mst
Rajji stated to Ram Prasad that their quarrel had been settled implying thereby that she had set herself on fire and thus terminated the quarrel
This statement was made by the accused in his examination under section 342 of the Code of Criminal Procedure and support is therefore sought to the contrary story from the evidence of Jhallu
Jhallu was declared hostile and was crossexamined with reference to his previous statement before the police
We find that in his statement to the police he did not mention the fact to which he deposed in the Court of Session and it makes us doubtful whether what he stated in the Court of Session was true
In fact there is nothing brought out in his deposi tion beyond this remark by Mst
Rajji that the quarrel between the bania and herself has been settled
Rajji in addition to making the accusation might have stated that their quarrel had got settled
It is possible this retort might well have been uttered with the accusation
But it is curious that when Mst
Rajji roundly accused Ram Prasad with having set fire to her clothes Ram 526 Prasad did not say anything in defence which one would expect a reasonable man to do
He should have protested then and there
He had no reason to state to the panchas that Mst
Rajji was his wife and the panchas had nothing to do with the matter and that they could get him hanged
His attitude later in not going to the police station house and to the hospital speaks against him
There are also the three statements by Rajji to say nothing of her shouts accusing her husband which were part of the res gestae
On the whole therefore we are satisfied that the conclusion of the High Court and the Sessions Judge that it was Ram Prasad who had put kerosene oil upon Mst
Rajji and set her clothes on fire was correct in the circumstances of this case
The question then arises what was the offence which Ram Prasad can be said to have committed  The offence of causing injury by burning is a broad spectrum which runs from section 324 causing simple injury by burning through section 326 namely causing grievous injury by burning to the two major offences namely culpable homicide not amounting to murder and even murder itself
The Sessions Judge chose the lowest end of the spectrum which is surprising enough because the burns were so extensive that they were certainly grievous by all account
The High Court placed the offence a little higher namely culpable homicide not amounting to murder
We think that the matter goes a little further than this
As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad Calls within culpable homicide not amounting to murder or the higher offence of murder itself
Here we see that death has actually been caused by the criminal act in other words there has been homicide and since it is not accidental or suicidal death responsibility for the homicide in the absence of any exceptions or extenuating circumstances must be borne by the person who caused it
The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder
The question is whether the offence falls in any of the clauses of section 300 Indian Penal Code
In this connection it is difficult to say that Ram Prasad intended causing the death of Mst
Rajji although it might well be the truth
That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of section 300 but all the other clauses also
We do not wish to consider the second and the third clauses because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst
Rajji
That would be a matter of speculation
In our opinion this matter can be disposed of with reference to clause fourthly of section 300
That clause reads as follows    culpable homicide is murder  if the person committing the act knows that it is so imminently 527 dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid
 It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death
The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death so as to bring the matter within the clause
Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person as the illustration shows the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death
In the present case Ram Prasad poured kerosene upon the clothes of Mst
Rajji and set fire to those clothes
It is obvious that such fire spreads rapidly and burns extensively
No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person
Therefore it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death
As he had no excuse for incurring that risk the offence must be taken to fall within 4thly of section 300 Indian Penal Code
In other words his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst
Rajji
He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death
We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder
Mr Rana contended that there was no proof from the medical reports that kerosene oil was employed because the wounds did not smell of kerosene
Apart from the fact that both the courts have held that kerosene was so employed the evidence is quite satisfactory that kerosene was in fact poured upon the victim before the clothes were set on fire
The omission of this fact in the medical reports is not of consequence
We accordingly allow this appeal substitute the conviction under section 302 of the Indian Penal Code in place of the conviction under section 304 Part II and sentence Ram Prasad to imprisonment for life
VPS Appeal allowed


Summary:
The accused poured kerosene upon his mistress and set her clothes on fire
There were extensive burns and she died as a result thereof
On the question as do the nature of the offence
HELD  The accused must have known that he was committing an act so imminently dangerous that it must in all probability cause death or such injury as was likely to cause death
As he had no excuse for incurring that risk the offence falls under section 300 fourthly of the Indian Penal Code that is culpable homicide amounting to murder even if the accused did not intend to cause her death
527 D E Although the clause is usually invoked in those cases where there is no intention to cause the death of any particular person it may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knew that the act was likely to cause death or such bodily injury as was likely to cause death
527 C Even though there is no provision to that effect in the Rules of the Supreme Court in the case of an appeal by the State against acquittal for the major offence it is safer fair and just to the accused to give him a chance to prove that he was not guilty even of the lesser offence on the analogy of section 4396 of the Criminal Procedure Code
524 F