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PA TEL HIRALAL JOIT ARAM

v.

STATE OF GUJARAT

OCTOBER 18, 2001

[K.T. THOMAS AND S.N. VARIAVA, JJ.]

Evidence Act, 1872 :

. Section 32( 1 )-Dying declaration-Statement ,by a person-As to. any of

the circumstances of the transaction which resulted in his death-Admissibility

of-Held: The word "circumstances" is very wide in amplitut:f:e-Anything .

which has nexus with a person's death, proximate or distant, direct or indirect,

is admissible in evidence-The endeavour should be how to include the state­

ment of a dead person and not how io exclude it.

D Penal Code, 1860:

Section 299-Culpable homicide-Victim died of bum injuries only after

afortnight-"2ndly" clause of S.300-Applicability of-Held: Mere interval of'

fourteen days does not attract "2ndly" clause of S.300 so as to afford a cawe

for mitigation of the offence.

E o

Criminal Trial :

Death due to burns-Victim sustained severe

bum injures-But death

occurred after a fortnight-Death due

to other causes-Possibility of-Held:

Possibility

of-supervening causes· is not a safe premise to decide whether the

F victim would not have died due to bum injuries-Cause of death can be

determined on broad probabilities. ·

Words & Phrases :

"Circumstances"-Meaning of-In the context of Section 32(1) of the

G Evidence Act, 1872.

"Culpable homicide "-Meaning of-In the context of Section 299 of the

Penal Code, 1860.

The appellant-accused

was tried for an offence under Section 30Z of

H the Penal Code, 1860. The trial court acquitted the accused, but the High

378

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PATEL HIRALAL JOTIARAM v. STATE 379

Court convicted him and sentenced him to imprisonment for life. Hence A

this appeal. .

According to the prosecution, the accused took out a can and doused

combustible liquid therein on the deceased. The accused then whipped

out

a lighter and after lighting it hurled its flame on her. The accused sustained

severe

burn injuries and succumbed to her injuries after a fortnight. The B

deceased made a dying declaration in which she identified the accused as

her assailant.

On behalf of the accused it was contended that the death occurred

due to "septic" and not due to the burn injuries as the interval between the

date

of the incident and the date of death of the deceased was a fortnight;

that from the statement of the deceased the identity of the assailant could

not unmistakably refer to the accused;

that the statement of the deceased

was inadmissible in evidence as the said statement related to the parentage

c

of the accused and not to any circumstance connected with the death of the

deceased; and

that the offence would not escalate beyond 'culpable homi-D

cide not amounting to murder' since the burns caused to the deceased did

not result in the death of the deceased during the initial fatal period

and

that her death happened on account of some later complications.

Dismissing the appeal, the

Court

HELD : 1.1. Mere possibility of other causes supervening during the

hospitalisation

of the deceased is not a safe premise for deciding whether the

deceased would have died due to the

burns sustained on the date of the

incident. The cause of death can be determined

on broad probabilities.

[385-C]

Om Prakash v. State of Punjab, [1992] 4 SCC 212, relied on.

Dhanna

v.

State of M.P., [1996] 10 SCC 79, refel"red to.

Modi's Medical Jurisprudence and Toxicology, referred to.

1.2.

It is preposterous to say that the deceased in this case would have

been healed

of the burn injuries and that she would have contracted

infec­

tion through some other causes and developed septicaemia and died of that.

Court of law need not countenance mere academic possibilities when the

prosecution cases regarding death

of the deceased were established on broad

probabilities as sequel to the burns sustained by her. [385-F]

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380 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.

A .2.1. Tuo categories of statements by a person are made admissible in

evidence

under Section 32(1) of the Evidence Act, 1872 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

transac­

tion, which resulted in his death. The second category can envelope a far

B 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

C

· 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 endeav­

our should be how to include the statement of a dead person within the

sweep

of the sub-section and not how to exclude it thereafter. Admissibility

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is the first step and once it is admitted 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. (388-E-H]

Sharatl Birdhichand Sarda v. State of Maharashtra, (1984] 4 SCC 116,

followed.

Rattan Singh v. State of H.P~, (1997] 4 SCC 161, relied on.

2.2. The context in which the deceased made the statements was not

for resolving any dispute concerning the paternity of a person

or even to

establish his parentage.

