Bombay High Court
The State Of Maharashtra vs Sampat Babso Kale on 13 October, 2010
Bench: D.B.Bhosale, Rajesh G. Ketkar
This Order is modified/corrected by Speaking to Minutes Order
1 [CORRECTED
JUDGMENT]crappeal473-91
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.473 OF 1991
WITH
CRIMINAL APPLICATION NO.3031 OF 1991
The State of Maharashtra ..Appellant/Applicant
Vs.
1. Sampat Babso Kale
2. Tarabai Dhanaji Dhaigude ..Respondents
.........
Mr.H.J.Dedhia, APP for appellant State.
Mr.Rajeev Patil i/b.Mr.Dilip Bodake, for respondent no.1.
Ms.Revati Mohite-Dere, for respondent no.2.
.........
CORAM : D.B.BHOSALE &
R.G.KETKAR, JJ.
RESERVED ON : 8 SEPTEMBER, 2010.
th
PRONOUNCED ON : 13 OCTOBER, 2010.
th
JUDGMENT (PER R.G.KETKAR, J.):
This appeal is preferred by the State of Maharashtra
th
challenging the judgment and order dated 20 March, 1991 passed
by the learned Sessions Judge, Pune in Sessions Case No.33 of
This Order is modified/corrected by Speaking to Minutes Order
2 [CORRECTED
JUDGMENT]crappeal473-91
1990. By that judgment, learned Sessions Judge, Pune acquitted
the respondents accused of the Charge under Sections 302 and
498-A Indian Penal Code, 1860 (for short `IPC') individually and
also under Sections 302 and 498-A read with Section 34 IPC.
Respondents no.1 and 2 shall hereinafter be referred as accused
no.1 and 2, respectively. The facts and circumstances, giving rise
to the filing of this appeal preferred by the State, are as under.
2] The accused were prosecuted on the allegations that they
ig th
subjected deceased Sharada to cruelty and on or about 9 July,
1989 at about 1:30 am. in Room No.6 situate at M.I.D.C. Colony,
Chinchwad, they intentionally poured kerosene on her body and set
her on fire. Deceased Sharada was daughter of PW 4 Sarjerao
Bajirao Dhaigude who is resident of Nira. Marriage between the
th
deceased Sharada and accused no.1 Sampat took place on 25
April, 1987 at Lonand. After the marriage, accused no.1 Sampat
and deceased Sharada cohabited at Thergaon, near Chinchwad,
Taluka Pune for about one year. Thereafter, they shifted to the
quarter in M.I.D.C. Colony, Chinchwad. Accused No.1 Sampat and
Sharada used to visit PW 4 Sarjerao at Nira at the interval of 3 to 4
months. They used to stay over night at his residence. It is the
case of prosecution that for a period of one and half year after the
marriage, accused no.1 Sampat treated deceased Sharada well.
However, thereafter, he started illtreating her. Deceased Sharada
This Order is modified/corrected by Speaking to Minutes Order
3 [CORRECTED
JUDGMENT]crappeal473-91
told her father PW 4 Sarjerao that accused no.1 used to express
that he would desert her because she could not conceive. He
threatened her that on that ground he would discard her. Even
accused no.2 Tarabai used to express displeasure as deceased
Sharada was not in a position to conceive. She used to instigate
accused no.1 Sampat for discarding Sharada. PW 4 Sarjerao
called accused no.1 Sampat and told him to bear with time as only
one and half year had passed since the marriage. However, there
was no change in the attitude of accused no.1 and he continued to
illtreat deceased Sharada. It is the case of prosecution that
accused no.1 started looking for other alliance which was told to
PW 4 Sarjerao by his relative PW 6 Narayan Laxman Kare.
th
3] It is the case of prosecution that at about 1:30 hours on 9
July, 1989 both the accused either individually or in furtherance of
their common intention poured kerosene on the clothes and body of
deceased Sharada and set her on fire. Accused no.1 Sampat and
the persons residing in the vicinity took Sharada to Sassoon
Hospital at about 2:30 am. PW 5 Dr.Chibbar admitted Sharada in
ward no.27 which is otherwise known as Burn Ward in Sassoon
Hospital, Pune. He examined her and found that Sharada
sustained 98% burn injuries. Requisite arrangements were made
for calling PW 2 Kamlakar Adhav, Special Judicial Magistrate,
Pune. At about 3:30 am or 3:45 am PW 2 Kamlakar Adhav
This Order is modified/corrected by Speaking to Minutes Order
4 [CORRECTED
JUDGMENT]crappeal473-91
recorded dying declaration of Sharada at exhibit 16. It is the
th
further case of prosecution that on 9 July, 1989 accused no.1 gave
phone message to neighbour of PW 4 Sarjerao that he (PW 4) and
brother of accused no.1 were immediately called to Pune.
Accordingly, PW 4 Sarjerao went to Lonand and contacted brother
of accused no.1. Thereafter, they left for Pune and came to the
residence of accused no.1 at Chinchwad. However, the said place
was locked and on making inquiry from neighbours, PW 4 Sarjerao
came to know that Sharada sustained burn injuries and that she
was shifted to Sassoon Hospital, Pune. He went to Sassoon
Hospital and on making inquiry came to know that Sharada was no
more and her dead body was kept in morgue. After conducting
post mortem, on dead body of Sharada, it was handed over to PW
4 Sarjerao who took it to Nira for funeral. Since accused nos.1 and
2 were arrested by police, neither of them or any member of their
family remained present for the funeral.
th
4] At 6 pm. on 9 July, 1969 PW 3 P.H.C. Pathare attached to
Police Station, Chinchwad, received information from the Police
Station Officer about the incident in question and about recording
dying declaration of Sharada by the Special Judicial Magistrate at
Sassoon Hospital, Pune. He immediately went to Bund Garden
Police Station to collect her dying declaration and report of P.H.C.
R.A.Aziz, Police Head Constable. He went to Sassoon Hospital,
This Order is modified/corrected by Speaking to Minutes Order
5 [CORRECTED
JUDGMENT]crappeal473-91
Pune and noticed that Sharada sustained 100% burn injuries. He
returned to Police Station, Chinchwad and lodged FIR exhibit 19 on
behalf of State and registered offence at C.R. No.364 of 1989
under Section 307 read with Section 34 IPC and handed over the
investigation to PW 7 PSI Bhat. PSI Bhat visited the place of
th
incident on 9 July, 1989 and prepared spot panchnama exhibit 13.
He attached articles 1 to 3. At that time, he was informed that
Sharada expired in Sassoon Hospital. He arrested both the
accused at 12.30 hours on the same day and forwarded the report
to police station. He converted the offence under Section 302 read
with 34 IPC. He also made inquiry with the persons residing in the
vicinity and recorded their statements. He prepared inquest exhibit
8 as also recorded statement of PW 4 and others in Sassoon
th
Hospital. On 11 July, 1989 PW 7 Bhat recorded statements of
mother of deceased Sharada and others.
th
5] On 28 July, 1989 both the accused were sent for medical
examination for ascertaining whether they had sustained any
injuries. Medical certificate exhibit 9 was issued by the Casualty
Medical Officer, Sassoon Hospital, Pune in respect of accused no.2
Tarabai certifying that, on her examination, no burn injuries were
seen. Likewise, in respect of accused no.1 Sampat, certificate
exhibit 10 was issued certifying that, on examination, no burn
th
injuries were seen. On 17 August, 1989, PW 7 PSI Bhat went to
This Order is modified/corrected by Speaking to Minutes Order
6 [CORRECTED
JUDGMENT]crappeal473-91
Nira and recorded statements of Ms.Jayshree Kare and others.
After completing investigation, he filed charge sheet at exhibit 30 in
th
the court of learned Judicial Magistrate First Class on 16 October,
1989 who, in turn, committed the case to the court of Sessions on
th
4 January, 1990. Charge exhibit 2 was read over and explained
to accused. They denied guilt and claimed to be tried. The
defence of the accused was of total denial. They admitted about
the marriage of accused no.1 Sampat and Sharada and about their
residence initially at Thergaon and subsequently, at M.I.D.C.
Colony, Chinchwad. Accused no.1 also admitted that he and
deceased used to visit the residence of PW 4 Sarjerao once in
three to four months' interval and used to stay there over night.
They, however, denied that deceased Sharada was subjected to
any cruelty. They further denied that they expressed displeasure
as Sharada could not conceive and, on that count, she would be
driven out of the house. Accused no.1 Sampat further denied that
they approached PW 6 Narayan Laxman Kare for alliance.
Accused no.1 further admitted that after Sharada sustained injuries,
he along with his neighbours took her to Sassoon Hospital. He
was informed by the concerned Medical Officer that condition of
deceased Sharada was serious. Both accused denied that PW 5
Dr.Chibbar asked Sharada about the history of sustaining burn
injuries, whereupon she told him that both accused poured
kerosene on her body and set on fire herself and her clothes.
This Order is modified/corrected by Speaking to Minutes Order
7 [CORRECTED
JUDGMENT]crappeal473-91
According to them, since Sharada sustained 100% burn injuries
she was unable to speak. They have denied the contents of dying
declaration of Sharada. Accused no.1 Sampat filed his written
statement at exhibit 32 and also produced letters which were
marked exhibits 34 to 39. Accused no.2 adopted said statement by
filing purshis exhibit 40.
6] In the written statement exhibit 32, accused no.1 contended
that in the quarter in M.I.D.C. Colony, Chinchwad, deceased
Sharada and her brother Manoj started residing together. Madhav
who is son of accused no.2 Tarabai was also residing with him. He
used to love deceased Sharada like anything. She never left him
at any time. He brought T.V., Tape-recorder and other household
articles according to her wishes. He has further contended that his
parents are illiterate and are from poor class. There were no
facilities at Lonand where his parents were living. Deceased
Sharada never liked to stay with his parents at Lonand. However,
to fulfill wishes of his parents, Sharada stayed at Lonand. She,
however, told him that in future she would not go to Lonand and
stay with his parents. Because of old age of his parents, they were
keeping illhealth. There was nobody to look after them and
th
accused felt that Sharada should look after them. On 8 July 1989
accused no.2 Tarabai came to their residence. While they were
taking dinner, accused no.2 told accused no.1 that since their
This Order is modified/corrected by Speaking to Minutes Order
8 [CORRECTED
JUDGMENT]crappeal473-91
parents are ill, it was difficult for them to do any household work.
Accused no.2 suggested that accused no.1 should send his wife
Sharada to their residence at Lonand where she would stay for one
year. At that time, both of them desired that Sharada should go
and stay with their parents at Lonand. Sharada did not like this
idea and she kept mum. Sharada was disappointed on that count.
He thought that he would console her on the next day. As usual, he
and Sharada went to sleep on the cot. On the mattress in the
same room, accused no.2 and her son Madhav slept.
7] At about 1:30 hours, when he was in sleep, he heard noise
from the kitchen. Both the accused went towards the kitchen and
found that door was closed. Accused no.1 pushed the door forcibly
and found that Sharada was in flames. He raised shouts and took
a bucket of water from bath room and poured on her body.
Accused no.2 also shouted and the people from building gathered
there. Accused no.1 started crying by saying to deceased Sharda
as to what she had done. He requested his neighbour Shri
Shiralkar to contact on telephone and call ambulance. Said
Shiralkar, however, could not contact on phone. Immediately
accused no.1 Sampat and said Shiralkar went on scooter to
Jijamata Hospital and brought ambulance. Accused no.1 and
neighbours brought Sharada to Sassoon Hospital. On the way, he
found that the general condition of Sharada was deteriorating and
This Order is modified/corrected by Speaking to Minutes Order
9 [CORRECTED
JUDGMENT]crappeal473-91
she was speaking incoherently. When he returned with ambulance,
he heard from the persons who had gathered that Sharada purred
kerosene on her clothes and body and set fire. In the defence, it
was further submitted that Sharada was rather adamant and strong
minded.
8] The prosecution filed four documents along with list exhibit 6
and with the application exhibit 5 under Section 294 of the Code of
Criminal Procedure. The defence admitted that the inquest exhibit
8, injury certificates exhibits 9 and 10 as also post mortem notes
exhibit 28. In order to bring home the guilt of accused, the
prosecution examined in all seven witnesses. PW 1 Narayan
Namdeo Bhosure, panch to spot panchnama, has proved the spot
panchnama exhibit 13. PW 2 Kamlakar Baburao Adhav, Special
Judicial Magistrate, at exhibit 14, who produced Yadi (Exh.15)
whereby he was called in Sassoon Hospital, Pune for recording the
dying declaration. He also proved dying declaration exhibit 16. PW
3 is Baliram Shivram Pathare, Police Head Constable, at exhibit 17,
who produced the report given to him by R.A.Aziz, Police Head
Constable and lodged FIR exhibit 19 on behalf of the State. PW 4
Sarjerao Bajirao Dhaigude at exhibit 22, who is father of deceased
Sharada. He produced marriage invitation card exhibit 22 showing
th
that accused No.1 married one Kishori alias Asha on 8 December,
1990. PW 4 Sarjerao deposed about illtreatment and cruelty
This Order is modified/corrected by Speaking to Minutes Order
10 [CORRECTED
JUDGMENT]crappeal473-91
inflicted by accused to Sharada. PW 5 is Dr.Sanjiv Chibbar who
produced case papers. He proved his endorsement on the dying
declaration that Sharada was conscious and she was in a
position to give dying declaration. He deposed that he recorded
history of the case as narrated by Sharada in his own handwriting,
where she had stated that both accused poured kerosene on her
clothes and set fire to them. Prosecution also examined PW 6
Narayan, relative of Sarjerao (PW 4) to substantiate that accused
no.1 sought alliance and proposed to marry his daughter which was
declined by PW 6 Narayan. PW 7 is PSI Bapurao Vithoba Bhat
who carried out the investigation.
