1 2025:CGHC:5261-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1818 of 2019 {Arising out of judgment dated 19.09.2019 passed in Sessions Trial No.60/2018 by the learned First Additional Sessions Judge, Rajnandgaon} Shankar Markam, S/o. Laxman Markam, Aged About 29 Years, R/o. Block No.21, House No.04, Atal Awas, Matiya Road, Dongargarh, District (Revenue & Civil) Rajnandgaon, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through District Magistrate Rajnandgaon, District (Revenue & Civil) Rajnandgaon, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. A.K.Yadav & Mr. Nikhil Sahu, Advocates appeared on behalf of Mr. S.D.Singh, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate & Mr. H.A.P.S. Bhatia, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.01.30 17:56:20 +0530 2 Judgment on Board (29.01.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 19.09.2019, passed by the learned First Additional Sessions Judge, Rajnandgaon, in Sessions Trial No.60/2018, by which, the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine, 3 months additional rigorous imprisonment. 2. Case of the prosecution, in brief, is that on 08.07.2018, at 11:00 A.M., the appellant herein suspecting the character of his wife Sapna Devar (now deceased) had poured kerosene oil over her body and set her ablaze by match- stick, by which, she suffered severe burn injuries and died on 13.07.2018 during course of treatment. The dying declaration (Ex.P-12) was recorded in presence of treating Doctor Dr. Wilson Kujuar (PW-6) who certified the victim to be fit physical and mental state of mind to record the dying declaration and thereafter, she succumbed to burn injuries on 13.07.2018. Dehati Nalsi was registered vide Ex.P-16, 3 Merg Intimation was registered vide Ex.P-17, FIR was registered vide Ex.18 and dead body of deceased Sapna Devar was subjected to post-mortem, which was conducted by Dr. M. Nirala (PW-16), who proved the post-mortem report Ex.P-26, in which, cause of death was stated to be cardio respiratory failure as a result of burn injuries and their complications. After due investigation, the appellant was charge-sheeted for the aforesaid offence under Section 302 of I.P.C. before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. In order to bring home the offence, prosecution examined as many as 16 witnesses and exhibited 27 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of Indian Penal Code and sentenced him to undergo life imprisonment against which the present appeal has been preferred. 4 5. Mr. A.K.Yadav & Mr. Nikhil Sahu, learned counsels appearing for the appellant would submit that the prosecution has failed to bring home the offence beyond reasonable doubt and therefore, the appellant is entitled for acquittal. In alternative, they would further submit that, at the best, the offence under Section 304 Part-II is made out against the appellant in light of the decision rendered by the Supreme Court in the matter of Kalu Ram v. State of Rajasthan1 and, as such, the conviction of the appellant for offence under Section 302 of I.P.C. be altered to Section 304 Part-II of I.P.C. and he be sentenced to the period already undergone, as he is in jail since 08.07.2018 and the appeal be allowed in part. 6. Mr. Arvind Kumar Dubey & Mr. H.A.P.S.Bhatia, learned State counsels, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence under Section 302 of I.P.C. They would further submit that it is not a case where the conviction of appellant for the offence under Section 302 of I.P.C. can be converted to Section 304 Part-II of I.P.C., therefore, the appeal deserves to be dismissed. 1 AIR 2000 SC 3630 5 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Sapna Devar was homicidal in nature to which the trial Court after appreciating the medical evidence on record, particularly the statement of Dr. M. Nirala (PW-16), who conducted the post-mortem report vide Ex.P-26, has rightly come to the conclusion that the death of deceased was homicidal in nature, which is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. Now, the next question is, whether the appellant has caused the death of his wife Sapna Devar ? 10. The trial Court has clearly recorded a finding that appellant had poured kerosene oil on the body of deceased and set her ablaze, by which, she suffered severe burn injuries and died on 13.07.2018 during treatment. Considering the fact that deceased had given dying declaration vide Ex.P-12 in a fit state of mind, which was certified by Dr. Wilson Kujur (PW-6), by which she has clearly implicated the appellant herein and after hearing the learned counsel for the parties 6 and after going through the record particularly Ex.P-12, we are of the considered opinion that the dying declaration (Ex.P-12) is true and voluntary and it inspires confidence that it is the appellant who had poured kerosene oil on the body of deceased and set her ablaze, by which she died due to burn injuries, which is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 11. The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of IPC vis-a-vis culpable homicide not amounting to murder and their conviction can be converted to Section 304 Part-I or Part-II of IPC, as contended by learned counsel for the appellant, for which he has relied on the decision of the Supreme Court in the matter of Kalu Ram (supra), wherein in paragraphs 7 and 8 it has been held as under :- “7. But then, what is the nature of the offence proved against him. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene oil on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when 7 flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder. 8. We, therefore, alter the conviction from Section 302, I.P.C. to Section 304, Part II of the I.P.C. Both sides conceded that appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly.” 12. Similarly, in the matter of Dattatraya v. State of Maharashtra2, the principles of law laid down in Kalu Ram (supra) have been followed with approval and in paras 23 & 24, it has been held as under: - 2 2024 SCC OnLine SC 223 8 “23. In the above case, the appellant who in an inebriated state was pressurizing his wife to part with some ornaments so that he could buy some more liquor. On her refusal he poured kerosene on her and set her on fire by lighting a matchstick. But then he also tried to pour water on her to save her. This Court was thus of the opinion that : “7….Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. 8. We therefore alter the conviction from Section 302 IPC to Section 304 Part II IPC…” 24. The facts of the present case, as we have already discussed above, by and large reflect the same situation, nature of crime as well as the act of the accused and the consequences of his action. We are inclined to accept the arguments raised by the learned senior counsel for the appellant, Mr. Sudhanshu S. Choudhari that under the present circumstances it would indeed be a case of culpable homicide not amounting to murder as given in Section 304 Part II in as much as, though the accused had knowledge of 9 the consequences of the act he was committing, yet there was no intention to cause death.” 13. Bearing in mind the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that, on account of dispute arose between the husband & wife (appellant & deceased) for consuming liquor, the appellant, out of sudden anger, in a heat of passion, had poured kerosene oil on the body of the deceased and set her ablaze, by which, she suffered severe burn injuries and died during course of treatment on 13.07.2018. However, as per the statement of Shekh Jahangir (PW-2), the appellant tried to extinguish the fire by pouring water and as per the statement of Mohd. Arif Jilani (PW-3), the appellant tried to save the life of his wife and he also suffered burn injuries. Thus, in view of dicta of the Supreme Court in the matter of Kalu Ram (supra) followed in Dattatraya (supra) and looking to the injuries sustained by the deceased, though the appellant had no intention, but he must have had knowledge that such injuries inflicted by him on the body of the deceased would likely to cause her death, therefore, the act of the appellant herein would fall within the purview of Section 304 Part-II of IPC and, consequently, the conviction of the appellant for 10 offence under Section 302 of IPC can be altered/converted to Section 304 Part-II of IPC. 14. In view of the aforesaid discussion, the conviction of appellant for offence punishable under Section 302 of I.P.C. is altered to Section 304 Part-II of I.P.C. and the appellant is hereby sentenced to 8 years rigorous imprisonment. 15. Accordingly, the criminal appeal is party allowed to the extent indicated herein-above. 16. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok