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2019 DIGILAW 2276 (RAJ)

Om Prakash v. State of Rajasthan

2019-08-22

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : Abhay Chaturvedi, J. 1. The instant criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant Om Prakash being aggrieved by the judgment dated 21.08.2013 passed by the learned Additional Sessions Judge, Woman Atrocities Cases, Bhilwara in Sessions Case No. 72/2010, whereby the accused-appellant has been convicted and sentenced for the offence under Section 302 IPC and sentenced for imprisonment for life alongwith a fine of Rs. 10,000/- and in default of payment of fine, further to undergo two years' Simple Imprisonment. 2. The brief facts giving rise to the present appeal are that on the basis of the Parcha Bayan of Smt. Kanku w/o Om Prakash, an FIR No. 95/2010 (Ex. P/25) was registered at Police Station Banera for the offence under Section 307 IPC. In the statement, Smt. Kanku, while undergoing treatment at Mahatma Gandhi Hospital (MGH), Bhilwara, alleged that on 12.08.2010 in the afternoon, she and her husband Om Prakash both were at their home. Her husband often used to quarrel with her. On that day i.e. 12.08.2010, after a quarrel between them, her husband caught hold of her neck, poured kerosene, which was in the Jerrycan. She tried to resist him but he did not give away and set her on fire due to which her whole body got burnt. At that time, nobody else was present in the house nor any of the neighbours came there. Thereafter, her husband poured water on her but the fire could not be doused. He also tried to douse the fire by pouring water and covering her with dry clothes but she was already burnt badly by that time. It was further stated that her husband called her brother-in-law Kailash who took her to MGH, Bhilwara on a Motorcycle where she was provided treatment. 3. After registration of the FIR, Shri Ram Ratan, ASI (PW-22) proceeded for investigation. During investigation, the medical examination of Smt. Kanku was conducted by Dr. Dev Kishan (PW-14) who found superficial to deep burns by fire all over her body except the face and scalp. The total body surface area burnt was about 80%. The statements of the witnesses were recorded under Section 161 Cr.P.C. and Site Inspection Memo (Ex. P/1), and Seizure Memo Jerrycan, Match Box, Bichhona (lay) (Ex. P/2) were prepared by Shri Ram Ratan, ASI. (PW-22) 4. Looking to the deteriorating condition of Smt. Kanku, Dr. The total body surface area burnt was about 80%. The statements of the witnesses were recorded under Section 161 Cr.P.C. and Site Inspection Memo (Ex. P/1), and Seizure Memo Jerrycan, Match Box, Bichhona (lay) (Ex. P/2) were prepared by Shri Ram Ratan, ASI. (PW-22) 4. Looking to the deteriorating condition of Smt. Kanku, Dr. K.C. Panwar (PW-16) referred her to Udaipur Hospital for better treatment. Thereafter, on 18.08.2010 at 8.35 am, she expired, at M.B. Hospital, Udaipur during the course of her treatment. The dead body of Kanku was subjected to postmortem examination by Dr. Akhilesh Sharma (PW-20) who issued the PMR (Ex. P/18) opining that Smt. Kanku died by septicemic shock which was due to dry heat flame burn injuries sufficient in the ordinary course of nature to cause death. Thereafter, photographs of the deceased (Ex. P/19 to Ex. P/22) were taken by Shri Govardhan Lal (PW-21). After completing investigation, the police filed charge sheet against the accused - appellant for the offence under Section 302 IPC in the Court of the concerned Magistrate. Since the offence was exclusively triable by the Court of Sessions, therefore, the case was committed and was transferred for trial to the learned Additional Sessions Judge, Women Atrocities Cases, Bhilwara. 5. Learned trial court framed, read over and explained the charges for the offence under Section 302 IPC to the accused - appellant, who pleaded not guilty and claimed trial. The prosecution examined as many as 26 witnesses and exhibited 30 documents in order to prove the charge framed against the accused - appellant. 6. Upon being confronted with the circumstances appearing against him in the prosecution evidence, the accused in his statement under Section 313 Cr.P.C. denied the same and claimed to be innocent. The accused - appellant further stated that his wife, the deceased, tried to alight the stove but it was not ignited, she poured kerosene into the burner (chulha) due to which the fire suddenly erupted and the deceased was accidently engulfed therein. He informed the police and the Kanku deceased was admitted in the hospital immediately. He further stated that he had been falsely implicated in the present case due to enmity with Prabhulal. In support of the defence, Shri Shankar Lal (DW-1) was examined and 6 documents were exhibited. 