9] On the basis of the evidence on record, learned Sessions
Judge acquitted the accused by the impugned judgment and order
th
dated 20 March, 1991. It is against this judgment and order, the
State has preferred this appeal. Since there was delay of 48 days
in filing the appeal, Criminal Application No.3031 of 1991 was filed
for condonation of delay. Rule was issued on the said application.
th
In so far as appeal is concerned, on 13 January, 1992 it was
admitted subject to condonation of delay.
10] We have heard Mr.H.J.Dedhia, learned APP for appellant
State, Mr.Rajiv Patil, learned counsel for respondent no.1/accused
no.1 and Ms.Revati Mohite-Dere, learned counsel for respondent
This Order is modified/corrected by Speaking to Minutes Order
11 [CORRECTED
JUDGMENT]crappeal473-91
no.2/accused no.2, at length.
11] Learned counsel for respondents opposed the application for
condonation of delay contending that application does not make out
any sufficient cause for condoning the delay. They submitted that
the incident in question took place in July 1989 and after
considering the material on record, learned Sessions Judge
th
acquitted both the accused on 20 March, 1991. Now the appeal
has come up for final hearing in September, 2010. Accused no.1 is
a married person having children. In so far as accused no.2 is
concerned, her son Madhav who was at the relevant time taking
education and was residing with accused no.1, committed suicide.
It was therefore submitted by them that this is not a fit case for
condoning delay after almost 21 years from the date of incident.
They, therefore, prayed for dismissal of the application for
condonation of delay.
12] Mr.Dedhia, learned APP submitted that after the impugned
th
judgment and order was passed on 20 March, 1991, application for
certified copy was made. After obtaining the certified copy and
after perusing the judgment, proposal was moved in time to the Law
and Judiciary Department for filing appeal. The said proposal was
th
received by the Law and Judiciary Department on 19 June, 1991
th
and sanction for filing appeal was granted on 24 June, 1991. The
This Order is modified/corrected by Speaking to Minutes Order
12 [CORRECTED
JUDGMENT]crappeal473-91
papers were received in the office of Public Prosecutor, High Court,
th
Bombay on 26 June, 1991. It was, however, noticed that the
certified copy of the impugned judgment was not with the sanction
order. Inquiries were made by the office of the Public Prosecutor
with the Law and Judiciary Department about the certified copy.
However, it was not traceable. The office of the Public Prosecutor
th
made second application on 6 July, 1991. The certified copy was
th
sent to the office of Public Prosecutor on 9 August, 1991 and
appeal was filed on that day which was beyond time by 48 days.
He, therefore, submitted that the delay in the instant case is neither
deliberate nor intentional and, hence, deserves to be condoned.
13] We have considered rival submissions made by learned
counsel for the parties. As noted earlier, on the application for
th
condonation of delay, Rule was issued on 13 January, 1992. It was
th
made returnable on 10 February, 1992. It is not in dispute and
even otherwise from the record it is evident that accused were duly
th
served with this application on 9 February, 1992. However, no
reply opposing the application was filed. Considering the grounds
set out in paragraph III of the application, we are satisfied that the
State has made out sufficient cause for condoning the delay. We,
accordingly, condone the delay.
14] Mr.Dedhia submitted that in the instant case the prosecution
This Order is modified/corrected by Speaking to Minutes Order
13 [CORRECTED
JUDGMENT]crappeal473-91
has established that initially for a period of one and half year from
the marriage, accused no.1 treated Sharada properly. He however
started illtreating her and inflicted cruelty as she could not conceive.
Evidence of PW 4 Sarjerao establishes that Sharada was illtreated
by the accused. He further submitted that the evidence of PW 2
Kamlakar and PW 5 Dr.Chibbar proves beyond reasonable doubt
the dying declaration. The dying declaration clearly sets out that
accused poured kerosene and set her on fire. He submitted that
when the dying declaration of Sharada was recorded there was no
possibility of tutoring as when PW 4 Sarjerao came to hospital,
Sharada had already expired. He therefore submitted that the
dying declaration recorded by PW 2 does not suffer from any
infirmity. The dying declaration was not a result of tutoring,
prompting or imagination. Considering the testimony of PW 2
Kamlakar and PW 5 Dr.Chibbar as also the dying declaration
exhibit 16, it cannot be said that the dying declaration was
suspicious. He further submitted that considering the testimony of
these witnesses, it was evident that the deceased Sharada was in a
position to make the dying declaration. He submitted that learned
Sessions Judge solely relied upon the testimony of PW 5
Dr.Sanjeev Chibbar and came to the conclusion that the deceased
was not in mental condition and conscious to give statement. In
support of these submissions, he relied upon the following
decisions:-
This Order is modified/corrected by Speaking to Minutes Order
14 [CORRECTED
JUDGMENT]crappeal473-91
(i) Varikuppal Srinivas Vs. State of A.P.,
2009 AIR SC 975.
(ii) Satish Ambanna Bonsode Vs. State
of Maharashtra, (2009) 11 SCC 217.
