Rajesh S/O Nanakchand vs State Of Madhya Pradesh

Vivek Rusia, J

The appellant has filed the present appeal being aggrieved by judgment dated 04.05.2009 passed by 5th ASJ, Indore in ST No.550/08 by which, he has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- with default stipulations.

Brief facts.....

As per the prosecution case, the appellant/accused and the deceased Geetabai were living since last two months from 24. 05.2008 in a rented house situated in Radha Govind Ka Bagicha, Indore. The deceased was house wife and appellant was working as painter . That on 24.05.2008 near about 9:00 PM, in the night, the accused was continuously consuming the liquor and when the deceased Geetabai was objected it, he started quarreling with his wife and poured her by kerosene kept in the house and put her into fire. The neighbours came after hearing the screaming and then the accused ran away from the spot. Geetabai sustained burn injuries on her neck, hands, leg and chest. She herself took auto rickshaw and reached to the house of her father Shankar Raw PW-4 who immediately took her to the M.Y. Hospital, there she was attended by Dr. C.L. Katare (PW-9) and immediately instructed Shankar Raw to send an information to the police Station Rawji Bajar, Indore.

The information was recorded in the Dehati Nalashi vide Ex.P/10 under Crime No.194/08. Tehsildar Premnarayan PW- 12 recorded the dying declaration of Geetabai vide Ex.P/18. Thereafter, she died on 27.05.2008. Initially, the FIR was registered under Section 307 of IPC, but after death of the deceased, it was converted into 302 of IPC. Spot map Ex.P/6 was prepared. On the spot, a plastic oilcan containing kerosene, used burnt match stick and burnt cloths of the deceased were recovered ,which were kept into the sealed bag vide Ex.P/8 and sent to the FSL. Vide Ex.P/16 report of the FSL was received. After completing the investigation, the police filed the charge-sheet and the trial was committed to the Sessions Court.

The learned Sessions Court framed the charge under Section 302 of IPC against the accused. The appellant abjured guilty and prayed for trial. The prosecution examined Onkarlal (PW-1), Rajkamal Jaiswal (PW-2), Dr. Arvind Jain (PW-3), Shankar Raw (PW-4), Devilal (PW-5), Shekhar (PW-6), Ramlal Chouhan (PW-7), Satish (PW-8), C.L.Katare (PW-9), Rakesh (PW-10), Dr. A.K. Lanjhewar (PW-11) and Prem Narayan (PW-12) as prosecution witnesses.

After appreciating the documentary as well as oral evidence, the learned Sessions Court held that the deceased killed his wife Geetabai and she died due to burn injuries and its complication. The learned trial Court has further held that the accused was demanding money for the liquor and when the deceased refused to give then he poured kerosene and put her into the fire . That learned trial Court upon believing the dying declaration, convicted the accused under Section 302 of IPC and sentenced him for life imprisonment. Being aggrieved by the aforesaid conviction and sentence, the appellant has preferred the present appeal before this Court.

We have heard the learned counsel for both the parties and have gone through the record.

Rival submissions....

Learned counsel for the appellant submits that the appellant has wrongly been convicted under Section 302 of IPC. He has not committed any offence. The learned trial Court has failed to appreciate the evidence available on record. The prosecution has failed to prove its case beyond the reasonable doubts. There was no serious dispute between the husband and wife. Before recording of dying declaration, the deceased was not examined by doctor. There is no certificate that she was fit to record dying declaration. The entire case of the prosecution is based on the circumstantial evidence. Hence, the dying declaration cannot be the sole basis for conviction. Most of the material witnesses have turned hostile and did not support the case of the prosecution. Learned counsel for the appellant further submits that even if it is held that the appellant has committed the offence, but it occurred all of a sudden in a heat of passion hence the act of the appellant falls under the purview of Section 304 part (I) of IPC. He has already undergone more than 10 years of sentence, therefore, he is liable to be released.

In support of his contention, learned counsel for the appellant has placed reliance over the judgment of Apex Court in the case of Ongole Ravikanth vs. State of A.P. reported in AIR 2009 SC 2129 and the judgement passed by this Court in CRA NO.539/2005 decided on 13.03.2012 in the case of Bherusingh vs. State of M.P. in which, in the similar circumstances, the accused have been convicted under Section 304 part (I) of IPC and sentenced to undergo 7 years.

Learned Public Prosecutor appearing for the State refuted the arguments of learned counsel for the appellant by submitting that the appellant has poured his wife by kerosene and put her into fire with a clear intention to kill and ran away from the spot. Wife herself took auto rickshaw and went to her father's house and narrated the entire incident to him. As per the dying declaration, appellant quarreled with her wife after consuming the liquor. As per the FSL report, Post Mortem report and the statements of Dr. A.K. Lanjhewar PW-11, the appellant has rightly convicted under Section 302 of IPC. Hence, the appellant is liable to be dismissed.

Appreciation and conclusion.....

