Santosh Yadav vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) In this criminal appeal preferred under Section 374(2) of Cr.P.C., the accused-appellant has called in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 09.07.2013, passed by the Court of 5th Additional Sessions Judge, Durg (Chhattisgarh) in Sessions Trial No.190/2012 (State of Chhattisgarh vs. Santosh Yadav), whereby he has been convicted for offence under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and, in default of payment of fine, to undergo additional simple imprisonment for 02 months.

(2) The case of the prosecution, in short, is that on 22.06.2012, in the morning at about 10:00 AM, the accused-appellant herein, in his house situated at Durg, quarreled with his wife, namely, Kavita Yadav (hereinafter referred to as “deceased”) and, in furtherance thereof, poured kerosene oil on her and set her ablaze, due to which she suffered burn injuries to the extent of 40% and, thereafter, died on 12.09.2012 in the hospital during the course of her treatment, and, thereby, the appellant is said to have committed offence under Section 302 of IPC.

(3) The further case of the prosecution is that the marriage of the deceased alongwith the appellant herein was solemnized 17 years prior to the date of offence and, immediately after their marriage, the deceased used to quarrel with the appellant on his habit of consuming liquor and smoking ‘ganja’. On the fateful date and time also the appellant came to his house under influence of liquor and started quarreling with his wife (deceased) and, at that relevant point of time, their children had gone to school and deceased’s mother-in-law, namely, Smt. Pushpa Bai (PW-01) had also gone to Jalaram Vatika for work as labour and there was nobody else in the house except the appellant and the deceased. It is also the case of the prosecution that the appellant herein while quarreling with his wife (deceased) had also used obscene words and further poured kerosene oil and set her ablaze, due to which she suffered 40% burn injuries. Thereafter, the said incident was informed to Smt. Pushpa Bai (PW-01) and the deceased was escorted to the hospital, whereby after having been certified by the doctor that she is in fit condition/state of mind to give statement, her dying declaration (Ex.P/08) was recorded by the Executive Magistrate-cum-Naib Tehsildar, namely, C.P. Mishra (PW-05), wherein she implicated and named the appellant (her husband) who on account of sudden quarrel and under influence of liquor, set her ablaze. The deceased was sent for medical examination and her MLC report is Ex.P/12 & P/17, wherein it has been opined that smell of kerosene oil is present on her body and she has suffered burn injuries to the extent of 40%.

(4) Thereafter, on 12.09.2012, during the course of treatment, deceased died, pursuant to which FIR was registered by the police. Spot map was prepared vide Ex.P/06 and inquest proceeding were conducted vide Ex.P/02. The dead-body of deceased was sent for postmortem examination and, in the postmortem examination report (Ex.P/09), conducted by Dr. B.P. Tiwari (PW-11), it was opined that the cause of death of deceased is septicemic shock as a result of antemortem burn injuries about 40%. Thereafter, appellant-accused was arrested. Further, from the place of incident, burnt clothes of the deceased and Kerosene oil have been seized vide Ex.P/03, which were subjected for FSL examination (Ex.P17). In the FSL report (Ex.P/19), it has been opined that in the burnt clothes of the deceased, stains of kerosene have been found. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the appellant in the Court of Chief Judicial Magistrate, Durg and, thereafter, the case was committed to the Court of Sessions. The appellant/ accused abjured his guilt and entered into defence by submitting that he is innocent and has been falsely implicated.

(5) The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 19 documents, whereas the appellant-accused, in support of his defence, has examined 01 witness, namely, Govind Kumar Bhardwaj (DW-01), but has not exhibited any document.

(6) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(7) Mr. C. Jayant K. Rao, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that the conviction of the appellant is solely based on the dying declaration (Ex.P/08), which is a weak piece of evidence and cannot be relied upon in absence of corroboration. He further submits that except the dying declaration, there is no other legal evidence available on record to connect the appellant with the crime in question. The appellant has been falsely implicated by the deceased. Smt. Pushpa Bai (PW-01), Smt. Godawari (PW-02), Smt. Sona Bai (PW-03) and Rohit Patel (PW-12) all have turned hostile and have denied their statements recorded under Section 161 of CrPC, whereby they have alleged that the appellant has poured kerosene oil on the deceased and set her ablaze. He further submits that even if the case of the prosecution is accepted as it is, then also, the appellant is said to have caused murder of his wife (deceased) in spur of the moment under influence of liquor and there was no motive or intention on the part of the appellant to cause death of the deceased. Hence, the present appeal deserves to be allowed and appellant is liable to be acquitted from the said offence.

(8) Per-contra, Mr. Ashish Tiwari, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in the dying declaration (Ex.P/08), the deceased has clearly stated the name of the appellant, who being her husband, used to quarrel with her after consuming liquor and smoking ganja and on the fateful day also he came under influence of liquor and quarreled with her and thereafter set her ablaze by pouring kerosene oil on her, due to which deceased suffered deep burn injuries and died during the course of treatment at hospital. The learned trial Court has rightly convicted the appellant for offence under Section 302 of IPC. Thus, the present appeal deserves to be dismissed.

