Chattisgarh High Court
Sushil Kumar Sonwani vs State Of Chhattisgarh on 22 April, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 672 of 2014
Sushil Kumar Sonwani S/o Laxman Sonwani, aged
about 40 Years, R/o Village Khairwar, Police
Station Pandatarai, Civil & Revenue District
Kabirdham (C.G.)
Appellant
Versus
State of Chhattisgarh Through Station House
Officer, P.S. Kawardha, District Kabirdham
(C.G.)
Respondent
For Appellant : Mr. F.S. Khare, Advocate.
For RespondentState : Mr. Saumya Rai, PL
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
22/04/2022
Sanjay K. Agrawal, J.
1. This criminal appeal has been preferred by the appellant under Section 374 of the Code of Criminal Procedure against the impugned judgment of conviction and order of sentence dated 22.09.2011 by which appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/, in default of nonpayment of fine, additional R.I. for one 2 year has been awarded.
2. The case of the prosecution, in brief, is that on 17.03.2011, at about 2:30 PM, appellant poured kerosene oil on his wife Janki Bai and set her ablaze, as a result of which she succumbed to the burn injuries on 16.04.2011 and thereby committed the offence punishable under Section 302 of the Indian Penal Code.
3. Further case of prosecution is that on 17.03.2011, information was received by the concerned police station from District Hospital, Kawardha that one Janki Bai is admitted in the hospital, having suffered burn injury, in furtherance of which, dying declaration (Ex. P/16) of the deceased Janki Bai was recorded by Nayab Tehsildar Panchram Bhaskar (PW8) on which deceased made statement that her husband, the present appellant, demanded money for liquor and when she refused to give money, he assaulted her and thereafter poured kerosene oil on her and set her ablaze. When she was admitted in the hospital, it was found that she had suffered 9095% burn injury. Thereafter, on 22.03.2011 she was discharged from the said hospital but then she died on 3 18.04.2011 due to infection. Thereafter, inquest was conducted vide Ex. P/2A and the Post Mortem was conducted vide Ex.P/5 in which the cause of death is said to be burn due to septicemia and secondary infection. From the spot, certain articles including plain soil, bloodstained soil, matchsticks, bottle of kerosene oil were seized vide Ex. P/1. After due investigation, the appellant/accused was chargesheeted for the offence punishable under Section 302 of IPC which was registered and committed to the Court of Sessions, Kabirdham (Kavardha) for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.
4. In order to bring home the offence, prosecution examined 9 witnesses and brought into record 17 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, while the prosecution has proved Ex. D/1, statement of Chandan Das.
5. The trial Court, after considering the oral and documentary evidence on record, proceeded to convict him for the offence punishable under Section 302 of the Indian Penal Code and 4 sentenced him as aforesaid against which the criminal appeal has been preferred.
6. Mr. F.S. Khare, learned counsel for the appellant, would submit that the appellant has not committed the offence and there is no evidence available on record to connect him with the offence in question. Considering the material available on record, the trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of IPC and at best, the crime committed by the appellant would be covered under Exception 4 to Section 300 of IPC, and he can be convicted for Section 304 Part II of IPC as a sudden dispute arose between the appellant and deceased on account of money demanded by the appellant herein and it was without premeditation. He would further submit that the appellant is in jail since 20.04.2011 and since more than 11 years have passed, his conviction under Section 302 of IPC be converted into Section 304 Part II of IPC and the sentence be awarded for the period already undergone by him in light of the decision rendered by the Supreme Court in the matter of Kalabai v. State 5 of Madhya Pradesh1.
7. On the other hand, Mr. Saumya Rai, learned State counsel would submit that the prosecution has proved the charge under Section 302 of the IPC against the appellant without reasonable doubt and since the accused committed the said crime with intention to cause death, the offence would fall under Section 302 of the IPC not under Section 304 Part II of IPC. As such, the appeal deserves to be dismissed.
8. We have heard learned counsel for the parties, considered the rival submissions made herein above and perused the material available on record.
9. The first question for consideration is whether the death of deceased Janki Bai was homicidal in nature?
10. The trail Court, after appreciating the oral and documentary evidence on record, reached to the conclusion that death of deceased Janki Bai was homicidal in nature relying upon the postmortem report (Ex. P/5) and the statement of Dr. Santosh Luniya (P.W.4) who has clearly stated that deceased died on account of 1 AIR 2019 SC 2135 6 septicemia and secondary infection as she was admitted to the hospital with 9095% burn injuries on 17.03.2011 but her relatives secured her discharge from the hospital on 22.03.2011 without full recovery due to which septicemia was developed in her body and she died on 16.04.2011. As such, the trial Court has rightly held that the cause of death was homicidal in nature and we hereby concur with the finding of the trial Court and affirm the finding so recorded that the death of the deceased was homicidal in nature.
