Madhya Pradesh High Court
Kodulal vs The State Of Madhya Pradesh on 1 April, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan
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1 CRA-84-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 1st OF APRIL, 2025
CRIMINAL APPEAL No. 84 of 2014
KAILASH PATEL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. J.K. Dehariya - Advocate for appellants.
Mr. A.N. Gupta - Government Advocate for State.
WITH
CRIMINAL APPEAL No. 96 of 2014
KODULAL AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. J.K. Dehariya - Advocate for appellants.
Mr. A.N. Gupta - Government Advocate for State.
JUDGMENT
Per: Justice Devnarayan Mishra
Learned counsel for the appellants in Criminal Appeal No.96
of 2014 prays for withdrawal of I.A. No.7165 of 2025.
Accordingly, I.A. No.7165 of 2025 stands dismissed as
withdrawn.
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With the consent of the parties, both the matters are heard
finally at motion hearing stage.
Appeal No.84 of 2014 has been preferred being aggrieved by
the judgment dated 30.12.2012 of conviction and sentence passed in
S.T. No.200 of 2009 by Second Additional Sessions Judge Katni by
which, appellants Kailash Patel, Kodulal, Prahlad, Triveni Bai and
Dari Bai have been convicted for an offence punishable under
Section 306 of the Indian Penal Code and sentenced to suffer R.I.
for 07 years with fine of Rs.1,000/- and under Section 498-A of the
Indian Penal Code and sentenced to undergo R.I. for 03 years with
fine of Rs.1,000/- with default stipulations.
Appeal No.96 of 2014 has been preferred being aggrieved by
the judgment dated 30.12.2013 of conviction and sentence passed in
ST No.201 of 2009 by Second Additional Sessions Judge Katni by
which appellants Kodu Lal and Triveni Bai have been convicted for
an offence punishable under Section 302 of the Indian Penal Code
and sentenced to undergo R.I. for Life Imprisonment with fine of
Rs.1,000/- with default stipulations.
2. In both the appeals, separate trial has been done and
separate judgments have been passed but the fact giving rise to both
the appeals regarding death of Krishnabai and her daughter
Khushboo which has taken place on 31.07.2009 and the appellants
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are in-laws of deceased Krishnabai and the witnesses are almost
same persons, therefore, both the appeals are being analogously
decided by this common judgment.
3. In nutshell, the prosecution case of these cases, before the
trial Court was that deceased Krishna Bai was married with Kailash,
s/o Kodulal. Kodulal is the father-in-law of the deceased. Triveni
Bai is the mother-in-law whereas, Prahlad is brother-in-law (jeth)
and Dari Bai is the sister-in-law (jethani) of the deceased. On
31.07.2009, Krishna Bai in the burnt condition was brought in
Bahoriband Community Health Centre while her daughter
Khushboo had died due to burn injuries. After preliminary
examination, Krishna Bai was referred to the Higher Centre,
Jabalpur for treatment. When Krishna Bai was brought in the
Community Health Centre Bahoriband on the same day i.e. on
31.07.2009 at about 08:50 am, her dying declaration (Exhibit-P/9)
was recorded by the Executive Magistrate/Nayab Tahsildar H.K.
Dhurve (PW-7) in which, she has stated that her husband and in-
laws were harassing her. She herself put on the fire by matchstick
and her father-in-law and mother-in-law caught hold her daughter
Khushboo and pushed her in the room as a result, Khushboo
sustained burn injuries and died. After that when she was being
brought to Jabalpur on the way, Krishna Bai died for which, marg
intimation (Exhibit-P/8) was registered in Police Station-
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Bahoriband, District-Katni. Autopsy was conducted over the dead
body of the deceased Krishna Bai and Khushboo. Case was
registered against the appellants vide Crime No.179 of 2009 under
Sections 304-B, 498-A of the Indian Penal Code and under Sections
3/4 of the Dowry Prohibition Act against Kailash, Prahlad, Kodulal,
Triveni Bai, Dari Bai for an offence of committing the death of
Krishna Bai and a separate F.I.R. vide Crime No.180 of 2009 was
registered under Section 302/34 of the Indian Penal Code against the
appellants Kodulal and Triveni Bai for an offence of committing the
death of Khushboo. After investigation, charge-sheets were
submitted.
