Madhya Pradesh High Court
Smt. Golbati Bai vs The State Of Madhya Pradesh on 25 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 25th OF AUGUST, 2025
CRIMINAL APPEAL No. 10166 of 2023
SMT. GOLBATI BAI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Dr. Anuvad Shrivastava, Advocate for the appellant.
Shri Nitin Gupta, Public Prosecutor for the respondent-State.
ORDER
Per: Justice Vivek Agarwal
At the outset, learned counsel for the appellant does not wish to
press I.A.No.33165/2024, which is second application for suspension of
sentence and grant of bail to the appellant-Smt. Golbati Bai.Learned trial
Court has not taken into consideration the testimony of eye witness
Devendra Kumar Bhalavi,
Accordingly, I.A.No.33165/2024, is dismissed as not pressed.
This appeal is heard finally with the consent of learned counsel for
the parties.
Appellant-Smt. Gobati Bai is aggrieved of the judgment dated
04.08.2023, passed by learned II Additional Sessions Judge, Lakhnadon,
District Seoni (M.P.), in S.T.No.07/2019, whereby, upon trial, two of the
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accused persons, namely, Shobharam and Vaijanti were acquitted by the
learned trial Court, whereas, one of the accused, namely, Sumatlal
Bhalavi, father-in-law of the deceased and husband of the present
appellant died. Therefore, trial Court recorded conviction of the
appellant-Smt. Golbati Bai under Section 302/34 of IPC and has
sentenced her to life imprisonment and fine of Rs.5,000/-, with default
stipulation of 03 months R.I.
2. It is submitted that appellant is innocent. She has been wrongly
convicted. It is pointed out that victim in her dying declaration, as
contained in Ex.P/11, stated that whatever she said, is correct. At the
time of the incident, she was cooking her food and at that time, her
mother-in-law, father-in-law, husband and one of the elder son Devendra
were at home. Thereafter, she stated that she was not being looked
properly by her in-laws. Her mother-in-law is Golbati and father-in-law
is Sumat. Her in-laws had poured kerosene and put her on fire and then,
they had run away towards the field. Thereafter, she improvised her
statements and said that when kerosene was poured, at that time, her
husband was not present. Then she stated that she was brought to
hospital by her husband and 'Jeth' Teerath. Then she stated that her 'Jeth'
Shobha and 'Jethani' Vaijanti, were committing atrocities on her.
3. Dr. Anuvad Shrivastava, learned counsel for the appellant
submits that eye witness Devendra Kumar Bhalavi, whose presence is
admitted by the victim in his statements recorded by Shri Arvind Singh
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Tekam, Judicial Magistrate First Class, Lakhnadon, under Section
164(5) of Cr.P.C., but learned trial Court has not taken into
consideration his testimony and he has not been examined by the
prosecution before the learned trial Court. It is pointed out that
Devendra Kumar Bhalavi, categorically stated that his mother had
poured kerosene on herself and put her on fire, when his father had
entered the place of the incident from the rear side of the kitchen and had
poured water to quench the fire.
4. It is pointed out that in dying declaration (Ex.P/11), there are
two important contradictions; (i) that she stated that her in-laws had run
away towards the field; (ii) she had not shown presence of her husband
at the place of the incident, which is contrary to the evidence of
Devendra Kumar Bhalavi.
5. Thus, it is evident that prosecution deliberately omitting to cite
Devendra Kumar Bhalavi after getting his statements recorded under
Section 164(5) of Cr.P.C., as a witness, is a major lapse. It is submitted
that work of the prosecution is to bring out the truth and not to concoct
the evidence.
6. Thus, it is pointed out that it is a case of false implication.
Husband of the victim actually sustained burn injuries while trying to
douse off the fire. It is further submitted that her husband too has not
been examined, though it is an admission that he had tried to douse off
the fire. Another person, namely, Teerath Singh (PW/2), has not
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supported the prosecution case.
7. Teerath Singh (PW/2), stated that Rambati was upset and had
poured kerosene on herself. He had travelled along with Rambati in the
ambulance to the hospital at Ghansore, from where she was referred to
Jabalpur. Then he had accompanied Dani Prasad husband of Rambati
till Village Kahani. At Village Kahani, mother-in-law of Dani Prasad
and brother of Rambati had met and they had travelled till Jabalpur in
the ambulance. He stated that Rambati was residing properly in her in-
laws' house and there used to be occasional dispute between them.
