Madhya Pradesh High Court
Bhura @ Kamlesh vs The State Of Madhya Pradesh on 20 January, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
DB: HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 20H OF JANUARY, 2025
CRIMINAL APPEAL No.3459 OF 2019
BHURA ALIAS KAMLESH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ashok Kumar Jain- learned Counsel for appellant.
Shri A. K. Nirankari- learned Public Prosecutor for respondent- State.
JUDGMENT
Per:Justice Hirdesh :-
Being dissatisfied with the judgment of conviction and order of sentence dated 26-03-2019 passed by Additional Sessions Judge, Chachoda, District Guna(MP) in Sessions Trial No.21 of 2017, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo Imprisonment for Life with fine of Rs.10,000/-, in default of payment of fine, to further undergo three months' rigorous imprisonment, this appeal was filed.
(2) Case of prosecution, in brief, is that on 15-11-2016, complainant- Rajendra Singh Kurmi was admitted in a burnt condition in Burn Ward of District Hospital, Guna where Duty Dr.V.S. Raghuvanshi (PW-10) sent an information to PS Kotwali, Guna along-with MLC Ex.P16 and complaint Ex.P15. On receiving information, ASI Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 2 Md. Zaheer (PW-11) reached District Hospital, Guna where complainant- Rajendra Singh Kurmi admitted in Burn Ward, inter alia alleging that on 15-11-2016, around 5:00 pm, he was sitting at his tea-stall (gumti) in Village Sanai. Accused- Bhura (appellant herein) came there and asked him to make four-five cups of tea for him. It was further stated by complainant- Rajendra that he made tea and gave it to accused Bhura. When he asked Bhura to pay money for the tea, without any reason accused- Bhura started abusing him in filthy language. When resisted, then accused- Bhura poured a cane full of petrol kept in shop on him with an intention to kill him and took out a matchstick, lit it and threw it on him, due to which his body caught fire and he got burnt. Lakhan Singh (PW-1), Pappu Mali (PW-2) and Chandan Singh (PW-3), who were present on spot, saved him. Thereafter, accused- Bhura fled away from there.
(3) Lakhan Singh and Sonu Kurmi brought him to District Hospital, Guna. On the basis of such information, ASI Md. Zaheer (PW-11) recorded dehati nalishi Ex.P11 at No.0/2016 under Sections 307, 294 of IPC. On the basis of such dehati nalishi (Ex.P11), which on being received at PS Kotwali Guna, Crime at No.0 of 2016 was registered vide Ex.P12 by Head Constable Pradeep Bhargav (PW7) on 16.11.2016. As crime occurred within the jurisdiction of Kumbhraj Police Station, therefore, FIR at Crime No.391/2016 for offence under Sections 307 and 294 of IPC was registered at PS Kumbhraj.
(4) During that time, complainant Rajendra was referred from District Hospital, Guna to Bhopal, Hamidia Hospital where he was treated by Dr. Rahul Shrivastava (PW14) and Dr. Manish Kumar (PW13). MLC Report and case-sheet were prepared vide Ex.D5(1) and Ex.D5(47). Rajendra died during treatment on 22.11.2016. His postmortem was conducted by Dr. Rajendra Barat (PW8) vide Postmortem report Ex.P13. Panchnama of dead body of deceased Rajendra was prepared vide Ex.P9.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 3(5) Further, case of prosecution is that Police In-charge PS Kumbhraj Vijay Kumar Sen (PW12) recorded statement of Rajendra (since deceased) under Section 161 of CrPC during his treatment in District Hospital, Guna vide Ex.P18. On 17.11.2016, he reached Village Sanai & prepared spot map vide Ex.P2. On the same day, statements of witnesses- Lakhan Singh, Pappu Mali, Chandan Bheel, Ashok Kurmi and Purushottam were recorded vide Ex.P1 to Ex.P7 & Ex.D1 respectively. On 17.11.2016, Police in- Charge Vijay Kumar Sen also seized a half burnt light blue shirt, a white-checked vest (banyan), a hundred rupee note shrunk due to burning, a plastic cane lying on spot containing about half of liter of petrol and matchbox containing matchsticks vide seizure memo Ex.P4. On 23.12.2016, hair and seal sample of deceased Rajendra were received in a sealed box from Hamidia Hospital, Bhopal at PS Kumbhraj, which was seized vide Ex.P9 by Head Constable Ram Singh Jatav (PW9) and seizure memo of it was prepared vide Ex.P14.
