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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 694­695  OF 2011

SAMPAT BABSO KALE & ANR. …APPELLANT(S)

Versus

THE STATE OF MAHARASHTRA        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. These appeals by the accused are directed against the

judgment of the  High  Court of Bombay dated 13.10.2010 in

Criminal Appeal No. 473 of 1991 whereby the appeal of the State

was allowed and the appellants were convicted for offences

punishable under Section 302/498A of Indian Penal Code (‘IPC’

for  short) read with  Section 34 of IPC and were  sentenced  to

undergo imprisonment for life.   

2. Briefly stated the facts are that the Appellant No. 2, Tarabai

Dhanaji  Dhaigude is the sister of the Appellant No. 1, Sampat

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Babso Kale.     Appellant No. 1, was married to Sharada Sampat

Kale on 25.04.1987.   After residing for about one year at

Thergaon, Chinchwad, they shifted to a quarter in MIDC Colony,

Chinchwad.   Sharada died of burn injuries suffered during the

night intervening 08.07.1989 and 09.07.1989 in the wee hours of

the morning of 09.07.1989.   It is also not disputed that on the

date of the occurrence, the Appellant No. 2 had come to stay at

the house of her brother i.e. the Appellant No. 1.   Burn injuries

were to the extent of 98%.  Sharada made two dying declarations

– the first  was in the  nature  of the information  given to  Dr.

Sanjeev Chibbar (PW­5), who had attended upon her when she

was admitted to the hospital and the second was a formal dying

declaration made to Mr. Kamlakar Adhav, Special Judicial

Magistrate, Pune (PW­2).

3. The  prosecution  story is that relations  between  husband

and wife were cordial for about one and a half years.  Thereafter,

Appellant No. 1 started ill treating his wife since she could not

conceive.  It is also alleged that, in fact, he wanted to marry again

even when Sharada was alive.  For this reason, he and his sister

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had with common intention poured kerosene on Sharada and set

her on fire.   

4. The defence version is that Sharada belongs to a

comparatively well­off family.  She was residing with her husband

in MIDC Colony quarter which had all facilities.  The case set up

by the defence is that the parents of  the appellants  lived in a

small one room hut in village Lonand with no facilities of toilet

etc..  Appellant No.1 wanted that his wife should go to look after

his parents.  She was not willing to do so since material comforts

like TV, WC, etc. were not available in the village and the parents

lived in a very small one room hutment.   According to the

defence, on the evening of 08.07.1989, both the appellants

requested Sharada to go to the village to  look after the ageing

parents.  Sharada,  who  was  sensitive, got  upset  and for this

reason committed suicide.  It was Appellant No. 1 who raised an

alarm and tried to douse the fire by throwing water on Sharada.

He requested the neighbours to call for an ambulance but when

nobody could be contacted on phone, he along with one

neighbour went to the hospital to get an ambulance.  Thereafter,

Sharada was taken  to Sassoon Hospital,  Pune where she was

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admitted in the Burns Ward.  Unfortunately, she passed away in

the morning.   

5. The accused were charged and tried for the  murder of

Sharada.   The trial court acquitted the accused by giving them

the benefit of doubt mainly on the ground that the possibility of

the deceased having committed suicide could not be ruled out.

The trial court did not rely upon the dying declarations.  On the

other hand, the High Court came to the conclusion that there

was no reason to discredit the dying declarations and held that

dying declarations were totally reliable in view of the testimonies

of PW­2 and PW­5.  The High Court held that the reasoning given

by the trial court was perverse and thereafter, allowed the appeal.

Hence, the present appeals.   

6. We  have  heard learned counsel for the  appellants.   The

main argument of the learned counsel for the appellants is that

the deceased was a very sensitive lady.  She, as is apparent from

the letters exchanged between her and her husband, was madly

in love with him.  She, however, did not want to go and live in a

village, that too in a small one room hutment and being sensitive

in nature, she committed suicide.  It is further alleged that even

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the sister of the deceased had committed suicide.  It was also

contended that there are various discrepancies in the evidence

and the dying declarations cannot be relied upon.  It was further

urged that the deceased died due to a fire in the kitchen of the

house and not in the bedroom which clearly indicated that she

had committed suicide.   It was also contended that the defence

version was a probable version and once there was a doubt then

benefit of doubt should have been given to the accused persons.

Lastly it was contended that the appellate court should not have

lightly interfered with the findings given by the trial court.   

7.  With regard to the powers of an appellate court in an appeal

against acquittal, the law is well established that the

presumption  of innocence  which is  attached to  every  accused

person gets strengthened when such an accused is acquitted by

the trial  court and the High Court  should not lightly  interfere

with the decision of the trial court which has recorded the

evidence and observed the demeanour of witnesses.   This Court

in the case of Chandrappa & Ors. v. State of Karnataka1, laid

down the following principles:­

1 (2007) 4 SCC 415

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court  while dealing  with an  appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling  reasons”, “good and sufficient  grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.  Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.  Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

8. We may first deal with the evidence in relation to the dying

declarations.  Dr.  Sanjeev  Chibbar (PW­5) states that  he  was

working  in Sassoon Hospital,  Pune  in Ward No. 27 where  the

deceased Sharada Sampat Kale was brought with 98% injuries of

burn.  He asked her how she had suffered the burn injuries and

she replied as follows:

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“On being doused by her husband Sampat Baba Kale and his sister with kerosene and set on fire at 12.30 a.m. (approximately).”

9. On the basis of the information given by the deceased, PW­5

entered this as the history of the case in his own writing and he

has proved the same in the Court.   He further states that

thereafter PW­2 came to the ward to record the dying declaration

of the deceased.   This witness states that before the dying

declaration  was recorded  by the PW­2,  he examined  her and

found that she was mentally fit and conscious to make her dying

declaration.  He  further  states that the  dying  declaration was

recorded by the Special  Judicial  Magistrate  in his presence  in

question and answer form.  Since the hands of the deceased were

burnt, PW­2 took the impression of the left big toe on the

statement.  He  made the following  endorsement  on the  dying

declaration:

“The statement issued to me by the patient is in the total presence of her mental faculties and in presence of the staff nurses.  I certify her fit to issue this statement.”

10. PW­5 further states that he signed the aforesaid statement

and, in his presence, the Special Judicial Magistrate read over

the contents of the dying declaration to Sharada who admitted

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the same as correct.  Thereafter, PW­2 made an endorsement to

this effect and signed the same.   The witness in cross­

examination admitted  that in case of  patients of  serious burn

injuries  painkillers  are  administered to the  patients.  He  also

admits that in such cases the trauma may cause delusion in the

mind  of the  person.  After  perusal of the treatment  chart  he

stated that Fortwin injection was given to the deceased at 3.30

a.m..  He does not rule out the possibility of the injection having

been given before recording the dying declaration.   

11. The other important witness is Mr. Kamlakar Adhav (PW­2),

who was Special Judicial Magistrate, Pune.  According to him, he

was asked by the police to record the statement of Sharada

Sampat Kale and thereafter he went to Ward No.27 in Sassoon

Hospital, Pune.  He was told by PW­5 that the female patient was

fit  and fully conscious to make the dying declaration.   On his

asking, the deceased told him that her name was Sharada

Sampat Kale, aged 25 years and she gave her complete address.  

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She was conscious and told him that she was voluntarily making

the  statement.  The  dying  declaration  which  this  witness  has

proved reads as follows:

“Q.1: Whether you are fully conscious?

A­ Yes.

Q.2: I am Spl. Judicial  Magistrate,  Do  you  understood this?

A: Yes.

Q.3: How you sustained burns?

A. Today on 8.7.89 at night at about 1.30 hrs. at my residence  my  husband  Sampat  Babasaheb  Kale and  my sister in law Tarabai Dhanaji Dhaigude poured kerosene on my person and set me on fire and I sustained burn injuries. Quarrels used to take place between we both husband and wife and he also used to quarrel with me that I could not give birth to child and used to ill treat me.   Yesterday at night due to above reason both of them poured kerosene on me and set me on fire and I sustained burns.”  

12. Rest of the aforesaid statement is similar to that given to

PW­5 and need not be repeated.   A suggestion has been put to

PW­2 that this statement was not recorded  in the presence of

PW­5 and, therefore, the name of  Dr.  Chibbar  has  not been

mentioned by him in the dying declaration.   He denied the said

suggestion.  He denied the suggestion that Sharada was not in a

position to utter a single word because of extensive burn injuries.

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13. In our view, though dying declarations stand proved, the

issue is whether we can convict the accused only on the basis of

these dying declarations.  In a case of the present nature where

the victim had 98% burns and the doctor has stated from the

record that a painkiller was injected at 3.30 a.m. and the dying

declaration had been recorded thereafter, there is a serious doubt

whether the victim  was in a fit state of  mind to  make the

statement.   She was suffering from 98% burns.   She must have

been in great agony and once a sedative had been injected, the

possibility of her being in a state of delusion cannot be

completely ruled out.  It would also be pertinent to mention that

the endorsement made by the doctor that the victim was in a fit

state of mind to make the statement has been made not before

the statement but after the statement was recorded.  Normally it

should be the other way round.   

14. No  doubt, a  dying  declaration is  an  extremely important

piece of evidence and where the Court is satisfied that the dying

declaration is truthful, voluntary and not a result of any

extraneous influence, the Court can convict the accused only on

the basis of a dying declaration.  We need not refer to the entire

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law but it would be apposite to refer to the judgment of this Court

in the case of  Sham Shankar Kankaria  v.  State of

Maharashtra2 held as follows:  

“11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross­examination.  Such a power  is  essential for eliciting the truth  as  an  obligation  of oath  could  be.  This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration  was true and  voluntary,  undoubtedly, it can base its conviction  without any further corroboration. It cannot be  laid down as an absolute rule of  law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………….”

15.  In the present case, as we have already held above, there

was some doubt as to whether the victim was in a fit state of

mind to make the statement.   No doubt, the doctor had stated

that she was in a fit state of mind but he himself had, in his

evidence, admitted that in the case of a victim with 98% burns,

the shock may lead to delusion.   Furthermore, in our view, the

combined effect of the trauma with the administration of

painkillers could lead to a case of possible delusion, and

2 (2006) 13 SCC 165

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therefore, there is a need to look for corroborative evidence in the

present case.    

16. The two accused filed  separate  written  statements  under

Section 313 of Criminal Procedure Code (‘CrPC’ for short).   The

defence, as pointed out above, was that the deceased was not

willing to go to the village to look after her in­laws and, therefore,

she committed suicide.  The defence cannot be brushed aside.

17. There are two factors which cast a grave doubt with regard

to the prosecution story.   As pointed out above, the prosecution

story is that the appellants­ brother and sister, poured kerosene

on the victim and set her on fire.  It is the admitted case that the

house in which the victim was residing with her husband

consists of one room with a kitchen.   It stands proved that the

fire took  place in the  kitchen  and  not in the  bedroom.   The

panchanama  (Exhibit  13)  and  the  evidence  of  Narayan,  panch

witness (PW­1) clearly show that when the accused Sampat

Babso Kale was taken to his residence after he was arrested, he

opened the door by removing the lock.  This clearly indicates that

after the victim had been taken to the hospital, the premises was

lying locked.  Presumably, the second  appellant  or  any  other

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person in the house had also gone with the victim.   In the first

room there was a cot, mattress, mosquito net, etc..  There was a

kitchen  in  the adjoining area which had a separate privy and

bathroom.  There was a plastic container containing kerosene oil.

There was smell of kerosene in the kitchen and there was water

on the floor of the kitchen.   A match box and some burnt cloth

were also found in the kitchen.  This proves that the occurrence

took place in the kitchen and not in the bedroom.

18. The second important factor  which comes out from the

statement  of the  panch  witnesses is that in the first room  in

which there was a cot, there were two pillows on the cot and

below a pillow there were some ornaments and other things.  The

panchanama report indicates that the ornaments were one yellow

and black mangalsutra, a nathni  (nose ring), some glass bangles

and peinjan (an ornament worn on the foot).   It is also recorded

that,  according to the accused,  these ornaments belong to his

wife.  Mangalsutra, peinjan  and even glass bangles are such

ornaments which an Indian married woman would normally not

remove.  In Indian society these are normally worn by the ladies

all the times.   Therefore, the defence version that the deceased

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took off all these ornaments and then went to the kitchen and

committed suicide cannot be totally ruled out.

19. Another factor which needs to be taken into consideration is

that  none of  the witnesses from the neighbourhood have been

examined.   Even as per the prosecution case it was the

neighbours who first raised an alarm.   There is no explanation

why none of them have been examined.  It is also the prosecution

case that the  accused  husband along  with  another  neighbour

went to the hospital to arrange for an ambulance.   This person

has not been examined. The non­examination of these

important witnesses leads to non­corroboration of the dying

declaration.  The best witnesses would have been the neighbours

who reached the spot immediately after the occurrence.  They

would  have  been  the  best  persons to  state  as to  whether the

victim told them anything about the occurrence or not.

20. In view of the aforesaid circumstances the trial court held

that the prosecution had failed to prove its case beyond

reasonable doubt.   This finding of the trial  court could not be

said to be perverse.   It was based on a proper appreciation of

evidence.  The trial court, after discussing the entire evidence in

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detail, had come to the conclusion that the prosecution had failed

to prove its case beyond reasonable doubt.  The High Court came

to a different conclusion.  On perusal of the entire evidence and

the law on the subject we are of the view that the trial court was

right in holding that the prosecution had failed to prove its case

beyond reasonable doubt.  

21. In view of the above, we allow the appeals and set aside the

judgment of the High Court.

22. Appellant No. 1 is stated to be in jail.  He shall be released

forthwith, if not required in any other case.  Appellant No. 2 is on

bail.  Her bail bonds, if any, stand discharged.

….……………………..J. (S. A. BOBDE)

.….…………………….J. (DEEPAK GUPTA)

New Delhi April 09, 2019