Supreme Court of India
STATE OF RAJASTHANversusSANTOSH SAVITA
- Citation
- 2013 INSC 519
- Decided
- 6 August 2013
- Disposal
- Appeal(s) allowed
- Bench
- A K PATNAIK
Holding
The Court held that the two dying declarations are admissible and, together with corroborative circumstantial evidence, establish culpable homicide not amounting to murder under Section 304 Part‑II IPC, not murder under Section 302.
Summary
The State of Rajasthan prosecuted Santosh Savita under Section 302 IPC for allegedly burning his sister-in-law by pouring kerosene and igniting her saree. The deceased gave two dying declarations naming the accused, which were recorded by a police officer and a doctor without a magistrate’s presence. The High Court acquitted the accused, doubting the dying declarations and finding no proof of intent to murder. The Supreme Court held that dying declarations are admissible under Section 32 Evidence Act even if not recorded before a magistrate, and that they were corroborated by circumstantial evidence such as recovered kerosene, burnt clothing, and eyewitnesses. While the evidence proved the accused’s involvement, the Court found no intention or knowledge of imminent danger required for murder, thus convicting him of culpable homicide not amounting to murder under Section 304 Part‑II IPC. The conviction was altered, the life sentence reduced to the six years already served, and a fine of Rs.2,000 imposed.
Issues considered
- Whether the dying declarations, not recorded before a magistrate, are admissible and can be relied upon under Section 32 of the Evidence Act.
- Whether the prosecution proved the elements of murder under Section 302 IPC, particularly the intention or knowledge of imminent danger.
- Whether the evidence is sufficient to sustain a conviction for culpable homicide not amounting to murder under Section 304 Part‑II IPC.
Legislation cited
- Indian Evidence Act, 1872s. 32
- Indian Penal Code, 1860s. 300, s. 302, s. 304
Subjects
dying declarationSection 32 Evidence Actmurderculpable homicide not amounting to murderSection 302 IPCSection 304 IPCcircumstantial evidenceintentadmissibility
Judgment
[2013] 11 S.C.R. 765
STATE OF RAJASTHAN A
v.
SANTOSH SAVITA
(Criminal Appeal No. 1303 of 2006)
AUGUST 06, 2013
B
[A.K. PATNAIK AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Penal Code, 1860 - s. 304 (Part II) - Prosecution for
murder - Conviction u/s. ·302 by trial court and acquittal C
therefrom by the High Court - On appeal, held: In view of the
two dying declarations implicating the accused, and the same
having been corroborated by the circumstantial evidence
regarding the recovery of articles and evidence of PWs 2, 3
and 8; the prosecution case is proved - However, in absence D
of proof regarding intention of the accused for causing death,
the accused can be held guilty of culpable homicide not
amounting to murder - His conviction altered to one u/s. 304
(Part II) - His sentence, in the circumstances of the case,
reduced to period already undergone i.e. six years with fine E
of Rs. 20001- - Evidence Act, 1872 - s. 32 - Dying
declaration.
The respondent-accused was prosecuted uls. 302
IPC. The prosecution case was that the deceased who
F
was allegedly burnt by the accused had given two dying
declarations to the doctors in the hospital in which she
was admitted. In both the dying declarations, the
deceased had mentioned that the accused poured
kerosene on her and lighted her saree with a matchstick.
Accused also produced defence witnesses, who stated G
that the deceased had burnt herself. Trial court convicted
the accused uls. 302 IPC and sentenced him to life
imprisonment and fine of Rs. 20001-. High Court reversed
765 H
766 SUPREME COURT REPORTS [2013] 11 S.C.R
A the order of trial court and acquitted him. Hence the
present appeal by the State.
Allowing the appeal, the Court
HELD: 1.1. In the present case, the deceased has
8 made two dying declarations (Ext. P-4 and Ext. P-10) and
has consistently named the respondent as the person for
the cause of her burn injuries and the two dying
declarations are corroborated both by circumstantial
evidence and direct evidence. Hence, even though the
C Magistrate was not requisitioned for recording the dying
declarations, the High Court ought not to have discarded
the dying declarations. [Para 19] [780-G-H; 781-A] ·
1.2. The dying declaration (Ext. P-4) was recorded by
D PW-9, within two to three hours of the incident. This dying
declaration was recorded in the presence of Medical
Jurist (PW-4) when the deceased was in a condition to
make a statement. The High Court appears to have
doubted this dying declaration because PW-4 has stated
E in his cross-examination that the deceased told him that
she had got burnt on her own and he has also made a
note in the injury report (Ext.P-3) that the deceased had
got burnt on her own. The High Court lost sight of the
fact that PW-4 has conducted the medical examination of
F the deceased at the hospital and, as has been stated by
PW-4 in his evidence, the injury report (Ext. P-3) had been
prepared before the dying declaration (Ext.P-4) was
recorded. It is perhaps for this reason that in Ext.P-3, after
the deceased gave her statement (Ex. P-4) to PW-9 in the
G presence of PW-4 that PW-4 corrected the injury report
(Ext.P-3) by scoring out the words "by herself'. In other
words, after PW-4 came to know later from the statement
of the deceased recorded by PW-9 in his presence that
the deceased did not get burnt by herself, he corrected
H the injury report (Ext.P-3). The High Court has failed to
STATE OF RAJASTHAN v. SANTOSH SAVITA 767
appreciate the evidence in this light. [Para 13) [777-F-H; A
778-A-C]
1.3. In the second dying declaration (Ext.P-10) also
the deceased has named the respondent as having
quarreled with her and as a result she has suffered the 8
burn injuries. It is also found from the evidence of PW-
11 that the deceased was in a condition to make the
dying declaration. It is true that in patient case-sheet (Ext.
P-13) of the deceased, PW-11 has written that it is a case
of homicidal burns while she was preparing meal on
stove four days back, but on a reading of Ext.P-13 it is C
found that it is also mentioned "her husband's younger
brother, (respondent), quarrel with her". The High Court
was, therefore, not right in coming to the finding that there
were inconsistencies in the two dying declarations
(Ext.P-4 and Ext.P-10). [Para 14] [778-D-G] D
1.4. The two dying declarations of the deceased, Ex.
P-4 and Ex.P-10, are corroborated by recovery of a plastic
can with some kerosene oil, burnt pieces of saree, blouse
and bangles as well as the broken matchsticks from the E
room (khaprail) where the incident took place. PW-2, PW-
3 and PW-8 have not seen what actually had happened
inside the room (khaprail) because the door of the room
was closed, but they had seen the respondent coming
out of the room and the deceased was in a burnt F
condition. PW-2, PW-3 and PW-8, therefore, have
corroborated the statements of the deceased in the two
dying declarations (Ext.P-4 and Ext.P-10) that none other
than the respondent-accused was in the room in which
the incident took place. [Para 15] [778-H; 779-A-B]
G
1.5. Section 32(1) of the Evidence Act, 1872 makes it
clear that when a statement, written or verbal, is made by
a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death H
768 SUPREME COURT REPORTS [2013] 11 S.C.R.
A comes into question, such statement is relevant. Hence,
Exts. P-4 and P-10 are relevant for deciding as to what
was the exact cause of the death of the deceased in the
present case. [Para 16] [779-C-D]
2.1. Under first clause of s. 300 IPC, if the act by which
8 the death is caused is done with the intention of causing
death, the act amounts to murder. Under the second
clause, if the act is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is
C caused, the act amounts to murder. Under the third
clause, if the act is done with the intention of causing
bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature
to cause death, the act amounts to murder. In each of the
D three clauses, intention to cause death or to cause the
bodily injury is an essential ingredient of the offence of
murder. Under the fourth clause, if the person committing
the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury
E as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such
injury, he is said to have committed murder. Hence, under
the fourth clause, knowledge of the act committed by the
accused that it is so imminently dangerous that it must,
F in all probability, cause death or such bodily injury as is
likely to cause death, is a necessary ingredient for the
offence of murder. [Para 21] [781-G-H; 782-A-C]
2.2. In the facts of the present case, PW-2, PW-3 and
PW-8 have not seen what exactly happened inside the
G room (khaprail) in which the incident took place. From the
two dying declarations (Ext.P-4 and Ext.P-10), therefore,
it is difficult to record a finding that the respondent had
any intention to cause death of the deceased or had any
intention to cause any bodily injury. From the two dying
H declarations, it is also difficult to come to a finding that
STATE OF RAJASTHAN v. SANTOSH SAVITA 769
the respondent committed the act knowing that it is so A
imminently dangerous that it must, in all probability,
cause death of the deceased. As found by the High Court,
there was some delicate relationship between the
respondent and the deceased and it was difficult to
believe that the respondent had any intent to cause B
death or bodily injury to the deceased. Rather, it appears
that the death of the deceased has been caused by a
reckless act, of the respondent with the knowledge that
it is likely to cause death and for this act, the respondent
is guilty of culpable homicide not amounting to murder c
under Section 304, Part-II, IPC. [Para 22] (762-0-E, F-G;
783-A]
2.3. The respondent has undergone imprisonment of
approximately six years and the incident is of the year
1997. In the peculiar facts and circumstances of the case, D
the period of imprisonment already undergone by the
respondent-accused and a fine of Rs.2,000/- are sufficient
punishments under Section 304 Part-II, IPC. [Para 22)
[783-8)
E
Lax man vs. State of Maharashtra (2002) 6 SCC 710 -
followed.
