Dinesh Joshi @ Nanka Vs State Of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 821 of 2017

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{Arising out of judgment dated 04-04-2017 passed in Sessions Trial No.102/2016 by the learned Sessions Judge Janjgir-Champa}

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Dinesh Joshi @ Nanka, S/o. Rajaram Joshi, Aged About 20 Years, Satnami, R/o. Village Khamhariya, Police Chauki Hardi Bazar, Thana Kusmunda, District Korba, Chhattisgarh.

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---Appellant

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Versus

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State Of Chhattisgarh, Through The Police Station Baloda, District Janjgir Champa, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellant : Mr. Barun Kumar Chakrabarty, Advocate

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For Respondent : Mr. Arvind Dubey, 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 (08.02.2024)

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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 04.04.2017, passed by the Sessions Judge, Janjgir-Champa, in Sessions Trial No.102/2016, by which, the appellant herein has been convicted for the

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offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine, 30 days additional rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 06.05.2016 at 12:00 p.m. at village Ramnagar, Baloda, the appellant herein poured kerosene oil over the body of Suman Bai Kurre (now deceased) and set her ablaze by match-stick, by which, she suffered severe burn injuries. She was taken to Community Health Center, Baloda and thereafter, she was referred to CIMS Bilaspur and she died during the course of treatment on 10.05.2016 at night 1:30 a.m. on account of 92% burn injuries. The FIR was registered vide Ex.P-18 and Nazari Naksha was prepared vide Ex.P-5. The dying declaration of deceased Suman Bai was recorded by the Executive MagistrateNarendra Kumar Banjara (PW-12) vide Ex.P-29, after having been certified by Dr. J.L.Shrivastava (PW-1) that the deceased was in a fit physical and mental state of mind to record the dying declaration vide Ex.P-13. After death of deceased, merg intimation was registered vide Ex.P-7, inquest was conducted vide Ex.P-15 and dead body of deceased Suman Bai Kurre was subjected to postmortem, which was conducted by Dr. Rani Keshari

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(PW-13), who proved the post-mortem report Ex.P-16, in which, cause of death was stated to be cardio respiratory arrest due to extensive burn injury and its complication. 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 29 documents and the appellant-accused in support of his defence has 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. Barun Kumar Chakrabarty, learned counsel for the appellant, would submit that the dying declaration is not reliable as Dr. J.L.Shrivastava (PW-1) has declined to sign

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the document Ex.P-2, by which, deceased was certified to be in a fit physical and mental state of mind to record the dying declaration. He further submits that at the most, the offence under Section 304 Part-II of I.P.C. is made out, as the appellant has tried to extinguish the fire as per the statement of Rewtiraman (PW-6) and death occurred after four days from incident. As such, there was no intention to cause death but on account of dispute with regard to marriage, the incident took place and the appellant is in jail since 12.05.2016, therefore, the appellant be sentenced to the period already undergone in light of the decision rendered by the Supreme Court in the matter of Kalu Ram v. State of Rajasthan 1 and the appeal be allowed in part.

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6. Mr. Rahul Tamaskar, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond 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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1 AIR 2000 SC 3630

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8. The first question for consideration as to whether the death of deceased Suman Bai Kurre was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-16 proved by Dr. Rani Keshari (PW-13), 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 has caused the death of deceased Suman Bai Kurre ?

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10. Considering the dying declaration (Ex.P-29) proved by Executive Magistrate - Narendra Kumar Banjara (PW-12) and further considering the statement of Rewtiraman (PW-6), son of deceased, who had seen the incident, has clearly stated that the appellant has poured kerosene oil on the body of deceased and set her ablaze by matchstick and thereafter when her mother cried, he tried to extinguish the fire by water and further considering the fact that incident is of 06.05.2016 and death occurred after four days on 10.05.2016 during treatment, we are of the considered opinion that the finding recorded by the trial Court that appellant had caused the death of deceased Suman Bai Kurre is correct finding of fact based

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on evidence available on record and accordingly, we affirm the said finding.

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

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12. The Supreme Court in the matter of Kalu Ram (supra), held in paragraphs 7 and 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

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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. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in Kalu Ram (supra), it is quite vivid that as per statement of the son of deceased Rewtiraman (PW-6), the appellant tried to extinguish the fire and the deceased died after four days from incident. As such, there was no intention on the part of the appellant to cause death, but the appellant must have had knowledge that the injury caused by him is likely to cause death and therefore, the case of the appellant would fall under Exception 4 to Section 300 of I.P.C.

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14. In view of the above, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is sentenced to the period already undergone, as he is in jail since 12.05.2016 i.e. more than 7 years, however, the fine amount imposed by the trial Court shall remain intact. Accordingly, we direct that the appellant be released forthwith from jail, unless he is required in any other offence.

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

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16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court 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 suffering the jail sentence.

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

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Ashok

Dinesh Joshi @ Nanka v. State Of Chhattisgarh

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Dinesh Joshi @ Nanka v. State Of Chhattisgarh

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