SANTOSH S/O SHANKAR PAWARversusSTATE OF MAHARASHTRA

                       [2015] 4 S.C.R. 962


A              SANTOSH S/O SHANKAR PAWAR
                            v.
                 STATE OF MAHARASHTRA
                (Criminal Appeal No.683 of 2015)
B                       APRIL 21, 2015

         [T.S. THAKUR, ADARSH KUMAR GOEL AND
                    R. BANUMATHI, JJ.]

c      Penal Code, 1860 - s. 302 - Murder - Husband
  suspected wife of infidelity, assaulted her and furlher set
  her on fire by pouring kerosene over her person - Wife
  suffered 60% burn injuries and later succumbed to her
  injuries - Her dying declaration was recorded - On the
o basis of the dying declaration and the oral evidence of the
  prosecution witnesses, order of conviction and sentence
  of the husband uls. 302 by courls below - Interference with
  - Held: Not called for - Concurrent findings of facts
  recorded by the courls below based on evidence - There
E being clear evidence as to the act of the accused to set
  the wife on fire, absence of pre-meditation would not reduce
  the offence of murder to culpable homicide not amounting
  to murder - Subsequent pouring of water by the husband
  would not mitigate the offence of murder - Act of pouring
F kerosene though in a spur of moment, followed by lighting
  a match stick, throwing it and thereby setting her ablaze
  are intimately connected with each other and resulted in
  causing the death.

G        Crime against women - Bride burning cases - Duty
    of the courl - Held: Whenever the guilt of the accused is
    brought home beyond reasonable doubt, the Courl to deal
    with it sternly and award maximum penalty prescribed by

H                             962
    SANTOSH S/O SHANKAR PAWAR v. STATE OF                     963
                MAHARASHTRA

law such that it may operate as deterrence to other persons    A
from committing such offence.

    Dismissing the appeal, the Court

    HELD: 1.1 Where the intention to kill is present, the
                                                          8
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 c
and circumstances of the instant case, it is evident that
there was a homicide, namely the death of the wife;
the deceased was set ablaze by the appellant and this
act was not accidental or unintentional; and the post
mortem certificate revealed that deceased died due to D
shock and septicaemia caused by 60% burn injuries.
When there is clear evidence as to the act of the
accused to set the deceased on fire, absence of pre-
meditation would not reduce the offence of murder to
culpable homicide not amounting to murder. [Para 10] E
[969-H; 970-A-E]

     1.2 On facts, 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 F
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 G
murder. 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 H
964        SUPREME COURT REPORTS             [2015] 4 S.C.R.


A     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 probability such an act would cause injuries
      causing death. [Paras 11, 12] [970-G-H; 971-A-B]
B
      1.3 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
C 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
D highly inebriated condition where his faculty of reason
  becomes blurred. [Para 14] [972-A-C]

       1.4 Upon analysis of the evidence adduced by the
  prosecution, courts below recorded concurrent
E findings that the accused caused the death of deceased
  and convicted the appellant. The concurrent findings
  of fact cannot be interfered with unless the findings
  are perverse and unsupportable from the evidence on
  record. In the totality of the facts and circumstances,
F the concurrent findings of facts recorded by the courts
  below are based on evidence and there is no infirmity
  in the impugned judgment warranting interference.
  [Para 17] [973-E-G]

G     1.5 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
  beyond reasonable doubt, it is the duty of the Court to
  deal with it sternly and award the maximum penalty
H prescribed by the law in order that it may operate as
    SANTOSH S/O SHANKAR PAWAR v. STATE OF                  965
                MAHARASHTRA

deterrence to other persons from committing such             A
offence. [Para 15] [972-D]

    Ka/u Ram vs. State of Rajasthan (2000) 10 SCC 324
- held inapplicable.
                                                             B
   Satya Narayan Tiwari &Anr. vs. State of Uttar Pradesh
2010 (12) SCR 1137 : (2010) 13 SCC 689; Dhananjay
Shanker Shelly vs. State of Maharashtra 2002 (1) Suppl.
SCR 352: (2002) 6 SCC 596 - referred to.