(6) Clothes of deceased seized from scene of occurrence and hair obtained from Hamidia Hospital, Bhopal were sent for FSL examination, Sagar vide Ex.P21. Superintendent of Police, Guna from where reports Ex.P22 and Ex.P23 were received according to which, petrol residues were found in seized half-burnt clothes and plastic cane, however, petrol residues were not found on matchstick and hair.
(7) During investigation, it was found that accused- Bhura poured petrol on deceased Rajendra and set him on fire with matchstick due to which, deceased suffered burn injuries which resulted into his death. After completion of investigation and other formalities, charge-sheet was filed by police against accused Bhura in the Court of JMFC, Chachoda, District Guna for offence punishable under Sections 307, 294, 302 of IPC from where case was committed to Sessions Court for trial.
(8) Charges under Sections 294, 302 of IPC were framed and read out to accused Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 4 Bhura. Accused- Bhura denied charges and pleaded that he is innocent and he has been falsely implicated due to enmity. Trial was held.
(9) Prosecution, in order to prove its case, examined as many as fourteen witnesses. Accused- Bhura did not examine any witness in his defence.
(10) As far as charge under Section 294 of IPC levelled against accused- Bhura is concerned, witness Purushottam (PW-5) during trial did not clearly state which obscene words were uttered by accused- Bhura, which caused annoyance to deceased Rajendra or any other person. In the statement under Section 161 of CrPC of deceased Rajendra recorded by Police in-Charge Vijay Kumar Sen (PW12), deceased Rajendra did not state accused- Bhura uttered any specific obscene words, therefore, the prosecution failed to prove charge under Section 294 of IPC against \accused- Bhura beyond reasonable doubt that he has caused annoyance to deceased Rajendra by uttering obscene words in a public place. On the basis of which, accused- Bhura was acquitted of charge under Section 294 of IPC, but after marshalling oral and documentary evidence including all exhibited documents available on record, the trial Court found appellant Bhura guilty of offence under Section 302 of IPC and sentenced him accordingly, as stated in Paragraph 1 of this judgment. Hence, this appeal.
(11) Learned counsel for appellant- Bhura contended that the impugned judgment of conviction and order of sentence passed by trial Court is against law and contrary to record. Prosecution story has not been supported by witnesses- Lakhan Singh (PW1), Pappu Mali (PW2) and Chandan Singh (PW3), who are alleged to be eye-witnesses of incident, so also another witness Ashok (PW4) did not support prosecution version. Taking exception to Paragraphs 31 and 32 of the judgment of the trial Court, it is contended that Purushottam (PW5) and Sanjeev (PW6) are brothers of deceased Rajendra, therefore, their statements are not reliable. Statement of Sanjeev was Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 5 recorded after one and a half months of incident vide Ex.D2 on 29-12-2016. Neither their names were mentioned in the dehati nalishi nor in the statement of deceased recorded under Section 161 of CrPC. As per prosecution allegation, deceased was brought to hospital by Lakhan Singh and Sonu Kurmi, whereas Sanjeev is the real brother of deceased and if Sanjeev was present at the scene of incident, he would have brought deceased to hospital, therefore, presence of Sanjeev at the scene of incident is doubtful.
(12) Learned Counsel for appellant further contended that there are contradictions and omissions in the statement of Purushottam who was interrogated by Police after eight days of incident and his name was not mentioned in dehati nalishi, therefore, his evidence is not reliable. There is no evidence available on record that dehati nalishi was certified from doctor concerned and no entry was made in diary at the Hospital at the time of recording of statement of deceased.
(13) It is further contended by learned Counsel for appellant that deceased was admitted in the hospital from 15-11-2016 to 22-11-2016 and during this period, his Dying Declaration was not recorded before Magistrate concerned and statement was recorded in the presence of doctors which gives rise to possibility that deceased was not in a condition to speak or give statement. Md. Zaheer in Para 11 and 12 of his evidence deposed that he had recorded dehati nalishi of deceased before 10:00 pm whereas, ASI Amit Agrawal has mentioned time of recording dehati nalishi as 23:45 pm at District Hospital, Guna which clearly shows that dehati nalishi was not written at 23:45 pm and it was falsely prepared by Police.
(14) Learned Counsel further submits that the fact that deceased was admitted in District Hospital Guna appears to be doubtful because Police in-charge Vijay Kumar Sen (PW12) in his statement deposed that statement of deceased was recorded under Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 6 Section 161 of CrPC by him on 18-11-2016 vide Ex.P18 in District Hospital Guna, whereas deceased Rajendra was referred from District Hospital Guna to Bhopal Hamidia Hospital Bhopal on night of 16-11-2016 itself and admitted around 05:36 in the morning on 17-11-2016 and during treatment died on 22-11-2016. The medical evidence does not show that appellant Bhura had poured petrol on deceased and set him on fire with matchstick, on the contrary, deceased himself threw matchstick to light gas stove due to which matchstick struck petrol bottle and caught fire. Neither there was any motive or premeditation on the part of appellant to commit murder of deceased nor appellant was having any deadly weapon at the place of occurrence, on the contrary, the incident took place due to sudden provocation over a issue not paying money for the tea to deceased Rajendra by appellant Bhura at the tea stall. Therefore, offence under Section 302 of IPC is not made out against present appellant and at the most, offence falls within the category of Section 304 Part I or Part II of IPC. Hence, prayed for setting aside the impugned judgment.
(15) Learned Counsel for the State supported the impugned judgment and submitted that there was clear motive or intention of appellant- accused in causing death of deceased by means of pouring petrol and setting him on fire with matchstick. Prosecution has rightly established appellant guilty of aforesaid offence after evaluating oral and documentary evidence including dehati nalishi vide Ex.P11 as well as statement of deceased recorded under Section 161 of CrPC vide Ex.P18 and medical evidence available on record. There being no infirmity in the impugned judgment and the findings arrived at by the Trial Court do not require any interference by this Court. Hence, prayed for dismissal of this appeal.
(16) Heard counsel for parties at length and perused the record.
(17) Main argument advanced by Counsel for appellant that Dehati Nalishi Ex.P11 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 7 cannot be treated as FIR and statement of deceased recorded under Section 161 of CrPC cannot be treated as ''Dying Declaration'' because the same was not recorded properly, in fact, deceased was not in a condition to speak or give any statement and further, it was not recorded before the Magistrate concerned.
(18) It is not in dispute that conviction of appellant recorded by trial Court is solely based on Dehati Nalshi vide Ex.P11 and statement of deceased recorded under Section 161 of CrPC vide Ex.P18 (19) The question for determination of appeal is whether Dehati Nalishi Ex.P11 as well as statement of deceased recorded under Section 161 of CrPC vide Ex.P18 should be treated as a ''Dying Declaration'' or not ?
(20) The Hon'ble Supreme Court in the matter of Munnu Raja and Others Vs. State of Madhya Pradesh (1976) 3 SCC 104 has observed that although if the Dying Declaration recorded under Section 32(1) of Evidence Act is not corroborated by testimony of hostile witnesses, but FIR or statement under Section 161 of CrPC is recorded by deceased himself just before succumbing to injuries, then same is admissible in evidence treating the same to be a ''Dying Declaration''.
(21) Regarding Dying Declaration, the Hon'ble Apex Court further in the case of Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137 has observed as under:-
''24.As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32 (1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 8 of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
25. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected.'' (22) The Hon'ble Apex Court in the matter of Naeem Vs. State of U.P. 2024 SCC Online SC 237 has laid down certain factors to be taken into consideration while resting the conviction of the accused on the basis of Dying Declaration as under:-
"22.(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 9
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
(23) Lakhan Singh (PW-1) in his statement deposed that on the date of incident i.e. on 15-11-2016, he was drinking tea at the shop of deceased Rajendra. This witness in his examination-in-chief did not state as to how deceased was caught fire. In Para 4, this witness admitted that when deceased was caught fire, he picked up a milk pan from a distance and threw it on him to extinguish fire. This witness further deposed that Chandan Singh (PW3) was also present at the time of incident, who had poured water on the body of deceased. In Para 8 of his cross-examination, this witness further Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 10 deposed that deceased used to sell petrol along-with tea and paan and petrol was kept in the shop.
(24) Pappu (PW2) did not make any statement in support of prosecution in his examination-in-chief, but he admitted that he had extinguished the fire by pouring milk and water and admitted the fact of deceased Rajendra selling petrol in his tea stall.
(25) Chandan Singh (PW3) in his evidence deposed that he was at the shop of deceased and Lakhan was there at that time. Deceased started making tea for them, and lit the gas stove. Then, matchstick touched petrol bottle kept nearby due to which bottle broke and deceased caught fire due to which, deceased became unconscious. This witness further deposed that he had extinguished the fire by pouring milk and water and in his cross-examination, deposed that when the deceased himself threw the matchstick to light the gas stove, the matchstick struck the petrol bottle and caught fire.
(26) From the evidence of above eye-witnesses, it appears that as per settled principle of law merely because if a witness turns hostile, his entire evidence cannot be considered unreliable, rather part of evidence which is reliable or which is corroborated by other evidence, can be taken into consideration. In the case at hand, another important witness Purushottam (PW5) in Para 02 of his examination-in-chief has clearly stated that at the time of incident, he was at the shop of deceased Rajendra and in Para 9 of his cross-examination admitted that he was drinking tea at the time of incident. After abusing, accused Bhura poured petrol on the deceased Rajendra and set him on fire with a matchstick. Fire was extinguished by pouring milk and water. This witness in his cross-examination denied that due to negligence, matchstick of deceased touched petrol and accidentally, set it on fire.
(27) Dr.VS Raghuvanshi (PW10) in his evidence stated that on 15-11-2016, Rajendra was brought to District Hospital Guna for treatment due to burn injuries. He gave this Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 11 information to PS Kotwali vide Ex.P15. On medical examination, he found superficial burn injuries on right and left arms, on chest and front of abdomen, front of neck and left side of back of Rajendra. This witness further stated that the injuries were caused by burns by some hot liquid and were within 12 hours from the time of examination and there was 50% burn injuries on the body of Rajendra. Rajendra was admitted to Burn Ward from where, he was referred to Surgical Special for further treatment and opinion. This witness in Para 3 and 8 of his cross-examination although stated that he cannot tell as to whether deceased was burnt by hot liquid oil, water or inflammable substance and no smell of inflammable substance was found by him at the time of conduction of postmortem examination, but admitted that deceased Rajendra had told before him that he was burnt by petrol.
(28) Dr. Manish Kumar (PW13) in his evidence deposed that on 17-11-2016, he was working as a resident doctor in Kamla Nehru Burn Unit of Hamidia Hospital, Bhopal. On that day, around 05:30 am, Rajendra was admitted in Burn Unit and stated before him that on 15-11-2016 around 04:30 in the evening, in Village Sanai, a person under influence of alcohol had burnt him by pouring petrol on him for money. Dr. Manish Kumar in his evidence admitted that Rajendra did not tell name of person who had poured petrol on him. Rajendra was admitted in the hospital from 17-11-2016 to 22-11- 2016 and died on 22-11-2016. She was sustained 50% burn injuries caused by any inflammable substance. This witness has denied the fact of deceased Rajendra being unconsciousness and admitted that the deceased was in a position to give statement.
(29) Dr. Rahul Shrivatava (PW14) in his evidence deposed that on 17-11-2016, he was working as a resident doctor in Kamla Nehru Burn Unit of Hamidia Hospital, Bhopal. On that day, around 05:30 am, Rajendra was referred from District Hospital Guna. He had prepared MLC of Rajendra and found that Rajendra had sustained about 55% burns injuries on many parts of his body from superficial to deep. He had burns Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 12 on the face, neck, upper part of both hands, shoulders, arms and below hands, on the chest and on the back. His condition was bad, but he was able to speak and told before him that on 15-11-2016 around 04:30 pm, some person in an inebriated state, poured petrol on him and set him on fire. Report is Ex.D5(1).
(30) Dr. Rajendra Barat (PW8) in his evidence deposed that on 22-11-2016, he was posted as Assistant Professor in the Department of Forensic Medicine at Gandhi Medical College, Bhopal. On the said date, he conducted postmortem of deceased Rajendra and found 55% burn injuries on the body of deceased. Postmortem report is Ex.P13. Death of deceased occurred within 24 hours of postmortem and death was due to cardiac and respiratory failure due to complications arising after burning.
(31) Md. Zaheer (PW11) in his evidence deposed that on 15-11-2016, while he was posted as ASI at PS Kotwali, Guna, he received an information from District Hospital Guna through wireless that Rajendra has been admitted to Hospital due to burn. On receiving information, he reached hospital where Rajendra was admitted in Burn Ward and he told before him alleging that when on 15.11.2016 around 05:00 PM, he was sitting at his tea stall, accused Bhura came there and asked him to make four or five cups of tea for him. When he asked for money for tea, accused- Bhura started abusing in filthy language. When he objected to abuses, accused Bhura poured a cane full of petrol kept in his shop on him with intention to kill him and after lighting a matchstick, threw it on him due to which, his body caught fire and he got burnt. Lakhan Singh, Pappu Mali, Chandan saved him. This witness further deposed that he had certified Dehati Nalishi recorded at PS Kotwali, Guna on the basis of information given by Rajendra vide Ex.P11.
