IN THE HIGH COURT OF MADHYA PRADESH

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AT JABALPUR

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK AGARWAL

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&

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HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN

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ON THE 25

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th

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OF FEBRUARY, 2026

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CRIMINAL APPEAL No. 463 of 2016

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KALEEM

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Versus

THE STATE OF MADHYA PRADESH

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Appearance:

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Shri Siddharth Datt - Advocate for the appellant.

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Shri Ajay Tamrakar - Government Advocate for the respondent/State.

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Reserved on : 28.01.2026

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Pronounced on: 25.02.2026

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J U D G M E N T

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Per

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: Justice Ratnesh Chandra Singh Bisen

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Heard on I.A. No.28207/2025, which is the ninth application under

Section 430(1) of the Bhartiya Nagrik Suraksha Sanhita, 2023 for suspension

of sentence and grant of bail to appellant Kaleem.

2. Learned counsel for the appellant after arguing at length and unable to

convince this Court prays for withdrawal of the aforesaid application.

3. I.A. No.28207/2025 is accordingly dismissed as withdrawn.

4. With the consent of learned counsel for the parties, this appeal is finally

heard.

5. The appellant has filed this criminal appeal under Section 374(2) of the

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Code of Criminal Procedure challenging the judgment of conviction and

order of sentence dated 17.10.2015 passed by the Second Additional

Sessions Judge, Khandwa (M.P.) in Sessions Trial No. 13/2014, whereby he

has been convicted under Section 302 of the Indian Penal Code and

sentenced to life imprisonment with a fine of Rs. 5,000/-, with a default

stipulation.

6. The prosecution case, in brief, is that on 06.11.2013 at about 7:40 p.m.,

Salim (son of Abbas) lodged an oral report at the concerned police station.

He stated that he had a monetary dispute with Kaleem (son of Abdul

Majeed), who had earlier abused and threatened him. On the same day at

about 7:00 p.m., Salim was informed by a village boy, Lokendra, that his

wife Najma was burning near the Delgaon–Dhangaon Road. He rushed to the

spot and extinguished the fire. Najma informed him that Kaleem had called

her there, abused her over the dispute, poured kerosene on her, and set her on

fire before fleeing on a motorcycle. She sustained severe burn injuries.

7. Based on his report (Exhibit P-3), Crime No. 185/2013 was registered

under Sections 294 and 307 of the Indian Penal Code. Najma was taken for

medical treatment but succumbed to her injuries on 07.11.2013. An inquest

(No. 171/2013) was conducted, and Section 302 IPC was subsequently

added.

8. During investigation, statements of witnesses were recorded, the scene

of offence was inspected, a dying declaration was recorded, the accused was

arrested, the motorcycle allegedly used in the offence was seized, and the

call detail records of the deceased’s mobile phone were obtained. After

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completion of the investigation, a charge sheet was filed against the accused

under Sections 294, 307, and 302 IPC. The case was committed to the Court

of Sessions for trial. A charge under Section 302 IPC was framed against the

accused. He pleaded not guilty and claimed false implication. In his defence,

he examined three witnesses.

9. Learned counsel for the appellant submitted that the judgment of

conviction and sentence passed by the trial court is illegal, erroneous and

contrary to the evidence on record. The appellant has been falsely implicated

due to prior monetary enmity. He submitted that the prosecution case rests

mainly on an alleged dying declaration, which is unreliable, contains

material inconsistencies, and was not recorded in accordance with law and

there is no proper certification of the deceased’s mental fitness at the time of

making the statement. It is further submitted that there are material

contradictions in the prosecution evidence, no independent witness supports

the case, the seizure of articles has not been duly proved, and the medical

evidence does not conclusively support the prosecution version. It is

therefore argued that the prosecution has failed to prove the charge beyond

reasonable doubt, and the conviction under Section 302 of Indian Penal Code

is liable to be set aside.

10. Learned counsel for the State supported the trial court’s judgment and

submitted that the prosecution proved the case beyond reasonable doubt. The

dying declaration was properly recorded, voluntary, and reliable, and clearly

implicates the appellant. The medical evidence corroborates the case, the FIR

was promptly lodged, and the motive arising from the monetary dispute is

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established. Minor discrepancies in witness statements do not affect the

substance of the prosecution case. It is therefore prayed that the appeal be

dismissed and the conviction under Section 302 of the Indian Penal Code be

upheld.

11. We have heard counsel for the parties and also perused the evidence

available on record.

12. To bring home the charges, the prosecution examined as many as 16

witnesses.

13. Ibbu @ Imram (PW-2), the younger brother of the deceased Najma,

stated that at about 7:00 p.m., he was sitting at his neighbour Sakharam’s

house when an unknown motorcyclist informed him that someone was

burning on the road outside his house. He immediately ran to the spot and

saw the accused, Kaleem, about 200 meters away, leaving on a motorcycle.

He returned and asked Sakharam to bring a blanket and with the help of the

blanket, he extinguished the fire and then realized that the injured person was

his sister, Najma. Najma told him that there had been a dispute over money

and that Kaleem had poured kerosene on her and set her on fire. He later

showed the police the place of occurrence (Exhibit P-1). He further deposed

that in his presence, the police seized a plastic can, burnt clothes, kerosene-

soaked soil, plain soil, and a matchbox from the spot, and prepared a seizure

panchnama (Exhibit P-2).

14. Saleem (PW-3), husband of the deceased Najma, stated that on the

relevant day, after returning from work and while sitting outside his house, a

village boy named Lokendra informed him that his wife was burning on

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Delgaon Road. When he reached the spot, he saw that Imran had already

extinguished the fire with a gudri (blanket). His sister-in-law Rubina, was

also present there. He further deposed that Najma told him that Kaleem had

set her on fire over a monetary dispute of Rs. 2,000/-. He then lodged a

report (Ex. P-3) at Dhangaon Police Station. The police prepared a spot map

of the place where the body was found (Ex. P-4) and a Safina form of the

deceased (Ex. P-5). After the postmortem examination, the body was handed

over to him, and the receipt is Ex. P-6. He also identified the photographs

filed in the case as those of his wife. In paragraph 8 of his cross-

examination, this witness admitted that Ibu @ Imran was present at the scene

when he arrived, but Sakharam was not present.

15. Sakharam (PW-4) deposed that he knew the accused Kaleem, of the

same village. His son is Lokendra. On the day of the incident, he saw a

woman on fire about 20 feet from his house. Ibu, her brother, arrived,

identified her as his sister Najma, and covered her with a blanket to

extinguish the fire. He further stated that he did not know who set her on fire

or how it occurred. The prosecution declared him hostile. He deposed that the

police visited the spot the next morning and seized a green plastic can, burnt

clothes, plain soil, and a matchbox (Exhibit P-2). During cross-examination,

he admitted that Najma had a bad reputation in the village and was called

“Lady Police,” and frequently quarrelled with villagers and neighbours.

16. Lokendra (PW-12) stated in his examination-in-chief that the incident

occurred at about 7:00 p.m., while he was having dinner at his house. At that

time, a driver came and called him outside, informing him that someone was

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on fire near the road. However, he did not go to the spot to see who was

burning or who had extinguished the fire. Later, he came to know that Najma

Bi of the village had been burnt. He did not support the prosecution’s case

and was therefore declared hostile.

17. Priyanka Mimroh (PW-16), Executive Magistrate, Sanawad, proceeded

to Government Hospital, Sanawad, on information from Dhangaon Police

Station, to record the dying declaration of Mrs. Najma on 06.11.2013. The

Medical Officer briefed her on Najma’s condition. Najma understood the

questions and stated that Kaleem Punjabi had set her on fire. She further

stated that Kaleem had been fighting with her for two or three days, extorting

money, and verbally abusing her. She further deposed that the dying

declaration was recorded in her own words.

18. Anguri Bi (PW-1), the mother of the deceased Najma, stated that the

police prepared the Safina form and the Naksha Panchayatnama of her

daughter’s dead body. She further stated that at the time of preparation,

witnesses Salim, Sultan, Aamin, and others were also present.

19. Irfan (PW-10) deposed that no vehicle was seized from Kaleem in his

presence. He further stated that the police did not arrest Kaleem in his

presence. However, the arrest memo, Exhibit P-14, bears his signature from

Part A to Part A. Thus, he has not supported the prosecution’s case and has

turned hostile.

