M.B. Shah, J.
1. This appeal arises out of the conviction of the appellant - a primary school teacher - who by his stupid and misguided act, may be out of desperation or frustration has taken life of one Kulinchandra J. Purohit, Administrative Officer, Education Department, District Panchayat, Broach, in a most tragic manner. The appellant was convicted by the learned Sessions Judge, Broach in Sessions Case No. 60 of 1979 decided on 28th December 1979, under Section 302 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and a fine of Rs. 500/-, in default of payment of fine rigorous imprisonment for 3 months, for the offence under Section 436 of I.P. Code rigorous imprisonment for 10 years and a fine of Rs. 500/-, in default of payment of fine rigorous imprisonment for 3 months, for the offence under Section 449 of I.P. Code rigorous imprisonment for 10 years and a fine of Rs. 500/- in default of payment of fine rigorous imprisonment for 3 months, for offence under Section 450 of I.P. Code rigorous imprisonment for 21/2 years and a fine of Rs. 250/-, in default of payment of fine rigorous imprisonment for one month, for offence under Section 452 of I.P. Code rigorous imprisonment for 21/2 years and a fine of Rs. 250/-, in default of payment of fine rigorous imprisonment for one month and for offence under Section 342 I.P. Code rigorous imprisonment for one month. The learned Judge has ordered all the substantive sentences to run concurrently.
2. The appellant-accused was serving as primary school teacher at village Sarsa, Taluka Zagadia, District Broach. The appellant was on leave from 19th February to 26th February 1979. Deceased Kulinchandra J. Purohit was the Administrative Officer District Education Office, District Panchayat, Broach at the relevant time.
3. The short prosecution story as narrated by complainant Jayantilal Acharatlal Gandhi, who is serving in the Education Department as a Senior Clerk, is that on 26th February 1979 when he was working in his office which is situated adjoining to the Office of the Administrative Officer, he noticed smoke emitting from the chamber of Mr. Purohit, Administrative Officer, at about 11-45 to 12-00 noon and the smoke was also noticed by other clerks who were working in the Administrative Branch. According to his say, adjoining to his table one Hemaben Mehta was also sitting and also on the eastern side of his table there is a table of Head Clerk Sbri Mohanbhai Patel. As all these persons saw smoke emitting from the chamber of the Administrative Officer they raised shouts and they tried to go to the cabin of Mr. Purohit, but they were unable to go inside because of the smoke and fire. Hence they tried to go to the chamber by the eastern door of the said office. As soon as they reached near the door they saw the appellant in white clothes having a burning torch in his right hand and a plastic tin in his left hand. From the said tin he poured petrol on the table of Head Clerk Shri Mohanbhai and set fire by the burning torch. Because of this they were not in a position to go in the chamber of the Administrative Officer. Subsequently from the door which is situated on the southern direction they went out of the office. As they got out of the office described as Establishment Branch of the Education Department, they again saw the accused having burning torch in his hand and petrol tin in his other hand and igniting fire in the Accounts Section of Education Branch. The said room of Accounts Section is situated in the eastern direction of the Establishment Branch of the Education Department. Thereafter they got down from the stair-case and they were proceeding to main entrance which is situated on the northern direction. Again in the chawk in the front of main entrance accused after pouring petrol ignited fire. Subsequently in the chawk which is situated just between the new building and old building of the District Panchayat, one Prabhatsinh Makwana, along with two other persons, caught hold of the accused.
4. Subsequently some other persons went into the chamber of the Administrative Officer Mr. Purohit. They saw Mr. Purohit and he was found burnt from head to foot and was lying on the floor with his head resting on the second shelf of wooden rack situated near the western side wall of his chamber. In the meantime accused, who was caught, was handed over to the police. The deceased was rushed to the Civil Hospital, Broach where he succumbed to his injuries at 3-30 p.m.
5. In the Hospital he was treated by Dr. N.M. Patel and Dr. K.T. Patel. While the treatment was going on an Executive Magistrate was called for who recorded the dying declaration in the presence of the aforesaid two doctors. During that time the wife of the deceased was also informed and she also came to the Hospital. She also inquired from the deceased with regard to the incident and she was informed that 'he was burnt'.
6. After carrying out the necessary investigation the charge-sheet was submitted before the Judicial Magistrate, First Class, Broach and subsequently the case was committed to the Sessions Court and as stated above charge was framed against the accused for committing offences punishable under Section 302, 449, 450, 452, 436 and 341 of the Indian Penal Code.
7. The prosecution had examined in all 44 witnesses. Out of the said witnesses, there are 8 witnesses who are in service of the District Panchayat, Broach and who were in the office at the relevant time. The prosecution has further examined two doctors who have treated the deceased and also the Executive Magistrate who recorded the dying declaration of the deceased. The prosecution has further examined the widow of the deceased Mr. Purohit and other witnesses. Thereafter the appellant-accused has examined himself as defence witness No. 1 at Ex. 162, wherein he has admitted the aforesaid incident of ignitting fire except the incident pertaining to Mr. Purohit. He had admitted having thrown petrol tin towards the chamber of the deceased from the spot which is situated at a distance of 15 feet or so from the said chamber and thereafter ignitted it. His statement under Section 313 of the Criminal Procedure Code was also recorded, wherein he has stated the same facts. He has narrated the long history of his service and alleged injustice meted out to him by the Department and in particularly by the Administrative Officer of the District Panchayat, Broach.
8. According to the accused-appellant, he was working as an assistant teacher in the primary school since 1962. For 14 years he has worked as an assistant teacher in Vagra Taluka in a primary school of village Gandhar. On 25th June 1976 his wife had just delivered a child and he was transferred from village Gandhar to primary school situated at village Sigam in Jambusar Taluka. The transfer order was passed on 2nd July 1976 and there were heavy rains during that time. Against his transfer order he made representations to the Administrative Officer, Mr. Joshi and requested that his transfer order may be cancelled or may be delayed for some time because of the difficulties as his wife had delivered a child. He went to the Office of the Administrative Officer along with his wife mostly on 5th or 6th July 1976. His representations were turned down by the concerned Officer and as alleged in the deposition by the appellant in rude terms. As his representations were turned down he was forced to join his duty at the new station from 10th July 1976.
9. At village Sigam there were some troubles for him and his wife because of certain disputes with his colleague teachers. He, therefore, sent an application, Ex. 10, dated 21st March 1978, to the Education Minister at Gandhinagar and the copy of the said application was also sent to the Administrative Officer which is produced at Exhibit 8. In the said application he cited numerous instances to show that he and his wife were harassed. He also forwarded an application Exhibit 9 to the Home Minister wherein he had complained that some teachers of the Sigam School are threatening other teachers. We are not entering into the details of grievances made by the appellant-accused. Subsequently a show-cause notice was issued by the Department asking the appellant why he approached directly to the aforesaid two ministers and the appellant was asked to show cause why one increment of the appellant and his wife with future effect should not be stopped. The said show-cause notice is Exhibit 14. The appellant and his wife gave their explanations as per Exhibits 15 and 16. Thereafter he demanded certified copy from the Administrative Officer's Office of the papers pertaining to an inquiry started by the said show-cause notice. Reminder was also sent to the Office of the Administrative Officer for getting certified copy but the appellant was not supplied with the certified copy by the Department.
10. Again an incident had occurred in the presence of the Education Inspector Smt. Pushpaben Thakkar when she visited the school on annual inspection, on 20th and 21st March 1978. It is alleged that one of the teacher of the other group had threatened the appellant that he would uproot his hairs. With regard to this incident inquiry was made and the Taluka Development Officer by his report Exhibit 11 dated 26th April 1978 had opined that as all the teachers are fighting inter se hence all of them should be transferred to other Talukas.
11. In the mean time a Chapter case before the Executive Magistrate was also initiated and a complaint under Section 509 of the Indian Penal Code was also lodged by the accused before the Judicial Magistrate, First Class at Jambusar.
12. Again the accused along with his wife was transferred from village Sigam to village Sarsa in Zagadia Taluka as Head Master in the school. By the said transfer the accused felt that he and his wife are singled out and are sent out of Taluka and others are allowed to remain there in the same school.
