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2004 DIGILAW 616 (MP)

Sitara Begum v. State of M. P.

2004-08-03

A.K.SHRIVASTAVA, DIPAK MISRA

body2004
Judgment ( 1. ) SITARA Begum @ Mussu the accused/appellant (hereinafter referred to as the accused) faced trial under Section 302 of the Indian Penal Code (in short the IPC) alongwith one Pappu @ Rafeeq for offences punishable under Sections 450 and 302 read with Section 34 of IPC on the allegation that on 29-9-2000 in the morning hours there was a quarrel between the accused person and the deceased, Hamida Begum as the children of Hamida Begum entered inside the courtyard of the accused to attend the call of nature. The accused got angry on this kind of act of children of Hamida Begum and both the accused persons entered into the house of the deceased. Thereafter, Sitara @ Mussu threw a burning kerosene lamp towards Hamida. The burning lamp was thrown over Hamida who sustained 70% injuries and was admitted to hospital at Shahdol. On 27-10-2000 she succumbed to the injuries sustained by her. It is pertinent to state here that the dying declaration was recorded vide Ex. P-13 at 8. 44 P. M. on 30th September, 2000 and the criminal law was set in motion on the basis of FIR (Ex. P-14) and, thereafter, the Investigating Officer has been indicated above recorded the dying declaration and examined the witnesses and eventually, after completion of the investigation placed the charge-sheet under Section 302 of the IPC. ( 2. ) THE accused abjured his guilt and pleaded false implication. ( 3. ) THE prosecution in order to bring home the charges, examined ten witnesses and got certain documents marked as Exhibit P. W. 1 is the Safik Mohd, who had the report, P. W. 2 is Dr. Pradip Khare, who had examined the deceased when she had come for treatment, P. W. 3 is Ramesh Chandra Verma, who had prepared the spot map, P. W. 4 is Executive Magistrate, who had recorded the dying declaration, P. W. 5 is Dr. Amarnath Shukla, who had certified the mental state of the deceased at the time of recording of dying declaration, P. W. 6 is Ramsujan Tiwari, P. W. 7 is Dr. A. K. Gautam, and P. W. 8 is Dr. A. K. Nuna, P. W. 9 is Zangu, the husband of the deceased, and P. W. 10 is Dr. R. P. Singh, who had conducted the autopsy on the dead body of the deceased. ( 4. A. K. Gautam, and P. W. 8 is Dr. A. K. Nuna, P. W. 9 is Zangu, the husband of the deceased, and P. W. 10 is Dr. R. P. Singh, who had conducted the autopsy on the dead body of the deceased. ( 4. ) THE defence examined one witness Annu who had no role to play in the incident. ( 5. ) WE have heard Mr. M. Shafiqullah, learned Counsel for the appellant and Mr. S. K. Rai, learned Govt. Advocate for the State. ( 6. ) MR. Shafiqullah, learned Counsel for the accused appellant conceded that the prosecution has been able to prove beyond reasonable doubt about the act of the accused that she had thrown a burning lamp at Hamida Begum but the aforesaid act would not constitute an offence punishable under Section 302 of the IPC. It is contended by him that if the dying declaration is scrutinized in a studied manner it would be quite clear that there had been long standing quarrel between the parties with regard to the trivialities and that day the accused, as putforth by the prosecution, entered into the house of Sitara Begum and she threw a lamp but, at that point of time she did not have the intention to murder Hamida nor did she have the intention that such an act would cause death. In essence, submission of Mr. Shafiqullah, learned Counsel for the appellant is that the offence committed by the accused would come within the compartment, ambit and sweep under Section 304, Part-II and she being a woman and presently being 35 years of age should be set at liberty and should not be allowed to suffer and languish in jail because she had already suffered immensely. To bolster his submission he has placed reliance on the decision rendered in the case of Hari Shankar v. State of Rajasthan, AIR 1999 SC 2629 . ( 7. ) MR. Rai, learned Public Prosecutor for the State, per contra, submitted that as death has been caused due to burn injuries the accused/appellant should be convicted under Section 302 of the IPC. ( 8. ) THOUGH, Mr. Shafiqullah has conceded before us that the prosecution has proved the act and the role played by the accused, yet to convince ourselves we have carefully scrutinized the material brought on record. ( 8. ) THOUGH, Mr. Shafiqullah has conceded before us that the prosecution has proved the act and the role played by the accused, yet to convince ourselves we have carefully scrutinized the