(32) Vijay Kumar Sen (PW12) in his evidence deposed on 16-11-2016 he was posted as Police Inspector at PS Khumbraj. On the basis of information received from PS Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 13 Kotwali Guna, matter was investigated by him. He recorded statement of deceased under Section 161 of CrPC in Burn Ward of District Hospital, Guna in the form of Dying Declaration vide Ex.P18. At the time of recording of statement of deceased he was in a position to speak and give statement. Deceased Rajendra stated before him that accused- Bhura had burnt him by pouring a cane full of petrol kept in his shop on him with intention to kill him. This witness in Para 10 of his cross-examination admitted that he had recorded statement of deceased vide Ex.P18 on 16-11-2016 but by mistake date 18-11-2016 was written below signature of statement and in Para 11 of his cross-examination, he voluntarily said that he came to know such mistake today before the Court when he saw diary. This witness in Para 22 of his cross-examination deposed that a letter had already been written to Tehsildar Guna on 15-11-2016 on behalf of Hospital Police Chowki. This witness further in 23 of his cross-examination admitted that an attempt was not made to record the statement of deceased before a doctor or an Executive Magistrate or a Gazetted Officer during hospitalization of deceased and even if after his death, he could have written a letter but admitted that due to demonetization, law and order situation had been increased at that time, therefore, he did not get time and he had conducted investigation promptly.
(33) Vijay Kumar Sen (PW12) further in Para 27 of his cross-examination deposed that from perusal of copy of case-sheet attached to record, it can be said that deceased Rajendra was admitted in Bhopal Hamidia Hospital on 17-11-2016. It is true that case- sheet of treatment of Hamidia Hospital Bhopal till 22-11-2016 along with challan was presented before the Court. This witness in Para 02 of his examination-in-chief deposed that on 17-11-2016, he reached Village Sanai and prepared spot map vide Ex.P2 in the presence of witness Lakhan Singh and recovered a half-burnt light blue shirt, a white-checked Vest(Banyan), a white plastic cane containing half a liter of petrol and a matchbox vide seizure memo Ex.P4. This witness in Para 07 of his cross-
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 14examination deposed that he had sent the seized articles to FSL for examination vide Ex.P22 and Ex.P23 according to which, petrol residues were found in the half-burnt clothes and the cane, however, residues were not found in hair.
(34) So far as the contention of appellant that Investigating Officer - Vijay Kumar Sen (PW12) did not obtain any certificate from the doctor is concerned, no such fact has come in cross-examination of this witness which can lead unbelievable that deceased Rajendra was not in a position to make a statement. This witness too is found to have written his statement after satisfying himself that deceased Rajendra is making his statement before his death voluntarily. Signature of any other witnesses or the deceased is not required at the time of recording of statement of deceased under Section 161 of CrPC. The cross-examination of this witness does not show any such fact which can make credibility of the statement written by him doubtful. Similarly, contention of appellant that statement of deceased was not taken by the Executive Magistrate even after being informed is concerned, on perusal of record as well as in the light of judgments of Supreme Court cited above, there is no reason to show that deceased was making false statement about accused- Bhura before his death under any influence or police had any enmity with accused due to which, they would have falsely implicated accused in case.
(35) Accordingly, Dehati Nalishi Ex.P.11 is treated as FIR and statement of deceased Rajendra recorded under Section 161 of CrPC just before succumbing to injuries is admissible in evidence and treated to be a ''Dying Declaration''. So, in the considered opinion of this Court, the trial Court has rightly treated Dehati Nalishi Ex.P11 as ''FIR'' and statement of deceased recorded under Section 161 of CrPC as ''Dying Declaration''.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 15(36) From the evidence of uncle of deceased Lakhan Singh (PW-1), Pappu (PW-2) and Chandan Singh (PW-3) although it appears that they did not fully support the prosecution case in regard to pouring petrol on deceased Rajendra and setting him on fire as well as from the evidence of Sanjeev (PW-6), it appears that his statement was recorded on 29.12.2016 vide Ex.D2 after one and a half month of incident as he was not present at the scene of incident, but from medical evidence available therein, it appears that deceased Rajendra was burnt by inflammable substance like petrol. Deceased at the time of recording his Dying Declaration had specifically and voluntarily deposed that petrol was poured on him and he was set on fire by accused Bhura. Presence of important witness Purushottam (PW-5) at the time of scheme of incident is also proved beyond reasonable doubt, who has clearly stated that he himself saw accused Bhura pouring petrol on deceased Rajendra and setting him on fire. No omission or contradiction was found in cross-examination of this witness which can cast any doubt on the credibility of his evidence. This witness although is an independent witness, but he is the reliable witness whose evidence is duly supported prosecution version to an extent that even if there is no other evidence, then also on the basis of testimony of this witness alone, it can be believed that accused poured petrol on Rajendra and set him on fire by lighting a matchstick, whereas statement of Purushottam is also corroborated by statement of Pappu (PW2) which establishes identity of accused- Bhura at the scene of incident.
