Chattisgarh High Court
Roshan Sahu vs State Of Chhattisgarh on 8 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 776 of 2013
Roshan Sahu S/o Aajuram Sahu, Aged about 22 years, R/o
Village Kevrajara, Police Station Nandghat, District Bemetara,
Chhattisgarh, Civil District Durg, Revenue District Bemetara,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through the Station House Officer,
Police Station Nandghat, District Bemetara, Chhattisgarh.
---Respondent
For Appellant :- Mr. Rahil Arun Kochar, Advocate
For State :- Mr. Arjit Tiwari, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
08/12/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against impugned judgment dated 31/07/2013 passed by learned Additional Sessions Judge, Bemetara in Sessions Trial No. 18/2011 whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 500/- and in default of payment of fine, further R.I. for one month. 2
2. Case of the prosecution, in brief, on 25/01/2011 in between 1 to 2 PM, the appellant herein poured kerosene oil over his wife Dulari Sahu, aged 18 years, and set her ablaze due to which she suffered severe burn injuries and succumbed to death and he, thereby, committed the aforesaid offence.
3. Further case of the prosecution is that marriage of appellant and deceased Dulari Sahu, daughter of Heeraman Sahu (P.W.-
1) and Smt. Lakhni Bai (P.W.-6), was solemnized 8 months prior to the incident in accordance with Hindu rites and rituals and after marriage, deceased Dulari Sahu was residing at her matrimonial home along with her husband (appellant) and her father-in-law and mother-in-law at Village Kanvra Jevra. On 25/01/2011, at about 2 PM, the appellant herein informed his father-in-law Heeraman Sahu (P.W.-1) that her daughter (deceased) has set herself on fire and has burnt herself. Thereafter, Heeraman Sahu (P.W.-1), Smt. Lakhni Bai (P.W.-6) and Smt. Uma Bai (P.W.-7) left in a Marshal for Village Kanvra Jevra. On the way, they met with the appellant near Beltukri turn who was escorting deceased Dulari Sahu to Mission Hospital, Mungeli. After reaching the hospital, deceased Dulari Sahu was admitted and when her father Heeraman Sahu (P.W.-1) asked her as to how she got burnt, she informed him that appellant quarreled with her and after asking her to remove all her ornaments, he poured kerosene oil on her and set her on fire. During her treatment, information was given by the hospital to Mungeli Police Station. Thereafter, Badri Singh Rajput (P.W.-5), the Station 3 House Officer, reached the hospital and wrote an application to the J.M.F.C, Mungeli vide Ex. P/5 for recording dying declaration of the deceased and also wrote an application to the Hospital vide Ex. P/6 for conducting MLC and for certifying as to whether the deceased was in a condition to give her dying declaration. MLC was conducted by Dr. N.R. Samuel (P.W.-17) and as per the MLC report (Ex. P/6), deceased had mostly suffered third degree burns and the nature of injuries were grievous and it was certified by Dr. Anil Henry (P.W.-12) vide Ex. P/5 that deceased was fully conscious and talking and she was in a condition to give her statement. Pursuant thereof, dying declaration of the deceased was recorded by Yugal Kishore Urvasha (P.W.-19), Tahsildar Mungeli vide Ex. P/11 on 25/01/2011 at 07:45 PM in the presence of Dr. Anil Henry (P.W.-12) and Dr. N.R. Samuel (P.W.-17) in which deceased has stated that her husband (appellant) started quarreling with her saying that she did not respect him and after pouring kerosene oil over her body, he set her ablaze and thereafter, he escorted her to the hospital himself. On the next day, i.e. on 26/01/2011, while undergoing treatment, Ramdulari Sahu succumbed to death which was informed by Wardboy Sandeep Bagh (P.W.-18) to Police Station Mungeli wherein Sub-Inspector Bodhan Singh (P.W.-20) registered zero merg intimation vide Ex. P/23 and during merg inquiry, he issued summons to the witnesses under Section 175 of CrPC vide Ex. P/1 and thereafter, conducted inquest vide Ex. P/2. Nazri naksha was prepared 4 vide Ex. P/3 and the dead body was subjected to postmortem, which was conducted by Dr. Vibha Sendhu (P.W.-13) and as per the postmortem report (Ex. P/7), cause of death is said to be shock resulting from 90-100% burn injuries.
4. During investigation, zero merg intimation was registered as numbered merg intimation at Police Station Naandghat vide Ex. P/13 and first information report was lodged vide Ex. P/14. Spot map was prepared vide Ex. P/8 and from the spot, tin of kerosene oil, plain soil as well as soil mixed with kerosene oil were seized vide Ex. P/9 and the clothes worn by the deceased were seized vide Ex. P/12. The said seized articles were sent for FSL and FSL report was received vide Ex. P/28. After due investigation, the appellant was charge- sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for trial in accordance with law. The appellant abjured his guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 20 witnesses and brought on record 28 documents. Statement of the appellant was recorded under Section 313 of CrPC wherein he denied guilt and brought on record 9 documents, however, he examined none in his defence.
