Hirday Ram Kanwar Vs State of Chhattisgarh

--------------------------------------------------------------------------------------- For Appellant : Ms. Nirupama Bajpai, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent-State : Mr. Amit Buxy, Panel Lawyer. ------------------------------------------------------------------------------

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DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board ( 03.03 .2025)

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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

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Digitally signed by HEERA LAL SAHU Date: 2025.03.07 17:39:48 +0530

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the impugned judgment dated 12.12.2018, passed by Additional Judge, Dongergarh, District Rajnandgaon to the Court of First Additional Sessions Judge, Rajnandgaon (C.G.), in Sessions Trial No.04/2017, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced for life imprisonment and fine of Rs.1000/-, in default of payment of fine, 1 year additional rigorous imprisonment.

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2 The case of the prosecution, in brief, is that on 02.03.2017 at about 9:30 am, in village Haransinghi, Police Station Dongargarh, District Rajnandgaon (C.G.), the appellant tied the hands and legs of his wife, Bodhan Bai @ Budhan Bai Kanwar (now deceased), poured kerosene oil on her body and enlightened with match stick, by which she suffered grievous burn injuries and died on 13.03.2017 at Dr. Bheemrao Ambedakar Hospital, Raipur, during course of treatment, thereby, committed the offence under Section 302 of IPC.

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3 Further, the case of the prosecution, in a nutshell, is that on 02.03.2017, Head Constable Suresh Kumar Verma of Dongargarh Police Station received

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information from Community Health Center, Dongargarh via telephone from Dr. S. Chaudhary (PW-16) that the victim Bodhan Bai alias Budhan Bai was admitted for treatment after being burnt in a fire and the hospital memo was also received according to which Bodhan Bai alias Budhan Bai, wife of Hirday Kanwar, aged about 45 years, resident of Haransinghi, was brought for treatment in 70 to 75 per cent burnt condition. On the said information, he went to the Community Health Center and filled form for treatment of the victim and got her treated. When the condition of the victim became critical, she was sent to Medical College, Rajnandgaon for intensive care. In Medical College, Rajnandgaon, on 02.03.2017, the deceased gave dying declaration to the Executive Magistrate (PW-19) vide Ex.P-19 after having certified by treating Doctor that she was in a fit mental and physical state of mind to record the dying declaration in which the victim Budhan Bai told that her husband Hirday Ram Kanwar tied her hands and legs, took her to a room, poured kerosene oil over her body and set her on fire using a matchstick. On the basis of the aforesaid hospital

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memo, investigation and dying statement, a case under Section 307 of the Indian Penal Code was registered against the accused and investigation was taken up. The victim Bodhan Bai alias Budhan Bai was in a serious condition and was referred from District Hospital, Rajnandgaon to Dr. Bhimrao Ambedkar Hospital, Raipur for treatment where she died during treatment on 13.03.2017. Zero Merg Intimation was registered vide Ex.P-22, Merg Intimation was registered vide Ex.P-14, FIR was registered vide Ex.24, Inquest was conducted vide Ex.P-4 and dead body of deceased Bodhan Bai was subjected to postmortem, which was conducted by Dr. Ullas Gonnade (PW-15), who proved the postmortem report Ex.P-5, in which, cause of death was stated to be cardio respiratory failure as a result of burns and their complications. Properties were seized and sent for chemical examination to FSL and as per the FSL report (Ex.P-28), kerosene oil was found on plastic box (Article E). After due investigation, appellant was charge-sheeted for the aforesaid offence.

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4 The prosecution in order to prove its case examined as many as 24 witnesses and exhibited 28

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documents. Statement of the appellant under Section 313 of CrPC was recorded wherein he denied guilt, however, in support of his defence he has examined only one witness (DW-1) and exhibited only two documents (Ex.D-1 and Ex.D-2).