13. At village Sarsa also he had some difficulties. There was an incident regarding applying stamps on some documents and for the said incident the accused had to seek permission from the Administrative Officer for filing Chapter case which be filed on 12th October 1978. Thereafter he addressed a letter. Exhibit 26, to the Education Minister, wherein he made grievances that on all the above stated 3 villages where he was serving, he was harassed by the Office of the Administrative Officer and even though he was working honestly and deligently injustice was done to him. He prayed for personal hearing for 30 Minutes. Finally the Administrative Officer intimated the appellant that he would be heard personally on 5-2-79. It is the say that he could not remain present on 5-2-79 as he received the intimation only on said day. He requested the Administrative Officer to deal with his application addressed to the Education Minister as he deems fit. As per the noting on the back of Exhibit 27, it appears that it was decided to give another date of hearing to the accused and on 26th February 1979 this incident had happened. In short the appellant althroughout felt that even though he and his wife were engaged in pious activity of educating children, were doing social service of uplifting backward class, trying to remove untouchability and were doing other social services, yet they were harassed by those persons who were shirking work and who were indulging in all sorts of undesirable practices and who were totally neglecting the future of children. According to the say of the appellant, he came to Broach on 9-2-79 and he issued pamphlets that he would burn the office of the Education Department on 26-2-79 and that he would burn himself on that day. According to the defence of the appellant he took the aforesaid action because of his grievances against the Office of the Administrative Officer and because of the mental torture he had suffered at the hands of the said office.
14. Most of the case of the prosecution story is admitted by the appellant-accused in his deposition as well as in his statement under Section 313 of the Criminal Procedure Code. The prosecution has examined the following witnesses from the Office of the District Panchayat, Broach. Before discussing the evidence of the prosecution witnesses, we would refer to the topography of the scene of the offence which is made clear by Ex. 57, Panchnama of the scene of the offence and the panch witness P.W. 11, Exh. 75, Muljibhai B. Sayania and also the map Ex. 5 and by the evidence of Circle Officer Jayantilal Shivram Vankar P.W. 1, Ex. 4. The Office of the Administrative Officer is situated in the premises of District Panchayat Office, Broach. The office of the District Panchayat is having 2 buildings, one is new and the other is an old building. There are 2 entrance gates leading to the said compound of the District Panchayat, Broach. One gate on the western side leads to the new building and the other on the eastern side gate leads to the old building. To the south of both these buildings there are other structures belonging to the said Panchayat leaving open space in between. The incident had occurred in the old building as the office of the Administrative Officer, Education Department, is situated on the first floor of the said old building. On the northern side of the ground floor there is one stair-case and on the first floor one would enter facing north in an open portion which is described as balcony. There is one door in the eastern direction which leads to the Establishment Branch of the Education Department. From the stair-case there is another door in the northern direction by which one can enter a closed varandah which is situated on the northern direction. From the said varandah one can enter in the chamber of the Administrative Officer which is situated on east-north direction of the said premises. The said chamber is having another door which is facing in the south and which has a push door which is in the Establishment Branch. The Administrative Officer's chamber can be approached either from the Establishment Branch room which is situated in the southern direction or from the varandah which is situated to the east of the said chamber. The Establishment Branch is also having another door on the eastern side which leads to the stair-case. As per the said map and panchnama there is one table of the Head Clerk Shri Mohanbhai, admeasuring 5' x 5' and also the table of complainant Jayantilal Acharatlal Gandhi. From the Establishment Branch one can also go to the Accounts Section of the Education Branch which is situated on the eastern direction. On the ground floor in between the old building and new building there is open space which is known as Chowk.
15. The prosecution has led evidence to the effect that (1) witnesses had seen smoke emitting from Administrative Officer's chamber, (2) pouring of petrol on the table of Mobanbhai Veribhai, Head Clerk of the Establishment Branch situated just adjoining to chamber of the Administrative Officer and also ignitting it by burning torch by the accused, (3) pouring of petrol and ignitting it in Accounts Branch by the accused, (4) the accused further got down from the said first floor and stood near the main entrance door and thereafter poured petrol and ignitted it, (5) thereafter in the Chowk the accused was caught by Prabhatsinh Makwana and 2 other persons.
