Partly allowed

Ratthoram Rathiya v. State of Chhattisgarh

Chhattisgarh HC2 May 2024CRA/341/2020

Case brief

AI extract

What is this about?

In a criminal appeal regarding the murder of the appellant's wife, this High Court affirmed the finding that the death was homicidal due to burning by kerosene oil. The court held that the act was done in a sudden fight without premeditation or cruelty. Consequently, the conviction for murder (Section 302 IPC) was altered to culpable homicide not amounting to murder (Section 304 Part II IPC), redu

What did the court decide?

Conviction under Section 302 IPC altered to Section 304 Part II IPC; sentence reduced to seven years rigorous imprisonment; fine retained.

Ratthoram Rathiya 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

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CRA No. 341 of 2020

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Judgment Reserved on 15.04.2024

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Judgment Delivered on 03.05.2024

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Ratthoram Rathiya, S/o Late Khadiram Rathiya, aged about 62 Years, R/o Village - Chotiguda, Police Station- Gharghoda, District- Raigarh, Chhattisgarh.

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----Appellant

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Versus

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State of Chhattisgarh, Through Police Station- Gharghoda, DistrictRaigarh, Chhattisgarh.

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---- Respondent

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For Appellant Mr. Hanuman Prasad Agrawal, Advocate. For State Mr. Anurag Tripathi, Panel Lawyer.

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Hon’ble Shri Justice Goutam Bhaduri & Hon’ble Shri Justice Radhakishan Agrawal C A V Judgment

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Per Radhakishan Agrawal, J.

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This criminal appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 01.02.2020 passed in Sessions Trial No.21/2019 by the Additional Sessions Judge, Gharghoda, District Raigarh, C.G., by which the appellant stands convicted & sentenced as under:-

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Conviction Sentence

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Under Section 302 of Indian Imprisonment for life and fine of Penal Code Rs.500/-, in default of payment of

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fine additional rigorous imprisonment for two months

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Case of the prosecution, in brief, is that, on 03.12.2018, PW-1 Ram Lal Rathiya lodged a complaint at police station Gharghoda to the effect that while he was working in courtyard along with Uttara Kumar, Ram Avtar and Pradeep Kumar Chouhan (PW-2), at about 11:00 am, he saw the appellant and his wife- Budhwaro Bai quarreling with each other and during quarrel, the appellant poured kerosene oil over the body of his wife- Budhwaro Bai and set her ablaze. On the basis of complaint lodged by PW-1 Ram Lal Rathiya, PW-8 Admon Khess, Sub-Inspector, registered a FIR (Ex.P-3) under Crime No.386/2018 for an offence punishable under Section 307 of IPC. Thereafter, after preparing spot map vide Ex.P-4, victim- Budhwaro Bai was sent for medical examination to Community Health Centre, Gharghoda vide Ex.P-6 where Dr. V.K. Sharma (PW-6) examined the victim- Budhwaro Bai and gave his MLC report vide Ex.P-7. According to him, victimBudhwaro Bai suffered burn injuries over her head, face and neck with singeing hair to the extent of 9%, 18% over upper part of chest and back, 9% over both arms upto elbow, 18% over left thigh upto whole lower limb and 1% over private parts. In this way, the victimBudhwaro Bai suffered burn injuries to the extent of 9% to 18%. Thereafter, victim was referred to Medical College Hospital, Raigarh. Vide Ex.P-8 memo was sent to SDM with respect to appointment of Executive Magistrate to take dying declaration of victim and vide Ex. P-9 opinion was also sought from Medical Officer with respect to victim's condition for recording dying declaration and Dr. V.K. Sharma (PW-6) has given his consent for recording dying declaration of victim-

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Budhwaro Bai. Vide Ex.P-10, dying declaration of the victim was recorded wherein the victim- Budhwaro Bai stated that on account of quarrel between them, the appellant set her ablaze. Thereafter, during the course of treatment, the victim- Budhwaro Bai has died on 30.12.2018 at 10:45 am. Merg intimation was recorded vide Exs.P-1 & P-2. Inquest proceeding was conducted vide Ex.P-15 and dead body of deceased- Budhwaro Bai was sent to CHC, Lailunga for postmortem examination which was conducted by PW-10 Dr. Manoj Kumar Patel, who has proved the postmortem report Ex.P-17. According to postmortem report, cause of death of the deceased was due to septicemic shock, as a result of old burn injuries on various sites and opined that cause of death of deceased was homicidal in nature. During investigation, memorandum statement of the appellant was recorded vide Ex.P-12, pursuant to which, one plastic jerry-can containing kerosene oil and one match-stick box were seized from the possession of the appellant. Burnt hair of deceased containing smell of kerosene oil, soil containing kerosene oil under cot, plain soil and burnt wood of cot were seized from the spot vide Ex.P-11. After the death of victim- Budhwaro Bai, offence under Section 302 IPC was registered against the appellant. Appellant was arrested on 04.12.2018.

