IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 658 OF 2002
Maniben .... Appellant
Versus
State of Gujarat .... Respondent
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. The present appeal is filed against the judgment and order passed by
the High Court of Gujarat holding that the case of the appellant herein is
covered under Clause (4) of Section 300 of the Indian Penal Code (for short
`the IPC’) and, consequent thereto convicting her under Section 302 of IPC
for murder of her daughter-in-law -Santokben alias Muktaben and
sentencing the appellant to imprisonment for life. However, by the said
order, imposition of the fine of Rs. 3,000/- by the Sessions Court was set
aside. Earlier the Sessions Court held the appellant guilty for the offence of
Section 304, Part II of IPC and convicted and sentenced her for 5 years
imprisonment and fine of Rs. 3,000/- and in lieu to undergo further
imprisonment of one year.
2. In order to appreciate the rival contentions advanced by the parties
and issues involved, it would be necessary to set out brief facts of the
case which gave rise to the present criminal appeal.
Deceased Santokben was married to Parshottambhai Patel of village
Jamvadi, Taluka Gondal, District Rajkot. After the marriage she gave birth
to three children, who were all girls. The appellant herein, who is the
mother-in-law of Santokben, was dissatisfied with Santokben because she
was not able to bear a boy. According to prosecution on 29.11.1984 at about
7.00 a.m. the deceased with her youngest daughter Minaxi had gone to fetch
water and while she was returning with water pot on her head and carrying
Minaxi with the other hand, the appellant came and threw a burning wick
made of rags on the deceased and thereby set fire to the terylene clothes put
on by the deceased. The deceased brought down her minor daughter whom
she was carrying and managed to reach her house with the burn injuries.
3. After reaching her house the deceased summoned her daughter Nita
who had gone to attend her school. Nita in turn informed witness Babulal
2
Liladhar and the deceased was taken to Gondal Government dispensary at
about 9.35 a.m. At Gondal Government dispensary the deceased was
examined by Dr. Hareshkumar N. Savaliya, who was a Medical Officer at
the said dispensary and on finding that the deceased has sustained more than
60% burns, he advised the persons accompanying her to remove her to
Rajkot Hospital. At about 11.00 a.m. on that day an information was
conveyed by Mr. Ghanshyambhai, who was police constable on duty at
Gondal hospital, to Umiyashanker Jivram, P.S.O. at Gondal Taluka Police
Station about the deceased having been admitted in the hospital for
treatment of her burn injuries. Mr. Umiyashanker had in turn asked Jamadar
Sultan Siddi at about 11.00 a.m. to go to the dispensary and record the
complaint. Accordingly, Jamadar Sultan Siddi went to the Gondal hospital
and recorded the complaint of the deceased at about 12.45 p.m., which is the
First Information Report. After reducing the complaint/FIR of the deceased
into writing, he obtained the thumb impression of the deceased thereon
(Exhibit 46). Meanwhile at about 11.20 a.m. witness D.P. Trivedi, who
was on duty at that time as Deputy Mamlatdar sent a report to Executive
Magistrate that the deceased was admitted to hospital with burn injuries and
he should record her dying declaration. Accordingly, Mr. D.P. Trivedi,
Executive Magistrate had gone to Gondal Hospital and after verifying from
3
Dr. Savaliya that deceased was conscious and in a fit state of mind to make
statement, recorded her dying declaration. Thereafter, the deceased was
removed to Rajkot Government hospital. During the course of treatment the
deceased died on 07.12.1984. At the instance of Head Constable C.D. Vyas,
Dr. Tarlikaben H. Shah performed autopsy on the dead body of the
deceased. Necessary investigation into the case was made by Mr. L.S.
Chavda, P.S.I., of Gondal Taluka, Police Station. Mr. Vijay J. Menad, who
was then appointed as probationer P.S.I, assisted Mr. Chavad.
4. After conclusion of the investigation, the appellant was charge-
sheeted for the offence punishable under section 302 of IPC. As the offence
under Section 302 of IPC was exclusively triable by the Court of Sessions,
the case was committed to the Court of learned Additional Sessions Judge,
Gondal, District Rajkot, for trial. Charges were framed against the appellant
under section 302 of IPC, to which she pleaded not guilty.
5. The prosecution examined 20 witnesses and also produced
documentary evidence such as postmortem report of the deceased, dying
declaration of the deceased recorded by Mr. Trivedi, complaint lodged by
the deceased, different panchnamas etc. to prove its case against the
appellant. After recording of evidence of prosecution witnesses, the learned
4
Judge recorded the statement of the appellant under Section 313 of the
Criminal Procedure Code. The appellant denied the case of the prosecution,
but did not examine any witness in support of her case.
6. The trial court held that the prosecution proved that the deceased died
a homicidal death. The trial court found the FIR as well as dying declaration
reliable and trustworthy. The trial court concluded that though it was proved
that the appellant had set the deceased on fire, the medical evidence
established that the injuries sustained by the deceased were not sufficient in
the ordinary course of nature to cause her death and, therefore, the appellant
committed offence punishable under Section 304 Part-II of IPC.
Accordingly, by judgment and order dated 15.06.1985, the appellant was
sentenced to undergo rigorous imprisonment for five years and to pay a fine
of Rs. 3,000/-, in default, rigorous imprisonment for one year.