8. Nandlal Kudopa (PW/3), in para 5 of his testimony, stated that
Rambati stated in front of him that whatever she used to say, she has
done it. Thus, it is pointed out that it is a case of suicide, which has been
turned into that of homicidal death and, therefore, the conviction of
Golbati is contrary to the facts which have come on record and the law
as laid down by Hon'ble Supreme Court in Takhaji Hiraji Vs. Thakore
Rubersing Chamansing and others (AIR 2001 SC 2328), wherein in para
19, Apex Court has held that "if a material witness, which would unfold
the genesis of the incident or an essential part of the prosecution case,
not convincingly brought to fore otherwise, or where there is a gap or
infirmity in the prosecution case which could have been supplied or
made good by examining a witness which though available is not
examined, the prosecution case can be termed as suffering from a
deficiency and withholding of such material witness would oblige the
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Court to draw an adverse inference against the prosecution by holding
that if the witness would have been examined it would not have
supported the prosecution case. On the other hand, if already
overwhelming evidence is available and examination of other witnesses
would only be a repetition or duplication of the evidence already
adduced, non-examination of such other witnesses may not be material."
9. In the present case, as per the statement of the victim as
contained in her dying declaration Ex.P/11, she initially shown presence
of her husband, accused in-laws and elder son Devendra. Prosecution
did not deem it proper to either examine her husband or elder son
Devendra, who have been cited by the victim as the eye witness and
whose presence has been mentioned in her dying declaration Ex.P/11.
Thus, there is a major lapse on the part of the prosecution in not
examining these two witnesses. Teerath Singh (PW/2), is the person
who had taken the injured to the hospital. He categorically stated that
Rambati was upset and he heard that she had poured kerosene on
herself.
10 Nandlal Kudopa (PW/3), also stated that Rambati is daughter
of his brother Omkar and his niece. He stated in para 5 of his testimony
that when Rambati was brought in Ambulance to Village Kahani, then
he had met Rambati. He asked Rambati as to what had happened, then
Rambati said that whatever she used to say, she did it. It has also come
on record that in cross-examination this witness admitted that Rambati
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before her death had not given any statement against her in-laws to the
police or to the Court. He admitted that he had not lodged any
complaint in relation to Rambati at any place. He also admitted that
after six months of marriage, in-laws of Rambati had provided a separate
residence to Rambati and her husband Dani. He also admitted that in an
attempt to save Rambati, Dani too had sustained burn injuries. He had
sustained burn injuries on both his hands, face and chest. Thus, it is
submitted that it is a case of acquittal and in fact, prosecution was
obliged to file a closure report, but in a malafide and mischievous
manner, charge sheet was filed and conviction has been recorded
without appreciating the facts on record.
11. Shri Nitin Gupta, learned Public Prosecutor, in his turn,
supports the impugned judgment of conviction and submits that one
application for suspension of sentence was already dismissed on merits
on 6.3.2024, by a Coordinate Bench, and therefore, no further
indulgence be shown.
12. After hearing learned counsel for the parties and going through
the record, it is evident that statement of Devendra Kumar Bhalavi S/o
victim Rambati, is available on record as were recorded by the learned
Magistrate under Section 164(5) of Cr.P.C.
13. Devendra has been cited as a person, who was present in the
house when the incident took place. This is evident from the dying
declaration of the deceased Rambati as is contained in Ex.P/11. If
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evidence of victim is examined, then on the one hand, she tried to show
presence of her husband and then, later on, with a view to give clean chit
has tried to say that he was not present at the place of the incident. He
came later on and had brought her to the hospital. Neither the husband
nor the elder son Devendra have been examined by the prosecution.
Two of the prosecution witnesses, namely, Teerath (PW/2) and Nandlal
Kudopa (PW/3), have stated that Rambati had put herself on fire.
Nandlal Kudopa (PW/3), who is uncle of the deceased, has gone to the
extent of admitting in cross-examination that husband of Rambati and
Rambati were staying separately from their in-laws after six months of
their marriage.
14. Thus, when material eye witness Devendra Kumar Bhalavi, in
his 164(5) of Cr.P.C., said that his mother had poured kerosene on
herself and burnt herself when father had entered from the rear gate of
the kitchen to douse the fire, we have no iota of doubt that prosecution
has tried to suppress the correct and material facts from the Court and
learned trial Court was failed to pay heed to the important piece of
evidence that when in the dying declaration itself presence of Devendra
is cited and prosecution failed to examine the so-called eye witness as
cited in the dying declaration, then in the light of the judgment of Apex
Court in Takhaji Hiraj i (supra), an adverse inference is required to be
drawn against the prosecution for not proving their case beyond
reasonable doubt. Therefore, in the light of the judgment of Apex Court
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i n Takhaji Hiraji (supra), we are of the opinion that since prosecution
has failed to discharge its burden, appellant is liable to be acquitted.
15. Accordingly, appeal is allowed. Impugned judgment of
conviction dated 04.08.2023, is hereby, set aside. Appellant, who is
aged about 70 years, is acquitted of the charges if not required in any
other case, be released forthwith.
16. Record of the learned trial Court be sent back.
17. Case property be disposed off in terms of the orders of the
learned trial Court.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
A.Praj.
