IMPORTANT POINT
High Court has rightly held appellant is guilty of murdering the victim by putting her ablaze, reversing the trial court, rightly believing in law victim s dying declarations although incident happened on 21.10.1988 and she died on 15.11.1988.

Headnote:(i) Indian Penal Code, 1860-Section 302-Murder-The victim was set ablaze on 21.10.1988 and she sustained burns with which she died only a fortnight thereafter-Medical evidence showing that death of the deceased had occurred due to "septic"-Can assailant escape conviction for murder? (No)-1992(4) SCC 212 rel. on.
       Held : It is preposterous to say that deceased in this case would have been healed of the burn injuries and that she would have contracted infection through some other causes and developed septicemia and died of that on 15.11.1988. Court of law need not countenance mere academic possibilities when the prosecution case regarding death of the deceased was established on broad probabilities as sequel to the burns sustained by her. Hence we repel the contention of the learned counsel on that score. (Para 18)
       (ii) Evidence Act, 1872-Section 32-Dying declarations-The victim was set ablaze on 21.10.1988 on public road-Under effort to quinch fire she told the pedestrians it was caused by Hiralal -Later told to her husband (PW-5) Hiralal Patel of our locality-In Hospital she did not tell it to Doctor but told to the Executive Magistrate and to the Police in FIR-In Statement to executive Magistrate victim not only gave name of assailant, his scooter No. and name of his father-in-law-Whether sufficient to identify that assailant was appellant? (Yes)-Description of FIR name Hiralal Lalchand properly explained in Ext. 67 to Investigating Officer.
       Held : The first occasion on which she made statement revealing the name of the assailant was when she talked to PW-3 (Sadbhai), a pedestrian. The witness has deposed that when the victim was sitting beneath the water column of the railway station writhing in pain and frantically trying to get the flames quelled, some Sadhus gathered nearby and asked her who had done it to her and then she answered by mentioning the name as "Hiralal". A little later, when she narrated the incident to her husband (PW-5 Vinod Bhai) she disclosed a little more details about the identity of the assailant. This is how PW-5 deposed about it:
       "Asha told me that she was burnt by Hiralal Patel of our society............ She told me that Hiralal asked her why she was defaming him by spreading the story that he had illicit relations with her sister Sharada."
       It must be borne in mind that so far as PW-5 is concerned he had absolutely no doubt that Hiralal Patel referred to by her is the appellant. When Asha Ben spoke to PW-2 Dr. Vikarambhai she did not mention the name of the assailant. Learned senior counsel highlighted that omission for contending that she did not know who that assailant was when she narrated the incident to that doctor. We are unable to give accord to the said contention as it is too much to expect a lady in such a condition to disclose the name of the assailant to the doctor spontaneously without being asked for it. For the doctor, the name of the assailant or even his identity is of no use and hence he would not have bothered to know about it. The main dying declaration was given by Asha Ben to the Executive Magistrate (PW-1). That dying declaration was marked as Ext.11. It was recorded at 11.15 A.M. on 21.10.1988, when she said this:
       "Hiralal Patel, who burnt the, met me near Siddharaj Nagar. His scooter No. is 3040. He asked me why are you spreading wrong stories about me. He got very excited and poured some corrosive liquid from a tin of 500 gm. on me and threw a lighter lighted on me....................Hiralal is the son-in-law of Nanavati."
       There specifications regarding the identity of the assailant could be discerned from those statements. First is that the name of the assailant is Hiralal Patel. Second is that he reached the place by scooter No. 3040. Third is that he is the son-in-law of Nanavati. Prosecution was able to place materials to show that all the above three identifying features are referring to the appellant. We may point out that appellant himself admitted that he is Hiralal Patel. When the Investigating Officer seized the scooter from his house appellant made an application before the court for return of the said scooter. It is significant to point out that the registration No. of that scooter is 3040. In fact he filed an application before the court for returning the scooter. The father-in-law of the appellant is admittedly one Nanavati and that fact has been spoken to by Valiben (PW-9). The aforesaid features would almost conclusively establish that it was the appellant whom the deceased meant when she told others that it was Hiralal who caused her burn injuries. (Paras 19 to 22)
       In the above context we have to refer to a clarificatory statement elicited from the deceased by PW-13 (Bhagwat) the Investigating Officer. That statement is marked as Ext. 67. It reads thus:
       "In my statement I have given the name of the accused s father as Lalchand which has been stated inadvertently. Lalchand is the name of the father-in-law of my sister and hence I remembered it inadvertently. The name of the father of Hiralal is really Joitabhai. He is the son-in-law of Nanavati Soap Factory." (Para 25)