4. During trial, trial Court recorded the statements of
prosecution witnesses and examined the accused persons and after
hearing both the parties passed the impugned judgments and
conviction and sentenced as stated above in the judgments of these
appeals.
5. Learned counsel for the appellants has submitted that as per
the prosecution case itself, the deceased Krishna Bai was burnt on
31.07.2009 at about 07:30 in the morning and the deceased
Khushboo was also burnt and as per the post-mortem report and the
statement of Dr. Anand Ahirwar (PW-13), autopsy over the dead-
body of the deceased was conducted at 11:30 am and the autopsy of
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the daughter of the deceased Khushboo was conducted at 11:20 am
and from the statement of eye-witnesses and the report lodged by
the Police, it is clear that she was referred to hospital and when went
03 kilometers away from the hospital towards Jabalpur on car she
died.
6. As per marg intimation (Exhibit-P/8), her dying declaration
(Exhibit-P/9) was recorded at 09:00 am, thus, within 40 minutes of
the statement, she died. There is no dying declaration regarding
appellants and the second page of the dying declaration (Exhibit-
P/9) the fact that Khushboo was pushed by father-in-law and
mother-in-law and as a result, she died in the room, was added after
that in the dying declaration. The deceased has also stated that she
herself poured the kerosene and set herself on fire and in the last
question-answer, she has stated that firstly the father-in-law and the
mother-in-law were putting her on fire but freeing from them, she
set herself on fire. Thus, one part of the dying declaration gives
clean chit to the accused persons whereas, the second part, it
implicates the mother-in-law and the father-in-law only. In the dying
declaration, the deceased has never stated that the appellants were
demanding motorcycle in dowry. Thus, the trial Court has wrongly
taken the recourse of presumption under Section 113-A of the
Evidence Act.
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7. Learned counsel for the appellants has argued that witness
Shivprasad (PW-1) has admitted that the marriage of the deceased
with Kailash was solemnized on 24.04.2001 and the Investigating
Officer Ms. Rashmi Dhurve Deputy S.P. (PW-10) in paragraph
no.10 of her cross-examination has admitted that she questioned the
family members regarding the date of marriage but the family
members had not disclosed the date, month and year of the marriage
of the deceased with the appellant Kailash, in general, they had
stated that the marriage was solemnized five years prior to the
incident.
8. He has further argued that the Investigating Officer herself
has admitted that the deceased was living separate with her husband.
Her mother-in-law, father-in-law, brother-in-law and sister-in-law
were residing separate from them. Investigating Officer has also
admitted that when she visited the spot, she had recorded the
statement of Rajendra, Siyaram and Ujiyar Singh and in the
statement of these witnesses, they had revealed that the deceased
with her daughter was in the locked room and she was taken out by
the villagers by breaking the door of that room. She has also
admitted that she had not submitted the statements of Ujiyar Singh,
Siya Ram and Rajendra Singh along with the charge-sheet and on
that basis, it is submitted that it has not been proved by the
prosecution that the marriage was solemnized within seven years
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from the date of death and it is clear that the deceased put herself on
fire along with her daughter in a locked room and suffered the burn
injuries, as a result, she died.
9. Learned counsel for the appellants further argued that
Witness Gajraj Singh (PW-2), who is uncle of the deceased has not
supported that the appellants were demanding dowry and mother
Prembai (PW-3), father Umedh Singh (PW-4), sister Asha Bai (PW-
5), cousin brother Sunil (PW-6) have admitted that the marriage was
solemnized in cordial atmosphere, there was no demand of dowry at
the time of marriage. There was no agreement that the family
members of bride will pay any dowry to the family members of the
groom and after three years of the marriage, daughter of the
deceased Khushboo was born. There was no complaint or report or
social Panchayat regarding the demand of dowry. There is a material
contradiction and omission of the prosecution witnesses that has
been brought on the record in the cross-examinations of prosecution
witnesses. By cross-examination of the witness Ms. Rashmi Dhurve
(PW-10) Investigation Officer. It is clear that the prosecution has
failed to prove his case beyond reasonable doubt but the trial Court
has convicted the appellants under Section 306 of IPC and the
appellants Kodu Lal and Triveni Bai for committing the murder of
Khushboo.
