Holding

The offence is covered by Section 304 Part II of the IPC and not by Clause (4) of Section 300, so the conviction under Section 304 Part II stands.

Summary

The appellant, a mother‑in‑law, threw a burning wick onto her daughter‑in‑law who was wearing terylene clothing, causing severe burns. The victim was hospitalized with about 60% burns and died after eight days due to septicemia, a complication of the injuries. The trial court convicted the appellant under Section 304 Part II of the IPC (culpable homicide not amounting to murder). The High Court altered the conviction to murder under Section 302, holding the act fell within Clause (4) of Section 300. On appeal, the Supreme Court held that there was no intention to cause death or an injury sufficient in the ordinary course of nature to cause death, and therefore the case did not meet the criteria for murder; it rightly fell under Section 304 Part II. Consequently, the High Court’s order was set aside and the trial court’s conviction restored, with the appeal partly allowed.

Issues considered

Whether the appellant’s act of throwing a burning wick constitutes murder under Clause (4) of Section 300 IPC.
Whether the appropriate charge is culpable homicide not amounting to murder under Section 304 Part II IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 378
Indian Penal Code, 1860s. 300, s. 302, s. 304(2)

Subjects

murderculpable homicide not amounting to murderIPC Section 304 Part IIburn injuriesintentiondying declarationsepticemiafireterylene clothing

Judgment

[2009] 12 S.C.R. 753

f
MANI BEN A
l
v.
STATE OF GUJARAT
(Criminal Appeal No. 658 of 2002)

AUGUST 7, 2009
8
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.)

.~\: Penal Code, 1860: s. 304 (Part II) - Accused threw
burning wick made of rags on the deceased - Since c
deceased was wearing terylene clothes, it aggravated fire
causing burn injuries - 60% burn injuries - During course of
treatment deceased developed septicemia which became
main cause of her death - Trial court convicted accused
under s.304 Part II - High Court altered conviction to s.302 - D
.Y On appeal, Held: From evidence on record it cannot be said
that accused had intention that action on her part would cause
death or such bodily injury to deceased sufficient in ordinary
course of nature to cause death of deceased - Her case was
covered under s.304 Part II - Conviction order of trial court E
restored.

~ Prosecution case was that on the fateful day, the
~
deceased went to fetch water. When she was returning,
appellant who was her mother-in-law threw a burning
F
wick made of rags on the deceased and thereby set fire
to the terylene clothes put on by the deceased. She
underwent treatment and died on eighth day. Trial court
convicted the appellant u/s. 304 Part II IPC. High Court
altered convi.ction to s.302 IPC. Hence the present
appeal. G

Partly allowing the appeal, the Court

HELD: 1. The post-mortem report of the deceased
753 H

'
754 SUPREME COURT REPORTS [2009] 12 S.C.R.

A was placed on record during the trial and doctor who ~
conducted the post-mortem examination was also '
examined as a witness in the trial. The said documentary
and oral evidence of the doctor, that he treated the patient
and also conducted the post-mortem examination made
B it crystal clear that the deceased remained under
treatment in hospital and died after 8 days. The deceas~d
was admitted in the hospital with about 60% burn injuries
and during the course of treatment developed septicemia,
which was the main cause of death of the deceased. It ,I. •
c is, therefore, established that during the period of 8 days
the injuries aggravated and worsened to the extent that
it led to ripening of the injuries and the deceased died due
to poisonous effect of the injuries. [Para 13] [760-D-F]

2. It is established from the dying declaration of the
D deceased that she was living separately from her mother-
in-law, the appellant for many years and that on the day ...
of incident she had a quarrel with the appellant at her
house. It is also clear from the evidence on record that
immediately after the quarrel she along with her daughter
E came to fetch water and when she was returning, the
appellant came and threw a burning tonsil on the clothes
of the deceased. Since the deceased was wearing a
terylene cloth at that relevant point of time, it aggravated
"
the fire which caused the burn injuries. There is also
F evidence on record to prove and establish that the action
of the appellant in throwing the burning tonsil was
preceded by a quarrel between the deceased and the
appellant. From the evidence on record, it cannot be said
that the appellant had the intention that such action on
G her part would cause the death or such bodily injury to
the deceased, which was sufficient in the ordinary course J
of nature to cause the death of the deceased. Therefore,
the case cannot be said to be covered under clause (4)
of Section 300 of IPC. The case of the appellant is
H
,_
MANIBEN v. STATE OF GUJARAT 755

