Kalabai vs The State Of Madhya Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.763 of 2019 (arising out of SLP (Crl.) No.9312/2014)

KALABAI ...APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

This appeal has been filed by the appellant against

the judgment and order of the High Court of Madhya

Pradesh, Bench at Indore dated 25.03.2014 by which

Criminal Appeal filed by the appellant questioning her

conviction and sentence under Section 302 IPC has been

dismissed.

2. The prosecution case in brief is:

Signature Not Verified Deceased, Smt. Lalita Bai was wife of Vijay Singh. Digitally signed by SANJAY KUMAR Date: 2019.04.30

The appellant is sister-in-law of the deceased. On 16:49:07 IST Reason: 2

20.08.1999 in the late evening a quarrel was going on

between Lalita Bai and her husband, Vijay Singh. The

appellant who lives on the ground floor came on the

first floor where Lalita Bai was boiling milk on

battiwala stove. Appellant threw the burning stove on

the deceased due to which clothes of deceased caught

fire and serious burn injuries were caused. Husband of

the deceased got her admitted in the M.Y. Hospital,

Indore. On receiving information from the Hospital, a

Police Inspector reached the Hospital. The information

was mentioned in the Rojnamcha and Head Constable, Udai

Pal Singh was sent in the Hospital where Lalita Bai was

being admitted with burn injury with 96% burn. Report

was asked for from the Incharge-Medical Officer as to

whether patient was in a position to give the

statement, after receiving certificate that the patient

was fit to give statement, I.O. informed the Executive

Magistrate-cum-Naib Tehsildar for recording her

statement. Executive Magistrate-cum-Naib Tehsildar

reached Hospital and recorded the statement of the

patient, Lalita Bai. On the basis of the report case

under Section 307 read with Section 34 IPC was 3

registered on 20.08.1999. Lalita Bai, during the course

of treatment died on 23.08.1999 and case has been

registered under Section 302 IPC. Chargesheet was

submitted both against Lalita Bai and Vijay Singh and

the trial proceeded against both of them.

3. The prosecution in support of its case has produced

24 witnesses. The trial court after considering the

evidence on record and relying on the dying declaration

of the deceased recorded on 21.08.1999 held the

appellant guilty of murder. Appellant was convicted

with life imprisonment and fine of Rs.2,000/-. Vijay

Singh, husband of deceased was acquitted from charge

under Section 302 read with Section 34 IPC. Appellant

filed a criminal appeal in the High Court challenging

her conviction and sentence. The High Court by the

impugned judgment has dismissed the criminal appeal

giving rise to this appeal.

4. This Court vide order dated 02.07.2015 issued

limited notice which is to the following effect:

“Delay condoned.

4 Issue notice limited to the question of nature of offence.

Prayer for suspension of sentence is rejected.”

5. We have heard learned counsel for the appellant

and learned counsel for the State of Madhya Pradesh,

Shri Prashant Kumar.

6. Learned counsel for the appellant in support of

his submission contends that the appellant ought not

to have been convicted under Section 302 IPC. He

submits that there was no motive for the appellant to

kill the deceased. Appellant had neither intention nor

motive to cause the death of the deceased.

7. Learned counsel has also submitted that deceased

was not in a fit physical condition to record her

statement, since the MLC of deceased clearly mentioned

that the patient was restless, Afebrile, Pulse not

palpable. It is submitted that the patient was so

feeble and so restless then she was not in a position

to give the correct version of the incident. 5

8. Learned counsel for the appellant placed reliance

on the judgment of this Court in Hari Shanker vs. State

of Rajasthan, (1998) 8 SCC 355, and submits that the

facts of the present case are similar to the facts of

the above case and in the above case this Court had

altered the conviction from under Section 302 IPC to

Section 304 Part II IPC and reduced the sentence of

imprisonment for life to rigorous imprisonment for five

years. This case also deserves the same treatment.

9. Learned counsel for the State refuting the

submission of the appellant submits that the deceased

physical condition was certified by the Doctor who

proved her to be in a fit state of mind to record her

statement which has been proved by the prosecution

witnesses. It is submitted that the burn injury on the

neck and head was only 8% which was noticed by the High

Court; The dying declaration had rightly been relied

by the Courts below and the appellant cannot be allowed

to raise submission that the dying declaration should

not be relied. The limited notice having been issued

on 02.07.2015, the appellant may not be permitted to 6

challenge the conviction recorded against the

appellant. The appellant can be permitted only to raise

submissions on the nature of offence as is the limited

notice in the present case.

