Madhya Pradesh High Court
Sanju Tiwari vs The State Of Madhya Pradesh on 27 April, 2021
Equivalent citations: AIRONLINE 2021 MP 380
Author: Atul Sreedharan
Bench: Rajendra Kumar Srivastava, Atul Sreedharan
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
D. B. : Hon'ble Shri Justice Atul Sreedharan &
Hon'ble Shri Justice Rajendra Kumar Srivastava
Criminal Appeal No. 534/2011
Sanju Tiwari
Vs
State of Madhya Pradesh
_________________________________________________________
Mr. Jagat Kumar Dehariya, learned counsel for the appellant.
Mr. Rahul Deshmukh, learned Panel Lawyer for the respondent/State.
___________________________________________________________________
JUDGMENT
(27.04.2021) Per:- Rajendra Kumar Srivastava, J.
The instant Criminal Appeal under Section 374(2) of Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 31.01.2011 in Session Trial No.154/2010 passed by I ASJ, Chhindwara District-Chhindwara whereby the appellant has been convicted under section 302 of the IPC and sentenced to Life Imprisonment with fine of Rs.500/- also with default stipulation.
2. According to prosecution case, Seema Verma (deceased) was a divorcee lady residing alone at Gulabra Chhindwara. She was in relationship with the appellant. On 05.05.2010, persons namely Rafique and Santosh Karosiya came to deceased inviting her for birthday party. On suspicion, being annoyed, the appellant started quarreling with the deceased and thereafter he doused the deceased with kerosene and set her on fire as a result of which she sustained 2 Cr.A. No. 534/2011 burn injuries and succumbed on 13.05.2010 at District hospital Chhindwara during treatment.
3. On the basis of Marg Intimation Report i.e. Ex.P/25, First Information Report of Ex.P/15 & P/22 were lodged. The dying declaration of deceased i.e. Ex.P/4 had also been recorded by the Naib Tehsildar-Bhagchand Sanodiya (PW-6). The dead-body of deceased was sent for autopsy which report is Ex.P/24. The seized articles were also sent for examination to FSL Sagar and report thereof is Ex.P/23.
4. After completing the investigation, police filed the charge-sheet before the competent Court and the Court has framed the charge under Section 302 of the IPC against the appellant. The appellant pleaded not guilty and claimed trial, hence, the trial Court proceeded in the case and recorded the statement of 15 prosecution witnesses as well as 4 defence witnesses. The trial Court has also recorded the statement of accused under Section 313 of Cr.P.C.
5. After evaluating all the evidence produced by the parties, the trial Court came to conclusion and found the appellant guilty for the aforesaid offence.
6. Learned counsel for the appellant submits that the trial Court erred in convicting the appellant whereas the appellant neither committed nor participated in the crime. The trial Court has overlooked the fact that there was a sudden quarrel between the accused and the deceased, as a result of which, deceased got burnt accidentally. The appellant got burnt himself while saving the 3 Cr.A. No. 534/2011 deceased. It is submitted that there was no intention on the part of the accused to cause death of the deceased. He further argued that the deceased died after a period of seven days because of septicemia. The appellant has adduced four defence witnesses in his favour but the trial Court has discarded their testimony arbitrarily. The trial Court has convicted the appellant solely on the basis of dying declaration of deceased but the trial Court has ignored the fact that there is material contradictions in the statements of Naib Tehsildar-Bhagchand Sanodiya (PW-6) and Dr. Sanjay Rai (PW-15). The deceased gave her dying declaration at the behest of her sister-Sita Verma (PW-11) who was also present while recording of dying declaration by the Naib Tehsildar (PW-6). The dying declaration was also not in question- answer form and therefore, same is not reliable. In support of his contention, he relied upon the judgment passed by Division Bench of this High Court in the case of Shree Bai Vs. State of M.P. in Criminal Appeal No.208/2002 dated 16.10.2014 submitting that the conviction solely on the basis of dying declaration in the absence of other corroborative evidence would be erroneous and deserves to be set aside. Besides the above, he argued that at the most, case would fall under the fourth exception of Section 300 of IPC and therefore, it cannot be said that the appellant/accused committed the offence punishable under Section 302 of IPC. There is material contradictions and omissions in the statements of prosecution witnesses. The prosecution has failed to prove its case beyond reasonable doubt even then the trial Court has passed the order of conviction. The 4 Cr.A. No. 534/2011 appellant/accused has already undergone more than 10 years of jail sentence. With the aforesaid submissions, he prays to allow this appeal.
