Partly allowed

Premlal Thakur v. State Of Chhattisgarh

Chhattisgarh HC4 Feb 2024CRA/915/2015

Case brief

AI extract

What is this about?

Appellant challenged conviction for double murder and life sentence. Court held that injuries were not intended to cause death, satisfying Exception 4 to Section 300 IPC, converting offence to culpable homicide under Section 304 Part-I, but reduced sentence is already served.

What did the court decide?

Conviction under Section 302 IPC set aside and converted to Section 304 Part-I IPC; sentence of 10 years rigorous imprisonment awarded; appellant released from jail as period already completed; fine r

Premlal Thakur Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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(Criminal Appeal No.915 of 2015)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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[Arising out of judgment dated 22.07.2015, passed in Sessions Case No.185 of 2013 (State of Chhattisgarh v. Premlal Thakur), by the Sessions Judge, Durg District Durg (C.G.)]

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Criminal Appeal No. 915 of 20 15

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Premlal Thakur, Son of Laxman Thakur, aged about 28 years, Resident of Ward No.15, Banbarad, Police Station Nandaninagar, District Durg (Chhattisgarh)

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---- Appellant (In jail) Versus

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State of Chhattisgarh, through Police Station Nandaninagar, District Durg (Chhattisgarh)

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---- Respondent ----------------------------------------------------------------------------------------- For Appellant : Mr. S.C. Verma, Senior Advocate assisted by Ms. Neelam Jaiswal and Mr. M.L. Sahu, Advocates For Respondent : Mr. S.S. Baghel, Dy. Govt. Adv. -----------------------------------------------------------------------------------------

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (05.02.2024)

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Sanjay K. Agrawal, J

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(1) In this criminal appeal filed under Section 374(2) of Cr.P.C., the appellant-accused is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 22.07.2015, passed by the Sessions Judge, Durg in Sessions Case No.185 of 2013, whereby he has been convicted for offence under Section 302 of IPC (on two counts) and sentenced to undergo imprisonment for life with fine

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of Rs.100/- (on each count) and, in default of payment of fine amount, additional simple imprisonment for 01 month (on each count).

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(2) The case of the prosecution, in short, is that on 18.04.2013, at about 06:30 PM, the accused-appellant herein with the intent to kill his wife and daughter, namely, Smt. Kiran and Ku. Kavita (hereinafter referred to as the “deceased persons”), poured kerosene oil over their bodies and set both of them ablaze by lighting matchstick, due to which, Smt. Kiran suffered deep burn injuries to the extent of more than 90% and died during the course of treatment at hospital and and Ku. Kavita suffered grievous injuries and died on the spot and, thereby, the appellant is said to have committed offence under Section 302 of IPC (on two counts).

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(3) The further case of the prosecution is that the marriage of deceased- Smt. Kiran with the appellant was solemnized prior to 03-04 years from the date of incident and out of said wedlock they were having a daughter, namely, Ku. Kavita, who, on the date of offence, was aged about 01 year 08 months. Further, on the date of offence, deceased- Smt. Kiran was also carrying pregnancy of around 07 months and, immediately after the incident, deceased- Smt. Kiran was escorted to the hospital. Deceased- Ku. Kavita died on the spot, as her dead-body was embedded in debris of the house. During the course of treatment

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(Criminal Appeal No.915 of 2015)

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of deceased- Smt. Kiran, on 18.04.2013, at about 08:45 PM, at District Hospital, Durg, after having been certified by Dr. Akhilesh Yadav (PW-07) to be in fit mental and physical condition to give statement, her dying declaration was recorded by the Executive Magistrate-cum-Tehsildar, namely, Rambhau Dewangan (PW-12) vide Ex.P/08, wherein she clearly implicated the appellant herein to be the author of the crime and, after some time, deceased- Smt. Kiran died during the course of her treatment in hospital.

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(4) After the death of the deceased, information with regard to sudden and unnatural death of the deceased was sent to the police by the hospital, upon which, the police registered marg intimation (Ex.P/13) and FIR (Ex.P/12) against the appellant and wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/02 & P/04 and inquest proceedings were conducted vide Ex.P/03 & P/05. Spot map and pachnama were also prepared vide Ex.P/10 & Ex.P/11 respectively. The dead-bodies of deceased persons were sent for postmortem examination and in the postmortem report (Ex.P/21), conducted by Dr. V.S. Baghel (PW-11), it was opined that the cause of death of deceased- Smt. Kiran is shock due to extensive burn injuries, whereas as per postmortem report (Ex.P/ 33), conducted by Dr. Shivnarayan Manjhi (not examined), it was opined that cause of death of deceased- Ku. Kavita is asphyxia

