Suresh Ekka Vs State of Chhattisgarh

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(Cr. A. No. 824 of 2019)

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2024:CGHC:36960-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRIMINAL APPEAL NO. 824 OF 2019 ( Arising out of Judgment dated 7.5.2019 passed by Sessions Judge, Ambikapur, District Surguja in Sessions Case No. 42 of 2018 )

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Suresh Ekka, S/o Rajaram Ekka, aged about 24 years, R/o Bataikela, Ghodhapara, Raipur, P.S. and Tahsil Sitapur, District Surguja (C.G.)

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... Appellant(s)

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(In jail) Versus

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State of Chhattisgarh, through: Station House Officer, P.S. Sitapur, District Surguja (C.G.)

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... Respondent(s)

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For Appellant :- Mr. Nishi Kant Sinha, Advocate. For Respondent/State :- Mr. Rahul Tamaskar, Government Advocate.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Amitendra Kishore Prasad

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Judgment on Board [20.09.2024]

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Sanjay K. Agrawal, J.

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1. Invoking criminal appellate jurisdiction of this Court,

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the present criminal appeal, under Section 374(2) of

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(Cr. A. No. 824 of 2019)

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the Code of Criminal Procedure, 1973 (CrPC, in brief) has been filed by the appellant calling in question the legality, validity and correctness of the judgment dated 7.5.2019 passed by learned Sessions Judge, Ambikapur, District Surguja in Sessions Case No.42 of 2018, by which the appellant has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (IPC, in brief) and sentenced thereunder to suffer Imprisonment for Life with fine of Rs.500/- and in default of payment of fine, to undergo additional Rigorous Imprisonment for 06 months.

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2. A brief factual background of the prosecution case is that in the intervening night of 23.8.2017 and 24.8.2017, between 8:00 p.m. and 4:00 a.m., at Village Bataikela, Ghodapara, under Police Station Sitapur, District Surguja, the appellant is said to have set his wife, Nisha Ekka, on fire by matchstick after pouring kerosene oil on her body on account of which she suffered serious burn injuries for which she was taken to the Community Health Centre, Sitapur from where she was referred to District Hospital, Ambikapur and from where she was further referred to a hospital at Raipur but the appellant is said have not

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(Cr. A. No. 824 of 2019)

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taken her to Raipur for her better treatment and she was treated at the house of her mother, PW-4 Balkumari, and subsequently after two months she was admitted at District Hospital, Ambikapur where on 25.10.2017 she had given her dying declaration (Ex.P-10), recorded by PW-6 Bijyendra Singh, Executive Magistrate, Sitapur, implicating the appellant for the said crime. She succumbed to her injuries on 27.10.2017 during the course of her treatment at District Hospital, Ambikapur on the report of which, an unnumbered Merg Intimation (Ex.P-2) was recorded by Police Station, Sitapur. Inquest report (Ex.P-6) was prepared and the deadbody of deceased Nisha Ekka was subjected to postmortem which was conducted by PW-1 Dr. K.P. Vishwakarma who in the post-mortem report (Ex.P-1) opined the cause of her death to be septicemia on account of burn injuries. Subsequently, a numbered Merg Intimation (Ex.P-2A) was recorded and during the course of investigation, statements of the concerned witnesses were recorded. FIRs (Ex. P-3 & P-3A) were registered against the appellant for offence under Section 302 of IPC. Spot Map (Ex. P-14) and

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(Cr. A. No. 824 of 2019)

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Nazri Naksha (Ex. P-11) prepared by Patwari, were drawn. Memorandum statement of the appellant was recorded vide Ex.P-18 and he was arrested vide Ex. P-19.

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3. On completion of the investigation, the appellant was charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. The appellant appeared before the Trial Court where charge was framed against him for offence under Section 302 of IPC to which he denied and claimed to be tried.

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4. During the course of trial, in order to prove its case, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited 20 documents vide Exhibits P-1 to P-20. After closure of the prosecution evidence, statement of the accused appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. In defence, statements of two witnesses have been relied on as DW-1 and DW-2.

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(Cr. A. No. 824 of 2019)

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5. After conclusion of trial, learned Trial Court, on appreciation of oral and documentary evidence came on record, found the appellant guilty of offence under Section 302 of IPC and accordingly convicted and sentenced him thereunder for Life Imprisonment and fine of Rs.500/- with default stipulation by impugned judgment dated 7.5.2019 which is under challenge in the present appeal.

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6. Mr. Nishi Kant Sinha, learned counsel appearing for the appellant, submits that the prosecution has miserably failed to prove the alleged offence against the appellant beyond reasonable doubt and therefore his conviction for the said offence is absolutely unjustified and deserves to be set-aside. However, in alternative, he makes a submission that since the deceased Nisha Ekka in her dying declaration (Ex. P-10) herself has stated that the appellant had extinguished the fire and PW-5 Basantram, grandfather of deceased Nisha Ekka, also has stated that deceased Nisha Ekka had herself set her ablaze and it is the appellant who had admitted her at the hospital and taking care of her, therefore, in light of

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(Cr. A. No. 824 of 2019)

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the decision of the Supreme Court rendered in the matter of Kalu Ram v. State of Rajasthan 1, conviction of the appellant for offence under Section 302 of IPC is liable to be converted/altered to one under Section 304 (Part-II) of IPC and taking into consideration the period of detention of the appellant who is in jail since 12.12.2017, i.e. more than 06 years & 09 months, he be sentenced to the period already undergone.