6. Learned trial Court, after appreciating the oral and documentary evidence on record, finding the appellant to be perpetrator of crime in question, proceeded to convict him for offence punishable under Section 302 of IPC. 5
7. Mr. Rahil Arun Kochar, learned counsel for the appellant, would make two-fold submission :-
i) dying declaration (Ex. P/11) made by deceased Dulari Sahu has not been proved in accordance with law, as such, the trial Court has erred in convicting the appellant for offence punishable under Section 302 of IPC relying upon the said dying declaration (Ex. P/11) and therefore, his conviction is liable to be set aside in toto.
ii) Even if, this Court comes to the conclusion that the dying declaration (Ex. P/11) has been proved in accordance with law, then too, the case of the appellant would be covered with Exception 4 to Section 300 of IPC and as such, his conviction for offence punishable under Section 302 of IPC is liable to be converted to Section 304 Part II of IPC and since he is in jail since 29/01/2011 i.e. for more than 11 years, he be sentenced to the period already undergone. He would rely upon the decision rendered by the Supreme Court in the matter of K. Ravi Kumar v. State of Karnataka 1 as well as the decision rendered by this Court in the matter of Sushil Kumar Sonwani v. State of Chhattisgarh 2 to buttress his submission.
8. Per contra, Mr. Arjit Tiwari, earned State counsel, would support the impugned judgment and submit that dying declaration (Ex. P/11) made by the deceased has duly been proved by Yugal Kishore Urvasha (P.W.-19), Tahsildar 1 (2015) 2 SCC 638 2 Judgment dated 22/04/2022 passed in Criminal Appeal No. 672/2014 6 Mungeli, Dr. Anil Henry (P.W.-12) and Dr. N.R. Samuel (P.W.-
17) and the trial Court has rightly convicted the appellant for offence punishable under Section 302 of IPC relying upon the said dying declaration. He would further submit that it is not a case which is covered with Exception 4 to Section 300 of IPC and the conviction of the appellant under Section 302 of IPC cannot be converted to Section 304 Part II of IPC, therefore, the instant appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
10. The first question for consideration would be, whether the death of the deceased was homicidal in nature ?
11. Learned trial Court has not recorded an express finding in this regard, however, in paragraph 26 of the judgment, it has been observed as under :-
" vr% mDr MkWDVj ,u- vkj- lseqvy vlk- 17] MkWDVj ,e-ds-jk; vlk-9] MkWDVj Jherh foHkk flanwj vlk-13] ghjkeu lkgw vlk-1] xhrkjke vlk-4] y[kuhckbZ vlk-6] mekckbZ vlk-7] lanhi ckx vlk-18] Jh ;qxy fd'kksj moZ'kk vlk-19 lgk;d mifujh{kd cks/ku flag vlk-20 ds U;k;ky;hu c;ku ,oa fpfdRlh; lk{; ds vk/kkj ij ;g izekf.kr gS fd] fnukad 26-01- 2011 dks 5%15 ,-,e- jke nqykjh mQZ jkuh lkgw ifr jks'ku lkgw dh e`R;q lkekU; ls fHkUu ifjfLFkfr;ksa esa tyus ds dkj.k gks xbZ gSA "
12. Considering the testimonies of Dr. N.R. Samuel (P.W.-17), who conducted MLC vide Ex. P/6, Dr. Anil Henry (P.W.-12) and Dr. Vibha Sendhu (P.W.-13) who conducted postmortem as well as 7 considering the postmortem report (P.W.-7) and considering the third degree burns suffered by the deceased on different parts of her body, we are of the considered opinion that death of deceased Dulari Sahu was homicidal in nature.
13. The next question for consideration would be, whether appellant was the perpetrator of crime in question ?
14. Admittedly, the incident happened on 25/01/2011 in between 1-2 PM and as a result, deceased suffered burn injuries. She was taken to the hospital by her husband (appellant) and they were also joined by Heeraman Sahu (P.W.-1) and Smt. Lakhni Bai (P.W.-6) on the way to the hospital. After being admitted to the hospital, her dying declaration was recorded on the same day at 07:45 PM vide Ex. P/11 by Tahsildar, Mungeli namely Yugan Kishore Urvasha (P.W.-19) in the presence of Dr. Anil Henry (P.W.-12) and Dr. N.R. Samuel (P.W.-17) in which she has clearly stated that earlier in the day, her husband started quarreling with her saying that she did not respect her and then after asking her to remove her ornaments, he poured kerosene oil over her body and set her ablaze. Immediately, thereafter, he informed father of the deceased namely Heeraman Sahu (P.W.-1) that deceased has burnt herself and took her to the hospital and got her admitted.