(iii)Sher Singh and another Vs. State of
Punjab, (2008) 4 SCC 265.
15]
On the other hand, Mr.Rajiv Patil and Ms.Revati Mohite-Dere
supported the impugned judgment and order. They submitted that
the prosecution has not established the guilt of the accused beyond
reasonable doubt. It has come in the evidence of PW 7 PSI Bhat
that he did not mention the names of witnesses in the charge sheet
who were residing in the vicinity as nobody supported the incident
in question and they were not knowing about it. It has come on
record that accused no.1 shifted deceased Sharada with the help of
neighbours to Sassoon Hospital. If at all the accused had set the
deceased Sharada on fire, she would have definitely disclosed the
said fact to the persons while going to the hospital. It has also
come in the evidence of PW 7 PSI Bhat that he recorded
statements of 21 persons residing in the vicinity, but none of them
was examined as witness.
16] In so far as dying declaration recorded by PW 2 Kamlakar is
This Order is modified/corrected by Speaking to Minutes Order
15 [CORRECTED
JUDGMENT]crappeal473-91
concerned, learned counsel for the accused submitted that the
dying declaration is not free from suspicion. Deceased Sharada
sustained 100% burn injuries and considering the evidence of PW 5
Dr.Chibbar, deceased Sharada was not in mental fit condition to
th
make dying declaration. They submitted that on 8 July, 1989 while
they were taking dinner, they suggested Sharada for going to
Lonand to look after their ailing parents and stay there for one year.
Sharada did not like that idea and in order to bring pressure on
accused for not sending her to Lonand, she poured kerosene and
set herself on fire at 1:30 am. as a pressurizing tactic. In that,
however, she sustained 100% burn injuries. They further
contended that the view taken by the Sessions Court is reasonably
a possible view. It cannot be termed as unreasonable and perverse
view. This is more so when the court is dealing with appeal against
acquittal almost after 19 years. They, therefore, prayed for dismissal
of appeal.
17] In support of these submissions, learned counsel for the
accused relied upon the following judgments:-
i) Mahindra Pratap Singh Vs. State of U.P.,
2009 (3) JT 120.
ii) Darshan Singh Vs. State of Punjab & anr.,
2010 All.MR. (Cri.) 622 (S.C.)
iii) Hate Singh Bhagat Singh Vs.State of
Madhya Bharat, AIR 1953 SC 468.
This Order is modified/corrected by Speaking to Minutes Order
16 [CORRECTED
JUDGMENT]crappeal473-91
iv) Shantabai Vs. State, Crimes VII-1990 (2)
v) Darshan Singh and others Vs.State of
Punjab and Joga Singh and others Vs.
State of Punjab, AIR 1983 SC 554.
vi) State of Rajasthan Vs. Prithvi Raj, Crimes
VII - 1995(3) 260.
vii) Laxman Vs. State of Maharashtra, 2002
AIR SCW 3479.
viii) Gopalsingh and anr. Vs. State of Madhya
Pradesh and anr., AIR 1972 SC 1557.
ix) State of Rajasthan Vs. Yusuf, AIR 2009
SC 2674.
18] The prosecution has examined PW 1 Narayan Namdeo
Bhosure at exhibit 12. He is a panch witness to spot panchnama.
PW 2 Kamlakar Adhav, Special Judicial Magistrate was examined
th
at exhibit 14. He deposed that at about 3:30 am on 9 July, 1989
he received intimation from Bund Garden Police Station and he was
directed to go to Sassoon Hospital for recording dying declaration of
Sharada. He acknowledged receipt of Yadi exhibit 15. He went to
Ward No.27 in Sassoon Hospital where he met PW 5 Dr.Chibbar
and told him that he wanted to record dying declaration of Sharada.
PW 5 took him towards bed of Sharada. PW 5 Dr.Chibbar
This Order is modified/corrected by Speaking to Minutes Order
17 [CORRECTED
JUDGMENT]crappeal473-91
examined her and told him that Sharada was fully conscious and
well oriented to give dying declaration. PW 2 Kamlakar asked
deceased her name and she gave her name as Sharada Sampat
Kale, age 25 years and that she was doing house hold work. She
also gave her address as M.I.D.C. Colony, A-3. He further asked
her if she was fully conscious and she answered the same in the
affirmative. He disclosed to her his identity and asked her as to how
she sustained burn injuries. Sharada told him that on the night of
th
8 July, 1989 at 1:30 hours, her husband Sampat and his sister
Tarabai poured kerosene on her clothes at her residence and
thereafter set fire to her. She further told him that as she could not
conceive and give birth to a child, there was quarrel between her
and her husband. He used to taunt her and illtreat her. She further
told him that because of the said reason, accused poured kerosene
on her person and set her on fire and, accordingly, sustained burn
injuries. He further deposed that he recorded her dying declaration
as narrated by her and the same was read over to her. She
admitted the same as true and correct. He took impression of her
left great toe and attested the same. He also countersigned the
same. While he was recording dying declaration of Sharada, PW 5
Dr.Chibbbar and one staff nurse were present with him. On the
said dying declaration, PW 5 Dr.Chibbar made endorsement to the
following effect:-
".......the statement issued to me by
this patient is in the total presence
This Order is modified/corrected by Speaking to Minutes Order
18 [CORRECTED
JUDGMENT]crappeal473-91
of her mental faculties and in
presence of staff nurses. I certify
her fit to issue this statement."