20. Dr. Narendra Mandloi (PW-11) stated that on 06.11.2013, he was

posted as Medical Officer at the Government Hospital, Sanawad. On that

date, Head Constable G.A. Patel of Dhangaon Police Station brought the

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injured Najma for medical examination. Upon examination, he observed the

following injuries:-

(i) The victim's face, head, neck, chest, back, both thighs, legs, and

genitals were all burned. Her hair had been burned.

(ii) The body smelled of kerosene, and her clothes were stuck to her body

at the joints. Her skin had been burned and peeled off. After first aid, she was

immediately referred to M. Y. Hospital, Indore. The report is Exhibit P-16.

(iii) On 06.11.2013, the dying declaration of the deceased Najma was

recorded by the Executive Magistrate, Sanawad.

He stated that the deceased, Najma, was capable of giving a dying

declaration. Subsequently, the injured Najma Bai was re-examined by him,

and he found that she was also capable of giving a dying declaration."

21. Mahesh Golkar (PW-7) was posted as Head Constable at the Khandwa

Police Station since 2013. He deposed that on 07.11.2013, at around 6:30

a.m., a ward boy named Salim Sufi from the District Hospital, Khandwa,

brought the inquest intimation. Salim submitted a written report of the death,

based on which Inquest No. 0171/13 was registered under Section 174 of the

Criminal Procedure Code (Exhibit P/10).

22. Laxman Singh (PW-8) was posted as Head Constable at Police Station

Dhangaon since 2012. He deposed that he received the diary of Merg No.

0/12 concerning the deceased, Najma, from the hospital, in which he had

also conducted Inquest No. 45/13 under Section 174 of the Cr.P.C., at

Dhangaon Police Station, which is marked as Ex. P/11.

23. Gopichand (PW-6) was posted as Outpost In-Charge at M.H. Khandwa

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on 07.11.2013. On the same day, M.H. Khandwa received intimation from

Moghat Police Station regarding MERG No. 0171/13 under Section 174

Cr.P.C. for investigation. Gopichand conducted the Panchayatnama of the

deceased, Najma, and issued the postmortem form (Exhibit P/8). The body

was sent for postmortem under the supervision of Constable No. 430, Kadwa

Ram, to whom a duty certificate was issued.

24. Dr. Parvej Ahmed (PW-13) deposed that he conducted the post-mortem

examination of the deceased, Najma. He opined that the cause of death was

cardiac arrest, resulting from burns and burn shock. He further stated that the

death likely occurred 4 to 12 hours before the post-mortem examination. The

post-mortem report is marked as Exhibit P/8.

25. Kadwa Ram (PW-5) deposed that he was posted at the Khandwa

Hospital Outpost on 07.11.2013. He stated that on that date, a woman named

Najma had died. Her post-mortem examination was conducted, after which

he prepared a receipt for the body. He further stated that the body was

handed over to Salim, and the receipt of the same is marked as Ex. P/6.

26. Bhagwan (PW-9) was posted as Inspector at Dhangaon Police Station

since 2013. He stated that he submitted the seized articles to Sagar FSL on

28/11/2013 in case No. 185/13 and received a receipt, marked as Ex. P/12,

which he later filed at Dhangaon Police Station. In cross-examination, he

admitted that the articles were sealed and he did not know their contents.

27. Sheikh Manzoor (PW-14), Assistant Computer Reader at Mundi Police

Station, deposed that on 08.11.2013, the Station House Officer, Dhangaon,

requested the call details of mobile number 8719878543 from 01.11.2013 to

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07.11.2013 (Ex.P.18). On the Sub-Divisional Officer’s instructions, he

obtained the details from Idea Company, which were sent to his officer, R.K.

Puri. The call details (Ex.P.19 to Ex.P.22) were then forwarded to the Station

House Officer, Dhangaon (Ex.P.23). He admitted during cross-examination

that he did not know the subscriber of the number.

