Madhya Pradesh High Court
Smt. Kalawati vs The State Of Madhya Pradesh Thr on 20 October, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRIMINAL APPEAL NO.1345 OF 2016
BETWEEN:-
SMT. KALAWATI W/O SHRI DAYA RAM LODHA,
PRESENTLY AGED ABOUT 41 YEARS,
OCCUPATION : HOUSE-WIFE R/O VILLAGE
AVAN P.S. RAGHOGARH DISTRICT GUNA
........APPELLANT
(BY SHRI RISHIKESH BOHRE - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION RAGHOGARH, DISTRICT
GUNA (MADHYA PRADESH)
........RESPONDENT
(BY DR. SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 16th of October, 2023
Pronounced on : 20th of October, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Amar Nath (Kesharwani) pronounced the following:
JUDGMENT
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OJHA
Signing time: 20-10-2023
06:40:11 PM
The appellant has preferred this appeal under Section 374 (2) of
the Code of Criminal Procedure, 1973 (In short "Cr.P.C.") against the
judgment dated 24/11/2016 passed by Third Additional Sessions Judge
Guna, District Guna (M.P.) in Sessions Trial No.21/2016, whereby the
appellant was held guilty for committing an offence punishable under
Section 498-A, 302 and 201 of Indian Penal Code (In short "IPC") and
sentenced to undergo three years rigorous imprisonment, life
imprisonment and three years rigorous imprisonment with fine of
Rs.500/- (Rupees Five Hundred), 1000/- (Rupees One Thousand) and
Rs.500/- (Rupees Five Hundred); in default of payment of fine further
six months, six months and six months R.I. respectively and ordered to
suffer imprisonment concurrently.
2. The prosecution story, in brief, is that on 15.09.2015 deceased
was brought to District Hospital, Guna in injured condition with burn
injuries, in that regard Duty doctor Reetesh Kansal informed to City
Kotwali Guna vide memo (Ex.P/5). On the said information, matter was
inquired. During inquiry, statements of injured Sadhna and father of
injured Diman Lodha (PW-1) were recorded. Dying declaration (Ex.P-
8) of injured Smt. Sadhna Lodha was recorded by J.K. Pandey Naib
Tahsildar Guna (PW-7). In her statements, Smt. Sadhna Lodha stated
that her mother-in-law Kalawati and sister-in-law Radha Bai poured
kerosene on her and set her ablaze with intention to kill her as a result of
which her body got burnt. In her statements, she had disclosed that
earlier also cruelty was inflicted on her. After inquiry, FIR (Ex.P-14)
Crime No.281/2015 offence punishable under Sections 307, 498-A, 34
of IPC was registered against accused Kalawati Lodha and Radha Bai
Lodha.
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OJHA
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3. During the investigation, Sub-Inspector Ramavtar Singh (PW-9)
reached on the spot and prepared the spot map (Ex.P-15). Naib
Tahsildar J.K. Pandey (PW-7) recorded dying declaration in which the
deceased stated that her mother-in-law poured kerosene on her and her
sister-in-law (Radha) provided matchstick to her mother, who set her
ablaze on fire and her husband extinguished the fire by throwing water.
Postmortem was conducted by Dr. Y.K. Goyal (PW-12) who opined that
deceased sustained burn injuries and the death was result of
complications caused due to burn injuries and prepared autopsy report
Ex.P-22. Appellant was arrested vide arrest memo Ex.P-16 and after
completion of investigation, charge-sheet in the matter was filed against
the appellant.
4. The Trial Court framed charges against the appellant under
Section 498-A, 304-B in the alternative 302 of IPC and section 201 of
IPC to which she has denied and pleaded for trial.
5. Prosecution has examined 13 witnesses and exhibited 24
documents to prove their case and the appellant has examined Dhiraj
Singh (DW-1) to prove her defence. After evaluating the evidence that
came on record, the Trial Court finds the appellant guilty and convicted
and sentenced her as mentioned herein-above in Para No.1. Being
aggrieved by the impugned judgment of conviction and sentence, the
appellant has filed this Criminal Appeal.
6. Learned counsel for the appellant submits that the appellant is in
custody for last eight years. She has no criminal record and the incident
occurred in the heat of the moment. Learned counsel for the appellant
further submits that the case would not travel beyond the scope of
Section 304 Part II of IPC. The learned counsel for the appellant also
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OJHA
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disputed the genuineness of dying declaration (Ex.P-8) recorded by the
Naib Tahsildar (PW-7) and submits that dying declaration is doubtful.
