Ram Gopal Dhruw vs State Of Chhattisgarh
2023 Latest Caselaw 564 Chatt

                                                                              CRA-148-2016
                                        Page 1 of 13


                                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                         Criminal Appeal No. 148 of 2016
Ram Gopal Dhruw, Son of Budhram Dhruw, aged about 35 years,
Resident of Village Subhash Nager Ward Lal Bagicha Dhamtari, District
Dhamtari (Chhattisgarh)
                                                                             ---- Appellant
                                          Versus
State of Chhattisgarh, through Police Station Dhamatari, District
Dhamatari (Chhattisgarh)
                                                                         ---- Respondent
-----------------------------------------------------------------------------------------------

For Appellant                          :      Mr. A.L. Singroul, Advocate
For Respondent-State                   :      Mr. Soumya Rai, Panel Lawyer

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal, JJ Judgment on Board (30.01.2023) Sanjay K. Agrawal, J

(1) This criminal appeal filed by the appellant-accused under Section

374(2) of Cr.P.C. is directed against the impugned judgment of

conviction and order of sentence dated 15.12.2015, passed by the

Court of learned Sessions Judge, Dhamtari (Chhattisgarh) in Sessions

Trial No.30/2015 (State of CG vs. Ram Gopal Dhruw), whereby he has

been convicted for offence under Section 302 of IPC and sentenced to

undergo life imprisonment with fine of Rs.10/-, and in default of

payment of fine, additional simple imprisonment for 05 days.

(2) The case of the prosecution, in short, is that on 27.09.2015 in the CRA-148-2016

evening around 04:00-05:00 PM, at Subhash Nagar Ward, Lal Bagicha,

Dhamtari, the accused-appellant herein under the influence of liquor

quarreled with his wife, namely, Smt. Laxmi Bai Dhruw (hereinafter

referred to as "deceased") and, in furtherance thereof, assaulted her by

means of wooden stick and iron 'jhara' (skimmer) and, thereafter, the

appellant poured kerosene oil on the body of deceased and set her

ablaze, due to which she suffered deep burn injuries and, consequently

she was escorted to Government Hospital, Dhamtari for treatment,

where during the course of treatment on 03.10.2014 she succumbed to

death, and, thereby, the appellant is said to have committed offence

under Section 302 of IPC.

(3) It is further case of the prosecution that the said incident was

witnessed by daughter of the appellant and the deceased, namely, Ku.

Pooja (PW-03) and deceased has given oral dying declaration to her

mother, namely, Smt. Gwalin Bai (PW-04). The intimation of death of

deceased was sent to the police, upon which, marg intimation and FIR

were registered vide Ex.P/07 & Ex.P/05-P/06 respectively. Inquest

proceedings were conducted vide Ex.P/10 and summons under Section

175 of CrPC were sent vide Ex.P/09. The dead-body of deceased was

sent for postmortem examination and in the postmortem examination

report (Ex.P/01), conducted by Dr. Smt. Snigdha Jain (PW-01), it was

opined that the cause of death of deceased is due to excessive burn

injuries approximately 90% of body surface area. Thereafter, appellant-

accused was arrested vide Ex.P/15 and his memorandum statement CRA-148-2016

was recorded vide Ex.P/12. Pursuant to the memorandum statement of

the appellant, steel 'jhara' and box of kerosene oil have been seized

vide Ex.P/13. But, neither the said seized articles were sent for FSL

examination nor any FSL report has been brought on record for the

reasons best known to the prosecution. Thereafter, statement of

witnesses were recorded and, after due investigation, the police filed

charge-sheet in the Court of Chief Judicial Magistrate District Dhamtari

(CG) 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.

(4) The prosecution in order to prove its case examined as many as

13 witnesses and exhibited 16 documents, whereas the appellant-

accused in support of his defence has neither examined any witness

nor exhibited and document.

(5) 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.

(6) Mr. A.L. Singroul, 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 CRA-148-2016

submits that the appellant is said to have assaulted his wife (deceased)

on 27.09.2015 and deceased remained hospitalized and succumbed to

death on 03.10.2015 and, as such, the prosecution has an opportunity

to get her dying declaration recorded, which was not done for the

reasons best known to the prosecution. Further, he submits that Ku.

Pooja (PW-03) and Smt. Gwalin Bai (PW-04) in her statement before

the Court has clearly admitted the fact that on the date of incident the

appellant under the influence of liquor first quarreled with the deceased

and, thereafter, assaulted her and set her ablaze by pouring kerosene

oil, as such, there was no motive or intention on the part of the

appellant to cause death of the deceased and only on account of

sudden quarrel, under heat of passion and under the influence of liquor

the appellant assaulted deceased and set her ablaze, due to which she

suffered burn injuries and died during the course of treatment and,

thereby, committed the offence. Hence, the case of the present

appellant falls within the purview of Exception 4 to Section 300 of IPC

and the act of the appellant is culpable homicide not amounting to

murder and, therefore, it is a fit case where the conviction of the

appellant for offence under Section 302 of IPC can be

converted/altered to an offence under Section 304 (Part-I or Part-II) of

IPC. He relied upon a decision rendered by their Lordships of the

Supreme Court in the matter of Santlal Shrikisan Kutil @ Kaalia @

Mochi v. State of Maharashtra 1 to bolster his submissions and prayed

that the present appeal deserves to be allowed in full or in part.

1 (2020) 17 SCC 661 CRA-148-2016

(7) Per-contra, Mr. Soumya Rai, 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. The learned trial Court has

rightly convicted the appellant for offence under Section 302 of IPC.

