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 slowmatch (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 (PW11) 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.
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 slowmatch (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 (PW11) 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.
