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REPORTABLE

IN THE SUPREME COUT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 683   OF 2015 (Arising out of S.L.P. (Crl.) No.5741/2013)

SANTOSH s/o SHANKAR PAWAR       …Appellant

Versus

STATE OF MAHARASHTRA              ..Respondent   

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This  appeal  arises  out  of  the  judgment  of  the  

Nagpur  Bench  of  the  Bombay  High  Court  passed  in  

Criminal Appeal No.343 of 2006 dated 2.2.2012 affirming  

the conviction of the appellant under Section 302 IPC and  

the sentence of life imprisonment imposed on him by the  

5th Addl. Sessions Judge, Akola.

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3. Briefly  stated,  case  of  prosecution  is  that  the  

marriage of  the appellant  Santosh Pawar and deceased  

Saraswatibai  was  solemnized  on  17.6.2005.   Due  to  

poverty, the deceased alongwith the accused was residing  

adjacent to her parental  house situated at Ramji  Nagar  

Boragonmanju  in  a  rented house of  one Kankale,  since  

one month prior to the incident.  The appellant and the  

deceased  were  earning  their  livelihood  by  doing  daily  

wages  work.  On  4.9.2005  at  about  6.00  A.M.,  the  

deceased Saraswatibai went to answer nature’s call and  

on  her  return,  the  deceased  was  questioned  by  the  

appellant  as to why she returned late and the accused  

suspected  her  fidelity.  Inspite  of  deceased  trying  to  

convince the  appellant, the appellant started assaulting  

her with fists and kicks.  The appellant poured kerosene  

from a  nearby  lamp and set  her  ablaze.   Saree of  the  

deceased caught fire and the deceased ran towards the  

accused in an attempt to catch him, thereby burning the  

hands of the accused.  When deceased started screaming  

for help, the appellant, in order to save her, poured water  

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on the deceased.  In the meanwhile, the neighbours and  

the parents of the deceased gathered and the deceased  

was taken to the hospital.  On the way to the hospital, the  

deceased narrated the incident to her mother Gangabai-

PW2 and sister-in-law-Sindhu Sunil Ingole (PW3) and also  

to  neighbour  Raju  Janrao  Gavai  -PW1.   On  receipt  of  

information about the occurrence, Sub Inspector of Police-

Digmber Ramrao Ravrale (PW9) went to the Government  

Hospital  and  he  verified  the  condition  of  the  deceased  

through  the  Medical  Officer.  PW9  then  recorded  the  

statement of deceased-Ex.24, on the basis of which FIR  

was registered for the offence under Section 307 IPC.  On  

requisition,  PW7-the then Executive Magistrate,  went to  

the  hospital  and  satisfied  himself  about  the  fit  mental  

condition of the deceased through Dr. Vijaya Madhuarrao  

Pawanikar-PW6  and  thereafter  PW7  recorded  the  dying  

declaration  of  deceased  Saraswatibai.   Saraswatibai  

succumbed to burn injuries on 12.09.2005.  On the death  

of Saraswatibai, the FIR was altered to Section 302 IPC.  

Dr. Satish Udaybhanu Padhan-PW8 conducted autopsy on  

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the body of deceased Saraswatibai and issued Ex.22-Post  

Mortem certificate.  PW8 opined that  the deceased died  

due  to  shock  and  septicaemia  caused  by   60%  burn  

injuries.  Inquest was held and on completion and further  

investigation, chargesheet was filed against the appellant  

under Section 302 IPC.

4. To bring home the guilt of the accused, in the trial  

court prosecution examined ten witnesses and exhibited  

documents  and  material  objects.  The  appellant  was  

questioned  under  Section  313  Cr.P.C.  about  the  

incriminating  evidence  and  circumstances  and  the  

appellant denied all of them.  The appellant pleaded that  

the fire was accidental and during his questioning under  

Section  313  Cr.P.C.,  he  filed  Ex.34-his  statement  of  

defence.  Upon consideration of the evidence, trial  court  

held  that  the  guilt  of  the  accused  is  proved  beyond  

reasonable  doubt  and  convicted  the  appellant  under  

Section  302  IPC  and  sentenced  him  to  undergo  life  

imprisonment and imposed a fine of Rs.1000/- with default  

clause to  suffer  rigorous  imprisonment  for  two months.  

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Aggrieved by the same, appellant preferred appeal before  

the  High  Court  of  Bombay  and  the  said  appeal  was  

dismissed  confirming  the  conviction  and  sentence.  The  

present  appeal  assails  the  correctness  of  the  judgment  

passed by the High Court.  

5. In the SLP, notice was issued, only limited to the  

nature of offence.

6. Drawing  our  attention  to  the  supplementary  

statement-Ex.34 of the accused, learned counsel for the  

appellant  contended  that  on  the  date  of  incident,  the  

appellant went out to answer nature’s call and when he  

returned, he saw his wife coming out of the house ablaze  

and  the  appellant  immediately  rushed  and  tried  to  

extinguish the fire due to which his hands also got burnt  

and  the  courts  below  did  not  properly  appreciate  the  

evidence and the statement of the accused.  It was further  

submitted that in any event, there was no pre-meditation  

and there was no intention on the part of the appellant to  

kill his wife and the facts and circumstances show that the  

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appellant could not have intended to cause the death of  

deceased.      