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due to burn and its complications. Thereafter, the appellant was arrested vide Ex.P/26 and his memorandum was recorded vide Ex.P/15. Further, from the place of incident, one box of matchsticks and one can containing kerosene oil were seized vide Ex.P/16 and pieces of burnt clothes of deceased- Smt. Kiran alongwith soil and debris of the house were also seized vide Ex.P/ 18. From the possession of the appellant, his clothes ( baniyan and jeans-pant) were seized vide Ex.P/19. The aforesaid seized articles were sent for chemical examination and as per FSL report (Ex.P/35), it has been opined that kerosene oil was found in the can seized from the spot and particles of kerosene oil were found on the burnt clothes of deceased- Smt. Kiran and on the soil, which were seized from the spot as also on the clothes of the appellant ( baniyan and jeans-pant). Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Durg and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 19 witnesses and exhibited 35 documents apart from Final Report and Charge-sheet, whereas the appellant/accused in

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support of his defence has neither examined any witness nor exhibited any document.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein for offences under Section 302 of IPC (on two counts) and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

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(7) Mr. S.C. Verma, learned Senior Counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC that too on double count, as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that there is no evidence available on record to connect the appellant herein with the said offence except the dying declaration (Ex.P/08). However, a careful perusal of the said dying declaration (Ex.P/08) would show that though deceasedSmt. Kiran implicated her husband (appellant herein) to be the author of the crime in question, but at the same time, she has also stated that her husband (appellant herein) tried to extinguish the fire, in which, he also suffered burn injuries and further escorted/admitted her to the hospital for treatment by calling 108 ambulance, thus it transpires that though under

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(Criminal Appeal No.915 of 2015)

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anger and in heat of passion the appellant herein set deceasedSmt. Kiran ablaze by lighting matchstick, but he has no premeditation to cause her death. Therefore, it is quite clear that there was no motive or premeditation on the part of the appellant to cause death of the deceased persons and only because of altercation took place between the appellant and the deceasedSmt. Kiran, in which firstly deceased- Smt. Kiran herself poured kerosene oil over her body and, thereafter, under anger and in heat of passion, the appellant herein set her ablaze by lighting matchstick, due to which deceased- Smt. Kiran suffered burn injuries to the extent of 90% and died later on during the course of treatment, whereas deceased- Ku. Kavita, who was also present in the house at the time of incident, came under the influence of fire, suffered burn injuries and died on the spot, as her dead-body was embedded in debris of the house. As such, the case of the present 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, in light of the decision of the Supreme Court in the matter of Kalu Ram v. State of Rajasthan 1, the conviction of the appellant herein for offence under Section 302 of IPC (on two counts) can be converted/altered to an offence under Section 304 (Part-I or PartII) of IPC (on two counts) and as the appellant is in jail since

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1 AIR 2000 SC 3630 S

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(Criminal Appeal No.915 of 2015)

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19.04.2013 i.e. more than 10 years 09 months, he be sentenced for the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part.

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(8) 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. In view of statements of the prosecution witnesses coupled with other material available on record, especially dying declaration (Ex.P/08), the learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC (on two counts) and it is not the case where conviction of the appellant for offence under Section 302 of IPC requires to be altered to Section 304 (Part-I or Part-II) of IPC, as it is a case of double murder. Thus, the present appeal deserves to be dismissed.

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(9) 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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(10) The first and foremost question is as to whether the death of the deceased persons was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem reports (Ex.P/21 & Ex.P/33), wherein it has been opined that the cause of death of the

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deceased- Smt. Kiran is shock due to extensive burn injuries, which was conducted by Dr. V.S. Baghel (PW-11), whereas cause of death of deceased- Ku. Kavita is asphyxia due to burn and its complications, which was conducted by Dr. Shivnarayan Manjhi (not examined) and duly proved by Dr. S.K. Bagh (PW-19). Accordingly, taking into consideration the postmortem reports (Ex.P/21 & Ex.P/33) and the statements of Dr. V.S. Baghel (PW11) and Dr. S.K. Bagh (PW-19), we are of the considered opinion that the death of the deceased persons is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