;
covered under Section 304 Part II of IPC. [Para 14] [760- A
" G-H; 761-A-C]

3. The view taken by the trial court was a cogent and
plausible view and, therefore, the conviction and
sentence imposed by the trial court is justified. B
Considering the totality of the circumstances and the fact
that the appellant is of 85 years df age and had undergone
the sentence imposed by the trial court under the
-->: provisions of Section 304 Part II of IPC, the conviction and
sentence of the appellant imposed by the High Court is
set aside and the judgment and order passed by the trial
c
court is restored. [Para 15] [761-D-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 658 of 2002.
D
' ·"' From the Judgment & Order dated 03.04.2001 ofthe High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 1198
of 1995.

M.R. Challa, Lalit Chauhan, Somnadari Gaud, Pallavi
Sharma (for Parekh & Co.) for the Appellants. E

-~
Ms. Vibha Dutta Makhija, Jesal (for Hemantika Wahi) for
• the Respondents.

The Judgment of the Court was delivered by
F
Dr. MUKUNDAKAM SHARMA, J. 1. The present appeal

- is filed against the judgment and order passed by the High Court
of Gujarat holding that the case of the appellant herein is
covered under Clause (4) of Section 300- of the Indian Penal
Code (for short 'the IPC') and, consequent thereto convicting G
~
her under Section 302 of IPC for murder of her daughter-in-law
-Santokben alias Muktaben and sentencing the appellant to
imprisonment for life. However, by the said order, imposition
of the fine of Rs. 3,000/- by the Sessions Court was set aside.
Earlier the Sessions Court held the appellant guilty for the H
·-
'
756 SUPREME COURT REPORTS [2009] 12 S.C.R.

A offence of Section 304, Part II of IPC and convicted and ' '
sentenced her for 5 years imprisonment and fine of Rs. 3,000/
- and in lieu to undergo further imprisonment of one year.

2. In order to appreciate the rival contentions advanced by
the parties and issues involved, it would be necessary to set
B
out brief facts of the case which gave rise to the present criminal
appeal.

Deceased Santokben was married to Parshottambhai .( .
Patel of village Jamvadi, Taluka Gonda!, District Rajkot. After
c the marriage she gave birth to three children, who were all girls.
The appellant herein, who is the mother-in-law of Santokben,
was dissatisfied with Santokben because she was not able to
bear a boy. According to prosecution on 29.11.1984 at about
7.00 a.m. the deceased with her youngest daughter Minaxi had
D gone to fetch water and while she was returning with water pot '1 •
on her head and carrying Minaxi with the other hand, the •
appellant came and threw a burning wick made of rags on the
deceased and thereby set fire to the terylene clothes put on by
the deceased. The deceased brought down her minor daughter
E whom she was carrying and managed to reach her house with
the burn injuries.

3. After reaching her house the deceased summoned her #

daughter Nita who had gone to attend her school. Nita in turn ,
informed witness Babula! Liladhar and the deceased was taken
F to Gonda! Government dispensary at about 9.35 a.m. At Gonda!
Government dispensary the deceased was examined by Dr.
Hareshkumar N. Savaliya, who was a Medical Officer at the
said dispensary and on finding that the deceased has
sustained more than 60% burns, he advised the. persons
-
G accompanying her to remove her to Rajkot Hospital. At about
11.00 a.m. on that day an information was conveyed by Mr.
Ghanshyambhai, who was police constable on duty at Gonda!
hospital, to Umiyashanker Jivram, P.S.O. at Gonda! Taluka
Police Station about the deceased having been admitted in the
H hospital for treatment of her burn injuries. Mr. Umiyashanker had
--
MANIBEN v. STATE OF GUJARAT 757
[DR. MUKUNDAKAM SHARMA, J.]