28. Jitendra Bhaskar (PW-15) deposed that he was posted as Inspector at

Police Station Dhangaon on 06.11.2013. On that day, Salim Khan lodged

FIR No. 185/13 (Ex.P/3) against the accused Kaleem under Sections 307 and

294 IPC for setting his wife, Najma B, on fire. The victim was sent to

Government Hospital, Sanawad for medical examination, and statements of

the complainant, the victim, and witnesses were recorded. On 07.11.2013,

the spot was inspected, a spot map prepared, and items including a kerosene

can, half-burnt cloth, soil with kerosene, and a matchbox were seized

(Ex.P/2). The accused was arrested (Ex.P/14), and his motorcycle was seized

(Seizure Report No. 13). The inquest was conducted on 08.11.2013

(Ex.P/24), mobile call details obtained (Ex.P/8), and all material was sent to

FSL Sagar (Ex.P/28) with reports received as Ex.P/29 and Ex.P/30.

Following the victim’s death, the offense was upgraded to Section 302 IPC,

and challan proceedings were filed.

29. If the statements of the prosecution witnesses presented are analyzed in

this manner, it becomes clear that at the time when the accused poured

kerosene on the deceased Najma and set her on fire, there was no eyewitness

present at the spot. An unknown person informed the deceased’s brother,

Ibbu alias Imran (PW-2), that someone was burning near the road; then Ibbu

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alias Imran (PW-2) reached the spot and, after asking Sakharam (PW-4) for a

quilt, extinguished the fire with the quilt and found that the said woman was

his sister Najma. Najma told Ibbu alias Imran (PW-2) that the accused

Kaleem had poured kerosene over her and set her on fire due to a dispute

over money. The deceased Najma’s husband, Salim (PW-3), also reached the

spot on the basis of information given by Lokendra, and by that time the fire

had already been put out by Imran. The deceased Najma also told her

husband, Salim (PW-3), that it was the accused Kaleem who had set her on

fire, and she further stated that the accused Kaleem had set her on fire by

pouring kerosene due to a dispute of two thousand rupees. From the

statement of Dr. NarendraMandloi (PW-11), it is proved that the deceased

Najma was brought in a burnt condition to the Government Hospital,

Sanawad, and that on 06.11.2013 her dying declaration was recorded by the

Executive Magistrate, Sanawad. This witness’s statement also proves that the

deceased was in a condition to give a statement. Similarly, from the

statement of Priyanka Mimroh, Executive Magistrate (PW-16), it is proved

that the deceased Najma stated that Kaleem Punjabi had set her on fire; i.e.,

this witness recorded the deceased’s dying declaration in writing.

30. Thus, from the statements of the above witnesses, it is proved that

Najma immediately after the incident on the date of occurrence itself, stated

that the accused Kaleem had poured kerosene on her and set her on fire due

to a monetary dispute. In the cross-examination of these witnesses, nothing

emerged on the basis of which their statements could be disbelieved. Here it

is also necessary to mention that on the date of the incident, i.e. 06.11.2013

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itself, the First Information Report (Exhibit P-3) was recorded, and it also

contains the fact that the accused Kaleem set her on fire due to a transaction

of two thousand rupees. Therefore, there is no basis to disbelieve the dying

declaration (Exhibit P-16). Hence, where the dying declaration is reliable,

conviction can be sustained on its basis; in this regard, the Hon’ble Supreme

Court in case of Purshottam Chopra and another Vs.State (Government of

NCT of Delhi), reported in (2020) 11 SCC 489, has held that a dying

declaration could be the sole basis of conviction even without corroboration,

if it inspires confidence of the court. The court should be satisfied that the

declarant was in a fit state of mind at the time of making the statement; and

that it was a voluntary statement which was not the result of tutoring,

prompting or imagination.

31. From the appellant’s side, the main argument has been that in her dying

declaration (Exhibit P-16) the deceased Najma stated that “Kaleem Punjabi”

set her on fire, whereas the appellant’s name is Kaleem, not Kaleem Punjabi;

rather, Kaleem Punjabi is some other person. In this regard, the appellant

examined defence witnesses Shaukat Hussain (DW-1) and Naimuddin (DW-

2), and through both witnesses an attempt was made to prove that the

accused Kaleem is not a Punjabi muslim and that the accused is not known

by the name Kaleem Punjabi. The above two witnesses produced by the

appellant are not reliable. This is because, in the cross-examination of the

prosecution witnesses Ibbu alias Imran (PW-2), Salim (PW-3), and

Sakharam (PW-4), no suggestion was given that the accused is not called

Kaleem Punjabi and that there is another person in the locality named

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Kaleem Punjabi. Moreover, in the First Information Report (Exhibit P-3), the

accused is mentioned as Kaleem s/o Majid, Muslim, resident of Dhangaon,

and similarly, in the spot map/panchanama (Exhibit P-4) also, Kaleem s/o

Abdul Majid is mentioned. Therefore, the said argument has no merit.

32. From the defence side, Saleem (DW-3) was again examined as

Defence Witness No. 3, and he was made to give a statement contrary to

what he had stated earlier in support of the prosecution. In such a situation,

his statement recorded as a defence witness cannot be accepted. It is

appropriate to mention here that once a witness has been examined by the

prosecution, he should not be examined again as a defence witness; rather, if

the court finds it necessary to re-examine the witness for the ends of

justice, it may allow re-examination or cross-examination, but it cannot allow

the witness to be examined as a defence witness. In this regard, the principle

laid down in the Supreme Court in case of State of Madhya Pradesh v. Badri

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Yadav and another (2006) 9 SCC 549

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is worth noting, which is as follows-

“11. In our view, the reasoning recorded by the High

Court, itself would have been sufficient to reject the

testimony of DW 1 and DW 2. However, having said so

the High Court reversed the order of conviction and

recorded the order of acquittal, which is perverse.

12. In this case the application under Section 311 CrPC

for recalling PW 8 and PW 9 and re-examining them

was rejected by the court on 2-9-1994. Therefore, the

question with regard to recalling PW 8 and PW 9 and

re-examining them stood closed. There is no provision

in the Code of Criminal Procedure that by filing

affidavit the witnesses examined as PWs (PW 8 and

PW 9 in this case) could be juxtaposed as DW 1 and

DW 2 and be examined as defence witnesses on behalf

of the accused.

13. Mr A.T.M. Rangaramanujam, learned Senior

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Counsel for the respondent, however, contended that the

accused is entitled to enter upon defence and adduce

evidence in support of his case as provided under

Section 233 CrPC particularly sub-section (3) of

Section 233. Sub-section (3) of Section 233 reads:

“233. (3) If the accused applies for the issue

of any process for compelling the attendance

of any witness or the production of any

document or thing, the Judge shall issue such

process unless he considers, for reasons to be

recorded, that such application should be

refused on the ground that it is made for the

purpose of vexation or delay or for defeating

the ends of justice.”

(emphasis supplied)

14. Section 233 itself deals with entering upon defence

by the accused. The application for recalling and re-

examining persons already examined, as provided under

Section 311 CrPC, was already rejected. The power to

summon any person as a witness or recall and re-

examine any person already examined is the

discretionary power of the court in case such evidence

appears to it to be essential for a just decision of the

case. Under Section 233 CrPC the accused can enter

upon defence and he can apply for the issue of any

process for compelling the attendance of any witness in

his defence. The provisions of sub-section (3) of

Section 233 cannot be understood as compelling the

attendance of any prosecution witness examined, cross-

examined and discharged to be juxtaposed as a defence

witness. In the present case PW 8 and PW 9 were

juxtaposed as DW 1 and DW 2. This situation is not one

what was contemplated by sub-section (3) of Section

233 CrPC.

15. When such frivolous and vexatious petitions are

filed, a judge is not powerless. He should have used his

discretionary power and should have refused relief on

the ground that it is made for the purpose of vexation or

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delay or for defeating the ends of justice. In the present

case, the witnesses were examined by the prosecution

as eyewitnesses on 18-12-1990, cross-examined and

discharged. Thereafter, an application under Section

311 CrPC was rejected. They were recalled purportedly

in exercise of power under sub-section (3) of Section

233 CrPC and examined as DW 1 and DW 2 on behalf

of the accused on 17-7-1995. This was clearly for the

purpose of defeating the ends of justice, which is not

permissible under the law.

16. In Yakub Ismailbhai Patel v. State of Gujarat

[(2004) 12 SCC 229 : 2004 SCC (Cri) Supp 196] in

which one of us Dr. Ar. Lakshmanan, J. was the author

of the judgment, in somewhat similar case to the facts

of the present case, it was held that once a witness is

examined as a prosecution witness, he cannot be

allowed to perjure himself by resiling from the

testimony given in court on oath by filing affidavit

stating that whatever he had deposed before court as

PW was not true and was done so at the instance of the

police. In that case the evidence of PW 1 was relied

upon by the trial court and also by the High Court. He

was examined by the prosecution as an eyewitness. He

also identified the appellants and the co-accused in the

court. After a long lapse of time he filed an affidavit

stating that whatever he had stated before the court was

not true and had done so at the instance of the police. In

those facts and circumstances this Court in paras 38 and

39 at SCC pp. 240-41 held as under:

“38. Significantly this witness, later on filed an

affidavit, wherein he had sworn to the fact that whatever

he had deposed before court as PW 1 was not true and it

was so done at the instance of the police.

39. The averments in the affidavit are rightly rejected

by the High Court and also the Sessions Court. Once the

witness is examined as a prosecution witness, he cannot

be allowed to perjure himself by resiling from the

testimony given in court on oath. It is pertinent to note

that during the intervening period between giving of

evidence as PW 1 and filing of affidavit in court later,

he was in jail in a narcotic case and that the accused

persons were also fellow inmates there.”

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17. In the present case, both PW 8 and PW 9 are related

to the deceased. PW 8 is the elder brother of the

deceased and PW 9 is the friend of the deceased. Being

the close relative and friend of the deceased there is no

rhyme and reason to depose falsely against the accused

and allowing the real culprit to escape unpunished. On

21-9-1989, their statements were recorded under

Section 164 CrPC before the Magistrate. On 18-12-

1990, their depositions were recorded before the

Sessions Judge. In both the statements they have stated

that they were eyewitnesses and witnessed the

occurrence. Both of them have stated that they saw the

accused assaulting the deceased with knives and

swords. They were subjected to lengthy cross-

examination but nothing could be elicited to discredit

the statement-in-chief. Their examination as defence

witnesses was recorded on 17-7-1995 when they resiled

completely from the previous statements as prosecution

witnesses. It, therefore, clearly appears that the

subsequent statements as defence witnesses were

concocted well an afterthought. They were either won

over or were under threat or intimidation from the

accused. No reasonable person, properly instructed in

law, would have acted upon such statements.”

33. On careful consideration of the entire evidence, it is evident that

although no eyewitness saw the accused set the deceased Najma on fire, the

dying declaration recorded by the Executive Magistrate, Sanawad (Exhibit P-

16), is reliable, voluntary, and corroborated by the First Information Report

(Exhibit P-3). The statements of PW-2 (Ibbu alias Imran) and PW-3

(Saleem) consistently support that Najma identified the appellant Kaleem as

the perpetrator, citing a monetary dispute as motive. The appellant’s

contention that the deceased referred to “Kaleem Punjabi” is unsubstantiated,

as no evidence suggests another individual by that name, and the FIR and

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(VIVEK AGARWAL)

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JUDGE

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(RATNESH CHANDRA SINGH BISEN)

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JUDGE

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spot panchanama clearly identify the accused. Defence witnesses attempting

to contradict this identification were found unreliable. Other factors

regarding seizure of articles, hostile witnesses, and minor contradictions in

evidence do not weaken the prosecution case. Medical evidence confirms the

cause of death due to burns caused intentionally, and procedural compliance

regarding the dying declaration is established. So far as the case of Radhelal

vs State of MP (Criminal Appeal 422/1996, Judgment dated on 17-04-2025)

which has been relied by counsel for the appellant/accused is concerned, the

same is of no assistance to the appellant on the basis of the principle

propounded in the said case because the facts and circumstances of this case

are different

34. In view of the above, we are of the considered opinion that the

prosecution has proved the charge beyond reasonable doubt. Accordingly,

the appeal fails and is hereby dismissed

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. The conviction under Section 302 of

the Indian Penal Code and the sentence of life imprisonment with fine are

upheld.

35. Record of the trial Court be sent back immediately.

Rao

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