Partly allowed

Gulpan Das v. State Of Chhattisgarh

Chhattisgarh HC12 Mar 2024CRA/1393/2017

Case brief

AI extract

What is this about?

The High Court partly allowed a criminal appeal against a conviction for murder. Setting aside the conviction under Section 302 IPC for culpable homicide not amounting to murder under Section 304 Part-II IPC due to the appellant's attempt to save the victim, the court sentenced the appellant to ten years rigorous imprisonment.

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part-II IPC; sentence reduced to 10 years rigorous imprisonment; fine confirmed.

Gulpan Das Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1393 of 2017

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{Arising out of judgment dated 13-07-2017 passed in Sessions Trial No.105/2015 by the Second Additional Judge, Ramanujganj to the Court of Additional Sessions Judge, Ramanujganj}

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Gulpan Das, S/o. Virodh Das Panika, Aged About 33 Years, Occupation Labour, R/o. Village Obri, Police Station Balrampur, District Balrampur-Ramanujganj, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through Station House Office, Police Station Balrampur, District BalrampurRamanujganj, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. K.K. Singh, Advocate / Panel Lawyer appointed by C.G. High Court Legal Aid Committee. For Respondent : 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 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 preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 13.07.2017, passed by the Second

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Additional Judge, Ramanujganj to the Court of Additional Sessions Judge, Ramanujganj, District Sarguja, in Sessions Trial No.105/2015, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.20,000/- in default of payment of fine, 1 year additional rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 08.10.2015 at village Obri, Police Station Balrampur, the appellant herein poured kerosene oil over the body of his wife Anita Devi (now deceased) and set her ablaze by match-stick, by which, she suffered severe burn injuries to the extent of 70%. Thereafter, the appellant raised an alarm, pursuant to which, Ramkalesh Singh (PW-2) called Ambulance 108 and they taken the deceased to Balrampur hospital where she was treated for one day and looking to her serious condition, she was referred to Ambikapur hospital where she remained upto 19.10.2015 and during course of treatment, she recorded her dying declaration vide Ex.P-2 by the Executive Magistrate - Yuvraj Kurre (PW-3) after having been certified by Dr. Arun Kumar (PW-6) that she was in a fit physical and mental state of mind to record the dying declaration and ultimately on 19.10.2015, Suresh Das (PW-8), brother of the deceased and Sunita

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Das, sister of the deceased got deceased Anita Devi discharged against the medical advice Ex.P-25, but she succumbed to the injuries at home on the same day at 6:30 p.m. vide Ex.P-9 and thereafter, the matter was reported to the police, pursuant to which, FIR was registered vide Ex.P-18, merg intimation was recorded vide Ex.P-21, dehati nalsi was prepared vide Ex.P-17, inquest was conducted vide Ex.P-9 and dead body of deceased Anita Devi was subjected to post-mortem, which was conducted by Dr. Snehlata Tirkey (PW-10), who proved the post-mortem report Ex.P-11, in which, cause of death was stated to be due to 70% burn injury and death was homicidal in nature. After due investigation, appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

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3. In order to bring home the offence, prosecution examined as many as 14 witnesses and exhibited 25 documents and the appellant-accused in support of his defence has

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neither examined any witness nor exhibited any document.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred.

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5. Mr. K.K.Singh, learned counsel for the appellant, would submit that the appellant has not committed the offence, he has been falsely implicated as the date of incident is 08.10.2015 whereas deceased died on 19.10.2015 and she was discharged against the medical advice on the same day i.e. 19.10.2015. He further submits that the appellant raised an alarm for taking deceased Anita Devi to the hospital, which is apparent from the statement of Ramkalesh Singh (PW-2) who called the Ambulance 108 and deceased was taken to the hospital by them, therefore, at the most, the offence under Section 304 Part-II of I.P.C. is made out, as the appellant has tried to save the deceased.

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6. Mr. H.A.P.S.Bhatia, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond

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reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. and, as such, the 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 question for consideration as to whether the death of deceased Anita Devi was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-11 proved by Dr. Snehlata Tirkey (PW-10), in which, cause of death was stated to be due to 70% burn injury and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

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9. Now, the next question is, whether the appellant is the author of the crime ?

