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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1828 - 1829 OF 2013

STATE OF MAHARASHTRA ….. APPELLANTS

VERSUS

HEMANT KAWADU CHAURIWAL ETC. ….. RESPONDENTS

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These  appeals,  by  special  leave,  have  been directed against  the

judgment  and order  dated 2.07.2012 passed by the  High Court  of

Judicature at  Bombay,  Nagpur Bench,  Nagpur,  in  Criminal  Appeal

Nos.53 of 2007 and 70 of 2007. Criminal Appeal No.53 of 2007 was

filed by accused No.1, who was husband of the deceased and Criminal

Appeal  No.70  of  2007  was  filed  by  accused  No.4,  who  was  the

mother-in-law of the deceased. Both these accused are respondents

herein.  Apart  from the  above  two  accused,  there  were  three  other

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accused  but  they  were  acquitted  by  the  Trial  Court  while  the

respondents were convicted. In appeal by the convicted respondents,

the High Court quashed and set aside their conviction and sentence

and absolved them of all the charges.

2.  The facts of the case, as disclosed by the prosecution, are that an

FIR was lodged on 21.06.2004 at Ghatanji Police Station after receipt

of  dying  declaration recorded  on 20.06.2004,  by  Naib  Tehsildar  at

Yavatmal General Hospital. In the morning of 20.06.2004, deceased

Asha  Hemant  Chauriwal  was  brought  to  Ghatanji  Hospital  for

treatment of burn injuries. She was later shifted to Yavatmal Hospital

for  further  treatment.  Her  dying  declaration was  recorded  by  Naib

Tehsildar at around 5:45 PM  on the same day, following which the

above said FIR was lodged. The deceased died on 22.06.2004 due to

septicemia as a result of 88% dermo epidermal infected burn injuries.

3.  After  investigation,  charge-sheet  was filed against  five  accused.

After considering the material on record and hearing the counsel for

the accused persons, they were charged for offences punishable under

Section 302 read with Section 34, Section 304-B read with Section 34

and  also  under  Section  498A  of  the  Indian  Penal  Code,  1860

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(hereinafter  referred  to  as  “IPC”).  The  charges  were  read  over  and

explained to them. All  the accused persons pleaded not guilty and

claimed for trial.  

4.  The  Trial  Court  by  its  judgment  and  order  convicted  accused

Nos.1  and  4.  Accused  No.1  was  convicted  for  offences  punishable

under Section 302 as well as Section 498-A read with Section 34 of

the IPC. However,  accused No.4 was convicted only for  the offence

punishable  under  Section  498-A  of  IPC.  Upon  appeal  by  the  two

convicted respondents, the High Court by the impugned judgment and

order allowed both the  appeals on the ground that the prosecution

failed  to  bring home the  guilt  of  these  accused beyond reasonable

doubt and as such, they were entitled for benefit of doubt. The High

Court  quashed  and  set  aside  their  conviction  and  sentence  and

absolved  them of  all  the  charges.  The  State  of  Maharashtra  is  in

appeal before us, challenging their acquittal  order.   

5.  The prosecution case as accepted by the Trial Court was based on

two important evidences: Firstly, the dying declaration made by the

deceased  to  the  Naib  Tehsildar  based  upon  which  the  accused

husband was convicted for the murder of the deceased. Secondly, the

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Trial Court relied on the letters allegedly written by the deceased to

her father, which disclosed mental and physical cruelty imputed on

the  deceased  by  her  in-laws,  based  upon  which  the  Trail  Court

convicted accused husband and accused mother-in-law for the offence

of cruelty.  

6.  Learned counsel  appearing for  the appellant  has made various

submissions on the basis of the Trial Court judgment. It was argued

that the dying declaration and the evidence of PW1 (Naib Tehsildar)

and PW5 (attending Doctor)  along with the certificate of  the doctor

leads to the conclusion that the dying declaration was truthful and

reliable and was correctly recorded. The said dying declaration was

contended to be consistent with the testimony of the witnesses of PW1

and  PW5.  As  against  the  alleged  letter  the  petitioner  counsel

vehemently argued that the evidence of PW3 (father of the deceased)

and  PW4  (mother  of  the  deceased)  corroborated  the  incidence  of

cruelty committed upon the deceased. Further the evidence of PW3

proved that the alleged letters were written by the deceased in her own

handwriting.

7.  Learned counsel  appearing for  the respondents/ accused made

various submissions countering  the  arguments  put  forward by  the

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appellant. The FIR was contended to be delayed by about one full day.

The learned counsel pointed out various lapses and contended that

the prosecution failed to materially  explain few facts.  For instance,

there was no explanation as to why there was delay in lodging the FIR;

the dying declaration reached the police station late by about one full

day; the material witness were not examined as to explain such delay;

material recovery at the spot was not conducted. Another fact which

was not  explained by  the  prosecution was as  to  why no action or

investigation  was  initiated  when  the  police  officers  came  to  know

about  the  death  of  a  person  on  20.06.2004  in  the  Yavatmal

Government Hospital itself. The respondents' counsel also argued that

the alleged letters were not proved by the prosecution to be in the own

handwriting of the deceased.

8. In  our  considered  opinion,  two  main  arguments  have  been

advanced before this Court and we shall now examine each and every

contention in light of the arguments adduced before us. It is a settled

law that dying declaration can be the sole basis of conviction and it

does not require any corroboration. But it is equally true that dying

declaration goes against the cardinal principle of law that 'evidence

must  be  direct'.  Thus,  dying  declaration  must  be  judged  and

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appreciated in light of the surrounding circumstances and its weight

determined by  reference  to  the  principle  governing  the  weighing  of

evidence. In the present case, dying declaration was recorded by the

Naib  Tehsildar  after  she  was  informed  vide  a  Memo by  the  police

authorities. However, it is on record that the said police official who

delivered the Memo was never produced or examined before the Court.

The Naib Tehsildar deposed before the Court that fitness certificate as

to  mental  capacity  of  the  deceased  was  taken  from  the  doctor.

However, the certificate nowhere states that the deceased was in a fit

and stable mental condition at the time of making the statement. The

dying declaration was recorded on 20.06.2004 i.e.  the same day of

incident but the same was recorded at 5:45 PM and it is undisputed

that  the  incident  occurred  in  the  morning  at  8:00  AM.  The  Naib

Tehsildar specifically deposed that she ordered the blood relation of

the deceased to be removed from the ward. The dying declaration was

signed  by  the  Naib  Tehsildar  PW1,  the  doctor  PW5  and  thumb

impression of the deceased was taken at about 5:55 PM. The dying

declaration  then  formed  the  basis  of  the  FIR  on  21.06.2004  at

Ghatanji  Police  Station,  however,  there  is  no  explanation  as  to  in

whose custody the said crucial piece of evidence was placed for one

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full day. The prosecution did not give any evidence to explain the said

delay.

9.  The  second  issue  which  is  of  paramount  consideration  is  the

alleged  letters  written  by  the  deceased  to  her  father,  which  were

argued to be in her own handwriting. PW3 himself deposed that he

only produced a few letters which helped his case. Further, he himself

testified  that  the  letters  were  written  by  the  deceased  in  her  own

handwriting as was known to him. The prosecution, however, had a

duty to establish the veracity of such an important piece of evidence.

The prosecution explained that it was unable to find the handwriting

of the deceased by any other means. However, it is not explained as to

what steps were taken to investigate the said evidence in the case.

Another important fact which is on record is that while recording the

dying  declaration,  Naib  Tehsildar  deposed  that  the  deceased  was

illiterate and the dying declaration was read over and explained to her.

These two facts are self-contradictory and severely detrimental to the

prosecution  case  which  ought  to  have  been  explained  by  the

prosecution.

10.   Apart from the above two pivotal facts, the testimonies of

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PW3 (father of the deceased), PW4 (mother of the deceased) and PW5

(investigating  officer)  are  worth  considering.  PW3  and  PW4  both

deposed  that  the  deceased  used  to  narrate  about  the  incidents  of

cruelty committed upon her. Physical beating after the 12 th day of the

marriage was deposed, the taunt which the deceased used to face for

not cooking well, the rationing on edible items, etc.. However, when

the  cross-examination  was  made,  these  witnesses  have  not  stated

these facts to the police and it was only before the Court that such

material improvements were made to support the prosecution case.  

11. The  Investigating  Officer  seemed  to  have  deliberately  or

negligently  erred  in  investigating  the  case.  The  case  was  of  burn

injuries, there ought to have effect of the incident in the house, the

place of occurrence was an important fact, the seizure of surrounding

material  was also  important.  However,  no such efforts  were made.

Even the handwriting of  the  deceased was not  investigated.  In the

light  of  the  above,  the  defence  deposed  before  the  Court  that  the

deceased locked herself  in the  bathroom, poured kerosene and set

herself on fire. It was further stated that the accused had to break

open the door and then the deceased was taken to the hospital. The

Investigating Officer could have easily located the place of occurrence

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or even a broken door or lock. The probability here, tilts in favour of

the  accused  that  possibility  of  suicide  being  committed  by  the

deceased cannot be ruled out completely.

12.   In our opinion, the two pivotal evidence i.e. dying declaration

and the alleged letters having not been proved, strikes at the very root

of the prosecution case. We are, therefore, of the view that the High

Court rightly pointed out the lacunae in the shabby investigation of

the case.  Moreover,  the prosecution failed to stand its  ground and

bring home its case.

13.    Thus,  in  the  light  of  the  above  discussion,  we  find  no

compelling  and  substantial  reasons  to  interfere  with  the  judgment

passed by the High Court. The appeals are, accordingly, dismissed.

…....................................J                                                               (Pinaki Chandra Ghose)

…...................................J                                                   (R.K. Agrawal)

New Delhi; December 16, 2015.