Rajubai vs The State Of Madhya Pradesh
2021 Latest Caselaw 8936 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
           [D.B.: Hon'ble Shri Justice Vivek Rusia
       Hon'ble Shri Justice Satyendra Kumar Singh, JJ.]

                     Criminal Appeal No.1835/2014

Appellant :          Rajubai W/o Ganesh Prasad,
                     aged about 64 years,
                     Occupation-Nil, R/o 637, Kalani Nagar,
                     P.S. Aerodrom, Indore
      Versus

Respondent :         State of Madhya Pradesh,
                     through Police Station Malharganj,
                      Indore

Ms Purnima Kanungo, learned counsel for the appellant.
Shri Ranjeet Sen, learned Government Advocate                 for   the
respondent/State.

                           JUDGMENT

(Heard and reserved on 08.12.2021) (Delivered on 17.12.2021) PER VIVEK RUSIA, J: -

This is an appeal preferred by the appellant against the judgment dated 22.07.2011, passed by the learned 7th Additional Sessions Judge Indore, District Indore in Sessions Case No.939/2010, thereby she has been convicted for an offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC") and sentencing to suffer imprisonment for life and fine of R.2,000/- with default stipulation.

(2) It is admitted fact that the Guddibai (hereinafter referred to as "Deceased") was the daughter-in-law of the Rajubai (hereinafter referred to as " appellant/accused'). Another daughter-in-law Jyoti W/o Narendra Dubey was co-accused alongwith the appellant in this trial, who has been acquitted by the trial court for the offence punishable under Section 302, 498-A of I.P.C. The deceased was married to the son of the appellant. She was admitted to the hospital on 20.08.2010 in burn condition. Her dying declaration was recorded. The appellant and

Jyoti were arrested and tried for the offence punishable under Section 302 of I.P.C. and Section 498-A of I.P.C.

(3) The case of the prosecution, in brief, is as follows: -

(i) The marriage of the Prahlad (PW-1) and deceased was solemnized 7 years ago. On 20.08.2010 at about 08:57, Police Control Room received information through 100 dials that one lady has burnt near Bada Ganapati Phool Wali Gali. The ambulance reached the spot and brought that lady to the Burn Unit of M.Y. Hospital where she was attended by Dr. Vibhuti Pathak who found various injuries all over the body to the extent of 68%. She was referred to Burn Unit where her dying declaration was recorded in which she levelled allegations against her mother-in-law and sister-in-law (Jethani). Accordingly, FIR was registered for the offence punishable under Section 498-A and 307 of I.P.C. Investigation was started, Sub Inspector Santosh Pandre drawn a spot map and recovered, plastic cane with the smell of kerosene, stove, plastic bottle, burn petticoat, sari, blouse, matchstick and burn cotton. The statement of deceased 21.08.2021 along with other witnesses was recorded by IO . During treatment, she died on 22.08.2010 near about 12:30. After taking an inquest the Naksa Panchnama was drawn, statements of Rukma Bai (PW-3) and Bharat Singh (PW-4) were recorded. Two accused were arrested and seized articles were sent to the FSL.

(4) Upon completing the investigation, a charge-sheet came to be filed on 16.11.2020 against the appellant and Jyoti for the above offences in the court of the Magistrate concerned, from where, the offences being exclusively triable by the court of sessions, was committed to the Court of the Additional Sessions Judge, Indore for trial, where charges were framed against the accused persons for the offence punishable under Section 302 and 498-A of I.P.C, to which they pleaded not guilty and claimed trial.

(5) The prosecution has examined as many as 15 witnesses and exhibited 18 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C and when confronted with the

circumstances appearing against them in the prosecution evidence, denied the same, claimed to be innocent and stated false implication. In defence the appellant has not examined any evidence but got exhibited Ex. D/1 to Ex. D/2.

(6) After evaluating the evidence, came on record, the learned Additional Session Judge has acquitted co-accused smt. Jyoti for the offence punishable under section 302 and 498-A of I.P.C. but convicted the appellant for the offence punishable under Section 302 of I.P.C and sentenced as stated above and discharged her for the offence under Section 498-A of I.P.C. Aggrieved by the aforesaid, the Appellant before this Court in the present appeal.

We have heard, Ms. Purnima Kanungo learned counsel for the Appellant and Shri Ranjeet Sen, learned Government Advocate for Respondent-State.

(7) Learned counsel for the appellant submits that all the witnesses examined by the prosecution have turned hostile. The deceased was not subjected to any cruelty as the appellant has been discharged under Section 498-A of I.P.C. She was having some dispute with her husband, therefore, she poured kerosene over herself in order to commit suicide. The appellant has been convicted only on the basis of a dying declaration which itself is doubtful because the deceased was not fit state of health to give a statement. There is no certificate by the doctor to the effect that the injured/deceased was in a fit condition to give the dying declaration. There was no motive for the appellant to kill her daughter-in-law. It is further submitted that the deceased was living separately with her husband near Bada Ganapati and this appellant was residing separately along with her other son and his wife Jyoti. The incident was said to have taken place at about 07:00 in the morning, therefore there is no reason for the appellant to go to her house in order to kill her. The minor dispute in the family between mother-in-law and daughter-in-law cannot give rise to a conclusion of committing murder. Hence, the appellant may kindly be acquitted of the above charges.

(8) Shri Ranjeet Sen, learned counsel for the respondent has argued in support of the judgment and order of conviction. According to him, there was no reason to disbelieve the dying declaration given by the deceased. At the time of admission in the hospital, the deceased was fully conscious and fit state of health because she was burnt only 68% and as per the doctor opinion, she was neither shouting nor complaining of pain, therefore, no interference is called for and this appeal is liable to be dismissed.

We heard the arguments and perused the records.

(9) The prosecution has examined Prahlad (husband of the deceased) as PW-1. According to him, on the date of the incident, her wife was going to Bhopal. She was in an unstable state of mind. Earlier also she tried to commit suicide. When he came back to the house after purchasing the milk, his son said that the deceased has poured kerosene and put herself into the fire. He has put her in the water tank to extinguish the fire and take her to the hospital. When he was going to Hospital, the police have come. He was declared hostile. According to him, his father left his mother, thereafter, his mother had performed the second marriage with Ganesh. She gave birth to Naresh and Archana, who is married now. Narendra Dubey is residing in the colony of SGSTIS and his mother and Jyoti used to reside there. He has specifically denied that his mother has poured the kerosene and Jyoti has put her into the fire. Therefore, evidence of Prahlad remained uncontroverted that the appellant was residing with Narendra separately from the deceased.

(10) The prosecution has examined Makhan a son of the deceased as PW-2, who has not supported the case of the prosecution. According to him, his mother herself poured the kerosene, when his father was not in his house. He has also deposed that Raju and Jyoti were not in the house. Surprisingly, this witness has not been cross-examined by the prosecution, therefore, his statement is admissible and the learned court has wrongly ignored and discarded such evidence. (11) Rukmabai (PW-3), mother of the deceased has not supported the

case of the prosecution. She has not made any allegation against this appellant even on the point of torture and cruelty. Bharat (PW-4) has admitted that on the date of the incident, his sister (deceased) was coming to Bhopal, but he received a call that, she has ablazed herself. He has also stated that in the hospital upon asking, his sister confessed that she has ablazed herself, he has been declared hostile thus, none of the witnesses has supported the case of the prosecution. No independent witnesses have been examined like neighbours, friends etc.

(12) It is not in dispute that the deceased was brought to the hospital in burn condition. She was attended by Dr Vibhuti Pathak (PW-12). He found she was burnt 68%. Her condition was serious; therefore, she was referred to Burn Unite. No doctor, who was treating the deceased was examined by the prosecution. In defence, the appellant examined Priyesh Nema, who was treating the deceased in Burn Unite. According to him at about 11:20, the patient was conscious but in a drowsy state of mind and she was not in a position to give a statement. (13) Only on the basis of dying declaration, the appellant has been convicted and Jyoti has been acquitted. Sudeep Meena (PW-14) has recorded the dying declaration of the deceased at about 11:25. In cross- examination, he stated that he was not on duty on 20.08.2021. He received a call from an unknown person at about 11:00. He reached the M.Y. Hospital and directly went to burn Unite at that time there was no doctor to permit him to record DD . He did not ask about the residential address of the deceased. Without taking permission from the doctor, he has recorded her statement. No panchnama was prepared. No ward boy or other attendant were called as witnesses. When the deceased was admitted to the hospital, her pulse was 110 per minute, the condition was drowsy. She remained alive for one day. The dying declaration was said to have been recorded in the Burn Unite. No certificate from the doctor has been taken whether the deceased was in the position to record the dying declaration. The Tehsildar did not even care to meet the doctor first for obtaining permission to

record the dying declaration. Therefore, there is no corroboration of dying declaration with any other ocular evidence. Hence, it cannot be the sole basis for the conviction of the appellant in this case. There is discharge under Section 498-A of I.P.C. She was not subjected to any cruelty by this appellant. There is no evidence to the effect that they were living the same house rather the evidence came on record that they were living separately. There was no material that came on record that why she came at 07:00 am to the house of the deceased to commit a crime. The deceased was a young lady aged about 30 years at the time of the incident whereas the appellant was aged about 68 years of age, therefore, it was not possible for her alone to commit this crime. (14) In view of the above discussion, we pass the following order:

(i) Criminal Appeal filed by the appellant is hereby allowed.

(ii) The judgment and order of conviction dated 22.07.2021 passed in S.T. No.939/2010 in which the appellant has been convicted for the offence punishable under Section 302 of I.P.C. are hereby set aside.

(iii) Appellant-accused be set at liberty, if not required in any other case, the bail bond is discharged.

The registry is directed to send back the Trial Court record forthwith along with the copy of this judgment.

Certified copy as per Rules.

          ( VIVEK RUSIA )                       (SATYENDRA KUMAR SINGH )
              JUDGE                                     JUDGE

          praveen



PRAVEEN NAYAK
2021.12.17 17:35:22 +05'30'