Madhya Pradesh High Court

Jayanti Bai vs The State Of Madhya Pradesh on 7 February, 2025

Author: Vivek Rusia

Bench: Vivek Rusia

          NEUTRAL CITATION NO. 2025:MPHC-IND:3152




                                                                    1                                      CRA-397-2016
                              IN     THE        HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                          BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                             &
                                           HON'BLE SHRI JUSTICE GAJENDRA SINGH


                                                  CRIMINAL APPEAL No. 397 of 2016
                                                          JAYANTI BAI
                                                             Versus
                                                 THE STATE OF MADHYA PRADESH
                           Appearance:
                                   Shri Anil Ojha - Advocate for the appellant,
                                   Shri H S Rathore - Government Advocate for the respondents State.

                                                           Reserved on :-21.01.2025
                                                            Posted on :- 07.02.2025
                            ----------------------------------------------------------------------------------------------
                                                                JUDGMENT

Per: Justice Gajendra Singh

This Criminal appeal under Section 374 (2) of the Code of Civil Procedure is preferred being aggrieved by the conviction under Section 302

of the IPC for committing the murder of her sister-in-law (Jaitani).

2. Appellant stands convicted vide judgment dated 03.02.2016 passed by the learned Sessions Judge, Indore in Session Trial No.442/2011 under Sections 302 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.5000/- with default stipulations.

3. Prosecution case before the trial Court was that deceased Seema

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

2 CRA-397-2016 was the sister-in-law (Jaitani) of appellant accused Jayantibai. Family of the accused Jyantibai was residing in the backyard of house No. 243-A, Scheme No.78, Indore, whereas family of deceased Seema was residing in the front portion of the same house. Appellant accused Jyantibai caused a dispute usually with her sister-in-law Seema and wants to throw out the deceased Seema from the house. On 13.4.2011 Ram Swaroop, husband of the deceased Seema and Kanyaya, husband of the appellant Jayantibai left the home for their work as a Labourer and at around 04:00 PM there was a dispute between the appellant accused and Seema. Jayanti/ accused has poured kerosene oil on the body of the Seema and set her ablaze by using matchbox inside the house. Neighbours extinguished the fire. Brother of Seema, namely, Dinesh (PW-8) and father of Seema, Ram Prasad (PW-10)

came to the spot and admitted Seema to M.Y. Hospital, Indore for treatment through auto-rickshaw and intimated Police Station. Dying declaration Exhibit-P-19 was recorded by Pratap Kumar (PW-17), Naib Tehsildar at M.Y. Hospital. During treatment Seema died on 14.04.2011 at 06:30 PM. Autopsy was conducted at M.Y. Hospital, Indore on 15.04.2011 and a Crime No. 255 of 2011 was registered at Police Station Lasudiya, Indore. Spot map was prepared. The appellant accused Jayantibai was taken into custody on 19.04.2011 vide Exhibit-P-1. Memorandum of information (Exhibit-P-2) was prepared and a steel bowl, purple blue saree and pink colour blouse was recovered vide Exhbit-P-3 on the information Exhibit-P-2. Statement of witnesses were recorded, property vide Exhibit-P-10 was recovered from the spot. Seized material was forwarded to FSL, Sagar vide Exhibit-P-17 and

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

3 CRA-397-2016 FSL report was submitted along with the final report to the Court of JMFC, Indore, where Case No. 10287 of 2018 was registered. Vide order dated 14.06.2011 case was committed to the Court of Sessions Judge, Indore.

Charge u/s 302 of IPC was framed against the appellant accused. The appellant/ accused abjured the guilt and claimed for trial.

4. To bring home, the prosecution examined Dinesh Kushwaha, the brother of the deceased as PW-8, Vijay Kushwaha, (PW-6) brother-in-law of deceased Seema, Shankar as (PW-7), Naib Tehsildar, Indore Pratap Kumar as (PW-17), Pushpa Verma as (PW-1), Neelam Sharma as (PW-2), Kailash as (PW-3), Manish as (PW-4), Jagdish Pure as (PW-5), Demonstrator Forensic Medicine Doctor Prashant Rajput as (PW-9), Husband of deceased Seema who is Ramswaroop as (PW10), Senior Scientific Officer Scene of Crime Doctor Sudheer Sharma as (PW-11), Assistant Sub-Inspector Madansingh (PW-12), Doctor Hemant Dwivedi of M.Y. Hospital, Indore as (PW-13), Anil Yadav, Investigating Officer/Inspector as (PW-14), Head Constable Mahesh Sharma No,.803 as (PW-15), Constable.