7. Being aggrieved by the Judgment and Order of conviction passed by
the Hon’ble Additional Sessions Judge, Gondal in Case No. 15 of 1985, the
State of Gujarat preferred an appeal being Criminal Appeal No. 1198 of
1985 under Section 378 of the Criminal Procedure Code before the High
Court of Gujarat with contention that the intention of the appellant was to
cause the death of the deceased as she very well knew that her act of setting
5
fire to the terylene clothes put on by the deceased was so imminently
dangerous that it would, in all probability, cause death of the deceased or
such bodily injury as was likely to cause death of the deceased and,
therefore, the appellant could not have been convicted for a lesser offence
punishable under Section 304 Part-II of IPC but should have been convicted
under Section 302 of IPC.
8. The High Court by its judgment and order dated 03.04.2001 held that
the learned Additional Sessions Judge had misconstrued the provisions of
Section 300 and Part-II of Section 304 of IPC and thereby arrived at a wrong
finding that the case of the appellant was a case within the meaning of Part II
Section 304 of IPC. The High Court also held that the case of the accused
is covered under Clause (4) of Section 300 of IPC and, therefore, passed an
order of conviction of the appellant under Section 302 IPC for murder of her
daughter-in-law and sentenced her to imprisonment for life. However, the
fine of Rs. 3,000/- imposed by the Sessions Court was set aside. Hence, the
appellant filed the present appeal.
9. Mr. M.R. Calla, learned senior counsel appearing for the appellant
submitted that neither Section 302 of IPC nor clause (4) of Section 300 of
IPC is applicable to the case as the appellant had no intention to inflict that
6
particular bodily injury which, in the ordinary course of nature, was not
sufficient to cause the death of the deceased. He submitted that the High
Court should not have relied upon the dying declaration as the same was not
recorded according to law nor did it comply with all the requirements so as
to be the basis of conviction. He further submitted that the deceased did not
die of burn injuries but died due to septicemia, which was not the direct
result of the bodily injury received by the deceased.
10. The learned counsel for the State, on the other hand, supported the
order of conviction and sentence passed by the High Court. He submitted
that the High Court was correct and justified in relying upon the aforesaid
dying declaration, which was duly and properly recorded by the Executive
Magistrate.
11. Having heard the learned counsel appearing for the parties, we now
proceed to analyse the entire material on record so as to ascertain whether or
not the conviction and sentence passed against the appellant would and
could be upheld.
12. After a careful analysis of the facts and circumstances of the case we
find that it is not in dispute that the alleged incident took place in the
morning of November 29, 1984 when the deceased was coming back with
7
water pot on her head and her daughter on her waist. The allegation is that
the appellant set her on fire with a burning wick made of rags consequent
whereupon the deceased suffered burn injuries on the whole body and
succumbed to her injuries on 07.12.1984 during the course of treatment.
The dying declaration of the deceased, which is produced by Mr. Trivedi,
Executive Magistrate, at Exhibit 15 indicates that while deceased was
returning home after fetching water, the appellant had set her terylene
clothes on fire by means of a burning wick of rags. The factum of recording
of the FIR as also the dying declaration is also not disputed. As per the
Judgment and Order of the Additional Sessions Judge, Gondal, the
appellant/accused was taken into custody on 15.6.1985 to undergo the
sentence and was released on 07.09.1989 on expiry of the sentence.
13. The post-mortem report of the deceased was placed on record during
the trial and Dr. Tarlikaben, who conducted the post-mortem examination
was also examined as a witness in the trial. The said documentary and oral
evidence of the doctor, as adduced, that he also treated the patient and
conducted the post-mortem examination made it crystal clear that the
deceased remained under treatment in hospital for 8 days and died after 8
days of the incident in question. The deceased was admitted in the hospital
with about 60% burn injuries and during the course of treatment developed
8
septicemia, which was the main cause of death of the deceased. It is,
therefore, established that during the aforesaid period of 8 days the injuries
aggravated and worsened to the extent that it led to ripening of the injuries
and the deceased died due to poisonous effect of the injuries.
14. It is established from the dying declaration of the deceased that she
was living separately from her mother-in-law, the appellant herein, for many
years and that on the day in question she had a quarrel with the appellant at
her house. It is also clear from the evidence on record that immediately after
the quarrel she along with her daughter came to fetch water and when she
was returning, the appellant came and threw a burning tonsil on the clothes
of the deceased. Since the deceased was wearing a terylene cloth at that
relevant point of time, it aggravated the fire which caused the burn injuries.
There is also evidence on record to prove and establish that the action of the
appellant to throw the burning tonsil was preceded by a quarrel between the
deceased and the appellant. From the aforesaid evidence on record it cannot
be said that the appellant had the intention that such action on her part would
cause the death or such bodily injury to the deceased, which was sufficient
in the ordinary course of nature to cause the death of the deceased.
Therefore, in our considered opinion, the case cannot be said to be covered
under clause (4) of Section 300 of IPC. We are, however, of the considered
9
opinion that the case of the appellant is covered under Section 304 Part II of
IPC.
15. We find that the view taken by the trial court was a cogent and
plausible view and, therefore, we hold that the conviction and sentence
imposed by the trial court is justified. Considering the totality of the
circumstances and the fact that the appellant is of 85 years of age and had
undergone the sentence imposed by the trial court under the provisions of
Section 304 Part II of IPC, we set aside the conviction and sentence of the
appellant imposed by the High Court of Gujarat and restore the judgment
and order passed by the trial court. Since the appellant has already
undergone the sentence imposed by the trial court she shall not be re-
arrested unless required in connection with any other case. Bail bonds shall
stand discharged. This shall not be the precedent for other cases.
16. The appeal is allowed to the aforesaid extent.
…………………………………J.
[Dalveer Bhandari]
………………………………J.
[Dr. Mukundakam Sharma]
New Delhi,
10
August 7, 2009
11