PW 5 Dr.Chibbar had signed below said endorsement in the
presence of PW 2 Kamlakar.
19] In the cross-examination, PW 2 Kamlakar deposed that he
did not examine case papers of Sharada before recording her dying
declaration. Sharada had sustained 100% burn injuries and that
she was in agonies and pains. She was speaking with difficulty.
She was also moaning. When he saw Sharada, he noticed Saline
I/V was already in progress. He only asked questions to her which
are mentioned in the dying declaration. Before recording her dying
declaration he did not put her any other question to ascertain if she
was in fit mental condition to give dying declaration. He did not
make separate endorsement to the effect that he recorded the
same in the presence of PW 5 Dr.Chibbar. There was also no
endorsement of PW 5 Dr.Chibbar that he examined female patient
before recording her dying declaration and that he found her fit to
give dying declaration. He denied that female patient was not in a
position to utter single word because of extensive burn injuries and
he recorded the contents of dying declaration as narrated by police.
He denied that PW 5 Dr.Chibbar did not examine Sharada before
recording her dying declaration. He further denied that he obtained
This Order is modified/corrected by Speaking to Minutes Order
19 [CORRECTED
JUDGMENT]crappeal473-91
endorsement of PW 5 Dr.Chibbar below dying declaration
subsequently. He also denied that PW 5 Dr.Chibbar was not
present while recording the dying declaration. He further denied
that he did not read over the contents of the dying declaration and
that Sharada admitted that as true and correct. He further denied
that he did not record dying declaration of Sharada as narrated by
her and simply obtained impression of her great toe on it.
20] In the dying declaration exhibit 16 when the question No.3
was asked by PW 2 Kamlakar to deceased Sharada about the burn
injuries sustained by her, she replied to the following effect:-
"Q-3.How you sustained burns?
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 illtreat
me. Yesterday at night due to above
reason both of them poured
kerosene on me and set me on fire
and I sustained burns."
This Order is modified/corrected by Speaking to Minutes Order
20 [CORRECTED
JUDGMENT]crappeal473-91
21] The prosecution has examined PW 4 Sarjerao, father of
deceased Sharada at exhibit 21. He deposed that for the period of
first one and half year accused treated Sharada well. Thereafter,
he started illtreating her. Sharada told him that accused no.1
expressed to her that he would discard her be cause she could not
conceive. Even accused no.2 used to express her displeasure as
to why Sharada was not in a position to conceive. Accused no.2
used to instigate accused no.1 that he should discard Sharada and
drive her out of house. Therefore, PW 4 Sarjerao called accused
no.1 and told him to bear with time because only one and half years
passed since their marriage. However, accused no.1 Sampat
continued to illtreat Sharada and inflicted cruelty on her. Accused
th
no.1 started of another bride. He further deposed that on 9 July,
1989 a phone message was received from accused no.1 by his
neighbour that he (PW 4 Sarjerao) and brother of accused no.1
were called to Pune immediately. He went to Lonand and
contacted brother of accused no.1. Then, PW 4 Sarjerao along with
brother of accused went to residence of accused no.1 at
Chinchwad. However, his house was found locked. On making
inquiries with the neighbours, he came to know that Sharada
sustained burn injuries and that she was admitted in Sassoon
Hospital. He went to Sassoon Hospital and came to know that
Sharada was no more and her dead body was kept in morgue. He
took the dead body of deceased at Nira and performed her last
This Order is modified/corrected by Speaking to Minutes Order
21 [CORRECTED
JUDGMENT]crappeal473-91
rites. At about 4:00 pm the police recorded his statement. Brother
of accused did not accompany him to Nira. Subsequently, in the
month of December, 1990 accused no.1 performed marriage. PW 4
Sarjerao produced invitation card of said marriage at exhibit 22.