16. The other evidence is with regard to removal of deceased Mr. Purohit from his chamber and taking him to the Civil Hospital, Broach where he was treated by Dr. Krishnakant Tribhovandas Patel and Dr. Naranbhai Manibhai Patel. In the Civil Hospital dying declaration of the deceased was recorded by Executive Magistrate, Hiralal Becharbhai Varmora P.W. 32, Ex. 138. Further the prosecution has led evidence of Chandrikaben Kulinchandra Purohit, widow of the deceased who is P.W. 31, Ex. 137, before whom it is stated that the deceased made oral dying declaration. The rest of the prosecution evidence deals with further investigation part which shows that the accused came to Broach on 19-2-79 and further what the accused had done from 19-2-79 to the date of incident. The said evidence is not much relevant for deciding the point involved in this matter. As per the evidence of Jayantilal Acharatlal Gandhi, P.W. 2, Ex. 6, who is serving in the Establishment Branch of the District Panchayat, Education Department, his table is situated just 2 feet away in southern direction from the Administrative Officer's chamber. On the date of the incident at about 11-45 a.m. Hemaben raised cries that smoke was emitting from the chamber of the Administrative Officer Shri Purohit and that there was fire in the said room. As he saw smoke and fire he along with others tried to go in the said chamber by the door which is in southern direction falling in the Establishment Branch room. As they were not in a position to go because of fire and smoke they tried to go to the chamber of the Administrative Officer by eastern door. As soon as they reached near the door they saw the accused with burning torch in his right hand and a petrol tin in his left hand. Thereafter immediately the accused poured petrol on the table of Shri Mohanbhai, Head Clerk and ignitted it by burning torch. According to him, therefore, it was not possible to go to the Administrative Officer's chamber but they went outside the said room from the other door which is on the southern side. Again they saw the accused pouring petrol and ignitting it by burning torch in the Accounts Branch. Therefore, all of them got down from the first floor and they were standing on the Ota which is situated on the main entrance of the building. Again the accused came there just near to the main entrance and again he repeated the act of pouring petrol and ignitting it by burning torch. The rest of the evidence of Jayantilal is with regard to the transfer of the accused from various places and the representations made by the accused to the Department. In the cross-examination the main defence was that the accused had raised shouts that he was burning the Education Department and persons should run away from the said office. That suggestion of the defence is denied by the witnesses. He had produced number of documents which deals with the transfer and representations made by the accused. With regard to the last representation, it is the say of the witness that it was decided by the Department to hear the accused on or about February 26, 1979 and the incident had happened on 26th February 1979.
17. The prosecution has further led the evidence of P.W. 8, Ex. 46, Mohanbhai Veribhai, who is Head Clerk in the Establishment Branch. He also deposed to the same facts as deposed by the complainant.
18. Then there is evidence of Hemaben A. Mehta, P.W. 9, Exh. 47. According to her say at about 11-45 a.m. she saw smoke emitting and fire in the office of the Administrative Officer, she raised cries. She immediately tried to get out of her office and when she was going on the ground floor by the stair-case, she saw the accused with burning torch and petrol tin. She also saw the accused pouring petrol on just near the main entrance and ignitting it. She also saw in the chowk just in between the new building and old building that the accused was caught by Prabhatsinh Makwana and Jesingbhai Makwana.
19. Then there is evidence of P.W. 30, Ex. 132 of Abdul Majid Mohmad Patel, who is working as an Accountant in the Accounts Branch of Education Department in the office of the District Panchayat, Broach. He saw the accused pouring petrol just near the main entrance and also ignitting it. Similar is the evidence of Ibrahim Umarji, P.W. 13, Ex. 78. The prosecution has further led the evidence of Prabhatsinh Bavabhai Makwana, P.W. 3, Ex. 41, who is member of the Co-operation and Producers Committee of the District Panchayat, Broach. According to him he had seen the accused with a burning torch and petrol tin in his hand in the chowk. The accused rushed towards him when he saw and tried to press the burning torch against his right hand ankle. At that time he raised his bag which he was having in his hand and tried to protect him. He further deposes that at the time the accused bent down and immediately he caught the accused. He further deposes that Jesingbhai Makwana and Sabirbhai also caught the accused at that time and finally the accused was handed over to the police. The evidence of P.W. 3, Prabhatsinh is corroborated by the evidence of Jesingbhai Kalidas Makwana who is P.W. 5, Ex. 43 and P.W. 6, Ex. 44, Mahmad Sabir Hasanbhai Munshi. The prosecution has further led the evidence of Rustam Valli Lalan, P.W. 7, Ex. 45 and Abdul Musa, P.W. 10, Ex. 48, who is working in the Statistics Branch of Accounts Branch of the District Panchayat, who also corroborates the evidence of Prabhatsinh Makwana, Sabbirbhai Patel and Jesingbhai.
