1    

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 deceased. On

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.