7. Learned  counsel  for  the  respondent  reiterated  

findings of the courts below and submitted that the act of  

pouring kerosene and throwing the lighted matchstick on  

the deceased to set her ablaze would clearly prove that  

the accused intended to cause death and courts  below  

rightly convicted the appellant under Section 302 IPC.

8. Insofar as the first contention that the appellant is  

not responsible for the death of deceased Saraswatibai,  

defence made an attempt to contend that  the fire was  

accidental and that the appellant tried to extinguish the  

fire  in  order  to  save  her  and  in  that  process,  he  also  

suffered burn injuries.   Prosecution has adduced cogent  

evidence to prove that the appellant has caused the death  

of  deceased-  Saraswatibai.   Accused  suspected  the  

deceased of infidelity and picking up a fight over it,  he  

kicked her and inflicted fist blows and further set her on  

fire by pouring kerosene over her person.  PW-6 Doctor  

certified that the deceased was in a fit mental condition to  

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make statement and PW7–Executive Magistrate recorded  

the dying declaration-Ex.1. In the said dying declaration,  

the deceased had categorically stated that on the date of  

incident, the appellant poured kerosene over her person  

and set her on fire.  That accused poured kerosene on the  

deceased and set her on fire is corroborated  by the oral  

testimony of PW3–Sindhu Sunil Ingole (sister-in-law) of the  

deceased.  PW1-Raju  Janrao  Gavai,  neighbour  of  the  

deceased who accompanied the deceased to the hospital  

to whom the deceased is said to have made a statement  

about the overt act of the accused, had only stated that  

the deceased told him that the accused beat her and also  

kicked  her.   PW1  had  not  supported  the  statement  of  

deceased  in  the  dying  declaration  that  the  accused  

poured kerosene on her and set her on fire.  However, the  

prosecution has established the guilt  of  the accused by  

Ex.1–dying declaration and the oral  evidence of mother  

(PW2)  and sister-in-law (PW3)  and the same cannot  be  

doubted.     

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9. Learned counsel for the appellant contended that  

there was no pre-meditation and the appellant had poured  

kerosene  from  the  lamp  nearby  and  thereafter  the  

appellant  attempted  to  extinguish  the  fire  by  pouring  

water  on  her  and  himself  getting  burn  injuries  in  the  

process.  It  was  submitted  that  the  conduct  of  the  

appellant in trying to extinguish the fire immediately after  

the  incident  would  clearly  show  that  there  was  no  

intention  on  the  part  of  the  appellant  to  commit  the  

murder. In support of his contention, he placed reliance on  

the  judgment  of  this  Court  in  Kalu  Ram vs.  State  of  

Rajasthan, (2000) 10 SCC 324.    

10. The question falling for  consideration is  whether  

the act of the accused pouring water would mitigate the  

offence of murder.  Where the intention to kill is present,  

the act  amounts to  murder,  where such an intention is  

absent,  the  act  amounts  to  culpable  homicide  not  

amounting to murder.  To determine whether the offender  

had the intention or not, each case must be decided on its  

facts  and  circumstances.  From  the  facts  and  

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circumstances of the instant case,  it  is  evident that:  (i)  

there was a homicide, namely the death of Saraswatibai;  

(ii) the deceased  was set ablaze by the appellant and this  

act  was  not  accidental  or  unintentional;  (iii)  the  post  

mortem certificate  revealed that deceased died due to  

shock  and  septicaemia  caused  by  60%  burn  injuries.  

When the accused poured kerosene on the deceased from  

the kerosene lamp and also threw the lighted matchstick  

on the deceased to set her on fire, he must have intended  

to cause the death of the deceased.  As seen from the  

evidence  of  PW5–Panch  Witness,  in  the  house  of  the  

appellant kerosene lamp was prepared in an empty liquor  

bottle.   Whether  the  kerosene  is  poured  from  the  

kerosene  lamp  or  from the  can  is  of  no  consequence.  

When there is clear evidence as to the act of the accused  

to set the deceased on fire, absence of pre-meditation will  

not reduce  the offence of murder to culpable homicide  

not amounting to murder. Likewise, pouring of water will  

not mitigate the gravity of the offence.

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11. After  attending  to  nature’s  call,  the  deceased  

returned  to  the  house  a  little  late.   The  accused  

questioned her as to why she was coming late and he also  

suspected her fidelity.  There was no provocation for the  

accused to pour  kerosene and set her on fire.    Act of  

pouring kerosene, though in a spur of moment, the same  

was followed by lighting a match stick and throwing it on  

the deceased and thereby setting her ablaze.  Both the  

acts  are  intimately  connected  with  each  other  and  

resulted in causing the death of the deceased and the act  

of the accused is punishable for murder.  

