JUDGMENT 1. The appellant Mohan stands convicted under section 302, I. P. C., and he also stands convicted for the offence under section 436, I. P. C., and has been sentenced to imprisonment for life on the first count and to seven years rigorous imprisonment on the second count by the learned Sessions Judge, Partabgarh, by his judgment dated 8.1.73. Both the sentences were ordered to run concurrently. 2. The prosecution case in brief is that on the night intervening 13th & 14th April, 1972, the deceased Jagannath was heavily drunk. He was brought to his house situated in village Sakaria by some persons in the drunken condition. Thereafter, he had some vomits. Jagannath and his wife Mst. Gulabi then slept in their house. At about mid-night, it is said that the accused came to their house and started hurling vulgar abuses. He also pelted stones on the door of their house and also pulled the doors and having done so, he entered into the house. He caught hold of Mst. Gulabi by her hands. Both of them grappled. Jagannath continued to remain asleep. In half portion of the room, where both them were sleeping, fodder was lying. It is said that the accused ignited the match stick and set the fodder to fire, whereby the whole house was burnt. Jagannath sustained burn injuries. Mst. Gulabi brought her husband holding her hand. When she brought him outside the house, his clothes were burning She put off her clothes and raised alarm, which attracted Kachoo, who was sleeping at a distance of about 15-20 paces in the bada. Before the arrival of Kachroo, the accused Mohan had made his escape good. Her alarm further attracted the other villagers and Mst. Gulabi continued to cry that Mohan had set her house to fire. Nanuram, Keshuram, Mohanlal then went to the police station, Chhotisadri and report of the occurrence was lodged in the early morning at 6.30 a.m. on 14.4.72, Jagannath was removed from the house to some other house and after extinguishing the fire, Jagannath was taken to the hospital and thereafter, the report was lodged. Case under section 307, I. P. C., was registered. Jagannath died at the Primary Health Centre, Chhotisadri. Case under section 307, I. P. C., was registered. Jagannath died at the Primary Health Centre, Chhotisadri. Thereupon, the case was converted to section 302, I. P. C., and case was also registered under section 436, I. P. C. Post-mortem on the dead body was conducted by Dr. Dilip Kumar. PW 15 on 14.4.1972. In the opinion of Dr. Dilip Kumar, cause of death was due to shock of burns all over the body. On 15.4.72, the appellant Mohan was arrested. He was also examined by Dr. Dilip Kumar on 16.4.72. He found the following burn injuries on his person. 1. Burn laceration and vesicles in the area of 7"x2" spindle shaped irregularly on back of left lower ⅓ thigh. Black colouration. 3. Burn laceration and vesicles in the area of 5'x 1" on back upper ⅓ left leg. He proved the injury report of the accused Ex. P 11 and he also opined that the duration of the injuries was about 3 - 4 days. As regards the burns on the person of the deceased he was of the opinion that the burns were of the third or fourth degree. The police conducted the spot investigation and also investigation from the witnesses and after usual investigation, submitted the charge sheet against the appellant. After commitment the appellant was tried by the learned Sessions Judge. At the trial, the prosecution examined as many as 15 witnesses. 3. The statement of the accused was recorded, in which he denied the entire prosecution case and stated that when the house of Jagannath was burning, he was also engaged in extinguishing the fire. He denied to have suffered any burn injuries on his person and also stated that his shirt and dhoti were not burnt. No evidence was led in defence. 4. After hearing the arguments, the learned Sessions Judge found the appellant guilty of the offence under section 302, as well as 436, I. P. C. From the evidence produced by the prosecution, the learned Judge found it proved that the accused broke open the door and thereafter, dragged Gulabi out of the house and lighted match stick and ignited the grass lying in the apartment, in which Jagannath and Mst. Gulabi were sleeping. As a result of the burning of the grass, the house was burnt and Jagannath also sustained burn injuries resulting into his death. Gulabi were sleeping. As a result of the burning of the grass, the house was burnt and Jagannath also sustained burn injuries resulting into his death. After referring to the illustration appended to section 39, I. P. C., it was found that the accused caused the death of Jagannath voluntarily, so, held that offences under sections 436 & 302, I. P. C., were proved beyond reasonable doubt against the accused appellant. Dissatisfied with his conviction and sentence, the appellant has preferred this appeal through jail. 5. We have heard Shri B. Advani, learned Amicus Curiae and the learned Public Prosecutor for the state and we have perused the record of the case carefully. Shri Advani urged that there is the sole statement of Mst. Gulabi PW 8, who is said to be the eye-witness of the occurrence. There is no other direct evidence on record nor there is any evidence to the effect that the accused was seen coming to the house of the deceased or was seen going away from the house of the deceased. The neighbour Kachroo PW 4 does not state that he saw the accused when he was attracted to the scene of occurrence on the alarm raised by iMst. Gulabi. There is no corroborative evidence of the statement of Gulabi with regard to the main occurrence. In the absence of any corroborative evidence, Shri Advani urged that it would not be safe to act upon the statement of Mst. Gulabi. 