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Madhya Pradesh High Court · body

2009 DIGILAW 82 (MP)

OMWATI BAI v. STATE OF M P

2009-01-19

B.M.GUPTA, S.SAMVATSAR

body2009
Judgment ( 1. ) FEELING aggrieved with the judgment dated 3rd October, 2005 rendered by second Additional Sessions Judge, guna, in S. T. No. 266/2004, this appeal has been preferred by the appellants, wherein the learned Judge has convicted them for commission of offences punishable under sections 302/34 and 342 of IPC imposing imprisonment for life along with fine of rs. 250/- for the first offence and rigorous imprisonment for three months for the second offence. The learned Judge has also convicted appellants Devendra and Jagdish for commission of an offence punishable under section 450 of IPC imposing 3 years rigorous imprisonment along with fine of Rs. 250. ( 2. ) THE facts in brief are that with regard to an incident happened on 25th August, 2004 at about 9 a. m. at the residence of complainant haribhagwan Raghuwanshi situated at village Nimra, Police Station, myana, Distt. Guna, an FIR was lodged by complainant Haribhagwan that his wife omwati is having illicit relationship with appellant Devendra Singh Raghuwanshi. Despite sufficient efforts. she did not come on the right track. On 25th August, 2004 at about 9 a. m. with intention to kill him, appellants devendra Singh and Jagdish (the brother of Omwati) caught hold of him and. appellant Omwati poured kerosene and ignited the same. Consequently, he sustained burn injuries. Crime No. 252/2004 was registered against the appellants at aforesaid police Station for commission of offence punishable under Section 307/34 of IPC. The complainant was admitted in District Hospital, Guna, who died during treatment on 14th September, 2004. Thereafter offence punishable under Section 302 of IPC was also added. After completing the investigation, challan was filed, the case was committed and thereafter the appellants have been tried and convicted as aforesaid. ( 3. ) SHRI N. P. Dwivedi, the learned advocate for the appellants, at the very outset, has submitted that although the appeal has been filed assailing the impugned judgment on various counts, including the merits, yet for the present, he wants to press the same only on the point that in the facts and circumstances of the case, the offence of murder punishable under Section 302 of IPC is not made out. The injured died after 20 days during treatment and cause of death was septicemic shock due to excessive burn alongwith its complications. The injured died after 20 days during treatment and cause of death was septicemic shock due to excessive burn alongwith its complications. The injuries have not been opined as sufficient to cause death in ordinary course of nature. In these circumstances, neither the intention, nor the injuries appear sufficient on which commission of murder can be deemed to be proved. At the most, the appellants can be convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC. Shri dwivedi has also drawn attention at the statements of Dr. S. K. Malhotra (DW-1) and satish (DW-2) and submitted that Dr. S. K. Malhotra, psychiatrist, (DW-1) has stated that mental status of the deceased was not okay. He had remained under his treatment he has proved the relevant entries of his register Ex. D-l. Ex. D-1 indicates that on 28th June 2001, the deceased was treated by this doctor. Witness Satish (DW-2), who is the son of the deceased, has stated that the deceased burnt himself. ( 4. ) SHRI M. P. S. Bhadoriya, P. P. for the respondent/state has countered the contentions and supported the impugned judgment. ( 5. ) IN view of the aforementioned submissions, the only point which requires to be considered is, as to whether in the facts and circumstances of the case which offence can be said to be proved against the appellants. In this regard, the statements of three doctors are material. Dr. S. K. Shrivastava (PW-2) had examined the deceased on the same day when the incident happened and the deceased was alive, but injured. He has stated that on 25th August, 2004 he was posted as Medical Officer in District Hospital, Guna. He recorded the statement of haribhagwan (the deceased), who had stated that appellant Devendra caught hold his hands and appellant Jagdish caught his hair and his wife appellant Omwati poured kerosene and ignited him. He has further stated that at that time Haribhagwan was in proper senses. The statement recorded by him is Ex. P-2. Upon reading of this statement, it does not appear that the incident was caused by the appellants with intention to commit his murder. ( 6. ) DR. S. O. Bhola (PW-3) has stated that on 25th August, 2004, he was posted as medical Officer, Myana, Distt. Guna. The statement recorded by him is Ex. P-2. Upon reading of this statement, it does not appear that the incident was caused by the appellants with intention to commit his murder. ( 6. ) DR. S. O. Bhola (PW-3) has stated that on 25th August, 2004, he was posted as medical Officer, Myana, Distt. Guna. He examined Haribhagwan (the deceased) and found 70% burn over his body. Smell of kero-sene oil was coming from the body. The nature of the injuries could not be mentioned by him, as according to him, the same was possible after healing of the wound. His report is Ex. P-3. ( 7. ) THE third doctor is Anil Vijaywargiya (PW-1), who conducted post-mortem on the dead-body of the deceased on 14th Septem-ber 2004. He has stated that he found infected burn at head, neck, chest, hands, stomach etc. The patient was admitted in the hospital on 25th August, 2004 and died on 14th September, 2004 i. e. after 20 days, during treatment. According to his opinion, the cause of death was septicemic shock due to excessive burn along with its complications. His report is Exdp-1. He has stated in para 10 of his statement that had the patient treated in All India Institute of Medical Sciences (AIIMS) or in any other big hospital, where the facility of burn unit is available, then it was probable to save him. He has also stated that such facilities, which are available in burn unit of T. Chauithram hospital, are not available in District Hospital, Guna. The statement of this doctor indicates that although the cause of death is burn injuries, but only injuries are not responsible for the death of the deceased. There may be lack of proper treatment and on account of that, the complications arose and cause of death was septicemic shock and that too after 20 days of the incident. Out of these three doctors, none has opined that the injuries were sufficient to cause death in ordinary course of nature. Had there been any intention of the appellants to commit the murder of the deceased, they could have inflicted severe burn injuries or could have opted other modes also after his becoming injured due to burn. But no such facts are appearing. Had there been any intention of the appellants to commit the murder of the deceased, they could have inflicted severe burn injuries or could have opted other modes also after his becoming injured due to burn. But no such facts are appearing. In that way, neither the required intention to commit murder nor inflicting such injury, which was sufficient to cause death in ordinary course of nature, appears. In these circumstances, in our considered opinion, the conviction of the appellants for commission of an offence of murder punishable under Section 302/34 of IPC appears erroneous. In such circumstances, the submission of shri Dwivedi appears justified that the appellants can be convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 part II of IPC. ( 8. ) WITH regard to the conviction and sentence of rest of the offences, as nothing has been argued, hence, there appears no need of any discussion. ( 9. ) CONSEQUENTLY, the appeal is partly allowed. The conviction and sentence of the appellants for the offence punishable under section 302/34 of IPC is set aside, instead they are convicted for the offence of culpable homicide not amounting to murder punish-able under Section 304 Part II of IPC and directed to undergo rigorous imprisonment for a period of five years alongwith fine of rs. 250. Rest part of the judgment will remain same. Appeal allowed partly.