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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1708  OF 2009

SURYAKANT DADASAHEB BITALE        … APPELLANT

VERSUS

DILIP BAJRANG KALE & ANR.       … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment and order dated  

18th October, 2007 passed by the High Court of Judicature at Bombay  

in Criminal Revision Application No.321 of 2004. By the impugned  

judgment, the High Court set aside the judgment dated 29th May,  

2004 passed by the Sessions Judge, Satara in Sessions Case No.4 of  

2004 acquitting the  appellant-accused for the offence punishable  

under Section 498A and 302 of the Indian Penal Code and remanded  

back  the  proceedings  for  consideration  afresh  to  the  Session  

Court.

2. The factual matrix reveals that the deceased Archana married  

to the appellant-accused on 6th June, 2003. Satyanarayan Puja was  

performed  on  8th June,  2003.  As  per  family  traditions,  Archana  

returned to her father’s house on 9th June, 2003 and, thereafter,  

she went back to matrimonial home on 11th June, 2003.

3. On 14th July, 2003 the deceased Archana sustained 95% burn  

injuries in her matrimonial house. Her husband, appellant-accused  

was present in the house at the relevant point of time. She was  

admitted in Civil Hospital, Satara, where the Special Executive  

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Magistrate had recorded her dying declaration on 14th July, 2003  

(first dying declaration).

4. The  message  of  the  burn  injuries  suffered  by  Archana  was  

received by her maternal uncle on 15th July, 2003. He along with  

his wife, went to see Archana and found that she was under medical  

treatment in Civil Hospital at Satara.

5. On  16th July,  2003,  Special  Executive  Magistrate  recorded  

another  dying  declaration  of  Archana  at  Civil  Hospital,  Satara  

(second dying declaration).

6. Dilip Bajrang Kale (in short Dilip), father of the deceased  

Archana,  thereafter  lodged  an  FIR  on  16th July,  2003  with  the  

Pusegaon Police Station, District Satara against the appellant-

accused alleged that the accused had given mental and physical  

harassment to Archana, since dowry demand was not fulfilled and  

that, ultimately, Archana was made to suffer burn injuries.

7. On  17th July,  2003  inquest  panchnama  on  the  body  of  the  

deceased was carried at Civil Hospital, Satara and the dead body  

was  sent  for  postmortem.  The  postmortem  report  suggested  that  

death is caused due to 90% superficial and deep burn injuries.

8. The appellant-accused was arrested and initially proceeded for  

the charges under Section 498A and 307 IPC. After the death of  

Archana, he was charged for the offence punishable under Section  

302 and 498A IPC.

9. After investigation, the case was committed to the Sessions  

Court at Satara. The prosecution produced a number of witnesses  

and documentary evidence.

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10. The  Sessions  Judge  tried  the  accused  for  the  offences  

punishable under Section 302 and 498A IPC and after recording the  

evidence  and  appreciating  submissions  made  by  the  parties  

acquitted the appellant-accused of the offences alleged against  

him.  

11. Being aggrieved by the aforesaid order of acquittal dated  

29th May, 2004 passed by the Sessions Judge, the complainant Dilip,  

father of the deceased invoked revisional jurisdiction of the High  

Court under Section 397 Cr. P.C. to challenge the legality and  

validity  of  the  order  of  acquittal.  The  High  Court  under  

revisional  jurisdiction  while  accepted  that  appreciation  of  

evidence is not within the jurisdiction of the revisional court,  

re-appreciated the dying declaration and observed as follows:

“23. Having taken survey of the law regarding dying  declaration and value which is to be attached to it,  now let me turn to the dying declarations which are  available on record.

24. The deceased had stated in her first dying  declaration dated 14.7.2003 that on 4.7.2003 i.e. on  the  date  of  incident  at  about  3.30  p.m.  while  cooking in the kitchen on gas stove fire caught to  the  shore  of  her  saree  which  she  tried  to  extinguish, and, ultimately, suffered injuries. That  her husband, who was in the next room brought a bed  sheet and bad cover to extinguish fire. That he had  also suffered burn injuries.

25. In the second dying declaration recorded on  16.7.2003,  Archana  had  stated  that  first  dying  declaration was given by her under pressure and she  went on to say that she having refused to have the  sexual  intercourse  on  second  occasion  her  husband  (accused) got annoyed and in the hit of anger poured  kerosene on her person and set her on fire using  matchstick.  That  her  husband  did  not  try  to  extinguish fire.

