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2010 DIGILAW 548 (MP)

Shanti Bai v. State of Madhya Pradesh

2010-05-13

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT S. S. Dwivedi, J. 1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, aggrieved by the judgment of conviction and sentence dated 15th July, 2002, passed by the Additional Sessions Judge, Ganj Basoda, District Vidisha, in Sessions Trial No. 03/2002, whereby held the appellantaccused guilty for the offence punishable under Sections 302 of the Indian Penal Code and sentenced her to imprisonment for life with a fine of Rs. 100/. In default of payment of fine, further ordered to suffer one month's rigorous imprisonment. 2. Briefly stated the facts of the case are that appellantaccused Shanti Bai (wife of Ram Singh) is the kept of one Jawahar Singh and living with him. It is further alleged that appellant accused Shanti Bai used to quarrel with Jawahar Singh and ask him to oust Vimala Bai, the first wife of Jawahar Singh, from the house. On the date of incident i.e. 11/09/2001, some quarrel took place in between appellantaccused Shanti Bai and Jawahar Singh. During thisquarrel, it is alleged that appellantaccused Shanti Bai poured kerosene on his body and set him on fire by lighting a matchstick, due to which Jawahar Singh sustained various burn injuries. He was immediately taken to the hospital and First Information Report has been lodged at the concerning police station, on which basis, a case under Section 307 of IPC has been registered against the appellant accused. During treatment, a dying declaration of injured Jawahar Singh has also been recorded by the Executive Magistrate. During treatment, on the next day morning, Jawahar Singh died due to burn injuries. An information was given to the police station concerned, on which basis, the case has been altered to Section 302 IPC. An inquest panchanama has been prepared and a memo for postmortem examination has been issued. Dr. P.K. Sthapak (P.W.1) performed the postmortem of dead body of Jawahar Singh and found 95% burn injuries. He opined that due to excessive burns resulting shock and ultimate death of Jawahar Singh and proved the postmortem report Ex.P/2. During investigation, statements of the witnesses have been recorded and the appellantaccused has been arrested. After due investigation, charge sheet has been filed. 3. The appellant accused abjured the guilt and her defence is of false implication. 4. He opined that due to excessive burns resulting shock and ultimate death of Jawahar Singh and proved the postmortem report Ex.P/2. During investigation, statements of the witnesses have been recorded and the appellantaccused has been arrested. After due investigation, charge sheet has been filed. 3. The appellant accused abjured the guilt and her defence is of false implication. 4. Learned trial Court after due appreciation of the entire evidence on record, by the impugned judgment held the appellant accused guilty for the offence punishable under Sections 302 of IPC and sentenced her as stated hereinabove, aggrieved by which the appellant has preferred this appeal. 5. Having heard learned Counsel for the appellant as well as learned Public Prosecutor for the respondent State and perused the record. 6. It is submitted on behalf of the appellant that appellant is not challenging the finding of conviction recorded by the learned trial Court. The only prayer is that the incident had taken place all of a sudden due to quarrel in between deceased Jawahar Singh and appellantaccused Shanti Bai. Appellantaccused Shanti Bai used to quarrel with Jawahar Singh and ask him to oust Vimala Bai, the first wife of Jawahar Singh, from the house. When Jawahar Singh refused to oust his first wife Vimala Bai from the house, at that time in a heat of passion, the allegation against appellantaccused Shanti Bai is that she poured kerosene on the body of Jawahar Singh and set him on fire by lighting a matchstick. Thus, the appellantaccused is not having any intention to cause death of Jawahar Singh and the incident took place all of a sudden due to heat of passion. In such circumstances, the act of appellantaccused will come within the purview of Exception 4 of Section 300 of IPC for which, she can be held guilty under Section 304 Part I of IPC. The appellant is in custody since the date of her arrest and she has completed more than eight years of sentence. Appellant being a lady, therefore, prayed for the sentence to the period already undergone by her in jail. 7. Learned Public Prosecutor for the respondentState supported the impugned judgment of conviction and sentence and prayed for dismissal of the appeal. 