Chhattar Singh Vs State of Chhattisgarh

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2024:CGHC:35774-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 128 of 2019

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(Arising out of judgment dated 24.12.2018 passed in Sessions Trial No.19/2018 by the learned Additional Sessions Judge, Gharghoda,

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District-Raigarh (C.G.)

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1 - Chhattar Singh S/o Gautam Singh Sidar Aged About 26 Years R/o Village Gamekela ,police Station Lailunga ,district Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through The Police Station Lailunga ,district Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh

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... Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Mr. Manoj Kumar Jaiswal, Advocate For Respondent/State : Mr. H.A.P.S. Bhatia, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board

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(12/09/2024)

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Sanjay K. Agrawal, J.

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Digitally signed by RAVI SHANKAR MANDAVI

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1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of Cr.P.C. has been filed by the

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appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 24.12.2018 passed by the learned Additional Sessions Judge, Gharghoda, District Raigarh, Chhattisgarh in Sessions Trial No.19/2018 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 500/-; in default of payment of fine to undergo additional rigorous imprisonment for 30 days.

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2. Case of the prosecution, in short, is that on 04.07.2015 around 11:00 p.m. at Village – Gamekela, Police Station Lailunga, District Raigarh Chhatttisgarh, the appellant poured kerosene oil over the body of Dhanmati (now deceased) and set her ablaze, by which she suffered burn injuries and taken to C.H.C., Lailunga, District Raigarh (C.G.). During the course of treatment, she died on 13.07.2015. As the appellant poured kerosene oil over her body due to which she succumbed to death, thereby, committed the aforesaid offence.

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3. It is further case of the prosecution is that the said offence was reported by Goutam Singh (PW-1) to the Police, pursuant to which Merg Intimation (Ex.P/19) and FIR (Ex.P/1) were registered. Inquest proceedings were conducted vide Ex.P/15 and dead body was sent for postmortem vide Ex.P/17 and postmortem report is Ex.P/18. Postmortem was conducted by Dr. D. Behra (PW-16) and reported burn injuries are more than 35%, it was opined in the postmortem report that cause of death is due to complications of burns. The MLC of the deceased was conducted by Dr. Manoj Patel (PW-7) and reported

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that superficial to deep burn with face swollen, red 3 x 3 c.m. oval shape, percentage of burn approximately 45%. Kerosene like smell from the burnt parts of the body, so he was urgently sent to K.G.H. Hospital, Raigarh after primary essential medical care. Vide Ex.P/4, half burnt clothes of the deceased, a coconut oil tin can capacity of having 200 ml smelling kerosene used as chimney & plastic mat were seized.

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4. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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5. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 21 witnesses and exhibited 25 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.

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6. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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7. Mr. Manoj Kumar Jaiswal, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to

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prove the offence beyond reasonable doubt. He also submits that PW1 Goutam Singh/ father-in-law of the deceased and PW-9 Vrinda Bai/mother-in-law of the deceased are treated as eyewitnesses of the crime in question, by the trial Court in para 20 of its judgment, whereas, in the statement recorded before the trial Court both of them have stated that they were not present in the house at the time of incident, therefore their statement is not reliable, but on the basis of the dying declaration vide Ex.P/16A as she has stated that his brother-in-law/appellant has poured water over her body to set off fire, thus, the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence and, as such, the impugned judgment is liable to be set aside, as the deceased suffered burn injuries and died later on during the course of her treatment. Therefore, the case of the appellant herein would fall within the purview of Exception 4 to Section 300 of the IPC, as his act is culpable homicide not amounting to murder and, therefore, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted / altered to an offence under Section 304 Part-II of IPC and as the appellant is in jail since 06.07.2015 i.e. more than 9 years, the sentence awarded to him be reduced to the period already undergone by him. Learned counsel relies on the decision of the Supreme Court in the matter of Kalu Ram v. State of Rajasthan1 to bolster his submission. Thus, the present appeal deserves to be allowed in full or in part.

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8. On the other hand, Mr. H.A.P.S. Bhatia, learned State counsel, supports the impugned judgment and submits that prosecution has

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1 AIR 2000 SC 3630

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been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence and it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-I or Part-II of the IPC where the conviction of the appellant can be modified for lesser offence, therefore, the instant appeal deserves to be dismissed.

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9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

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10. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative by taking into account the postmortem report (Ex.P-18) proved by Dr. D. Behra (PW-16), wherein it has been opined that cause of death of the deceased is due to complications of burns injuries to the extent of 35%. Accordingly, taking into consideration the postmortem report (Ex.P-18) and the statement of Dr. D. Behra (PW-16) who has conducted the postmortem of the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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11. Now, the question for consideration would be whether the appellant has caused the burn injuries over the body of the deceased?

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12. Considering the oral dying declaration Ex.P/16A given by the deceased to PW-11 Atul Sette, Tehsildar, Gharghoda, District Raigarh and further

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considering the statements of PW-1 Goutam Singh, father of the appellant and PW-9 Vrinda Bai, mother of the appellant and also considering the report of postmortem conducted by Dr. D. Behra PW16, it is quite clear that it was appellant, who on the date of incident poured kerosene oil over her body and set her blaze, as a result of which, deceased suffered burn injuries and during treatment in the hospital, she died. The trial Court, after considering the oral and documentary evidence available on record, clearly recorded a finding that it is the appellant who has committed the aforesaid offences. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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13. The aforesaid finding brings us to the next question for consideration, which is, whether the learned trial Court is justified in convicting the appellant herein for offence under Section 302 of the IPC or the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-avis culpable homicide not amounting to murder and his conviction is liable to be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant, for which he has relied on the decision of the Supreme Court in the matter of Kalu Ram (supra), wherein in paragraphs 7 and 8 it has been held 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 matchstick but when flames were up he suddenly and frantically

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

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2 2024 SCC OnLine SC 223

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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 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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24. 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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15. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in matters of Kalu Ram (supra) followed in Dattatraya (supra), and reverting to the facts of the present case, it is quite vivid from the statement of PW-11 Atul Sette, Tehsildar, Gharghoda, District Raigarh (C.G.), before whom deceased had given oral dying declaration, that it was the appellant, who on the date of incident poured kerosene oil over her body and set her blaze, as a result of which, deceased suffered burn injury, however, after the incident, the appellant also poured water over the body of the

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deceased to set off fire and his mother took the deceased to the Hospital fromwhere she was referred to Raigarh Hospital, during the course of treatment in the hospital, she died. Thus, looking to the facts and circumstances of the case giving rise to the incident and the nature of injuries found on the person of the deceased, it is clear that there was no premeditation on the part of the appellant to cause death of the deceased, but out of sudden anger, in the heat of passion, appellant poured kerosene oil over her body and set her ablaze, leading to her death. As such, the appellant must have had the knowledge that his act would likely to cause the death of the deceased, but no intention of causing her death can be attributed to him.

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16. In that view of the matter, we are of the opinion that the case of the appellant - Chhattar Singh is covered within Exception 4 to Section 300 of IPC and since appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act of assault would likely to cause the death of the deceased, his conviction for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC. Since the appellant is in jail from 06.07.2015 i.e. more than 9 years, taking into consideration the period he has already undergone , we award him sentence already undergone by him, but the fine amount imposed by the learned trial Court shall remain intact. The appellant is in jail. We direct that the appellant be released from jail forthwith, if not required in any other matter.

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17. This criminal appeal is party allowed to the extent indicated hereinabove.

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18. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Ravi Mandavi

Chhattar Singh v. State of Chhattisgarh

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Chhattar Singh v. State of Chhattisgarh

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