Case Note & Summary
This criminal appeal arose from the conviction of three appellants under Section 302 read with Section 34 of the Indian Penal Code for the murder of Shakrabhai Prembhai Harijan by setting him on fire after pouring kerosene on him. The incident occurred on 28 December 1980. According to the prosecution, about ten Patels of the village went to the field of Jaswant Singh and brought the deceased to the Panchayat Office on an allegation of theft of a wrist-watch and a blanket. Five of them, including the three appellants and two acquitted accused, allegedly took the deceased into a room, poured kerosene on his person, and set him ablaze. The deceased was later taken to the Osri of the Panchayat Office where the fire was extinguished. His brother, Ramanbhai PW5, arrived and was told by the deceased that one of the five accused had poured kerosene and his clothes were set on fire with matchsticks, after which appellant Bhagubhai dragged him out. The police were informed by Ranchhodbhai PW12, and the injured was removed to hospital. An Executive Magistrate recorded the dying declaration Ext.37 between 12:15 and 12:45 PM. The trial court, relying on this dying declaration, convicted the three appellants under Section 302/34 IPC and sentenced them to life imprisonment, while acquitting six co-accused including accused Nos.8 and 9. The High Court dismissed the appellants' appeals and the State's appeal against acquittal of accused Nos.8 and 9. In the Supreme Court, the appellants contended that the dying declaration was unreliable, that appellant No.1 should receive the same benefit of doubt as the acquitted accused because he had only poured kerosene and not ignited the matchstick, and that his conduct of informing the police and calling the ambulance indicated innocence. They alternatively argued that the offence fell under Section 304 Part I or II instead of murder. The Supreme Court rejected these submissions. It found the dying declaration credible and consistent with medical evidence. The court noted that appellant No.1 was named in both the oral dying declaration to PW5 and the recorded declaration, unlike the acquitted accused who were named only in the recorded declaration. It held that common intention under Section 34 did not require each accused to commit the same overt act. The defence of innocence based on informing police and calling ambulance was found factually false because PW12 had informed the police and PW17 had called the ambulance; the claim of covering the victim with a quilt relied on a hostile witness whose evidence was rightly rejected. Medical evidence showed 76% deep burns with kerosene smell and internal injuries, including liver laceration and haemorrhage, sufficient in the ordinary course to cause death. The court concluded that the offence was nothing short of murder and dismissed all three appeals, cancelled bail bonds, and directed the appellants to surrender to serve their sentences.
Headnote
A) Criminal Law - Dying Declaration - Reliability of Dying Declaration Recorded by Executive Magistrate - Indian Penal Code, 1860, Sections 302/34 - The Supreme Court found no infirmity in dying declaration Ext.37 where the deceased categorically stated that the three appellants and accused Nos.8 and 9 brought him to the Gram Panchayat Office and poured kerosene on him; the declaration was corroborated by medical evidence of 76% burns and kerosene smell. Held that the dying declaration was credible and sufficient to uphold conviction (Paras 6,8). B) Criminal Law - Common Intention - Section 34 IPC - Overt Acts of Individual Accused - Indian Penal Code, 1860, Section 34 - The court reasoned that appellant No.1 could not be placed on the same footing as acquitted accused Nos.8 and 9 because even according to the oral dying declaration to PW5, appellant No.1 had poured kerosene oil and appellants Nos.2 and 3 had ignited match-sticks; this established his active participation in the common intention to commit murder. Held that not all accused need commit the same overt act for Section 34 liability (Para 6). C) Criminal Law - Benefit of Doubt - Distinction Between Accused Based on Evidence - Indian Penal Code, 1860, Sections 302/34 - The trial court and High Court gave benefit of doubt to accused Nos.8 and 9 because PW5 did not name them in the oral dying declaration, but appellant No.1 was named in both oral and recorded dying declarations for pouring kerosene and throwing the victim out; thus no doubt existed as to his role. Held that the appellant was not entitled to the same benefit (Para 6). D) Criminal Law - Defence of Innocence - Conduct of Accused in Assisting Victim and Informing Police - Indian Penal Code, 1860, Sections 302/34 - The appellant No.1 claimed he informed police and called ambulance, indicating innocence, but evidence showed PW12 gave information to police and PW17 called ambulance; his act of covering the victim with a quilt was based on hostile witness PW10 whose evidence was rightly rejected. Held that the defence was wholly false and did not indicate innocence (Para 7). E) Criminal Law - Murder vs Culpable Homicide - Intention to Cause Death - Indian Penal Code, 1860, Sections 302, 304 Part I/II - Given the deceased was forcibly taken, confined, doused with kerosene and set ablaze, resulting in 76% deep burns with kerosene smell and internal injuries including liver laceration and haemorrhage, the court held the offence was nothing short of murder; the alternative plea for conviction under Section 304 was rejected. Held that the injuries were sufficient in ordinary course to cause death and indicated murderous intent (Para 8).
Issue of Consideration
Whether the dying declaration Ext.37 was reliable to convict the appellants; whether appellant No.1 deserved the same benefit of doubt as acquitted accused Nos.8 and 9; whether the offence fell under Section 304 Part I or II IPC instead of Section 302/34 IPC.
Final Decision
The three criminal appeals were dismissed. The convictions and life sentences under Section 302/34 IPC were upheld. The appellants were on bail; their bail bonds were cancelled and they were directed to surrender themselves to serve out the sentence.
Law Points
- Dying declaration recorded by Executive Magistrate is credible when consistent with medical evidence and oral declaration
- common intention under Section 34 IPC does not require identical overt acts
- pouring kerosene and dragging victim out establishes participation
- defence of assisting victim must be supported by credible evidence
- not hostile witness
- 76% deep burns with kerosene smell and internal injuries indicate intent to cause death
- making offence murder under Section 302
- not Section 304 IPC.