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Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellant was charge-sheeted before the jurisdictional Criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 12 witnesses and brought on record 17 documents. The defence has examined none, but exhibited two documents i.e. Exs.D1 & D-2.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred.

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Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He would further submit that paddy straw which was kept at the place of incident has not been seized by the Investigating Officer. He would also submit that PW-1 Ramlal Rathiya himself has not lodged any FIR against the appellant as is evident from his statement. He would also submit that the although PW-7 Hitesh Kumar Sahu, Nayab Tehsildar, recorded the dying declaration of deceased, but its scribe (lady employee) was not examined by the prosecution. He would also submit that PW-1 Ramlal Rathiya told one Ramesh about rising of flames from the house of the appellant, but the said Ramesh has not been examined by the prosecution. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the aforesaid charge. Reliance has been placed on the decisions of Hon'ble Supreme Court in the matter of Uttam vs State of Maharashtra¹ .

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1 (2022) 8 SCC 576

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Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted and sentenced the appellant for the offence punishable under Section 302 IPC. By referring the statement of PW-5 Mohd. Sahoor Khan in para 4, he would further submit that the deceased (while she was alive) told him that appellant himself, after covering her with paddy straws, poured kerosene oil over her and set her ablaze, this itself would be sufficient to connect the appellant in the crime in question. Moreover, the deceased herself has given dying declaration mentioning the name of appellant as perpetrator of the crime in question. Therefore, the instant appeal deserves to be dismissed.

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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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The first question for consideration would be whether the death of the deceased was homicidal in nature which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-17) in which cause of death of deceased was opined to be septicemic shock as a result of old burn injuries on various sites and nature of death was opined to be homicidal , proved by Dr. Manoj Kumar Patel (PW-10), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

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Now, the question would be, whether or not the appellant is the author of the crime in question ?

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PW-3 Sadharo Rathiya, daughter of deceased, has stated that after knowing about the incident, she went to the hospital to meet her mother

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(deceased) where the deceased- Budhwaro Bai told her that appellant himself set her ablaze after pouring kerosene oil by covering her with paddy straws and mosquito net. This witness was subjected to crossexamination where she remained firm. Similarly, PW-4 Ram Kumar Rathiya, in his statement, has stated that deceased- Budhwaro Bai told him that while she was sleeping in her house, at that time, appellant came there and set her ablaze after pouring kerosene oil by covering her body with paddy straws.

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Likewise, PW-5 Mohd. Sahoor Khan, in his statement, has deposed that after the incident, he went to the spot and saw the deceasedBudhwaro Bai lying on cot and was found burnt. Then, this witness picked her up from the cot and laid her on the ground. This witness found her waist, back and blouse burnt and stuck and the saree worn by her also found to be stuck due to burning. He has also stated that in his presence, the police recorded the memorandum statement of appellant vide Ex.P-12 and seized burnt saree , paddy straws, plain soil, jerry-can containing kerosene oil and match-box as well as burnt cot vide Ex.P-11.

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PW-11 Bhupdev Sidar, Sarpanch of the village, before whom appellant made extra-judicial confession, has stated that on being asked, appellant told him that deceased- Bhudwaro Bai used to abuse him that is why he set her ablaze by pouring kerosene oil. This witness was subjected to cross-examination where he remained firm.

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PW-7 Hitesh Kumar Sahu, Nayab Tehsildar, after getting consent with respect to fitness condition of victim-Budhwaro Bai, from the Medical Officer of Community Health Centre, Gharghoda, recorded the dying declaration of deceased vide Ex.P-10. He has admitted that although

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the contents of dying-declaration are not in his hand-writing, but it had got written down by one female employee on his instructions.

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PW-1 Ramlal Rathiya, in his statement, has stated that at the time of incident, he was present in courtyard and saw rising of flames from the house of appellant which was informed by him to one Ramesh, then Ramesh told him to inform the incident to village Sarpanch. In para 3, he denied that he did not lodge any FIR, but admitted his signatures over the FIR Ex.P-3. He has further stated that appellant and his wifedeceased used to live alone in their house. Though this witness has not supported the prosecution story, but admitted the fact that both the appellant and deceased-wife were living together in the same house.

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PW-2 Pradeep Kumar Chouhan has stated that he saw the rising of flames from the house of appellant and when he reached there, he saw the deceased lying on the cot and her body caught fire which was being extinguished by the appellant by sprinkling water. In para 5, he has admitted that deceased- Budhwaro Bai was in the habit of consuming liquor.

