whether throwing of burning stove on the deceased is a rash and negligent ? – No.- What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs 50,000 which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In view of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.763 of 2019
(arising out of SLP (Crl.) No.9312/2014)
KALABAI …APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
This appeal has been filed by the appellant against
the judgment and order of the High Court of Madhya
Pradesh, Bench at Indore dated 25.03.2014 by which
Criminal Appeal filed by the appellant questioning her
conviction and sentence under Section 302 IPC has been
dismissed.

  1. The prosecution case in brief is:
    Deceased, Smt. Lalita Bai was wife of Vijay Singh.
    The appellant is sister-in-law of the deceased. On
    2
    20.08.1999 in the late evening a quarrel was going on
    between Lalita Bai and her husband, Vijay Singh. The
    appellant who lives on the ground floor came on the
    first floor where Lalita Bai was boiling milk on
    battiwala stove. Appellant threw the burning stove on
    the deceased due to which clothes of deceased caught
    fire and serious burn injuries were caused. Husband of
    the deceased got her admitted in the M.Y. Hospital,
    Indore. On receiving information from the Hospital, a
    Police Inspector reached the Hospital. The information
    was mentioned in the Rojnamcha and Head Constable, Udai
    Pal Singh was sent in the Hospital where Lalita Bai was
    being admitted with burn injury with 96% burn. Report
    was asked for from the Incharge-Medical Officer as to
    whether patient was in a position to give the
    statement, after receiving certificate that the patient
    was fit to give statement, I.O. informed the Executive
    Magistrate-cum-Naib Tehsildar for recording her
    statement. Executive Magistrate-cum-Naib Tehsildar
    reached Hospital and recorded the statement of the
    patient, Lalita Bai. On the basis of the report case
    under Section 307 read with Section 34 IPC was
    3
    registered on 20.08.1999. Lalita Bai, during the course
    of treatment died on 23.08.1999 and case has been
    registered under Section 302 IPC. Chargesheet was
    submitted both against Lalita Bai and Vijay Singh and
    the trial proceeded against both of them.
  2. The prosecution in support of its case has produced
    24 witnesses. The trial court after considering the
    evidence on record and relying on the dying declaration
    of the deceased recorded on 21.08.1999 held the
    appellant guilty of murder. Appellant was convicted
    with life imprisonment and fine of Rs.2,000/-. Vijay
    Singh, husband of deceased was acquitted from charge
    under Section 302 read with Section 34 IPC. Appellant
    filed a criminal appeal in the High Court challenging
    her conviction and sentence. The High Court by the
    impugned judgment has dismissed the criminal appeal
    giving rise to this appeal.
  3. This Court vide order dated 02.07.2015 issued
    limited notice which is to the following effect:
    “Delay condoned.
    4
    Issue notice limited to the question of
    nature of offence.
    Prayer for suspension of sentence is
    rejected.”
  4. We have heard learned counsel for the appellant
    and learned counsel for the State of Madhya Pradesh,
    Shri Prashant Kumar.
  5. Learned counsel for the appellant in support of
    his submission contends that the appellant ought not
    to have been convicted under Section 302 IPC. He
    submits that there was no motive for the appellant to
    kill the deceased. Appellant had neither intention nor
    motive to cause the death of the deceased.
  6. Learned counsel has also submitted that deceased
    was not in a fit physical condition to record her
    statement, since the MLC of deceased clearly mentioned
    that the patient was restless, Afebrile, Pulse not
    palpable. It is submitted that the patient was so
    feeble and so restless then she was not in a position
    to give the correct version of the incident.
    5
  7. Learned counsel for the appellant placed reliance
    on the judgment of this Court in Hari Shanker vs. State
    of Rajasthan, (1998) 8 SCC 355, and submits that the
    facts of the present case are similar to the facts of
    the above case and in the above case this Court had
    altered the conviction from under Section 302 IPC to
    Section 304 Part II IPC and reduced the sentence of
    imprisonment for life to rigorous imprisonment for five
    years. This case also deserves the same treatment.
  8. Learned counsel for the State refuting the
    submission of the appellant submits that the deceased
    physical condition was certified by the Doctor who
    proved her to be in a fit state of mind to record her
    statement which has been proved by the prosecution
    witnesses. It is submitted that the burn injury on the
    neck and head was only 8% which was noticed by the High
    Court; The dying declaration had rightly been relied
    by the Courts below and the appellant cannot be allowed
    to raise submission that the dying declaration should
    not be relied. The limited notice having been issued
    on 02.07.2015, the appellant may not be permitted to
    6
    challenge the conviction recorded against the
    appellant. The appellant can be permitted only to raise
    submissions on the nature of offence as is the limited
    notice in the present case.
  9. We have considered the submissions of the parties
    and perused the records.
  10. Limited notice having been issued only to the
    question of nature of offence, we confine our
    consideration of the case only to the above question.
  11. The dying declaration which was recorded within
    few hours of admission of deceased in the Hospital has
    been relied by the Courts below. The Magistrate who
    recorded the dying declaration, namely Vijendra Singh
    Panwar, PW.15 has appeared in the witness box and
    proved her dying declaration. The High Court in its
    judgment has extracted the entire statement made by the
    deceased which is treated as dying declaration. On the
    question put to the deceased “How could you burn”
    detailed answer was given by the deceased. It is useful
    7
    to extract the above question and answer given by the
    deceased which is to the following effect:
    “Q.: How could you burn ?