It was in the context of clarifying her earlier

p statement that she was set ablaze by the _accused whose second name

happened to be mentioned

by her as some other surname. The dying

declaration

is inextricably intertwined with the episode in which she was

burnt and eventually died of such burns. Looking at the dying

declaration

from the above perspective there is no doubt that the said statement would

G

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fall within the ambit of Section 32(1) of the Evidence Act. [389-H; 390-B]

2.3. From the statements made by the deceased there is no doubt that

it was the appellant whom the deceased had. referred to as the assailant

who doused combustible liq .. id on her and ignited her with the flame of the

lighter. There ·is no . rea_spn even. remotely suggesting that the deceased

would have had only a scanty acquaintance with the appellant so as to

PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.]

commit a mistake in identifying him. [390-C]

381

3. It is inconceivable that the 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 of the Penal

Code, 1860. 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. [391·D·E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 427

of 1999.

From the Judgment and Order dated 8/12/13.10.98 of the Gujarat High

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Court in Crl. A. No. 279 of 1991. D

U.R. Lalit, Ms. Reetu Shanna and Vimal Chandra Dave for the Appel-

lant.

Ms. Hemantika

Wahi and Ms. Anu Sahni for the Respondent.

The Judgment

of the Court was delivered by

THOMAS, J. A businessman of Patao (Gujarat) was arraigned for

scorching a young hapless woman (mother

of two infant children) to death.

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The gory felony was perpetrated in broad day light on a public road. The man

against whom the accusation was made had no reiationship with the victim,

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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.

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

wer~ 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 Patao.

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382 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.

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.

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 ~harada 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 ligh,ter 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 bums 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.

On coming to know of the incident, Vinod Bhai (husband of Asha Ben)

reached the place and by taking 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 bum injuries on 15.11.1988.

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 Execu­

tive 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.

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

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PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 383

establishing the identity of the culprit, which included the statement given to

her husband, to the Executive Magistrate and to the police in the Fllt.

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 probability, particularly when the investigating

officer demonstrated in court how the lighter (alleged to have been used in

setting her ablaze) could be lighted.

The Division Bench

of the High Court after re-evaluating the evidence

came to the conclusion that the trial court has grossly erred in rejecting the

statements

of the deceased and that the reasons advanced by the trial court were

so erroneous that no court would ever have come to such conclusions. Relying

on

-the statements of the deceased learned Judges of the Division Bench of the

High Court came to the irresistible conclusion that the identity

of the assailant

had been unmistakably established as against the appellant.

Hence, the High Court convicted him and sentenced him

as aforesaid.

Shri U.R. Lalit, learned senior counsel for the appellant urged, at the

outset, that the High Court should have borne in mind that it was an appeal

against the acquittal which they were dealing with and the approach should

have been different from that

of appeal against conviction. According to the

learned senior counsel the Division Bench has overlooked the standard

formu­

lated by this Court for dealing with an appeal against acquittal and conse­

quently the order of the acquittal was wrongly reversed. We reminded our­

selves of the standard to be adhered to while dealing with an appeal against

acquittal. In Dhanna v. State

of M.P., [1996]

10 SCC 79 this Court has

reiterated the perspective

to be adopted in such a situation, after referring to

some

of the earlier decisions rendered by this Court on that aspect. We may

extract the following observations from the said decision:

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"Though the Code does not make any distinction between an appeal

from acquittal and an appeal from conviction so far

as powers of the G

appellate court are concerned, certain unwritten rules of adjudication ·have consistently been followed by Judges while dealing with appeals

against acquittal. No doubt, the High Court has full power

to review

the evidence and to arrive at its own independent conclusion whether

the appeal is against conviction

or acquittal. But while dealing with H

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384

SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.

an appeal against acquittal the appellate court has to bear in mind: first,

that there is a general presumption in favour

of the innocence of the

person accused in criminal cases and that presumption is only strength­

ened by the acquittal. The second is, every accused is entitled to the

benefit

of reasonable doubt regarding his guilt and when the trial court

acquitted him, he would retain that benefit in the appellate court also.

Thus, the appellate court in appeals against acquittals has to proceed

more cautiously and only

if there is absolute assurance of the guilt of

the accused, upon the evidence on record, that the order of acquittal

is liable to be interfered with or

disturbed."

Bearing in mind the above standard of caution we may make the judicial

. scrutiny of the findings arrived at by the High Court. As pointed out earlier,

the focus

of discussion can first be mustered on the identity of the assailant,

for, there is little dispute

on the fact situation that one

assailan~ had set her

ablaie at the time and place mentioned in her statements. We are, in this

context, tempted to dub the reasoning

of the

Sessfons Judge for concluding that

"it is impossible that the Saree could catch fire if the lighter is thrown at her"

as preposterous. It requires no effort for any sensible pe~on to understand that

it was the flame

on the lighter which was hurled at the victim who was by then

soaked with

inflammable liquid and catching fire in such a situation ~s a matter

of easy grasping for any one.

