Madhya Pradesh High Court
Hanumat vs The State Of Madhya Pradesh on 11 April, 2017
CRA-38-2012
(HANUMAT Vs THE STATE OF MADHYA PRADESH)
11-04-2017
Smt. Archana Tiwari, learned counsel for the appellant.
Shri Vivek Lakhera, learned Panel Lawyer for the
respondent/State.
1. Learned counsel for the appellant has submitted that in view of the facts of the case and the evidence on record, the case is covered by the judgment of Apex Court passed in the case of Kalu Ram vs. State of Rajasthan, reported in 2000 AIR (SC) 3630, and the appeal be heard finally.
2. The appellant is in jail for the last seven years. In view of the judgment of the Apex Court, with the consent of parties, the appeal is heard finally an disposed of finally.
3. The appellant has filed this appeal against the judgment dated 08.12.2011 passed in Sessions Trial No.201/2010. The appellant has been convicted for commission of offence punishable under Section 302 of Indian Penal Code and sentenced life imprisonment alongwith fine of Rs. 1000/- with default stipulation RI one year.
4. The prosecution story in brief is that the deceased received burn injuries on 02.04.2010. She was taken for treatment to Nagpur and admitted in the hospital. She died on 07.04.2010. In her dying declaration Ex.P/16, she stated that in the night, all of sudden the electric went off and there was dark. Her husband (appellant) questioned her that why she did not fill kerosene oil in the lamp. On this ground, her husband had beaten her and had sprinkled kerosene oil of the lamp on her and set her ablaze. When the deceased cried, the appellant sprinkled water on her body and the deceased received burn injuries. Thereafter, she was brought to the hospital and admitted in the hospital. The report of the incident was lodged at the police station. Police after investigation filed charge-sheet.
5. The trial Judge framed charge against the appellant for commission of offence punishable under Section 302 of the IPC. The appellant abjured his guilt and pleaded that he was falsely implicated in the case. The trial Court after trial found the appellant guilty for commission of offence punishable under Section 302 of the IPC and awarded sentence of life.
6. PW-1 Ratiram deposed that police had seized earth, matchstick and container of oil from the residence of the appellant vide seizure memo Ex.P/2 and he had affixed his thumb impression on the same. He also admitted his thumb impression on the map Ex.P/1 and arrest memo Ex.P/3. In his cross-examination, he admitted the fact that the appellant also received burn injuries in his hands.
7. PW-2 Kaushalya Bai is the grand mother of the deceased. She deposed that the appellant used to quarrel with the deceased and he had made demand of dowry. The deceased was admitted in the hospital and when she reached hospital, the deceased and the appellant were present in the hospital. Thereafter, the deceased was taken to Nagpur. When the deceased became conscious, she told her that the appellant had a quarrel with the deceased as there was dark in the night and the appellant abused the deceased that why the deceased had not filled kerosene oil in the lamp and beaten the deceased, thereafter, set the deceased ablaze. There are some contradictions in her statement with the statement recorded by the police.
8. PW-3 Jagdish Verma is the father of the deceased. He deposed that the deceased told him sthat the appellant had set her ablaze. PW-4 Molha Bai is the mother of the deceased. She also deposed that the deceased had told her that the appellant set her ablaze.
9. PW-5 Savitri, who is neighbour of the appellant deposed that she had seen the deceased in burnt condition. She further deposed that the deceased told her that she received burn injuries due to fall of lamp and there was no quarrel.
10. PW-6 Ramshankar Verma turned hostile. PW-7 Chanchlesh is the sister of the deceased. She also turned hostile. However, she deposed that the present appellant had made demand of a mangalsutra from the deceased. PW-8 Kamlesh turned hostile. PW-9 -Sumerchand also turned hostile. PW-10 Monu deposed that police had seized matchstick, oil container, thali, matchstick box and piece of burnt saree from the residence of the deceased vide seizure memo Ex.P/2 and also prepared map Ex.P/1 and admitted his signatures on the same.
11. PW-11 Dr. Rajesh Bardale deposed that he was posted on 07.04.2010 as Lecturer at Government Medical College, Nagpur and had examined the deceased. The deceased received 76% burn injuries. She died due to septicemia.
12. PW-12 Dr. Pramod Vachak deposed that on 02.04.2010 (wrongly typed 12.04.2010), he was posted as Medical Officer at Community Health Center, Chourai and the deceased was brought to him. She received 50% burn injuries. He further deposed that the police had directed him to record statement of the deceased. She was conscious at that time and she had given statement, which is Ex.P/6. In the aforesaid statement, which was recorded as dying declaration, she stated that she received burn injuries due to fall of kerosene lamp (chimni). PW-13 S.D.O.P. Pratapsingh Durvey deposed that he had recorded statements of witnesses Sumer Chandra, Chanchlesh and Kamlesh. PW-14 Radheyshaym, who is Patwari, deposed that he had prepared spot map Ex.P/9. He admitted his signatures on Ex.P/9, P/10 and P/11.
13. PW-15 Sub Inspector Kaushal Surya deposed that he had conducted the investigation and prepared the map Ex.P/1 and signed the same. He also seized earth, matchstick box, chimni, container of oil, kerosene oil stove vide seizure memo Ex.P/2. He also deposed that he had arrested the appellant vide Ex.P/3 and had recorded statements of witnesses Savitri, Ramshankar, Kaushalya, Jagdish, Molhabai.
14. PW-16 Sanjay deposed that he was posted as Head Constable. He had recorded statement of the deceased Ex.P/16. In the aforesaid statement, the deceased had stated that there was dark when light went off, at that time, her husband questioned that why she had not filled kerosene oil in the lamp (chimni) and he had beaten her and poured kerosene oil on her and set her ablaze. Her husband doused the fire by sprinkling water.
15. There are two dying declarations of the deceased on record. One is Ex.P/16 recorded by PW-16 Head Constable Sanjay. In the aforesaid dying declaration she deposed that when the light went off, there was no kerosene oil in the lamp and she tried to fill kerosene oil in the lamp, at that time, the appellant questioned her that why she had not filled kerosene oil in the lamp earlier and beaten her and thereafter, set her ablaze and when she cried, her husband poured water on her and doused the fire. Another dying declaration was recorded by Dr. Pramod Vachak, which is Ex.P/6. In the aforesaid dying declaration, the deceased stated that she received injuries due to fall of kerosene lamp. The aforesaid fact has been verified by PW-13 S.D.O.P. Pratapsingh Dhurvey.
16. The family members of the deceased deposed that the deceased told them that she received burn injuries and the present appellant set her ablaze. The appellant questioned the deceased that why she had not filled kerosene oil earlier in the lamp. Apart from this, PW-11 Dr Rajesh Bardale deposed that the deceased died due to septicemia and she had received 76% burn injuries. PW-12 Dr. Pramod Vachak, who examined the deceased immediately, deposed that deceased received 50% burn injuries. Apart from this, PW-5, who is the neighbour deposed that deceased told her that she received burn injuries when kerosene oil fell on her. PW-1 Ratiram, who is the neighbour of the appellant and reached immediately after the incident at the spot, deposed that the deceased told him that she received burn injuries due to fall of lamp. PW-1 also deposed that the appellant received burn injuries in his hands.
17. From the evidence led by the prosecution, the fact established that the appellant got agitated because the deceased had not filled kerosene oil in the lamp and thereafter, the appellant set her ablaze. The appellant also tried to douse the fire by pouring water on the deceased. When the deceased was admitted in the hospital, she received only 50% burn injuries and she died due to septicemia.
18. The Apex Court in the case of Kalu Ram (supra) in similar circumstances held as under in regard to the fact that whether the offence committed by the accused falls under Section 302 of the IPC or 304 Part II of the IPC:
"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 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 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.
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."
19. In view of the aforesaid judgment of the Apex Court passed in Kalu Ram's case and the judgment passed by a Division Bench of this Court in the case of Ramdas Sareyam vs The State of Madhya Prades (Criminal Appeal No. 1418/2003), in our opinion, the offence of the appellant could be culpable homicide not amounting to murder.
20. Consequently, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC is set aside and the appellant is convicted for commission of offence punishable under Section 304 Part II of the IPC. The appellant is in jail since 26.04.2010. He has completed actual jail sentence of seven years. Hence, the appellant is sentenced already undergone i.e. RI for seven years. The appellant be released forthwith if he is not required in any other case.
(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
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