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Act of causing injury where it will in all probability cause death is punishable

The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC. (Para 10)


Nagabhushan v. The State of Karnataka

Criminal Appeal Nos. 443 of 2020.

Decided on March 8, 2021


A two-judge bench comprising of Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah decided the present case. The Court dismissed the appeal by the accused, stating that the judgement given by the High Court was correct, convicting the accused for the offence punishable under Section 302 of the IPC.


The present appeal has been preferred by accused No 1, who married Rekha (now deceased), daughter of PW3 and PW4. She was subject to mental cruelty and her parents were constantly asked for dowry, which they gave on two different occasions. On 24.06.2010 during his fight with Rekha, the accused poured kerosene on her and lit the fire. She was rushed to the hospital, where Exhibit D2 took her statement on 25.06.10 and another statement was recorded by Exhibit P5 on 27.06.10. The investigation officer filed the charge sheet against the accused punishable under Section 498A and Section 302 read with Section 34 of IPC.

The Trial Court, where the prosecution examined 14 witnesses, acquitted the accused on the ground of finding contradiction in two dying declaration, Exhibit P5 and Exhibit D2. The State of Karnataka filed an appeal in the High Court. The Court reversed the judgement and convicted the accused no1 for the offence punishable under Section 498A and 302 read with Section 34 of the IPC. The Court relied upon the dying declaration given by the deceased to Exhibit P5 while deciding the case. Aggrieved by the decision of the High Court, the accused filed an appeal before the Supreme Court.


The learned Counsel for the accused argued that the High Court made a grave error when reversing the decision given by the trial court. Adding to that, the Counsel stated that the High Court exceeded its jurisdiction vested in it under Section 378 of the Cr.P.C. while deciding the case. The learned Counsel submitted that the High Court believed the dying declaration by Exhibit P5 and the dying declaration by Exhibit D2 was not appreciated, which was ought to be done as it was recorded on 25.06.10, just a day after the incident. In the first dying declaration, the deceased had stated that it was an accident. The Counsel also contended hat the High Court neglected the possibility of the deceased being tutored by her parents to make a statement against the accused in the second dying declaration recorded by Exhibit P5, thus the accused is entitled to the benefit of the doubt.

The learned Counsel further contended that during the time of the incident, there was no power in the house and the deceased went to light up the stove, where she spilt some kerosene on the floor. While she was cooking the food with help of a candle, which felt on the floor on the spilt kerosene, igniting her body. She called for help and when the accused no1 tried to help her, he suffered some burns on his right hand; this was considered by the trial court but was rejected by the High Court. Adding further, the Counsel submitted that only in a case where the findings recorded by the learned trial Court are found to be perverse, the interference by the appellate court against the order of acquittal is warranted.


The Supreme Court first considered the scope of Section 378 of Cr. P.C. and the law on the appeal against acquittal, the court observed various judgement like in the case of Babu v. the State of Kerala, (2010) 9 SCC 189, Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10 and Vijay Mohan Singh v. the State of Karnataka, (2019) 5 SCC 436. Applying the law laid down by these various past judgments, the Court stated:

In the aforesaid decisions to the facts of the case on hand and the findings recorded by the High Court, the High Court has specifically observed and held that the finding recorded by the learned trial Court discarding and/or not believing the dying declaration (Exhibit P5) is perverse and contrary to the evidence on record. The High Court has given cogent reasons while believing the dying declaration (Exhibit P5) and has also considered in detail what is stated in the later dying declaration (Exhibit P5), vis-à-vis, the medical evidence and the injuries sustained by the deceased. Therefore, as such, the High Court has not committed any error in reappreciating the entire evidence on record and thereafter interfering with the judgment and order of acquittal passed by the learned trial Court, having found the finding recorded by the learned trial Court perverse. (Para 6)


The Court was of the view that the High Court considered the dying declaration recorded by exhibit P5 as it was backed by circumstances such as the injuries suffered by the deceased and the postmortem report. It held:

The High Court has also taken note of the fact that in the 14second dying declaration, the deceased has explained her first statement that it was a case of accident and she categorically stated in the second dying declaration that at the time when she gave first statement that it was a case of accident, she was given threats by the appellant herein – original accused no.1 that he will kill her children also. She also stated in the second dying declaration that after her parents came, she got the courage to tell the truth. Therefore, as such, the High Court rightly believed the second dying declaration – Exhibit P5. (Para 7)


The Court, looking over the contention of the accused that he tried to extinguish the fire, relying on the case of Santosh v. State of Maharashtra, (2015) 7 SCC 641, where a similar situation had occured and the action of the accused fell under clause (4) of Section 300 IPC, stated:

After pouring kerosene on the deceased and thereafter setting her ablaze, thereafter merely because the accused might have tried to extinguish the fire will not take the case out of the clutches of clause fourthly of Section 300 of the IPC. The act of the accused pouring kerosene on the deceased and thereafter setting her ablaze by matchstick is imminently dangerous which, in all probability, will cause death. Therefore, the High Court has rightly convicted the accused for the offence under Section 302 IPC. (Para 10)


The present appeal was dismissed.


View/Download Judgement : Nagabhushan v. The State of Karnataka


Utkarsh Kumar Jayaswal



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