7. On the other hand, learned Panel Lawyer for the respondent/State opposes the submission of appellant's counsel submitting that it is a case based on dying declaration of deceased and there is no reason to disbelieve the same. The witnesses were duly stabled with the version of prosecution and thus, the trial Court has not committed any error in convicting the appellant/accused. The appellant got burnt himself during the incident which proves his presence over the spot and he cannot take shelter of his injuries sustained during the incident to prove his innocence. The appellant deserved for said punishment and therefore, no inference of this Court may be required.
8. We have heard the learned counsel for the parties at length and perused the record.
9. On perusal of impugned judgment, it is apparent that conviction of the appellant is based upon the dying declaration of the deceased. Conviction recorded and sentence imposed by the trial Court is challenged before this Court mainly on the following ground:-
"(I) That, the trial Court erred in believing the dying declaration of deceased as same was given under pressure in the presence of family member of deceased and was not in question-answer form.
(II) That, if the prosecution case is taken into consideration in toto, the incident was a sudden quarrel between the accused and the deceased and act committed by the appellant in a heat of passion. The deceased died after the period of more than seven days due to septicemia. The appellant tried to save the 5 Cr.A. No. 534/2011 deceased and also got burnt. Therefore, case would fall under the fourth exception of Section 300 of IPC for which appellant may be liable to be convicted under Section 304 of IPC not 302 of IPC.
10. Before entering into merits of the matter to decide above framed question, first we would prefer to examine the finding of trial Court regarding nature of death of deceased.
11. The trial Court has found that the cause of death of deceased is septicemia on account of burn injuries sustained during the incident. As per the FIR dated 06.05.2010, the deceased was ignited by the appellant in the night of 05.05.2010 and she was admitted at District hospital Chhindwara on the same day where on 13.05.2010, she died. As per the MLC report of deceased dated 06.05.2010, she got 70% burnt and was admitted at hospital in serious condition. As per the post-mortem report of deceased as well as statement of Dr. Nishikant (PW-13), the deceased got 55 to 60 percent burnt and cause of death is due to extension of burn area and secondary infection of septicemia. The appellant/accused has not disputed the mode of death of deceased and therefore, the finding recorded by the trial Court regarding nature of death is found correct.
12. Now, we move to the next question about the credibility of dying declaration of deceased.
13. The learned counsel for the appellant has questioned the reliability of dying declaration of deceased by the trial Court and therefore, we would prefer to consider the legal aspect thereof. 6 Cr.A. No. 534/2011
14. In the case of Paniben Vs. State of Gujrat, reported in 1992 (2) SCC 474, the Hon'ble Supreme Court summed up the principle governing dying declaration which is reproduced as under :-
" 17. The situation in which a man on death bed is so solemn and serene when he is dying -- the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
[Munnu Raja v. State of M.P., (1976) 3 SCC 104 ]
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552];
Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 ].
7Cr.A. No. 534/2011
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618].
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 ]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25 ]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654]
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v.
Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]
(viii) Equally, merely because it is a brief statement, it is not be discarded.
On the contrary, the shortness of the statement itself guarantees truth.
Surajdeo Oza v. State of Bihar[1980 Supp SCC 769 ]
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot 8 Cr.A. No. 534/2011 prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 ]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v.
Madan Mohan [(1989) 3 SCC 390]."
15. Further, in the case of Ramakant Mishra v. State of U.P., (2015) 8 SCC 299, the Hon'ble Supreme Court shed light on the definition of dying declaration and observed as under :-
"9. The definition of this legal concept found in Black's Law Dictionary (5th Edn.) justifies reproduction:
"Dying declarations.--Statements made by a person who is lying at the point of death, and is conscious of his approaching death, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide (and occasionally, at least in some jurisdictions, in other cases) where the killing of the declarant is the crime charged to the defendant.