       (iii) Evidence Act, 1872-Section 32(1)-Dying declaration to a Police Officer-Cr.P.C. 1973-Section 162-Confession to Police-Ex. 67-Clarificatory statement given by victim to PW 13 Investigating Officer about name of assailant-Whether falls within the purview of Section 32(1)? (Yes)-Effect-It is exempted from the ban contained in Section 162 by virtue of Section 162(2) itself-Meaning of expression "statement as to any of the circumstances" u/s. 32(1)-Whether it was appellant who was identified as assailant? (Yes)-Whether High Court was right in its approach? (Yes).
       Held (On Section 32(1) Evidence Act) : The above provision relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) His statement as to the cause of his death; (2) His statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the court has to consider how far it is reliable. Once that test of reliability is found positive the court has to consider the utility of that statement in the particular case. (Para 29)
       Held (after explaining legal position) : Taking cue from the legal position as delineated above we have to consider now whether the statement of Asha Ben in Ext.67 related to any circumstance connected with her death. We cannot overlook the fact that the context in which she made such statements was not for resolving any dispute concerning the paternity of a person called Hiralal or even to establish his parentage. It was in the context of clarifying her earlier statement that she was set ablaze by a man called Hiralal whose second name happened to be mentioned by her as Lalchand. When subsequently she was confronted by the Investigating Officer with the said description to confirm whether it was Hiralal son of Lalchand who set her to fire, she made the correction by saying that she made a mistake inadvertently and that it was Hiralal Joitaram who did it and not Hiralal Lalchand. Thus Ext. 67 is inextricably intertwined with the episode in which she was burnt and eventually died of such burns. Looking at Ext.67 from the above perspective we have no doubt that the said statement would fall within the ambit of Section 32(1) of the Evidence Act. Thus, from the statements made by the deceased we have no doubt that it was the appellant whom Asha Ben referred to as the assailant who doused combustible liquid on her and ignited her with the flame of the lighter. There is no reason even remotely suggesting that the deceased would have had only a scanty acquaintance with the appellant so as to commit a mistake in identifying him. We, therefore, agree with the conclusion of the Division Bench of the High Court that prosecution succeeded in proving beyond reasonable doubt that appellant was the assailant who set Asha Ben ablaze. (Paras 32 & 33)
       (iv) Indian Penal Code, 1860-Sections 302 and 299, 300-Nature of offence-Victim was set ablaze suffering burns of 2nd and 3rd degree but dying 15 days after-Whether offence is murder or culpable homicide not amounting to murder-The former-High Court was right-Appeal dismissed.
       Held : Section 299 IPC defines culpable homicides as "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Explanation 2 to Section 299 has a material bearing on the said contention and hence that is extracted below:
       "Explanation 2.-Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."
       Section 300 IPC carves out two segments, one is culpable homicide amounting to murder and the second segment consists of culpable homicide not amounting to murder. Four clauses enumerated in the section are enveloped in the first segment. What is set apart for the second segment is compendiously described as "except in the cases hereinafter excepted" from out of the first segment. For the purpose of this case we deem it necessary to quote only the second clause in Section 300 IPC.
       "2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused."
       In the present case, appellant did not even make an effort to bring the case within any of the four exceptions enumerated in Section 300. Hence the only question to be answered is whether he did the act with the intention of causing such bodily injury as he knew "to be likely to cause death of the deceased". It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burns resulting therefrom would at least be "likely" to cause her death (if not they are sufficient in the ordinary course of nature to cause her death). The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the "2ndly" clause of Section 300 IPC. There was a little abatement of the ferocity of the flames which engulfed her as she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a water-flow. Such a reflex action performed by her had mitigated the conflagration of the flames but did not save her from the fatality of the calamity. Hence the interval of fourteen days between the attack and her death is not a cause for mitigation of the offence perpetuated by the offender. We are, therefore, not impressed by the alternative argument advanced by the learned senior counsel for the appellant. In the result, we dismiss this appeal. (Paras 35 to 39)

