Madhya Pradesh High Court
Smt. Kalawati vs The State Of Madhya Pradesh Thr on 16 March, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
CRA No. 1345 of 2016
(SMT. KALAWATI Vs THE STATE OF MADHYA PRADESH THR)
Dated : 16-03-2022
Shri Rishikesh Bohare, learned counsel for the appellant.
Shri Rajeev Upadhyaya, learned Public Prosecutor for respondent/State.
Heard on IA.31949/2021 which is the 08th repeat application under Section
389(1) Cr.P.C. seeking suspension of sentence and grant of bail moved on behalf
of appellant.
An application (IA.4748/2017) for suspension of sentence and grant of bail
moved on behalf of the present appellant has been dismissed on merits vide order
dated 23.06.2017. There is no change in the circumstance. However, learned
counsel for the appellant insists for consideration of the present application on
merits. Accordingly, the same is being considered and decided.
Present appellant stood convicted vide judgment of conviction and order of
sentence dated 24.11.2016 passed by III Additional Sessions Judge, Guna (M.P.)
in ST No.21/2016; whereby, she has been convicted under Sections 498A, 302
and 201 IPC and sentenced to under go RI for three years with a fine of Rs.500/-,
LI (rigorous) with a fine of Rs.1,000/- and RI for three years with a fine of
Rs.500/- with default stipulations.
As per prosecution story, deceased -Sadhna was the wife of one Jitendra
Lodha, resident of Aawan, Police Station Raghogarh, District Guna (M.P.). The
present appellant is the mother-in-law of the deceased. As per the story of
prosecution, on 15.09.2015 while the deceased was at home, the appellant and her
daughter Radhabai with common intention to set the deceased ablaze came to her
close proximity. The appellant is alleged to have poured kerosene oil on her body
and the sister-in-law Radha Bai had set her ablaze. By the time she was badly
burned, her husband Jitendra came and extinguished fire by pouring water on her
body. Thereafter, she was admitted in the hospital for treatment. She remained
hospitalized from 15.09.2015 to 31.10.2015. She was 80% burnt as per the
prosecution story. On 15.09.2015, she gave dying declaration in front of Naib
Tahsildar J.K. Pandey (PW-7). In her dying declaration, she named the present
appellant who had poured kerosene oil on her body and also named her sister-in-
law Radha Bai having set her ablaze. She also attributed motive in her statement
inter alia stating that the present appellant i.e. mother-in-law and the sister-in-law
Radha Bai had developed typical hostility against her for the reason that she was
educated and did not dance to their tune. It is further alleged that the appellant and
her family members on their own volition had got discharged her from the hospital
on 31.10.2015 without recommendation of the doctor, as well discussed in para 28
of the judgment. Thereafter, she was though kept in the house but since was not
attended to properly for post treatment care, she developed infection which led to
her death on 26.11.2015.
Shri Bohare, learned counsel for the appellant, while criticizing the impugned
judgment, contends that the conviction is based solely on the dying declaration.
There is inconsistency between the statements of Naib Tahsildar Mr. J.K. Pandey
(PW-7) and medical Dr. Sachin Soni (PW-8) in the matter of recording of the
statement of the deceased. According to Dr. Sachin Soni (PW-8), the statement
was recorded in the isolated ward where she was admitted whereas Naib Tahsildar
Mr. J.K. Pandey (PW-7) has stated that she was in the hall where other patients
were admitted. Therefore, the factum of recording of dying declaration by itself
comes under the cloud of suspicion. That apart, the evidence of Dr. Sachin Soni
(PW-8) also suffers from inherent contradictions. The learned court below did not
consider the evidence placed on record in its right perspective. The impugned
judgment suffers from patent perversity. The appellant has also suffered jail
incarceration since 22.09.2015. Therefore, it is a fit case for grant of suspension of
sentence.
Per contra, Shri Rajeev Upadhyaya, learned Public Prosecutor appearing on
behalf of the respondent/State, submits that the learned Sessions Judge upon
critical evaluation of the evidence placed on record has reached a logical
conclusion having convicted the appellant for the offence under Sections 498A,
302, 201 IPC and sentenced the appellant to life imprisonment with default
stipulations. The findings are impregnable in nature. Referring to para 26, 27 and
28 of the impugned judgment, learned counsel for the State submits that Dr. Ritesh
Kanshal (PW-5) who had conducted the MLC had made a statement that after
seeing the deceased at the first instance apparently the deceased was found to be
40% burnt because by that time her body was covered with a Saree. However,
after her death, Dr. Y.K. Goyal (PW-12) who conducted the post mortem reached
the conclusion that she was burnt 80-85%. As such, the contention of learned
counsel for the appellant with reference to the variation of the percentage of burn
injuries suffered by the deceased in the reports of the doctors conducting MLC
and post mortem is of no consequence. That apart, learned Sessions Judge in para
28 of the impugned judgment has discussed that it is at the instance of the in-laws
that the deceased was discharged from the hospital and not on the advice of the
doctor. That apart, Dr. Sachin Soni (PW-8) has also stated in his deposition that if
she was allowed to take treatment in the hospital with longer stay, she would have
recovered which has been well discussed in para 28 of the impugned judgment
itself. As such, the death of the deceased is caused because of the burn injuries
suffered by her and also due to negligence on the part of the appellant in the matter
of taking post treatment care at home. Therefore, it is not only a case of merciless
burning of the deceased but also gross intentional negligence resulting into her
death. Under such circumstances, the element of mens rea is writ at large in the
instant case. Therefore, it is not a case fit for grant of suspension of sentence.
Upon hearing learned counsel for the parties, this Court finds substantial
force in the submissions put forth by learned counsel for the State. This Court has
perused the evidence placed on record and also the judgment based upon the
impeccable appreciation of evidence. Therefore, this Court is of the view that no
case is made out for grant of suspension of sentence.
Consequently, IA.31949/2021 stands dismissed on merits.
ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
pd
PAWAN
DHARKAR
2022.03.16
21:15:21
+05'30'