State of Kera/a vs. Nazar (2005) 9 SCC 246; Shri Gopa/
and Anr. vs. Subhash and Ors. (2004) 13 sec 174: 2004 (1)
F
SCR 1085 - distinguished.
Paniben vs. State of Gujarat (1992) 2 SCC 474: 1992
(2) SCR 197; Bhajju Alias Karan Singh vs. State of Madhya
Pradesh (2012) 4 SCC 327: 2012 (5) SCR 37; Surendra
Singh vs. State of Uttarancha/ (2006) 9 SCC 531: 2006 (1) G
Suppl. SCR 490; State of Rajasthan vs. Maharaj Singh and
Anr. (2004) 13 SCC 165; State of Uttar Pradesh vs. Banne
@ Baijnath and Ors. (2009) 4 SCC 271; State of Andhra
Pradesh vs. S. Swarnalatha and Ors. (2009) 8 SCC 383:
2009 (12) SCR 289 - referred to. H
770 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Case Law Reference:
1992 (2) SCR 197 referred to Para 8
2012 (5) SCR 37 referred to Para 8
2006 (1) Suppl. SCR 490 referred to Para 11
B c2004) 13 sec 165 referred to Para 11
(2009) 4 sec 211 referred to Para 12
2009 (12) SCR 289 referred to Para 12
(2005) 9 sec 246 distinguished Para 18
c 2004 (1) SCR 1085 distinguished Para 18
c2002) s sec 11 o followed Para 19
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1303 of 2006.
D
From the Judgment & Order dated 10.04.2003 of the High
Court of Judicature for Rajasthan at Jaipur bench, Jaipur in D.B.
Criminal Appeal No. 660 of 1998.
Dr. Manish Singhvi, AAG, Amit Lubhaya, Milind Kumar for
E the Appellant.
K.L. Janjani, Pankaj Kumar Singh, Ankit Gaur, M. Dubey
for the Respondent.
The Judgment of the Court was delivered by
F
A.K. PATNAIK, J. 1. This is an appeal by way of special
leave under Article 136 of the Constitution against the judgment
dated 10.04.2003 of the Division Bench of the Rajasthan High
Court, Jaipur Bench, in D.B. Criminal Appeal No. 660of1998.
G Facts:
2. The facts very briefly are that on 05.03.1997 Sudesh,
wife of Gopal, was admitted at Bed No. 19 in Female Surgical
Ward of General Hospital, Dholpur, because of burns and she
H gave a statement to the police that she was married to Gopal
STATE OF RAJASTHAN v. SANTOSH SAVITA 771
[A.K. PATNAIK, J.]
for about 10-12 years and she did not have any dispute with A
her mother-in-law, father-in-law, elder brother-in-law and younger
brother-in-law and they had never harassed her. She, however,
stated that Santosh, son of her uncle-in-law, used to frequently
irritate her by joking with her and between 11.30 a.m. to 12.00
Noon he came to her and took her inside a room holding her B
hand and said that he will not leave her alive. In her statement,
she also stated that Santosh had a kerosene oil can in his hand
and he poured the kerosene on her by lifting the container and
igni~ed fire to her saree with a matchbox and when she
shouted, her mother-in-law and her younger sister, Suman, who C
was married to her brother-in-law, came running to her and
Santosh ran away after igniting the fire. In her statement, she
further stated that due to fire, her clothes and she herself got
burnt badly and her mother-in-law brought her for treatment.
