Asha Bai Jaiswal Vs State Of Chhattisgarh

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(CRA-1308-2017)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 1308 of 201 7

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(Arising out of judgment dated 13.07.2017 passed in Sessions Trial No. 42/2017 by the learned Third Additional Sessions Judge to the Court of First Additional Sessions Judge, Raipur, District-Raipur, C.G.)

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Asha Bai Jaiswal, W/o Ramgopal Jaiswal, aged about 35 years, R/o New Gondwara, P.S.- Khamtarai, District-Raipur, C.G.

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---Appellant

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Versus

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State of Chhattisgarh, Through Station House Officer, Police Station-Khamtarai, District-Raipur, Chhattisgarh.

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		---Respondent
For Appellant	:- Ms.	Reena Singh , Advocate.
For State-Respondent	:- Mr.	Afroz Khan, Panel Lawyer.

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (13.03.2024 )

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Sanjay K. Agrawal, J.

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(1) This criminal appeal filed by the appellant-accused, under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 13.07.2017, passed by learned Third Additional Sessions Judge to the Court of First Additional Sessions Judge, Raipur, District- Raipur (C.G.) in Sessions Trial No.42/2017, whereby the appellant has been convicted as under:-

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	Conviction	Sentence
U/s	302 of Indian	Imprisonment for	life with
Penal	Code	fine of Rs. 500/- default of paymen amount, additional six months.	and, in t of fine R.I. for
U/s Penal	342 of Indian Code	Rigorous imprison 1 year with fine	ment for of Rs.
		100/- and, in d payment of fine	efault of amount,
		additional R.I. months.	for six

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(2) The case of the prosecution, in short, is that on 01.08.2016 at about 3:30 PM, the accused-appellant wrongfully confined Aarti Sahu (now deceased), who was aged about 12 years, in her house and, thereafter, poured kerosene oil over her body and lit the match-stick, due to which, as per MLC report (Ex.P/18), Aarti Sahu suffered burn injuries to the extent of 82% and died later on during the course of treatment in the hospital on 02.08.2016 and, thereby, the appellant is said to have committed the offence under Sections 302 & 342 of IPC.

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(3) The further case of the prosecution is that during the course of treatment of the deceased, on 01.08.2016 at about 08:15 PM, after having been certified by Dr. Aditya Kekti (PW12) to be in fit state of mind to give statement vide Ex.P/21, her dying declaration was recorded by the Executive Magistrate, namely, Dwarika Prasad Shukla (PW-07) vide Ex.P/14, wherein

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she implicated the appellant herein to be the author of the crime in question. It is also the case of the prosecution that complainant- Krishna Sahu (PW-08), who is the father of the deceased, lodged report at Police Station- Khamtarai, DistrictRaipur (C.G.) to the effect that on 01.08.2016 in the afternoon, Aarti Sahu (deceased) was playing a ball in the street, the ball rolled away and went to Shankar Jaiswal’s house, who is the son of the appellant and, when Aarti Sahu (deceased) went to Shankar’s house to take her ball back, Shankar’s mother- Asha Bai Jaiswal (appellant herein) locked the deceased in her house and, thereafter, poured kerosene oil over her body and set her ablaze by lighting the match-stick, due to which, she suffered deep burn injuries to the extent of 82%. On the said report, Dehati Nalsi and FIR was registered by the police vide Ex.P/25 and Ex.P/26 respectively. Inquest was conducted vide Ex.P/02. After the death of the deceased on 02.08.2016, her dead body was sent for postmortem examination, which was conducted by Dr. M. Nirala (PW-13), wherein it has been opined that the cause of death of the deceased is cardio-respiratory failure as a result of burn injuries and its complications. The appellant/accused was arrested (Ex.P/28). After due investigation, the appellant was charge-sheeted for the aforesaid offences before the jurisdictional criminal court and the case

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was ultimately committed to the Court of Sessions for trial and its disposal in accordance with law, in which the appellant abjured her guilt and entered into defence stating that she has not committed any offence and she has been falsely implicated.

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(4) During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 36 documents. The statement of the appellant/ accused was recorded under Section 313 of the CrPC in which she denied the circumstances appearing against her in the evidence brought on record by the prosecution, pleaded innocence and false implication. However, appellant-accused in support of her defence has neither examined any witness nor exhibited any document.

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(5) After conclusion of the trial, the trial Court, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offences punishable under Sections 302 & 342 of I.P.C. and sentenced her as mentioned above in the opening para of this judgment against which the present appeal has been preferred by the appellant.Learned counsel for the appellant submits that there is no evidence available on record to connect the appellant herein with the said offence except the dying declaration (Ex.P/

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14), which is also not proved beyond reasonable doubt. However, a bare perusal of the said dying declaration would show that though the deceased implicated the name of the appellant herein to be the author of the crime, but at the same time, it has also been stated by the deceased that when she was burning the appellant herein extinguished the fire by pouring water. As such, it transpires that though under anger and in heat of passion, the appellant poured kerosene oil over the body of the deceased and set her ablaze, but she has no intention or premeditation to cause her death. Therefore, the case of the present appellant would fall within the purview of culpable homicide not amounting to murder and, therefore, in light of the decision of the Supreme Court in the matter of Kalu Ram v. State of Rajasthan 1, the conviction of the appellant herein for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of IPC and, since the appellant is in jail from 02.08.2016 i.e. almost 07 years 07 months, she be sentenced for the period already undergone by her. Hence, the present appeal deserves to be allowed in full or in part.

