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Judgment
Sanjay K. Agrawal, J
This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 31/03/2014 passed by learned Sessions Judge, Raipur in Sessions Trial No. 89/2012 whereby the appellant/accused has been convicted for offence punishable under Section 302 of IPC and has been sentenced to life imprisonment and fine of Rs. 5,000/ and in default of payment of fine additional R.I. for five months.
The case of the prosecution, in brief, is that on 10/01/2012, appellant poured kerosene oil over the body of his wife Smt. Pooja Verma (not his legally wedded wife/kept) and set her on fire due to which she died on 17/01/2012 and the appellant thereby committed the aforesaid offence.
Further case of the prosecution, in brief, is that on 10/01/2012, the Station House Officer at Police Station Urla, Distt. Raipur received information that Smt. Pooja Verma has been set ablaze and she has suffered severe burn injuries after which the Police reached the spot wherein Smt. Pooja Verma was being taken for treatment to MEKAHARA Hospital, Raipur and on her report, Dehati Nalishi Crime No. 0/12 (Ex. P/11) was registered. Thereafter, in order to record the dying declaration of Smt. Pooja Verma, fitness report was sought from C.M.O, MEKAHARA, Raipur which was submitted stating that she had suffered 48% burns and then the Police, upon returning to the Police Station, registered Crime No. 10/12 (Ex. P/14). Thereafter, on 11/01/2012, the dying declaration (Ex. P/4) of Smt. Pooja Verma was recorded by Smt. Poonam Soni, Executive Magistrate, Raipur (P.W.5). Spot map was prepared (Ex. P/16) and a few articles including burnt clothes, ash, a pink coloured petticoat, burnt pieces of a red coloured sari, cane of kerosene oil and matchstick were seized from the spot vide Ex. P/17 and they were sent for chemical examination to Chhattisgarh State Forensic Laboratory, Raipur and the FSL report has been filed as Ex. P/22. Statements of the witnesses were recorded under Section 161 of CrPC. On 16/01/2012, Smt. Pooja Verma died in the Hospital on account of severed burn injuries sustained by her pursuant to which merg intimation was registered vide Ex. P/7 and her dead body was sent for postmortem and the postmortem report has been filed as Ex. P/9. Thereafter, the appellant was arrested vide Ex. P/24 and after due investigation, the appellant was chargesheeted for offence punishable under Section 302 of IPC which was registered and committed to the Court of Sessions, Raipur for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.
In order to bring home the offence, prosecution examined as many as 11 witnesses and brought into record 27 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt but he examined none in his defence.
Learned trial Court, after appreciating and evaluating the oral and documentary evidence on record, came to the conclusion that the death of deceased Smt. Pooja Verma was homicidal in nature and it was caused by the appellant/accused intentionally and thereby proceeded to convict the appellant/accused for offence punishable under Section 302 of IPC and sentenced him as aforesaid against which this appeal has been preferred by him.
Mr. Mahendra Dubey, learned counsel for the appellant/accused, would submit that the appellant has not committed the offence and there is no evidence available on record to connect him with the offence in question. He would further submit that relationship between the appellant and his wife deceased Pooja Verma was cordial and only because of a small issue that the appellant wanted to go back to Uttar Pradesh but the deceased refused to allow, a petty dispute arose between them and the incident is said to have been occurred. He would also submit that at best, the crime committed by the appellant would be covered with Exception 4 of Section 300 of IPC and he can be convicted for Section 304 Part II of IPC and not Section 302 of IPC. Moreover, the appellant is in jail since 25/01/2012 i.e. for more than 10 years, as such, the appeal be allowed and the conviction of the appellant/accused under Section 302 of IPC be modified under Section 304 Part II of IPC and the sentence be awarded for the period already undergone by him. He would rely upon the decision rendered by the Supreme Court in the matter of Kalabai v. State of Madhya Pradesh AIR 2019 SC 2135 to buttress his submission.
Per contra, Mr. Himanshu Kumar Sharma, learned State counsel, would submit that prosecution has proved the offence under Section 302 of IPC against the appellant/accused beyond reasonable doubt and the trial Court has rightly convicted him for the aforesaid offence. He would also submit that the manner in which the appellant/accused set fire over the body of deceased Smt. Pooja Verma and closed the door and thereafter, ran away, it would clearly show that he had the intention to cause her death, as such, his case would not fall under Section 304 Part II of IPC and he has rightly been convicted for offence punishable under Section 302 of IPC.
We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection.
The first question for consideration would be whether the nature of death of deceased Smt. Pooja Verma was homicidal in nature ?
Learned trial Court has answered the aforesaid question in affirmative and has held that the death of deceased Smt. Pooja Verma was indeed homicidal in nature after relying upon the oral and documentary evidence on record, particularly relying upon the postmortem report (Ex. P/9) and the statement of Dr. Ashutosh Sharma (Ex. P/10) who has conducted postmortem of deceased Smt. Pooja Verma, wherein it has clearly been stated that the death of deceased was caused due to cardiorespiratory failure as a result of antemortem burn injuries and their complications and it has further been stated that her death is homicidal in nature. Considering the evidence available on record, particularly considering the statement of Dr. Ashutosh Sharma (Ex. P/10) and the postmortem report (Ex. P/9), we are of the considered opinion that learned trial Court has rightly recorded the finding that death of deceased Smt. Pooja Verma was homicidal in nature. We hereby affirm the said finding recorded by the trial Court.
Now the next question for consideration is whether the death of deceased Smt. Pooja Verma was caused by the appellant/accused herein ?