6. The contention of Shri Advani has absolutely no merit. At the time when the occurrence took place, there was none at the house of Mst. Gulabi except the deceased and there can be no other evidence with regard to the fact for which Mst. Gulabi has deposed. The statement of Mst. Gulabi is amply corroborated by the statement of Kachroo PW 4. Keshuram PW 9, Mohansingh PW 10, Radhi PW 11. Dhanraj PW 12 and Nanuram PW 13. Kachroo has corroborated the testimony of Mst. Gulabi to this extent that at about mid night, the accused Mohan was hurling abuses to Jagannath and was also extending threat. He also stated that the accused pelted stones at the house of Jagannath. This part of the statement of Kachroo thus corroborates the testimony of Gulabi. According to Gulabi, the accused was hurling abuses and he also pelted stones on the door of the house. He also stated that the accused pelted stones at the house of Jagannath. This part of the statement of Kachroo thus corroborates the testimony of Gulabi. According to Gulabi, the accused was hurling abuses and he also pelted stones on the door of the house. Kachroo further states that thereafter, he fell asleep and was awakened on account of the cries raised by Mst. Gulabi. She was crying that her house and her husband are burning and the accused Mohan had set the house to fire. He immediately rushed to the house of Jagannath and observed that the house of Jagannath was in flames. The clothes of Jagannath were also burning and Gulabi was tearing his clothes. Other witnesses named above, have also corroborated the testimony of Mst. Gulabi and have deposed that they were also attracted by the alarm raised by Mst. Gulabi and Gulabi was crying that her house has been put to fire by the accused Mohan. Thus, there is overwhelming evidence on record, which corroborates the testimony of Mst. Gulabi with regard to the accused being the miscreant. From the statements of the witnesses, it is also clear that Jagannath received burn injuries to a considerable extent. 7. Apart from the above evidence, there are other corroborative pieces of evidence, which further strengthen the statement of Mst. Gulabi. The police seized the shirt of Mohan vide memo Ex. P 5. The shirt was found torn. In order to prove this fact there is the testimony of Udairam PW 5. The police also seized the kanchali of Mst. Gulabi vide memo Ex. P 6, It was also in a torn condition. The statement of Mst. Gulabi that in the grappling, her clothes and the clothes of the accused were torn, gets support from Ex. P 5 and Ex. P 6. The prosecution has examined Keshuram motbir for proving Ex. P 6. There is further most material evidence in the case. It is in the form of finding burn injuries on the person of the accused. The accused was arrested in the presence of Ratna PW 7, who has deposed that there were burn marks on the person of the accused and his dhoti had also burn marks. Dr. Dilip Kumar has also proved the burn injuries on the person of the accused. The accused in his statement has denied the burn injuries on his person. The accused was arrested in the presence of Ratna PW 7, who has deposed that there were burn marks on the person of the accused and his dhoti had also burn marks. Dr. Dilip Kumar has also proved the burn injuries on the person of the accused. The accused in his statement has denied the burn injuries on his person. He has not stated that he received the burn injuries while he was engaged in extinguishing the fire. The statement of the accused, if viewed in the light of the convincing evidence led by the prosecution is nothing but false. If the accused had not sustained any injury on his person, how it is that burn injuries were found on his person. Habibnoor, Head Constable, PW 14 has also stated that when the accused surrendered at the police station on 15.4.72. at about 10 am., the accused had burn marks on his body, which he noted in Ex. P 7, and his dhoti was also having burn marks. So, he seized his dhoti article 3. Thus, the statement of Smt. Gulabi gets ample corroboration from the statement of the witnesses and from the circumstances proved on record by the evidence produced by the prosecution. As a result of burning of the fodder, the house was burnt, in which Jagannath was living with his wife. The learned Sessions Judge rightly held the accused responsible for commission of the offence under section 436, I.P.C. 8. Shri Advani further submitted that the learned Sessions Judge erred in holding the appellant guilty for the offence under section 302, I.P.C. He submitted that the accused had no intention to cause the death of Jagannath. There was no motive for the accused to cause his death. The prosecution has not proved any motive. On the contrary, Mst. Gulabi has stated that she does not know as to why Mohan puther house to fire. He urged that according to the prosecution case, the fodder was lying at a distance of four arms length which may be near about six feet. The appellant did not even touch Jagannath. He never intended to cause the death of Jagannath by the act of burning grass nor his act of putting grass to fire, was so imminently dangerous, which in all probability would have caused the death or would have caused such bodily injury as may be likely to cause death. The appellant did not even touch Jagannath. He never intended to cause the death of Jagannath by the act of burning grass nor his act of putting grass to fire, was so imminently dangerous, which in all probability would have caused the death or would have caused such bodily injury as may be likely to cause death. No such knowledge can be attributed to the appellant that in all probability, death of Jagannath would becaused or such injuries would be caused, which may be likely to cause death. According to Shri Advani, it was a sheer accident or unintended event that Jagannath sustained burn injuries. Thus, it was not in contemplation of the accused that Jagannath will at all sustain burn injuries. 9. The learned Public Prosecutor, on the other hand, submitted that the case falls under clause fourthly of section 300. The accused know that Jagannath is sleeping in the very room, where grass has been set to fire. His act was imminently dangerous. The accused know that in all probability his act will cause death or such bodily injury, as is likely to cause death. The learned Public Prosecutor pointed out that ; illustration appended to section 39 makes it clear that such an act on the part of the accused will be considered to be a voluntary act of the accused, resulting in the death of Jagannath. 10. A very serious question requires consideration in the case as to what offence is made out against the accused beyond all reasonable doubt. Having found that the accused set the grass to fire causing, burning of the house, can any such intention or knowledge be attributed to the appellant that he intended to cause the death or that he know that in all probability his act is likely to cause death. It may be noted that Jagannath was heavily drunken. This knowledge cannot be attributed to the accused that Jagannath is dead drunk, so, he will not be in a position to get up and will suffer burns to such an extent that they may prove fatal. If the condition of Jagannath would have been normal, he could certainly save himself, so he would nothave suffered such burn injuries, which may prove fatal. If the condition of Jagannath would have been normal, he could certainly save himself, so he would nothave suffered such burn injuries, which may prove fatal. The accused could only contemplate that Jagannath is in a normal state and is not in such a state where by it will not be possible for him to get up. Had he been normal, he would have get up and tried to run away and get out from the room. It appears that his drunkness did not allow him to feel the flames near him and when the house was burnt it appears that he was enveloped in flames. Had he been normal, he would have get up when his wife called her twice when stones were being pelted at the house. The deceased did not even get up even as a result of hue and cry made by Mst. Gulabi and also by noise created by hurling of abuses and pulling of the door by the accused. Thus, if the condition of Jagannath would have suffered death or would not have suffered such bodily injuries likely to cause his death. In view of the facts and circumstances,of the case, in our opinion, knowledge as contemplated under clause fourthly of section 500, I.P.C. cannot be attributed to the assailant, Thus, the case of is not covered under clause fourthly of section 300, I.P.C., but this much knowledge can certainly be ascribed to the appellant that by his act death of Jagannath was likely to be caused as he was sleeping despite the commotion before ignition of the grass and he continued to sleep despite ignition of the grass. In the circumstances of the case, it cannot be said that Jagannath met his death accidentally. There is the clear, causal relationship between the act of the accused and the death of Jagannath. It may be observed that knowledge is a question of fact and has to be determined on the basis of the proved fact and circumstances of the case. There is the clear, causal relationship between the act of the accused and the death of Jagannath. It may be observed that knowledge is a question of fact and has to be determined on the basis of the proved fact and circumstances of the case. Having regard to the facts and circumstances of the case as considered above, in our opinion, such knowledge as is contemplated under the latter part of section 199 can only be attributed to the appellant and so, the appellant can only be found guilty of the offence under section 395, Part II, I.P.C The proved circumstances do not make out a case for holding the appellant guilty of the offence covered under clause fourthly of section 300. In this view of the matter, the appeal deserves to be partly allowed. 11. Accordingly, the appeal is partly allowed. The conviction of the appellant under section 302 is set aside and he is convicted for the offence under section 304 Part II. I.P.C. His conviction and sentence under section 436, I.P.C. are maintained. For the offence under section 304, Part II, I.P.C., the appellant is sentenced to a period of his custody. The appellant is in custody since 15-4-72. Thus, he has suffered custody for a period of more than seven years. Under section 436. the appellant has been awarded seven years rigorous imprisonment, that period of sentence he has already served out. Consequently, the appellant is to be released forthwith. It is, therefore, directed that the appellant be released forthwith, if not required in any other case.Appeal partly allowed. *******