Important point
One accused hitting the deceased with a bottle on his head which did not cause even a visible injury and the other accused throwing a burning kerosene lamp from a distance cannot be said to be acts done in furtherance of common intention to cause the death.

Headnote:Indian Penal Code, 1860—Sections 302/34, 304-II, 323 and 324—Murder by setting deceased on fire— Appellants were prosecuted for murder of deceased and for attempting to murder PW1, brother of the deceased by stabbing him—They were convicted for the offence under Section 302/34 IPC—Appeal against convictions—Enmity between parties—Allegations that when deceased was going past the shop of 2nd appellant to purchase some articles from a nearby shop, 1st appellant came out of the shop of 2nd appellant and started abusing him and then took out a bottle and hit it on the head of deceased—A3 and A4 alleged to have caught hold of deceased and did not allow him move—2nd appellant picked up a lighted kerosene lamp from his shop and threw it on the deceased—No satisfactory evidence to establish that it was petrol or kerosene or such other highly inflammable liquid —A1 can only be convicted under Section 323 IPC for causing hurt to the deceased by hitting him with a bottle.
       Held : The prosecution case is sought to be established by two eye-witnesses, namely, PW-1 and 3 who are the brothers of the deceased and the dying declaration-Exhibit P-2. There is a serious doubt as to whether PW-3 had witnessed the occurrence. In the Chief examination PW 3 stated that at the time of occurrence, he was working in the shop of Radha Krishnan which is close to the place of incident but in cross-examination, he stated that he was running a fire-wood shop on his own. Though he was one of the persons who took the deceased to the hospital, a doubt looms large whether he was on the spot when the occurrence took place. However, there remains the evidence of PW-1. But, we cannot place wholesale reliance on his evidence, as he does not come forward with a truthful story of what had actually happened. His version about the manner of attack by the four accused persons and the non-explanation of injuries on the accused 1, 2 and 4 raises some doubts on the credibility of his entire version. At the same time his version about the incident broadly accords with the contents of the dying declaration. His evidence cannot therefore, be eschewed in totality. (Para 13)
       The next question is what are the conclusions to be drawn as regards the offences committed by the two appellants, going by the version in the dying declaration coupled with the evidence of PW 1 to the extent it is in conformity with the dying declaration. The accused No. 1 hit the deceased on his head with a bottle. Assuming that some liquid spread over the body, there is no satisfactory evidence to establish that it was petrol or kerosene or such other highly inflammable liquid. This aspect we have already adverted to. If the idea of A1 was to pour some inflammable liquid on the body of the deceased, in all probability, he would not have resorted to the odd way of hitting the bottle containing offensive liquid on his head. In the dying declaration there is no reference to the fact that any inflammable liquid spilled over from the bottle. Even if some liquid came out of the bottle as per the version of PW1, it cannot be taken for granted that it was inflammable liquid. Coming to the act of the 2nd accused in throwing a burning kerosene lamp soon after the attack of A1 with bottle, we are inclined to think that it was a random act resorted to by the 2nd accused at the spur of the moment, apparently to cause harm to the deceased. It was not a pre-planned act done with the definite intention of causing death. It is not the case of the prosecution that A2 went close to the deceased and lit up his clothes with the kerosene lamp. Hurling a small burning lamp towards a person may not definitely cause fire to the clothes. No doubt it was a dangerous act and it was likely to cause fire. But in view of the fact that the candle like lamp comes into contact with the clothes of the targeted person for a split second, it may or may not be in a position to ignite the fire. A person throwing the kerosene lamp in that fashion cannot at any rate be imputed with the intention to cause the death or causing such bodily injury as is likely to cause death. He can only be imputed with the knowledge that by such a dangerous act, he was likely to cause death. The overt act of accused No. 2 in throwing the burning kerosene lamp at the deceased would, in our view, give rise to the offence of culpable homicide not amounting to murder punishable under Part II of Section 304. The discussion supra also leads to the inference that the appellants would not have shared the common intention though the common intention could spring up at the spot. One accused hitting the deceased with a bottle on his head which did not cause even a visible injury and the other accused throwing a burning kerosene lamp from a distance cannot be said to be acts done in furtherance of common intention to cause the death of Rajeswaran. These are random acts done without meeting of minds. They can only be held guilty for the individual overt acts. A2 is, therefore, liable to be convicted under Section 304 (Part II). Accordingly, he is convicted and sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 500/-. In default of payment of fine, he shall undergo imprisonment for a further period of three months. His conviction and sentence under Section 302 IPC is set aside. Appellant No. 1 (A-1) can only be convicted under Section 323 for causing hurt to the deceased by hitting him with a bottle. He is sentenced to undergo imprisonment for six months. (Paras 17 and 18)

Judgment

P. Venkatarama Reddi, J.—Accused Nos. 1 & 2 in the Sessions case No. 91 of 1998 (on the file of the Additional Sessions Judge, Kanyakumari) are the appellants in this appeal. They were prosecuted along with two others for the murder of one Rajeswaran by setting him on fire on the night of 21st July, 1994 at Palavilai village. The victim was admitted into the Government hospital, Nagercoil with 90 burn injuries and he died in the hospital on 24.7.1994. The appellants and two others were also charged for attempting to murder PW1—the brother of the deceased by stabbing him. The learned Sessions Judge convicted A1 (1st appellant herein) for the offences punishable under Section 302 and Section 324 read with 34 IPC. A2 (2nd appellant) was found guilty of the offence punishable under Section 302. In addition, he was also convicted under Section 324 IPC for causing injury to PW-1. Both of them were therefore sentenced to life imprisonment. A3 and A4 were found guilty under Sections 302 read with Section 34 and Section 324 read with Section 34 IPC. On appeal filed by the accused persons, the High Court of Madras set aside the conviction of accused Nos. 3 & 4 under Section 302 read with Section 34 IPC. Their conviction under Section 324 read with Section 34 IPC was however maintained. Appellants 1 & 2 were convicted for the offence under Section 302 with the aid of Section 34 IPC and the sentence of life imprisonment was confirmed. Their conviction and sentence under Section 324 read with Section 34 was also confirmed. The first two accused have therefore come forward with this appeal.

2. The case of the prosecution, as per the charge-sheet and the evidence of prosecution witnesses, is as follows :

The four accused are brothers. The deceased Rajeswaran and PWs 1 & 3 are also brothers. The accused and the deceased are related to each other and they were residing in the same lane. A dispute arose between the father of the accused and the deceased and his family members in connection with an electricity line passing through the father’s house of the accused. A civil suit was filed which ended in favour of the family of the deceased. According to PW1, that happened three years earlier. On account of the said dispute, there were ill-feelings between the members of the two families. On 21.7.1994, at about 7.30 p.m. when Rajeswaran was going past the shop of the 2nd appellant Rajagopal to purchase some articles from a nearby shop, the 1st appellant Vijaya Kumar came out of the shop of the 2nd appellant and started abusing him and then took out a bottle and hit it on the head of the deceased, as a result of which, the bottle broke and the liquid spread over his body. A3 & A4 who were the acquitted accused, caught hold of Rajeswaran and did not allow him to move. At that moment, the 2nd appellant Rajagopal picked up a lighted kerosene lamp from his shop and threw it on Rajeswaran. Resultantly, Rajeswaran’s body caught fire and he rolled on to the ground. PW—1 the brother of the deceased, who was in a shop, tried to go close to his brother; however, the accused 1, 3 & 4 caught hold of him and the 2nd accused (appellant No. 2) stabbed him on the chest and shoulder with a button knife. PW3, the younger brother of PW1, who was at a nearby shop and some others noticed the incident and rushed to the scene and raised alarm. After the accused ran away, PW3 and PW 4 took the victims in an auto-rickshaw to Kuzhithurai Government hospital. After first aid, they were taken to Kottar Government hospital. By that time, it was 10.30 p.m. The Head Constable (PW 12) attached to Kaliyakkavilai police station came to the hospital at 11.30 a.m. and made enquiries with the victim Rajeswaran about the incident. The statement which he recorded, namely Ext. P3, was treated as first information report. PW12 also examined A2 at the hospital. PW8—Dr. Vimala, the Medical Officer of Kuzhithurai Government hospital, who examined the deceased and PW1 found 90 b

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2005 Supreme(SC) 850

Important pointOne accused hitting the deceased with a bottle on his head which did not cause even a visible injury and the other accused throwing a burning kerosene lamp from a distance cannot be said to be acts done in furtherance of common intention to cause the death.

Important point
One accused hitting the deceased with a bottle on his head which did not cause even a visible injury and the other accused throwing a burning kerosene lamp from a distance cannot be said to be acts done in furtherance of common intention to cause the death.