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Thus, considering the statements of PW-2 Pradeep Kumar Chouhan, PW-3 Sadharo Rathiya, PW-4 Ramkumar Rathiya, PW-5 Mohd. Sahoor Khan and PW-7 Hitesh Kumar Sahu, who have clearly supported the case of the prosecution and further considering the statement of PW-11 Bhupdev Sidar, before whom appellant made extra-judicial confession, it is clear that it is the appellant, who on the date of incident, quarreled with the deceased and set her ablaze by pouring kerosene oil by which she suffered grievous injuries and died during course of treatment and further considering the fact that pursuant to the memorandum statement of appellant vide Ex.P-12, one plastic jerry-can containing

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kerosene oil and one match-stick box were seized from the possession of the appellant which was proved by PW-8 Admon Khess, SubInspector. Moreover, from the evidence of PW-1 Ramlal Rathiya, it is also clear that the appellant and deceased used to live alone in their house. Further, as per dying declaration of the victim vide Ex.P-10 wherein she has stated that on account of quarrel between them, the appellant set her ablaze. The trial Court, after considering oral and documentary evidence available on record, clearly recorded a finding that it is the appellant who has committed the offence. 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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Now, the question that requires consideration is whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered under Exception 4 to Section 300 of IPC and as such, his conviction can be altered to either Part-I or Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

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In order to consider whether the case of the appellant is covered within Exception 4 to Section 300 of IPC, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Sukhbir Singh v. State of Haryana2 wherein it has been observed as

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under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section

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2 (2002) 3 SCC 327

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300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

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The Supreme Court in the matter of Gurmukh Singh v. State of Haryana 3, has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II, which states as

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under :-

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“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen for its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(d) Whether the death ensued instantaneously or the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused with premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

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(i) The criminal background and adverse history of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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3 (2009) 15 SCC 635

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

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Likewise, in the matter of State v. Sanjeev Nanda 4, their Lordships of

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the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh 5 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner.

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4 (2012) 8 SCC 450

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5 (2017) 3 SCC 247

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Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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In the matter of Arjun (supra), the Supreme Court has held that when and if there is intent and knowledge, the same would be case of Section 304 Part-I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

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Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)⁶ has laid down four ingredients which should be tested for bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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6 (2019) 6 SCC 122

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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Likewise, the Supreme Court in the matter of Rajangam vs State of

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T.N.⁷ has elaborately dealt with the issue and observed in paragraph 9, which reads as under :-

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“9. Now coming to the nature of the offence, the accused inflicted only one injury on the abdomen. The other injury on the left knee would also have been caused in the course of causing the other injury to the abdomen. The occurrence took place on 22.06.78 and the deceased died on 30.06.78. As already noted an operation was also conducted but gangrenous got set in. Therefore, these circumstances would show that the accused would not have intended to cause the death of the deceased by inflicting injuries which were sufficient in the ordinary course of the nature to cause the death. However, by inflicting this single injury he had knowledge that he was likely to cause the death in which case the offence is one punishable under Section 304 Part-II, IPC. Accordingly, we set aside the conviction of the appellant under Section 302 IPC and sentence of imprisonment for life awarded thereunder. Instead, we convict him under Section 304 Part-II IPC and sentence him to undergo five years rigorous imprisonment.........”

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Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid from the evidence of PW-1 Ramlal Rathiya, PW-2 Pradeep Kumar Chouhan, PW-3 Sadharo Rathiya, PW-4 Ramkumar Rathiya, PW-5 Mohd. Sahoor Khan, PW-7 Hitesh Kumar Sahu and PW-11 Bhupdev Sidar, before whom appellant made extra-judicial confession, the contents of FIR (Ex.P-3), final report and dying declaration of deceased vide Ex.P-10 that on 03.12.2018 at 11:00 am, the appellant and the deceased quarreled with each other and in that event, the appellant, out of anger, poured the kerosene oil over the body of deceased after covering her with paddy straws and set her ablaze, resulting into her death during course of treatment, as is evident from the MLC report vide Ex.P-7, proved by Dr. V.K. Sharma (PW-6) showing

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7 AIR 1993 SC 2636

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the burn injuries on the body of deceased to the extent of 9% to 18% and PM report vide Ex.P-17 also showing the death of deceased was due to septicemic shock, as a result of old burn injuries on various sites i.e. after four weeks of the incident, which was proved by Dr. Manoj Kumar Patel. Further, from the evidence of PW-2 Pramod Kumar Chouhan, it is also clear that after the incident, appellant was trying to extinguish the fire. 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- Bhudwaro Bai, but on a sudden quarrel erupted between the appellant and his wife-deceased, out of sudden anger, in the heat of passion, without premeditation, the appellant set her ablaze by pouring kerosene oil, 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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In that view of the matter, we are of the opinion that the case of the appellant is covered within Exception 4 to Section 300 of IPC and since the appellant had no intention and premeditation to cause the death of the deceased, however, he must have had the knowledge that his act 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 and he is sentenced to seven years rigorous imprisonment in place of life imprisonment and the fine sentence imposed thereunder by the learned trial Court shall remain intact.

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In the result, the criminal appeal is partly allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.

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Sd/Sd/- (Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Akhilesh / Anjani

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Ratthoram Rathiya v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ratthoram Rathiya 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

Cases cited

Statutes considered

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