in turn asked Jamadar Sultan Siddi at about 11.00 a.m. to go A
t to the dispensary and record the complaint. Accordingly,
" Jamadar Sultan Siddi went to the Gonda! hospital and recorded
the complaint of the deceased at about 12.45 p.m., which is
the First Information Report. After reducing the complaint/FIR
of the deceased into writing, he obtained the thumb impression B
of the deceased thereon (Exhibit 46). Meanwhile at about
11.20 a.m. witness O.P. Trivedi, who was on duty at that time
as Deputy Mamlatdar sent a report to Executive Magistrate that
the deceased was admitted to hospital with burn injuries and
,...).-
he should record her dying declaration. According.ly, Mr. O.P. c
Trivedi, Executive Magistrate had gone to Gonclal Hospital and
\
after verifying from Dr. Savaliya that deceased was conscious
and in a fit state of mind to make statement, recorded her dying
declaration. Thereafter, the deceased was removed to Rajkot
Government hospital. During the course of treatment the
D
deceased died on 07 .12.1984. At the instance of Head
~- 'f Constable C.O. Vyas, Or. Tarlikaben H. Shah performed
autopsy on the dead body of the deceased. Necessary
investigation into the case was made by Mr. L.S. Chavda, P.S.I.,
of Gonda! Taluka, Police Station. Mr. Vijay J. Menad, who was
E
then appointed as probationer P.S.I, assisted Mr. Chavad.

4. After conclusion of the investigation, the appellant was
_,j
charge-sheeted for the offence punishable under section 302
• of IPC. As the offence under Section 302 of IPC was
exclusively triable by the Court of Sessions, the case was F
committed to the Court of learned Additional Sessions Judge,
Gonda!, District Rajkot, for trial. Charges were framed against
the appellant under section 302 of IPC, to which she pleaded
-• not guilty.
G
5. The prosecution examined 20 witnesses and also
produced documentary evidence such as postmortem report
of the deceased, dying declaration of the deceased recorded
by Mr. Trivedi, complaint lodged by the deceased, different
panchnamas etc. to prove its case against the appellant. After
H
758 SUPREME COURT REPORTS [2009J 12 S.C.R.

A recording of evidence of prosecution witnesses, the learned
~
Judge recorded the statement of the appellant under Section
313 of the Criminal Procedure Code. The appellant denied the '
case of the prosecution, but did not examine any witness in
support of her case.
B
6. The trial court held that the prosecution proved that the
deceased died a homicidal death. The trial court found the FIR
as well as dying declaration reliable and trustworthy. The trial
court concluded that though it was proved that the appellant had
set the deceased on fire, the medical evidence established that ~ .
c the injuries sustained by the deceased were not sufficient in the
ordinary course of nature to cause her death and, therefore, the
appellant committed offence punishable under Section 304
Part-II of IPC. Accordingly, by judgment and order dated
15.06.1985, the appellant was sentenced to undergo rigorous
D imprisonment for five years and to pay a fine of Rs. 3,000/-, in
default, rigorous imprisonment for one year. 'r •

7. Being aggrieved by the Judgment and Order of
conviction passed by the Hon'ble Additional Sessions Judge,
E Gondal in Case No. 15 of 1985, the State of Gujarat preferred
an appeal being Criminal Appeal No. 1198 of 1985 under
Section 378 of the Criminal Procedure Code before the High
Court of Gujarat with contention that the intention of the appellant
•
was to cause the death of the deceased as she very well knew
F that her act of setting fire to the terylene clothes put on by the
deceased was so imminently dangerous that it would, in all
probability, cause death of the deceased or such bodily injury
as was likely to cause death of the deceased and, therefore,
the appellant could not have been convicted for a lesser offence
.
~

punishable under Section 304 Part-II of IPC but should have
G
been convicted under Section 302 of IPC.

8. The High Court by its judgment and order dated
03.04.2001 held that the learned Additional Sessions Judge
had misconstrued the provisions of Section 300 and Part-II of
H Section 304 of IPC and thereby arrived at a wrong finding that
MANIBEN v. STATE OF GUJARAT 759
[DR. MUKUNDAKAM SHARMA, J.]

; the case of the appellant was a case within the meaning of Part A
-1
II Section 304 of IPC. The High Court also held that the case
of the accused is covered under Clause (4) of Section 300 of
IPC and, therefore, passed an order of conviction of the
appellant under Section 302 IPC for murder of her daughter-
in-law and sentenced her to imprisonment for life. However, the 8
fine of Rs. 3,000/- imposed by the Sessions Court was set
aside. Hence, the appellant filed the present appeal.