22] In the cross-examination, PW 4 Sarjerao admitted that
parents of accused no.1 and their unmarried daughter by name
Gangu reside at Lonand. Parents of accused and their other
relatives were illiterate and they used to work as labourer. They did
not own any landed property. The residence of parents of accused
at Lonand comprises of one room admeasuring 10ft x 10 ft. It was
constructed by mud and bricks with a roof on it. There is no facility
of water and electricity, bath room, W.C. etc. He was shown
th th
letters dated 26 July, 1988 and 25 April, 1989 allegedly written by
accused no.1 to him. He felt ignorance as to who produced these
th
letters dated 26 July, 1988. He admitted contents of letter dated
th
25 April, 1989 exhibit 23. He admitted that before the incident in
question, his son Manoj was residing with accuse no.1 and Sharada
for some months. He was serving there. His elder daughter
Kusum was given in marriage at Wadegaon Farm, Taluka Satara.
However, she committed suicide by taking poison. He denied that
deceased Sharada was sentimental. He further deposed that when
he arrived at hospital, he came to know that Sharada in her dying
declaration disclosed that accused poured kerosene on her clothes
This Order is modified/corrected by Speaking to Minutes Order
22 [CORRECTED
JUDGMENT]crappeal473-91
and set her on fire because she could not conceive child. He
further admitted that accused no.2 was residing at Lonand with her
husband and children. He never complained to police about the
illtreatment received by Sharada at the hands of accused no.1. He
th
denied that in the statement recorded by police on 9 July, 1989 he
did not state that Sharada told that accused no.1 expressed to drive
her out of the house as she could not conceive. He admitted that in
the statement recorded by police he did not state that one Kare
(PW 6) told him that accused no.1 was searching for a bride and
was thinking of remarriage. He denied that he deposed falsely that
Sharada told him about illtreatment at the hands of accused.
23] Prosecution examined PW 3 Baliram Shivram Pathare, Police
Head Constable at exhibit 17 who obtained the dying declaration
from Bund Garden Police Station and also report of R.A.Aziz,
P.H.C. (exhibit 18). On receipt of information, he lodged FIR at
Pimpri Police Station who bore his signature (exhibit 19).
24] Prosecution also examined PW 5 Dr.Rajiv Chibbar at exhibit
29. He deposed that Sharada was brought to Sassoon at 2:50 am
in Ward No.27. he personally examined her and found that she had
sustained 98% burn injuries as under :-
i) 36% burn injuries on thorax,
ii) 18% burn injuries on upper limbs,
iii) 35% burn injuries on lower limbs,
This Order is modified/corrected by Speaking to Minutes Order
23 [CORRECTED
JUDGMENT]crappeal473-91
iv) 1% burn injury on perineum,
v) 8% on the face.
He asked Shrada about history of burn injuries sustained by her
and she told him "of being doused by her husband Sampat Baba
Kale and his sister with kerosene and set her on fire at 12-30 am
approximately". He wrote the history accordingly in his handwriting
in the case papers exhibit 25. About 10 to 15 minutes thereafter,
PW 2 Kamlakar came to Ward No.27 and told him that he came for
recording dying declaration of deceased Sharada. He further
deposed that he examined Sharada before recording dying
declaration and found that even at that time she was lucid. It was
his observation by experience that even in case if a patient sustains
burn injuries upto 100%, still such a patient is having a clear brain
and he can talk with understanding. He found that Sharada was fit
and conscious to give her dying declaration. In his presence, PW 2
Kamlakar asked questions and recorded answers given by her. He
saw that both palms of Sharada together with fingers had sustained
burn injuries and hence the impression of left great toe was taken
by the PW 2 Kamlakar on dying declaration. Thereafter, he made
endorsement to the following effect :-
"the statement issued to me (PW 5) 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."
This Order is modified/corrected by Speaking to Minutes Order
24 [CORRECTED
JUDGMENT]crappeal473-91
In the presence of PW 5 Dr.Chibbar, PW 2 Kamlakar read over the
contents of the dying declaration and she admitted the same as
true and correct. Enforcement was made on the case papers that
th
PW 2 Kamlakar recorded the dying declaration on 9 July, 1989 at
4 am. PW 2 Kamlakar also signed below the said endorsement.
Sharada expired in the morning at about 9:00 am. According to
him, the burn injuries on all over the body which were to the extent
of 98% were sufficient in the ordinary course of nature to cause
death. He gave sufficient warning to accused no.1 at the time of
admission of deceased in Ward No.27 that her condition was very
serious and his signature was obtained below the endorsement of
case papers.