Exception 04 to Section 300 of IPC is not attracted in this case and it is

not a case where conviction of the appellant under Section 302 of IPC

requires to be altered to Section 304 Part-I or Part-II of IPC, thus, the

present appeal deserves to be dismissed.

(8) We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the records

with utmost circumspection.

(9) The first and foremost question is as to whether the death of the

deceased was homicidal in nature, which the learned trial Court has not

recorded in affirmative by taking into consideration the postmortem

report (Ex.P/01), wherein it has been opined that cause of death of

deceased is due to excessive burn injuries, which is duly proved by the

statement of Dr. Smt. Snigdha Jain (PW-01), who has conducted the

postmortem of the dead-body of the deceased. Accordingly, taking into

consideration the postmortem report (Ex.P/01) and the statement of Dr.

Smt. Snigdha Jain (PW-01), 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.

CRA-148-2016

(10) 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 testimonies of Ku.

Pooja (PW-03), who is eye-witness and daughter of the appellant and

the deceased and Smt. Gwalin Bai (PW-04), mother of the deceased. A

bare perusal of the testimonies of aforesaid witnesses would show that

it is the appellant who has committed 'marpeet' with his wife (deceased)

by means of wooden stick and 'jhara' and thereafter set her ablaze by

pouring kerosene oil on her, due to which she suffered burn injuries and

died. Thus, on the basis of said fact coupled with other evidence

available on record, the learned trial Court has rightly held that the

appellant-accused is perpetrator of the crime in question. Accordingly,

we hereby affirm the finding recorded by the learned trial Court that the

appellant-accused is the perpetrator of the crime in question, as the

same is correct find of fact based on evidence and it is neither perverse

nor contrary to the record.

(11) The aforesaid finding brings us to the next question for

consideration, which is, whether the case of the appellant is covered

with Exception 4 of 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, as contended by learned counsel for the

appellant ?

(12) The Supreme Court in the matter of Sukhbir Singh v. State of

Haryana2 has observed as under:-

2 (2002) 3 SCC 327 CRA-148-2016

"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."

(13) The Supreme Court in the matter of Gurmukh Singh v. State of

Haryana3 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;

3 (2009) 15 SCC 635 CRA-148-2016

(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.

24. 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."

(14) Likewise, in the matter of State v. Sanjeev Nanda4, 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

4 (2012) 8 SCC 450 CRA-148-2016

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.

(15) Further, the Supreme Court in the matter of Arjun v. State of

Chhattisgarh5 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."

21. 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) 5 (2017) 3 SCC 247 CRA-148-2016

"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".

(16) 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.

(17) Further, the Supreme Court in the matter of Rambir vs. State

(NCT of Delhi)6 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:

6 (2019) 6 SCC 122 CRA-148-2016

"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."

(18) The Supreme Court in the matter of Santlal Shrikisan Kutil

(supra) while considering a case where victim succumbed to the

injuries on 26.07.2011 after a gap of about seven day, while undergoing

treatment at the hospital and her statement was recorded by the police

and not by the Magistrate, opined that though the prosecution has

proved its case with regard to the occurrence of the incident, but upon

careful scrutiny of the entire evidence, found it to be a case of culpable

homicide not amounting to murder, thus, appellant therein cannot be

convicted under Section 302 of IPC and held in Para-08 as under:

"8. We have examined the factual aspect of the case and noticed that occasional altercations between the accused and the victim are common in their routine life. After scuffles, again they used to sit and drink together and share the place for their night sleep. It appears that on the day of incident also, they went to sleep together, which makes it clear that they were not in inimical terms. The injuries upon the body of the deceased were although somewhat serious in nature but death was not immediately occurred. The victim succumbed to the injuries on 26.7.2011 after a gap of about seven days, while undergoing treatment at the hospital. Admittedly, the statement of the deceased was recorded by the police and not by the Magistrate. Considering all these factors, in our opinion the prosecution has however proved its case with regard to the occurrence of the incident, but on careful scrutiny of the entire evidence, we are of the considered view that it is a case of culpable homicide not amounting to murder."

CRA-148-2016

(19) Reverting to the facts of the present case in light of above

principles of law laid down by their Lordships of Supreme Court, it is

quite vivid that there was no premeditation on the part of the appellant

to cause death of the deceased, but only on account of sudden quarrel

and under heat of passion and under the influence of liquor, the

appellant, who is husband of deceased, assaulted her and set her

ablaze by pouring kerosene oil, due to which she suffered deep burn

injuries and died during the course of treatment, which fact has been

duly established the statements of Ku. Pooja (PW-03) and Smt. Gwalin

Bai (PW-04). 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 assaulted deceased and caused his death. However, looking

to the burn injuries sustained by deceased in his PM report (Ex.P/01),

which have been caused over 90% of the body surface area of the

deceased, the appellant must had knowledge that such injuries inflicted

by him on the body of the deceased would likely to cause her death, as

such, this is a case which would fall within the purview of Exception 4 of

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-II) of IPC.

CRA-148-2016

(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-II) of IPC and sentenced to undergo rigorous

imprisonment of 08 years, but the fine sentence imposed by the learned

trial Court shall remain intact.

(21) This criminal appeal is party allowed to the extent indicated

herein-above.

                   Sd/-                                             Sd/-
            (Sanjay K. Agrawal)                           (Radhakishan Agrawal)
                  Judge                                            Judge
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