Pursuant to this statement, an FIR was registered under Section · D
307 of the Indian Penal Code (for short 'IPC') by ASI Shyam
Lal against the respondent. Subsequently, Sudesh was shifted
to the Kamla Raja Hospital, Gwalior where she died on
10.03.1997. After investigation, charge-sheet was filed against
the respondent under Section 302, IPC. E
3. As the respondent denied the charge, he was tried by
the Additional District and Sessions Judge, Dholpur, in
Sessions Case No. 53 of 1997. At the trial, amongst other
witnesses examined on behalf of the prosecution, Rakesh
F
Kumar, who visited the place of occurrence and prepared the
site plan and seized the plastic can, pieces of bangles, burnt
saree, blouse, string and broken matches from the site of
occurrence and prepared the seizure memo was examined as
PW-1; Pinki, who was the sister of the husband of the G
deceased, was examined as PW-2; Shyamo, mother-in-law of
the deceased was examined as PW-3; Dr. RC. Goyal, who was
the Medical Jurist in General Hospital, Dholpur, and conducted
the medical examination of the deceased and prepared the
injury report (Ext. P-3) was examined as PW-4; Shyam Lal, ASI,
H
772 SUPREME COURT REPORTS [2013] 11 S.C.R.
A who recorded the statement of the deceased at the hospital at
Dholpur, was examined as PW-9; Dr. J.N. Soni, who conducted
the postmortem on the body of the deceased was examined
as PW-10 and Dr. R. Gurmukhi, who rec6rded the dying
declaration of the deceased (Ext. P-10) at the hospital at
B Gwalior, was examined as PW-11. The respondent also
examined defence witnesses DW-1, Ashok Kumar Sharma,
said that the deceased had burnt herself. DW-2, Kalpana
Tiwari, who was residing in the neighbourhood, said that the
deceased told her that her mother-in-law has lit fire, DW-3,
C Mahendra Kumar, Compounder of the General Hospital,
Dholpur, said that the deceased told Dr. R.C. Goyal that she
burnt herself by pouring kerosene oil and DW-5, Bhagwan, said
that the doctor told him that the deceased died by burning
herself. The trial court rejected the defence story and convicted
D the respondent under Section 302, IPC and imposed sentence
of life imprisonment and fine of Rs.2,000/- on the respondent.
4. Aggrieved, the respondent filed D.B. Criminal Appeal
No. 660 of 1998 before the High Court. In the impugned
E judgment, the High Court found that there was a delicate
relationship between the deceased and the respondent. The
High Court also found that when the deceased was initially
examined by Dr. Goyal on 05.03.1997, she had told him that
she herself set her aflame and she died five days thereafter,
F but no attempt was made by the Investigating Officer to get her
statement recorded by any Magistrate. In her dying declaration
(Ext. P-10), however, she stated that the respondent had
poured kerosene oil and set her aflame and there were
therefore inconsistencies in the first statement of the deceased
G and her dying declaration. The High Court further found that DW-
1 and DW-2, who were residing in the neighbourhood of the
deceased, had deposed that the mother-in-law of the deceased
told the mohallawalas that the deceased set herself aflame and
DW-3 and DW-5 had deposed that in their presence, the
H deceased had told Dr. Goyal that she herself set her aflame.
STATE OF RAJASTHAN v. SANTOSH SAVITA 773
[A.K. PATNAIK, J.]
The High Court, therefore, held that the prosecution had not A
been able to establish beyond reasonable doubt that it was the
respondent who had poured kerosene oil and acquitted the
appellant of the charge under Section 302, IPC.
Contentions of the learned counsel for the parties: B
5. Dr. Manish Singhvi, learned counsel appearing for the
State of Rajasthan, submitted that there were two dying
declarations of the deceased, one (Ex.P-4) recorded by ASI,
Shyam Lal, (PW-9) at 2.30 p.m. on 05.03.1997 in the hospital C
at Dholpur in presence of Dr. R.C. Goyal and the other (Ex.P-
10) recorded by Dr. R. Gurmukhi (PW-11) recorded on
08.03.1997 soon after her admission in the hospital at Gwalior
and in both these dying declarations, the deceased clearly
named the respondent Santosh as having poured kerosene on
her and ignited fire on to her saree with a match. He further D
submitted that Dr. RC. Goyal (PW-4) has stated in his evidence
that at the time of recording the statement of the deceased her
condition was critical but she was not unconscious and an injury
report (Ex.P-3) recorded at 1.45 p.m. on 05.03.1997 would
also show that she was not unconscious. He further submitted E
that Dr. R. Gurmukhi (PW-11) has similarly stated in his
evidence that on 08.03.1997 the condition of the deceased was
not good and she was not in a position to put a signature and
therefore he got her thumb impression on the dying declaration
(Ex.P-10) recorded on 08.03.1997. He submitted that Dr. R. F
Gurmukhi (PW-11) has also stated in his evidence that the
deceased was in full senses and she became unconscious and
stopped talking only one hour prior to her death on 10.03.1997.
6. Dr. Singhvi further submitted that the two dying G
declarations of the deceased to the effect that the respondent
Santosh had poured kerosene on her and ignited the fire on to
her saree with a match box had been corroborated by eye-
witness accounts of Pinki (PW-2), Shyamo (PW-3-mother in
law) and Suman (PW-8-sister and sister in law of the H
774 SUPREME COURT REPORTS [2013] 11 S.C.R.
A deceased). He submitted that from the evidence of PW-2, PW-
3 and PW-8 it will be clear that there was some relationship
between the deceased and the respondent and the deceased
was spurning the overtures of the respondent because of which
the respondent got angry and burnt the deceased. He submitted
B that the deceased died due to extensive burns as would be
evident from post mortem report (Ex.P-9) and the injury report
(Ex.P-3) prepared at the hospital at Dholpur at 1.45 p.m. would
show that there was smell of kerosene from the clothes of the
deceased when she was brought to the hospital. He argued
C that, therefore, it is not a case of fire accident. On the contrary,
recovery of plastic can, kerosene, pieces of burnt saree, blouse
and strings, pieces of broken bangles and broken match sticks
from the spot (Ex.P-1) are circumstances which corroborate the
dying declarations as well as the evidence of PW-2, PW-3 and
D PW-8.
7. Dr. Singhvi vehemently argued that considering the
overwhelming evidence to establish beyond reasonable doubt
that the respondent was responsible for pouring kerosene on
E the deceased and lighting the fire to the saree of the deceased,
the High Court could not have acquitted the respondent only on
the statement of Dr. R.C. Goyal (PW-4) that the deceased had
told him that she got burnt herself. He submitted that the High
Court should not have placed reliance on the evidence of the
defence witnesses DW-1 and DW-5 who had never witnessed
F the incident inside the house where the deceased was burnt
and arrived at the spot only after the incident had taken place.
He submitted that the High Court ought not to have also placed
any reliance on the evidence of PW-3 who was a Compounder
G at the general hospital at Dholpur, when the deceased herself
gave a statement (Ext.P-4) on the cause of her death.
8. Dr. Singhvi submitted that the two dying declarations of
the deceased (Ex.P-4 and Ex.P-10) were relevant under
Section 32 of the Indian Evidence Act on the issue of the cause
H of death of the deceased. He submitted that the High Court
.STATE OF RAJASTHAN v. SANTOSH SAVITA 775
[A.K. PATNAIK, J.]
could not have discarded the dying declarations only on the A
ground that they were not recorded in the presence of
Magistrate. In support of .his evidence, he cited the decision of
this Court in Laxman v. State of Maharashtra [(2002) 6 SCC
71 OJ for the proposition that there is no requirement of law that
the dying declaration is made to the Magistrate. He also cited B
the decision in Paniben v. State of Gujarat [(1992) 2 SCC 47'!]
wherein this Court has culled m.1t various principles governing
dying declarations. He submitted that if the principles of dying
declaration are taken into consideration, it is a fit case in which
this Court should rely on the two dying declarations and restore c
the conviction of the respondent by the trial court. In this context,
·he also referred to the decision _of this Court in Bhajju Alias
· Karan Singh v. State of Madhya Pradesh [{2012) 4 SCC 327]
for theproposition that a dying declaration is·a substantive
piece of evidence and the conviction of the accused can also D.
be based solely on the dying declaration.
..
:.9.·Leamed counsel for the respondent, Mr. K.L. Janja11i.
on the other hand, submitted that the deceased was admitted
· in the hospital on 05.03.1997 and her injuries were examined
E
by Dr. R.C. _Goyal (PW~) and an injury report (Ex.P-3) was
prepared and Ex.P-3 has an endorsement that deceased
herself got burnt with kerosene oil but the word "herself was ·
subsequently erased and this fact has been admitted by PW-
4 in his cross examination. He further submitted that PW-4 has
F
also deposed that he had asked the d_eceased as to how she '
got burnt and she had told him that she had herself got burnt..
He submitted that the dying declaration {Ex.P-4) was recorded
by PW-9, ASI; Shyam Lal without obtaining any certificate from
Dr. R.C. Goyal with regard to the condition of the deceased and
.,
G "·1·
''·
' ··therefore the dying declaration {Ex.P-4) cannot be .relied upon .. :1
" :1'
1_0. Mr. Janjani next submitted that immediately before the
;1
dying declaration (Ex.P~10) was recorded on 08.03.1997 an
entry was made in the' patient case sheet of the deceased in :1'
~ ;;
,.
the hospital in Gwalior' (Ext.P-13) that a homicidal incident took H
..
,.
,.1
'I
f
'i
I·
-"-·
776 SUPREME COURT REPORTS [2013] 11 S.C.R.
A place while she was preparing meal on stove. He submitted
that both Ex.P-13 and the dying declaration (Ex.P-10) has been
recorded by Dr. R. Gurmukhi (PW-11) and yet Ex.P-10 and
Ex.P-13 contained different versions about the incident in which
the deceased was burnt. He also argued that the cross-
B examination of Dr. Gurmukhi would show that the deceased was
in a bad condition on 08.03.1997 and her blood pressure was
below 40% and she was drowsy and unconscious and hence
she could not have given the statement in Ex.P-10. He argued
that PW-12 who was in-charge of the deceased at the Gwalior
c hospital denied knowledge of any statement of the deceased
having been recorded by PW-11.
11. Mr. Janjani further submitted that in fact the evidence
of PW-2, PW-3 and PW-8 was that the door of the room in
D which the deceased got burnt was closed from inside by lathi
and stones and hence none of the prosecution witnesses PW-
2, PW-3 and PW-8 could have seen as to how actually the
deceased got burnt. He submitted that therefore there is no
proof of the intent of the respondent to cause the death of the
E deceased and the respondent cannot be held guilty of the
offence of murder under section 302, IPC and he could only be
punished for the offence under Section 304, IPC. He submitted
that PW-3 has clearly stated that prior to the incident which took ·
place on 05.03.1997 she had not noticed any mischievous act
on the part of respondent. In this context, he submitted that the
F respondent has already undergone imprisonment for six years
which may be sufficient punishment for the offence under
Section 304, IPC. He further submitted that the respondent is
a married person and has three grown up daughters and will
suffer immense hardship if he is sent back for life
G imprisonment. In support of this submission, he relied on the
decision of this Court in Surendra Singh v. State of Uttaranchal
[(2006) 9 SCC 531] and State of Rajasthan v. Maharaj Singh
and Another[(2004) 13 SCC 165] in which this Court has taken
a view on similar facts that the offence committed by the
H
STATE OF RAJASTHAN v. SANTOSH SAVITA 777
[A.K. PATNAIK, J.]
accused was one under Section 304, IPC and not under A
Section 302, IPC.
12. Mr. Janjani, relying on State of Uttar Pradesh v. Banne
@Baijnath & Others. ((2009) 4 SCC 271] and State of Andhra
Pradesh v. S. Swarnalatha and Others ((2009) 8 SCC 383], B
finally submitted that the scope of interference by this Court
under Article 136 of the Constitution in a judgment of acquittal
passed by the High Court is very limited. He submitted that this
is a case where two possible views on the evidence are
possible, one that the respondent is guilty and the other that c
the respondent is not guilty and in such cases this Court has
held that if the High Court has taken a view in favour of the
accused and has acquitted him of the charges, this Court
should .iiot interfere with the same. In support of his proposition,
he relied on State of Kera/a vs. Nazar ((2005) 9 SCC 246] and D
Shri Gopal and Another vs. Subhash and Others ((2004) 13
sec 174].
Findings of the Court:
13. We have perused the first dying declaration (Ext. P-4) E
and we find therefrom that the deceased has clearly stated that
the respondent Santosh poured kerosene on her from a can
and ignited the fire by a match stick on her saree and as a result
she got burnt. The dying declaration (Ext. P-4) was recorded
by ASI, PW-9, within two to three hours of the incident at 2.30 F
p.m. on 05.03.1997 at the Female Surgical Ward General
Hospital. This dying declaration (Ext.P-4) was recorded in the
presence of Dr. R.C. Goyal, Medical Jurist (PW-4) when the
deceased was in a condition to make a statement. The High
Court appears to have doubted this dying declaration because G
PW-4 has stated in his cross-examination that the deceased
told him that she had got burnt on her own and he has also made
a note in the injury report (Ext.P-3) that the deceased had got
burnt on her own. The High Court lost sight of the fact that PW-
4 has conducted the medical examination of the deceased at H
778 SUPREME COURT REPORTS [2013] 11 S.C.R.
A the hospital at 1.45 p.m. and, as has been stated by PW-4 in
his evidence, the injury report (Ext. P-3) had been prepared
before the dying declaration (Ext.P-4) was recorded at 2.30
p.m. It is perhaps for this reason that in Ext.P-3, after the
deceased gave her statement (Ex. P-4) to PW-9 in the
8 presence of PW-4 that PW-4 corrected the injury report (Ext.P-
3) by scoring out the words "by herself'. In other words, after
PW-4 came to know later from the statement of the deceased
recorded by PW-9 in his presence that the deceased did not
get burnt by herself, he corrected the injury report (Ext.P-3). The
c High Court has failed to appreciate the evidence in this light.
