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NON-REPORTABLE

IN TH SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 963/2018  (arising out of Special Leave Petition (Crl.) No.9142/2016)

SOW. CHHAYA .....Appellant

Versus

THE STATE OF MAHARASHTRA .....Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2.  This  appeal  is  presented  by  the  convicted  accused

questioning the Judgment and Order dated 13.6.2016 passed

in  Criminal  Appeal  No.  165  of  2014  by  the  High  Court  of

Judicature at Bombay (Aurangabad Bench).

By the impugned judgment, the High Court confirmed the

judgment and order of conviction passed by the Trial Court for

the offences punishable under Section 302 read with Section

34 and Section 498A read with Section 34 of the Indian Penal

Code.

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3. The  case  of  the  prosecution  in  brief  is  that  Kavita  (the

victim)  sustained 100% burn injuries  at  about 7.00 a.m.  on

11.2.2013 while she was in her matrimonial house at village

Javla  Bazar,  Tq.  Basmath.  Immediately  thereafter,  she  was

brought to the Civil Hospital, Parbhani wherein she succumbed

to her injuries at 5.50 p.m. During the course of treatment, her

Dying Declaration was recorded at 3.10 p.m. in the hospital in

which she implicated both the accused.

As mentioned supra, the Trial Court as well as the High

Court convicted both the accused.

4. This  Court,  on  21.11.2016,  while  issuing  notice  of  the

appeal in so far as Accused No.2, Smt. Chhaya (sister-in-law of

victim’s husband) was concerned, dismissed the appeal filed by

Accused No.1 namely Gangadhar @ Baburao Nagorao Ambhore

(victim’s husband). Thus, the judgment and order of conviction

passed against  Accused No.1  namely  Gangadhar  @ Baburao

Nagorao  Ambhore  has  attained  finality.  Accused  No.2,  Smt.

Chhaya, is the only appellant before this Court at present.

5. We have heard the learned counsel for the appellant and

the learned counsel for the State of Maharashtra.

During  the  course  of  hearing,  learned  counsel  for  the

respondent  drew  the  attention  of  the  Court  to  the  Medical

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Certificate  issued  by  the  Medical  Superintendent,  Rural

Hospital,  Partur,  indicating  therein  that  the  appellant

underwent  surgery  on  30.1.2013.   Learned  counsel  for  the

appellant, by relying on the said certificate argued in support of

her plea of alibi.  This Court on 10.2.2018 granted time to the

learned counsel for the State to verify the same and to have his

say  on  the  reliability/genuineness  or  otherwise  of  the

certificate.

During the course of hearing, Shri Nishant Ramakantrao

Katneshwarkar,  learned  counsel  appearing  on  behalf  of  the

State, on instructions, submitted that the certificate issued by

the Medical Superintendent, Rural Hospital, Partur, indicating

that  the  appellant,  Smt.  Chhaya  underwent  surgery  on

30.1.2013, is genuine inasmuch as she had underwent surgery

on 30.1.2013.

6. It is the specific case of the appellant herein that she had

to take  bed rest  for  more  than 15 days  after  the  operation,

which  pertained  to  family  planning,  inasmuch  as  she  was

unable to move out of the house.  This plea is substantiated by

the Medical Certificate on record.  There is no reason for us to

ignore such medical certificate, particularly when the same is

not disputed by the State.  Moreover, the appellant had a minor

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daughter to be looked after during the relevant period of time.

Except the bald allegations against the appellant,  no case is

made out against her so as to bring home guilt against her.

7. Though ample material  was found against  Accused No.1

(Gangadhar), the only material against the appellant (Accused

No.2) is that her name is also found in the Dying Declaration.

Undisputedly, the incident has taken place inside the house of

Accused  No.1  and  that  too  early  in  the  morning.  It  is  not

disputed that the appellant is the wife of the brother of Accused

No.1. The appellant was living with her husband (the brother of

Accused No.1) separately in a different house. In other words,

the appellant  was not  living with the  deceased and Accused

No.1. The same has also been observed by the High Court in its

judgment.  However,  the  Courts  proceeded  to  convict  the

appellant also, based on the Dying Declaration of the deceased,

by observing that there was no reason as to why the appellant

was  to  be  falsely  implicated.  However,  having  regard  to  the

Medical Certificate issued by the Medical Superintendent, Rural

Hospital, Partur, showing that the appellant was admitted to

the hospital and underwent surgery on 30.1.2013, the plea of

alibi taken by the appellant deserves to be accepted.

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8. A  perusal  of  the  oral  evidence  of  the  parents  of  the

deceased would indicate that only minor allegations are made

against the appellant.  Vague and cryptic allegations are found

against her with no specific allegation in respect of demand for

dowry or harassment in any manner.  In the absence of definite

evidence against the appellant, the Sessions Court and the High

Court  are  not  justified  in  convicting  her  even for  the  offence

punishable under Section 498A of the IPC.

9. In view of the same, the appeal filed by the appellant is

allowed by giving her the benefit of doubt, and the impugned

order is set aside so far as it relates to Accused no.2 - Smt.

Chhaya, appellant herein.  Needless to say that the appellant

be released forthwith if not required in any other case.

..........................................J. (N.V. Ramana)

............................................J. (Mohan M. Shantanagoudar)

New Delhi; August 03 , 2018.