Bhavsingh Nishad Vs State of Chhattisgarh

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(Cr.A.No.1438/2018)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1438 of 2018

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(Arising out of judgment dated 28-7-2018 passed by the Additional Sessions Judge (FTC), North Bastar Kanker in Sessions Trial No.90/2016)

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Bhavsingh Nishad, S/o Shri Makhan Nishad, Aged about 33 years, R/o Village Bharripara Bansagar, Present Address: Schoolpara Mohpur, Police Station Kanker, District Uttar Bastar Kanker (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 Kanker, District Uttar Bastar Kanker (C.G.)

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---- Respondent

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For Appellant: Mr. Rishi Rahul Soni, Advocate / Panel Lawyer appointed by the Chhattisgarh High Court Legal Services Committee.

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For Respondent/State:Mr. H.A.P.S. Bhatia, Panel Lawyer.

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

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Judgment On Board (25/06/2024)

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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 28-7-2018 passed by the Additional Sessions Judge (FTC), North Bastar Kanker in Sessions Trial No.90/2016, 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.1438/2018)

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Conviction	Sentence
Section 342 of the IPC	Rigorous imprisonment for one year & fine of 500/-, in default, additional ₹ imprisonment for one month
Section 302 of the IPC	Imprisonment for life & fine of 1,000/-, in ₹ default, additional imprisonment for six months

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Case of the prosecution, in short, is that on 7-9-2016 at 8 p.m., at Village Mohpur, Police Station Kanker, the appellant wrongly confined his wife Smt. Manbha Bai in the house of Nammuram – her father, and poured kerosene oil on her body and enlightened matchstick by which she suffered burn injuries to the extent of 75-80%. Smt. Manbha Bai was admitted to the hospital where her dying declaration was recorded vide Ex.P-17 proved by Yogendra Verma (PW-15) – Executive Magistrate, Raipur after having been certified by the doctor of being in fit and conscious state of mind to give statement before recording of the dying declaration. Smt. Manbha Bai succumbed to the burn injuries sustained by her and she died during the course of treatment. Morgue intimation was recorded vide Exs.P-11 & P-15 and FIR was registered vide Ex.P-1 being lodged by Nammuram Nishad (PW-1) – father of the deceased. Inquest over the dead body of the deceased was conducted vide Ex.P-8. Spot map was prepared by the Investigating Officer vide Ex.P-2. Patwari also prepared spot map vide Ex.P-3. Dead body of the deceased was sent for autopsy to Dr. Ambedkar Hospital, Raipur vide Ex.P-9. Autopsy was conducted by Dr. Ulhas Gonnade (PW-8) vide autopsy report Ex.P-12 in which cause of death was stated to be due to cardio respiratory failure as a

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(Cr.A.No.1438/2018)

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result of burns (1^st to 4^th degree) and their complications. Articles like jerrycan, matchstick, matchbox, etc. were seized from the spot vide Ex.P-5 and sent for chemical examination to the FSL, Raipur from where report dated 29-11-2016 was received according to which kerosene oil was found on jerrycan Art. A and particles of kerosene oil were found on burnt soil Art. C and clothes of the deceased Art. D.

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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 342 & 302 of the IPC and the case was committed to the Court of Session, North Bastar Kanker from where the learned Additional Sessions Judge (FTC) 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 22 documents Exs.P-1 to P-22 apart from FSL report dated 29-11-2016, though not exhibited. The defence has not examined any witness, however, brought on record four documents Exs.D-1, D-1 to D-3 i.e. the statements of Shamlal Nishad, Smt. Manbha Nishad, Nammuram Nishad and Sevaram Vatti 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

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(Cr.A.No.1438/2018)

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Sections 342 & 302 of the IPC, against which he has preferred this appeal.

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Mr. Rishi Rahul Soni, learned counsel appearing for the appellant, would submit that the appellant has tried to extinguish the fire which is apparent from the statement of dying declaration Ex.P-17 proved by Yogendra Verma (PW-15) – Executive Magistrate, Raipur and also proved by Dr. Pradeep Kumar Dewangan (PW-11) who has medically examined the burn injuries suffered by the appellant while extinguishing the fire and prepared MLC report Ex.P-21. As such, at the best, offence under Section 304 Part-II of the IPC would be made out against the appellant in view of the decision of the Supreme Court in the matter of Kalu Ram v. State of Rajasthan 1 and therefore he be sentenced to the period already undergone by him by partly granting the appeal as he is in jail since 8-9-2016.

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Mr. H.A.P.S. Bhatia, learned Panel Lawyer 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.

1 AIR 2000 SC 3630

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(Cr.A.No.1438/2018)

The first question for consideration would be, whether the death of the deceased was homicidal in nature to which the trial Court after appreciating the medical evidence on record, particularly the statement of Dr. Ulhas Gonnade (PW-8) and taking into account the postmortem report Ex.P-12 has rightly come to the conclusion that the death of the deceased was homicidal in nature which is a pure and correct finding of fact based on the evidence available on record and which is neither perverse nor contrary to the record. Even otherwise, it has not been seriously disputed by learned counsel for the appellant that death of deceased Smt. Manbha Bai was homicidal in nature. In view of the aforesaid analysis, we hereby accept and hold that death of the deceased was homicidal in nature and we also hereby affirm the finding recorded by the trial Court that death of the deceased was homicidal in nature.

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Considering the dying declaration Ex.P-17 proved by Yogendra Verma (PW-15) – Executive Magistrate, Raipur and also considering the statement of Yogendra Verma (PW-15) and the finding recorded by the trial Court in this regard, we are of the considered opinion that the trial Court has rightly recorded that it is the appellant who has caused burn injuries to the deceased by which she died during the course of treatment.

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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 same is liable to be converted to offence under Section 304 (Part-I or Part-II)

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Page 6 of 9

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(Cr.A.No.1438/2018)

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of the IPC in light of the decision of the Supreme Court in Kalu Ram

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(supra), as contended by learned counsel for the appellant?

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

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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 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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(Cr.A.No.1438/2018)

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Similarly, in the matter of Dattatraya v. State of Maharashtra 2, the

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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 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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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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2 2024 SCC OnLine SC 223

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(Cr.A.No.1438/2018)

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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 the deceased in her dying declaration though had implicated the appellant herein, but has stated while answering the penultimate question that after setting her on fire the appellant has tried to extinguish the fire and he has also suffered injuries which is also apparent from Ex.P-14 – MLC report of the appellant prepared by Dr. Pradeep Kumar Dewangan (PW-11) who has medically examined the appellant and who has stated that the appellant has suffered 5% burns. Apart from this, Nammuram Nishad (PW-1) & Baisakhin Bai Nishad (PW-2) – father & mother of the deceased, have also stated that the appellant has tried 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 8-9-2016) for more than seven years, he is hereby sentenced to the period already undergone by him. However, conviction and sentences imposed upon him under Section 342 of the IPC shall remain intact. The appellant be released forthwith, if not required in any other case.

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(Cr.A.No.1438/2018)

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The criminal appeal is party allowed to the extent indicated herein-

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above.

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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

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suffering the jail sentence.

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

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Soma

Bhavsingh Nishad v. State of Chhattisgarh

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Bhavsingh Nishad v. State of Chhattisgarh

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