20. The prosecution has further led the evidence of Dr. K.T. Patel, P.W. 27, Ex. 125, who treated the deceased at the Civil Hospital, Broach. He was working as Medical Officer, Civil Hospital, Broach on 26th February 1979. According to him when the treatment was in progress, Taluka Magistrate had come there and the Taluka Magistrate had inquired from him whether the patient was conscious or not. Thereafter he had also signed the certificate to that effect that the patient was conscious. The prosecution has further led the evidence of Dr. Naranbhai Manibhai Patel, P.W. 35, Ex. 143, who has deposed that along with Dr. K.T. Patel, he was treating Shri Purohit. According to him the Executive Magistrate had come there in the Hospital when he was treating Shri Purobit. The Executive Magistrate had inquired from him with regard to the consciousness of the patient and he had opined that the patient was conscious. He had also endorsed on the top of the paper given by the Executive Magistrate to the effect that the patient was conscious. In the cross-examination it was suggested to him that looking to 100 per cent burns and charring of skin, blisters and other condition of the patient, the patient may be in a fit condition to give coherent replies. He agreed that the patient in the said condition would be in a confused state of mind. In cross-examination he had agreed that a patient who might be conscious may not be in a fit state of mind to give a statement.
21. The prosecution has further led the evidence of Hiralal Becharbhai Varmora, Executive Magistrate, who is P.W. 32, Ex. 138. According to him after inquiring from the Doctors he had started recording dying declaration at 12-35 p.m. and had completed it at 12-50 p.m. According to him he had recorded the statement of the deceased as per his say. In the cross-examination he was required to admit that he had added word such as '(E' and also certain other words as admitted by him and as discussed by the learned Judge in para 1436 of his judgment. At present we are not discussing the rest of the evidence of the prosecution witnesses because the said evidence would not be material for deciding the point involved in this matter as the defence had led his evidence by examining the appellant-himself at Ex. 162. In his evidence as stated earlier the appellant had admitted most of the prosecution version except that he had entered the chamber of the Administrative Officer and poured petrol and ignitted it. According to his say, he raised shouts stating that he intended to burn the Education Department and, therefore, everyone should leave the office. It is his further say that he went just near the Administrative Officer's Chamber and from the varandah he first lighted the torch in the south-east corner of the said varandah and thereafter poured petrol from the tin and lighted the said torch. He placed the said torch in the south-east corner of that Varandah. He threw the petrol tin from a distance in the office of the Administrative Officer and also threw the lighted torch. He further states that he thereafter went to the Establishment Branch and poured petrol and ignitted it. Again he went to Accounts Branch and after pouring petrol he ignitted it. On the ground floor also just near the main entrance he did the same thing. According to him he never intended to do any violence to anybody. His further say was that after burning the Education Department, he wanted to commit self-immolation. In his evidence he has narrated what type of injustice was meted to him by the Education Department. He has produced number of documents. In the crossexamination he had admitted that he had gone from the eastern door just near the chamber of the Administrative Officer and that he had seen the Administrative Officer's cabin previously. He had thrown petrol tin and ignited it while standing in the varandah.
22. Keeping apart dying declaration for the time being, in view of the aforesaid evidence of the prosecution witnesses and the evidence of the accused, it becomes amply clear that (i) the accused had poured petrol in the chamber of the Administrative Officer by throwing petrol tin and thereafter ignited it by throwing burning torch: (ii) he had further poured petrol on the table of Mohanbhai Veribhai in the Establishment Branch and ignited it in the presence and in front of P.W. 2 Jayantilal and P.W. 8 Mohanbhai; (iii) he did the same thing in the Accounts Branch; and (iv) after getting down from the first floor, on the main entrance gate he also poured petrol and ignited it; there he was caught by Prabhatsingh and other persons.