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(6) Per-contra , learned State counsel, supported the impugned judgment of conviction and order of sentence and submits that

1 AIR 2000 SC 3630

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the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of dying declaration (Ex.P/14) coupled with other evidence available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is not a case where conviction of the appellant under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC, thus, the present appeal deserves to be dismissed.

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

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(8) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the oral and documentary evidence available on record, particularly considering the postmortem report (Ex.P/22), wherein it has been opined that the cause of death of the deceased is cardio-respiratory failure as a result of burn injuries and its complications, which is duly proved by the statement of Dr. M. Nirala (PW-13). Accordingly, taking into consideration the postmortem report (Ex.P/22) and the statement of Dr. M. Nirala (PW-13), we are of the considered opinion that the learned trial Court is absolutely justified in

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holding 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. Accordingly, we hereby affirmed the said finding.

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(9) Now the next question would be whether the accusedappellant herein has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by relying upon the dying declaration (Ex.P/14) of the deceased, wherein she has clearly implicated the appellant herein to be the author of the crime in question by stating that on the date and time of the offence while she was playing, her ball went inside the house of the appellant and, when she went to take her ball back, the appellant locked her inside her house and, thereafter, poured kerosene oil over her body and set her ablaze, due to which, she suffered burn injuries. The said dying declaration (Ex.P/14) has duly been proved by the Executive Magistrate, namely, Dwarika Prasad Shukla (PW-07), who has recorded the same. Further, Dr. Aditya Kekti (PW-12) has also certified the deceased to be in fit mental and physical condition for giving statement before recording the dying declaration (Ex.P/14) vide MLC report (Ex.P/21). Dwarika Prasad Shukla (PW-07) and Dr. Aditya Kekti (PW-12) were subjected to crossexamination, but they remained consistent in their version and

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clearly supported the dying declaration (Ex.P/14), wherein deceased implicated the appellant herein to be the author of the crime and MLC report (Ex.P/21), wherein the deceased was declared conscious oriented to give statement respectively. As such, we see no good ground to ignore the said statement made by the deceased in her dying declaration (Ex.P/14), as the same inspire confidence and seems to be reliable and, therefore, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant herein who has caused injuries over the body of the deceased, due to which she succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant herein who has caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record.

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(10) 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 IPC or same is liable to be converted to offence under Section 304 (Part-I or Part-II) of IPC in light of decision of the Supreme Court in Kalu Ram (supra), as contended by learned counsel of the appellant?

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(11) The Supreme Court, in the matter of Kalu Ram (supra)

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held in Para-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 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 authorsities 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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(12) Bearing in mind the aforesaid principles of law laid down

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by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid that though as per dying declaration (Ex.P/14), on the date and time of the offence, while deceased was playing, her ball went inside the house of the appellant and, when she went to take her ball back, the appellant locked her inside her house and, thereafter, poured kerosene oil over her body and set her ablaze by lighting matchstick, due to which she suffered deep burn injuries to the extent of 82% and died during the course of her treatment on 02.08.2016. However, the said dying declaration (Ex.P/14) also reveals that in the said incident, appellant herein also tried to extinguish the fire on the deceased by pouring water. Therefore, it is quite clear that there was no intention or premeditation on the part of the appellant to cause death of the deceased, but only because of anger and under heat of passion, the appellant poured kerosene oil over the body of the deceased and set her ablaze by lighting the matchstick, due to which she suffered burn injuries and died later on during the course of treatment in the hospital. Thus, in light of the decision of the Supreme Court in the matter of Kalu Ram (supra) and looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by her on the body of the deceased would likely to

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cause her death, therefore, the act of the appellant herein would fall within the purview of culpable homicidal not amounting to murder and, consequently, the conviction of the appellant for offence under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC.

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(13) In view of the aforesaid discussion, the conviction of the appellant herein for offence under Section 302 of IPC as well as the sentence of life imprisonment, awarded to her by the learned trial Court, is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased and the injuries caused by her were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 (Part-II) of IPC and since the appellant is in jail from 02.08.2016 i.e., almost 07 years 07 months, she is sentenced to the period already undergone by her. However, the fine sentence and default stipulation imposed by the learned trial Court shall remain intact. Further, the conviction and sentence of the appellant for offence under Section 342 of IPC, as awarded by the learned trial Court is hereby affirmed/remain as it is. Consequently, the appellant be released from jail forthwith, if not required in any other matter/crime.

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(14) This criminal appeal is partly allowed to the extent

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indicated herein-above.

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(15) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and needful action, if any.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Raghu Jat

Asha Bai Jaiswal v. State Of Chhattisgarh

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Asha Bai Jaiswal v. State Of Chhattisgarh

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