plea of alibi =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. – 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.

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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.