1 2025:CGHC:3413-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1952 of 2019 (Arising out of judgment of conviction and order of sentence dated 22.11.2019 passed by the learned Sessions Judge, Ambikapur, District Surguja (C.G.), in Session Case No.31/2018) Kunwar Sai S/o Shridhan Manjhi Aged About 42 Years Caste Manjhi, Occupation Agriculturist / Labour, R/o Village Jamdhodhi, Bangarkalo, Police Station Sitapur, District - Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station - Sitapur, District - Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Respondent For Appellant : Mr. Rajeev Kumar Dubey, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (20.01.2025) Sanjay K. Agrawal, J. 1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.23 17:40:53 +0530 2 validity and correctness of the judgment of conviction and order of sentence dated 22.11.2019 passed by the learned Sessions Judge, Ambikapur, District Surguja (C.G.), in Session Case No.31/2018 by which the appellant has been convicted for offence as under:- Conviction Sentence & Fine U/s 302 of the IPC RI for life and to pay fine of ₹500/-; in default of payment of fine, additional rigorous imprisonment for 6 months 2. The prosecution case in a nutshell is that on 17.10.2017 at about 1:00 PM, at village Bangarkalo under the jurisdiction of Sitapur Police Station, the appellant poured kerosene oil on her wife Smt. Mankunwar (now deceased) and set her on fire, by which she suffered 80% burn injuries and she was escorted to the hospital at Sitapur thereafter she was admitted at District Hospital Ambikapur, and after that the Appellant got discharged the deceased from District Hospital Ambikapur and took her to his village Jamdodhi where she died on 07.11.2017 and, thereby, the appellant is said to have committed the aforesaid offences. 3. It is further case of the prosecution that Suraj (PW-6), father of the deceased, reported the merg intimation vide Ex.P/5. FIR was registered vide Exs.P/12 & P-12A. Spot map was prepared vide Ex.P/1. Inquest proceedings (Ex.P/11) were conducted and the dead body of the 3 deceased was sent for postmortem. As per postmortem report (Ex.P/4) proved by Dr. Amosh Kindo (PW-3), cause of death of the deceased is due to wound septicemia shock as a result of 80% burn injuries and it complications. The accused-appellant was arrested vide Ex.P/13 and his memorandum statement was recorded vide Ex.P/06. Pursuant to the memorandum statement of the appellant, one can containing smell of kerosene oil was seized vide Ex.P/07. Further, some burnt pieces of clothes were also seized vide Ex.P/08. Thereafter, the seized articles were sent for chemical examination and, as per FSL report (Ex.P/17) it has been opined that kerosene oil is present in the can seized from the appellant, whereas particles of kerosene oil are present in the burnt pieces of clothes seized vide Ex.P/08. Thereafter statements of witnesses were recorded and investigation was completed, the police filed charge-sheet against the appellant. 4. The prosecution in order to prove its case examined as many as 09 witnesses and exhibited 19 documents, whereas the appellant-accused in support of his defence neither examined any witness nor exhibited any 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 4 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. 6. Mr. Rajeev Kumar Dubey, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He also submits that if the case of the prosecution is taken, as it is, at most conviction for offence under Section 304 Part-II would be made out as in the postmortem report (Ex.P/04) proved by Dr. Amosh Kindo (PW-03) and Dr. Amosh Kindo (PW-03) in his statement nowhere says that the injuries caused over the body of the deceased were sufficient in ordinary course of nature to cause her death. He further submits that more particularly the date of offence was 17.10.2017 and she died on 07.11.2017 after 21 days, after getting discharge from the hospital and the said fact was proved by the statement of Surendra (PW-1) and Suraj (PW-06). Therefore, in view of the decision of the Supreme Court in Sanjay v. State of U.P.1 the conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to offence under Section 340 Part-II of the IPC. Thus, the present appeal deserves to be allowed in full or in part. 1 (2016) 3 SCC 62 5 7. On the other hand, Mr. Amit Buxy, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the offence in question. He also submits that injuries caused by the appellant over the body of the deceased in ordinary course of nature are sufficient to cause death of the deceased and, therefore, it is not the case of alteration of offence from under Section 302 of IPC to Section 304 Part-II of the IPC where the conviction of the appellant can be modified for lesser offence and, as such, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/04) proved by Dr. Amosh Kindo (PW-03), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm 6 the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. The next question for consideration would be whether the appellant has caused injuries over the body of the deceased, which the learned trial Court has recorded in affirmative by relying upon the oral dying declaration said to have given by the deceased to Suraj (PW-06) and Surendra (PW-01). A bare perusal of the statements of both the witnesses would show that after the incident, when they got the information of the incident, Suraj (PW-06), father of the deceased, firstly visited to the hospital and saw that his daughter has suffered burn injuries and she was not able to talk, which he informed to Surendra (PW- 01). Suraj (PW-06) has also stated in his statement that upon query from the deceased, she has informed him that the appellant herein has poured kerosene oil over her body and set her ablaze, due to which, she has suffered burn injuries. The same statement has also been reiterated by Surendra (PW-01). As such, on the basis of aforesaid testimonies of the witnesses qua Suraj (PW-06) and Surendra (PW-01), it can safely been concluded that the deceased has given oral dying declaration to Surendra (PW- 01) and Suraj (PW-06) that on the date and time of the offence the appellant, who was under the influence of 7 liquor, has firstly poured kerosene oil over the body of the deceased and set her ablaze, due to which, she suffered burn injuries and, further, it is the appellant only who escorted the deceased to the hospital. Further, pursuant to the memorandum statement of the appellant, one can containing smell of kerosene oil was seized vide Ex.P/07, in which, as per FSL report (Ex.P/17) it has been opined that kerosene oil is present. As such, on the basis of aforesaid evidence available on record, the learned trial Court has rightly held that it is the appellant-accused who have caused injuries over the body of the deceased, due to which deceased succumbed to the injuries and died. Accordingly, we hereby affirm the said finding that it is the appellant-accused who has caused injuries over the body of the deceased, due to which she died, as the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. 