5. In examination under Section 313 of the CrPC, appellant accused Jayantibai either denied the circumstances appeared against her in evidence or expressed her ignorance regarding those factual circumstances and advanced the defence that on the date of incident she was at the house of her friend Kiran as there was a ring ceremony of her friend Kiran and was busy in preparation of lunch/dinner. Maternal side of Seema have grudges with her because her standard of life was better than the standard of Seema and

due to the grudges they implicated her in this case. Appellant examined the

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

4 CRA-397-2016 Nirmalabai as DW-1 and Mansingh as DW-2 in her defence.

6. Appreciating the prosecution and defence evidence, trial Court found proved that Seema died due to burn injuries caused by pouring kerosene and setting her ablaze by the appellant accused and recorded the finding that the act of the appellant accused falls within the first Clause of Section 300 of the IPC and convicted the appellant under Section 302 of the IPC and sentenced her, as per Paragraph-2 of the judgment.

7. Challenging the conviction and sentence, this appeal has been preferred on the ground that trial Judge has erred by not considering the fact that there is no iota of evidence collected by the prosecution for which the appellant could be tried and convicted. Trial Judge erred in not considering the fact that during investigation it was revealed that the deceased was burnt more than 90% which clearly indicates that she was not in a condition to give any declaration, even she was not in senses, so dying declaration cannot be relied upon. Learned Judge erred in not considering the material omission and contradictions appearing in the testimony of the prosecution witnesses. Trial Court not considered the fact that Seema was burnt completely and heavy pain killers were prescribed to her for relieving the pain. Accordingly, she was not in a condition to talk with anyone. Trial Judge erred in not considering the defence of the appellant. Trial Judge erred in not considering the fact that investigation in the instant case has been partial, unfair and unjust towards the appellant.

8. Heard learned counsel for the parties and perused the record.

9. Government Advocate supported the conviction and sentence

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

5 CRA-397-2016 arguing that there are multiple declarations and all are in consonance. Dying declaration is recorded by Executing Magistrate which has no reason to falsely implicate the appellant accused. Trial Court rightly dispelled the defence version and prayed for dismissal of the appeal.

10. Perused the record.

11. From the record, it is not in dispute that Seema (deceased) sustained burn injuries on 13.04.2011 at around 04:00 PM and died on 14.04.2011 at 06:30 PM during treatment at M.Y. Hospital, Indore. So, two question arises whether dying declarations of Seema are trustworthy, voluntary and made in fit state of mind. Another question is if the involvement of the appellant accused in the incident dated 13.04.2011 is proved then constitute the act of the appellant accused.

12. Trial Court found the dying declaration recorded by Tehsildar Pratap Kumar (PW-17) on 13.04.2011 as reliable. Doctor Hemant Dwivedi (PW-13) was on emergency duty on 13.04.2011 at M.Y. Hospital, Indore when Seema, wife of Ram Swaroop was brought by Dinesh (PW-8). Seema has 90% burn injuries in which some were superficial and some were deep. He examined the Seema and at that time she was talking normally and he referred Seema for further treatment. Doctor Hemant Dwivedi of M.Y. Hospital, Indore (PW-13) examined Seema at 05:30 PM as mentioned in Exhibit-P-15. Statement of Dinesh, (PW-8), who is brother of deceased Seema and who admitted Seema to M.Y. Hospital, Indore. (PW-6) Vijay Kushwaha, brother-in-law of Seema, who rushed to M.Y. Hosptial, Indore after receiving the intimation from Dinesh (PW-6) and Inspector Anil Yadav

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

6 CRA-397-2016 (PW-14), who recorded the statement of Seema on 13.04.2011 at 20:50 has stated that Seema told them how she got burn injuries and her statement in the form of dying declaration are also in-conformity with statement recorded by Executive Magistrate Pratap Kumar (PW-17) as Exhibit-P-19 and told that Seema was fit to make a statement. Non examination of concerned Doctors, who endorsed the fitness at 'D' to 'D' of Exhibit-P-19 does not affect the truthfulness and veracity of Exhibit-P-19.

13. Dying declaration of Seema recorded as Exhibit-P-19 is reproduced in paragraph-24 of the judgment of the trial Court mentions the answer to the question that there was quarrel between the deceased and appellant accused. In this statement the cause of dispute is not mentioned, but Dinesh (PW-8) has stated in Paragraph-2 that Seema told her that in the morning a dispute was occurred due to the children. Vijay Kushwaha (PW-

8) in Paragraph-3 has mentioned that at 03:30 PM of 13.04.2011 there was a dispute between the appellant accused and Seema. The statement of Seema recorded by Police Inspector Anil Yadav (PW-14) on 14.04.2011 also mentions that dispute occurred due to children.

14. Division Bench of this Court in Raj Singh Vs. State of M.P. reported in 2024 Latest Case Law 9130 MP has held that when incident had occurred all of a sudden in a heat of passion, the act of the appellant would come within the purview of exception 4 to Section 300 of the IPC and if that

would be the position, according to us the appellant has committed an offence under Section 304 Part-II of the IPC.