Learned counsel for the appellant has not challenged the findings in respect of cause of death of the deceased Geetabai. As per the Post Mortem report Ex.P/13 and the statements of Dr. Lanjhewar, the deceased died due to the respiratory cardio failure as a result of burns and its complications within 24 hrs. After going through the dying declaration , post mortem report , statements of Shekhar PW/6 and Dr. A. Jain PW.3, Shankar Raw PW/4, there is no scope of interference with the findings recorded by the trial Court in respect of couse of death,hence same are hereby confirmed.

The only issue involved as to whether the appellant has committed the offence under Section 304(1) of IPC.

As per dying declaration of the deceased, on 24.05.2008, near about 9 PM, the appellant was consuming the liquor and when she objected, he poured kerosene and set her on fire by match stick. According to her, he is habitual drunker and used to quarrel with her. She gave the statements in her full consciousness. PW/6 Shekhar, (neighbour) heard the screaming voice of the deceased "Jala Diya, Jala Diya" and immediately he came out from his house and saw that the deceased was running for her father's house with a burning saree. The accused ran away from the spot. PW/4, father of the deceased has deposed that there was a dispute between his daughter and her husband. He was not doing any job and her daughter used to earn by doing job of labour work. Near about 9 PM, on 24.05.2008, he was on his shop and her daughter came in the auto rickshaw in burning condition, she narrated him that the accused has set her into fire by pouring kerosene and thereafter, he immediately took her to the hospital. When she reached to the hospital, doctor smelt the kerosene. FSL report also proved the contents of kerosene on the burnt clothes, therefore, the appellant who was residing with her wife in a rented house, has committed murder of her wife by putting her fire after pouring the kerosene.

Learned counsel for the appellant has placed heavy reliance over the judgment passed by the apex Court in the case of Ongole Ravikanth (Supra) in which the wife of the accused poured herself with the kerosene and with intention to kill her wife, laid the match stick resulting in fire in causing burns. He was convicted under Section 304 (I) of IPC by the sessions Court and the same was upheld by the High Court in a appeal filed by the accused. The Apex Court in the conclusion paragraph has observed that the appellant knew very well that the body of the deceased was drenched with the kerosene, yet, he indulged in a criminal act of lightening the match stick. The appellant was aware that his act is likely to cause serious burn injures to the deceased and we do not know, what view the court would have taken. The High Court took a very lenient view in convicting the appellant for the offence punishable under Section 3-4(I) of IPC

Para No.15 is reproduced below:-

"15. In the light of the law laid down by this Court we have critically examined dying declaration (Ex. P-4) made by the deceased and the surrounding circumstances. There is no doubt whatsoever the statement made by the deceased was on her own volition. It was voluntarily made without any coercion or tutoring of anyone. The statement is natural and coherently made by the deceased in a fit state of mind. There is nothing on record to doubt the evidence of PW- 2 who recorded the dying declaration and evidence of duty doctor (PW-13) who certified that the deceased was in fit state of mind to make her statement. Except PW-2 and PW-13 no other individual was present when she made the statement. We do not find any reason whatsoever not to accept the dying declaration. The question is whether the contents do not disclose any offending act by the appellant? The deceased in clear and categorical terms stated that she poured kerosene on herself and it was the appellant who lit the match stick resulting in fire and causing 60% burns which ultimately led to her death. The appellant instead of preventing the deceased pouring kerosene upon herself lit the match stick resulting in fire and causing burns. The appellant knew very well that the body of the deceased was drenched with kerosene yet he indulged in the cruel act of lighting the match stick. In the circumstances, we find it difficult to accept the submission that the contents of dying declaration (Ex.P- 4) do not disclose the commission of any offence by the appellant. Can it be said that the appellant was not aware that his act was likely cause serious burn injuries to the deceased. The appellant was in fact charged for the offences punishable under Sections 498A and 302 IPC. We do not know what view the court would have taken had there been an appeal by the State as against the acquittal of the appellant under Section 302 IPC? Suffice it to say that the High Court took a very lenient view in convicting the appellant for the offence punishable under Section 304 Part I IPC and sentencing him to undergo rigorous imprisonment only for a period of seven years."

Therefore, in view of the above, in the present case, the appellant himself poured the kerosene over his wife and laid the match stick which has resulted serious burn injuries over various parts of her body and thereafter, he ran away from the spot. The deceased herself took an auto rickshaw and went to the house of her father and then she was hospitalized in a burned condition, therefore, the appellant does not deserve any leniency. He has committed heinous crime by killing his wife in a very cruel and painful manner .

Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

(Secondly)-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

(Thirdly)-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- (Fourthly)-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid

It is ample clear from the above definition of sec. 300 of IPC the act of the accused falls within second part . The death of the deceased was homicidal, it cannot be said that he had no intention to kill his wife. The deceased in her dying declaration stated clear and categorical that the appellant used to quarrel with her after consuming liquor.

Therefore, in view of the above, we do not find any ground to interfere with the findings of the learned trial Court. Hence, the appeal stands dismissed.