(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

(10) The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/09), wherein it has been opined that cause of death of deceased is septicemic shock as a result of antemortem burn injuries about 40%, which is duly proved by the statement of Dr. B.P. Tiwari (PW-11), who has conducted the postmortem of the dead-body of the deceased. Accordingly, taking into consideration the postmortem report (Ex.P/09) and the statement of Dr. B.P. Tiwari (PW-11), we are of the considered opinion that the death of deceased is homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding.

(11) Now, the next question would be whether the accused-appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the dying declaration (Ex.P/8). A careful perusal of the dying declaration (Ex.P/08) would show that the deceased after having been certified by the doctor to be in fit condition/state of mind to give statement, had given her dying declaration (Ex.P/08), which was recorded by the Executive Magistrate-cum-Naib Tehsildar, namely, C.P. Mishra (PW-05), wherein she stated that “for past 04 days his husband (appellant herein) was coming to the house after consuming liquor and smoking ‘ganja’ and used to quarrel with her and commit ‘marpeet’ with her. She had not taken food for last three days. Last night, while appellant’s mother, namely, Pushpa Bai asked the appellant not to misbehave with her, than he slapped her also thrice and stated that it is his house, he can do whatever he want and she need not to bother about it. On the next morning (i.e. on the fateful day), the appellant again came to his house after consuming liquor and started abusing her by using obscene words and quarreled with her and, in furtherance thereof, poured kerosene oil on her and set her ablaze.” The deceased, in her dying declaration (Ex.P/08) had also stated that at the time when incident took place, nobody was present in the house except her and the appellant. The aforesaid dying declaration (Ex.P/08) was duly proved the the statement of Executive Magistrate-cum-Naib Tehsildar, namely, C.P. Mishra (PW-05), who has recorded the dying declaration. As such, in our considered opinion we do not find any good reason/ground to disbelieve the said dying declaration. Thus, the learned trial Court has rightly held that the appellant-accused has poured kerosene oil on her body and set her ablaze and by which he suffered burn injuries and succumbed to injuries after 02 months 20 days during the course of treatment.

(12) The aforesaid finding bring us to the next question for consideration, which is whether the learned trial Court is justified in convicting the appellant for offence under Section 302 of IPC and question for consideration would be whether the case of the appellant falls within the purview of Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of IPC ?

(13) The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 has observed as under:-

“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

(14) The Supreme Court in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of IPC, which state as under :-

“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(I) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident.

Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”

(15) Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

(16) Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7)

“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

(17) In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II IPC.

(18) Further, the Supreme Court in the matter of Rambir vs. State (NCT of Delhi) (2019) 6 SCC 122 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

“16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

(i) There must be a sudden fight;

(ii) There was no premeditation;

(iii) The act was committed in a heat of passion; and

(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

(19) Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in aforesaid judgments, it is quite vivid that the deceased was the wife of the appellant herein and on the date of offence (i.e. on 22.06.2012) brief quarrel took place between the appellant and the deceased and immediately after brief quarrel the appellant under the influence of liquor is said to have poured kerosene oil on the body of the deceased and set her ablaze, which fact has also been narrated by the deceased herself in her dying declaration recorded vide Ex.P/08 and, that is the reason, deceased suffered 40% burn injuries and died on 12.09.2012 after 02 months 20 days during the course of treatment and further the appellant himself got burnt while extinguishing fire on the body of the deceased, which is apparent from the dying declaration (Ex.P/08), as such, there was no premeditation on the part of the appellant to cause death of the deceased and only because of sudden quarrel, under anger and influence of liquor and in heat of passion, the appellant caused death of his wife (deceased). However, looking to the injuries sustained by the deceased, which is to the extent of 40% of her body, the appellant must have had intention and knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her death and the appellant had not taken undue advantage or acted in a cruel manner, thus, this is a case which would fall within the purview of Exception 4 to Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and, therefore, the conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-I) of IPC.

(20) In view of the aforesaid discussions, the conviction of the appellant for offence punishable under Section 302 of IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside. Considering that there was no premeditation on the part of the appellant to cause death of the deceased but the injuries caused by him were sufficient in the ordinary course of nature to cause death, the appellant is convicted for offence punishable under Section 304 Part-I of IPC. Since the appellant is in jail from 25.06.2012 i.e. more than 10 years 08 months, taking into consideration the period he has already undergone, we award him the sentence already undergone by him, but the fine sentence imposed by the learned trial Court shall remain intact. Consequently, he be released from jail forthwith, if not required in any other matter.

(21) This criminal appeal is party allowed to the extent indicated herein-above.