23. The learned Counsel Shri D.K. Shah, appearing on behalf of the appellant, had contended that as per Section 300 of the Indian Penal Code the act of the appellant would not amount to murder because it does not fall within the 4th Clause of Section 300 of the Indian Penal Code and hence the appellant cannot be convicted under Section 302 of the Indian Penal Code for committing murder of Shri Purohit, Administrative Officer, Education Branch, District Panchayat Broach. It was contended by him that the appellant at the most could be convicted only under Section 304 of the Indian Penal Code. According to him the act of the appellant would not be imminently dangerous and that by pouring petrol in the chamber of Administrative Officer and igniting it he could not know that in all probability it would cause death or such bodily injury as if likely to cause death of deceased Shri Purohit, Administrative Officer and if it is not covered by Clause 4, then the rest of the clauses of Section 300 of the Indian Penal Code would not be applicable. From the facts admitted and proved, it is amply clear that the act of pouring petrol in the chamber of the Administrative Officer and thereafter ignitting it by burning torch, would be such act that it would be imminently dangerous and in all probability it would cause death or bodily injuries to the person or persons who were sitting in the said chamber.
24. The accused has committed the said act on Monday during working hours when it would be presumed that in the office most of the concerned officers or clerks would be present. The appellant in his cross-examination has admitted that in the Office of District Panchayat Monday is known as 'Janata Day'. On the said day all Officers who are on tour would remain present in the office to meet visitors and that there would be heavy rush of visitors. Meetings of different committees of Panchayat are held on Monday. Presuming that there was no intention on the part of the accused to cause bodily harm to any particular individual, yet if the act was so imminently dangerous in general, then he would be liable to be punished under Section 302 of the Indian Penal Code for committing the offence of murder. The act of the appellant was so callous towards the result and the risk which he had taken was such that it can be presumed that the had knowledge that the said act is likely to cause death or such bodily injuries as is likely to cause death of the persons who were sitting in the chamber of the Administrative Officer. For doing the said act the accused had no excuse. It was an extremely reckless act on the part of the accused. He had not bothered to see how many persons were sitting in the chamber. He had put lives, of many persons in jeopardy and it can be seen that he had perpetrated it with full knowledge of the consequences. Can it be said by any stretch of imagination that the appellant was unaware that in the chamber of the Administrative Officer, the Administrative Officer or some other persons were not sitting? Even in his deposition the accused has not stated that he was aware that no person was sitting in the said chamber. His main contention is that he raised shout that whosoever is in the chamber or office should leave it because he was burning the Education Office. There is no evidence to the effect that he waited for some time and thereafter as persons left the office he tried to burn the Education Office. Even the say of the accused that he raised shout is not proved in view of the evidence of the prosecution witnesses referred to above. Further in view of the evidence of P.W. 2 Jayantilal and P.W. 8 Mohanbhai it is clear that accused poured petrol on the table of Mohanbhai and ignited it by burning torch in their presence which clearly falsifies the say of accused that he had waited for some time after raising shouts. On the contrary accused set fire on the table in front of P.W. 2 and P.W. 8. For the time being even if we assume that the accused had started feeling that he was neglected and was given a raw deal by the Education Office, but that was no excuse or ground for taking such a fool-hardy action. Looking to the fact that the appellant-accused selected Monday which is a working day it could be inferred that number of persons would be sitting in the office of the Education Department as well as in the chamber of the Administrative Officer. Even the accused himself in his deposition has not stated that he waited till all the persons went out of the office after he raised shouts that he was burning the office of the Education Department. It is also admitted by the accused that he had poured petrol. It is further admitted by the appellant-accused that he was familiar with the Administrative Officer's chamber and was aware of the general arrangement of it. In that set of circumstances the act of the present appellant would be covered under Clause (4) of Section 300 of the Indian Penal Code.
25. In the case of State of Madhya Pradesh v. Rum Prasad reported in : 1968CriLJ1025 , while discussing Clause (4) of Section 300 of the Indian Penal Code the Hon'ble Court has held as under:
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 Section 324 causing simple injury by burning through Section 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 circumstances, 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 Section 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 well be 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 with regard to the firstly of Section 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 Section 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 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 or such bodily 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 fire spread 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.
26. From the facts stated above it is amply clear and even as admitted by the appellant-accused that he poured petrol and ignited it by throwing a burning torch in the cabin of the Administrative Officer. It would be obvious that the fire caused by petrol would spread instantaneously and it would cause extensive burns. In that view of the matter the appellant would be held liable under Clause (4) of Section 300 of the Indian Penal Code for causing murder and the act would be punishable under Section 302 of the Indian Penal Code.
