SAMPAT BABSO KALE & ANR. …APPELLANT(S) Versus THE STATE OF MAHARASHTRA …RESPONDENT(S)

Section 302/498A of Indian Penal Code (‘IPC’ for short) read with Section 34 of IPC

Trail court acquitted – High Court convicted – Apex court

held that

Whether we can convict the accused only on the basis of these dying declarations.

In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt

whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out.

It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded.

Normally it should be the other way round.

No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any

extraneous influence, the Court can convict the accused only on the basis of a dying declaration.

In the present case, as we have already held above, there was some doubt as to

whether the victim was in a fit state of mind to make the statement.

No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion.

Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case.

Non – Examination of neighbourhoods – fatal to the prosecution

none of the witnesses from the neighbourhood have been examined. Even as per the prosecution case it was the neighbours who first raised an alarm. There is no explanation

why none of them have been examined. It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance. This person

has not been examined.

The non­examination of these important witnesses leads to non­corroboration of the dying declaration. The best witnesses would have been the neighbours who reached the spot immediately after the occurrence. They would have been the best persons to state as to whether the victim told them anything about the occurrence or not.

In view of the aforesaid circumstances the trial court held that the prosecution had failed to prove its case beyond reasonable doubt.

This finding of the trial court could not be said to be perverse. It was based on a proper appreciation of evidence.

The defence, as pointed out above, was that the deceased was not willing to go to the village to look after her in­laws and, therefore, she committed suicide. The defence cannot be brushed aside.

As pointed out above, the prosecution story is that the appellants­ brother and sister, poured kerosene on the victim and set her on fire.

It is the admitted case that the house in which the victim was residing with her husband consists of one room with a kitchen. It stands proved that the fire took place in the kitchen and not in the bedroom.

below a pillow there were some ornaments and other things.

The panchanama report indicates that the ornaments were one yellow and black mangalsutra, a nathni (nose ring), some glass bangles and peinjan (an ornament worn on the foot).

It is also recorded that, according to the accused, these ornaments belong to his wife.

Mangalsutra, peinjan and even glass bangles are such ornaments which an Indian married woman would normally not remove. In Indian society these are normally worn by the ladies all the times.

Therefore, the defence version that the deceased took off all these ornaments and then went to the kitchen and committed suicide cannot be totally ruled out.

The trial court, after discussing the entire evidence in detail, had come to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt.

The High Court came to a different conclusion.

On perusal of the entire evidence and the law on the subject we are of the view that the trial court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt.

In view of the above, we allow the appeals and set aside the judgment of the High Court.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 694­695 OF 2011
SAMPAT BABSO KALE & ANR. …APPELLANT(S)
Versus
THE STATE OF MAHARASHTRA …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.

  1. These appeals by the accused are directed against the
    judgment of the High Court of Bombay dated 13.10.2010 in
    Criminal Appeal No. 473 of 1991 whereby the appeal of the State
    was allowed and the appellants were convicted for offences
    punishable under Section 302/498A of Indian Penal Code (‘IPC’
    for short) read with Section 34 of IPC and were sentenced to
    undergo imprisonment for life.
  2. Briefly stated the facts are that the Appellant No. 2, Tarabai
    Dhanaji Dhaigude is the sister of the Appellant No. 1, Sampat
    2
    Babso Kale. Appellant No. 1, was married to Sharada Sampat
    Kale on 25.04.1987. After residing for about one year at
    Thergaon, Chinchwad, they shifted to a quarter in MIDC Colony,
    Chinchwad. Sharada died of burn injuries suffered during the
    night intervening 08.07.1989 and 09.07.1989 in the wee hours of
    the morning of 09.07.1989. It is also not disputed that on the
    date of the occurrence, the Appellant No. 2 had come to stay at
    the house of her brother i.e. the Appellant No. 1. Burn injuries
    were to the extent of 98%. Sharada made two dying declarations
    – the first was in the nature of the information given to Dr.
    Sanjeev Chibbar (PW­5), who had attended upon her when she
    was admitted to the hospital and the second was a formal dying
    declaration made to Mr. Kamlakar Adhav, Special Judicial
    Magistrate, Pune (PW­2).
  3. The prosecution story is that relations between husband
    and wife were cordial for about one and a half years. Thereafter,
    Appellant No. 1 started ill treating his wife since she could not
    conceive. It is also alleged that, in fact, he wanted to marry again
    even when Sharada was alive. For this reason, he and his sister
    3
    had with common intention poured kerosene on Sharada and set
    her on fire.
  4. The defence version is that Sharada belongs to a
    comparatively well­off family. She was residing with her husband
    in MIDC Colony quarter which had all facilities. The case set up
    by the defence is that the parents of the appellants lived in a
    small one room hut in village Lonand with no facilities of toilet
    etc.. Appellant No.1 wanted that his wife should go to look after
    his parents. She was not willing to do so since material comforts
    like TV, WC, etc. were not available in the village and the parents
    lived in a very small one room hutment. According to the
    defence, on the evening of 08.07.1989, both the appellants
    requested Sharada to go to the village to look after the ageing
    parents. Sharada, who was sensitive, got upset and for this
    reason committed suicide. It was Appellant No. 1 who raised an
    alarm and tried to douse the fire by throwing water on Sharada.
    He requested the neighbours to call for an ambulance but when
    nobody could be contacted on phone, he along with one
    neighbour went to the hospital to get an ambulance. Thereafter,
    Sharada was taken to Sassoon Hospital, Pune where she was
    4
    admitted in the Burns Ward. Unfortunately, she passed away in
    the morning.
  5. The accused were charged and tried for the murder of
    Sharada. The trial court acquitted the accused by giving them
    the benefit of doubt mainly on the ground that the possibility of
    the deceased having committed suicide could not be ruled out.
    The trial court did not rely upon the dying declarations. On the
    other hand, the High Court came to the conclusion that there
    was no reason to discredit the dying declarations and held that
    dying declarations were totally reliable in view of the testimonies
    of PW­2 and PW­5. The High Court held that the reasoning given
    by the trial court was perverse and thereafter, allowed the appeal.
    Hence, the present appeals.
  6. We have heard learned counsel for the appellants. The
    main argument of the learned counsel for the appellants is that
    the deceased was a very sensitive lady. She, as is apparent from
    the letters exchanged between her and her husband, was madly
    in love with him. She, however, did not want to go and live in a
    village, that too in a small one room hutment and being sensitive
    in nature, she committed suicide. It is further alleged that even
    5
    the sister of the deceased had committed suicide. It was also
    contended that there are various discrepancies in the evidence
    and the dying declarations cannot be relied upon. It was further
    urged that the deceased died due to a fire in the kitchen of the
    house and not in the bedroom which clearly indicated that she
    had committed suicide. It was also contended that the defence
    version was a probable version and once there was a doubt then
    benefit of doubt should have been given to the accused persons.
    Lastly it was contended that the appellate court should not have
    lightly interfered with the findings given by the trial court.
  7. With regard to the powers of an appellate court in an appeal
    against acquittal, the law is well established that the
    presumption of innocence which is attached to every accused
    person gets strengthened when such an accused is acquitted by
    the trial court and the High Court should not lightly interfere
    with the decision of the trial court which has recorded the
    evidence and observed the demeanour of witnesses. This Court
    in the case of Chandrappa & Ors. v. State of Karnataka1
    , laid
    down the following principles:­
    1
    (2007) 4 SCC 415
    6
    “42. From the above decisions, in our considered view, the
    following general principles regarding powers of the
    appellate court while dealing with an appeal against an
    order of acquittal emerge:
    (1) An appellate court has full power to review, reappreciate
    and reconsider the evidence upon which the order of
    acquittal is founded.
    (2) The Code of Criminal Procedure, 1973 puts no
    limitation, restriction or condition on exercise of such power
    and an appellate court on the evidence before it may reach
    its own conclusion, both on questions of fact and of law.
    (3) Various expressions, such as, “substantial and
    compelling reasons”, “good and sufficient grounds”, “very
    strong circumstances”, “distorted conclusions”, “glaring
    mistakes”, etc. are not intended to curtail extensive powers
    of an appellate court in an appeal against acquittal. Such
    phraseologies are more in the nature of “flourishes of
    language” to emphasise the reluctance of an appellate court
    to interfere with acquittal than to curtail the power of the
    court to review the evidence and to come to its own
    conclusion.
    (4) An appellate court, however, must bear in mind that in
    case of acquittal, there is double presumption in favour of
    the accused. Firstly, the presumption of innocence is
    available to him under the fundamental principle of
    criminal jurisprudence that every person shall be presumed
    to be innocent unless he is proved guilty by a competent
    court of law. Secondly, the accused having secured his
    acquittal, the presumption of his innocence is further
    reinforced, reaffirmed and strengthened by the trial court.
    (5) If two reasonable conclusions are possible on the basis
    of the evidence on record, the appellate court should not
    disturb the finding of acquittal recorded by the trial court.”
  8. We may first deal with the evidence in relation to the dying
    declarations. Dr. Sanjeev Chibbar (PW­5) states that he was
    working in Sassoon Hospital, Pune in Ward No. 27 where the
    deceased Sharada Sampat Kale was brought with 98% injuries of
    burn. He asked her how she had suffered the burn injuries and
    she replied as follows:
    7
    “On being doused by her husband Sampat Baba Kale and
    his sister with kerosene and set on fire at 12.30 a.m.
    (approximately).”
  9. On the basis of the information given by the deceased, PW­5
    entered this as the history of the case in his own writing and he
    has proved the same in the Court. He further states that
    thereafter PW­2 came to the ward to record the dying declaration
    of the deceased. This witness states that before the dying
    declaration was recorded by the PW­2, he examined her and
    found that she was mentally fit and conscious to make her dying
    declaration. He further states that the dying declaration was
    recorded by the Special Judicial Magistrate in his presence in
    question and answer form. Since the hands of the deceased were
    burnt, PW­2 took the impression of the left big toe on the
    statement. He made the following endorsement on the dying
    declaration:
    “The statement issued to me by the patient is in the total
    presence of her mental faculties and in presence of the staff
    nurses. I certify her fit to issue this statement.”
  10. PW­5 further states that he signed the aforesaid statement
    and, in his presence, the Special Judicial Magistrate read over
    the contents of the dying declaration to Sharada who admitted
    8
    the same as correct. Thereafter, PW­2 made an endorsement to
    this effect and signed the same. The witness in crossexamination admitted that in case of patients of serious burn
    injuries painkillers are administered to the patients. He also
    admits that in such cases the trauma may cause delusion in the
    mind of the person. After perusal of the treatment chart he
    stated that Fortwin injection was given to the deceased at 3.30
    a.m.. He does not rule out the possibility of the injection having
    been given before recording the dying declaration.
  11. The other important witness is Mr. Kamlakar Adhav (PW­2),
    who was Special Judicial Magistrate, Pune. According to him, he
    was asked by the police to record the statement of Sharada
    Sampat Kale and thereafter he went to Ward No.27 in Sassoon
    Hospital, Pune. He was told by PW­5 that the female patient was
    fit and fully conscious to make the dying declaration. On his
    asking, the deceased told him that her name was Sharada
    Sampat Kale, aged 25 years and she gave her complete address.
    9
    She was conscious and told him that she was voluntarily making
    the statement. The dying declaration which this witness has
    proved reads as follows:
    “Q.1: Whether you are fully conscious?
    A­ Yes.
    Q.2: I am Spl. Judicial Magistrate, Do you understood
    this?
    A: Yes.
    Q.3: How you sustained burns?
    A. Today on 8.7.89 at night at about 1.30 hrs. at my
    residence my husband Sampat Babasaheb Kale and my
    sister in law Tarabai Dhanaji Dhaigude poured kerosene on
    my person and set me on fire and I sustained burn injuries.
    Quarrels used to take place between we both husband and
    wife and he also used to quarrel with me that I could not
    give birth to child and used to ill treat me. Yesterday at
    night due to above reason both of them poured kerosene on
    me and set me on fire and I sustained burns.”
  12. Rest of the aforesaid statement is similar to that given to
    PW­5 and need not be repeated. A suggestion has been put to
    PW­2 that this statement was not recorded in the presence of
    PW­5 and, therefore, the name of Dr. Chibbar has not been
    mentioned by him in the dying declaration. He denied the said
    suggestion. He denied the suggestion that Sharada was not in a
    position to utter a single word because of extensive burn injuries.
    10
  13. In our view, though dying declarations stand proved, the
    issue is whether we can convict the accused only on the basis of
    these dying declarations. In a case of the present nature where
    the victim had 98% burns and the doctor has stated from the
    record that a painkiller was injected at 3.30 a.m. and the dying
    declaration had been recorded thereafter, there is a serious doubt
    whether the victim was in a fit state of mind to make the
    statement. She was suffering from 98% burns. She must have
    been in great agony and once a sedative had been injected, the
    possibility of her being in a state of delusion cannot be
    completely ruled out. It would also be pertinent to mention that
    the endorsement made by the doctor that the victim was in a fit
    state of mind to make the statement has been made not before
    the statement but after the statement was recorded. Normally it
    should be the other way round.
  14. No doubt, a dying declaration is an extremely important
    piece of evidence and where the Court is satisfied that the dying
    declaration is truthful, voluntary and not a result of any
    extraneous influence, the Court can convict the accused only on
    the basis of a dying declaration. We need not refer to the entire
    11
    law but it would be apposite to refer to the judgment of this Court
    in the case of Sham Shankar Kankaria v. State of
    Maharashtra2
    held as follows:
    “11. Though a dying declaration is entitled to great weight,
    it is worthwhile to note that the accused has no power of
    cross­examination. Such a power is essential for eliciting
    the truth as an obligation of oath could be. This is the
    reason the court also insists that the dying declaration
    should be of such a nature as to inspire full confidence of
    the court in its correctness. The court has to be on guard
    that the statement of deceased was not as a result of either
    tutoring or prompting or a product of imagination. The
    court must be further satisfied that the deceased was in a
    fit state of mind after a clear opportunity to observe and
    identify the assailant. Once the court is satisfied that the
    declaration was true and voluntary, undoubtedly, it can
    base its conviction without any further corroboration. It
    cannot be laid down as an absolute rule of law that the
    dying declaration cannot form the sole basis of conviction
    unless it is corroborated. The rule requiring corroboration
    is merely a rule of prudence………….”
  15. In the present case, as we have already held above, there
    was some doubt as to whether the victim was in a fit state of
    mind to make the statement. No doubt, the doctor had stated
    that she was in a fit state of mind but he himself had, in his
    evidence, admitted that in the case of a victim with 98% burns,
    the shock may lead to delusion. Furthermore, in our view, the
    combined effect of the trauma with the administration of
    painkillers could lead to a case of possible delusion, and
    2
    (2006) 13 SCC 165
    12
    therefore, there is a need to look for corroborative evidence in the
    present case.
  16. The two accused filed separate written statements under
    Section 313 of Criminal Procedure Code (‘CrPC’ for short). The
    defence, as pointed out above, was that the deceased was not
    willing to go to the village to look after her in­laws and, therefore,
    she committed suicide. The defence cannot be brushed aside.
  17. There are two factors which cast a grave doubt with regard
    to the prosecution story. As pointed out above, the prosecution
    story is that the appellants­ brother and sister, poured kerosene
    on the victim and set her on fire. It is the admitted case that the
    house in which the victim was residing with her husband
    consists of one room with a kitchen. It stands proved that the
    fire took place in the kitchen and not in the bedroom. The
    panchanama (Exhibit 13) and the evidence of Narayan, panch
    witness (PW­1) clearly show that when the accused Sampat
    Babso Kale was taken to his residence after he was arrested, he
    opened the door by removing the lock. This clearly indicates that
    after the victim had been taken to the hospital, the premises was
    lying locked. Presumably, the second appellant or any other
    13
    person in the house had also gone with the victim. In the first
    room there was a cot, mattress, mosquito net, etc.. There was a
    kitchen in the adjoining area which had a separate privy and
    bathroom. There was a plastic container containing kerosene oil.
    There was smell of kerosene in the kitchen and there was water
    on the floor of the kitchen. A match box and some burnt cloth
    were also found in the kitchen. This proves that the occurrence
    took place in the kitchen and not in the bedroom.
  18. The second important factor which comes out from the
    statement of the panch witnesses is that in the first room in
    which there was a cot, there were two pillows on the cot and
    below a pillow there were some ornaments and other things. The
    panchanama report indicates that the ornaments were one yellow
    and black mangalsutra, a nathni (nose ring), some glass bangles
    and peinjan (an ornament worn on the foot). It is also recorded
    that, according to the accused, these ornaments belong to his
    wife. Mangalsutra, peinjan and even glass bangles are such
    ornaments which an Indian married woman would normally not
    remove. In Indian society these are normally worn by the ladies
    all the times. Therefore, the defence version that the deceased
    14
    took off all these ornaments and then went to the kitchen and
    committed suicide cannot be totally ruled out.
  19. Another factor which needs to be taken into consideration is
    that none of the witnesses from the neighbourhood have been
    examined. Even as per the prosecution case it was the
    neighbours who first raised an alarm. There is no explanation
    why none of them have been examined. It is also the prosecution
    case that the accused husband along with another neighbour
    went to the hospital to arrange for an ambulance. This person
    has not been examined. The non­examination of these
    important witnesses leads to non­corroboration of the dying
    declaration. The best witnesses would have been the neighbours
    who reached the spot immediately after the occurrence. They
    would have been the best persons to state as to whether the
    victim told them anything about the occurrence or not.
  20. In view of the aforesaid circumstances the trial court held
    that the prosecution had failed to prove its case beyond
    reasonable doubt. This finding of the trial court could not be
    said to be perverse. It was based on a proper appreciation of
    evidence. The trial court, after discussing the entire evidence in
    15
    detail, had come to the conclusion that the prosecution had failed
    to prove its case beyond reasonable doubt. The High Court came
    to a different conclusion. On perusal of the entire evidence and
    the law on the subject we are of the view that the trial court was
    right in holding that the prosecution had failed to prove its case
    beyond reasonable doubt.
  21. In view of the above, we allow the appeals and set aside the
    judgment of the High Court.
  22. Appellant No. 1 is stated to be in jail. He shall be released
    forthwith, if not required in any other case. Appellant No. 2 is on
    bail. Her bail bonds, if any, stand discharged.

….……………………..J.
(S. A. BOBDE)
.….…………………….J.
(DEEPAK GUPTA)
New Delhi
April 09, 2019