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7. Mr. Rahul Tamaskar, learned Government Advocate, appearing for the Respondent/State, however submits that the prosecution has bring home the offence beyond reasonable doubt and the conviction of the appellant for offence under Section 302 of IPC for committing murder of his wife, deceased Nisha Ekka, who has clearly stated in her dying declaration that the appellant had set her on fire by matchstick after pouring kerosene on her body, is absolutely justified and well merited and needs no conversion/alteration to a lesser offence and the appeal is liable to be dismissed.

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1 AIR 2000 SC 3630

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(Cr. A. No. 824 of 2019)

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8. We have heard learned Counsel for parties, considered their rival submissions and also perused the record of the case with utmost care and circumspection.

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9. The primary question, as to whether the death of deceased Nisha Ekka was homicidal in nature, has been answered by learned Trial Court in affirmative relying upon the statement of PW-1 Dr. K.P. Vishwakarma who has conducted the post-mortem examination of deceased Nisha Ekka and also proved the post-mortem report (Ex.P-1) in which he has opined the cause of her death to be shock leading to cardio-respiratory arrest (septicemia) on account of burn injuries, which, in our considered opinion, is correct finding of fact based on medical evidence available on record and which is neither perverse nor contrary to the record. We, therefore, affirm the said finding of learned Trial Court holding that the death of deceased, Nisha Ekka, was homicidal in nature.

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10. Now, the substantive question is, as to whether the appellant is author of the crime and has caused death of deceased Nisha Ekka?

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(Cr. A. No. 824 of 2019)

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11. Learned Trial Court to base the conviction of the appellant for the said offence has recorded the finding predominantly on the basis of the dying declaration (Ex.P-10) that deceased Nisha Ekka had given to PW-6 Bijyendra Singh, the Executive Magistrate, clearly implicating the appellant that he had set her on fire by matchstick after pouring kerosene oil on her body. Though the said dying declaration (Ex.P-10) has not been recorded by PW-6 Bijyendra Singh, the Executive Magistrate, after due certification from the doctor that she was in fit physical and mental state of mind to give her dying declaration, but he has has clearly that deceased Nisha Ekka was fit to give her dying declaration. As such, the learned Trial Court, relying upon the said dying declaration of deceased Nisha Ekka, recorded by the Executive Magistrate PW-6 Bijyendra Singh, to be true and voluntary, has rightly held that it is the appellant who has committed the crime of setting his wife on fire by matchstick after pouring kerosene oil on her body which resulted to her death. Thus, in our considered opinion, the said finding of learned Trial Court also being neither perverse nor contrary to the record deserves to be and it is hereby affirmed.

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(Cr. A. No. 824 of 2019)

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12. Now, the question would be whether the case of the appellant would fall under Part-II of Section 304 of IPC, as contended by learned counsel for the appellant?

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13. In order to consider whether the case of the appellant would fall under Part-II of Section 304 of IPC, it would be appropriate to notice herein the decision rendered by the Supreme Court in the matter of Kalu Ram (supra) in which their Lordships have elaborately dealt with the issue and observed in paragraphs 7 and 8 which read 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

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(Cr. A. No. 824 of 2019)

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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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14. Coming to the facts of the present case, relying upon the aforesaid principles of law laid down by their Lordships of the Supreme Court in Kalu Ram (supra), it is quite apparent that deceased Nisha Ekka in her dying declaration (Ex.P-10) has clearly stated that the appellant had extinguished the fire by pouring water on her body and PW-5 Basantram, grandfather of deceased Nisha Ekka, also has admitted in his statement before the Court that the appellant had hospitalized the deceased at the hospital at Sitapur from where she was referred to District Hospital,

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Ambikapur though the appellant had not taken the deceased to the hospital at Raipur for her better treatment. Thus, it is quite established that though the appellant had no premeditation and intention to cause death of his wife, deceased Nisha Ekka, but he must have had knowledge that the injuries caused by him to her wife are likely to cause her death. As such, the case of the appellant would fall under Exception 4 to Section 300 of IPC and his conviction under Section 302 of IPC, in our considered opinion, can be altered to one under Section Part-II of Section 304 of IPC instead of Section 302 of IPC and it is ordered so.

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15. Accordingly, we set aside the conviction of the appellant for offence under Section 302 of IPC and the sentence awarded thereunder as well. Instead, we convict him for offence punishable under Section 304 (Part-II) of IPC and sentence him thereunder to the period already undergone as he is reported to be in jail since 12.12.2017, maintaining the fine amount with its default sentence. He be released from jail forthwith, if his detention is not required in connection with any other offence.

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(Cr. A. No. 824 of 2019)

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16. Resultantly, this criminal appeal is partly allowed to

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the extent indicated herein-above.

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17. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Jail Superintendent be also supplied with a copy of this judgment, for information and necessary action, if any, at the earliest.

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sharad

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Sd/- Sd/- (Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Digitally signed SHARAD by SHARAD KUMAR KUMAR YADAVDate: YADAV 2024.09.24 17:47:26 +0530

Suresh Ekka v. State of Chhattisgarh

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Suresh Ekka v. State of Chhattisgarh

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