12. Even assuming that the accused had no intention  

to cause the death of the deceased, act of the accused  

falls under clause (iv) of Section 300 IPC that is the act of  

causing injury so imminently dangerous where it will in all  

probability  cause  death.   Any  person  of  average  

intelligence  would  have  the  knowledge  that  pouring  of  

kerosene and setting  her  on  fire  by  throwing a  lighted  

matchstick  is  so  imminently  dangerous  that  in  all  

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probability  such  an  act  would  cause  injuries  causing  

death.   

13. Insofar  as   the  conduct  of  the  accused  in  

attempting  to extinguish fire, placing reliance upon the  

judgment of this Court  in Kalu Ram’s case (supra),  it was  

contended that such conduct of the accused would bring  

down the offence from murder to culpable homicide not  

amounting to murder.   In  Kalu Ram’s case (supra),  the  

accused was having two wives. The accused in a highly  

inebriated  condition  asked  his  wife  to  part  with  her  

ornaments so that he could purchase more liquor, which  

led  to  an  altercation  when  the  wife  refused  to  do  as  

demanded.  Infuriated by the fact that his wife had failed  

to concede to his demands, the accused poured kerosene  

on her and gave her a matchbox to set herself on fire.  On  

her  failure to  light  the matchstick,  the accused set  her  

ablaze.  But when he realized that the fire was flaring up,  

he threw water on her person in a desperate bid to save  

her.  In such facts and circumstances, this Court held that  

the accused would not have intended to inflict the injuries  

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which she sustained on account of act of the accused and  

the conviction was altered from Section 302 IPC to Section  

304 Part II IPC.

14. The decision in Kalu Ram’s case cannot be applied  

in the instant case.  The element of inebriation ought to  

be taken into consideration as it considerably alters the  

power of thinking.  In the instant case, the accused was in  

his complete senses, knowing fully well the consequences  

of his act.  The subsequent act of pouring water by the  

accused on the deceased also appears to be an attempt to  

cloak  his  guilt  since  he  did  it  only  when  the  deceased  

screamed for help. Therefore, it cannot be considered as a  

mitigating factor.  An act undertaken by a person in full  

awareness, knowing its consequences cannot be treated  

at  par  with  an  act  committed  by  a  person  in  a  highly  

inebriated condition where his faculty of reason becomes  

blurred.    

15. Within  three  months  of  her  marriage,  the  

deceased died of burn injuries.   In bride burning cases,  

whenever  the  guilt  of  the  accused  is  brought  home  

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beyond reasonable doubt,  it  is the duty of the Court to  

deal  with  it  sternly  and  award  the  maximum  penalty  

prescribed by the law in order that it may operate as a  

deterrence  to  other  persons  from  committing  such  

offence.

16. This Court on various occasions has stressed the  

need for vigilance in cases where a woman dies of burn  

injuries within a short span of her marriage and that stern  

view  needs  to  be  adopted  in  all  such  cases.  In  Satya  

Narayan  Tiwari  &  Anr.  vs.  State  of  Uttar  Pradesh,   

(2010) 13 SCC 689, this Court in paragraphs (3) and (9)  

has held as under:-  

“3. Indian society has become a sick society. This is  evident from the large number of cases coming up in  this  Court  (and  also  in  almost  all  courts  in  the  country) in which young women are being killed by  their  husbands  or  by  their  in-laws  by  pouring  kerosene  on  them and setting  them on  fire  or  by  hanging/strangulating  them.  What  is  the  level  of  civilisation of a society in which a large number of  women are treated in this horrendous and barbaric  manner?  What  has  our  society  become—this  is  illustrated by this case.

9. Crimes  against  women  are  not  ordinary  crimes  committed in a fit of anger or for property. They are  social  crimes.  They disrupt  the entire  social  fabric.  Hence,  they  call  for  harsh  punishment.  Unfortunately,  what  is  happening  in  our  society  is  that  out  of  lust  for  money  people  are  often  demanding  dowry  and  after  extracting  as  much  

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money as they can they kill the wife and marry again  and then again they commit the murder of their wife  for  the  same  purpose.  This  is  because  of  total  commercialisation of our society, and lust for money  which induces people to commit murder of the wife.  The time has come when we have to stamp out this  evil from our society, with an iron hand.”

17. Upon  analysis  of  the  evidence  adduced  by  the  

prosecution,  courts  below  recorded  concurrent  findings  

that  the  accused  caused  the  death  of  deceased  

Saraswatibai  and  convicted  the  appellant.   It  is  well  

settled  that  concurrent  findings  of  fact  cannot  be  

interfered  with  unless  the  findings  are   perverse   and  

unsupportable  from the evidence  on record.  This view  

has  been  reiterated  in  Dhananjay  Shanker  Shetty vs.  

State of Maharashtra, (2002) 6 SCC 596.  In the totality of  

the facts and circumstances, in our view, the concurrent  

findings of facts recorded by the courts below are based  

on  evidence  and  we  see  no  infirmity  in  the  impugned  

judgment warranting interference.

18. In the result, the appeal fails and is dismissed.

……………………….J.                  (T.S. Thakur)

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……………………….J. (Adarsh Kumar Goel)

                                             ….…………………….J.                (R. Banumathi)

New Delhi; April  21, 2015

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