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10. Mr. A.N. Gupta, learned counsel appearing on behalf of
the State has submitted that the trial Court has properly appreciated
the evidence and in the dying-declaration the deceased has clearly
stated that her father-in-law and mother-in-law were burning her
and freeing from them, she set herself on fire and it has been clearly
brought on the record that the deceased was being harassed for
demand of dowry and it has also been brought on dying declaration
of the deceased that the appellant Triveni Bai brought the daughter
of deceased Khushboo while she was playing outside the room and
handed over to Kodulal and Kodulal pushed the girl in the room
where the deceased was burning and as a result, Khushboo also
caught fire and burnt. Thus, the judgment of the trial Court is as per
the law, hence, no interference is called for.
11. We have heard the parties and perused the record.
12. On the point of death, it is clear that from the statement of
Dr. Anand Ahirwar (PW-13) on 31.07.2009, the deceased Krishna
Bai w/o Kailash Patel was brought for the medical examination by
Constable Rajpoot, No.228 and on the examination, he found that
the deceased Krishna Bai was fully conscious and her orientation
was proper and the doctor has further submitted that the victim was
in acute pain. Whole body was burnt, smell of kerosene was coming
from the body. He referred the victim to Jabalpur Medical Hospital.
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MLC report (Exhibit-P/20-A) was prepared by him. Doctor has
further stated that on the same day i.e. on 31.07.2009, the dead body
of the deceased was handed over for the post-mortem by Constable
No.225 Yogendra Singh. On the examination, he found that there
was superficial and deep burns, the deceased was wearing yellow
coloured bangles in both hands. She was burnt 100 percent. The
hairs of the head and eye-brow were burnt. Smell of kerosene was
coming, her panty and bra after burning were affixed in the skin of
the deceased. The carbon particles were found in the wind pipe and
deceased died due to shock that was caused due to antemortem burn
and the death occurred within six hours from the time of the post-
mortem.
13. The witness Anand Ahirwar (PW-13) has further stated
that on 31.07.2009 at about 11:20, the Constable Yogendra Singh
No.228 submitted that the dead body of Khusboo, D/o Kailash, aged
3 years, on her examination, he found that her face, chest, both the
hands, both legs, back portion, neck, buttocks were burnt and in
some parts of body and upper layer of skin was absent, there was
blackening on the skin and the smell of kerosene was coming. Her
hair and eye-brows were burnt. She was not wearing any cloth and
was hundred percent burn. As per the opinion of the doctor, she died
due to shock that was resulted due to 100 % antemortem burn. Thus,
it is clear that the deceased Krishna Bai was brought in the hospital
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at about 09:00 am and as per the marg intimation (Exhibit-P/8),
Krishna Bai died at 09:40 and her daughter Khushboo was brought
dead in the hospital and from the MLC and post-mortem, it is clear
also clear that both of them died from the burn injuries and time of
the death was within six hours from the time of the post-mortem that
was conducted at 11:30 am and at 11:20 am, it means that the death
occurred after 05:00 AM on 31.07.2009.
14. Now, we have to look any culpability of the appellants in
the death of the above two persons.
15. Witness Prem Bai, mother of the deceased (PW-3) has
stated that Krishna Bai was her third number daughter and her
marriage was solemnized with Kailash approximately five years
prior to the incident. On 31.07.2009, Krishna Bai met her in the
Bahoriband Hospital and narrated to her that her father-in-law,
mother-in-law and sister-in-law (jethani) caught hold her and
Prahlad poured the kerosene oil and when the Krishna Bai also
asked why they burnt her, Prahlad by throwing the matchstick set
her on fire and when Prem Bai asked how her daughter was burnt,
she told her that Triveni Bai brought her daughter from the outside
as she was playing and handed over to Kodulal and Kodulal had
thrown Khushboo over the burning Krishna Bai and as a result,
Khushboo also burnt and died. This witness has further stated that
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the appellants were demanding the motorcycle and when the
demand was not fulfilled they were harassing and were treating with
cruelty to her daughter and by this reason, they had burnt her
daughter.