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(11) Now, the next question would be whether the accusedappellant herein have caused injuries over the bodies of the deceased persons, which the learned trial Court has recorded in affirmative by mainly relying upon the dying declaration (Ex.P/08), which was recorded on 18.04.2013, at about 08:45 PM, at District Hospital, Durg, by the Executive Magistrate-cumTehsildar, namely, Rambhau Dewangan (PW-12) after due certification of Dr. Akhilesh Yadav (PW-07) with regard to fitness of the deceased- Smt. Kiran to give statement, wherein she implicated her husband (appellant herein) to be the author of the crime in question by stating that: on the date and time of the offence, she was in the house and when her husband (appellant

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herein) came to the house, he started quarreling with her and beaten her, on account of which, brief altercation took place between them, in which, firstly she herself poured kerosene oil over her body and, thereafter, her husband (appellant herein) under anger and in heat of passion set her ablaze by lighting matchstick, due to which she suffered burn injuries and as her daughter, namely, Ku. Kavita was also in the house, she also got burnt and died; her husband (appellant herein) tried to extinguish the fire, in which, he also suffered burn injuries and further escorted/admitted her to the the hospital for treatment by calling 108 ambulance. The said dying declaration (Ex.P/08) has duly been proved by the Executive Magistrate-cum-Tehsildar, namely, Rambhau Dewangan (PW-12), who has recorded the same. Rambhau Dewangan (PW-12) and Dr. Akhilesh Yadav (PW07), who has certified the deceased- Smt. Kiran to be in fit state of mind to give statement, have been subjected to lengthy crossexamination, but nothing has been extracted to hold that the said dying declaration (Ex.P/18) is not true and voluntary. Further, as per FSL report (Ex.P/35) particles of kerosene oil were found on the clothes of the appellant ( baniyan and jeans-pant), which were seized from his possession. Thus, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant herein who has caused injuries over the bodies of the deceased persons, due to which they succumbed

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to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant herein who has caused injuries over the bodies of the deceased persons, due to which they 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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(12) 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 IPC or same is liable to be converted to offence under Section 304 (Part-I or Part-II) of IPC in light of decision of the Supreme Court in Kalu Ram (supra), as contended by learned Senior Counsel of the appellant?

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(13) The Supreme Court, in the matter of Kalu Ram (supra) held in Para-7 & 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 matchstick. 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

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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 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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(14) The Supreme Court in the matter of Arjun v. State of Chhattisgarh 2 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 is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a

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2 (2017) 3 SCC 247

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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. 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

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unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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(15) In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of 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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(16) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi)3 has laid down four ingredients which should be tested to 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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(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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(17) 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 that in the instant case as per dying declaration (Ex.P/08), on the date and time of the offence, brief altercation took place between the appellant and deceased- Smt. Kiran, in which, firstly deceased- Smt. Kiran herself poured kerosene oil over her body and, thereafter, the appellant herein 3 (2019) 6 SCC 122

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under anger and in heat of passion set her ablaze by lighting matchstick, due to which, as per MLC report (Ex.P/32) she suffered deep burn injuries to the extent of 90% and died during the course of treatment, and as her daughter, namely, Ku. Kavita was also in the house, she also came under the influence of fire, suffered burn injures and died on the spot, as her dead-body was embedded in debris of the house. However, in the said incident appellant herein tried to extinguish the fire on deceased- Smt. Kiran, in which, he also suffered burn injuries and further escorted/admitted her to the the hospital for treatment by calling 108 ambulance, which fact has also been reiterated by Girwar Thakur (PW-04) and Rambhau Dewangan (PW-12) in their statements recorded before the Court. As such, it is quite clear that there was no premeditation on the part of the appellant to cause death of the deceased persons, but only because of sudden quarrel, in anger and under heat of passion, the appellant lighten the matchstick and set deceased persons ablaze, due to which they 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 persons, the appellant must have had knowledge as well as intention that such injuries inflicted by him on the bodies of the deceased persons would likely to cause their death, therefore, the act of the appellants herein would fall within the purview of Exception 4 to Section 300

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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-I) of IPC.

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(18) In view of the aforesaid discussion, the conviction of the appellant herein for offence under Section 302 of IPC (on two counts) as well as the sentence of life imprisonment on each count, awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased persons, but the injuries caused by him were not sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 (Part-I) of IPC (on two counts) and sentenced to undergo 10 years’ rigorous imprisonment on each count, which he has already completed. However, the fine sentence and default stipulation imposed by the learned trial Court alongwith the direction that both the sentences shall run concurrently shall remain intact. Consequently, the appellant be released from jail forthwith, if not required in any other matter/crime.

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(19) This criminal appeal is partly allowed to the extent

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indicated herein-above.

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(20) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and needful action, if any.

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

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s@if

Premlal Thakur v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Premlal Thakur v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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