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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:

Deceased,  Smt.  Lalita  Bai  was  wife  of  Vijay

Singh.  The  appellant  is  sister-in-law  of  the

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deceased. On 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

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under  Section  307  read  with  Section  34  IPC  was

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 Kalabai 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.

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4.  This  Court  vide  order  dated  02.07.2015  issued

limited notice which is to the following effect:

“Delay condoned.  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

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was so feeble and so restless that she was not in a

position to give the correct version of the incident.

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

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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 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

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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 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

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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 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

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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 been adverted to by the trial court.  

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:

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“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 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

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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 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.