7. He informed the police and the Kanku deceased was admitted in the hospital immediately. He further stated that he had been falsely implicated in the present case due to enmity with Prabhulal. In support of the defence, Shri Shankar Lal (DW-1) was examined and 6 documents were exhibited. 7. After hearing and appreciating the submissions advanced by the defence and the prosecution and appreciating and evaluating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellant as above. 8. Learned counsel for the appellant has submitted that the trial court has committed an error in convicting the accused - appellant without appreciating the evidence available on record in right perspective. The trial court has not considered that there is ample evidence on record that the deceased - Smt. Kanku accidentally got the burn injuries while preparing tea. He further urged that Ex. D/1 - the bed head ticket of Kanku, which was prepared on 12.08.2010 at 01:38 p.m clearly refers to the fact that the deceased received accidental burn injuries due to fall of hot tea over her. The Certificate (Ex. D/6) dated 12.09.2010 issued by DW-1 Shankar Lal clearly bespeaks that the deceased died due to burn injuries while she was pouring kerosene into the stove for preparing tea. The same fact is mentioned in Ex. D/5 as well. Thus, it is clear that Smt. Kanku died due to burn injuries received in an accidental fire while she was preparing tea. Thereafter, on behest of the relatives of the deceased, the case of pouring kerosene and setting the deceased to fire was concocted. It was further urged that all the material witnesses who were present at the time of the incident did not support the prosecution case and were declared hostile. Only the witnesses, who are close relatives of the deceased viz. father, brother supported the prosecution story and without there being any corroboration by any independent evidence, their testimony cannot be accepted for holding the accused - appellant guilty of the offence. It was further submitted that the trial court has further committed an error in recording guilt of the accused under Section 302 IPC, as there is ample evidences to infer that the accused - appellant had no intention to commit murder of the deceased. It was further submitted that the trial court has further committed an error in recording guilt of the accused under Section 302 IPC, as there is ample evidences to infer that the accused - appellant had no intention to commit murder of the deceased. The prosecution witnesses have clearly stated that the relations between the deceased and the accused - appellant were cordial and after receiving the burn injuries, the accused - appellant himself called his brother Kailash and tried to rescue the deceased in different ways. He, called his brother Kailash who took Smt. Kanku to the hospital where she was provided treatment. He, therefore, submitted that conviction of the accused appellant for the offence under Section 302 IPC is not warranted. He also challenged the Dying Declaration (Ex. P/15) on the ground that the deceased was not in a fit condition to give such statement and also being contradictory with the evidence of the other prosecution witnesses. He, therefore, implored the court to accept the appeal and set aside the judgment of conviction. 9. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the impugned judgment passed by the learned trial Court is based on a just and proper appreciation of the facts and evidence available on record and thus, there is no ground to interfere with the findings of the trial Court. Hence, the appeal deserves to be dismissed. 10. We have given our thoughtful consideration to the submissions advanced at Bar; gone through the entire record and minutely re-appreciated the evidence available on record. 11. Considered in the light of arguments advanced by learned counsel for the parties and the material available on record, the fact of the death of the deceased Smt. Kanku by burn injuries is not in dispute. The moot question for consideration before this Court is that as to whether the deceased died due to the burn injuries caused by the accused - appellant after pouring kerosene on her body or whether the burn injuries were received accidentally while the deceased was preparing tea. 12. From perusal of the record, it transpires that on 12.08.2010 at 5:10 PM, the deceased Smt. Kanku was admitted at the burn ward of Mahatma Gandhi Hospital, Bhilwara where her statement (Ex. P/15) was recorded by PW-22 Ram Ratan, ASI. 12. From perusal of the record, it transpires that on 12.08.2010 at 5:10 PM, the deceased Smt. Kanku was admitted at the burn ward of Mahatma Gandhi Hospital, Bhilwara where her statement (Ex. P/15) was recorded by PW-22 Ram Ratan, ASI. Before recording the statement of the deceased Smt. Kanku, PW-22 Shri Ram Ratan, ASI ensured as to whether she was in a fit condition to give the statement or not. PW-14 Dr. Devkishan gave a certificate (Ex. P/14) to the effect that the deceased was in a fit condition to give her statement. Thereafter, the statement of the deceased Smt. Kanku was recorded by PW-22 Ram Ratan, ASI in the presence of PW-16 Dr. K.C. Panwar. A perusal of the said statement (Ex. P/15) shows that she specifically alleged that on the day of occurrence, she and the accused were at their home and quarrel arose between them on some issue. Thereupon, the accused-appellant caught hold of her neck, poured kerosene upon her and set her to fire. It was also stated in the statement that no one else was present in the house. Thereafter, the accused-appellant tried to rescue the deceased by pouring water and wrapping her with dry clothes. It was also stated that the accused-appellant called his brother Kailash, who took the deceased to the hospital for treatment. 13. The statement Ex. P/15 has been challenged by the defence counsel on the ground that the deceased was not in a fit condition to give her statement. As observed above, PW-22 Shri Ram Ratan Singh, ASI, before recording the statement ensured by way of letter Ex. P/14 to M.O., Mahatma Gandhi Hospital, Bhilwara as to whether the deceased was in a fit condition to give her statement or not. Thereupon, PW-14 Dr. Dev Kishan opined that she was fit to give her statement. During the trial, PW-22 Shri Ram Ratan, ASI and PW-14 Dr. Dev Kishan have reiterated the same fact on oath before the trial Court and they were subjected to cross-examination but nothing could be brought out on record so as to disbelieve their statements. Apart from that, the statement of deceased Smt. Kanku was recorded in the presence of PW-16 Dr. K.C. Panwar who has specifically stated on oath that the Police recorded the statement Ex. P/15 in his presence and his verification and signature of the deceased was obtained thereupon. Apart from that, the statement of deceased Smt. Kanku was recorded in the presence of PW-16 Dr. K.C. Panwar who has specifically stated on oath that the Police recorded the statement Ex. P/15 in his presence and his verification and signature of the deceased was obtained thereupon. He further stated that the Police recorded the statement of the deceased in a true and faithful manner. This witness was also subjected to extensive cross-examination but nothing could be brought out on record so as to disbelieve this witness. 14. Smt. Kanku in her statement (Ex. P/15) has specifically stated that the accused-appellant poured kerosene and set her on fire. This statement of Smt. Kanku is her dying declaration disclosing about the cause of her burn injuries and the circumstances of the transaction which later resulted into her death. The statement of the deceased (Ex. P/15) is corroborated by the statements of PW-10 Shri Nanu, father of the deceased, PW-11 Uday Lal, PW-13 Chandi, PW-15 Chandu, PW-17 Mohan and PW-18 Prabhu Lal who have clearly stated on oath before the trial Court that the deceased told them that the accused-appellant poured kerosene and set her on fire. 15. So far the plea of accused - appellant regarding accidental burn injuries sustained by the deceased is concerned, a perusal of Ex. D/1 - Bed Head Ticket shows that history of burn injuries i.e. by fall of hot tea over her is indicated. PW-14 - Dr. Dev Kishan admitted narration of this fact in Bed Head Ticket (Ex. D/1) but on whose information this was mentioned is not clear nor PW-14 Dev Kishan was cross-examined on this point. 16. Anyway, this is not the case of the appellant himself nor did he state so in his statement under Section 313 Cr.P.C.. Thus, the history mentioned in Bed Head Ticket carries no importance. So far as the entry in Roznamcha (Ex. D/5) is concerned, PW-22 Ram Ratan, ASI has admitted that he received information that Kanku sustained burn injuries while preparing tea, but he was not cross-examined as to who was the person, who gave him such information. Similarly, Ex. D/6 is a Certificate issued by DW-1 Shri Shankar Lal to the effect that the deceased sustained burn injuries by Kerosene while preparing tea. Similarly, Ex. D/6 is a Certificate issued by DW-1 Shri Shankar Lal to the effect that the deceased sustained burn injuries by Kerosene while preparing tea. DW-1 Shankar Lal clearly stated on oath that he mentioned the fact of burn injuries sustained by the deceased while preparing tea in Ex. D/6. However, on cross examination conducted by learned Public Prosecutor the witness explained that he put this note on the request of in-laws of the deceased as they were proceeding to Udaipur for better treatment of the deceased and anticipated some difficulty on way to Udaipur, if truth was revealed. Apart from that, the deceased herself stated in her Dying Declaration (Ex. P/15) and the statement under Section 161 Cr.P.C. (Ex. P/23) that she received burn injuries at the hands of the accused-appellant who set her on fire after pouring kerosene. In light of her Dying Declaration (Ex. P/15), the note of accidental burns recorded in Ex. D/1 & Ex. D/5 or Certificate Ex. D/6 has no value whatsoever. 