Hence, prayed to set-aside the impugned judgment and acquittal for
appellant.
7. Per contra, learned Government Advocate for respondent/State
submitted that dying declaration was recorded on the date of incident
and before recording the dying declaration by Naib Tahsildar, Dr.
Sachin Soni (PW-8) who was present in the hospital, certified the fit
mental condition of the appellant and after recording of the dying
declaration, mental condition of the injured was also certified by the
same doctor. It is further submitted that dying declaration was proved by
Dr. Sachin Soni (PW-8) and Naib Tahsildar J.K. Pandey (PW-7). She
further submits that dying declaration is genuine and the same cannot be
disbelieved and that the prosecution has proved their case beyond
reasonable doubt against the appellant. Hence, the trial Court has rightly
convicted and sentenced the appellant, therefore, the appeal is liable to
be dismissed.
8. Father of the deceased Shri Diman Singh Lodha (PW-1) and
mother of the deceased Smt. Hemlata Lodha (PW-2) have not supported
the prosecution case before the Trial Court and they were declared
hostile by the prosecution, although they were cross-examined by the
prosecution but no such facts were come up which support the
prosecution case. Hence, the entire controversy revolves around the
dying declaration (Ex.P-8) recorded by J.K. Pandey, Naib Tahsildar
(PW-7). The dying declaration is reproduced as below:-
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OJHA
Signing time: 20-10-2023
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ej.kklu dFku
lfpu gkWLihVy xquk ejht
c;ku nsus dh fLFkfr esa gS A
gLrk{kj vLi"V 3%30 P.M. fnukad 15@09@2015
Mh-Mh izkjEHk djus dk le;&3%32 P.M.
uke& lk/kuk yks/kh
iRuh& ftrsUnz yks/kh
mez& 20
tkfr& yks/kh
fuoklh& vkou
eSa lR; dFku djrh gWw&
iz'u%& D;k ?kVuk ?kfVr gqbZ\
mRrj%& dy 3%30 ds djhc esjh lkl ¼dykorh½ ls >xM+k gqvk FkkA vkSj vkt lqcg Hkh
>xMk fd;k vkSj dgk fd rqe dksbZ dke ugha djrh gksA vkSj lkl us vius HkkbZ ls dgk
fd i<h fy[kh cgw feyh gS nknk fxnhZ crkrh gS dqN dke ugha djrh gSA dy ls eSus dqN
Hkh ugha [kk;k eq>s [kkus dks Hkh ugha igqpk A esjh uun [kkuk cukus yxh Fkh vkSj lkl
yMus yxh vkSj dgus yxh fudy tk ;gk ls] esjs Åij feÍh ds rsy dh dqIih Mky nh
vkSj uun¼jk/kk½ us ekfpl ns nh vkSj lkl us esjs ess vkx yxk nhA esjk ifr ml le;
ogh Fkk mlus ikuh ykdj vkx cq>kbZA tc rd esjs diMksa esa vkx yxus ls esjk iwjk 'kjhj
gkFk iSj ty x;sA esjs ifr ,oa lkl vkSj vU; yksx us eq>s vLirky esa ykdj HkrhZ djk
fn;kA
iz%& vkSj dqN dguk gS\
m%& vkSj dqN ugha dguk gSA gLRkk{kjvLi"V
ts-ds-ik.Ms;
uk;c rg0 xquk
Mh-Mh lekfIr dk le;& 3%50 P.M.
Lkk/kuk
ejht iw.kZ gks'k es jgdj c;ku fn;k gSA
gLrk{kj vLi"V 15@09@2015
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Signed by: YOGENDRA
OJHA
Signing time: 20-10-2023
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9. Looking to the facts mentioned in the dying declaration (Ex.P-8),
it is revealed that the quarrel took place due to dispute over some trivial
domestic chores and in the heat of moment, the appellant poured
kerosene on the deceased and set her ablaze on fire. Hence, it is clear
that the fact of pre-meditation and intention of appellant to kill the
deceased is absent in the case.
10. Now we consider the genunity of the dying declaration (Ex.P-8).
The justification for the sanctity/presumption attached to a dying
declaration, is twofold; Ethically and religiously, it is presumed that a
person while at the brink of death, breathing last and about to die will not
lie. There is no hard and fast rule for determining when a dying declaration
should be accepted; the duty of the Court is to decide this question in the
facts and surrounding circumstances of the case and be fully convinced of
the truthfulness of the same. The evidence and material available on record
must be properly weighed in each case to arrive at an appropriate
conclusion.