26. With the aforesaid two dying declarations on  record, it was expected on the part of the learned  Sessions Judge to appreciate both dying declarations  and to find out which was reliable. It was open for  

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him to appreciate and to accept either of the dying  declarations or to reject both. But it was not open  for  him  not  to  appreciate  any  of  the  dying  declarations and exclude and/or omit or to overlook  this vital evidence from consideration.

27. The  spot  panchnama  shows  that  gas  cylinder  was empty; whereas, the report of Chemical Analyser  shows that residues of kerosene were detected on the  clothes  which  were  seized  including  those  of  the  accused and the deceased. The earth collected from  the kitchen had also trecess of the kerosene and  that her husband (accused) had also suffered burn  injuries.”

In  view  of  such  observation,  the  High  Court  remitted  the  

matter back to the Session Court for consideration afresh.

12. Learned counsel for the appellant assailed the judgment on the  

ground  that  in  absence  of  appeal  against  the  acquittal  under  

Section 378 Cr.P.C., it was not open to the High Court to re-

appreciate the evidence like dying declarations under Section 397  

Cr.P.C.  It  was  further  contended  that  the  Sessions  Judge  had  

extensively appreciated the dying declarations of the deceased and  

thereafter had come to the conclusion that the appellant is not  

guilty of the offence charged against him. Where two views are  

possible, the High Court should not have interfered with the order  

of the acquittal.

13. To appreciate the arguments, it is desirable to refer the two  

dying declarations made by the deceased Archana and recorded by  

the Special Executive Magistrate, one on 14th July, 2003 and the  

other on 16th July, 2003.  

14. Dying declaration dated 14th July, 2003 is in the form of  

statement and reads as follows:

“Statement Dated: 14.7.2003

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I, Archana Suryakant Bitale, age 22, R/o Garwadi  Taluka Khatav, District Satara.

On being asked I hereby give my statement in Ward  No.27 that I have been residing at the aforesaid  place alongwith my father-in-law Tai Dadaso Bitale.  My  husband  Suryakant  Dadaso  Bitale  is  working  as  Mothadi Labourer in Nhava Sheva Project Mumbai and  my marriage took place as per my wish and with the  consent of people from parent’s side. My marriage  took place on 6th June, 2003. Since my marriage I  have been residing at my husband’s place. I have  studied  upto  12th and  my  marriage  took  place  at  Kalewadi i.e. my parent’s place.

Today i.e. 14.7.2003 around 3.30 I was cooking on  the gas stove and my husband was sleeping in the  other room. While cooking my saree accidentally fell  on the flame of the gas and caught fire. I tried to  extinguish but my saree caught fire and since I got  burnt I came out of the kitchen shouting. My husband  and neighbours extinguished the fire with bed sheet  and bed cover. My husband also suffered burn injury  while  trying  to  extinguish  the  fire.  I  got  burn  injuries  on  both  the  legs,  chest,  back,  abdomen,  both legs and neck and it is paining. I was taken to  the primary health centre Diskal in a jeep from our  village  and  from  there  I  was  taken  to  the  Civil  Hospital, Satara. I am being treated here.

Therefore on 14.7.2003 around 3.30 my husband had  to go to Mumbai and while I was cooking around 3.30  my saree caught fire ad I got burnt. At the time of  incident  me  and  my  husband  were  at  home  and  my  father-in-law had gone to the field and nobody has  set me on fire. My saree fell on the gas stove and  therefore, I got burnt I do not have any complaint  against anyone.

The aforesaid statement is written down correctly  as stated by me and hereby sighing the same.

The  aforesaid  statement  started  at  16.00  and  completed at 6.30.

14.7.2003   

Sd/- A.S.I.

Hospital Duty’ Satara City Police Hospital.”

15. On the other hand dying declaration dated 16th July, 2003 is  

recorded in the format which reads as follows:

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“DYING DECLARATION DATED 16.7.2003

I, Sou, Archana Suryakant Bitale, again state and  answer the following questions:

1. Full Name : Sou. Archana Suryakant

2. Age : 22 years

3. Occupation : Household work

4. Residing at : Garvadi Taluka Khatav

5. Reason of : My husband Suryakant Dada Burning Saheb Bitale poured  

Kerosene on my person and lit me on fire after I  disallowed him to have  intercourse on second  occasion.

6. Quarrel with : There was no quarrel with Whom anybody in the house.

7. Did husband or: No in-laws make  any demand for dowry

8. How many years : Marriage took place on  have lapsed 6,6,2003. After marriage?

9. Is this second: Nobody asked me to give Statement being the second statement. Recorded at the Behest of  anybody?

10.Why did you : Statement dated 14.7.2003  not tell the was recorded under      

  information pressure and, therefore,   given in the I could not state.   earlier However, since my agony     

  statement has increased, I am   recorded on making this fresh   14.7.2003 ? statement.

My husband Suryakant Dada Saheb Bitale poured  kerosene from the kerosene cane in the house and  set me on fire by lighting matchstick. At that  time, there was nobody else in my house. After I  was lit on fire, my husband was lying on the bed.  After  I  was  set  on  fire,  I  started  shouting  loudly.  However,  somebody  from  the  neighbouring  house whose name I do not know came to douse the  

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fire. However, he saw my husband and returned back  without doing anything. My husband did not try to  douse  the  fire.  On  the  day  of  the  incident  my  husband and other persons in the village admitted  me  to  Civil  Hospital  at  3.30  p.m.  It  is  my  accusation that my husband set me on fire. There  is no allegation by me against my mother-in-law,  father-in-law, brother-in-law in our house and I  do not have any complaint against them. My husband  should  be  severely  punished.  Neither  the  Police  Officer nor any of my relatives were present while  recording  my  statement  nor  am  I  making  this  statement under pressure of anybody. Recording of  my statement started at 12.40 in the afternoon and  continued  till  1.10  p.m.  on  16.7.2003.  The  statement was read over to me and the contents  thereof are correct.

Accordingly, the statement is recorded.

Dated: 16.7.2003.

In the presence of

Sd/- Special Executive Magistrate, Satara

Thumb Impression of  Archana Suryakant Bitale.”

16. From the judgment dated 29th May, 2004 passed by the Sessions  

Judge in Sessions Case No.4 of 2004, what we find is that the  

Sessions Judge not only dealt with dying declaration dated 14th  

July, 2003 and 16th  July, 2003 but also noticed that the deceased  

Archana made a declaration to her father, complainant, Dilip (PW-

5) on 15th July, 2003 i.e. a day prior to the lodging of FIR on 16th  

July, 2003.

17. While dealing with so, the Sessions Judge observed as follows:

“10……………………………….Therefore, what remains for scrutiny  is dying declaration of Archana recorded by Pusalkar  on 16.7.2003.

11. Before  dealing  with  dying  declaration  recorded by Pusalkar, it will be just and proper to  see what Dilip has stated in his evidence. According  

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to him after coming in Civil Hospital at Satara on  15.7.2003 he is not asking Archana as to how she  sustained burn injuries. Archana on her own accord  disclose  him  that  accused  was  asking  for  sexual  intercourse second time on 14.7.2003 and when she  refused for it, he set her on fire. Without knowing  as to what statement she made previously, it is his  say that Archana on her own accord expressed that  accused had forced her to make statement about burn  injuries sustained by her accidentally that is why  this witness had been to Police Station on the very  day  to  file  application.  He  requested  police  to  record statement of Archana again. He is not filing  any  complaint  with  police  on  said  day  against  accused. Complaint is filed by him on 16.7.2003 it  was taken to station diary at about 1.00 noon or  about.  Whereas  dying  declaration  recorded  by  Pusalkar in between 12.40 to 1.00 noon. It is denied  by  Dilip that he was present when Pusalkar recorded  dying declaration. Statement of Dilip is recorded by  police  on  18.7.2003.  Dilip  denies  that  he  made  statement before police about his presence at the  time  when  Pusalkar  recorded  dying  declaration  on  16.7.2003.  Statement  was  pointed  out  by  way  of  contradiction (Exh.36) wherein it is stated by this  witness that as per his request statement of Archana  was  re-recorded  on  16.7.2003  and  she  made  such  statement in his presence. It means that at the time  of filing complaint he was aware of the fact as to  what  Archana  disclosed  before  Pusalkar  in   her  subsequent dying declaration. In complaint filed by  Dilip Exh.24 on 16.7.2003 it is no where stated that  accused  intended  to  have  sexual  intercourse  for  second time on 14.7.2003 and when she refused for  it, he set her on fire. In complaint it is stated by  Dilip that Archana herself set on fire due to ill- treatment to her. Thus prosecution itself is coming  with two-fold cause about sustaining burn by Archana  namely an attempt to commit suicide by Archana by  setting fire to herself, at the same time causing  burn injuries to her by her husband for the reasons  stated  above.  If  at  all  Archana  would  not  have  stated to her father as to how she sustained bur  injuries,  one  would  not  have  found  contents  in  F.I.R. that in an attempt to commit suicide, Archana  sustained burn injuries. Attempt is made by Dilip  Kale to explain about state of his      mind, when  he  filed  complaint  with  police  on  16.7.2003.  One  cannot attach much importance explanation at belated  stage. Prosecution itself is coming with the case  that Dilip came to know on 14.7.2003 itself from  Hanmant that accused set her on fire. Then on next  day he is coming to Hospital where according to him  Archana disclosed him that accused set her on fire.  He  is  insisting  police  to  re-record  dying  declaration of Archana on 15.7.2003 itself.  Under  

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these circumstances omission in complaint by Dilip  of  homicidal  death  of  Archana  amounts  to  making  improvement. The contradictory version in complaint  is that she sustained burn injuries, in an attempt  to  commit  suicide,  is  quire  inconsistent  facts.  Prosecution  thus  itself  is  coming  with  two  possibilities  namely  suicidal  death  by  deceased  Archana, at the same her homicidal death. Question  is to whom benefit of such inconsistency will go.  Certainly it will go in favour of accused and not  prosecution.  Now  let  us  see  dying  declaration  recorded by Pulsakar.

12. Pulasakar was aware of the fact that dying  declaration was already recorded by his colleague on  14.7.2003. Therefore he did not read earlier dying  declaration of Archana. He came to know from his  colleague Mirza that Archana in her statement stated  that she sustained burn injuries when her saree came  into contact with gas-burshen. According to him he  did not put question to Archana as to what statement  she made previously. When no question was put to  Archana about it, then how question No.9 finds place  in  D.D.  recorded  by  Pusalka.  There  is  specific  question to her as to why she did not state about  act of accused when her statement was recorded on  14.7.2003 when question was not put to Archana in  suggestive form naturally it was expected to answer  that due to some reason she made statement. Then  answer  to  it  is  that  her  husband  and  his  cousin  brother  pressurised  her  to  make  statement  on  14.7.2003. Now the statement of Archana recorded by  Pusalka is mostly in question and answer form up to  9th question.  Questions  are  objective  in  nature.  Question No.5 is put as to whether there was any  quarrel between her and other person. It means that  Pusalkar pre-supposes that there was quarrel. Answer  to this question no doubt is that there was no any  quarrel as suggested to Archana. Now question No.8  is  as  at  whose  instance  she  was  making  this  statement. Now in fact this question does not relate  to cause of death of a person, but some sort of  enquiry  with  deceased  in  form  of  suggestive  question. Answer to it which is brought on record is  that Archana had not made statement at instance of  any  other  person.  I  do  not  understand  as  to  why  where  was  doubt  in  mind  of  Pusalkar  to  put  such  question.  At this stage at the cost of repetition,  I may point out here about an attempt made by some  person  to  extinguish  fire.  He  is  Hanmant  who  is  coming  with  such  case.  He  states  before  us  that  Archana prayed him to save her from fire. If at all  Hanmant would have present there, then Archana would  have disclosed his name.  In dying declaration what  is stated is that one person came but seeing accused  he  went  away.  It  is  not  say  of  Hanmant  that  in  

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Hospital Archana disclosed him that accused set her  on fire, when she refused to have sexual intercourse  for  second  time.  It  was  specifically  put  to  him  whether he asked Dilip to approach police to re- record D.D. Said statement is made by this witness  before  police,  but  he  denies  that  he  made  such  statement  and  contradictory  version  is  brought  on  record with held of I.O. examined in this case. It  is stated by this witness that he asked Dilip to  inform police to record statement of Archana again.  It is not stated by Pusalkar in his  examination-in- chief that father of Archana was present when he  recorded D.D. However, we find from D.D. that when  Pusalkar recorded D.D. no relative of Archana was  present. All these facts clearly suggest that D.D.  recorded on 16.7.2003 by Pusalkar must be effect of  prompting to her. Questions are also put by Pusalka  to Archana in such way so as to expect answer “Yes”  or “No”. There is also doubt as t whether Archana  really must be in position to make statement.

13. Pusalkar states in para 4 of his deposition  that entire body of Archana was covered with net. He  states that no I.V. was on when he saw Archana. He  then states that before giving opinion by Dr. about  condition of Archana, Dr. read pulse of Archana. He  also  checked  her  chest  with  stethoscope.  Dr.  Nalawade states in his deposition at Exh.31 that he  did not see pulse of Archana. He also did not see  her B.P. He then states that I.V. was on to Archana  when  Pusalkar  recorded  her  statement  in  his  presence. However, Dr. Nalawade thus took the matter  as  routine.  It  appears  to  be  somewhat  peremptory  approach,  when  D.D.was  recorded  by  Pusalkar.  Shri  B.D.  Kadam,  learned  Adv.  for  defence  pointed  out  observations  in  Uka  Ram  vs.  State  of  Rajasthan  reported in 2001 (2) B. Cr.C. (SCC) 492 wherein it  is observed as below:

“It has always to be kept in mind that  though a dying declaration is entitled to  great weight, yet it is worth-while to note  that as the maker of the statement is not  subjected  to  cross-examination,  it  is  essential  for  the  Court  to  insist  that  dying declaration should be of such nature  as to inspire full confidence of the Court  in its correctness. The Court is observed  to  rule  out  the  possibility  of  the  statement  being  the  result  of  either  tutoring,  prompting,  or  vindictive  or  product of imagination. Before relying upon  a  dying  declaration,  the  Court  should  be  satisfied that the deceased was a fit state  of  mine  to  make  the  statement.  Once  the  Court  is  satisfied  that  the  dying  

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declaration  was  true,  voluntary  and  not  influenced by any extraneous consideration,  it  can  base  its  conviction  without  any  further  corroboration  as  rule  requiring  corroboration is not a rule of law but only  a rule of prudence.”

18. The scope of revisional jurisdiction was considered by this  

Court in  K. Chinnaswamy vs. State of A.P., AIR 1962 SC 1788  and  

held as follows:

“Where the appeal Court wrongly, ruled out evidence  which  was  admissible,  the  High  Court  would  be  justified in interfering with the order of acquittal  in revision, so that the evidence may be re-apprised  after  taking  into  account  the  evidence  which  was  wrongly  ruled  out  as  inadmissible.  But  the  High  Court  should  continue  itself  only  to  the  admissibility  of  the  evidence  and  should  not  go  further and appraise the evidence also.”

19. In  Akalu  Ahir  &  Others  vs.  Ramdeo  Ram,  AIR  1973  SC  

2145=(1973) SCC 2 583, this Court held that where the material  

evidence have been over looked by the Trial Court or Sessions  

Court,  the  High  Court  in  revisional  jurisdiction  can  interfere  

with the finding of acquittal.

20. In the present case the Session Court has not ruled out any  

evidence which was admissible. Both the dying declarations were  

considered in proper prospect. The material evidence has not been  

overlooked by the Sessions Court, as apparent from the discussions  

made by Sessions Judge and quoted above. In these circumstances,  

the High Court was not justified in interfering with the order of  

acquittal in a revision.

21. In State of Punjab vs. Parveen Kumar, (2005) 9 SCC 769, this  

Court  noticed  different  versions  of  incident  in  three  several  

dying declarations which created doubt about their truthfulness.  

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One dying declaration was made by the deceased before the uncle,  

second before the Executive Magistrate and third before the SI,  

Police.  This  Court  having  noticed  the  inconsistency  with  each  

other, since versions disclosed in those dying declarations were  

quite different, affirmed the order of acquittal recorded by the  

High Court.

22. In  the  present  case,  in  fact,  there  are  three  dying  

declarations. One was made before the Executive Magistrate on 14th  

July, 2003, the second alleged to have been made by the deceased  

Archana before her father, Dilip (PW-5)-complainant on 15th July,  

2003 and the third dying declaration was made in a format before  

the Executive Magistrate on 16th July, 2003. The complainant, Dilip  

(PW-5), father of the deceased in his FIR dated 16th July, 2003 had  

not stated that her daughter Archana alleged that the accused was  

asking for intercourse second time on 14th July, 2003, and when she  

refused the accused sprinkled kerosene on her and put her on fire.  

The  prosecution  could  not  explain  as  to  why  the  second  dying  

declaration  was  taken  on  16th July,  2003,  though  in  the  said  

declaration  the  deceased  Archana  had  stated  that  she  had  not  

called for the second dying declaration. All this aspect has been  

discussed by the Sessions Judge who acquitted the appellant.  

23. In the present case, the view taken by the Sessions Judge is  

neither unreasonable nor perverse. It is possible reasonable view  

based on the evidence on record. In the circumstances, the High  

Court was not justified in setting aside the order of acquittal.  

24. For the reasons aforesaid, we set aside the impugned judgment  

and  order  dated  18th October,  2007  passed  in  Criminal  Revision  

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Application No. 321 of 2004 and affirm the order passed by the  

Sessions Court. The appeal is allowed.

………………………………………………J.                   (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.                (R.K. AGRAWAL)

NEW DELHI, JULY 2, 2014.

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