17. During cross-examination of the prosecution witnesses, it was suggested by the learned counsel for the appellant that the deceased had implicated the accused-appellant for causing burn injuries by pouring kerosene at the prompting of PW-18 Prabhu Lal. However, this suggestion was specifically denied by the prosecution witnesses including PW-18 Prabhu Lal himself. The accused-appellant has not been able to establish any animosity of the accused-appellant with PW-18 Prabhu Lal so as to falsely implicate the accused-appellant in this case. We are fully convinced that the dying declaration Ex. P/15 made by the deceased is genuine, voluntary, consistent, credible and untutored, it assumes great probative value and can form basis of conviction. 18. Now, the question for consideration before this Court is as to what offence the accused-appellant has committed? PW-18 Prabhulal who is brother of the deceased has stated on oath that the deceased never made a complaint of harassment etc. by her husband before this incident. He has also stated that the deceased wanted to visit her matrimonial home to which the accused-appellant was not agreeable and on this issue the quarrel arose between them. He also admitted that the deceased never made any complaint regarding demand of dowry etc. against her in-laws. In the Dying Declaration (Ex. by her husband before this incident. He has also stated that the deceased wanted to visit her matrimonial home to which the accused-appellant was not agreeable and on this issue the quarrel arose between them. He also admitted that the deceased never made any complaint regarding demand of dowry etc. against her in-laws. In the Dying Declaration (Ex. P/15) of the deceased, it is pertinently mentioned that the accused-appellant tried to rescue her by pouring water on her body and thereafter when he could not succeed, he again tried to douse the fire by wrapping her in a cloth. Thereafter, he himself called his brother Kailash who was at the field. Kailash took her to the hospital on his motorcycle. 19. The age of the accused-appellant was about 19 years at the time of incident and there was no previous strife between him and his wife, the deceased Smt. Kanku. So in the facts and circumstances of the case, it may be inferred that in the heat of passion and during a sudden quarrel, the accused-appellant poured kerosene and set his wife on fire. 20. The conduct of the accused-appellant subsequent to the occurrence goes to show that he never intended to cause death of the deceased but he committed the act on the spur of moment under the heat of passion on some trivial issue. 21. Hon'ble the Supreme Court in the case of K. Ravi Kumar Vs. State of Karnataka reported in 2014 Cr.L.R. (SC) 1260 observed in para 14 as under: "Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased - Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was on outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the postmortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness." 22. Keeping in view the principles laid down by the Apex Court in the case of K. Ravi Kumar (supra), we are fully convinced that it was a sudden act of the accused-appellant which was committed at the spur of moment. He did not intend to cause death of the deceased. In the moments of anger he did cause such bodily injuries to her as were sufficient in ordinary course of nature to cause death. He did not intend to cause death of the deceased. In the moments of anger he did cause such bodily injuries to her as were sufficient in ordinary course of nature to cause death. There might not be an intention of the accused-appellant to cause death of the deceased by causing that bodily injuries to her, but his act could have given him knowledge of the likely consequences of the act done by him. The act so done by him constitutes the offence, punishable under Section 304 Part I IPC. 23. We find that the accused-appellant is a young man of age 28 years. He has already lost his life companion by his own act of violence done in weaker moments of irritation and anger. Under these circumstances, we are fully convinced that some reduction in the substantive sentence of imprisonment awarded to him would do justice to the parties. 24. In the result, the conviction of the appellant for the offence under Section 302 IPC is converted to Section 304 Part I IPC and the sentence of imprisonment is reduced from life imprisonment to 10 years rigorous imprisonment. The impugned judgment and order shall stand modified accordingly. However, the sentence of fine is maintained. 25. In view of the above, the appeal filed by the appellant is partly allowed in the above terms.