We are aware that the statements made by the deceased are the only

materials available for establishing the identity

of the appellant .and hence if

those statements are inadmissible or unreliable even if admissible, or insuffi­

cient to point to the appellant as the assailant, ·its inevitable consequence is

fo

set the appellant free. Knowing this position well Shri U.R. Lalit, learned

senior counsel first focussed his contention for showing that the prosecution

has failed to prove that Asha

Ben's death was due to burns sustained by her

on 21.10.1988.

The interval between the date of the incident when the deceased

sus­

tained bums and the date of her death was a fortnight. PW-2 Dr. Vi~arambhai,

who examined Asha Ben at 10.30 A.M. on 21-10-1988, noticed se<:ond degree

bums

on the upper and lower portions of her hands, front and back of her

chest'.

and on the neck, ears an~ forehead. He found that her condition was "critical"

when he saw her first.

H PW-12 Dr. N.N. Parikh, a tutor in Forensic Medicine of the BJ Medjcal

•.

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• PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.) 385

College, Ahinedabad, conducted autopsy on her dead body on 15.11.1988. He

A

noticed burns of the

third degree on the front and back of .her trunk, both thi$hS,

etc., besides second degree burns on some other limbs. In his opinion the death

of° the deceased was due to a stroke on account of such bums and that those

bums were sufficient in the ordinary course of nature to cause her death.

Harping on an answer given

by

PW-12 in cross-examination that death

of the deceased had occurred due to "septic" learned senior counsel made out

an argument that such septic condition could have developed on account

of

other causes. Mere possibility of other causes supervening during her hospi­

talisation

is not a safe premise for deciding whether she would not have died

due to the bums sustained on 21.10.1988. The cause of death can be deter­

mined on broad probabilities. In this context we may refer to a passage from

Modi's Medical Jurisprudence

& Toxicology, dealing with death by bums.

"As already mentioned, death may occur within 24 to 48 hours, but

usually the first week is the most fatal. In suppurative cases, death may

occur after five or six weeks

or even

longer."

In Om Prakash v. State of Punjab, (1992] 4 SCC 212, the victim was

set ablaze on 17.3.1979 and she sustained burns with which she died only

13

days thereafter. The assailant was convicted of murder and the conviction was

confirmed by this Court.

It is preposterous

to say that deceased in this case would have been

healed

of the bum 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 bums sustained by her. Hence we repel

the contention

of the learned counsel on that score.

Next contention which needs consideration is that even from the state­

ments made

by the deceased after sustaining the burns, the identity of the

assailant cannot unmistakably refer to the appellant. 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

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386 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.

mentioning the name as "Hiralal". A little later, when she narrated the incident

to her husband (PW-5 Vinod Bhai) she dis<?losed a little more details about the

identity

of the

assa;.lant. This is how PW-5 had 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

D bothered to know about it.

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_ The main dying declaration was given by Asha Ben to the Executive

Magistrate (PW-I). 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 me, 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 gms. on me and threw a lighter lighted on me .... Hirai al

is the son-in-law

of

Nanavati."

Three ·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

H · appellant is admittedly one Nanavati and that fact has been spoken to by

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PATELHIRALALJOTIARAM v. STATE [THOMAS,J.] 387

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.

Shri U.R. Lalit, learned senior counsel in his arguments projected the

description

of the name of the assailant given by Asha Ben in the statement

attached

to the FIR

(Ext.40) as "Hiralal Lalchand" and contended that appellant

is not the son

of Lalchand. Appellant is

"Hiralal Joitaram" and hence the

deceased would have referred to some other person, contended the counsel.

In this context we have to look into the words which Asha Ben has

spoken in Ext.P-40 FIR regarding that aspect. Those words are extracted

below:

"The resident of our society, Patel Hiralal whose father's name I don't

know, he was having illicit relationship with my sister Sharada and I

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saw them two or three times. I scolded Hiralal and hence he was

annoyed with me. The above said Hiralal Lalchand, whose name I give D

on recollecting afterwards caused me burns."

In the above context we have to refer to a clarificatory statement elicited

from the deceased

by

PW-13 (Bhagwat) the Investigating Officer. That state­

ment is marked as Ext.67. It reads thus:

"In my statement I have given the name of the acccused'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

inadvert­

ently. The name of the father of Hiralal is really Joitabhai. He is the

son-in-law

of Nanavati

Soap Factory."

