KALABAI versus STATE OF MADHYA PRADESH on 30 April 2019

KALABAI

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 763 of 2019)

APRIL 30, 2019

[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]

Penal Code, 1860: ss. 304 Part II and 302 – Murder –Dying declaration – On facts, quarrel between the victim and herhusband and during the quarrel, appellant-sister-in-law who wasliving on the lower floor of the house arrived at the scene – Shethrew the burning kerosene stove on the victim – Victim sufferedburn injuries, resulting in her death – Conviction and sentence ofthe appellant u/s. 302 by the courts below – On appeal, held: Dyingdeclaration recorded within few hours of admission of the victim inthe hospital was relied by the courts below, wherein the victim statedas to how she was burned – There is no evidence to come toconclusion that the appellant had any intention to kill the deceased– However, there cannot be any issue that when a person throws aburning stove on a person there is knowledge that the act is likelyto cause death – Trial court rightly held that accused threw burningstove on the deceased but whether the act was done with intentionto cause death had not been adverted to by the trial court – In thefacts and circumstances of the case, the appellant can be said tohave committed offence u/s. 304 Part II – Conviction of the appellantis altered from s. 302 to s. 304 Part II and sentenced of lifeimprisonment is reduced to rigorous imprisonment for five years.

Hari Shanker v. State of Rajasthan(1998) 8 SCC 355– relied on.

Case Law Reference

(1998) 8 SCC 355 relied onPara 8

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.763 of 2019.

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AFrom the Judgment and Order dated 25.03.2014 of the High Courtof Madhya Pradesh, Bench at Indore in CRA No.453 of 2002.

Pawan Reley, Ms.Anuradha Mutakar, Advs. for the Appellant.

Mrs. Swarupama Chaturvedi, Adv. for the Respondent.

BThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1.This appeal has been filed by theappellant against the judgment and order of the High Court of MadhyaPradesh, Bench at Indore dated 25.03.2014 by which Criminal Appealfiled by the appellant questioning her conviction and sentence underSection 302 IPC has been dismissed.C

2. The prosecution case in brief is:

Deceased, Smt. Lalita Bai was wife of Vijay Singh. The appellantis sister-in-law of the deceased. On 20.08.1999 in the late evening aquarrel was going on between Lalita Bai and her husband, Vijay Singh.DThe appellant who lives on the ground floor came on the first floor whereLalita Bai was boiling milk on battiwala stove. Appellant threw the burningstove on the deceased due to which clothes of deceased caught fire andserious burn injuries were caused. Husband of the deceased got heradmitted in the M.Y. Hospital, Indore. On receiving information fromthe Hospital, a Police Inspector reached the Hospital. The informationEwas mentioned in the Rojnamcha and Head Constable, Udai Pal Singhwas sent in the Hospital where Lalita Bai was being admitted with burninjury with 96% burn. Report was asked for from the Incharge-MedicalOfficer 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.Finformed the Executive Magistrate-cum-Naib Tehsildar for recordingher statement. Executive Magistrate-cum-Naib Tehsildar reachedHospital and recorded the statement of the patient, Lalita Bai. On thebasis of the report case under Section 307 read with Section 34 IPCwas registered on 20.08.1999. Lalita Bai, during the course of treatmentdied on 23.08.1999 and case has been registered under Section 302GIPC. Chargesheet was submitted both against Kalabai and Vijay Singhand the trial proceeded against both of them.

3. The prosecution in support of its case has produced 24witnesses. The trial court after considering the evidence on record and H

relying on the dying declaration of the deceased recorded on 21.08.1999held the appellant guilty of murder. Appellant was convicted with lifeimprisonment and fine of Rs.2,000/-. Vijay Singh, husband of deceasedwas acquitted from charge under Section 302 read with Section 34 IPC.Appellant filed a criminal appeal in the High Court challenging herconviction and sentence. The High Court by the impugned judgment hasdismissed the criminal appeal giving rise to this appeal.

4. This Court vide order dated 02.07.2015 issued limited noticewhich 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 learnedcounsel for the State of Madhya Pradesh, Shri Prashant Kumar.

6. Learned counsel for the appellant in support of his submissioncontends that the appellant ought not to have been convicted under Section302 IPC. He submits that there was no motive for the appellant to killthe deceased. Appellant had neither intention nor motive to cause thedeath of the deceased.

7. Learned counsel has also submitted that deceased was not in afit physical condition to record her statement, since the MLC of deceasedclearly mentioned that the patient was restless, A febrile, Pulse notpalpable. It is submitted that the patient was so feeble and so restlessthat she was not in a position to give the correct version of the incident.

8. Learned counsel for the appellant placed reliance on thejudgment 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 tothe facts of the above case and in the above case this Court had alteredthe conviction from under Section 302 IPC to Section 304 Part II IPCand reduced the sentence of imprisonment for life to rigorousimprisonment for five years. This case also deserves the same treatment.

9. Learned counsel for the State refuting the submission of theappellant submits that the deceased physical conditionwas certified bythe Doctor who proved her to be in a fit state of mind to record her A

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Astatement which has been proved by the prosecution witnesses. It issubmitted that the burn injury on the neck and head was only 8% whichwas noticed by the High Court; The dying declaration had rightly beenrelied by the Courts below and the appellant cannot be allowed to raisesubmission that the dying declaration should not be relied. The limitednotice having been issued on 02.07.2015, the appellant may not beBpermitted to challenge the conviction recorded against the appellant.The appellant can be permitted only to raise submissions on the natureof offence as is the limited notice in the present case.

10. We have considered the submissions of the parties and perusedthe records.C

11. Limited notice having been issued only to the question of natureof offence, we confine our consideration of the case only to the abovequestion.

12. The dying declaration which was recorded within few hoursDof admission of deceased in the Hospital has been relied by the Courtsbelow. The Magistrate who recorded the dying declaration, namelyVijendra Singh Panwar, PW.15 has appeared in the witness box andproved her dying declaration. The High Court in its judgment has extractedthe entire statement made by the deceased which is treated as dyingdeclaration. On the question put to the deceased “How could you burn”Edetailed answer was given by the deceased. It is useful to extract theabove question and answer given by the deceased which is to the followingeffect:

“Q.: How could you burn ?

“Q.: How could you burn ?

FAns.: A quarrel was going on between myself and my husband,during the said quarrel my husband’s sister namely Kala who isliving in the lower floor of my house, came at my house and saidthat I will see her, and while I was boiling the milk, took the saidslow-match (batti wala stove) kerosene stove and put on me, dueto which the kerosene oil was spared upon my body and my clothesGcaught the fire from its burnt wicks.”

13. It is relevant to notice that husband of the deceased, VijaySingh 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 whichwas led before the Courts below, there are no evidence of any strainedrelations between the appellant and deceased. The entire incident whichhappened has been elaborately described by the deceased herself in herdying declaration. There is no evidence to come to conclusion that theappellant had any intention to kill the deceased. As per statement ofdeceased herself that a quarrel was going on between herself and herhusband, Vijay Singh and during that quarrel, the appellant who is livingin the lower floor of house arrived at the scene. There cannot be anyissue that when a person throws a burning stove on a person there isknowledge that the act is likely to cause death.

14. Before the trial court the argument was made on behalf of theappellant that at best, she be convicted under Section 304 Part II IPCwhich was not acceded to. In paragraph 60 the trial court while dealingwith the said submission made the following observations:

“60.As far as the question of arguments placed by the learnedadvocate on behalf of the accused Kala Bai against the offenceunder Section 304 Part II IPC in place of Section 302 IPC is thatit has been shown that the accused Kala Bai has burnt Lalita Baiby 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 shownas fatal injuries and the examination of whole body of Lalita Baiwas conducted after 3 days of her death. The Dr. Ravindra SinghChaudhary (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 threwburning stove on the deceased but whether the act was done with intentionto cause death had not been adverted to by the trial court.

16. Learned counsel for the appellant has placed reliance on thejudgment of this Court in Hari Shankar (supra). In the above case theappellant had also picked up a burning kerosene wick-stove and threw iton the deceased. Kerosene from stove spilled over the clothes theycaught the fire. The deceased in the said case also died as a result of theburns received by him. This Court held that since the appellant had thrown A

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Aa burning stove on the deceased, he would have known that his act waslikely to cause burns resulting in death. It is useful to extract paragraphs2,3 and 4 of the judgment which is to the following effect:

“2. Only question that we have to consider in this appeal is whatoffence can be said to have been committed by the appellant onthe basis of the facts found by the High Court. It has been heldthat while the appellant, deceased Bheem Singh and one ShahMegan were taking tea in the tea-club of the Air Force, 32 Wing(MT Section), an exchange of words took place between theappellant and the deceased on account of the demand made bythe appellant for returning Rs 50,000 which he had advanced tothe deceased. The appellant became angry and picked up theburning kerosene wick-stove and threw it on the deceased.Kerosene from the stove spilled over the clothes of the deceasedand as the burning wicks came in contact with his clothes theycaught fire. The deceased ultimately died as a result of the burnsreceived by him.

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3. What was submitted by the learned counsel for the appellantwas that the appellant had no enmity with the deceased. He hadno intention to kill the deceased as by killing him he could not haverecovered the amount of Rs 50,000 which he had advanced to thedeceased. He further submitted that the quarrel between the twotook place all of a sudden and in the heat of the moment theappellant had picked the stove and had thrown it towards thedeceased. He, therefore, submitted that it was merely a rash andnegligent act on the part of the appellant. We cannot agree withthe submission of the learned counsel. Since the appellanthad thrown a burning stove on the deceased, he would have knownthat his act was likely to cause burns resulting in death. In view ofthe facts and circumstances of the case, he can be said to havecommitted an offence under Section 304 Part II IPC.

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

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KALABAI v. STATE OF MADHYA PRADESH

17. Following the above decision, we are of the view that thepresent is also a case where in the facts and circumstances of the case,the appellant can be said to have committed offence under Section 304Part II IPC.

18. In the result, we partly allow the appeal and alter the convictionof the appellant from under Section 302 IPC to Section 304 Part II IPCand reduce the sentence of imprisonment for life to rigorous imprisonmentfor five years.

Nidhi Jain

Appeal partly allowed.

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