11. In the case of Madan alias Madhu Patekar Versus State of
Maharashtra (2019) 13 SCC 464, Hon'ble Apex Court has held that- a
dying declaration can form basis of conviction, if in the opinion of the
Court, it inspires confidence that the deceased at the time of making such
declaration, was in a fit state of mind and there was no tutoring or
prompting. Para 10, 11 and 12 are reproduced as below:-
10. The rule of admissibility of dying declaration is no more res
integra. In the adjudication of a criminal case, dying declaration
plays a crucial role. A dying declaration made by a person as to
cause of his/her death or as to any of the circumstances which
resulted in his/her death, in cases in which cause of death comes
in question, is relevant under Section 32 of the Evidence Act. It
has been emphasized number of times that dying declaration is
an exception to the rule against admissibility of hearsay
evidence. The whole development of the notion that the dying
declaration, as an exception to the hearsay rule, is based on the
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OJHA
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formalistic view that the determination of certain classes of
evidence as admissible or inadmissible and not on the apparent
credibility of particular evidence tendered.
11. We are aware of the fact that the physical or mental weakness
consequent upon the approach of death, a desire of self-
vindication, or a disposition to impute the responsibility for a
wrong to another, as well as the fact that the declarations are
made in the absence of the accused, and often in response to
leading questions and direct suggestions, and with no
opportunity for cross-examination: all these considerations
conspire to render such declarations a dangerous kind of
evidence. In order to ameliorate such concerns, this court has
cautioned in umpteen number of cases to have a cautious
approach when considering a conviction solely based on
dying declaration. Although there is no absolute rule of law that
the dying declaration cannot form the sole basis for conviction
unless it is corroborated, the courts must be cautious and must
rely on the same if it inspires confidence in the mind of the
Court [See: Ram Bihari Yadav Vs. State of Bihar & Ors. (1998)
4 SCC 517 and Suresh Chandra Jana & Ors. Vs. State of West
Bengal &Ors., 2017 (8) SCALE 697].
12. Moreover, this court has consistently laid down that a dying
declaration can form basis of conviction, if in the opinion of the
Court, it inspires confidence that the deceased at the time of
making such declaration, was in a fit state of mind and there was
no tutoring or prompting. If the dying declaration creates any
suspicion in the mind of Court as to its correctness and
genuineness, it should not be acted upon without corroborative
evidence [See Also: Atbir Vs. Government of NCT of Delhi,
2010 (9) SCC 1, Paniben Vs. State of Gujarat, 1992 (2) SCC 474
and Panneerselvam Vs. State of Tamilnadu, 2008 (17) SCC 190].
12. In the present case, the dying declaration (Ex.P-8) was duly proved
by examining witness J.K. Pandey, Naib Tahsildar (PW-7) who have
recorded it and also proved the fitness condition of the victim by the Dr.
Sachin Soni (PW-8) during the dying declaration, hence the circumstances
surrounding the case also helps to establish the veracity of the statement
given by the deceased. Therefore, no space for doubt survives in the light
of the dying declaration that the incident actually took place as it was
recorded in deceased's statement.
13. Now the point falling for consideration before us is whether the
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OJHA
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conviction of the appellant under Section 302 of IPC is sustainable. As
discused in Para No.9 it is found that the fact of pre-meditation and
intention of appellant to kill the deceased is absent in the case.
14. The Hon'ble Supreme Court has laid down in Prabhakar Vithal
Gholve v. the State of Maharashtra, AIR 2016 SC 2292 that if the
assault on the deceased could be said to be on account of the sudden
fight without premeditation, in heat of passion, and upon a sudden
quarrel, conviction of the appellant cannot be sustained under S. 302
and altered to one under Section 304 Part-I of IPC. In Sikandar Ali Vs.
The State of Maharashtra, AIR 2017 SC 2614, the Court altered the
conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following
circumstances:
"7. We have no doubt about the complicity of all the
accused in the homicide of Sarfraj. A-1 attacked the
deceased with the knife and caused injury on his neck
which resulted in his death. The other accused assisted him
in committing the crime by holding the hands of the
deceased. However, the only question that falls for our
consideration is whether the accused are liable to be
punished for an offence under Section 302 IPC. After
considering the submissions made by the counsel for the
Appellants and scrutinising the material on record, we are
of the opinion that the accused are not liable to be convicted
under Section 302 IPC. We are convinced that there was
neither prior concert nor common intention to commit a
murder. During the course of their business activity the
accused reached the dhaba where the deceased was present.
An altercation took place during the discussion they were
having behind the dhaba. That led to a sudden fight during
which A-1 attacked the deceased with a knife. Exception 4
to Section 300 is applicable to the facts of this case. As we
are convinced that the accused are responsible for the death
of Sarfraj, we are of the opinion that they are liable for
conviction under Section 304 part II of the IPC. We are
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informed that A-1 has undergone a sentence of seven years
and that A-2 to A-4 have undergone four years of
imprisonment. We modify the judgment of the High Court
converting the conviction of the accused from Section 302
to Section 304 part II of the IPC sentencing them to the
period already undergone. They shall be released
forthwith."
15. The Hon'ble Apex Court laid down in Madhavan and Ors. Vs.
The State of Tamil Nadu, AIR 2017 SC 3847 that:
"8. Notably, the High Court has not considered the
issue of quantum of sentence at all, but mechanically
proceeded to affirm the sentence awarded by the Trial
Court. From the factual position, which has emerged
from the record, it is noticed that there was a
preexisting property dispute between the two
families. The incident in question happened all of a
sudden without any premeditation after PW1
questioned the appellants about their behavior. It was
a free fight between the two family members. Both
sides suffered injuries during the altercation. The
fatal injury caused to Periyasamy was by the use of
thadi (wooden log) which was easily available on the
spot. The appellants, on their own, immediately
reported the matter to the local police alleging that
the complainant party was the aggressor. No
antecedent or involvement in any other criminal case
has been reported against the appellants. Taking oral
view of the matter, therefore, we find force in the
argument of the appellants that the quantum of
sentence is excessive."
16. In the case of Arjun and Another Vs. State of Chattisgarh
reported in AIR 2017 SC 1150, the Hon'ble Apex Court has held that :-
'20. To invoke this exception (4), the requirements that
are to be fulfilled have been laid down by this Court in
Surinder Kumar v. Union Territory of Chandigarh (1989)
2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been
explained as under:
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"7. To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there was
no premeditation; (iii) the act was done in a heat of
passion; and (iv) the assailant had not taken any undue
advantage or acted in a cruel manner. The cause of the
quarrel is not relevant nor is it relevant who offered the
provocation or started the assault. The number of wounds
caused during the occurrence is not a decisive factor but
what is important is that the occurrence must have been
sudden and unpremeditated and the offender must have
acted in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a cruel
manner. Where, on a sudden quarrel, a person in the heat
of the moment picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be
entitled to the benefit of this exception provided he has
not acted cruelly.............."
21. Further in the case of Arumugam v. State,
Represented by Inspector of Police, Tamil Nadu, (2008)
15 SCC 590 : (AIR 2009 SC 331, Para 15), in support of
the proposition of law that under what circumstances
exception (4) to Section 300 IPC can be invoked if death
is caused, it has been explained as under:
"9. .......
"18. The help of Exception 4 can be invoked if death is
caused (a) without premeditation; (b) in a sudden fight;
(c) without the offender's having taken undue advantage
or acted in a cruel or unusual manner; and (d) the fight
must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the 'fight' occurring in
Exception 4 to Section 300 IPC is not defined in the
Penal Code, 1860. It takes two to make a fight. Heat of
passion requires that there must be no time for the
passions to cool down and in this case, the parties had
worked themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat between
two and more persons whether with or without weapons.
It is not possible to enunciate any general rule as to what
shall be deemed to be a sudden quarrel. It is a question of
fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each case.
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For the application of Exception 4, it is not sufficient to
show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender
has not taken undue advantage or acted in cruel or
unusual manner. The expression 'undue advantage' as
used in the provision means 'unfair advantage'."
17. In view of the foregoing discussion and looking at the verdicts of
the Hon'ble Apex Court as mentioned hereinabove, the judgment of
conviction dated 24.11.2016 is hereby confirmed and the culpability of
the appellant is maintained. The conviction of appellant under Section
302 of IPC is modified into the offence punishable under Section 304
Part-II of IPC and sentenced to undergo rigorous imprisonment for 8
(Eight) years with the same fine amount as awarded by the learned trial
Court. Conviction and sentence imposed for the offence under Section
498-A and 201 of IPC is hereby confirmed.
18. The appellant be released after undergoing the aforesaid sentence
and deposit of the fine amount, (if not already deposited) and if not
required in any other case.
19. Resultantly, the appeal is partly allowed to the extent mentioned
hereinabove.
20. Record of the court below along with a copy of this judgment be
sent forthwith for information and compliance.
(ROHIT ARYA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
ojha
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 20-10-2023
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