15. Yugal Kishore Urvasha (P.W.-19), who has recorded dying declaration (P.W.-11) of the deceased, has been examined as a witness before the Court and even Dr. Anil Henry (P.W.-12) and Dr. N.R. Samuel (P.W.-17), in whose presence the said 8 dying declaration was recorded have also been examined before the Court and all these three witnesses have been subjected to lengthy cross-examination but nothing has been brought on record so as to conclude that the said dying declaration (Ex. P/11) is fabricated or that it was made by the deceased after being tutored and it has not been made voluntarily by her. As such, we have no reason to disbelieve the dying declaration (Ex. P/11) given by the deceased as immediately thereafter, on 26/01/2011 at about 05:45 AM, she succumbed to death on account of severe burn injuries suffered by her. As such, we are of the considered opinion, that learned trial Court has rightly held that appellant is the perpetrator of the crime in question relying upon the dying declaration (Ex. P/11) made by the deceased which has been duly proved by the prosecution witnesses.
16. Now, the question that requires consideration would be, whether the trial Court is justified in convicting the appellant for offence punishable under Section 302 of IPC or his case is covered with Exception 4 to Section 300 of IPC and his conviction is liable to be altered to Section 300 Part II of IPC, as contended by learned counsel for the appellant ?
17. In the matter of Hari Shanker v. State of Rajasthan 3, the appellant therein picked up a burning kerosene wick-stove 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 3 (1998) 8 SCC 355 9 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 while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the tea-club 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 wick-stove 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 10 Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years."
18. The decision rendered in Hari Shanker (supra) was followed with approval by the Supreme Court subsequently in the matter of Kalabai v. State of Madhya Pradesh4 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 so-called dying declaration (Exh.P-
2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial Court for coming to 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."
19. The Supreme Court in the matter of Kaluram v. State of Rajasthan5 has converted the offence under Section 302 of IPC to Section 304 Part II of the IPC as the appellant therein, 4 AIR 2019 SC 2135 5 (2000) 10 SCC 324 11 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 wanter 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. "
20. In the matter of K. Ravi Kumar (supra), the accused husband burnt his wife to death consequent to heated exchange between them which eventually resulted in appellant losing his mental balance to the extent that he first allegedly stabbed her with knife and then poured kerosene and set her on fire which led to her death. In paragraph 16 of the judgment, their Lordships of the Supreme Court observed as under :- 12
"16. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased Padma on the issue of going to Village Mandya to see the appellant's ailing father. The appellant, on receiving the news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the postmortem report that any stab injury on Padma's body was caused nor was prosecution able to prove that any bloodstained knife from the place of occurrence was recovered at the instance of the appellant or of any witness."
21. Reverting to the facts of the present case in light of the principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that on the fateful day, quarrel erupted between the appellant- husband and deceased-wife and in sudden anger and in heat of passion, the appellant poured kerosene oil over the 13 deceased and set her ablaze. As such, he did not have any premeditation to cause the death of the deceased and in sudden quarrel, he committed the crime in question. Moreover, he did not act in a cruel manner or took any undue advantage as immediately thereafter, the appellant escorted the deceased to the hospital and got her admitted for treatment which is apparent from the statements of Heeraman Sahu (P.W.-1) and Smt. Lakhni Bai (P.W.-6), who met the appellant and deceased on the way and joined them while the appellant was taking the deceased to the hospital. Furthermore, Dr. N.R. Samuel (P.W.-17), who firstly examined the deceased, has also stated that deceased was brought to the hospital by the appellant and even in the dying declaration (Ex. P/11), deceased herself has stated that appellant had immediately admitted her to the hospital. As such, the ingredients of Exception 4 to Section 300 of IPC are satisfied and trial Court has erred in convicting the appellant for offence punishable under Section 302 of IPC. However, looking to the severe burn injuries suffered by the deceased in different parts of her body, the appellant must have had the knowledge that his act would likely cause the death of the deceased. Thus, conviction of the appellant for offence punishable under Section 302 of IPC is hereby set aside and he is rather convicted for offence punishable under Section 304 Part II of IPC. Since he is in jail since 29/01/2011 i.e. for more than 11 years, we hereby sentence him to the period 14 already undergone by him. He be released forthwith, if his detention is not required in any other case.
22. Accordingly, this criminal appeal is allowed to the extent indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Harneet