Madhya Pradesh High Court
Ramoo @ Mana vs The State Of Madhya Pradesh on 14 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 14th OF MAY, 2024
CRIMINAL APPEAL No. 2736 of 2012
BETWEEN:-
RAMOO @ MANA S/O RAMRATAN KORKOO, AGED
ABOUT 50 YEARS, JHUMKAPURA P.S. KESLA
TEH.ITARASI HOSHANGABAD (MADHYA PRADESH)
.....APPELLANT
(BY MS. DURGESH GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH TH:P.S. ITARASI
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI A.N. GUPTA - GOVERNMENT ADVOCATE)
This appeal coming on for hearing this day, Justice Vivek Jain passed
the following:
JUDGMENT
T he present appeal has been filed under Section 374(2) of Code of
Criminal Procedure by the appellant against the judgement of conviction and
sentence dated 20.10.2012 passed by Second Additional Sessions Judge,
Hoshangabad in Sessions Trial No.272/2011, whereby the appellant has been
convicted of offence under Section 302 of I.P.C. and sentenced to undergo
Life Imprisonment and fine of Rs.3,000/-, with default stipulation of six months
rigorous imprisonment.
2. The prosecution case in brief is that the appellant was husband of the
deceased Usha Bai. The appellant and the deceased used to reside with their
four children at Gram Bhumikapura and the appellant used to doubt the
character of his wife. This was leading to frequent quarrels between the
appellant and the deceased wife. The incident took place on 19.06.2011. At
about 12.00 in the noon some quarrel took place between the appellant and the
deceased. Then at around 5 PM in the evening the accused appellant was under
influence of alcohol and started abusing the deceased and then he poured
kerosene on the deceased and set her on fire, which led to the deceased getting
burn injuries on various parts of her body. The fire was doused by Vinita (PW-
14), who is daughter of the present appellant and deceased and during this
period Anju (PW-6) also reached the spot. Apart from Anju and Vinita, Vistori
Bai (PW-2), Man Singh (PW-17), Sardar and Radhe Shyam (PW-15) also
reached on the spot. They took the deceased to Police Station where offence
was registered under Sections 294 and 307 of the I.P.C. and she was sent to the
Hospital at Itarsi for treatment. It is the case of the prosecution that after about
7 weeks of treatment, the deceased Usha Bai expired on 09.08.2011 in the
hospital.
3. As per prosecution version, the deceased was admitted to the hospital
by Dr. Vikas (PW-7) who recorded the first dying declaration of the deceased
(Exhibit P-11) on 19.06.2011 itself at 7.25 PM. Thereafter, a second dying
declaration was recorded on the same day at 10.00 PM in the night by the
Executive Magistrate, Manoj Upadhyay (PW-8), who was Tahsildar.
4. The medical examination of the deceased (Exhibit P-10) was carried
out by Dr. Vikas (PW-7) while admitting the deceased to hospital and it has
been recorded in the said medico legal examination that the deceased got burn
injuries at about 5.30 PM in the evening and there were superficial burn injuries
over right cheek, chin and neck. There were superficial to deep burn over both
arms, forearms, all over chest, upper back, abdomen, lower back, both thighs
and both buttocks. The extent of burns was recorded as 70 to 75%, which was
stated to be grievous in nature and dangerous to life of the patient.
5. As per the first dying declaration (Exhibit P-11), it has been recorded
by Dr. Vikas (PW-7) that the husband of the deceased has set her on fire by
pouring kerosene oil. The dying declaration (Exhibit P-12) recorded by the
Executive Magistrate on the same date in the night is a more detailed dying
declaration and it mentions that she was set on fire by her husband at 5.00 PM.
She further stated that at around 11.00 -12.00 in the day time, her husband had
beaten her due to domestic disputes. She further stated that she is having four
children, she got married with the accused - appellant about 20 years ago and
that she has been rescued by her children. She also stated that her children were
in the house at the time of occurrence of incident.
6. The First Information Report (Exhibit P-17) has been registered by the
deceased herself at 6.10 PM and in the said first information report the same
version is mentioned that there were frequent domestic quarrels between the
deceased and the accused and accused-appellant has set her on fire after
pouring kerosene. Her children doused the fire.
7. Simple soil, soil soaked with kerosene, half filled plastic bottle
containing kerosene, burnt clothes of the deceased, one match box, etc. were
seized from the spot and sent for FSL examination by Exhibit P-19. The FSL
report was received, but was not exhibited by the prosecution, which mentions
that some of the articles contain kerosene.
8. After death of the deceased during treatment on 09.08.2011, the body
was subjected to postmortem examination and postmortem report (Exhibit P-
30) is on record, which has been proved by Dr. V.K. Jha (PW-18). As per the
postmortem report, the cause of death of deceased was septicaemic shock
caused by burn injuries. The postmortem report also mentions that there was
serous discharge from the burn injuries.
9. On the basis of statements recorded and material collected during the
course of investigation by the police, charge sheet was filed before the
Magistrate against the present appellant under Sections 294, 307 and 302 of the
I.P.C. The case was committed to Sessions and the Sessions Court framed
charges against the present appellant under Section 302 of the I.P.C. The
appellant denied the charges and claimed to be tried. After trial, the appellant
has been convicted of charges and awarded sentence as mentioned in para 1 of
this judgment.
10. Learned counsel for the appellant while pressing the case of present
appellant submits that the entire prosecution story is doubtful. It is argued that
all the material witnesses except PW-9, who is father of the deceased have
turned hostile and have also not supported the prosecution version. It is further
argued that even the own children of the deceased have not supported
prosecution version, whereas the dying declaration shows that they were duly
present on the place of occurrence. It is argued that Anita @ Anju (PW-6),
Aarti (PW-13) and Vinita (PW-14), who all are daughters of the appellant and
deceased have turned hostile. It is further argued that PW-2, who is sister of the
deceased have also turned hostile and PW-3, who is mother of the deceased
has also not supported the prosecution version in its entirety.
11. It is also argued that even if the incident is found proved, in that event
also the case would not fall under Section 302 of the I.P.C., because it is the
case of the prosecution that there was domestic quarrel between the present
appellant and the deceased and on the date of incident also there was a
domestic quarrel at around 12.00 in the noon. In the evening, when the appellant
- accused returned to his home under influence of alcohol, he is alleged to have
set the deceased on fire. It is argued that the act would not fall under Section
302 of the I.P.C. for various reasons. It is argued that the case would fall under
4th Exception to Section 300 of I.P.C., because the appellant was under
influence of alcohol and there was domestic quarrel between the appellant and
the deceased shortly before the incident.
12. It is further argued that the deceased did not immediately expire from
the burn injuries and the deceased died after 52 days of receiving the burn
injuries. Though, the burn injuries were to the extent of 70% of body surface,
yet the death did not occur immediately after burn injuries and the deceased
remained under treatment for 52 days after the incident. She died from
septicaemia after 52 days indicates there was medical negligence or
mismanagement of the case or lack of treatment of the injuries of the deceased,
which led to her death, rather than the burn injuries inflicted by the present
appellant. Thus, it is argued that the case would not fall under Section 302 of
I.P.C. and would fall under Section 304 Part - II of I.P.C.
13. Learned counsel has relied on the judgment of this Court in the case
of Ganesh Ram vs. State of M.P. reported in 2010 (2) MPHT 350. It is
further argued that the appellant has already spent 12 years and 10 months of
actual jail sentence and said period of custody is sufficient for offence under
Section 304 Part-II of I.P.C. Thus, on this ground also the appeal is liable to be
allowed in part.
14. Per contra, learned Government Advocate has opposed the appeal
and has vehemently defended the judgment passed by the trial Court. It is
argued that the appellant has not been falsely implicated in the matter, because
FIR was lodged by the deceased herself promptly, i.e. within half an hour of the
occurrence. The own children of the deceased have turned hostile only to save
their father, who is the accused in the case. The conviction can be based on
dying declaration and in fact, there are three dying declarations in the case. The
FIR can also be treated to be dying declaration apart from the two other dying
declarations recorded by the Doctor and by the Executive Magistrate. All the
three dying declarations point to the same theory of the appellant setting the
deceased on fire by pouring kerosene. It is also argued that there was presence
of the kerosene on the body of the deceased and this is duly recorded in the
medico legal examination of the deceased by the treating Doctor.
15. Learned Government Advocate has referred to various paragraphs of
the impugned judgment to defend the said judgment of conviction passed by
the trial Court and it is submitted that the findings recorded by the trial Court
are well reasoned and there is due application of law on the material available on
record. Learned Government Advocate further submits that no two views are
possible in the matter and appreciation of evidence in the present matter leads to
only one view, which points to guilt of the present appellant. Thus, it is
submitted by the Government Advocate that the impugned judgment of
conviction and sentence be confirmed and the present appeal may be
dismissed.
16. At this stage, learned counsel for the appellant has submitted that the
appellant limits his argument only to the aspect of conversion of offence to
Section 304 Part - II or Part - I I.P.C. in place of Section 302 of the I.P.C. as
noted in paras 11 to 14 above.
1 7 . Heard learned counsel for the parties at length and perused the
record.
18. In the present case, the facts of the case as shown by the dying
declarations (Exhibits P-11 and P-12) clearly go to show that there was a
domestic quarrel between the appellant and the deceased at around 11.00 -
12.00 in the noon and thereafter, the appellant came to home at around 5.00 PM
and poured kerosene on the deceased and set her on fire.
19. These facts go to show that the incident was led by the sudden
quarrel of domestic nature between husband and wife shortly prior to the
incident. The incident seems to have been caused on sudden impulse and in
heat of passion when the sudden domestic quarrel had taken an ugly shape and
after quarrel with the wife, the appellant husband returned to home under
influence of alcohol and in such heat of passion the appellant poured kerosene
on the deceased and set her on fire. The deceased sustained around 70% burn
injuries. The dying declaration (Exhibit P-12) mentions in categorical terms that
there was a domestic quarrel at around 11.00-12.00 in the noon relating to the
husband doubting character of the wife and a domestic quarrel being caused
out of that. In reply to question No.13 in dying declaration (Exhibit P-12) the
deceased has categorically stated that there is no other cause of the incident.
20. It is further indicated from the documents placed on record that the
deceased sustained about 70% burn injuries and she was admitted to hospital
on 19.06.2011 and remained admitted upto 09.08.2011 when she ultimately
expired. The postmortem report (Exhibit P-28) indicates the cause of death to
be secondary septicaemia shock, which was caused by burn injuries. The
immediate cause of death was not the burn, but complications arising out of
burn injuries. The deceased remained admitted in hospital for 52 days and this
is a factor, which can be taken into consideration by this Court.
21. In the case of Maniben vs. State of Gujarat, (2009) 8 SCC 796,
the Hon'ble Apex Court has held that the offence committed by the accused
would fall under Section 304 Part - II if the deceased died after 8 days after
incident of burning on account of septicaemia. The following has been held:-
"20. There is also evidence on record to prove and
establish that the action of the appellant to throw the
burning tonsil was preceded by a quarrel between the
deceased and the appellant. From the aforesaid evidence
on record it cannot be said that the appellant had the
intention that such action on her part would cause the death
or such bodily injury to the deceased, which was sufficient
in the ordinary course of nature to cause the death of the
deceased. Therefore, in our considered opinion, the case
cannot be said to be covered under clause (4) of Section
300 IPC. We are, however, of the considered opinion that
the case of the appellant is covered under Section 304 Part
II IPC"
22. A Division Bench of this Court in the case of Ganesh Ram vs.
State of M.P. reported in 2010 (2) MPHT 350 has held as under:-
"14. Considering the aforesaid case law on the point which
also applied to the factual scenario of the present case also
that due to some minor quarrel in between the husband and
wife with regard to preparation of tea, the appellant -
accused without any intention poured kerosene on the wife
deceased Pinki and thereafter set her on fire, due to which,
she sustained 50 to 55 per cent burn injuries and died near
about 5 days after the incident due to complication of the
burn injuries and in such circumstances, the
appellant/accused can be convicted for the offence
punishable under Section 304 Part-I of I.P.C. and not
under Section 302."
23. A Division Bench of this Court in the case of Sunita Bai Behni vs.
State of M.P. (Cr.A. No.505/2016) converted conviction to Section 304 Part
- I I.P.C. by invoking 4th Exception to Section 300 I.P.C. by holding as under:-
"13. In the case of Ganesh Ram (supra), the burn injuries
were to the extent of 50-55% and victim died after 05 days.
In Girja Shankar (supra), the burn injuries were to the tune
of 80% and he died after 07 days. In the instant case, the
burn injuries were 50-55% and Shakil died after 14 days. In
both the cases, namely Ganesh Ram and Girja Shankar, the
Division Bench converted the conviction under Section 304
Part-I of IPC and reduced the sentence accordingly. Since
in those cases, appellant remained in custody for 11 and 14
years respectively, they were directed to have undergone
the sentence. In the present case, in our view, appellant's
overt act attracts Exception 4 of Section 300 of IPC."
24. A Division Bench of this Court in the case of Vinod Kumar vs.
State of M.P., ILR 2009 MP 1160 has held as under:-
"18. It is true that by the evidence of dying declaration, it
has been established that accused caused the death of
Panchshila by setting her on fire, but from the contents of
Ex.P/6 as well as of Ex.P/20, it seems to us that the
incident occurred suddenly when accused admonished
deceased saying that she had gone to the house of Vijay
Thakur and had indulged in sinful act. It was mentioned by
her that accused told her that he had received information
that she had gone to the house of Vijay Thakur. On
appreciating the mental condition of the accused, as
reflected by his conduct at the time of commission of the
offence, it can be gathered that he acted on a sudden
impulse, in a sudden quarrel and without premeditation. In
these circumstances, we are unable to hold that accused
intended to commit murder of the deceased, but his act of
setting fire to deceased must be held to have been done
with the intention of causing her death or causing such
bodily injury as was likely to cause death, in which case the
offence would be one punishable under section 304 Part-I
of the Indian Penal Code.
19. In the result, the conviction of the appellant under
section 302 of the Indian Penal Code and the sentence of
life imprisonment awarded to him by the trial Court are set
aside and instead, he is convicted under section 304 Part-I
of the Indian Penal Code and sentenced to rigorous
imprisonment for 10 years. The appellant is in custody
since 4.5.1999. If he has completed his sentence of 10
years, he shall be released forthwith if not required in any
other case."
25. If the factual matrix of the present case is examined on the anvil of
principles laid down in the aforesaid judgments and the dying declaration of the
deceased is examined, which states that the sole cause of incident was domestic
quarrel between the deceased and the appellant sometime before the
occurrence, it will be crystal clear that the appellant cannot be held guilty for
committing the offence under Section 302 I.P.C. and the case would fall under
4th Exception to Section 300 I.P.C. Indeed, he can be held guilty for
committing offence under Section 304 Part-I I.P.C. for which, in our opinion,
adequate sentence would be the one already undergone by the appellant. The
appellant has already undergone 12 years, 10 months of actual jail custody.
26. Consequently, the impugned judgement of conviction and sentence
dated 20.10.2012 passed by Second Additional Sessions Judge, Hoshangabad
in Sessions Trial No.272/2011 is accordingly modified to the extent herein
above.
27. Resultantly, the appeal is partly allowed. If the appellant is not
required in any other case, he shall be released from the jail forthwith.
(RAJ MOHAN SINGH) (VIVEK JAIN)
JUDGE JUDGE
rj
