Partly allowed

K. Santosh Rao v. State of Chhattisgarh

Chhattisgarh HC25 Jun 2024CRA/1149/2018

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal regarding a conviction for murder and arson. The court distinguished the case from Section 302 IPC by citing Kali Ram, converting the offence to culpable homicide (Section 304 Part-II IPC) due to the appellant's attempt to extinguish the fire. The appellant was sentenced to time already undergone in jail.

What did the court decide?

Conviction under Section 302 IPC set aside and converted to Section 304 Part-II IPC. Appellant sentenced to time already undergone. Conviction under Section 457 IPC remains intact. Appellant released

K. Santosh Rao Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Cr.A.No.1149/2018)

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1149 of 2018

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(Arising out of judgment dated 22-9-2017 passed by the Additional Judge, Dongargarh to the Court of 1^st Additional Sessions Judge, Rajnandgaon in Sessions Trial No.2/2015)

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K. Santosh Rao, S/o late K. Apparao, Caste Telugu, aged about 35 years, R/o Ward No.10, Kalkapara, Dongargarh, District Rajnandgaon (C.G.)

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(In Jail) ---- Appellant

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Versus

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State of Chhattisgarh, through the Station House Officer, Police Station Dongargarh, District Rajnandgaon (C.G.)

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---- Respondent

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For Appellant: Mr. Bharat Rajput, Advocate / Panel Lawyer appointed by the Chhattisgarh High Court Legal Services Committee.

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For Respondent/State:Mr. Arvind Dubey, Government Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Agrawal, JJ.

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Judgment On Board (26/06/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the sole appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 22-9-2017 passed by the Additional Judge, Dongargarh to the Court of 1^st Additional Sessions Judge, Rajnandgaon in Sessions Trial No.2/2015, by which the appellant has been convicted and sentenced as under with a direction to run both the sentences concurrently: -

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(Cr.A.No.1149/2018)

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Conviction	Sentence
Section 302 of the IPC	Imprisonment for life & fine of 1,000/-, in ₹ default, additional rigorous imprisonment for one year
Section 457 of the IPC	Rigorous imprisonment for five years & fine of 100/-, in default, additional ₹ rigorous imprisonment for oneyear

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Case of the prosecution, in short, is that on 27-12-2014 at 7 p.m., at Village Cheerpani, Dongargarh, the appellant trespassed into the house of Heera Bai and poured kerosene oil on her body and set her on fire by which she suffered grievous burn injuries and during the course of treatment, she died on 28-12-2014 at 6.10 p.m.. During the course of treatment, dying declaration of deceased Heera Bai was recorded vide Ex.P-26 by Chandresh Sahu (PW-16) – Executive Magistrate, Dongargarh after having been certified by Dr. S. Choudhary (PW-4) of being in fit and conscious state of mind to give statement before recording of the dying declaration. Morgue intimation was recorded vide Exs.P-4 & P-9 and FIR was registered vide Ex.P-16. Inquest over the dead body of the deceased was conducted vide Ex.P-10. Spot map was prepared by the Investigating Officer vide Ex.P-6. Dead body of the deceased was sent for autopsy and autopsy was conducted by Dr. S.N. Hussaini (PW-17) vide autopsy report Ex.P-27 in which cause of death was stated to be shock due to burns. Articles like plastic jerrycan, matchstick, matchbox, etc. were seized from the spot vide Ex.P-7 and sent for chemical examination to the FSL, Raipur from where report Ex.P-25 was received according to which kerosene oil was found on plastic

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(Cr.A.No.1149/2018)

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jerrycan Art. A and particles of kerosene oil were found on half-burnt clothes Art. B, burnt soil Art. D and half-burnt jacket Art. F.

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Statements of witnesses were recorded under Section 161 of the CrPC and after usual investigation, the appellant was charge-sheeted for offences under Sections 302 & 457 of the IPC and the case was committed to the Court of Session, Rajnandgaon from where the learned Additional Judge, Dongargarh received the case on transfer for trial and for hearing and disposal in accordance with law where the trial was conducted.

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The prosecution, in order to prove the offence against the appellant, examined as many as 18 witnesses and brought on record 29 documents Exs.P-1 to P-29. The defence has not examined any witness, however, brought on record one document Ex.D-1 i.e. the statement of Mantora Bai recorded under Section 161 of the CrPC. The accused / appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him and pleaded innocence and false implication.

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The trial Court after appreciating oral and documentary evidence on record, proceeded to convict the appellant herein for offences under Sections 302 & 457 of the IPC, against which he has preferred this appeal.

