Holding

The victim’s dying declaration is admissible and reliable, the death was caused by the burns satisfying Section 300(2) IPC, and the conviction for murder is upheld.

Summary

The appellant, Patel Hiralal Joitaram, was convicted of murder for setting the victim, Asha Ben, ablaze with combustible liquid and a lighter. The victim had given a dying declaration identifying the appellant as her assailant, which the trial court rejected but the High Court admitted, leading to his conviction. On appeal, the Supreme Court examined whether the dying declaration fell within Section 32(1) of the Evidence Act and found it admissible and reliable, noting that the statement related to the circumstances of the transaction that resulted in her death. The Court also held that the victim’s death was caused by the burns, satisfying the “2ndly” clause of Section 300 of the IPC despite the fourteen‑day interval, and that the appellant had the requisite intention or knowledge that such injury was likely to cause death. Applying the heightened caution required in appeals against acquittal, the Court concluded that the prosecution proved the appellant’s guilt beyond reasonable doubt. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

The dying declaration of the victim is admissible under Section 32(1) of the Evidence Act, 1872.
The dying declaration is reliable and sufficient to positively identify the appellant as the assailant.
Whether the death was caused by the burn injuries, thereby attracting the ‘2ndly’ clause of Section 300 IPC and constituting murder.
The appropriate standard of proof in an appeal against acquittal and whether the High Court could set aside the acquittal.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162
Indian Evidence Act, 1872s. 32(1)
Indian Penal Code, 1860s. 299, s. 300

Subjects

dying declarationSection 32 Evidence Actculpable homicidemurderSection 300 IPCappeal against acquittalburn injuriesreliability of evidence

Judgment

A PATEL HIRALAL JOITARAM
v.
STATE OF GUJARAT

OCTOBER 18, 2001

B [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
c 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 ofbum 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
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; c
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
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
E
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]
F
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
G
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] H
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
is the first step and once it is admitted court has to consider how far it is
D 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.
E 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
fall within the ambit of Section 32(1) of the Evidence Act. [389-H; 390-B]
G
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
H a
would have had only scanty acquaintance with the appellant so as to
PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 381
commit a mistake in identifying him. [390-C] A
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 B
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] c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 427
of 1999.

From the Judgment and Order dated 8/12/13.10.98 of the Gujarat High
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.
E
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.
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, F
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.
G
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. H
382 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A 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.

B 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
c 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
D 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)
E
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
F 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-
G 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
H
PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 383
establishing the identity of the culprit, which included the statement given to A
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 B
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
c
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.
D
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 E
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 F

-
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:

"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
384 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A 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.
B
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."

c 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
D "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.
E
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
F 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,
G 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

•.
j
• 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 B
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- c
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." D

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.
E
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 F
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 G
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 H
386 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.

A 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
B 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
c 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.

_ 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:
E "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."
F
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
PATELHIRALALJOTIARAM v. STATE [THOMAS,J.] 387
Valiben (PW-9). The aforesaid features would almost conclusively establish A
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 B
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:
c
"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
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:
E
"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." F
(The statement was recorded in Gujarati and the above extract is the English
translation produced by the appellant before this Court).

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
)

388 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A 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.
B 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.
C · That sub-section reads thus:
"(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
D 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
E 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
F
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
G 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. 1that test of reliability is
found positive the court has to consider the utility ·of that statement in the
H particular case.
PATEL HIRALAL JOTIARAM v. STATE [THOMAS, J.] 389
In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC A
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
B
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 c
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."
D
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 E
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 F
--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 G
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 H
390 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A 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
B 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
c 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
D 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 A
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 B
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
c
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 D
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
E
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. F

In the result, we dismiss this appeal.

v.s.s. Appeal dismissed.