Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 239 (MP)

Ganesh Ram v. State of Madhya Pradesh

2010-02-25

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT S.S. Dwivedi, J. 1. The appellant has preferred this criminal appeal under Section 374(2) of Cr.PC feeling aggrieved by the impugned judgment of conviction and sentence dated 9-8-1999 passed by Additional Sessions Judge, Ganjbasoda District Vidisha in Session Trial No. 177/1998, whereby the appellant has been found guilty for the offence under Section 302 of IPC and sentenced him to imprisonment for life. 2. Briefly stated facts of the case are that admittedly the appellant/ accused is the husband of the deceased Pinki. On 17-8-98 at about 5 p.m. at Village Bedankhedi, it is alleged that some quarrel took place in between the deceased Pinki and the appellant/accused, due to which, it is further alleged that appellant/accused poured kerosene on the body of the deceased Pinki and thereafter, set her on fire. Deceased Pinki was admitted in the hospital in the burnt condition where Dr. R.K. Jain examined the burnt lady Pinki and found 50 to 55 per cent superficial burn on the body. The matter has been reported to the police station concerned, on which basis, a case under Section 307 of IPC has been registered. Dying declaration of the injured Pinki has also been recorded by Suresh Chandra Gangwani, the Executive Magistrate, in the presence of treating Dr. P.K. Jain which is Exh. P-16. During investigation, spot map has been prepared by the police concerned and statements were also recorded. During treatment, after 5 days, on 22-8-98 Pinki died due to burn injuries in the Hamidiya Hospital, Bhopal. An information has been given to the police, on which basis, inquest report has been registered at Bhopal and thereafter it is sent to Police Station, Ganj Basoda, where the original case has been registered under Section 302 of IPC. A memo for post-mortem examination has also been issued by the Investigating Officer, on which basis, Dr. Geetarani Gupta performed the post-mortem examination and proved the report (Exh. P-11). After due investigation, charge-sheet has been filed. 3. The appellant/accused abjured the guilt and his defence was of false implication in this case. Learned Trial Court after due appreciation of the entire prosecution evidence on record by the impugned judgment held the appellant/accused guilty for the offence under Section 302 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal. 4. Learned Trial Court after due appreciation of the entire prosecution evidence on record by the impugned judgment held the appellant/accused guilty for the offence under Section 302 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal. 4. Heard learned Counsel for both the parties and perused the record and impugned judgment. 5. Learned Counsel for the appellant submitted that alleged incident took place all of a sudden without any pre-intention. As per dying declaration of the deceased Pinki, the appellant/accused had poured kerosene on her and thereafter set her on fire. First examining Dr. R.K. Jain found 50 to 55 per cent burn injuries on the body of the deceased. Similarly, Autopsy Surgeon Dr. Geetarani Gupta as per post-mortem report found that Pinki died due to burn injuries and its complications which resulted in failure of Cardio Respiratory System. Therefore, if the burn injuries are not direct result of death of deceased Pinki and she died due to complications near about 5 days after the incident then the offence which can be found proved against the appellant may be the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC as held by the Trial Court. Therefore, only prayer on behalf of the appellant is for alteration of his conviction from Sections 302 - 304 Part I of IPC. With regard to the sentence is concerned, it is submitted that appellant is in custody since the date of his arrest, i.e., from 20-8-1998 and has completed more than 11 years' jail sentence, therefore, prayed for the sentence already undergone by the appellant in jail. 6. Learned Public Prosecutor appearing for the State supported the impugned judgment and submitted that appellant had willfully poured kerosene on his wife Pinki and intentionally set her on fire, therefore, his intention for causing murder of his wife is apparent and in such circumstances, learned Trial Court has rightly held the appellant/accused guilty for the offence punishable under Section 302 of IPC and no grounds are available for any alteration in the conviction of the appellant from Sections 302 - 304 Part I of IPC, hence, prayed for dismissal of the appeal. 7. 7. Considering the averments and submission of learned Counsel for the parties, it is apparent that appellant is not challenging the finding of conviction that he is the person who had poured kerosene on the deceased and set her on fire. This fact has also been proved on the basis of dying declaration of injured Pinki which is Exh. P-16 recorded by the Executive Magistrate, Suresh Chandra Gangwani (P.W. 13) who clearly stated that in the hospital at Bhopal he recorded the statement of Pinki as per Exh. P-16 wherein she specifically stated that some quarrel took place in between her and her husband with regard to preparation of tea. Thereafter, when she refused to prepare tea, annoyed with it appellant/accused poured kerosene on her and thereafter set her on fire. Suresh Chandra Gangwani (P.W. 13) has further testified that before recording the statement, he also obtained certificate from the treating doctor that the lady is in a position to give her statement and also remained in the same condition till the completion of statement. Thus, on perusal of statement of Suresh Chandra Gangwani (P.W. 13) who proved the dying declaration (Exh. P-16), it is apparent that it is the appellant/accused who had poured kerosene on his wife deceased Pinki and set her on fire, due to which, Pinki sustained burn injuries. 