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2007 DIGILAW 819 (MP)

Gourishankar v. State of M. P.

2007-07-31

ARUN MISHRA, K.S.CHAUHAN

body2007
JUDGMENT : ARUN MISHRA, J. 1. This appeal has been preferred by the accused appellant aggrieved by judgment dated 31-12-1997 passed by IInd Addl. Sessions Judge, Jabalpur in S.T. No. 1085/94 thereby convicting him under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and a fine of Rs. 1,000/- in default of payment of fine he has to undergo 2 months rigorous imprisonment. 2. The prosecution story, in brief, is that on 24-10-1993 Radha Vallabh was set ablaze by 3 accused persons Mahendra Kumar, Ram Gopal and Gourishankar, on hearing the hue and cry of Radha Vallabh Padamnarain Sharma and his family members reached the spot and found Radha Vallabh in fire, a blanket was put over him to extinguish fire, Radha Vallabh stated that Gourishankar came in the house along with two other persons and knocked the door, as soon as Radha Vallabh came out, Gourishankar poured kerosene oil on him and set him ablaze with the help of a match stick. A report (Ex.P.1) of the incident was lodged at P.S. Katni at 6:50 a.m. situated at 2 kms. away from the place of incident. Crime No. 627/93 was registered, spot map was prepared. Radha Vallabh was initially examined by Dr. Harchandani (PW-7). He was admitted in the hospital and remained admitted in the hospital as apparent from bed head ticket (Ex.P.27). While saving Radha Vallabh, Laxmikant also suffered burn injuries indicated in the medial report (Ex.P.10-A and Ex.P.10). A dying declaration of Radha Vallabh (Ex.P.9) was recorded by R. K. Bohat (PW-10). Radha Vallabh died during the course of treatment on 19-2-1994. Post-mortem was performed, viscera and skin of deceased Radha Vallabh were seized. Accused persons were arrested, after completion of investigation they were charge-sheeted. 3. Accused abjured their guilt and contended that they were innocent and had been falsely implicated. Accused Gourishankar has been convicted for offence under section 302 of Indian Penal Code and sentenced to RI for life. Remaining two accused persons have been given benefit of doubt, they have been acquitted by the trial Court. Aggrieved by conviction and sentence imposed by trial Court this appeal has been preferred by accused-appellant Gourishankar. 4. Accused Gourishankar has been convicted for offence under section 302 of Indian Penal Code and sentenced to RI for life. Remaining two accused persons have been given benefit of doubt, they have been acquitted by the trial Court. Aggrieved by conviction and sentence imposed by trial Court this appeal has been preferred by accused-appellant Gourishankar. 4. It was submitted by Shri A.K. Choubey, learned counsel for appellant, that conviction of appellant by the trial Court in view of the evidence adduced was not proper, he should have been given the benefit of doubt. However, Shri A.K. Choubey, has mainly pressed the submission that it was not a case in which conviction under section 302 of Indian Penal Code could have been recorded. The conviction should have been recorded under sections 304-II or 326 of Indian Penal Code. He has further submitted that only a grievous hurt was caused, it was not sufficient in ordinary course of nature to cause death. Death was due to septicemia after 4 months of incident and there was refusal by son of deceased to take him to Jabalpur for proper treatment, thus, conviction of appellant under section 302 of Indian Penal Code was unwarranted and deserves to be set aside. He has pointed out that appellant has been released on probation under M.P. Prisoner's Release on Probation Act. He has placed reliance on a decision of the Apex Court in Abbas Ali vs. State of Rajasthan, AIR 2007 SC 1239 and other decisions to be referred later. 5. Shri R.S. Patel, learned Addl. Advocate General, appearing on behalf of respondent/ State, while controverting the aforesaid submission, has submitted that accused knew it very well what he was doing and what he intended. The intention of appellant was to cause death. It was not a case of culpable homicide not amounting to murder fall under section 304 but a case within the purview of section 300 of Indian Penal Code, thus, conviction of appellant under section 302 of Indian Penal Code was proper. In the case of death by burn injuries person may survive for several weeks together and septicemia was the direct result of burn injuries caused in the incident by accused Gourishankar, consequently his conviction under section 302 of Indian Penal Code could not be said to bad in law. No case for interference in his conviction was thus made out. In the case of death by burn injuries person may survive for several weeks together and septicemia was the direct result of burn injuries caused in the incident by accused Gourishankar, consequently his conviction under section 302 of Indian Penal Code could not be said to bad in law. No case for interference in his conviction was thus made out. He has relied upon several decisions of the Apex Court to be referred later. 6. First we come to the question as to the pouring of kerosene oil and setting ablaze by using of a match stick by accused Gourishankar. We find on record FIR (Ex.P.1) lodged by Padamnarain Sharma (PW-1), it was lodged promptly at 6:50 a.m. at police station situated at 2 kms. away from the place of incident. In the FIR promptly lodged we find it was mentioned that Gourishankar poured kerosene oil and set ablaze the deceased Radha Vallabh. It was also mentioned that a dispute was going on since long with respect to agricultural land. A dying declaration (Ex.P.9) of Radha Vallabh was recorded on 24-10-1993 on the date of incident at 7:40 a.m. We find that Doctor on duty has certified that patient remained fully conscious when his statement was recorded and was also fit after recording of statement. In the dying declaration Radha Vallabh has clearly stated that when he got up in the morning and went out to give fodder to cow, his nephew Gourishankar S/o Mahadev Prasad came, poured kerosene oil and set him ablaze with the help of a match stick. Presence of two other accused persons was not mentioned in dying declaration. Consequently two other accused persons namely Mahendra Kumar and Ram Gopal have been given the benefit of doubt by the trial Court. Dying declaration (Ex.P.9) has been proved by R.K. Bohat (PW.10), Executive Magistrate-cum-Naib Tehsildar. Dr. Harchandani (PW-7) has also stated that the deceased was in a fit condition to give statement when his dying declaration was recorded by R. K. Bohat (PW-10), he has proved his signatures, thus, dying declaration (Ex.P.9) has been proved in which name of Gourishankar has been specifically mentioned. It was also stated by deceased Radha Vallabh that intention of Gourishankar was to kill him due to the old enmity. 7. It was also stated by deceased Radha Vallabh that intention of Gourishankar was to kill him due to the old enmity. 7. Padamnarain Sharma (PW-1) has stated that when he heard hue and cry raised by Radha Vallabh, he reached the spot, other persons were also summoned they tried to extinguish the fire. Accused persons ran away from the spot. He then lodged an FIR (Ex.P.1) seizure was made on the spot. A dispute as to property arose in the year 1986. He had seen that Gourishankar, Ram Gopal and Mahendra Kumar ran away from the spot. Incident took place at 5:30 a.m. thus, Padamnarain Sharma has substantially corroborated the prosecution case. Madhukar (PW-5) has also stated that he was informed by the deceased Radha Vallabh that his nephew Gourishankar had poured kerosene oil and set him ablaze, thus, not only a written dying declaration was recorded but an oral dying declaration was also made in the presence of Madhukar (PW-5). Similar statement of Laxmikant Sharma (PW-6) renders support to oral dying declaration. Thus, we have no hesitation to find that accused Gourishankar was responsible for the incident, we hold him responsible for pouring kerosene oil and setting ablaze Radha Vallabh with the help of a match stick. It is not in dispute and is supported by the evidence that burn injury was caused by setting ablaze Radha Vallabh with the help of kerosene oil. It is apparent from post-mortem report (Ex.P.13) that the cause of death was septicemia due to extensive burn injuries. It was also clearly mentioned that 30% burn injuries were found on the body of deceased. 8. Question arises for consideration whether the accused intended only to cause grievous hurt punishable under section 326 of Indian Penal Code or that he had no intention to kill the deceased, hence, case would fall under section 304-II of Indian Penal Code rather than falling under section 300/302 of Indian Penal Code. In the case of burn injuries, we cannot make out an exception in favour of the accused, merely by the fact that deceased survived for about 4 months, death was due to direct result of injuries resulting into septicemia. There is no iota of doubt that septicemia was caused as a direct result of burn injuries as mentioned in the post-mortem report. There is no iota of doubt that septicemia was caused as a direct result of burn injuries as mentioned in the post-mortem report. We are also not impressed by the submission that deceased had burn only to the extent of 30%, as a matter of fact but for putting of a blanket by the son of the deceased, he would have burnt to death on spot itself, the death occurred due to burn injuries as a direct result thereof and we entertain not an iota of doubt that accused intended to commit murder by pouring kerosene oil and setting Radha Vallabh ablaze with the help of a match stick. We find no force in the submission of learned counsel for appellant that no effort was made by the accused to see that deceased was first felled to the ground and only thereafter in case accused had intended to commit murder, he would have poured kerosene oil. In our opinion, submission is baseless, it was not necessary to ensure Radha Vallabh fell to the ground, it is not uncommon that in such cases kerosene oil is poured while victim is standing. 9. The Apex Court in State of M.P. vs. Ram Prasad, AIR 1968 SC 881 considered the case of a burn injury. The trial Court convicted the accused under section 324 of Indian Penal Code. The High Court on appeal being preferred convicted the accused under section 304 part II of Indian Penal Code and sentenced him to 4 years' rigorous imprisonment, the Apex Court has laid down that conviction ought to have been recorded under section 302 of Indian Penal Code. The Apex Court considering the act of accused Ram Prasad observed that, what is required to be considered in such cases is that whether act of accused Ram Prasad was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. The clause 4 of section 300 of Indian Penal Code may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death, accused Ram Prasad poured kerosene oil upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of section 300 of Indian Penal Code, in other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death. In the instant case we have no iota of doubt that accused Gourishankar very well knew the consequence of his act, thus, it would be a case of culpable homicide amounting to murder. 10. The Apex Court in Patel Joitaram vs. State of Gujarat, AIR 2001 SC 2944 while considering the provisions of section 300 of Indian Penal Code observed in relation to the charge of scorching a woman to death, death took place after a fortnight, second and third degree burns were found on the body of deceased by Doctor examining her and also by Doctor who conducted autopsy. It was opined by Doctor that death was due to stroke on account of burns, mere possibility of other cause supervening during her hospitalisation, it was held that it was not a safe premise for deciding that death was due to other causes and not burns. It was held to be a case under section 300 of Indian Penal Code. The Apex Court has held thus:- “37. In the present case, appellant did not even make an effort to bring the case within any of the four exceptions enumerated in section 300. It was held to be a case under section 300 of Indian Penal Code. The Apex Court has held thus:- “37. In the present case, appellant did not even make an effort to bring the case within any of the four exceptions enumerated in section 300. Hence the only question to be answered is whether he did the act with the intention of causing such bodily injury as he knew “to be likely to cause death of the deceased.” It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burns resulting therefrom would at least be “likely” to cause her death (if not they are sufficient in the ordinary course of nature to cause her death). The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the “2ndly” clause of section 300, Indian Penal Code. There was a little abatement of the ferocity of the flames which engulfed her as she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a water-flow. Such a reflex action performed by her had mitigated the conflagration of the flames but did not save her from the fatality of the calamity. Hence the interval of fourteen days between the attack and her death is not a cause for mitigation of the offence perpetuated by the offender. We are, therefore, not impressed by the alternative argument advanced by the learned senior counsel for the appellant.” 11. A Division Bench of this Court in Hari Chunnilal vs. State of M.P. 1977 MPLJ 321 , has also observed when the death was caused by septic, relying upon decision of Apex Court in State of M.P. vs. Ram Prasad (supra) this Court considered Lyons on Medical Jurisprudence of India, 10th Edition, at Page 385, in which it was observed that burns involving a great extent of surface are specially dangerous to life. A burn involving 2/3rd or even 1/2 of the entire skin may be regarded as certain to destroy life and the same practically may be said of a burn involving one third of the body. Burns of limited intensity involving a wide extent of surface is more dangerous. A burn involving 2/3rd or even 1/2 of the entire skin may be regarded as certain to destroy life and the same practically may be said of a burn involving one third of the body. Burns of limited intensity involving a wide extent of surface is more dangerous. “Burns on trunks” are more dangerous than on the extremities. The burns were on the vital parts of the body and it being third degree burns, part of the skins were destroyed which was more dangerous. Pain is responsible for a degree of initial shock immediately following the injury, but this merges rapidly into the stage of hypotension and circulatory collapse associated with loss of fluid of protein and haemo concentration. It was held that the deceased died due to the burn injuries as a result of “septic.” Conviction of accused was upheld for offence of murder. In Sudershan Kumar vs. State of Delhi, AIR 1974 SC 2328 , the burns were to the extent of 35% of the body of deceased. It was held that accused intended to cause such injuries and the injuries were sufficient in ordinary course of nature to cause death. Accused has poured acid on body victim, he died after 10 days. 12. In Abbas Ali vs. State of Rajasthan (supra) the Apex Court has laid down the distinction between sections 299 and 300 of Indian Penal Code. The Apex Court has observed that the distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of section 299 and clause (3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury was sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. In our opinion, in the instant case, the degree of probability of death was imminent from the intended bodily injury caused by the accused, thus, it would be a case of culpable homicide amounting to murder. In our opinion, in the instant case, the degree of probability of death was imminent from the intended bodily injury caused by the accused, thus, it would be a case of culpable homicide amounting to murder. 13. Shri A.K. Choubey, learned counsel for appellant, has also relied upon a decision of Apex Court in Balaur Singh and Others vs. State of Punjab and Others, AIR 1995 SC 1956 , in which the Apex Court has considered applicability of section 300 of Indian Penal Code and conviction was altered from section 302 to section 304 part II of Indian Penal Code. It was a case of “single blow” during the course of “fee fight” between the parties, the facts are quite different in the instant case hence the ratio has no applicability to this case. Learned counsel for appellant has also referred to a decision in Kaliappan vs. State of Tamil Nadu, AIR 1977 SC 699 , there was attack by several accused persons, one blow was given on the head causing incised wound; medical evidence indicated that injuries may not have been fatal, thus, conviction under section 302 of Indian Penal Code was altered to section 304 part I of Indian Penal Code. However, in the instant case, it is apparent from the post-mortem report that cause of death was septicemia due to burn injuries and death was a direct result of injuries, the burn injuries were in the abdominal area which is vital and injuries on such an area may cause death as observed by this Court in Hari Chunnilal vs. State of M.P. (supra) with the help of reliance on Medical Jurisprudence of India by Lyons, 10th Edition, at Page 385 referred to in Para 9 of the aforesaid decision, extensive burns were received by Radha Vallabh on vital part of his body is apparent from diagram and the post-mortem report, thus, in our opinion, the trial Court has rightly convicted the appellant for commission of an offence of culpable homicide amounting to murder. It is not a case of grievous hurt or culpable homicide not amounting to murder, thus, we have no hesitation in affirming the decision rendered by the trial Court. We are not required to comment in this appeal as to the correctness of the State action to release the appellant on probation during the pendency of this appeal. 14. It is not a case of grievous hurt or culpable homicide not amounting to murder, thus, we have no hesitation in affirming the decision rendered by the trial Court. We are not required to comment in this appeal as to the correctness of the State action to release the appellant on probation during the pendency of this appeal. 14. Consequently, appeal deserves to be dismissed. Same is hereby dismissed.