27. So far we have discussed the case without referring to the dying declaration made by the deceased before the Executive Magistrate and the oral dying declaration made before his wife. The dying declaration which is recorded by the Executive Magistrate Mr. Varmora, is at Ex. 139. No doubt Mr. Varmora had admitted in the cross-examination that he had altered certain words such as '(E' He had also corrected a word here and there. The explanation given by the Executive Magistrate with regard to the addition and correction has been considered by the learned Judge rightly. Inspite of the said infirmity the learned Judge has rightly arrived at a conclusion that the said dying declaration can be relied upon and the learned Counsel appearing on behalf of the appellant was not in a position to point out how the said dying declaration as a whole cannot be relied upon, even if we omit the word added by the Executive Magistrate and also the word corrected by him. The dying declaration was recorded when the deceased was conscious as pointed out by Dr. N.M. Patel and Dr. K.T. Patel, who have attended the deceased in the Civil Hospital at Broach. The learned Judge has rightly arrived at a conclusion that the certificate given by Dr. N.M. Patel clearly shows that patient was conscious and he was in a position to give his dying declaration. In view of the evidence of the doctors as well as the Executive Magistrate, it cannot be said that the deceased was not in a position to give dying declaration. There is no reason to discard the evidence of the two doctors as well as the Executive Magistrate. The dying declaration clearly establishes that a person with burning torch has entered in the chamber of the Administrative Officer and he threw the said burning torch on him, and after throwing the said burning torch he went out of the cabin. The dying declaration is also made before Chandrikaben Purohit, P.W. 31, Ex. 137, before whom the deceased has stated that he was burnt. In this view of the matter the dying declaration corroborates prosecution version.
28. We are not discussing the contents of the letters written by the accused as it would not be necessary for us because it is amply clear that the act of the accused would fall under Clause (4) of Section 300 of Indian Penal Code. In view of the aforesaid discussion of the evidence we hold that the order passed by the learned Judge convicting the appellant under Section 302 of the Indian Penal Code is proper. The rest of the conviction under Section 436, 449, 450, 452 and 341 of the Indian Penal Code is not rightly challenged before us in view of the admissions made by the appellant in his deposition. We, therefore, confirm it. But at the same time the learned Judge has imposed along with substantive sentence, fine of Rs. 500/- for each of the offences punishable under Sections 302, 436 and 449 of the Indian Penal Code. He has also imposed fine of Rs. 250/- for each of the offences under Sections 450 and 452 of the Indian Penal Code. The learned Judge ought to have considered that the appellant-accused had not committed the offence for any pecuniar) gain and there was no justification for imposing sentence of fine. Hence we set aside that part of the order of sentence passed by the learned Sessions Judge. In other words we confirm the conviction of the accused under Sections 302, 436, 449, 450, 452 and 341 of the Indian Penal Code and the substantive sentences imposed by the learned Judge, but set aside the sentence of fine and order of imprisonment in default of payment of fine. Fine if paid by the appellant, should be refunded.
29. In the result we partly allow the appeal filed by the appellant. So far as the fine imposed by the learned Judge is set aside. The rest of the order passed by the learned Judge is confirmed.
Looking to the facts and circumstances of the case even though we have convicted the appellant under Section 302 of the Indian Penal Code and have imposed sentence of rigorous imprisonment for life, we recommend to Her Excellency the Governor of the State of Gujarat to consider the case of the appellant for clemancy under Article 161 of the Constitution of India. After taking into account the following facts: (1) The appellant is a primary school teacher since 1962, he was first appointed as primary school teacher a village Gandhar, Taluka Vagtara. He served there upto 1976. According to him he was a beloved teacher. (2) At village Gandhar he was doing number of social services. He has formed Youth Association. He was also imparting free education after working hours to the students without taking any tuition fees. He was also taking lead in removing untouchability from the village. He himself stayed in locality of Harijans. He also took part in family planning programme and Small Saving Scheme. He was also known as Bhagat because he had formed an association and he himself was singing devotional songs. (3) According to him because of his social activities, he was harassed and that there was victimization. He was transferred from one place to another place without any reason and the Education Department of the District Panchayat, Broach had done great injustice to him. It seems from the aforesaid circumstances that desperation impelled him to commit the thoughtless act which took away a valuable life. There was however, no mala fide or private vendetta against the deceased. Under these circumstances, we recommend that Her Excellency the Governor may exercise power under Article 161 of the Constitution of India as may be deemed proper.