15. Division Bench of this Court in Ramoo @ Mana Vs. State of MP,

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

7 CRA-397-2016 judgment dated 14.05.2024 in Criminal Appeal No. 2736 of 2012 reported in 2024 Latest Case Law 12411 MP considered the applicability of 304 Part-I of the IPC. Relevant Paragraphs-22 to 24 are being reproduced below :-

"22. A Division Bench of this Court in the case of Ganesh Ram vs. State of M.P. reported in 2010 (2) MPHT 350 has held as under:-

"14. Considering the aforesaid case law on the point which also applied to the factual scenario of the present case also that due to some minor quarrel in between the husband and wife with regard to preparation of tea, the appellant - accused without any intention poured kerosene on the wife deceased Pinki and thereafter set her on fire, due to which, she sustained 50 to 55 per cent burn injuries and died near about 5 days after the incident due to complication of the burn injuries and in such circumstances, the appellant/accused can be convicted for the offence punishable under Section 304 Part-I of I.P.C. and not under Section 302."

23. A Division Bench of this Court in the case of Sunita Bai Behni vs. State of M.P. (Cr.A. No.505/2016) converted conviction to Section 304 Part - I I.P.C. by invoking 4th Exception to Section 300 I.P.C. by holding as under:-

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

8 CRA-397-2016 "13. In the case of Ganesh Ram (supra), the burn injuries were to the extent of 50-55% and victim died after 05 days. In Girja Shankar (supra), the burn injuries were to the tune of 80% and he died after 07 days. In the instant case, the burn injuries were 50-55% and Shakil died after 14 days. In both the cases, namely Ganesh Ram and Girja Shankar, the Division Bench converted the conviction under Section 304 Part-I of IPC and reduced the sentence accordingly. Since in those cases, appellant remained in custody for 11 and 14 years respectively, they were directed to have undergone the sentence. In the present case, in our view, appellant's overt act attracts Exception 4 of Section 300 of IPC."

24. A Division Bench of this Court in the case of Vinod Kumar vs. State of M.P., ILR 2009 MP 1160 has held as under:-

"18. It is true that by the evidence of dying declaration, it has been established that accused caused the death of Panchshila by setting her on fire, but from the contents of Ex.P/6 as well as of Ex.P/20, it seems to us that the incident occurred suddenly when accused admonished deceased saying that she had gone to the house of Vijay Thakur and had indulged in sinful act. It

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

9 CRA-397-2016 was mentioned by her that accused told her that he had received information that she had gone to the house of Vijay Thakur. On appreciating the mental condition of the accused, as reflected by his conduct at the time of commission of the offence, it can be gathered that he acted on a sudden impulse, in a sudden quarrel and without premeditation. In these circumstances, we are unable to hold that accused intended to commit murder of the deceased, but his act of setting fire to deceased must be held to have been done with the intention of causing her death or causing such bodily injury as was likely to cause death, in which case the offence would be one punishable under section 304 Part-I of the Indian Penal Code.

19. In the result, the conviction of the appellant under section 302 of the Indian Penal Code and the sentence of life imprisonment awarded to him by the trial Court are set aside and instead, he is convicted under section 304 Part-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. The appellant is in custody since 4.5.1999. If he has completed his sentence of 10 years, he shall be released forthwith if not required in any other case."

16. If the factual matrix of the present case is examined on the

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

10 CRA-397-2016 principle laid down in the aforesaid judgment and the dying declaration of the deceased is examined along with the oral dying declaration that sole cause of incident was domestic quarrel due to children between the deceased and the appellant on the day of occurrence i.e 13.04.2011, it will be crystal clear that the appellant cannot be held guilty for committing the offence under Section 302 of the IPC and the case would fall under the exception 4 to Section 300 of IPC she can be held guilty for committing offence under Section 304 Part-I IPC.

17. In view of the foregoing discussion, this appeal is partly allowed. The conviction of the appellant under Section 302 of the IPC is set- aside and the appellant is convicted for an offence punishable under Section 304 Part-I of the IPC and as per the Certificate dated 21.11.2024 of Jail Superintendent Central Jail, Indore the appellant accused Jayanti Bai has undergone the sentence as below :-

'' बं दनी ारा उ करण म भुगती गई सजा एवं माफ क जानकार जेल रकॉड अनुसार आज दनांक 20.11.2024 क थित म िन नानुसार है :-

                             .                                ववरण                               वष माह दन
                           01.    वचाराधीन अविध- दनांक 19.04.2011 से 17.06.2011 तक               00 01 29
                                 सजा अविध- दनांक 03.02.2016 से 20.11.2024 तक          ( दनांक
                           02.                                                                   08 09 02

14.02.2020 से 02.03.2020 तक अ थाई जमानत पर रह है ) वा त वक भुगती सजा- 08 11 01 ा प रहार/माफ - 03 01 22

18. After the Certificate appellant accused has further suffered a two and a half months sentence, till date.

19. Accordingly, the above sentence is sufficient for the offence under Section 304 Part-I of the IPC. Accordingly, the sentence of the

NEUTRAL CITATION NO. 2025:MPHC-IND:3152

11 CRA-397-2016 appellant accused under Section 304 Part I of the IPC is converted to the period already undergone and the fine amount is hereby maintained. The appellant be released from jail after depositing the fine amount, if he is not required to keep in jail in any other case.