material brought on record. We are of the considered view that Sitara Begum had thrown the burning lamp at the deceased. It is categorically and unequivocally so stated in the dying declaration and the said dying declaration has been properly recorded by the Executive Magistrate after obtaining due certification by two doctors with regard to the mental state of the deceased. The said dying declaration is corroborated by certain other witnesses and hence, we have no hesitation in holding that the prosecution has proven about the overt act of Sitara Begum. In the result, we come to hold that Sitara Begum had committed an offence but, what is the nature of the offence is to be seen. In fact that is the primary contention of Mr. Shafiqullah, learned Counsel has drawn our attention to the dying declaration of P. W. 3. It has been pointed by him that there is an admission in the dying declaration that there was a quarrel between two families on that day as the children of the deceased had entered into the courtyard -. The learned Counsel has also highlighted that Sitara Begum had only thrown the burning lamp towards her. In addition, the learned Counsel for the accused has contended that the occurrence took place on 29-9-2000 but the deceased expired on 27-10-2000, which goes a long way to show that there could not have been intention to cause her murder. It is urged by him that the absence of intention to murder is also perceptible from the dying declaration. At this stage, we think it appropriate to refer to the decision rendered in the case of Hari Shankar (supra ). In the aforesaid case the Apex Court was dealing with a case where the appellant had thrown burning Kerosene wick stove on the deceased. Taking note of the totality of circumstances, Their Lordships expressed the view that the accused was aware of the fact that act was likely to cause burns resulting in death and, eventually the deceased died as a result of burns received by him. Being of this view, Their Lordships converted the offence one under Section 302 to one under Section 304, Part-II. ( 9. Being of this view, Their Lordships converted the offence one under Section 302 to one under Section 304, Part-II. ( 9. ) SUBMISSION of Mr. M. Shafiqullah, learned Counsel for the petitioner is that in the case at hand there was no intention but knowledge can be attributed to the effect that the said act was likely to affect the deceased resulting in her death qua Hamida. Taking note of the genesis of the occurrence, and the nature of the act, the offence should be converted under Section 304, Part-II. True it is, in the case at hand, the deceased had sustained 70% burn injuries but looking to the background of commission of offence as well as the dying declaration, it is quite clear that the whole occurrence arose due to a trivial incident and there was no intention to burn the deceased. That apart the deceased in her dying declaration has also not stated so. That apart she died almost after 28 days. The cumulative effect of the aforesaid factum is that the accused/appellant is liable to be convicted under Section 304, Part-II and not under Section 302. ( 10. ) ONCE we have come to hold that the offence is punishable under Section 304, Part-II the question of imposition of sentence arises. Submission of Mr. Shafiqullah is that there are series of mitigating facts to impose a lesser sentence and he has enumerated them. Learned Counsel has submitted that at the time of the occurrence the accused was 22 years old. She had no antecedents which was of criminal nature and the incidence occurred all of a sudden and had the genesis in triviality as the children of the deceased had been utilising the courtyard of the accused in an improper manner and further she is a housewife and has already faced enormous suffering in the meantime. ( 11. ) CONSIDERING the aforesaid submission, we are inclined to direct that the accused/appellant shall suffer rigorous imprisonment for a period of four years under Section 304, Part-II and four years under Section 450 of IPC. Both the sentences shall be concurrent. We have been apprised at the Bar that the accused/appellant has served out the custodian sentence for four years. Hence, it is directed that she be released forthwith if her detention is not required in any other case. ( 12. Both the sentences shall be concurrent. We have been apprised at the Bar that the accused/appellant has served out the custodian sentence for four years. Hence, it is directed that she be released forthwith if her detention is not required in any other case. ( 12. ) RESULTANTLY, the Criminal Appeal is allowed in part.