Admittedly, though the appellant/accused and deceased Smt. Pooja Verma were not legally married, yet they were residing together as Husband and Wife. The appellant/accused belongs to the State of Uttar Pradesh. Smt. Pooja Verma got pregnant once but her pregnancy was terminated. Thereafter, again she became pregnant and the appellant/accused wanted to move back to the State of Uttar Pradesh but since the deceased refused to do so, some dispute arose between them as the deceased was requesting for termination of her pregnancy and she was asking money for her treatment, which the appellant/accused did not accept and on the fateful day on 10/01/2012, when she was preparing tea, the appellant/accused came behind her and after pouring kerosene oil over her body and set her ablaze. Thereafter the appellant/accused ran away temporarily after closing the door, which was opened by Geeta Bai (P.W.3) who rescued the deceased Smt. Pooja Verma and took her to the Hospital for treatment wherein her dying declaration (Ex. P/4) was recorded before Smt. Poonam Soni (P.W5), Executive Magistrate, Raipur on 11/01/2012, which states as under :
The said dying declaration (Ex. P/4) of deceased Smt. Pooja Verma has been proved by Smt. Poonam Soni, Executive Magistrate, Raipur who has been examined as P.W.5. Relying upon the said dying declaration (Ex. P/4), learned trial Court came to the conclusion that the appellant/accused intended to cause death of deceased Smt. Pooja Verma and thereby proceeded to convict him for offence punishable under Section 302 of IPC which has been seriously questioned by learned counsel for the appellant/accused.
In the matter of Hari Shanker v. State of Rajasthan (1998) 8 SCC 355, the appellant therein picked up a burning kerosene wickstove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wick came in contact with his clothes, they caught fire and the deceased ultimately died as a result of the burns received by him. In this case, their Lordships of the Supreme Court held that since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death and altered the conviction of the appellant therein from Section 302 to Section 304 Part II of IPC. Paragraphs 2, 3 and 4 of the judgment state as under :
“2. Only question that we have to consider in this appeal is what offence can be said to have been committed by the appellant on the basis of the facts found by the High Court. It has been held that while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the teaclub of the Air Force, 32 Wing (MT Section), an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wickstove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in contact with his clothes they caught fire. The deceased ultimately died as a result of the burns received by him.
What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In veiw of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.
We, therefore, allow this appeal partly, alter the conviction of the appellant from under Section 302 to Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years.”
The decision rendered in Hari Shanker (supra) was followed with approval by the Supreme Court subsequently in the matter of Kalabai (supra) wherein the appellant threw burning stove on the deceased due to which clothes of deceased caught fire and serious burn injuries were caused. The deceased was admitted to the hospital with 96% burn injuries pursuant to which she herself stated in her dying declaration that the incident happened when quarrel was going on between parties. Their Lordships came to the conclusion that there is no evidence to come to conclusion that the appellant had any intention to kill deceased and in absence of intention, accused is liable to be convicted under Section 304 Part II instead of Section 302 of IPC. It has been pertinently observed in paragraph 13 as under :
“13. The trial Court has taken pains to evaluate the entire material on record and has rightly come to the conclusion that the socalled dying declaration (Exh.P2) is unbelievable and not trustworthy. Valid reasons have also been assigned by the trial Court for coming to such a conclusion. Per contra, the High Court while setting aside the said finding has not adverted to any of the reasons assigned by the trial Court relating to the authenticity or reliability of the dying declaration. The view taken by the trial Court, in our considered opinion, is the only possible view under the facts and circumstances of the case.”
Reverting to the facts of the present case in light of the decisions rendered by the Supreme Court in the matter of Hari Shanker (supra) followed with approval in the matter of Kalabai (supra), it is quite vivid that though the appellant was not legally married with the deceased Smt. Pooja Verma, but for the last three years they were living together as a Husband and Wife in the State of Chhattisgarh. Once the deceased became pregnant, her pregnancy was terminated for the reasons best known to them, but again she became pregnant and this time the appellant insisted to move back to the State of Uttar Pradesh where he belonged to, but the deceased refused to do so and she wanted to terminate her pregnancy and accordingly asked for some money from the appellant for her treatment. On 10/01/2012, the appellant asked deceased Smt. Pooja Verma to make some tea and when she turned towards the stove for preparing tea, the appellant came from behind her and doused her with kerosene oil and set her ablaze. Thereafter, when she started burning, the appellant covered her with a blanket and closed the door and ran away from the spot. The entire sequence of events would show that the relationship between the appellant and the deceased was cordial and a petty dispute arose between them all of a sudden because the deceased wanted to terminate her unwanted pregnancy and asked for some money from the appellant whereas the appellant wanted to go back to the State of Uttar Pradesh, as such, he did not agree with the deceased and in the heat of the moment and in heat of passion, the appellant poured kerosene over the body of the deceased from behind and set her on fire. From a careful perusal of the record, it is quite evident that there is no evidence that the appellant had any intention to cause death of deceased Smt. Pooja Verma though it can be inferred that when the appellant came behind the deceased and poured kerosene over her and set her on fire, he would have known that his act was likely to cause burns to the deceased resulting in her death. Thus, the appellant would get the benefit of Exception 4 of Section 300 of IPC and his conviction can be altered to Section 304 Part II instead of Section 302 of IPC more so for the reason that Dr. Ashutosh Sharma (P.W.10) has clearly stated that if a person who has suffered 48% burn injuries receives proper treatment and his body responses positively towards the said treatment, his life can be saved.
In view of the aforesaid analysis, we are of the considered opinion that the present case is covered with Exception 4 of Section 300 of IPC and the conviction of the appellant under Section 302 of IPC is hereby altered to Section 304 Part II of IPC. Since the appellant is in jail since 25/01/2012 i.e. for more than 10 years, we hereby award the sentence for the period already undergone. The appellant be released forthwith if not required in any other case.
Accordingly, the instant appeal is allowed to the extent indicated hereinabove.