16. Umedh Singh (PW-4), the father has also supported the
statement of witness Prem Bai (PW-3) on the point that the deceased
had disclosed the incident and demand of dowry by the family
members of the deceased.
17. Asha Bai (PW-5) elder sister of the deceased has stated
that Prahlad and Triveni Bai were harassing her sister and were
demanding motorcycle in the dowry and Prahlad was assaulting her
and was throwing out from his house. She has further stated that
they were asked that when they had not demanded the motorcycle at
the time of marriage, why they are demanding at this time?
18. Witness Sunil (PW-6) has supported the fact that after
three years of marriage, daughter Khushboo was born to Krishna
Bai and after that, the appellants were harassing and were
demanding motorcycle in dowry and this fact was proved to him by
his uncle Umedh Singh (PW-4). Nowhere this witness has stated
that the deceased Krishnabai has told him that the appellants were
demanding the motorcycle in dowry and were harassing her.
19. In cross examination of Gajraj Singh (PW-2), who is
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uncle of the deceased has also stated the same fact but this witness
in the cross-examination of this witness, has submitted that Sonu is
his nephew and has told him that the deceased Krishna Bai's
husband, father-in-law, mother-in-law, brother-in-law and sister-in-
law are demanding the motorcycle in dowry. The witness Gajraj
Singh (PW-2) in paragraph no.6 of the cross-examination had not
denied the fact that there was a family partition amongst the
appellants. In paragraph no.8, this witness has not denied the
suggestion that the appellants never harassed the deceased and did
not demand dowry.
20. In the same way, Prem Bai (PW-3) has also admitted in
paragraph no.10 of her statement that she had disclosed the
Investigating Officer that when she asked Krishna Bai and her
daughter were burnt, that the appellants put her on fire and Triveni
Bai brought her daughter Khushboo and handed over to Kodulal and
Kodulal thrown Khushboo over Krishna Bai that was burning and
on that Khushboo has also died and she was contradicted from the
statement recorded by the Police Officer Ms. Rashmi Dhurve and
nowhere in the statement (Exhibit-D/2), it is mentioned that Krishna
Bai disclosed the fact that the appellants or anyone of them had put
the fire to Krishna Bai and appellants Triveni Bai and Kodulal
brought her daughter and pushed the daughter on Krishna Bai, as a
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result, Khushboo died and Umedh Singh (PW-4) contradicted from
his Police statement (Exhibit-D/1).
21. There is a clear contradiction regarding the demand of
dowry and that the deceased Krishna Bai had disclosed that the
appellants burnt her. This witness has also admitted that at the time
of marriage, there was no demand by the appellants of any article as
a dowry and the marriage was solemnized happily with the mutual
consent and daughter was born to Krishna Bai in her matrimonial
home and from the date of marriage till the date of death, she had
never filed any report regarding the demand of motorcycle in dowry
by the appellants. No social panchayat was organized on that point.
His daughter had never lodged any report that she is being harassed
for demand of dowry and also admitted in paragraph no.13 that
Prahlad was having a motorcycle and he is not aware that Kodulal
and Kailash were able to drive the motorcycle or not. He has never
seen Kodulal driving the motorcycle.
22. Furthermore, it is worth mentioned that the family
members of the deceased were present and it cannot be ruled out
that on their tutoring, deceased Krishna Bai has implicated the
family members of the appellants as her family members have
admitted that just after the death, all the relations have been ceased
and they were annoyed over the family members of the appellants.
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Furthermore, if it was clear case of the prosecution, that his brother
Sunil (PW-6) has lodged the marg intimation (Exhibit-P/8) but he
has not mentioned that her sister has told that due to harassment of
the deceased, she committed suicide by burn and the appellants
Kailash and Triveni Bai had pushed her daughter while she was
burning and thus, murdered, her daughter Khushboo.
23. The witness Asha Bai (PW-5) has stated that after the
birth of the girl the family members were harassing the deceased but
she has also admitted that after the death of her sister, she went to
Raja Pipariya and it was a matter of family discussion that the
deceased Krishna Bai along with her daughter has burnt herself in a
room and she has also not denied the fact that the marriage of the
deceased was solemnized on 24.04.2001.
24. Thus, from the above discussion, it is clear that during the
marriage, there was no demand of dowry and even after the
marriage, there was no demand of dowry and from the date of
marriage, till the deceased died, the family members of the deceased
or the deceased herself had never lodged any report or complaint to
the Police or other Government Officials, no social panchayat was
organized on that behalf. No other evidence has been produced like
the letters written by the deceased to her family members. Just after
the death, this fact has been brought on record and from reading the
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prosecution witness, till the daughter was born, no demand was
made, then it is against the general practice that anyone who want to
take the dowry will demand the dowry at the time of marriage,
during the marriage or just after the marriage or some after the
marriage but not after 5-6 years of marriage.
25. On the point that the deceased has given the oral dying
declaration to her family members is clear contradiction in the
statement as proved by the statement of the prosecution witnesses
and from the statement of Ms. Rashmi Dhurvey (PW-10)
Investigation Officer of the case. By cross-examination of Sunil
(PW-6), it has been brought on record that the deceased when met
him, she was in acute pain and only demanding water and has not
stated anything to him.
26. Thus, from the statement of these witnesses it cannot be
inferred that there was any demand of dowry. Furthermore, the
victim in her dying declaration (Exhibit-P/9) nowhere has
mentioned that the appellants were making the demand of dowry
and for that she was being harassed by the family members of the
appellant.
27. On the reliability of dying declaration, it is clear from the
prosecution witnesses particularly of Sunil (PW-6) just after the
deceased was burnt, the appellant and his family members informed
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the incident and asked him to bring the Bolero Jeep by which victim
may be carried to hospital and on that he immediately went to the
house of the appellants and he along with the appellants brought the
deceased to the hospital and witness Gajraj Singh (PW-2) who is the
uncle of the deceased has also stated that from the information, he
visited the hospital.
28. Thus, when the dying declaration was recorded, her
family members were present on the spot. It is worth-mentioned that
the deceased was brought to the hospital at 9:00 am as mentioned in
MLC report Ex.23 by the Dr. Anand Ahirwar (PW-13) and as per
the merg intimation, the deceased died on 31.07.2009 at 9:40 am
within 40 minutes when she was brought to the hospital and the DD
as per Ex.P/9 was recorded at 8:50 am and it was concluded at 9:00
am. Thus, within 40 minutes all the proceedings have taken place
that the victim was examined by the doctor. Doctor has given the
fitness certificate and the Tehsildar reached on the spot and has
given the fitness certificate Ex.P/20 and on that the statement of the
deceased was recorded.
29. As per statement recorded by H.K. Dhurve (PW-7) has
stated that he got the intimation (Tahreer) from Police Station
Bahoriband and visited Community Health Center, Bahoriband and
recorded the statement of deceased Krishna Bai wife of Kailash and
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he recorded the statement in question answer format in Ex.P/9 bears
a signature in "A" to "A" and "B" to "B" and "C" to "C" and "D" to
"D" bears the thumb impression of the deceased. Carbon copy of the
documents is submitted in the S.T. No.201/09 (S.T. number
regarding the death of Khushboo). In dying declaration, the victim
has stated that her name is Krishna Bai, she is 20 years of age and
her husband's name is Kailash and when she was asked, how she got
the burn injury, she has stated that in the morning at 7:00 am, she
poured the kerosene oil and put herself on fire and when she was
asked why she has put herself on fire, she replied that her husband
Kailash, mother-in-law Triveni Bai, father-in-law Koddu @ Suklu,
brother-in-law Prahlad, sister-in-law (jethani) Daribai were beating
and were harassing and when she was asked, she had to state
anything further, she has stated that firstly her father-in-law and
mother-in-law were putting her on fire and after that she had put
herself on fire and has further stated that her daughter Khushboo is
of 3 years was playing outside and was pushed by her mother-in-law
and father-in-law in her room and she also got the burn injury.
30. Thus, the first more than half of the statement, she has
clearly stated that she had put herself on fire and she never stated
that there was any demand of dowry and in general statement she
has stated that the appellants were harassing and were beating her
but she had not disclosed any reason for that.
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31. At this juncture, it is to be noted that as per the spot map
prepared by the Investigating Officer, the spot was the room of the
deceased and it is worth mentioned that the Investigating Officer
Ms. Rashmi Dhurve (PW-10) has admitted that the villagers have
stated that the deceased after closing the door burnt herself and her
daughter.
32. Another factor is to be worth mentioned that in the
postmortem report, the smell of kerosene was found on the body of
the deceased Khushboo and no clothes were found on the body of
Khushboo. If Khushboo was pushed by the family members it is but
natural that until she is caught hold her daughter the smell of
kerosene will not come from Khushboo. There was no complaint
with girl in that it is highly unnatural that grand-parents shall push
her grand-daughter in burning room.
33. From the statement of doctor Anand Ahirwar, no
antemortem injuries were found in the body of the deceased or on
her daughter.
34. From the statement of the Investigating Officer, it is clear
that all the family members along with their spouse were residing in
separate rooms and furthermore, the prosecution witness who is the
Kotwar of the Village Shiv Prasad (PW-1) has admitted that before
the death of the deceased, there was a partition amongst Prahlad,
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Kodulal and Kailash and after partition, all the three families were
residing separately in separate houses. Witness Gajraj (PW-2) has
also not denied this fact that on what ground he was being harassed,
no explanation has been submitted and on that basis, the dying
declaration that is not supported by the other evidence cannot be
fully relied.
35. On the point that it was recorded just before the 40
minutes prior to death of a woman, who was 100 % percent burn
and furthermore, from the perusal of (Exhibit-P/9) it also appears
that in the first page, the dying declaration closed and she has stated
that firstly, that her father-in-law and mother-in-law were putting
her on fire and after that rescuing herself from them, she put herself
on fire later on, the story of Khusboo was added and DD signed by
the Tahsildar, Doctor and deceased.
36. Thus, without corroboration, on the above reasons, we are
not inclined to fully rely on the dying declaration and from the
dying declaration, itself it is clear that the deceased put herself on
fire by pouring kerosene and she also put the kerosene on her
daughter and set ablaze the fire.
37. The prosecution failed to prove that there was any demand
of dowry by the appellant and they were harassing the deceased for
the demand of dowry and there is no direct connection of the death
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along with the demand of dowry. Hence, the presumption under
Section 113-A and 113-B of the Evidence Act shall not be
applicable in the case.
38. The prosecution also failed to prove that the appellants
Triveni and Kodulal pushed the daughter of the deceased in the
room where she was burning and thus by their active participation
has burnt Khusboo, thus, the appellants are entitled for the benefit of
doubt and on the benefit of doubt, the appellants are acquitted from
the offence punishable under Sections 306, 498-A and also the
appellants Kodulal and Triveni Bai also acquitted from the charges
under Section 302 of the Indian Penal Code as recorded by the trial
Court in S.T. No.200 of 2009 dated 30.12.2012 and S.T. No.201 of
2009 dated 30.12.2013.
39. The conviction and sentence recorded by the trial Court is
set aside and they are acquitted from all the charges. appellants be
released forthwith if not required, in another other cases. Thus, the
appeal nos.84 of 2014 and 96 of 2014 are allowed.
40. The case property be disposed of as per the direction of
the trial Court.
41. Copy of the judgment be kept in the connected appeal.
42. With the copy of this judgment, records of the trial Court
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be returned back.
43. The surety bonds and bail bonds of appellants Kailash,
Kodulal, Dari Bai are being discharged.
(ATUL SREEDHARAN) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