(The statement was recorded in Gujarati and the above extract is the English

translation produced

by the appellant before this Court).

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Learned senior counsel made a

•wo-fold attack on the admissibility of

Ext.67. First is that a statement recorded by police under Section 161 of the G

Code of Criminal Procedure is inadmissible in evidence. Second is that even

if it is admissible for any purpose it cannot be used under Section 32 of the

Evidence Act

as the said statement related only to the parentage of Hiralal.

If what is extracted above from Ext.67 falls under Section 32(1) of the

Evidence Act

it would stand extricated from the ban contained in Section 162 H

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388

SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.

of the Code of Criminal Procedure. The former is exe~pted from the ban

contained in Section 162. This can be seen from sub-section (2) of Section 162

which reads thus:

"Nothing in this section shall be deemed to apply to any statement

falling within the provisions'of clause (1)

of section 32 of the Indian.

Evidence Act, 1872

(1 of 1872), or to affect the provisions of section.

27

of that

Act."

We have therefore .to see whether the statement in Ext.67 (extraqted

above) would· fall Within the purview of Section 32(1) of the Evidence Act.

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"(1) ~n it relates to cause of death.-When the statement is made

by a person as to the cause

of his death, or as

to any of the circum­

stances of the transaction which resulted in his death, in cases in which

the cause

of that person's death comes into

question. Such statements

are relevant whether the person who made them was or was not, at the

time when they were made, under expectation of death, and whatever

may be the nature

of the proceeding in which the cause of his death

comes into question."

The above provision relates to the statement made by a person before his

death. Two categories

of

s~tements 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 envelop 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

<:>f the sub-section.

As the possibility

of getting the maker of the statements

ifl flesh and blood has

been closed once and for all . the endeavour should be how to include ~e

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 oncb it is admitted

the coiirt has to consider how far it is reliable. Once.

1

that test of reliability is

found positive the court has to consider the utility ·of that statement in the

particular case.

PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 389

In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC

116, a three Judge Bench of this Court considered the scope of Section 32(1)

of

the Evidence Act. After referring to a number of decisions of different High

Courts on the point Fazal Ali, J, who spoke for the majority opinion, laid down

five propositions. Among them the first is that the legislature has thought it

necessary to widen the sphere of Section 32 for avoiding injustice. Among the

remaining propositions the second

!s relevant for our purpose and hence it is

extracted below:

"The test of proximity cannot be too literally construed and practically

reduced

to a cut-and-dried formula of universal application so as to be

confined in a straitjacket. Distance of time would depend or vary with

the circumstances of each case .......... Sometimes statements relevant

to or furnishing an immediate motive may also be admissible as being

a part of

the transaction of death. It is manifest that all these statements

come to light only after the death of the deceased who speaks from

death."

Following the above decision a two Judge Bench of this Court has stated

thus in Rattan Singh v. State of H.P., [1997] 4 SCC 161:

"The collocation of the words in Section 32(1) 'circumstances of the

transaction

which resulted in his death' is apparently of wider ampli­

tude than saying 'circumstances which caused his death'. There need

not necessarily be a direct nexus between 'circumstances' and death.

It is enough if the words spoken by the deceased have reference to any

circumstance which has connection with any of the transactions which

ended up in the death of the deceased.

Such statement would also fall

within the purview of Section 32(1) of the Evidence Act. In other

--words, it is not necessary that such circumstance should be proximate,

for, even distant circumstances can also become admissible under the

sub-section,

provided it has nexus with the transaction which resulted

in the

death."

Tjting 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 nut 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

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390 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.

set ablaze by a man called Hiralal whose second name happened to be men­

tioned by her as Lak:hand. 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 identi­

fying 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.

Shri U.R. Lalit, learned senior counsel then made an alternative argu­

ment that the offence would not escalate beyond culpable homicide not amount­

ing to murder. This argument was made on the premise that the burns caused

E

. to her did not result in her death during the initial fatal period and that her death

happened on account

of setting in of some later complications.

Section 299 IPC defines 'culpable homicide'

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

F 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 conten­

tion and hence that is extracted below:

G

"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

H amounting to murder and the second segment consists of culpable homicide not

PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 391

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

1parm 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 bums 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 bum injuries cannot evacuate the act out of the contours of the

"2ndly" clause of Section 300 IPC. There Wl}S 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.

v.s.s. Appeal dismissed.

A

B

c

D

E

F