    Ans.: A quarrel was going on between myself
    and my husband, during the said quarrel my
    husband’s sister namely Kala who is living
    in the lower floor of my house, came at my
    house and said that I will see her, and while
    I was boiling the milk, took the said slowmatch (batti wala stove) kerosene stove and
    put on me, due to which the kerosene oil was
    spared upon my body and my clothes caught the
    fire from its burnt wicks.”
  12. It is relevant to notice that husband of the
    deceased, Vijay Singh was also charged under Section
    302 read with Section 34 IPC and 114 IPC who has been
    acquitted by the trial court. In the evidence which was
    led before the Courts below, there are no evidence of
    any strained relations between the appellant and
    deceased. The entire incident which happened has been
    elaborately described by the deceased herself in her
    dying declaration. There is no evidence to come to
    conclusion that the appellant had any intention to kill
    the deceased. As per statement of deceased herself that
    a quarrel was going on between herself and her husband,
    Vijay Singh and during that quarrel, the appellant who
    is living in the lower floor of house arrived at the
    8
    scene. There cannot be any issue that when a person
    throws a burning stove on a person there is knowledge
    that the act is likely to cause death.
  13. Before the trial court the argument was made on
    behalf of the appellant that at best, she be convicted
    under Section 304 Part II IPC which was not acceded to.
    In paragraph 60 the trial court while dealing with the
    said submission made the following observations:
    “60. As far as the question of arguments
    placed by the learned advocate on behalf of
    the accused Kala Bai against the offence
    under Section 304 Part II IPC in place of
    Section 302 IPC is that it has been shown
    that the accused Kala Bai has burnt Lalita
    Bai by putting burning stove on her head and
    burnt her 96 per cent. Dr. A.K. Dixit (PW11) has stated in his statement that the
    wound (Burn) found during his inspection, the
    wounds have been shown as fatal injuries and
    the examination of whole body of Lalita Bai
    was conducted after 3 days of her death. The
    Dr. Ravindra Singh Chaudhary (PW-17) has
    mentioned the reason of death burning, other
    serious problems, blockading of breathing
    process etc.”
  14. The trial court has rightly held that accused Kala
    Bai threw burning stove on the deceased but whether the
    act was done with intention to cause death had not
    adverted to by the trial court.
    9
  15. Learned counsel for the appellant has placed
    reliance on the judgment of this Court in Hari Shankar
    (supra). In the above case the appellant had also
    picked up a burning kerosene wick-stove and threw it
    on the deceased. Kerosene from stove spilled over the
    clothes they caught the fire. The deceased in the said
    case also died as a result of the burns received by
    him. This Court held that since the appellant had
    thrown a burning stove on the deceased, he would have
    known that his act was likely to cause burns resulting
    in death. It is useful to extract paragraphs 2,3 and 4
    of the judgment which is to the following effect:
    “2. Only question that we have to consider
    in this appeal is what offence can be said
    to have been committed by the appellant on
    the basis of the facts found by the High
    Court. It has been held that while the
    appellant, deceased Bheem Singh and one Shah
    Megan were taking tea in the tea-club of the
    Air Force, 32 Wing (MT Section), an exchange
    of words took place between the appellant and
    the deceased on account of the demand made
    by the appellant for returning Rs 50,000
    which he had advanced to the deceased. The
    appellant became angry and picked up the
    burning kerosene wick-stove and threw it on
    the deceased. Kerosene from the stove spilled
    over the clothes of the deceased and as the
    burning wicks came in contact with his
    10
    clothes they caught fire. The deceased
    ultimately died as a result of the burns
    received by him.
  16. What was submitted by the learned
    counsel for the appellant was that the
    appellant had no enmity with the deceased.
    He had no intention to kill the deceased as
    by killing him he could not have recovered
    the amount of Rs 50,000 which he had advanced
    to the deceased. He further submitted that
    the quarrel between the two took place all
    of a sudden and in the heat of the moment the
    appellant had picked the stove and had thrown
    it towards the deceased. He, therefore,
    submitted that it was merely a rash and
    negligent act on the part of the appellant.
    We cannot agree with the submission of the
    learned counsel. Since the appellant had
    thrown a burning stove on the deceased, he
    would have known that his act was likely to
    cause burns resulting in death. In view of
    the facts and circumstances of the case, he
    can be said to have committed an offence
    under Section 304 Part II IPC.
  17. We, therefore, allow this appeal partly,
    alter the conviction of the appellant from
    under Section 302 to Section 304 Part II IPC
    and reduce the sentence of imprisonment for
    life to rigorous imprisonment for five
    years.”
  18. Following the above decision, we are of the view
    that the present is also a case where in the facts and
    circumstances of the case, the appellant can be said
    11
    to have committed offence under Section 304 Part II
    IPC.
  19. In the result, we partly allow the appeal and alter
    the conviction of the appellant from under Section 302
    IPC to Section 304 Part II IPC and reduce the sentence
    of imprisonment for life to rigorous imprisonment for
    five years.
    ………………….J.
    ( ASHOK BHUSHAN )
    ………………….J.
    ( K.M. JOSEPH )
    New Delhi,
    April 30,2019.