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Mr. Bharat Rajput, learned counsel appearing for the appellant, would submit that at the best, offence under Section 304 Part-II of the IPC would be made out against the appellant. He would further submit that as per the dying declaration Ex.P-26, morgue intimation Ex.P-9

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Page 4 of 8

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(Cr.A.No.1149/2018)

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and statement of Mantora Bai (PW-3), the appellant has made endeavour to save the life of the deceased and he is custody for almost more than 9 years therefore he be sentenced to the period already undergone by him by partly granting the appeal as he is in jail since 28-12-2014.

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Mr. Arvind Dubey, learned Government Advocate appearing for the State / respondent, would support the impugned judgment and submit that the prosecution has been able to bring home the offence against the appellant beyond reasonable doubt and the impugned judgment is well merited, it is not the case which should be converted to Section 304 Part-II of the IPC. Therefore, the appeal deserves to be dismissed.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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Since the present case is death by burns, the questions whether the death of the deceased was homicidal and whether the appellant has caused burn injuries to the deceased will be considered together.

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Ex.P-26 dying declaration of the deceased was recorded by Chandresh Sahu (PW-16) – Executive Magistrate, Dongargarh, while he was at hospital on 27-12-2014 after being certified by Dr. S. Choudhary (PW-14) that the deceased was in fit and conscious state of mind to give statement in which the deceased has implicated the appellant herein by stating that he has closed the doors and taking advantage of her loneliness, he poured kerosene oil on her body and

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(Cr.A.No.1149/2018)

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set her ablaze. However, as per morgue Ex.P-9, dying declaration Ex.P-26 and statement of Mantora Bai (PW-3), the appellant has made endeavour to save the life of the deceased. As such, the appellant has caused the death of the deceased and thus, her death was homicidal in nature.

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The aforesaid finding brings us to the next question for consideration, whether the learned trial Court is justified in convicting the appellant herein for offence under Section 302 of the IPC or same is liable to be converted to offence under Section 304 (Part-I or Part-II) of the IPC in light of the decision of the Supreme Court in the matter of Kalu Ram

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v. State of Rajasthan 1?

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The Supreme Court in Kalu Ram (supra) has held in paras 7 & 8 as under: -

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“ 7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene oil on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it

1 AIR 2000 SC 3630

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(Cr.A.No.1149/2018)

went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder.

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8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly.”

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Similarly, in the matter of Dattatraya v. State of Maharashtra 2, the principles of law laid down in Kalu Ram (supra) have been followed

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with approval and in paras 23 & 24, it has been held as under: -

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“23. In the above case, the appellant who in an inebriated state was pressurizing his wife to part with some ornaments so that he could buy some more liquor. On her refusal he poured kerosene on her and set her on fire by lighting a matchstick. But then he also tried to pour water on her to save her. This Court was thus of the opinion that :

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“7….Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to

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2 2024 SCC OnLine SC 223

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Page 7 of 8

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(Cr.A.No.1149/2018)

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bring down the offence from first degree murder to culpable homicide not amounting to murder.

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We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC…”

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The facts of the present case, as we have already discussed above, by and large reflect the same situation, nature of crime as well as the act of the accused and the consequences of his action. We are inclined to accept the arguments raised by the learned senior counsel for the appellant, Mr. Sudhanshu S. Choudhari that under the present circumstances it would indeed be a case of culpable homicide not amounting to murder as given in Section 304 Part II in as much as, though the accused had knowledge of the consequences of the act he was committing, yet there was no intention to cause death.”

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Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in Kalu Ram (supra) followed in Dattatraya (supra) and reverting to the facts of the case, it is quite vivid that though the appellant has caused burn injuries to the deceased, but as per morgue Ex.P-9, dying declaration Ex.P-26 and statement of Mantora Bai (PW-3), the appellant has made endeavour to extinguish the fire. As such, the appellant must have no intention, but knowledge that the injury is likely to cause death. Therefore, in our considered opinion, the case of appellant would fall under Exception 4 to Section 300 of the IPC.

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In view of the aforesaid discussion, conviction of the appellant under Section 302 of the IPC as well as the sentences awarded to him by the learned trial Court is hereby set aside and instead thereof he is convicted for offence punishable under Section 304 Part-II of the IPC. Since he is in jail (since 28-12-2014) for more than nine years, he is

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Page 8 of 8

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(Cr.A.No.1149/2018)

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hereby sentenced to the period already undergone by him. However, conviction and sentences imposed upon him under Section 457 of the IPC shall remain intact. The appellant be released forthwith, if not required in any other case.

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The criminal appeal is party allowed to the extent indicated hereinabove.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge

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Soma

K. Santosh Rao v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

K. Santosh Rao v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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