HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
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)
State of Rajasthan
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
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)
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
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)
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
(4 of 8)
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)
“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
“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)
“(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
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)
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)
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.