11.Now, the question that would arise for consider is whether the conviction of the appellant for offence under Section 302 of IPC is justified or whether his conviction can be altered to Section 304 Part-II of IPC, as contended by learned counsel for the appellant? 12. Admittedly, the date of incident is 17.10.2017 and as per evidence available on record deceased died on 07.11.2017. As per prosecution case itself, the deceased was first 8 escorted to the hospital at Sitapur thereafter she was admitted at District Hospital Ambikapur, and after that the Appellant got discharged the deceased from District Hospital Ambikapur and took her to his village Jamdodhi where she died on 07.11.2017. 13. At this stage, it would be appropriate to notice the decision of the Supreme Court in Sanjay (supra), wherein the death occurred after 62 days of the incident due to occurrence of septicemia and it was indirectly due to the injuries sustained by the deceased. The Supreme Court by relying upon its earlier decision in Ganga Dass @ Godha v. State of Haryana 2 held that the death not being direct result of the injuries sustained by the deceased, an inference cannot be drawn that the intended injury was sufficient in the ordinary course of the nature to cause death so as to attract Section 300 Thirdly of IPC and eventually, the conviction under Section 302 of IPC was converted into Section 304 Part I of IPC and the accused was awarded sentence of R.I. for 10 years. It was thus observed in para 14 to 16 as under:- “14. However, in the instant case, it is apparent that the death occurred sixty-two days after the occurrence due to septicemia and it was indirectly due to the injuries sustained by the deceased. The proximate cause of death on 13-10-1998 was septicemia which of course was due to the injuries 2 1994 Supp (1) SCC 534 9 caused in the incident on 11-8-1998. As noted earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop Singh was discharged from the hospital in good condition and he survived for sixty-two days. In such facts and circumstances, the prosecution should have elicited from Dr Laxman Das (PW 9) that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. No such opinion was elicited either from Dr Laxman Das (PW 9) or from Dr Gulecha (PW 3). Having regard to the fact that Roop Singh survived for sixty-two days and that his condition was stable when he was discharged from the hospital, the Court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause Thirdly of Section 300 IPC. 15. In Ganga Dass v. State of Haryana [Ganga Dass v. State of Haryana, 1994 Supp (1) SCC 534 : 1994 SCC (Cri) 592] , the accused gave iron pipe single blow on the head of the deceased and the deceased died eighteen days after the occurrence due to septicaemia and other complications, the conviction of the appellant under Section 302 IPC was altered by this Court to Section 304 Part II IPC. This Court observed as under : (SCC pp. 535- 36, para 6) “6. We find considerable force in this submission. As stated above the occurrence took place on 18-11-1988 and the deceased died 18 days later on 5-12-1988 due to septicaemia and other complications. The doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure, etc. Under these circumstances, we set aside the conviction of the appellant under 10 Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years' RI. The sentence of fine of Rs 2000 along with default clause is confirmed. Accordingly the appeal is partly allowed.” 16. In the instant case, the appellants used firearms, countrymade pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, the second appellant intended of causing such bodily injury and therefore, conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The learned counsel for the appellant Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, appellant Sanjay fired on Sheela (PW 2) on her neck, stomach and leg. The learned counsel for the appellant Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh under Section 302 IPC read with Section 34 IPC. There is no force in the above contention. The common intention of the appellants is to be gathered from the manner in which the crime has been committed. Both the appellants came together armed with firearms in the wee hours of 11-8- 1998. Both the appellants indiscriminately fired from their countrymade pistols at Roop Singh, deceased and Sheela (PW 2) respectively. The conduct of the appellants and the manner in which the crime has been committed is sufficient to attract Section 34 IPC as both the appellants acted in furtherance of common intention. The conviction of the appellant Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction under Section 304 Part I IPC. 14. Coming to the facts of the present case in the light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments, in the 11 present case also the deceased died after 21 days from the date of incident, as the date of incident is 17.10.2017 and the deceased died on 07.11.2017 that too on account of septicemia and further considering the situs and nature of injury and in absence of evidence that the injuries which were caused by the appellant over the body of the deceased were sufficient in ordinary course of nature to cause death, we are of the considered view that it is fit case where the conviction of the appellant under Section 302 of the IPC should be converted / altered under Section 304 Part-II of the IPC. 15. Accordingly, the conviction of the appellant for offence punishable under Section 302 of the IPC as well as the sentence of life imprisonment awarded to him by the learned trial Court is hereby set aside and he is convicted for offence punishable under Section 304 Part-II of IPC and he is sentenced to undergo rigorous imprisonment for 10 years. However, the fine amount with stipulations imposed by the learned trial Court is hereby maintained. 16. This criminal appeal is partly allowed to the extent indicated herein-above. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned 12 Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham