IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1398 of 2011

Balaji .....Appellant

Versus

The State of Maharashtra .....Respondent

O  R  D  E  R

The judgment dated 17.11.2009 passed by the High Court

of  Judicature  at  Bombay,  Bench at  Aurangabad  in  Criminal

Appeal No. 500 of 2007 confirming the judgment of conviction

and sentence dated 30.11.2007 passed by the Ad hoc

Additional Sessions Judge­3, Latur in Sessions Case No. 10 of

2007 is called in question in this appeal by the convicted

accused. 1

2. The brief  facts  leading to this appeal are that, at about

1:30 p.m. on 28.08.2006, the police officer, Sikander Pakhali

(PW12) received information that a woman had been stabbed.

Upon reaching the house of Shamalbai Lohare, PW2 (landlady

of the house of the deceased), he noticed that the deceased Lata

was lying in a pool of blood and she was shifted to the hospital

at about 1:45 to 2:00 p.m. PW12 was informed by Dr. Dhele

(PW11) that the  deceased  was in  a fit condition to give the

statement and PW12 recorded the same. The deceased in her

statement stated that the appellant/accused (brother of the

deceased) was annoyed with her as she was having an illicit

relationship with Mahendra Dhaware (PW4) after the death of

her  husband and  thus,  stabbed her in  her  abdomen,  chest,

face, right arm, etc.  At the same time, i.e. at about 1:45 to 2:00

p.m., the  appellant/accused  voluntarily  arrived  at the  police

station in bloodstained clothes carrying bloodstained knife and

disclosed his name as Balaji and the crime committed by him to

Changdeo, PW6, the officer of the police station.   Lata

succumbed to injuries at about 2:45 p.m.

2

The dying declaration of the deceased itself was treated as

the first information and the report was sent to the

Jurisdictional Magistrate.   

3. The appellant/accused was tried for offence under Section

302 of the Indian Penal Code (for short, “the IPC”).   As

mentioned supra, the Trial Court convicted the accused for the

said offence and sentenced  him to life imprisonment.   The

judgment of the Trial Court is confirmed by the High Court.

We have heard Mr. A. Sirajudeen, learned senior counsel

appearing on behalf of the appellant/accused and Mr. Nishant

Ramakantrao Katneshwarkar, learned counsel appearing on

behalf of the respondent­State, who have taken us through the

entire material on record and effectively assisted the Court.

4. The entire case of the prosecution depends upon (a) the

dying declaration; (b) motive for commission of offence; (c) the

accused voluntarily went to the police station in bloodstained

clothes having a bloodstained knife with him.

5. We have perused the original dying declaration which has

been tampered with.  Though the name of Mahendra (PW4) was

written earlier, it was struck off and in its place the name of

Balaji (accused) is inserted  at  one  place.  No  valid reason is

3

forthcoming from the side of the prosecution for tampering with

a vital document such as dying declaration. The dying

declaration is at Ext. 51. PW12, the Investigating Officer stated

to have recorded the same in the hospital in the presence of the

Doctor  (PW11),  who had certified the  fitness of the victim to

make the statement.  However, in order to satisfy ourselves, we

have perused the medical records maintained by the hospital in

order to ascertain the correctness of the deposition made by the

Doctor (PW11)  with regard to the  fitness of the victim.  The

record reveals that the patient was conscious but, was seriously

injured. The history recorded in the medical sheets discloses

that the victim was stabbed by a sharp iron object. Immediately

on admission, the treatment  had started.  Patient  was  facing

difficulty in respiration and had sustained 17 injuries  with

haemorrhage. All the injuries were incised and were caused by

a sharp object. The patient was having trachycardia. Since the

patient was pregnant, the uterus was palpable and pregnancy

was about 7­8 months.  Immediately, the surgeon was informed

in view of the urgency and thereafter treatment was

commenced by the surgeon.

4

PW11, the doctor before whom the dying declaration was

recorded, clearly admits in the cross­examination that the

patient was in serious condition; immediately on admission of

the patient, the surgeon was called. She could not tell exactly

before the Court within how much time PW12, the Inspector of

Police arrived there after admitting the patient and recorded the

statement. She admits that there is no connection  between

state of mind and consciousness; consciousness merely means

the state of being conscious responsiveness of the  mind to

impressions made by  the senses of the patient; the multiple

injuries result in giddiness.

PW9 (the surgeon), who was called immediately on

admission of the patient, went near the patient and gave I.V.

Fluid and antibiotics to the patient; the wounds were sutured;

two doctors, namely, Dr. Nisale and Dr. V.R. Patil were called

who attended to the patient.   PW9 and said two doctors, were

constantly supervising the patient.  The patient expired at 2:40

p.m.

In the cross­examination, he admits that the patient was

admitted to the  hospital at  1:45  p.m.  and the  death  of the

patient was shown as 2:30 p.m.  It is clarified by him that when

5

he commenced treatment, patient was semi­unconscious. Due

to  multiple injuries, the  patient  was semi­unconscious, then

she became unconscious and died.

6. Dr. Shirish Maske PW5 conducted the post mortem. Even

the post mortem report reveals that the victim had sustained as

many as 24 injuries which are all ante­mortem in nature.  On

examination of the thorax the stab injury No. 9 is cutting of 6th

and 7th  ribs and the same is  extended to pleural  cavity; the

cutting of diaphragm and piercing liver for 6 cm; haemothorax

on right side, 300 ml blood was collected; there was an incised

wound on the right lung, lower lobe margin measuring 3 x 1

cm; the left lung was pale; both the chambers of the heart were

partially filled with blood, large vessels had collapsed; the

peritoneal cavity contains 1.5 litres of blood. Injury No. 13 was

extending to peritoneal cavity cutting fundus of uterus having a

size of 4.1 cm and cutting the right side of the   foetus neck

extending deeply to cervical spine.  The doctor has opined that

the death of the deceased  was due to haemorrhagic shock

caused  due to  multiple stab injuries in the lung, liver and

uterus.   In the cross­examination, PW5, the doctor who

conducted  post  mortem,  has  deposed that in cases  of such

6

nature, having 24 injuries, the patient would have immediately

felt giddiness and later she would become unconscious which

lead to her death.  He has clearly admitted that a patient who

sustained injury  No. 9, i.e. cutting of lung and diaphragm

would be  in distress and  it is  sufficiently  severe and  it  may

affect respiration.   

7. As mentioned supra, Dr. Tushare, PW9/Surgeon who

immediately came to treat the victim after being informed by

the Doctor (PW11) has deposed that when he started treatment,

the patient was in semi­conscious state.  He took the help from

two doctors, namely, Dr. Nisale and Dr. V.R. Patil and not the

help of the Doctor (PW11).  He has nowhere deposed about the

dying  declaration recorded in the  presence of the inspector.

Since the patient was admitted to the hospital at about 1.45

p.m. and as PW9 was called by PW11 to treat the patient, and

consequent to which PW9 came immediately and started

treatment with the help of aforementioned two doctors, there

was no time gap left for the Police Inspector to record the dying

declaration of the victim in the presence of PW11. Though

medical case sheet reveals that the patient was conscious, but

it has been deposed by doctor PW9 that the patient was semi­

7

unconscious.  Nowhere has PW11 deposed that the victim was

in a fit condition to  make the statement.   Fitness of the

statement is totally different from being in a state of

consciousness.   PW11 has, as mentioned supra, clearly stated

that there is no connection between state of mind and

consciousness; consciousness merely means the state of being

conscious and responsiveness of the mind to impressions made

by the senses. It is also admitted by all the three doctors

examined before the court that the multiple injuries would lead

to giddiness.  If it is so, it could not have been possible for the

victim to make a one page statement, which details the age of

the victim, occupation of the victim, place of the victim, family

members of the victim, etc. The dying declaration also reveals

entire details of the incident.  It should be noted that the victim

died within 45 minutes of her admission to the hospital.

8. Though such detailed  statement  was allegedly  made by

the  deceased immediately on  admission  before  PW12 in the

presence of PW11 and though such dying declaration was

treated as first information based on which crime was

registered, the same was not sent to the Jurisdictional

Magistrate inasmuch as there is no endorsement of the

8

Magistrate on the original of the dying declaration. Since there

is no endorsement of the Magistrate on the dying declaration,

learned counsel for the defence is justified in arguing that the

so called dying  declaration was not  at  all recorded and was

subsequently created by the investigation officer only to suit the

purpose  of the  prosecution.  Moreover, since the  patient  was

semi­conscious having such severe injuries mentioned supra,

she could not have made such detailed statement.

Hence, in our considered opinion, it would be unsafe to

rely upon this dying declaration of the victim to base the

conviction. We find that the dying declaration bristles with a

number of suspicious circumstances mentioned supra.

9. The next circumstance relied upon by the prosecution is

regarding motive for the commission of the offence.  

 It is  not in dispute that the deceased had two children

through her husband, Laxman; even when said Laxman was

alive, the victim/deceased was having an illicit relationship with

PW4.  PW4 used to come to the  house  of the  deceased  and

Laxman and he used to have drinks. The husband of the victim

was suffering from  HIV Aids. The relationship between the

deceased and PW4 was known to everybody in the family

9

including the accused. The accused is none else than the

brother of the deceased and he never objected to such a

relationship though it continued for years together. Husband of

the deceased, Laxman had complained of the illicit relationship

between the deceased and PW4. Though a complaint also came

to be lodged by him, no such grievance  was  made by the

accused being the brother of the deceased at any point earlier

to the incident in question.  On the other hand, it has come on

record that the accused, deceased as well as PW 4 used to meet

each other and have parties. Accused was fully aware of the

illicit relationship which was never objected to by him.  

In this context, the evidence of Pooja, PW1, the daughter

of the deceased could be very relevant.   PW1 has admitted in

the cross examination that PW4 was acquainted with her; he

used to visit her house regularly; the relationship between her

mother and father were strained due to PW 4. On the date of

the incident at about 9:00 am, PW4 was threatening the mother

of PW1 by showing a knife. He threatened the deceased that he

would kill her; immediately thereafter the deceased came out of

the house and called PW1 to bring her maternal  uncle from

market. Immediately  PW1 rushed  to  call  her  maternal  uncle

10

(the  accused)  who  was in the  marketyard.  On hearing  such

news, the accused proceeded towards the house and whereas

PW1 proceeded towards hospital for getting treatment for her

grandmother. She has further admitted that PW4 used to stay

in her house at  Moti Nagar, Latur and sometimes  used to

quarrel also.  On 29.08.2006, the accused even advised the

deceased not to quarrel  with PW4.  In the cross­examination,

PW1 has admitted  that  PW4 used  to  consume  liquor  in  her

house, he had a knife whenever there was a quarrel with

deceased and PW4. The evidence of PW1, if read in its entirety,

would clearly reveal that all the family members including the

husband of deceased, the accused, PW1 as well as the parents

of the deceased, knew about the illicit affairs of the deceased

and PW4. He used to have liquor in the house of the deceased

and used to sleep in the house of the deceased. In light of such

evidence, the defence rightly contends that the motive as

alleged is not proved. Since the accused himself was a

consenting party to  such an  illicit relationship  between PW4

and the deceased, there is no occasion for him to get enraged

on the date of the incident to commit murder of the deceased.

On the other hand, the evidence of PW1 raises suspicion in the

11

mind of the Court about the actions of PW4 who used to have a

knife and used to quarrel with the deceased whenever he was

drunk. PW4 was none other than the employer of the husband

of the deceased. In our considered opinion, the aspect of the

motive as sought to be made out is not satisfactorily proved by

the  prosecution beyond  reasonable  doubt.  Sometimes  motive

may be hidden also. But in the light of the evidence of PW1 who

did not even whisper a word against the accused, the Courts

below may not be justified in concluding that the motive for the

commission of the offence is proved. It is curious to note that

PW1 was not treated as hostile by the prosecution and

consequently was not cross­examined in any aspect of the

matter.

10. As mentioned supra, the last circumstance relied upon the

prosecution is that the accused himself voluntarily went to the

police station in bloodstained clothes with a bloodstained knife.

In our considered opinion, the prosecution has created a make

believe story in that regard. According to the prosecution, the

accused went to the police station at about 1:45 p.m. PW6 has

deposed that the  accused  after coming to the  police station

confessed that he killed the deceased since he was aggrieved by

12

the  action of the deceased having an  illicit relationship  with

PW4 and that she lived a life like a debauched woman. Despite

sufficient attempts to convince her to mould her conduct she

did not mend her conduct and hence he killed her by stabbing

her with the knife. Though such statement was allegedly made

by the accused after going to the police station voluntarily, no

crime was registered by Changdeo, PW6, the Inspector of Police

who was in the police station during the relevant point of time.

However,  subsequently  after  calling the  police  constable, the

crime came to be registered under Section 307 of the IPC based

on alleged dying declaration.  Thereafter,  bloodstained clothes

and bloodstained knife were seized. The relevant station entry

is Ext P31. In the cross­examination, PW6 has admitted that

Ext  P31 was made out  by  another  police  officer  namely  ASI

Sonkavade inasmuch as said Sonkavade was on duty; one Mr.

Angule was the Station in­charge during the relevant point of

time but he was not present when the accused had come.

He has further admitted in the cross­examination that he

has not registered the crime on the basis of statement given by

the accused. On the other hand, he registered the crime at 2:15

p.m. and prepared recovery panchnama from 2:15 to 2:30 p.m.

13

Later he came to know of the death of the deceased based on

which information of offence under Section 302 was added. The

accused was arrested at 2:25 p.m. These answers in the cross­

examination of PW6 clearly reveal the allegation that the

accused allegedly came at 1:45 p.m. and confessed about the

crime  appears to  be an  afterthought. The very fact that  no

crime  was registered  by PW6  who  was  allegedly very  much

present when accused went to the police station itself speaks

falsely of the case of the prosecution. On the other hand, in the

cross­examination as mentioned supra, Ext P31, entry in the

station of record which was made at the earliest point of time

was recorded by one ASI Sonkavade, police officer on duty and

not  by  PW6 which clearly  means that  PW6 was not  present

when the accused allegedly came to the police station and made

the statement and whereas ASI Sonkavade was present.  

11. Having regard to the aforementioned discussion and other

material on record, we find that the origin and genesis of the

prosecution is shrouded in mystery; the prosecution has tried

to improve its case from stage to stage. In our considered

opinion, the prosecution has not proved its case beyond

14

reasonable doubt against the accused. Hence, benefit of doubt

will go in favour of the accused.  

12. The impugned judgment of the High Court is set aside and

accordingly, the  appeal is  allowed.  The  accused/appellant is

directed to be released forthwith, if not required in any other

case.

…………………...........................J.  (N.V. RAMANA)

…………………...........................J.  (MOHAN M. SHANTANAGOUDAR)

……………………........................J.  (S. ABDUL NAZEER)

NEW DELHI, MARCH 14, 2019.

15