Shepard v. United States [78 L Ed 196 :
54 S Ct 22 : 290 US 96 (1933)] ."
Generally, the admissibility of such declarations is limited to use in prosecutions for homicide; but is admissible on behalf of the accused as well as for the prosecution. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death is not excluded by the hearsay rule [the Federal Rules of Evidence, Rule 804(b) (2):"Statement under the Belief of imminent Death"].
9Cr.A. No. 534/2011
10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death.
That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a dying declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. In the case before us, the statement, if made by the deceased, would qualify to be treated as a dying declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries, and because of these grave burn injuries, she would be expecting to shortly breathe her last."
16. In the Case of Surinder Kumar Vs. State of Punjab, reported in (2012) 12 SCC 120, the Hon'ble Supreme Court has also held as under :-
"19. Insofar as the case before us is concerned, we may only note that there is no format prescribed for recording a dying declaration. Indeed, no such format can be prescribed. Therefore, it is not obligatory that a dying declaration should be recorded in a question-answer form. There may be occasions when it is possible to do so and others when it may not be possible to do so either because of the prevailing situation or because of the pain and agony that the victim might be suffering at that point of time.
20. It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There could be occasions when persons from the family of the accused are present and in such a situation, the victim may be under 10 Cr.A. No. 534/2011 some pressure while making a dying declaration. In such a case, the court has to carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position."
17. In the light of the above-mentioned legal proposition, the reliability of the alleged dying declaration in the present case has to be considered. After careful scrutiny, if the Court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make false statement, the Court can convict the accused solely on it basis without any corroboration.
18. In the case in hand, day after the incident i.e. 06.05.2010, the Naib Tehsildar-Bhagchand Sanodiya (PW-6) has recorded the dying declaration of deceased-Seema. On perusal thereof, it appears that on the day of incident, accused came to house of deceased and on account of some quarrel, the appellant poured kerosene on the deceased and set her on fire. Thereafter, the appellant tried to extinguished fire while he also got burnt and ran away from the spot. The deceased extinguished the fire on herself by jumping into a drain. It is revealed from the statements of some of the witnesses that on the day of incident, the dispute arose between the accused and deceased due to invitation of one Rafique and Santosh for Birthday Party.
19. Bhagchand Sanodiya-Naib Tehsildar (PW-6) has stated in his examination in chief that prior to recording the dying declaration, the assessment of health status of deceased was done by the doctor. However, in his cross-examination, he stated that after assessment of health condition of deceased, doctor went out from the 11 Cr.A. No. 534/2011 Burn Ward and made his signature outside thereof. He has denied the suggestion in his cross-examination that deceased was unable to make her signature on the dying declaration.
20. Dr. Sanjay Rai (PW-15) assessed the mental and physical status of the deceased before recording of dying declaration by the Naib Tehsildar, he deposed before the trial Court that on 06.05.2010, when Naib Tehsildar came to hospital to record the dying declaration of deceased, the health and mental condition of deceased was fit to give her statement. In his cross-examination, he denied the suggestion of defence counsel that he was not present with the Tehsildar while recording the dying declaration of deceased.
21. However, the trial Court found some contradiction in the statement of these two witnesses but has not given importance to it. On careful examination of statements of both the witnesses, both were stable on the point that the physical or mental condition of deceased was fit before and while given her dying declaration. It is true, there is some contradiction on the point of signature of doctor Sanjay Rai either inside the ward or outside thereof but in our opinion such type of minor technicality cannot prevent the Court from doing justice if the Court has reason for believing that the dying declaration is true and same was given by the deceased on fit condition.
22. The learned counsel for the appellant also submits that while recording the dying declaration by the Naib Tehsildar, sister of deceased namely Sita Verma (PW-11) was also present there and she induced the deceased to say against the accused. 12 Cr.A. No. 534/2011
23. On perusal of statement of Sita Verma (PW-11), it is found that in her cross-examination she accepted that she accompanied deceased-Seema and she informed the Tehsildar that appellant/accused ignited the deceased by pouring kerosene. However, prima-facie, it appears that Sita Verma was present when the dying declaration was being recorded by the Tehsildar and she also informed the Tehsildar about the deceased being burnt by the accused but same is not sufficient to draw the inference that the deceased had not given her dying declaration or was telling lie when death was knocking her door. However, it imposes responsibility upon the Court that the Court carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position.
24. Herein, the surrounding fact are that the deceased made her dying declaration not only the Tehsildar but also Nitesh (PW-1), Ramrati (PW-2), Maya (PW-10) and Sita Verma (PW-11). On perusal of statement of Sita Verma (PW-11), it is also stands established on record that the appellant annoyed with the deceased which appears to be the reason for the commission of this ghastly offence. She deposed before the trial Court that in the hospital, the deceased informed her that the appellant ignited her by pouring kerosene. She stated that while burning, the deceased caught hold the appellant/accused as a result of which the appellant/accused also sustained burn injuries. Further, Ramrati (PW-2) who is mother of deceased, deposed before the trial Court that she talked with deceased 13 Cr.A. No. 534/2011 at hospital where she told her that the appellant/accused ignited her by pouring kerosene.
25. However, witness Nitesh (PW-1) and Maya (PW-10) have not supported the entire version of dying declaration of deceased but on perusal of statement of Nitesh, he has accepted the presence of appellant during the incident and quarrel between the deceased and appellant. He also accepted love relationship between the deceased and accused. As far as statement of Maya is concerned, she did not state any word against the appellant even on presence of him which has already been confirmed by the other witnesses. She accepted her relation of sworn sister with the appellant/accused. The conduct of Maya shows that she tried to hide the true facts and therefore, her testimony is not reliable.
26. The another important surrounding fact is that on 06.05.2010, medical examination of accused was also done wherein burn injuries were also seen on his body which is corroborating from the dying declaration of deceased.
27. The evidence on record proves that while making this declaration, the deceased was conscious and in a fit state of mind. The dying declaration was recorded without any delay and as such, the possibility of somebody tutoring the deceased is also stand overruled. It was a detailed dying declaration wherein the name of accused was mentioned. The testimonies of PW-2 and PW-11 and medical report of accused lend sufficient corroboration the dying declaration made by the deceased. The dying declaration inspired confidence. 14 Cr.A. No. 534/2011
28. However, the learned counsel for the appellant/accused disputed the dying declaration of the deceased recorded by the Naib Tehsildar submitting that same is not true because the deceased herself stated the doctor that she got burnt accidentally on account of stove burst and this fact has also been admitted by the doctor himself. But, on perusal of record, no damage stove was recovered from the spot. Further, as above observed, the deceased has given multiple dying declaration and in the case of Kashmira Devi v. State of Uttarakhand & Ors reported in (2020) 11 SCC 343, it is well settled by the Hon'ble Supreme Court that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of contents of the other. The Court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. The relevant Para Nos. 22 and 23 are also quoted hereinunder:-
"22. While arriving at such conclusion the High Court has kept in view a decision of this Court in Nallam Veera Stayanandam v. Public Prosecutor, (2004) 10 SCC 769 wherein it was held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other.
It is held therein that the court has to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. The consideration made hereinabove would also indicate that on an independent consideration, the dying declaration dated 13-2-2008 is reliable for the reasons stated above. To the same effect, the High Court has also relied on another decision of this Court in Ashabai v. State of Maharashtra (2013) 2 SCC 224 wherein it was held that when there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated on its own merits. 15 Cr.A. No. 534/2011
23. The High Court has also taken note of a decision of this Court in State of Karnataka v. Suvarnamma (2015) 1 SCC 323 wherein it was held that the dying declaration recorded by the police officer was consistent with the circumstances on record while dying declaration recorded by the Magistrate was not found to be consistent. If the said decision is kept in view, as already noticed, though the dying declaration dated 7-2-2008 was recorded by Tahsildar, the circumstance in which it was recorded was taken note by us. Further, the dying declaration dated 13-2-2008 was recorded by the Additional Tahsildar, Shri Shishpal Singh who was examined as PW 5. He has stated with regard to the memo received from the hospital and having met the medical officer he recorded the statement of the deceased who was lying with burn injuries in the emergency ward. The validity of the statement so recorded, therefore, stands established. In addition, the High Court has also referred to various other decisions on the subject. Hence, the High Court having examined the matter threadbare has arrived at its conclusion in recording the conviction in the manner as it has done which is justified and does not call for interference."
29. Accordingly, this Court has no hesitation to say that trustworthiness of the dying declaration recorded by the Naib Tehsildar (PW-6) and given to Ramrati (PW-2) and Sita Verma (PW-11) are beyond any doubt and fully reliable. Therefore, the ground raised by the appellant's counsel is not considerable and it is hereby discarded.
30. The learned counsel for the appellant has also produced 4 defence witnesses and out of them witness Nos.2, 3 and 4, namely, Sanjay Gautam, Dinesh Likhitkar and Ranjeet Paswan are relating to newspaper publication whereas Sewakram Tiwari (DW-1) is father of appellant/accused. As per DW-1, it was informed by the appellant/accused that the appellant/accused got burnt while saving the deceased. He made some allegation against the sister of deceased. He also stated that the incident was reported in the newspaper on 16 Cr.A. No. 534/2011 07.05.2010 wherein it was published that the deceased got burnt accidentally. DW-2 to DW-4 are Auditor, journalist and crime reporter respectively who stated that the news was published on the basis of information, which was available at that time. They have accepted in their cross-examination that they never talked with the deceased.
31. In this regard, in the case of Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319, the Hon'ble Supreme Court has held as under :-
"25. As to the first, the accused Laxmi Raj Shetty was entitled to tender the newspaper report from the Indian Express of the 29th and the regional newspapers of the 30th along with his statement under Section 313 of the Code of Criminal Procedure, 1973. Both the accused at the stage of their defence in denial of the charge had summoned the editors of Tamil dailies Malai Murasu and Makkal Kural and the news reporters of the Indian Express and Dina Thanthi to prove the contents of the facts stated in the news item but they dispensed with their examination on the date fixed for the defence evidence. We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.
26. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. The accused should have therefore produced the persons in whose presence the seizure of the stolen money from Appellant 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238. There the question arose whether Shri George Fernandez, the successful candidate returned to Parliament from the Bombay South Parliamentary 17 Cr.A. No. 534/2011 Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said: (SCC p. 261, para 47) "A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."
(emphasis supplied)
32. Therefore, the newspaper report is only hearsay evidence and inadmissible in the evidence in absence of the further proof of what had actually happened through witnesses. Herein, all the defence witnesses are hearsay witnesses and in the lack of their direct communication with the deceased, this Court has found that the learned trial Court has rightly discarded the evidence of defence witnesses.
33. In view of the aforesaid discussion and on the basis of dying declaration, we holding that the appellant had ignited the deceased after pouring kerosene upon her as a result of which she died. This Court is fully agrees with the findings given by the learned Trial Judge.
18Cr.A. No. 534/2011
34. Learned counsel for the appellant has also contended that no case under Section 302 IPC is made out and at the most, the prosecution allegations make out a case under Section 304 of the IPC. As per the appellant counsel, the appellant never intended to cause the death of the deceased, he had no pre-meditation of any kind. It was as case of simple quarrel and in the fit of anger, the deceased got burnt. He submits that the death was due to septicemia consequent upon burn injuries that too after 7 days. At the most the act of accused would fall under the fourth exception of Section 300 of IPC.
35. As observed hereinabove, the sole question which is posed before this Court is, whether, in the facts and circumstances of the case, can it be said that the accused committed the murder of the deceased as defined under Section 300 IPC and therefore whether court below rightly convicted the accused for the offence under Section 302 IPC or whether the conviction can be altered to Section 304-I or II of IPC.
36. While answering the aforesaid question, when the culpable homicide can be said to be the murder and when the culpable homicide is not amounting to murder, relevant portion of Section 300 of the IPC is required to be referred to, which reads as under:
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender 19 Cr.A. No. 534/2011 knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
** ** ** **
** ** ** **
** ** ** **
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
37. Section 300 of the IPC is in two parts. The first part is when culpable homicide can be said to be the murder and the second part is the exceptions when the culpable homicide is not amounting to murder. The learned counsel for the appellant referred exception 4 to Section 300 IPC. As per exception 4 to Section 300 of IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. As per explanation to exception 4 to Section 300 20 Cr.A. No. 534/2011 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault.
38. In the case of Rambir Vs State of NCT, Delhi, reported in (2019) 6 SCC 122, the Hon'ble Apex Court illuminated the ingredients to bring out the case under Exception 4 of Section 300 IPC, the ingredients are :-
(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 offender had not taken any undue advantage or acted in a cruel or unusual manner.
39. From perusal of evidence available on record, it is clear that the incident occurred in a sudden quarrel and there was no premeditation of the appellant/accused. As per Nitesh (PW-1) and Sita (PW-11), the appellant was not happy with the relation of deceased with other person who invited her in birthday party and on said issue, quarrel took place between the deceased and accused. Even the deceased stated in her dying declaration that after setting her on fire, the appellant tried to extinguish the fire. It was not a case where the appellant came to the house of deceased in a pre-planned way to murder her. The kerosene was picked up at the spur of the moment at the time of incident. In that view of the matter it is nothing but an act committed by the appellant in a heat of passion.
40. In the Rambir (Supra) case, the accused strangulated his wife by using "Saria" and caused her death on trivial issue of taking 21 Cr.A. No. 534/2011 out money from the accused's wallet. The High Court held that the manner in which the appellant compressed his wife's neck also depicts an act of extreme cruelty and the High Court convicted the appellant under Section 302 of IPC. The Hon'ble Supreme Court has modified the sentence to 304 of IPC instead of 302 of IPC holding that the incident occurred in a sudden fight and there was no pre-meditation. The Hon'ble Supreme Court observed that the appellant picked up the weapon i.e. Saria at the spur of the moment at the time of incident. The Supreme Court further held that the act committed by the appellant in a heat of passion. Having regard to nature and manner of incident, the Higher Court of law observed in its judgement that the act of the appellant cannot be said to be extremely cruel unless it is barbaric, torturous and brutal, the Hon'ble Supreme Court has given the benefit of exception 4 of Section 300 of IPC to the appellant/accused therein.
41. In another case Kalu Ram V. State of Rajasthan reported in (2000) 10 SCC 324, the Hon'ble Apex Court has also altered the conviction of accused from Section 302 of IPC to Section 304 Part II of IPC. In that case, the accused asked his wife to spare her ornaments presumably for raising some more money for buying liquor and on refusal by his wife, the appellant got annoyed and doused her with kerosene and set her ablaze. When the flames were up, the accused tried to save her from death. During treatment, his wife got died. The High Court has confirmed the finding of trial Court and affirmed the conviction under Section 302 of IPC. When the matter came up before the Hon'ble Supreme Court, the conduct of appellant/accused was 22 Cr.A. No. 534/2011 observed by the Supreme Court mentioning that the conduct of appellant/accused of trying to extinguish the fire, 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, the Supreme Court 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 fetal extent. The Court found that the accused would not have intended to inflict injuries which she sustained on account of his act, therefore, the Hon'ble Supreme Court came to conclusion that the offence committed by the accused is culpable homicide not amounting to murder.
42. Having regard to the nature and manner of incident and looking to the view taken by the Hon'ble Supreme Court in above referred cases, it cannot be said that the act of the present appellant was extremely cruel since the occurrence was in sudden quarrel and there was no pre-meditation. Having regard to the evidence on record, we are of the view that the case of the appellant falls within Exception 4 to Section 300 of IPC. As such, the conviction recorded against the appellant under Section 302 of IPC is liable to be set aside and appellant is liable to be convicted under Section 304 Part I of IPC. The appellant is in jail since 07.06.2010 and thus, he has suffered 10 years and 10 months of jail sentence.
23Cr.A. No. 534/2011
43. In view of the above and for the reason stated hereinabove, the present appeal is partly allowed, the impugned judgment passed by the trial Court convicting the appellant under Section 302 of IPC and sentencing him for Life Imprisonment is hereby modified to the extent to convicting him for the offence under Section 304-I of IPC and sentencing him to the period already undergone by him i.e. 10 years and 10 months. The fine amount and default stipulation, imposed by the trial Court be as it is.
44. The appellant/accused be set at liberty forthwith if he is not required in any other case.
(Atul Sreedharan) (Rajendra Kumar Srivastava)
Judge Judge
sp
Digitally signed by SAVITRI
PATEL
Date: 2021.05.03 15:33:07
+05'30'