8. It is settled principle of law that if the dying declaration recorded by :he competent Executive Magistrate after obtaining the medical certificate for it condition of mind of the concerning witness and if it is found to be believable hen no further corroboration is required for the aforesaid statement of the deceased. 9. In such circumstances, only on the basis of dying declaration (Exh. P-16), we are of the considered view that prosecution has successfully proved the fact that it is the appellant/accused who poured kerosene on the deceased Pinki and set her on fire, due to which, Pinki sustained burn injuries. 10. Now, the only point remains for consideration before us as to whether the act of the accused can be found punishable under Section 302 of IPC as held by the Trial Court or he can be held punishable under Section 304 Part I of IPC. 11. As per the dying declaration statement of deceased Pinki (Exh. 10. Now, the only point remains for consideration before us as to whether the act of the accused can be found punishable under Section 302 of IPC as held by the Trial Court or he can be held punishable under Section 304 Part I of IPC. 11. As per the dying declaration statement of deceased Pinki (Exh. P-16), the incident took place all of a sudden due to some minor dispute in between the husband and wife with regard to preparation of tea as asked by the appellant being husband of the deceased and when she refused to prepare tea, thereafter, due to annoyed with it, the appellant/accused had poured kerosene on the deceased and thereafter set her on fire. Thus, on perusal of aforesaid statement it is apparent that incident took place all of a sudden without any pre-intention of the appellant/accused because of some minor quarrel in between the husband and wife and if intention of the appellant is not for causing death of the deceased then certainly he might have the knowledge that by his act the death may be caused. In such circumstances, the act of the accused can be held liable for the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC as held by the Trial Court. 12. Similarly, second aspect of the case is that the incident took place on 17-8-98 whereas the deceased Pinki died on 22-8-98 during treatment and Autopsy Surgeon Dr. Geeta Rani Gupta (P.W. 8) opined that deceased died due to infection of burn injuries found on the body of the deceased which finally resulted in cardio respiratory failure. Thus, the death is due to complication in the injuries near about 5 days after the incident and in such circumstances, if the direct result of death is not the burn injuries but because of the complication then certainly the appellant/accused cannot be held guilty for the offence punishable under Section 302 of IPC. For the similar aspect, reliance can be placed on the decision of the Apex Court reported in B.N. Kavatakar and Anr. v. State of Karnataka 1994 Supp. For the similar aspect, reliance can be placed on the decision of the Apex Court reported in B.N. Kavatakar and Anr. v. State of Karnataka 1994 Supp. (1) SCC 304; wherein the Hon'ble Apex Court while dealing with a case where the deceased is died due to complication of the injuries then accused is not found guilty under Section 302 of IPC and held here as under: The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34, IPC. 13. Similarly, again the Hon'ble Apex Court in a recent decision reported in Ongole Ravikanth v. State of A.P. AIR 2009 SC 2129 , in the similar circumstances where the husband poured kerosene on the wife and set her on fire "found that incident taken place all of a sudden without any pre-intention then the act of the accused is found to be punishable under Section 304 Part I of IPC and affirmed the judgment of conviction and sentence passed by the High Court". 14. Considering the aforesaid case law on the point which also applied to the factual scenario of the present case also that due to some minor quarrel in between the husband and wife with regard to preparation of tea, the appellant/ accused without any intention poured kerosene on the wife deceased Pinki and thereafter set her on fire, due to which, she sustained 50 to 55 per cent burn injuries and died near about 5 days after the incident due to complication of the burn injuries and in such circumstances, the appellant/accused can be convicted for the offence punishable under Section 304 Part I of IPC and not under Section 302. 15. Resultantly, the appeal preferred by the appellant is allowed in part. 15. Resultantly, the appeal preferred by the appellant is allowed in part. The conviction of the appellant under Section 302 of IPC is hereby altered to Section 304 Part I of IPC and for this offence, he is sentenced to custodial period (from 20-8-98 till the date of his release, which is more than 11 years sentence). 16. Appellant is in custody. Trial Court is directed to immediately release the appellant from the jail custody, if not required to be detained in any other case.