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10. The dying declaration given by the deceased vide Ex.P-2 has been proved by Executive Magistrate– Yuvraj Kurre (PW-3), who in the statement before the Court has clearly stated that the deceased has stated that while she was cooking vegetable, the appellant herein consumed liquor

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and quarreled with the deceased by saying that she does’nt cook food quickly and poured kerosene oil over her body and set her ablaze by match-stick, by which, she suffered burn injuries. The Executive Magistrate (PW3) has stated that before recording the dying declaration, Dr. Arun Kumar (PW-6) has duly certified that the injured was in a fit physical and mental state of mind to record the dying declaration vide Ex.P-2 itself. The Executive Magistrate Yuvraj Kurre (PW-3) & Doctor Arun Kumar (PW-6) both have been subjected to some extent of crossexamination but they remained consistent with their version. Therefore, the dying declaration recorded vide Ex.P-2 found to be true and trustworthy, as it was duly proved that the deceased was in a fit physical and mental state of mind to record the dying declaration. In that view of the matter, we are of the considered opinion that the finding recorded by the trial Court that appellant had caused the death of deceased Anita Devi is correct finding of fact based on evidence available on record and accordingly, we affirm the said finding.

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11. Now, the contention of the learned counsel for the appellant that the case of appellant would fall under Section 304 PartII of I.P.C., as the appellant raised an alarm at the time of incident to take the deceased to the hospital, which is

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apparent from the statement of Ramkalesh Singh (PW-2) and furthermore, the death occurred on 19.10.2015 when the deceased family members have got her discharged against the medical advice, therefore, in light of the decision rendered by the Supreme Court in the matter of Sanjay v. State of Uttar Pradesh 1 the conviction of the appellant is liable to be converted to Section 304 Part-II of I.P.C.

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12. It is correct to say that the appellant had raised alarm and made attempt to call 108 Ambulance for taking the deceased to the hospital, which is clear from the statement of Ramkalesh Singh (PW-2) and it appears that the appellant and Ramkalesh Singh (PW-2) both have taken the deceased to Balrampur hospital for her treatment where she was treated for one day and looking to her serious condition, she was referred to Ambikapur hospital where she remained upto 19.10.2015. In this regard, the Supreme Court in the matter of Kalu Ram v. State of Rajasthan 2 has held in paragraphs 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

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1 (2016) 3 SCC 62

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2 AIR 2000 SC 3630

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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 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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13. Not only this, the deceased was taken from Balrampur hospital to Ambikapur District Hospital where she admitted on 09.10.2015 at 5:40 and discharged on 19.10.2015 against the medical advice vide Ex.P-25 proved by Dr. Rachna Arther (PW-14) and thereafter,

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on the same day, she died at 6:30 p.m. at home after 11 days of the incident, which has been recorded in Ex.P-9.

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14. In this regard, in the matter of Sanjay (supra), the Supreme Court has held in paragraphs 14 & 15 as under :-

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“14. However, in the instant case, it is apparent that the death occurred sixty two days after the occurrence due to septicaemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13.10.1998 was septicaemia which of course was due to the injuries caused in the incident on 11.08.1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty two days. In such facts and circumstances, prosecution should have elicited from Dr. Laxman Das (PW-9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr. Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having regard to the fact that Roop Singh survived for sixty two days and that his condition was stable when he was discharged from the hospital, the court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause Thirdly of Section 300 IPC.

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In Ganga Dass v. State of Haryana , [1994 Supp (1) SCC 534], the accused gave iron pipe single blow on the head of the deceased and the deceased died eighteen days after the occurrence due to septicaemia and other complications, the conviction of the appellant under Section 302 IPC was altered by this Court to Section 304 Part II

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IPC. This Court observed as under: (SCC pp.535- 36, para 6)-

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“6. We find considerable force in this submission. As stated above the occurrence took place on 18.11.1988 and the deceased died 18 days later on 5.12.1988 due to septicaemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years’ RI. The sentence of fine of Rs.2000 along with default clause is confirmed. Accordingly the appeal is partly allowed.”

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15. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the appellant not only raised an alarm for getting his wife (deceased) admitted to hospital, but also with the help of Ramkalesh Singh (PW-2) called the 108 Ambulance to take her to the Balrampur hospital where she treated for 1 day and thereafter, looking to her serious condition, she was

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referred to Ambikapur hospital where she remained for 10 days and against the medical advice, when her condition was stable, she was discharged from the hospital and the Doctor did not say that the injuries caused were sufficient to cause death in the ordinary course of nature. As such, in light of the decisions of the Supreme Court in Kaluram (supra) and Sanjay (supra), we are of the considered opinion that the conviction of appellant for offence punishable under Section 302 of IPC is altered to Section 304 Part-II of IPC and the appellant is hereby sentenced to 10 years rigorous imprisonment, however, the fine amount imposed by the trial Court along-with default sentence shall remain intact.

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16. In the result, this appeal is partly allowed to the extent indicated herein-above.

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

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

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Ashok

Gulpan Das v. State Of Chhattisgarh

Case brief

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Gulpan Das v. State Of Chhattisgarh

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