1 2025:CGHC:20388-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1719 of 2018 {Arising out of judgment dated 25.09.2018 passed in Sessions Trial No.38/2012 by the learned Additional Sessions Judge, Ramanujganj, District Balrampur Ramanujganj} Manhgu Khairwar, S/o. Late Shri Chaitu Khairwar, Aged About 45 Years, R/o. Village- Kandri, Kanwarpara, Thana- Chado, District- Balrampur, Ramanujganj, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station- Chando, District- Balrampur Ramanujganj, Chhattisgarh. ... Respondent For Appellant : Mr. Samir Singh, Advocate For Respondent : Mr. Ashutosh Shukla, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (05.05.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.05.06 16:00:56 +0530 2 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 of conviction and order of sentence dated 25.09.2018, passed by the learned Additional Sessions Judge, Ramanujganj, District Balrampur Ramanujganj in Sessions Trial No.38/2012, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 302 of IPC : Imprisonment for life and fine of Rs.200/-, in default of payment of fine, 2 months additional rigorous imprisonment. U/s. 201 of IPC : Rigorous imprisonment for 3 years and fine of Rs.200/-, in default of payment of fine, 2 months’ additional rigorous imprisonment. Both the sentence to run concurrently. 2. Case of the prosecution, in brief, is that on 27.10.2011 at 9:00 A.M. at village Kandari Kawarpara, Police Station Chando, District Balrampur-Ramanujganj, the appellant herein caused burn injury to his wife Tilari Bai (now deceased) on account 3 of which she died after 13 days on 09.11.2011 and in order to screen himself from the offence, he showed her death to be accidental. The matter was reported to the police, pursuant to which, Merg Intimation was registered vide Ex.P-8, FIR was registered vide Ex.P-10, Inquest was conducted vide Ex.P-5 and dead body of deceased Tilri Bai was subjected to post- mortem, which was conducted by Dr. R.S.Markam (PW-9), who proved the post-mortem report vide Ex.P-7, according to which, cause of death was stated to be shock due to septicemia and death was homicidal in nature. After due investigation, the appellant was charge-sheeted for the aforesaid offences 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 offences, prosecution examined as many as 11 witnesses and exhibited 15 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 & 201 of I.P.C. and sentenced him as mentioned in the opening paragraph of this judgment against which the present appeal has been preferred. 5. Mr. Samir Singh, learned counsel for the appellant, would submit that the appellant is said to have caused burn injuy to his wife whereas she died on 09.11.2011 after 13 days. As such, taking into the prosecution case as it is, at the most, the offence under Section 304 Part-II of I.P.C. is made out against the appellant as there was no intention on the part of the appellant to cause death. Therefore, the conviction of appellant for the offence under Section 302 of I.P.C. be converted to Section 304 Part-II of I.P.C. and he be sentenced for the period already undergone, as he was in jail from 22.11.2011 to 24.06.2022 i.e. more than 10 years. 6. Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. He further submit that it is not a 5 case where the conviction of appellant for 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. 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 Tilari Bai was homicidal in nature has been answered by the trial Court in affirmative relying upon the post-mortem report (Ex.P-7) proved by Dr. R.S.Markam (PW-9), according to which, cause of death was stated to be shock due to septicemia and death was homicidal in nature, which in our considered opinion 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. 9. Now, the next question is, whether the appellant has caused the death of his wife deceased Tilari Bai ? 10. Considering the finding recorded by the trial Court that it is the appellant who has caused the burn injury to the deceased by which she died after 13 days from the date of incident, we 6 are of the considered opinion that the finding recorded by the trial Court that it is the appellant who had caused the death of deceased 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. 11. Now, the question would be whether the case of the appellant would fall under Exception 4 to Section 300 of I.P.C. and, as such, his conviction under Section 302 of I.P.C. can be altered to Section 304 Part-II of I.P.C., as contended by learned counsel for the appellant ? 12. The appellant had caused burn injury to his wife Tilari Bai on 27.10.2011 and she died on 09.11.2011 as per the Merg Intimation (Ex.P-8). However, in this regard, the decision rendered by the Supreme Court in the matter of Sanjay v. State of Uttar Pradesh1 is to be noticed herein, in which, Their Lordships of the Supreme Court have also relied upon the decision rendered in Ganga Dass v. State of Haryana2 in which the deceased died after 18 days from the date of offence then Their Lordships have converted the offence under Section 302 of I.P.C. to Section 304 Part-II of I.P.C. and sentenced the 1 (2016) 3 SCC 62 2 1994 Supp (1) SCC 534 7 appellant therein to 6 years rigorous imprisonment, which is reproduced herein below. “15. In Ganga Dass v. State of Haryana, 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:- “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 05.12.1988 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 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 8 confirmed. Accordingly the appeal is partly allowed.” 13. Reverting to the facts of the case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that there was no premeditation and intention on the part of the appellant to cause death as the injury was caused on the non-vital part of the body and after 13 days the deceased had died. As such, though there was no premeditation and intention on the part of appellant to cause death, but the appellant must have had knowledge that the injury caused by him is likely to cause death and, as such, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted to Section 304 Part-II of IPC. 14. In view of the above, 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 sentenced to the period already undergone as he was in jail from 22.11.2011 to 24.06.2022 i.e. for more than 10 years. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 9 15. In the result, this criminal appeal is partly allowed to the extent indicated herein-above. 16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok