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2018 DIGILAW 1274 (RAJ)

BHAGWAN LAL v. STATE OF RAJASTHAN

2018-05-15

SANGEET LODHA, VIRENDRA KUMAR MATHUR

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JUDGMENT : Sangeet Lodha, J. This appeal is directed against judgment and order dated 5.1.11 passed by the Additional Session Judge No.2, Chittorgarh in Sessions Case No.10/10, whereby while acquitting the appellant for offence under Section 498A IPC, convicted him for offence under Section 302 IPC and sentenced to undergo life imprisonment with fine Rs.5,000/-; in default in payment of fine to further undergo one year simple imprisonment. 2. The prosecution story in nutshell may be summarized thus: On 15.3.09, Smt. Seema, who was admitted to Community Health Centre, Begun in burnt condition, gave a statement (Ex. P/1) to P.W.15-Rajendra Singh, the Assistant Sub Inspector, Police Station, Begun to the effect that she had entered into marriage 15 years ago with Bhagwan Lal s/o Nanda Jatiya, resident of Bambori. Out of the wedlock, three sons and a daughter were born. Bhagwan Lal under intoxication of liquor often used to pick up quarrel and beat her. On 14.3.09, around 10 P.M. when she served the meal to her husband, he kicked the plate. She didn't utter a word, then he kicked in her waist. Thereafter, her husband, the appellant herein, brought a kerosine tin from inside the house, poured the kerosine on her head and lighted the matchstick, due to which her clothes got burnt. On screaming by her and her children, her brother in law and his wife in the neighbourhood, came and extinguished the fire. Then, her brother in law, his wife and villagers took her for treatment to Begun in a jeep. She stated that due to burn, her face, both hands, chest, back and neck were burnt. 3. On the basis of the parcha bayan (Ex. P/1), recorded by P.W.15-Rajendra Singh in presence of P.W.8-Dr. Narendra Kumar Sharma, P.W.1-Jamna Lal, P.W.2-Kalu and P.W.9-Gangaram, the police registered the FIR (Ex. P/18) on 15.3.09 at 1.55 A.M. and the investigation commenced. 4. During the investigation, necessary memos were prepared. The statements of the witnesses were recorded under Section 161 Cr.P.C., 1973. The accused appellant was arrested vide Arrest Memo (Ex. P/19). On the basis of the information supplied by the accused appellant under Section 27 of Evidence Act (Ex. P/21) regarding the place of occurrence, the site plan (Ex. P/16) was prepared. During investigation, victim Smt. Seema expired on 1.5.09. The autopsy of body of deceased Smt. Seema was conducted by P.W.8-Dr. P/19). On the basis of the information supplied by the accused appellant under Section 27 of Evidence Act (Ex. P/21) regarding the place of occurrence, the site plan (Ex. P/16) was prepared. During investigation, victim Smt. Seema expired on 1.5.09. The autopsy of body of deceased Smt. Seema was conducted by P.W.8-Dr. Narendra Kumar Sharma and post mortem report (Ex. P/11) was prepared. 5. After completion of investigation, the police filed charge sheet against accused appellant for offence under Section 498A and 302 IPC before the Chief Judicial Magistrate, Begun. The matter was committed to the Court of Sessions Judge, Chittorgarh, which was later transferred for trial to the court of Additional Session Judge (Fast Track), Chittorgarh. 6. The trial Judge framed the charges against the accused appellant for offence under Section 498A & 302 IPC. The accused appellant pleaded not guilty and claimed trial. 7. During the trial, the prosecution got examined as many as 19 witnesses (PW 1 to PW 19) and documentary evidence was exhibited as Ex. P/1 to Ex. P/27. After completion of prosecution evidence, the statement of the accused appellant was recorded under section 313 Cr.P.C., 1973 wherein he denied his involvement in the commission of the crime. No oral evidence was produced on his behalf, however, the copy of roznamcha dated 15.3.09 produced by the prosecution was exhibited in evidence as Ex. D/1. 8. The learned trial Judge after consideration of the rival submissions and the evidence on record, convicted and sentenced the accused appellant as indicated above. Hence, this appeal. 9. Heard the learned counsels for the appellant and learned Public Prosecutor. 10. At the outset, Mr. Kalu Ram Bhati, learned counsel appearing for the appellant submitted that appellant does not intend to press his challenge to the finding of guilt recorded by the trial Judge holding the appellant guilty for causing death of his wife Seema but the trial Judge has seriously erred in convicting the appellant for offence under Section 302 IPC. Learned counsel submitted that if the evidence on record is examined in correct perspective, the offence committed by the appellant does not travel beyond provisions of Section 304 Part II or 304 Part I IPC. Learned counsel submitted that as per prosecution on account of sudden quarrel, the appellant poured the kerosine and set her wife ablaze and thus, apparently there was no intention to cause death. Learned counsel submitted that as per prosecution on account of sudden quarrel, the appellant poured the kerosine and set her wife ablaze and thus, apparently there was no intention to cause death. Learned counsel would submit that Smt. Seema was admitted to the hospital in burnt condition, there was no burn injuries on vital part of the bodies, she was improving, but all of sudden, expired on 1.5.09 i.e. after a lapse of about 1 months, which is also, indicative of the fact that the appellant had no intention to cause death. Learned counsel submitted that in attempt to extinguish the fire, the appellant also suffered the injuries, which is apparent from injury report (Ex. P/10). Accordingly, learned counsel submitted that the conviction of the appellant deserves to be altered from offence under Section 302 IPC to 304 Part II IPC. In support of the contention, learned counsel relied upon Bench decisions of this court in the matters of "Mahavir Gurjar v. State of Rajasthan", 2017 (1) Cr. L.R. (Raj.) 77, "Prakash @ Gajendra Salvi v. State of Rajasthan", 2017 (1) Cr. L.R. (Raj.) 84 and "Nemichand Regar v. State of Rajasthan", 2017 (1) Cr. L.R. (Raj.) 314 and a decision of the Hon'ble Supreme Court in the matter of "Kalu Ram s/o Gurditta v. The State of Rajasthan", 2000 Cr. L.R. (SC) 18. 11. On the other hand, learned Public Prosecutor submitted that the guilt of the accused appellant stand proved beyond reasonable doubt on the basis of the dying declaration (Ex. P/1) and other corroborative evidence on record. Learned Public Prosecutor submitted that as per the injury report (Ex. P/8), deceased Smt. Seema had suffered 60 to 65% burn and ultimately succumbed to the injuries and thus, the intention of the appellant to cause death is apparent on the face of record and therefore, the question of altering the conviction of the appellant from murder to culpable homicide not amounting to murder, does not arise. 12. We have considered the rival submissions and perused the evidence on record. 13. As per Injury Report (Ex. P/8), following injuries were found on the persons of the deceased Seema at the time of admission to the hospital : "Superficial and at places deep burn. Involving both upper limbs; front of chest & abdomen wall and almost back and front of both thigh. 13. As per Injury Report (Ex. P/8), following injuries were found on the persons of the deceased Seema at the time of admission to the hospital : "Superficial and at places deep burn. Involving both upper limbs; front of chest & abdomen wall and almost back and front of both thigh. Approximately 60 to 65% burn, smell of kerosine present." The autopsy of the body of Smt. Seema was conducted by P.W.8-Dr. Narendra Kumar Sharma. As per post mortem report (Ex. P/11), following ante mortem injuries were present on the person of the deceased : "(1) Old burn non healing ulcer all over chest, upper limb, face, neck, back. (2) Pandelle heale (sic) ulcer on foot & hand n/o burn present." The cause of death is opined to be septic shock due to burn, anemia & dehydration. Moreover, the factum of Smt. Seema succumbing to the injuries caused on account of the appellant setting her ablaze, is not disputed before this court and thus, the death of Smt. Seema was concededly homicidal in nature. 14. In view of the appellant giving up the challenge to the finding of guilt recorded by the learned trial Judge to the extent that the appellant set her wife Smt. Seema ablaze which caused her death, we need not enter into question regarding the appellant being guilty for causing homicidal death of Smt. Seema. The only question survives for consideration of this court whether the offence committed by the appellant could be brought down from the murder to culpable homicide not amounting to murder so as to alter his conviction from offence under Section 302 IPC to 304 Part I or 304 Part II IPC. 15. Indisputably, appellant who was under intoxication, ablazed Smt. Seema after a sudden quarrel and there was no pre meditation on the part of the appellant to cause death of Smt. Seema. As per injury report, Smt. Seema suffered 60 to 65% burn but survived for about 1 months. As per post mortem report, the cause of death is disclosed to be not only the septic shock due to burn but also the anemia and dehydration. Thus, on the facts and in the circumstances of the case, in the considered opinion of this court at the best the appellant be attributed with the knowledge that bodily injury being caused is likely to cause death. 16. Thus, on the facts and in the circumstances of the case, in the considered opinion of this court at the best the appellant be attributed with the knowledge that bodily injury being caused is likely to cause death. 16. In Kalu Ram's case (supra), where the accused set her wife ablaze but when the flames were up he suddenly and frantically poured water to save her from the flames, the Supreme Court observed that had the accused intention to cause death he would not have altered his senses to bring water in an effort to rescue her and accordingly the conviction of the accused was altered from the first degree murder to culpable homicide not amounting to murder and accordingly, convicted the accused for offence under Section 304 Part II IPC. 17. In Mahavir Gurjar's case (supra), where the victim had suffered 30% burn injuries, there was absence of motive and the incident took place all of a sudden, a Bench of this court altered the conviction of the accused from 302 IPC to 304 Part II IPC. 18. Similarly, in Prakash's case (supra), where there was absence of motive, the injuries suffered were not sufficient to cause death immediately and the victim had died after five days of the incident, a Bench of this court altered the conviction of the accused from 302 IPC to 304 Part I IPC. 19. As noticed hereinabove, in the instant case also, the appellant as a result of a sudden quarrel, under intoxication, set her wife Smt. Seema ablaze. Though the injuries caused were to the extent of 60 to 65% but the fact remains that Smt. Seema after admission to the hospital, survived for a period of about 1 months. Further, there is absence of motive and on the basis of the evidence on record, it cannot be inferred that the appellant had intention to cause death. That apart, as opined by P.W.8-Dr. Narendra Sharma vide post mortem report (Ex. P/11) and deposed before the court, the cause of death of Smt. Seema were multiple. Further, there is absence of motive and on the basis of the evidence on record, it cannot be inferred that the appellant had intention to cause death. That apart, as opined by P.W.8-Dr. Narendra Sharma vide post mortem report (Ex. P/11) and deposed before the court, the cause of death of Smt. Seema were multiple. In this view of the matter, taking into consideration the totality of the facts and circumstances of the case, it can be safely concluded that the appellant had no intention to cause death but certainly the act by which death is caused was done by the accused with an intention to causing such bodily injury as is likely to cause death. Accordingly, the conviction of the accused deserves to be altered from murder to culpable homicide not amounting to murder falling within the ambit of provisions of Section 304 Part I IPC. 20. In the result, the appeal is partly allowed. The conviction of the appellant for offence under Section 302 IPC is set aside. We convict the appellant for offence under Section 304 Part I IPC and sentence to suffer rigorous imprisonment for a period of ten years with fine Rs. 25,000/-; in default of payment of fine, to further undergo six months rigorous imprisonment.