14. On a reading of the second dying declaration (Ext.P-
10) recorded by Dr. R. Gurmukhi, PW-11, at the hospital at
Gwalior, to which the deceased was shifted, we find that the
0 deceased reiterated that there was a quarrel between her and
the respondent and the respondent poured kerosene oil on her
and ignited the fire and as a result she got burnt. We also find
from the evidence of PW-11 that the deceased was in a
condition to make the dying declaration on 08.03.1997. It is
E true, as has been submitted by the learned counsel for the
respondent that in patient case sheet (Ext. P-13) of the
deceased, PW-11 has written that it is a case of homicidal
burns while she was preparing meal on stove four days back,
but we find on a reading of Ext.P-13 that it is also mentioned
F "her husband's younger brother, Santosh, quarrel with her".
Hence, in the second dying declaration (Ext.P-10) also the
deceased has named the respondent Santosh as having
quarreled with her and as a result she has suffered the burn
injuries. The High Court was, therefore, not right in coming to
G the finding that there were inconsistencies in the two dying
declarations (Ext. P-4 and Ext. P-10).
15. The two dying declarations of the deceased, Ex. P-4
and Ex.P-10, are corroborated by recovery of a plastic can with
some kerosene oil, burnt pieces of saree, blouse and bangles
H as well as the broken matchsticks from the room (khaprail)
STATE OF RAJASTHAN v. SANTOSH SAVITA 779
[A.K. PATNAIK, J.]
where the incident took place. PW-2, PW-3 and PW-8 have not A
seen what actually had happened inside the room (khaprail)
because the door of the room was closed, but they have seen
the respondent coming out of the room and the deceased was
in a burnt condition. PW-2, PW-3 and PW-8, therefore, have
corroborated the statements of the deceased in the two dying B
declarations (Ext.P-4 and Ext.P-10) that none other than
Santosh was in the room in which the incident took place.
16. Section 32(1) of the Indian Evidence Act, 1872 makes
it clear that when a statement, written or verbal, is made by a c
person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death,
in cases in which the cause of that person's death comes into
question, such statement is relevant. Hence, Exts. P-4 and P-
10 are relevant for deciding as to what was the exact cause of 0
the death of the deceased in this case. In this case, Exts. P-4
and P-10 were also corroborated by both circumstantial
evidence regarding the recovery of plastic can with some
kerosene oil, burnt pieces of saree, blouse and bangles and
broken matchsticks from the place of occurrence as well as the
E
direct evidence of PW-2, PW-3, PW-4 and PW-8, who had
seen the respondent coming out of the room where the incident
took place. In our view, therefore, the High Court could not have
acquitted the respondent by the impugned judgment.
17. In State of Kera/av. Nazar[(2005) 9 SCC 246], cited F
by the learned counsel for the respondent, this Court found that
the conclusion of the High Court was based on the evidence
on record and there was no error in the appreciation of the
evidence by the High Court and for this reason this Court did
not interfere with the decision of the High Court saying that the G
view was a reasonable one taken on the basis of the evidence
on record. In this case, on the other hand, we have found that
the High Court could not have taken the view that the respondent
was not guilty at all when there were two dying declarations of
H
780 SUPREME COURT REPORTS [2013] 11 S.C.R.
A the deceased corroborated by both circumstantial and direct
evidence.
18. In Shri Gopa/ & Another v. Subhash & Others. [(2004)
13 sec 174] relied on by the learned counsel for the
B respondent, this Court found that there were certain
discrepancies in the prosecution case because of which the
High Court had doubts with regard to the participation of the
accused persons and this Court took the view that a possible
view has been taken by the High Court, which should not be
C interfered with by this Court under Article 136 of the Constitution.
In this case, on the other hand, we have found that the view
taken by the High Court was not a possible one when the name
of the respondent is taken in the two dying declarations of the
deceased as the cause of the fire in which the deceased was
burnt and the dying declarations were corroborated by both
0
circumstantial and direct evidence.
19. The High Court has taken a view in the present case
that the Magistrate should have been requisitioned for recording
the dying declaration and has considered this lapse on the part
E of the prosecution as a reason for not believing the dying
declaration. The Constitution Bench of this Court in Laxman v.
