State of Gujarat  INSC 1411 (7 August 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 658 OF 2002 Maniben .... Appellant
Versus State of Gujarat .... Respondent
MUKUNDAKAM SHARMA, J.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
The appeal is allowed to the aforesaid extent.
.......................................J. [Dalveer Bhandari]