Sanju Rajput Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 696 of 2017

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(Arising out of judgment dated 13.04.2017 passed in Sessions Trial No. 03/2016 by the learned Additional Sessions Judge, Gariyaband, CG)

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Sanju Rajput S/o Anand Rajput, Aged About 31 Years R/o Village Kalupur, Police Station Banga, District Choubis Pargana North, West Bengal, Present R/o Ward No. 07, Rawanbhata, Gariyaband, Police Station And District Gariyaband, Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh, Through Police Station Gariyaband, District Gariyaband, Chhattisgarh.

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---Respondent

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For Appellant : Mr. Akash Kumar Kundu, Advocate For Respondent : Mr. S. S. Baghel, Dy. Govt. Advocate

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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

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(14.02.202 4)

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant under

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Section 374(2) of Cr.P.C. is directed against the

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impugned judgment dated 13.04.2017, passed by the Additional Sessions Judge, Gariyaband, Chhattisgarh, in Sessions Trial No. 3/2016, by which, the appellant has been convicted for offence punishable under Section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine of ₹500/-, in default of payment of fine, to undergo two months additional rigorous imprisonment.

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2. The case of the prosecution, in brief, is that on 21.09.2015, at about 6 a.m., in village Rawanbhata, Police Station Gariyaband, the appellant is alleged to have poured kerosene oil on the body of deceased Padma Bai, lit match-stick and set her ablaze, as a result of which, Padma Bai suffered burn injuries to the extent of 41%. The deceased Padma Bai was taken to the district hospital Gariyaband, for treatment where she was firstly medically examined and treated by Dr. Ajay Singh (PW-10) who has given MLC report (Ex.P-20). The dying declaration of deceased Padma Bai was recorded vide Ex.P-21 by executive Magistrate Tahsildar Rakesh Sahu (PW-11) after duly certified by

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Dr. Ajay Singh (PW-10) that she was physically and mentally in a fit state of mind for recording dying declaration. Thereafter, considering the health condition of the deceased, she was referred to Mekahara hospital, Raipur, for better treatment, where deceased Padma Bai succumbed to her injuries during the course of her treatment on 25.09.2015, thereby committed the aforesaid offence. Further case of the prosecution is that, on the date of offence, there was a dispute arose between appellant and deceased on the matter of watching obscene movie by the appellant and when the deceased prohibited the appellant from watching obscene movie, out of anger, the appellant is alleged to have poured kerosene oil on the body of deceased and set her ablaze. On the basis of Dehati Nalishi (Ex.P-10), FIR was registered vide Ex.P-13. Inquest proceedings were conducted vide Ex.P/08 and the dead-body of deceased was sent for postmortem examination. As per the postmortem report (Ex.P/23), conducted by Dr. S. K. Bagh (PW-12), the cause of death was burn injuries and their complications. The seizure of articles were made vide Ex. P/01 from the

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spot and sent for chemical examination to FSL. In the FSL report (Ex.P-21) stains of kerosene oil were found on articles A1, A2, B & C and B i.e. glass bottles and clothes and blanket respectively.

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3. The prosecution in order to prove its case examined as many as 19 witnesses and exhibited 26 documents along with two articles, whereas the appellant in support of his defence has examined one witness and exhibited three documents.

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

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5. Mr. Akash Kumar Kundu , learned counsel appearing for the appellant, submits that the deceased was not the legally wedded wife of the appellant. He also submits that according to dying declaration, on the spur of moment, the incident has taken place and the appellant himself had extinguished the fire and taken

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her to the Police Station which is proved from the statement of Nand Kumar Netam (PW-6) and the appellant had hospitalized the deceased. Thus, the appellant has no intention to cause her death and only on account of sudden quarrel, under anger and in heat of passion, the appellant poured kerosene oil over the body of the deceased and, thereafter, set her ablaze, due to which the deceased suffered burn injuries and died later during the course of her treatment. Therefore, the case of the appellant would fall within the purview of Exception 4 to Section 300 of IPC, as his act is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/ altered to an offence under Section 304 (Part-1 or Part-II) of IPC and as the appellant is in jail since 24.09.2015 i.e. more than 08 years, the sentence imposed upon him be reduced for the period already undergone by him. Learned counsel would rely on the decision of the Supreme Court in the matter of Kalu