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5 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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6 Learned counsel for the appellant would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and even otherwise, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant, as the deceased died on 13.03.2017 i.e. after 11 days of injuries and the injuries were not sufficient in the ordinary course of nature to cause death. Therefore, in light of the decision rendered by the Hon’ble Supreme Court in the matter of 1 Sanjay v. State of Uttar Pradesh the conviction of

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the appellant for offence under Section 302 of I.P.C. be altered to Section 304 Part-II of I.P.C. and he be

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1 (2016) 3 SCC 62

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sentenced to the period already undergone, as he is in jail since 08.03.2017 and the appeal be allowed in part.

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7 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. He further submits that it is not a case where the sentence of appellant can be converted to Section 304 Part-II of I.P.C., therefore, the appeal deserves to be dismissed.

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8 We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

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9 During treatment, after having been certified by the treating Doctor that she was in a fit mental and physical state of mind, the dying declaration of the deceased was recorded vide Ex.P-19 by Executive Magistrate, Priti Larokar (PW-19). The Executive Magistrate, Priti Larokar (PW-19) has proved that the deceased has given dying declaration to the effect that that it is the appellant who poured kerosene oil on the

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body of the deceased and enlightened with matchstick after tightening the legs and hands of the deceased. Furthermore, in the FSL report (Ex.P-28) kerosene oil was also found on articles A (half-burned clothes of the deceased & rope), D (soil taken from the spot) and E (yellow colour plastic box). Furthermore, nothing has been extracted from the statement of PW19 Priti Larokar that the deceased was not in fit mental and physical state of mind to record dying declaration. Even otherwise, a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. [See. Laxman vs. State of Maharashtra 2] . In that view of the matter, we are of the considered opinion that the trial Court has rightly recorded a finding that it is the appellant who had caused the burn injury to the deceased on 02.03.2017, on account of which, she died during treatment on 13.03.2017 at 1:00 am, as recorded in Merg Intimation (Ex.P-22).

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10 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

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2 (2002) 6 SCC 710

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

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11 The Hon’ble Supreme Court in the matter of Sanjay (supra), relying upon the matter of Ganga Dass v. State of Haryana 3 has held in paragraph 15 as under :-

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“ 15 . In Ganga Dass v. State of Haryana⁴ , the accused gave iron pipe single blow on the head of the deceased and the deceased died eighteen days after the occurrence due to septicaemia and other complications, the conviction of the appellant under Section 302 IPC was altered by this Court to Section 304 Part II IPC. This Court observed as under: (SCC pp. 535-36, para 6)

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“6. We find considerable force in this submission. As stated above the occurrence took place on 18-11-1988 and the deceased died 18 days later on 5-12-1988 due to septicaemia and other complications. The doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard tot he circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the

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4 1994 Supp (1) SCC 534: 1994 SCC (Cri) 592

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3 1994 Supp (1) SCC 534: 1994 SCC (Cri) 592

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medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure, etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IpC and sentence him to undergo six years’ RI. The sentence of fine of Rs. 2000 along with default clause is confirmed. Accordingly the appeal is partly allowed.”

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12 Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court in Ganga Dass (supra) followed in Sanjay (supra) and reverting to the facts of the case, as per Merg Intimation (Ex.P-22), it is quite vivid that the date of the incident was 02.03.2017 (wrongly mentioned as 13.03.2017) and the deceased died on 13.03.2017 at 1:00 am, i.e. after 11 days of incident. As such, the appellant had no intention, but knowledge that the injury is likely to cause death. Therefore, in our considered opinion, the case of appellant would fall under Section 304 PartII of I.P.C.

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13 In view of the aforesaid discussion, conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C.

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and he is sentenced to undergo 10 years’ rigorous imprisonment. However, the fine sentence imposed by the learned trial Court shall remain intact.

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14 Accordingly, the criminal appeal is party allowed to the extent indicated herein-above.

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15 Let a certified copy of this judgment along with the original record be transmitted forthwith to the trial Court concerned and to the Superintendent of Jail where he lodged and suffering jail sentence, for information and necessary action, if any.

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

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H.L. Sahu

Hirday Ram Kanwar v. State of Chhattisgarh

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Hirday Ram Kanwar v. State of Chhattisgarh

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