11.The next question for consideration is whether the trial Court has rightly convicted the appellant for the offence under Section 302 of the IPC?
12.The dying declaration was given by the deceased Janki Bai on 17.03.2011 which was taken by Panchram Bhaskar, Nayab Tehsildar (PW8). It has been proved by him while appearing in the Court and the correctness of the dying declaration has not been seriously disputed. What has been contended is that the dispute arose because appellant demanded money from the deceased for buying liquor but when she refused 7 to give money, he slapped her thrice and thereafter, poured kerosene oil on her and set her on fire.
13. In the matter of Hari Shanker v. State of Rajasthan2, the appellant therein picked up a burning kerosene wickstove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wick came in contact with his clothes, they caught fire and the deceased ultimately died as a result of the burns received by him. In this case, their Lordships of the Supreme Court held that since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death and altered the conviction of the appellant therein from Section 302 to Section 304 Part II of IPC. Paragraphs 2, 3 and 4 of the judgment state as under : "2. Only question that we have to consider in this appeal is what offence can be said to have been committed by the appellant on the basis of the facts found by the High Court. It has been held that 2 (1998) 8 SCC 355 8 while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the teaclub of the Air Force, 32 Wing (MT Section), an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wickstove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in contact with his clothes they caught fire. The deceased ultimately died as a result of the burns received by him.
3. What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In veiw of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.
4. We, therefore, allow this appeal partly, alter the conviction of the appellant from under Section 302 to Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years."
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14. The decision rendered in Hari Shanker (supra) was followed with approval by the Supreme Court subsequently in the matter of Kalabai (supra) wherein the appellant threw burning stove on the deceased due to which clothes of deceased caught fire and serious burn injuries were caused. The deceased was admitted to the hospital with 96% burn injuries pursuant to which she herself stated in her dying declaration that the incident happened when quarrel was going on between parties. Their Lordships came to the conclusion that there is no evidence to come to conclusion that the appellant had any intention to kill deceased and in absence of intention, accused is liable to be convicted under Section 304 Part II instead of Section 302 of IPC. It has been pertinently observed in paragraph 13 as under : "13. The trial Court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the socalled dying declaration (Exh.P2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial Court for coming to 10 such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to any of the reasons assigned by the trial Court relating to the authenticity or reliability of the dying declaration. The view taken by the trial Court, in our considered opinion, is the only possible view under the facts and circumstances of the case."
15. The Supreme Court in the matter of Kaluram Vs. State of Rajasthan3 has converted the offence under Section 302 of IPC to Section 304 Part II of the IPC as the appellant therein, who was in a highly inebriated condition, demanded ornaments from his wife and on her refusal, he got infuriated and doused her with kerosene oil and set her ablaze but finding the flames flaring up he poured water to save her life and accordingly his conviction was altered from Section 302 to Section 304 Part II of IPC which has been observed by their Lordships of the Supreme court as under: "7. But then, what is the nature of the offence proved against him? It is an admitted case that the 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 on her and 3 (2000)10 SCC 324 11 wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the 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 that 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 first degree murder to culpable homicide not amounting to murder."
16. Reverting to the facts of the case in light of the decisions of the Supreme Court in the aforementioned cases, it is clear that the deceased was admitted to the hospital on 17.03.2011. She was examined and found with 90 12 95% burn injury and equally the appellant herein was also examined by Dr. Usha Surayavanshi (PW9) and he was also found suffering from 27% burn injury. The deceased got discharged on 22.03.2011 from the hospital but she was not fully recovered due to which later on, she developed septicemia and secondary infection and died at home on 16.04.2011. It is also quite apparent that the relationship between the appellant and the deceased though were not very cordial but it was not very estranged either. The incident happened because a petty dispute arose as the appellant demanded money for liqour and the deceased refused to give him money. Though the appellant had no intention to cause the death of deceased Janki Bai but he knew it would likely cause her death. There is no evidence to come to the conclusion that the appellant had the intention of killing the deceased, but the death of the deceased was caused by burn injuries and as such, it is a fit case where the conviction of the appellant can be converted from Section 302 of IPC to Section 304 Part II of IPC in light of the decisions 13 rendered by the Supreme Court in the matters of Kalabai(Supra), Kaluram(Supra) and Hari Shankar (Supra). As such, we are of the considered opinion that the appellant would get the benefit of Exception 4 of Section 300 and his conviction is hereby altered from Section 302 to Section 304 Part II of IPC. Since the appellant is in jail since 20.04.2011 i.e. more than 11 years, we hereby award the sentence already undergone. The appellant be released from jail forthwith if not required in any other case.
17.Accordingly, the Criminal Appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
V/