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Ram v. State of Rajasthan¹ to bolster his

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AIR 2000 SC 3630

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submissions. Hence, he prayed for the present appeal 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 the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. It is further submitted that considering the dying declaration (Ex.P/21) coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. It is also submitted that Exception 4 to Section 300 of IPC is not attracted in this case and it is not the 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 postmortem report (Ex.P/23), wherein it has been opined that the cause of death is burn injuries and their complications which is duly proved by Dr. S. K. Bagh (PW-12), which in our considered opinion is a correct finding of fact based on evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding.

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9. Now, the next question would be whether the accusedappellant herein have caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by taking into consideration the dying declaration (Ex.P/21), wherein she has implicated the name of the appellant herein to be the author of the crime. The said dying declaration (Ex.P/21) has been recorded by executive Magistrate Tahsildar Rakesh Sahu (PW-11) after duly certified by Dr. Ajay Singh (PW-10) that she was in a fit state of

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mind for recording dying declaration. Tahsildar Rakesh Sahu (PW-11) appearing in the witness box before the Court has proved the dying declaration (Ex.P/21) and even Dr. Ajay Singh (PW-10), who firstly treated and medically examined the deceased at District Hospital, Gariyaband, has given the certificate (Ex.P/12) that the deceased was in fit state of mind to give dying declaration, as such, we find no reason to discard/disbelieve the dying declaration (Ex.P/21), as the same is true and voluntary. Thus, on the basis of dying declaration (Ex.P/21) coupled with other evidence available on record, the learned trial Court has rightly held that the appellant poured kerosene oil over the body of the deceased and, thereafter, set her ablaze, due to which deceased suffered burn injuries and died later on during the course of her treatment. Accordingly, we hereby affirm the said finding that it is the appellant-accused who have 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 case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can 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 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

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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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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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11. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in above-mentioned judgment, it is quite vivid as per the dying declaration, on the date of offence, the appellant was watching obscene movie and when the deceased prohibited to do so, a dispute arose between them

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and on the spur of moment and out of anger, the appellant poured kerosene oil on her (deceased) and set her ablaze by match-stick, due to which she (deceased) suffered burn injuries. It is also clear from the statement of Nand Kumar Netam (PW-6) that the appellant had taken the deceased to the Police Station and the deceased was hospitalized at district hospital, Gariyaband by the appellant which is also proved by the statement of the deceased and also from the statement of Yas Ram Kashyap (PW-7) recorded vide Ex.P-16. As such, there was no premeditation on the part of the appellant to cause death of the deceased, but only because of sudden quarrel, in anger and under heat of passion, the appellant poured kerosene oil on the deceased and set her ablaze, due to which she suffered burn injuries and died. Thus, in view of dicta 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 him on the body of the deceased would likely to cause her death, therefore, the act of the

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appellant herein would fall within the purview of Exception 4 to Section 300 of IPC, as it completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, consequently, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC.

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12. In view of the aforesaid discussion, the conviction of the appellant for offence punishable under Section 302 of IPC is altered/converted to Section 304 Part-II of the IPC and the appellant is sentenced to the period already undergone, as he is in jail since 24.09.2015 i.e. more than 8 years, however, the fine amount imposed by the learned trial Court shall remain intact. Accordingly, appellant be released from jail forthwith, if not required in any other offence/crime

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13. This criminal appeal is partly allowed to the extent indicated herein-above.

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14. Let a certified copy of this order along with the original record be transmitted forthwith to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for information and necessar action, if any.

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

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Khatai

Sanju Rajput v. State Of Chhattisgarh

Case brief

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Sanju Rajput v. State Of Chhattisgarh

Case brief

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