State of Maharashtra (supra) has, on the other hand, held that
there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and what is essentially
F required is that the person who records the dying declaration
must be satisfied that the deceased was in a fit state of mind.
In this case, the Constitution Bench, however, has held that
what evidential value or weight is to be attached to a dying
declaration necessarily depends on the facts and circumstances
G of each particular case. In this case, as we have found, the
deceased has made two dying declarations (Ext. P-4 and Ext.
P-10) and has consistently named the respondent as the
person for the cause of her burn injuries and the two dying
declarations are corroborated both by circumstantial evidence
H and direct evidence. Hence, even though the Magistrate was
STATE OF RAJASTHAN v. SANTOSH SAVITA 781
[A.K. PATNAIK, J.]
not requisitioned for recording the dying declarations, the High A
Court ought not to have discarded the dying declarations.
20. The only other question which remains to be decided
in this case is whether the respondent should be held guilty of
the offence under Section 302, IPC, or Section 304 IPC. A 8
person could be held to be guilty of offence under Section 302,
IPC, if he commits murder. The relevant portion of Section 300,
IPC, which defines "murder" is extracted hereunder:
"300. Murder.- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death C
. is caused is done with the intention of causing death, or-
Secondly- If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause
the death of the person to whom the harm is caused, or- D
Thirdly- If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or- E
Fourthly,- If the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as F
aforesaid.
21. Under first clause, if the act by which the death is
caused is done with the intention of causing death, the act
amounts to murder. Under the second clause, if the act is done G
with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom
the harm is caused, the act amounts to murder. Under the third
clause, if the a\.:t is done with the intention of causing bodily
injury to any person and the bodily injury intended to be inflicted H
782 SUPREME COURT REPORTS [2013] 11 S.C.R.
A is sufficient in the ordinary course of nature to cause death, the
act amounts to murder. In each of the three clauses, intention
to cause death or to cause the bodily injury is an essential
ingredient of the offence of murder. Under the fourth clause, if
the person committing the act knows that it is so imminently
B dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or
such injury as aforesaid, he is said to have committed murder.
Hence, under the fourth clause, knowledge of the act committed
C by the accused that it is so imminently dangerous that it must,
in all probability, cause death or such bodily injury as is likely
to cause death, is a necessary ingredient for the offence of
murder.
22. In the facts of the present case, PW-2, PW-3 and PW-
0
8 have not seen what exactly happened inside the room
(khaprail) in which the incident took place. The deceased has,
however, stated in the two dying declarations (Ext.P-4 and
Ext.P-10) that the respondent poured kerosene on the
E deceased and ignited fire on the saree of the deceased. The
two dying declarations (Ext.P-4 and Ext.P-10) are very sketchy
and do not narrate the details as to how the incident took place
except stating that there was a quarrel between the deceased
and the respondent. From the two dying declarations (Ext.P-4
F and Ext.P-10), therefore, it is difficult to record a finding that
the respondent had any intention to cause death of the
deceased or had any intention to cause any bodily injury. From
the two dying declarations (Ext.P-4 and Ext.P-10), it is also
difficult to come to a finding that the respondent committed the
G act knowing that it is so imminently dangerous that it must, in
all probability, cause death of the deceased. As found by the
High Court, there was some delicate relationship between the
respondent and the deceased and it is difficult to believe that
the respondent had any intent to cause death or bodily injury
H to the deceased. Rather, it appears to us that the death of the
STATE OF RAJASTHAN v. SANTOSH SAVITA 783
[A.K. PATNAIK, J.]
deceased has been caused by a reckless act of the A
respondent with the knowledge that it is likely to cause death
and for this act the respondent is guilty of culpable homicide
not amounting to murder under Section 304, Part-II, IPC. The
respondent has undergone imprisonment of approximately six
years and the incident is of the year 1997. In the peculiar facts B
and circumstances of the case, the period of imprisonment
undergone by the respondent-accused and a fine of Rs.2,000/
- are sufficient punishments under Section 304 Part-II, IPC.
23. The appeal of the State is allowed. The impugned C
judgment of the High Court is set aside and the respondent-
accused is held guilty of the offence under Section 304 Part-II,
IPC, and is sentenced for a period of six years undergone by
him and a fine of Rs.2,000/- to be paid within two months from
today, failing which he will be liable for imprisonment for a further
0
period of two months.
K.K.T. Appeal allowed.
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