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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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,

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August 7, 2009

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