                  Case Law Reference                         c
 (2000) 10 sec 324           held inapplicable. Para 14
 2010 (12) SCR 1137          referred to.       Para 16
2002 (1) Suppl. SCR 352      referred to.       Para 17
   CRIMINAL APPELLATE JURISDICTION: Criminal                 D
Appeal No. 683 of 2015.

    From the Judgment and Order dated 02.02.2012 of the
High Court of Judicature at Bombay, Nagpur Bench,
Nagpur in Criminal Appeal No. 343 of 2006.                   E

    Shahsi Bhushan Kumar for the Appellant.

   Sushil Kranjkar, Dharmendra Kishor, Aniruddha P.
Mayee for the Respondent.
                                                             F
    The Judgment of the Court was delivered by

    R. BANUMATHI, J. 1. Leave granted.

      2. This appeal arises out of the judgment of the Nagpur G
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 AddJ.,Sessions
                                                             H
966         SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A     Judge, Akola.

           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
B     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.
C     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. lnspite
      of deceased trying to convince the appellant, the appellant
D     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
E     screaming for help, the appellant, in order to save her,
      poured water 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
F     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
G     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
H     Magistrate, went to the hospital and satisfied himself about
    SANTOSH S/O SHANKAR PAWAR v. STATE OF                   967
        MAHARASHTRA [R. BANUMATHI, J.]

the fit mental condition of the deceased through Dr. Vijaya A
Madhuarrao Pawanikar-PW6 and thereafter PW? 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 B
conducted autopsy on 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 C
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 D
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 E
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 F
a fine of Rs.1000/- with default clause to suffer rigorous
imprisonment for two months. 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 G
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            H
968       SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A 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
B 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
C kill his wife and the facts and circumstances show that the
  appellant could not have intended to cause the death of
  deceased.

       7. Learned counsel for the respondent reiterated
D 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.
E
       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
F in order to save her and in that process, he also suffered
  burn ihjuries. 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
G 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 make statement
  and PW7-Executive Magistrate recorded the dying
H declaration-Ex.1. In the said dying declaration, the
    SANTOSH S/O SHANKAR PAWAR v. STATE OF                     969
        MAHARASHTRA [R. BANUMATHI, J.]

deceased had categorically stated that on the date of          A
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              B
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             C
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
                                                               0
(PW2) and sister-in-law (PW3) and the ~ame cannot be
doubted.

     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 E
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 F
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 G
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 H
970      SUPREME COURT REPORTS               [2015] 4 S.C.R.


A 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 circumstances
  of the instant case, it is evident that: (i) there was a
  homicide, namely the death of Saraswatibai; (ii) the
B 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
C 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 PWS:....Panch Witness, in the house of the
  appellant kerosene lamp was prepared in an empty liquor
0
  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
E the offence of murder to culpable homicide not amounting
  to murder. Likewise, pouring of water will not mitigate the
  gravity of the offence.

        11. After attending to nature's call, the deceased
F 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
G 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.
H
    SANTOSH S/O SHANKAR PAWAR v. STATE OF                     971
        MAHARASHTRA [R. BANUMATHI, J.]

      12. Even assuming that the accused had no intention A
·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 B
 setting her on fire by throwing a lighted matchstick is so
 imminently dangerous that in all probability such an act
 would cause injuries causing death.

     13. Insofar as the conduct of the accused in              C
attempting to extinguish fire, placing reliance upon the
judgment of this Court in Ka/u 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           D
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      E
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,     F
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
which she sustained on account of act of the accused and
the conviction was altered from Section 302 IPC to Section     G
304 Part II IPC.

     14. The decision in Ka/u 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 H
972      SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A 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
B 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
C 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 beyond reasonable
D 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.

E      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,
F (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
G        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
H        a society in which a large number of women are
     SANTOSH S/O SHANKAR PAWAR v. STATE OF                      973
         MAHARASHTRA [R. BANUMATHI, J.]

      treated in this horrendous and barbaric manner? \Nhat A
      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      B
      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 money as they can they kill the C
      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 D
      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 E
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 F
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. G

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

Nidhi Jain                                  Appeal dismissed.
                                                                 H