Hidayatullah, J.
1. The respondent Ram Prasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of session under S. 302 of the Indian Penal Code. He was convicted by the Sessions Judge under S. 324 of the Code and sentenced to rigorous imprisonment for six months. The State Government then filed an appeal against his acquittal under S. 302, Indian Penal Code and also an application for revision for the enhancement of the sentence passed on him. The High Court convicted him under S. 304 Part II and sentenced him to 4 years rigorous imprisonment; concurrently the application for revision was dismissed as infructuous. The State Government has now filed this appeal and contends that the conviction of the respondent should have been under S. 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court.
2. The facts of the case are as follows : Run Prasad was living with his mistress Mst. Rajji at Mannaur in District Panna. Evidence shows that they were having quarrels for some time previous to the incident which took place on May 24, 1963. On that date, Ram Prasad intended leaving Mannaur for a place called Harsa, because his cattle used to be stolen at Mannaur. Mst. Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking her to Harsa, alternatively, she wanted that he should leave her at Mannaur and give her some cattle for her maintenance. To either course Ram Prasad was unwilling. Matters came to a head on the night of the 24th when Ram Prasad ordered a van in which he began putting his luggage with a view to leaving for Harsa. Mst. Rajji then went to some of the village panchas and brought them over for intercession. It is these panchas who have now appeared as witnesses to the incident that took place immediately afterwards. To all the panchas Mst. Rajji again narrated the story of her grievance and Ram Prasad insisted on taking her sway. As Ram Prasad would not give in, nor would Rajji, the panchas could do nothing further and some of them went away to their lodgings which were close to the residence of Ram Prasad. Evidence then shows that Ram. Prasad approached Mannulal (P. W. 1) with a lantern in one hand and an aluminium bowl in the other. He asked for some kerosene oil, because oil in his lamp had run down, but Mannulal did not give any as he had none to spare. Immediately thereafter Ram Prasad went back to his room and a cry was heard from Mst. Rajji that Ram Prasad had put kerosene oil on her and set her alight. Mannulal, Holke and others immediately arrived on the scene and put out the fire, but before that happened, Mst. Rajji was extensively burnt She kept on accusing Ram Prasad with the deed, but Ram Prasad, according to the witnesses, did not say anything in protest. On the other band, when he was questioned by the panchas as to why he had done so, he retorted that Mst. Rajji was his wife and what had they to do with the matter and added that they might even get him hanged. Mst Rajji was then taken on cycle to the police station house although the hospital was on the way. Evidence shows that Mst. Rajji insisted on being taken to the police station house first. There she made the statement which is Ex. P-7, in which she charged Ram Prasad with her condition and stated also that he had put kerosene of] on her and set her clothes on fire. Later she was removed to the hospital where separately to two doctors in attendance (Dr. Mrs. Ghosh and Dr. M. L. Gupta) she again stated that she was burnt by her husband who had put kerosene oil on her. Dr. Ghosh Doted on the bed head ticket homicidal burn by husband. The nest day, Met. Rajji died.
3. Prosecution produced the panchas as witnesses to the earlier transaction in which Mst. Rajji and Ram Prasad had disagreed over going to Harsa and also in proof of the statement of Mst. Rajji that Ram Prasad had put kerosene oil on her and set her clothes alight. They have also through the same witnesses proved the conduct of Ram Prasad when Mst. Rajji accused him of having committed the outrage. The prosecution as further relied upon the statements made by Mst. Rajji in Ex. P-7 and to the two doctors who have deposed in the court.
4. The High Court and the court below have agreed in holding Run Prasad responsible for the outrage. They have accepted the three dying declarations as wall as the evidence of the eyewitness in support of the prosecution case. They how only differed as to the offence disclosed by this evidence.
5. We issued notice to the respondent to show cause against the appeal of the State Government. Although he received the notice, he did not make any arrangement for his own representation in this Court. We accordingly invited Mr. O. P. Rana to appear as amicus curiae on behalf of the respondent at State expense. We allowed Mr. Rana to argue not only about the nature of the offence but also on merits with a view to point out to us any circumstance proving that the conviction itself was wrong. Although there is no provision to this effect in the rules of this Court, we thought it safer to follow the procedure laid down for the High Court in the Code of Criminal Procedure when it hears a matter after notice of enhancement of sentence. It seemed to us to be both fair and just to give the accused a chance to prove to the satisfaction of this Court that the offence itself had not been brought home to him.
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(After discussing the evidence their Lordship proceeded):-
8. The question then arises, what was the offence which Ram Prasad can be said to have committed. The offence of causing injury by burning is a broad spectrum which runs from S. 324 causing simple injury by burning through S. 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad falls within culpable homicide not amounting to murder or the higher offence of murder itself. Here we see that death has actually been caused by the Criminal act; in other words, there has been homicide and since it is not accidental or suicidal death responsibility for the homicide, in the absence of any exceptions or extenuating circumstance, must be borne by the person who caused it, The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder. The question is whether the offence falls in any of the clauses of S. 300 Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst. Rajji although it might wolf be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of S. 300, but all the other clauses also. We do not wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst. Rajji. That would be a matter of speculation. In our opinion, this matter can be disposed of with reference to clause fourthly of S. 300 That clause reads as follows :-
"..........culpable homicide is murder ... 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 or causing death or such injury as aforesaid."
It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause.Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such five spreads rapidly and burns extensively.
No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of S. 300, Indian Penal Code, in other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.
9. Mr. Rana contended that there was no proof from the medical reports that kerosene oil was employed because the wounds did not smell of kerosene. Apart from the fact that both the courts have held that kerosene was so employed, the evidence is quite satisfactory that kerosene was in fact poured upon the victim before the clothes were set on fire. The omission of this fact in the medical reports is not of consequence.
10. We accordingly allow this appeal, substitute the conviction under S. 302 of the Indian Penal in place of the conviction under S. 304 Part II and sentence Ram Prasad to imprisonment for life.
11. Order accordingly.