8. Appellant being a lady, therefore, prayed for the sentence to the period already undergone by her in jail. 7. Learned Public Prosecutor for the respondentState supported the impugned judgment of conviction and sentence and prayed for dismissal of the appeal. 8. As before this Court, the learned Counsel for the appellant is not challenging the involvement of appellant in this incident by causing burn injuries to deceased Jawahar Singh. This fact has also been proved by the prosecution itself on the basis of the statement of an eyewitness, Vimala Bai (P.W.3)that some quarrel took place in between appellantaccused Shanti Bai and her husband Jawahar Singh. During that quarrel, appellantaccused Shanti Bai poured kerosene on the body of Jawahar Singh and set him on fire by lighting a matchstick, due to which he sustained burn injuries. In detailed crossexamination of the aforesaid eyewitness, Vimala Bai (P.W.3) nothing substantial came on which basis, her statement can be disbelieved. Moreover, the involvement of appellantaccused is also proved on the basis of dying declaration of Jawahar Singh, which is Ex.P/5, recorded by Executive Magistrate Mr. A.K. Chaturvedi (P.W.7). Mr. A.K. Chaturvedi (P.W.7) clearly stated that after obtaining the necessary medical certificates with regard to the competency to give statement by the deceased, he recorded the statement Ex.P/5 wherein deceased Jawahar Singh clearly stated that he sustained burn injuries by appellantaccused Shanti Bai who poured kerosene on his body and set him on fire by lighting a matchstick. This statement has been recorded in details by Executive Magistrate and nothing substantial came in the crossexamination of this witness, Mr.A. K. Chaturvedi (P.W.7) also, on which basis, this can be inferred that deceased Jawahar Singh at the time of dying declaration was not fit condition to give the statement. 9. The competency of Jawahar Singh for making dying declaration has also been proved by the medical evidence, the statement of Dr. K.K. Shrivastava (P.W.2) who after examination of injured Jawahar Singh, gave a certificate that he is in a fit condition to give statement. Thereafter, this certificate has been incorporated in Ex.P/5. Then, Executive Magistrate Mr. A.K. Chaturvedi (P.W.7) had recorded the statement of Jawahar Singh. 10. Thus, in view of the aforesaid statement of Vimala Bai (P.W.3) and dying declaration (Ex.P/5) proved by Executive Magistrate, Mr. Thereafter, this certificate has been incorporated in Ex.P/5. Then, Executive Magistrate Mr. A.K. Chaturvedi (P.W.7) had recorded the statement of Jawahar Singh. 10. Thus, in view of the aforesaid statement of Vimala Bai (P.W.3) and dying declaration (Ex.P/5) proved by Executive Magistrate, Mr. A.K. Chaturvedi (P.W.7), the prosecution has successfully proved the fact that it is the appellantaccused who had poured kerosene on the body of deceased Jawahar Singh and set him on fire by lighting a matchstick. 11. Now, the question remains for consideration as to whether by the aforesaid act the appellantaccused can be held guilty for the offence under Section 302 or 304 Part I of IPC. 12. On perusal of the statement of Jawahar Singh Ex.P/5, it is apparent that on the date of incident, some hot talks took place in between him and appellantaccused Shanti Bai with regard to first wife Vimala Bai. Appellant accused Shanti Bai who is kept of Jawahar Singh used to quarrel with him and ask him to oust Vimala Bai, the first wife of Jawahar Singh, from the house. When Jawahar Singh refused for the same and annoyed with this, appellant accused Shanti Bai poured kerosene and set him on fire by lighting a matchstick. 13. Considering the aforesaid circumstances of the case in which the incident took place, it is apparent that the incident had taken place all of a sudden and appellantaccused was not having any intention or premeditation for causing death of Jawahar Singh. Due to annoyance, this incident took place. In view of the aforesaid peculiar facts and circumstances of the case, the act of accused appellant will come within the Exception 4 of Section 300 of IPC which reads here as under: Exception 4---Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in cruel or unusual manner. Explanation it is immaterial in such cases which party offers the provocation or commits the first assault. 14. Similarly, if the appellantaccused has committed an act all of a sudden, without any premeditation, then certainly for the aforesaid act the appellantaccused can be held guilty for the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC, as held by the trial Court. 14. Similarly, if the appellantaccused has committed an act all of a sudden, without any premeditation, then certainly for the aforesaid act the appellantaccused can be held guilty for the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC, as held by the trial Court. For this proposition, a reliance can be placed on the decision of the Hon'ble Apex Court in the case of Kaluram v. State of Rajasthan reported in (2000)10 SCC 324 , wherein under the similar circumstances, the Hon'ble Apex Court in paragraph 7 has held as under: But, then, what is the nature of the offence proved against him ? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige, he poured kerosene on her and wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the fames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. 15. Similar view has been again reiterated in another decision of the Hon'ble Apex Court in Ghapoo Yadav and Ors. v. State of M. P. reported in (2003) 3 SCC 528 , wherein, the Hon'ble Apex Court has explained words and phrases "fight", "sudden fight", "undue advantage", "heat of passion" and also in paragraphs 10 and 11 has held as under: 10. v. State of M. P. reported in (2003) 3 SCC 528 , wherein, the Hon'ble Apex Court has explained words and phrases "fight", "sudden fight", "undue advantage", "heat of passion" and also in paragraphs 10 and 11 has held as under: 10. 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 selfcontrol, 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 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 be 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 could in such cases 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. 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 Indian Penal Code. 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 or 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". 11. In the case at hand, out of the seven injuries, only Injury 2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries and their nature proves the intention of the accusedappellants, by causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accusedappellants had come prepared and armed for attacking the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accusedappellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to that in Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 . The appellants are to be convicted under Section 304 Part I IPC and custodial sentence of 10 years and fine as was imposed by the trial Court would meet the ends of justice. The appeal is allowed to the extent indicated above. 16. In view of the aforesaid decisions of the Apex Court, it is apparent that the incident took place all of a sudden, without premeditation. Due to angry and annoyance, appellantaccused Shanti Bai had caused burn injuries to deceased Jawahar Singh by pouring kerosene on his body and by lighting a matchstick, set him on fire. In such circumstances, for the aforesaid act of the appellantaccused, she can be held guilty for the offence punishable under Section 304 Part I of IPC and not under Section 302 of IPC, as held by the trial Court. 17. The appellantaccused has also examined three defence witnesses, namely, Ramshankar Sharma (D.W.1), Phool Singh(D.W.2), Sunder Singh (D.W.3) and Ram Singh (D.W.4). Ramshankar Sharma (D. W.1) is with relation to the voter list, prepared by the Municipality. Pool Singh (D.W.2) is with regard to state of mind of Jawahar Singh when he was admitted in the hospital and when specific medical opinion was available with regard to the condition of deceased Jawahar Singh at the time of dying declaration, then certainly, learned trial Court has rightly disbelieved the aforesaid statement of defence witnesses. 18. Pool Singh (D.W.2) is with regard to state of mind of Jawahar Singh when he was admitted in the hospital and when specific medical opinion was available with regard to the condition of deceased Jawahar Singh at the time of dying declaration, then certainly, learned trial Court has rightly disbelieved the aforesaid statement of defence witnesses. 18. Thus, on overall reappreciation of the entire evidence on record, we are of considered opinion that the appellantaccused had caused burn injuries to deceased Jawahar Singh for which, she can be held guilty for the offence punishable under Section 304 Part I of IPC and thus, her conviction is liable to be altered as aforesaid. 19. Consequently, the appeal preferred by appellant is allowed in part. The conviction of the appellant under Section 302 of IPC and sentence of imprisonment for life is hereby set aside. Instead thereof, the appellant is held guilty under Section 304 Part I of IPC and sentenced to ten years rigorous imprisonment with a fine of Rs. 100/. In default of payment of fine, she will suffer further one month's imprisonment. 20. With the aforesaid modification, the appeal stands disposed of.