Madhya Pradesh High Court
Farjana vs The State Of Madhya Pradesh on 29 April, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:19636
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 29th OF APRIL, 2025
CRIMINAL APPEAL No. 2054 of 2016
FARJANA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Mithilesh Pd. Tripathi - Advocate for the appellant.
Shri Akshay Namdeo - Govt. Advocate for the respondent/State.
ORDER
Per: Justice Atul Sreedharan
The present appeal has been filed by the appellant, who is aggrieved
by the judgement of conviction and sentence dated 06.06.2016 passed in S.T.
No.83/2015 by the Court of learned First Additional Sessions Judge,
Burhanpur, whereby the appellant, who is the daughter-in-law of the
deceased has been tried and found guilty for the offence of murder of her
mother-in-law and convicted under Section 302 of IPC and sentenced to
suffer Life Imprisonment. Today, the matter is listed before this Court for the
orders on I.A. for suspension of sentence and grant of bail. However, with
consent of parties, the appeal is being heard finally.
2. The case of prosecution is that on 11.10.2015, at around 08:00 PM,
the appellant poured kerosene oil over the deceased Khurshid Bi, a resident
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of Doudpura, District - Burhanpur, and set her on fire. The deceased is the
mother-in-law of the appellant. The deceased was taken to the hospital by her
relations, where she has given a dying declaration (Ex.P/5). In her dying
declaration, she has stated that it was the appellant herein, came close to her
when she was sleeping on her bed, poured kerosene oil on her and set her on
fire. She says that the incident took place at about 08:00 PM in the night and
that she and the appellant were alone at home at the time of the incident. The
FIR was registered on 12.10.2015 at 11:28 AM and the offence relates to
11.10.2015. In the FIR, the appellant is named as an accused.
3. Learned counsel for the appellant submits that the appellant has
wrongly been convicted only on the basis of dying declaration of the
deceased Khurshid Bi. He further says that there is every probability of the
deceased having set herself on fire on account of bickering between the
appellant and the deceased being mother-in-law and daughter-in-law. The
pre-MLC (Ex.P/8) reflects that deceased had suffered 80% burns. The FIR
has been registered by the ASI on the intimation given by the deceased
Khurshid Bi and upon her dying declaration.
4. Learned counsel for the appellant has drawn the attention of this
Court to Ex.P/7, which is the intimation sent from the hospital to the Police,
where the history of the incident is given as the deceased having suffered
burns from the stove and was brought to the Hospital for treatment. After she
died, the postmortem report (Ex.P/6) was prepared, which gives the cause of
death as cardiorespiratory failure leading to asphyxia as a result of burns.
The witness Shehnaz Bano (PW-1) is the aunt of the appellant's husband
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Javed. She says that she is related to the deceased also as her elder sister-in-
law. On the date of the incident, she heard sounds of quarrelling between the
appellant and the deceased, when she went running, she found that the
deceased was engulfed in flames. She further states that her husband came
there, and they took the deceased to the hospital. She further states that in the
hospital, the deceased gave a statement, the contents of which are not known
to the witness because, before the statement was recorded, she was moved
out of the room. She was declared hostile in cross-examination. In cross-
examination, she states that she never told the Police that the deceased had
informed her that the appellant had poured kerosene oil over the deceased
and set her on fire. She has however, agreed to the suggestion that there was
constant bickering between the appellant and the deceased. Mohd. Hamid
(PW-2) says that the deceased was her sister-in-law. His statement is not of
much consequence as neither there has been an oral dying declaration given
to this witness nor is he a witness to the incident. G.S. Geharwar (PW-4),
who recorded the dying declaration of the deceased being the Executive
Magistrate/Tehsildar at Burhanpur has testified to the process of recording
the dying declaration. In cross-examination, this witness states that it is
correct to suggest that the deceased Khurshid Bi had told him in her dying
declaration that she was sleeping when the incident took place. However, he
states that it is correct to suggest that in Ex. P/5, there is no mention of the
fact that he had read over the statement to the deceased after he had recorded
the same. Abdul Rafiq (PW-6), says that the appellant herein is the a
daughter-in-law (bahu) to him in relation and the deceased Khurshid Bi
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would be a sister-in-law in relation. He says that at the time of the incident,
he had just returned from work and after having parked his handcart, he went
home, when he heard his sister-in-law Khurshid Bi screaming for help. Upon
hearing this, he went running to the scene and found that the deceased was
completely engulfed in flames. He further states that he used the blanket to
put out the fire and he along with his nephew and his brother Fareed, took
the deceased to the hospital, where she was admitted for treatment. He also
states that the statement of the deceased was recorded at the hospital. In
Paragraph 11 and 12, he states that the deceased told him that the appellant
herein poured kerosene oil over her and set her on fire. Mohd. Farid (PW-13)
is father-in-law of the appellant and the husband of the deceased. He also
states that on the date of the incident, there was a quarrel between the
deceased and the appellant after which the deceased went into her room and
closed the door and started preparing food during which, she caught fire from
the stove after which they brought the deceased to the hospital and got her
admitted there. He has been declared hostile in the cross-examination in
which he says that it is correct to suggest that at the time of the incident, he
was at home and had gone to the washroom and at that time, he heard the
deceased shouting for help. During that time, he says that the appellant here
went out from there. However, in paragraph 10 of the cross-examination, he
states that he has given his statement to the examination-in-chief as he was
tutored by his sister-in-law Shehnaz and her husband and he gave the
statement to the police in the said manner suggested by them. He clarifies
that the deceased never told him that the appellant poured kerosene oil over
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her and set her on fire and he further clarifies that the deceased caught fire
while cooking food.