(37) The next argument advanced by learned Counsel for the appellant that deceased himself threw matchstick to light gas stove due to which matchstick struck petrol bottle and caught fire. Neither there was any motive or premeditation on the part of appellant to commit murder of deceased nor appellant was having any deadly weapon at the place of occurrence, on the contrary, the alleged incident took place due to sudden provocation over a issue not paying money for the tea to deceased Rajendra by Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 16 appellant- Bhura at the tea stall. Therefore, the offence does not fall under Section 302 of IPC and at the most, offence falls under the category of Section 304 Part I or Part II of IPC.
(38) The next question for determination of present appeal is as to whether death of deceased Rajendra was the result of culpable homicide amounting to murder or not ?
(39) It would be appropriate to throw light on the relevant provisions of Sections 299 and 300 of IPC.
(40) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
(41) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence.The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 17 homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
(42) Section 300 of Indian Penal Code runs 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 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."
(43) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;(i) an act with the intention to cause death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
(44) Indian Penal Code recognizes two kinds of homicide :(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Non-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC). (45) A bare perusal of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 18 degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
(46) There are three species of mens rea in culpable homicide(1) An intention to cause death; (2) An intention to cause a dangerous injury; (3) Knowledge that death is likely to happen.
(47) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder. (48) In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
(49) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering "third" clause of Section 300 of IPC, it has been observed as under:-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 19 weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
(50) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
(51) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat reported in (2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 20 would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.'' (52) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 21 (2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-
I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
(53) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 22 with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
(54) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 :
(2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 23 conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
(55) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 24 cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465], the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 25 possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question....
It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
(56) Although the appellant was not having any deadly weapon at the scene of incident but from perusal of evidence available on record, it is clear that on the date of incident i.e. on 15-11-2016, on being asked by accused- appellant to make four-five cups of tea for him, deceased Rajendra made tea and gave it to accused Bhura. When deceased demanded payment for tea so served, which was a legitimate demand, but without any rhyme or reason accused- Bhura started abusing him in filthy language and thereafter, with an intention of killing him poured a cane full of petrol kept in shop on him and took out a matchstick, lit it and threw it on him, due to which the body of deceased Rajendra caught fire and he got burnt. Due to critical condition, deceased Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 14-Feb-25 10:57:39 AM 26 Rajendra was referred from District Hospital Guna to Bhopal Hamidia Hospital Bhopal on night of 16-11-2016 itself and admitted on 17-11-2016 and during treatment he died on 22-11-2016. As per medical evidence, deceased Rajendra was burnt by petrol and the cause of death of deceased was due to cardio-respiratory failure as a result of complications arising after burning. Therefore, death of deceased Rajendra was result of culpable homicide amounting to murder.
(57) In view of foregoing discussion as well as the law laid down above, in the considered opinion of this Court, the act of appellant-accused does not fall within ambit of Section 304 Part I or Part II of IPC. The prosecution has been successfully in proving the appellant guilty for commission of murder of deceased beyond reasonable doubt. The learned Trial Court has rightly convicted appellant and sentenced him for the offence aforesaid. No illegality or infirmity is found in the impugned judgment.
(58) Resultantly, the present appeal being devoid of substance, is hereby dismissed. The impugned judgment of conviction and order of sentence dated 26-03-2019 passed by Additional Sessions Judge, Chachoda, District Guna in Sessions Trial No.21 of 2017 is hereby affirmed. Appellant is reported to be in jail. He is directed to serve the remaining jail sentence as awarded by the trial Court.
(59) A copy of this judgment along-with record be sent to the concerned trial Court as well as jail authorities concerned for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 14-Feb-25
10:57:39 AM