10. We have considered the submissions of the parties

and perused the records.

11. Limited notice having been issued only to the

question of nature of offence, we confine our

consideration of the case only to the above question.

12. The dying declaration which was recorded within

few hours of admission of deceased in the Hospital has

been relied by the Courts below. The Magistrate who

recorded the dying declaration, namely Vijendra Singh

Panwar, PW.15 has appeared in the witness box and

proved her dying declaration. The High Court in its

judgment has extracted the entire statement made by the

deceased which is treated as dying declaration. On the

question put to the deceased “How could you burn”

detailed answer was given by the deceased. It is useful 7

to extract the above question and answer given by the

deceased which is to the following effect:

“Q.: How could you burn ?

Ans.: A quarrel was going on between myself and my husband, during the said quarrel my husband’s sister namely Kala who is living in the lower floor of my house, came at my house and said that I will see her, and while I was boiling the milk, took the said slow- match (batti wala stove) kerosene stove and put on me, due to which the kerosene oil was spared upon my body and my clothes caught the fire from its burnt wicks.”

13. It is relevant to notice that husband of the

deceased, Vijay Singh was also charged under Section

302 read with Section 34 IPC and 114 IPC who has been

acquitted by the trial court. In the evidence which was

led before the Courts below, there are no evidence of

any strained relations between the appellant and

deceased. The entire incident which happened has been

elaborately described by the deceased herself in her

dying declaration. There is no evidence to come to

conclusion that the appellant had any intention to kill

the deceased. As per statement of deceased herself that

a quarrel was going on between herself and her husband,

Vijay Singh and during that quarrel, the appellant who

is living in the lower floor of house arrived at the 8

scene. There cannot be any issue that when a person

throws a burning stove on a person there is knowledge

that the act is likely to cause death.

14. Before the trial court the argument was made on

behalf of the appellant that at best, she be convicted

under Section 304 Part II IPC which was not acceded to.

In paragraph 60 the trial court while dealing with the

said submission made the following observations:

“60. As far as the question of arguments placed by the learned advocate on behalf of the accused Kala Bai against the offence under Section 304 Part II IPC in place of Section 302 IPC is that it has been shown that the accused Kala Bai has burnt Lalita Bai by putting burning stove on her head and burnt her 96 per cent. Dr. A.K. Dixit (PW-

11) has stated in his statement that the wound (Burn) found during his inspection, the wounds have been shown as fatal injuries and the examination of whole body of Lalita Bai was conducted after 3 days of her death. The Dr. Ravindra Singh Chaudhary (PW-17) has mentioned the reason of death burning, other serious problems, blockading of breathing process etc.”

15. The trial court has rightly held that accused Kala

Bai threw burning stove on the deceased but whether the

act was done with intention to cause death had not

adverted to by the trial court.

9

16. Learned counsel for the appellant has placed

reliance on the judgment of this Court in Hari Shankar

(supra). In the above case the appellant had also

picked up a burning kerosene wick-stove and threw it

on the deceased. Kerosene from stove spilled over the

clothes they caught the fire. The deceased in the said

case also died as a result of the burns received by

him. This Court held that since the appellant had

thrown a burning stove on the deceased, he would have

known that his act was likely to cause burns resulting

in death. It is useful to extract paragraphs 2,3 and 4

of the judgment which is to the following effect:

“2. Only question that we have to consider in this appeal is what offence can be said to have been committed by the appellant on the basis of the facts found by the High Court. It has been held that while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the tea-club of the Air Force, 32 Wing (MT Section), an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs 50,000 which he had advanced to the deceased. The appellant became angry and picked up the burning kerosene wick-stove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in contact with his 10

clothes they caught fire. The deceased ultimately died as a result of the burns received by him.

3. What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased.

He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In view of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.

4. We, therefore, allow this appeal partly, alter the conviction of the appellant from under Section 302 to Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years.”

17. Following the above decision, we are of the view

that the present is also a case where in the facts and

circumstances of the case, the appellant can be said 11

to have committed offence under Section 304 Part II

IPC.

18. In the result, we partly allow the appeal and alter

the conviction of the appellant from under Section 302

IPC to Section 304 Part II IPC and reduce the sentence

of imprisonment for life to rigorous imprisonment for

five years.

......................J. ( ASHOK BHUSHAN )

......................J. ( K.M. JOSEPH ) New Delhi, April 30,2019.