5. Learned counsel for the respondent/State, on the other hand, submits
that there is no reason to doubt the dying declaration given by the deceased
in which she has categorically stated that the deceased poured kerosene oil
over her and set her on fire. He further submits that other prosecution
witnesses, who were close to both the appellant and the deceased have stated
that there was constant bickering between the two and that they were told by
the deceased that the appellant had poured kerosene oil over her and set her
on fire. As regards, the husband of the deceased, learned counsel for the
respondent/State submits that though he has been declared hostile and cross
examined and has not supported the case of the prosecution, the same does
not weaken the prosecution's case as other close relations, who are related to
both the appellant and the deceased have testified against the appellant
herein.
6. Heard learned counsel for the parties and perused the record of the
learned Lower Court. It appears that the deceased died on account of burns
received by her. That is only undisputed fact in this case. The witnesses, in
this case, have either turned hostile like Shehnaz Bi, who has stated in cross-
examination by the prosecutor that it is incorrect to suggest that she had ever
stated to the police that the deceased had told her that she was set on fire by
the appellant and those who have not turned hostile and have supported the
case of the prosecution are merely witnesses to information given to them by
the deceased. The husband of the deceased himself has turned hostile and has
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not supported the case of the prosecution and has instead stated that the
deceased suffered burns during the time she was cooking her food on the
stove.
7. One witness about whom this Court must take serious cognizance of
is the photographer, who was examined as PW-11. He states that he had
gone to the scene of occurrence, when called by the police to take
photographs. He states in his testimony that he did not see any signs of
burning in the room and that the bed and sheets on it were absolutely intact
showing no signs of any burn. There was no soot on the walls. The
photographs of the scene of occurrence are also exhibited before the learned
trial Court. Article A/4 is a photograph purportedly of the room of the
deceased, which is absolutely intact. The walls are white for the major
portion and 1/3rd of the bottom half is blue in color. The whitewash and the
paint is absolutely intact showing no signs of any burns or soot and the
sheets and the bed, where the deceased was allegedly lying is intact without
any signs of any burn. It is also relevant to mention here that PW-11 has not
been declared hostile by the prosecution, even though his entire testimony
would weaken the case of the respondent/State against the appellant here.
8. In view of what has been argued, considered and held by us here in
above, the dying declaration given by the deceased, though is a major piece
of evidence, but however, the rules of prudence dictate that where there is
doubt, corroboration must be sought. The law is also settled that without
corroboration, a dying declaration may be taken into consideration, where it
is of such quality that it inspires the confidence of the Court, whereby no
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further corroboration is required. However, in the present case, the same
cannot be said. The dying declaration given by the deceased is almost set to
nought by the statement of PW-11, the photographer. The photos of the
scene of occurrence are exhibited before the Ld. Trial Court clearly shows
that there are no signs of any burning inside the room, where the deceased is
stated to have been sleeping, when the incident occurred. It is also a well
settled proposition that while witnesses may lie, the circumstances do not and
as already stated herein above, PW-11 was not declared hostile, even though
his testimony had the effect of weakening the case of the prosecution against
the appellant. The other witnesses who are related to both the appellant and
the deceased have only testified to the bickering between the deceased and
the appellant and the fact that the deceased informed them that the appellant
had set her on fire. However, for the reasons already given hereinabove, the
dying declaration of the deceased cannot be seen in isolation as there were
sufficient doubts raised with regard to the other attending circumstances like
the intact room without any signs of a fire having taken place inside it, the
statement of close relations to both the appellant and the deceased, some of
whom have turned hostile and have not supported the prosecution's case,
while others who have ostensibly spoken up in favor of the prosecution only
go to the extent of reflecting that the appellant and the deceased were at
loggerheads and that they were informed by the deceased that the appellant
set her on fire.
9. The nature of evidence that has been brought on record is weak and
the same is contradicted by other attending evidence on record such as the
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photographs and the statement of the photographer (PW-11). Under the
circumstances, this Court holds that the prosecution has not been able to
prove the case against the appellant beyond reasonable doubt. The appeal
succeeds and is hereby allowed.
10. The judgement of conviction and sentence against the appellant is
set aside. He shall be set forth at liberty, if not wanted in any other case.
11. The appeal stands disposed of.
12. The trial Court record along with a copy of the judgments is sent
back to the trial Court.
(ATUL SREEDHARAN) (ANURADHA SHUKLA)
JUDGE JUDGE
Shruti
