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Bhagwan Lal vs State on 15 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 172 / 2011
Bhagwan Lal s/o Nanda, by caste Jatiya, R/o Bambori, Dorai, P.S.
Begun, District Chittorgarh.
(Presently lodged in Central Jail, Udaipur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Vishnu Kachhawaha, Public Prosecutor
__
HON’BLE MR. JUSTICE SANGEET LODHA

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Per Hon’ble Mr.Sangeet Lodha,J.

15th May, 2018

1. 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
(2 of 8)
[ CRLA-172/2011]

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. 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.

(3 of 8)
[ CRLA-172/2011]

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

u/s. 313 Cr.P.C., 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.

(4 of 8)
[ CRLA-172/2011]

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 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 1½ 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 vs. State

of Rajasthan”, 2017(1) Cr.L.R. (Raj.) 77, “Prakash @ Gajendra

Salvi vs. State of Rajasthan”, 2017(1) Cr.L.R. (Raj.) 84 and
(5 of 8)
[ CRLA-172/2011]

“Nemichand Regar vs. 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 vs. 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. 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:

(6 of 8)
[ CRLA-172/2011]

“(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 1½ 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,
(7 of 8)
[ CRLA-172/2011]

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
(8 of 8)
[ CRLA-172/2011]

after admission to the hospital, survived for a period of about

1 ½ 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. 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.

(VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J.

aditya/

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