JUDGMENT

Thomas, J.-A businessman of Patan (Gujarat) was arraigned for scorching a young hapless woman (mother of two infant children) to death. The gory felony was perpetrated in broad day light on a public road. The man against whom the accusation was made had no relationship with the victim, maritally or otherwise. The trial Court exonerated him, but a Division Bench of the High Court of Gujarat found him to be the killer of that lady and convicted him and sentenced him to imprisonment for life. Hence this appeal by him as of right.

2. Asha Ben, the roasted victim of the gory episode was one of the 7 daughters of her father. In her wedlock with Vinod Bhai (PW-5) she became mother of two children (Mital and Bhargav). The small family consisting of Asha Ben, her husband and the two children were living in their own house in the city of Patan. Her eldest child Mital was studying in Bal Mandir attached to a school by name Bombay Metal School at Patan.

3. The story of the prosecution is the following. Appellant developed some affair with the sister of Asha Ben which the deceased resented for her own reasons. She had expressed her detestation to her sister (Sharada Ben) and also mentioned it to some other persons. When the appellant came to know of the above reaction of the deceased he wanted to settle score with her.

4. On 21.10.1988 at about 10 A.M., Asha Ben was proceeding to the school (Bal Mandir) for collecting her child Mital back home. On the way appellant who was on a scooter met her and buttonholed her malevolently. He questioned her for spreading the canard that he and Sharada Ben had illicit relationship. So doing appellant took out a can and doused combustible liquid contained therein on Asha Ben. He then whipped out a lighter and after lighting it hurled its flame on her. In a trice Asha Ben was transformed into an anthropoid inferno, screaming and yelling she scampered towards a water-flow to escape from the devouring fire. She reached the water column situated near the railway station and sat beneath it, and the water flowed therefrom eventually extinguished the flames and embers which enwrapped her. But by then she was blistered with substantial burns and her clothes incinerated into ashes. Among the pedestrians there was a lady who flanked Asha Ben with some clothes to cover up her nudity and a rickshaw was procured for rushing the charred victim to the hospital.

5. On coming to know of the incident, Vinod Bhai (husband of Asha Ben) reached the place and by talking her in a rickshaw, speeded up her route to the hospital. Though she was treated in the hospital for nearly a fortnight she succumbed to her burn injuries on 15.11.1988.

6. On 21.10.1988, FIR was registered on the basis of the statement made by Asha Ben to the police officer (PW 10) who reached the hospital on getting some uncrystalised information of the episode. In the meanwhile, the Executive Magistrate (PW-1) on being informed by the doctor who examined the lady, visited the hospital and recorded her statement around 11.15 A.M. In that statement she mentioned the name of "Hiralal Patel" as the culprit. After her death the police continued the investigation and completed it and charge-sheeted the appellant for the offence of murder of Asha Ben.

7. There is practically no dispute that Asha Ben was set ablaze after dousing her with some inflammable liquid on the morning of 21.10.1988. But on the question of who the culprit was, the prosecution and the defence had great divergence. Prosecution relied on the statements made by the deceased for establishing the identity of the culprit, which included the statement given to her husband, to the Executive Magistrate and to the police in the FIR.

8. The Sessions Judge picked out some infirmities in the statements of the deceased and finally held that those statements cannot be relied on as dying declarations. He also found that the description of the incident narrated by Asha Ben is not consistent with probabilit

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2001 Supreme(SC) 1467

IMPORTANT POINTHigh Court has rightly held appellant is guilty of murdering the victim by putting her ablaze, reversing the trial court, rightly believing in law victim s dying declarations although incident happened on 21.10.1988 and she died on 15.11.1988.

Cases Referred (4)

IMPORTANT POINT
High Court has rightly held appellant is guilty of murdering the victim by putting her ablaze, reversing the trial court, rightly believing in law victim s dying declarations although incident happened on 21.10.1988 and she died on 15.11.1988.