9. Mr. M.R. Calla, learned senior counsel appearing for the
. ·" appellant submitted that neither Section 302 of IPC nor clause
(4) of Section 300 of IPC is applicable to the case as the
c
appellant had no intention to inflict that particular bodily injury
which, in the ordinary course of nature, was not sufficient to
cause the death of the deceased. He submitted that the High
Court should not have relied upon the dying declaration as the
D
,., '{ same was not recorded according to law nor did it comply with
all the requirements so as to be the basis of conviction. He
further submitted that the deceased did not die of burn injuries
but died due to septicemia, which was not the direct result of
the bodily injury received by the deceased.
E
10. The learned counsel for the State, on the other hand,
supported the order of conviction and sentence passed by the
.. -+ High Court. He submitted that the High Court was correct and
justified in relying upon the aforesaid dying declaration, which
was duly and properly recorded by the Executive Magistrate. F
11. Having heard the learned counsel appearing for the
parties, we now proceed to analyse the entire material on
record so as to ascertain whether or not the conviction and
sentence passed against the appellant would and could be
upheld. G

12. After a careful analysis of the facts and circumstances
of the case we find that it is not in dispute that the alleged
incident took place in the morning of November 29, 1984 when
the deceased was coming back with water pot on her head and H
760 SUPREME COURT REPORTS [2009] 12 S.C.R.

A her daughter on her waist. The allegation is that the appellant ...
set her on fire with a burning wick made of rags consequent '
whereupon the deceased suffered burn injuries on the whole
body and succumbed to her injuries on 07.12.1984 during the
course of treatment. The dying declaration of the deceased,
B which is produced by Mr. Trivedi, Executive Magistrate, at
Exhibit 15 indicates that while deceased was returning home
after fetching water, the appellant had set her terylene clothes
on fire by means of a burning wick of rags. The factum of
recording of the FIR as also the dying declaration is also not ~ .
c disputed. As per the Judgment and Order of the Additional
Sessions Judge, Gondal, the appellant/accused was taken into
custody on 15.6.1985 to undergo the sentence and was
released on 07.09.1989 on expiry of the sentence.

13. The post-mortem report of the deceased was placed
D on record during the trial and Dr. Tarlikaben, who conducted
the post-mortem examination was also examined as a witness i' ""
in the trial. The said documentary and oral evidence of the '
doctor, as adduced, that he also treated the patient and
conducted the post-mortem examination made it crystal clear
E that the deceased remained under treatment in hospital for 8
days and died after 8 days of the incident in question. The
deceased was admitted in the hospital with about 60% burn ••
injuries and during the course of treatment developed
septicemia, which was the main cause of death of the
F deceased. It is, therefore, established that during the aforesaid
period of 8 days the injuries aggravated and worsened to the
extent that it led to ripening of the injuries and the deceased
died due to poisonous effect of the injuries. •,

14. It is established from the dying declaration of the
G
deceased that she was living separately from her mother-in-law, JI
the appellant herein, for many years and that on the day in
question she had a quarrel with the appellant at her house. It is
also clear from the evidence on record that immediately after
the quarrel she along with her daughter came to fetch water and
H
MANIBEN v. STATE OF GUJARAT 761
[DR. MUKUNDAKAM SHARMA, J.]

- ~
when she was returning, the appellant came and threw a
burning tonsil on the clothes' of the deceased. Since the
deceased was wearing a terylene cloth at that relevant point
A

of time, it aggravated the fire which caused the burn injuries.
·. There is also evidence on record to prove and establish that
the action of the appellant to throw the burning tonsil was 8
preceded by a quarrel between the deceased and the appellant.
From the aforesaid evidence on record it cannot be said that
the appellant had the intention that such action on her part would
cause the death or such bodily injury to the deceased, which
' ~
was sufficient in the ordinary course of nature to cause the c
death of the deceased. Therefore, in our considered opinion,
the case cannot be said to be covered under clause (4) of

.. Section 300 of IPC. We are, however, of the considered
opinion that the case of the appellant is covered under Section
304 Part II of IPC.
D
.. ., 15. We find that the view taken by the trial court was a
cogent and plausible view and, therefore, we hold that the
conviction and sentence imposed by the trial court is justified.
Considering the totality of the circumstances and the fact that
the appellant is of 85 years of age and had undergone the E
sentence imposed by the trial court under the provisions of
.~ Section 304 Part II of IPC, we set aside the conviction and
~ sentence of the appellant imposed by the High Court of Gujarat
and restore the judgment and order passed by the trial court.
Since the appellant has already undergone the sentence F
imposed by the trial court she shall not be re-arrested unless
required in connection with any other case. Bail bonds shall
stand discharged. This shall not be the precedent for other
cases.
G
16. The appeal is allowed to the aforesaid extent.

D.G. Appeal partly allowed.