25] In the cross-examination, PW 5 Dr.Chibbar deposed that he
worked in Ward No.27 and treated the patient suffering from burn
injuries for 2 months and 5 days only. He observed that generally
ward No.27 of Sassoon is full of patients. At that time, he was also
attached to male ward as emergency. At that time, he roughly
treated about 200 patients who had sustained burn injuries. He
admitted that Sharada was in a very serious condition when she
was brought to Sassoon hospital in ward No.27. There were
extensive burn injuries over her face and neck because of which
she was in great pains and agonies. He further deposed that when
there is higher percentage of burn injuries, there is every possibility
This Order is modified/corrected by Speaking to Minutes Order
25 [CORRECTED
JUDGMENT]crappeal473-91
that such a patient goes in shock, mental process of the patient is
hampered and patient may go in delirium. In that case also a
patient may go in comma. Because of 100% of burn injuries, there
is dehydration in the body of the patient. He further admitted that
because of dehydration, the tongue would go dry and it would
cause difficulty to the patient while talking. He also agreed that
burn injuries caused by kerosene are more dangerous as
compared to burn injuries sustained by other things. He further
admitted that because of burning carbon dioxide and carbon
monoxide are created and because of inhaling of them same, it
becomes dangerous to the life. Carbon monoxide is dangerous to
the health. An inhaling of the same to the extent of 0.1 per cent is
dangerous to the health. Similarly, carbon monoxide is rapidly
absorbed in the blood. Because of the same the brain of the
person will be affected. Even at times and because of all these
things which he has narrated hereinabove, there is every possibility
that the mental faculty of such a patient will be affected and it will
result in cerebral anoxia, causing total damage to the brain.
Findings of carbon particles in traches may show as to what
amount of quantity the patient had inhaled the smoke.
26] He further deposed that injections like pethidine, morphine
and fortwin are given to such a type of patients to relieve them from
pain and agony. He stated that such injections are given to the
This Order is modified/corrected by Speaking to Minutes Order
26 [CORRECTED
JUDGMENT]crappeal473-91
patient only after dying declaration. These medicines are pain
killers and sedatives. The attention of this witness was drawn to
temperative chart where were endorsement to the following effect :-
" Injections fortwin 1 ampule given at 3-30 a.m."
According to this witness, one ampule of fortwin contains 2 ml. of
Fortwin. It comes approximately to 2 cc. In this case, he can not
even rule out the possibility that injection Fortwin might have been
given to the patient even before recording of dying declaration.
He admitted that when he asked the deceased about history of
burn injuries sustained by her, she narrated the same in Marathi.
To a pointed question as to whether he asked the deceased some
questions in order to ascertain that she was in a fit mental condition
to give history of case, he answered that he asked the deceased
and thereafter recorded the history of the case.
27] He further deposed that normal pulse rate of a person
between age group 18 to 40 is between 66 to 80 per minute and in
this case, the pulse rate was 120 per minute. To a pointed question
as to whether he took a note in case papers that he examined the
patient before recording her dying declaration and questions put to
her by him, he answered that he did not do so as according to him
it was not necessary also. He admitted that he did not make any
This Order is modified/corrected by Speaking to Minutes Order
27 [CORRECTED
JUDGMENT]crappeal473-91
endorsement on case papers that before recording her dying
declaration, he put to deceased some questions and she answered
to his satisfaction and, thus, according to him, she was in fit
condition to give dying declaration. He denied that deceased did
not narrate the history of the case as written by him on case
papers. He further denied that PW 2 Kamlakar did not record
Sharada's dying declaration in his presence. He denied that
Sharada was not in fit mental condition when she narrated the
history of the case.
28] The prosecution also examined PW 6 Narayan Laxman Kare
at exhibit 26 to substantiate that accused no.1 Sampat approached
him with a proposal of his daughter's marriage with the accused.
He deposed that in the month of April, 1989 accused no.1 came to
his residence along with his mother and gave proposal to perform
marriage with his daughter Usha. At that time his daughter-in-law
Jayashree was at the residence. At the time of his evidence, the
age of his daughter Usha was 18 years. When this witness
returned to his home, his daughter-in-law Jayashree told him about
the same. Learned counsel for the accused contended that
evidence of PW 6 Narayan is totally unbelievable for more than one
reason. In the first place, the said evidence is totally hearsay
evidence. Secondly, at the time of deposition, the age of his
th
daughter Usha was 18 years. His evidence was recorded on 5
This Order is modified/corrected by Speaking to Minutes Order
28 [CORRECTED
JUDGMENT]crappeal473-91
March, 1991. His daughter-in-law Jayashree was not examined. In
order to get over this, PW 6 Narayan came with the explanation that
since Jayashree delivered a female child and the date on which he
th
deposed, was 11 day of delivery of child, she therefore was not in
a position to go out of house for a period of at least two months.
Considering the evidence of PW 6 Narayan, we find merit in the
submissions advanced on behalf of the learned counsel for the
accused. We, accordingly, discard the entire testimony of PW 6
Narayan from our consideration.
29] The prosecution examined PW 7 Bapurao Vithoba Bhat, PSI
who carried out the investigation and prepared spot panchnama
exhibit 13 as also attached articles Nos.1 to 3 under the
th
panchnama. He arrested the accused at about 12:20 hours on 9
July, 1989. He made inquiries with the persons residing in the
vicinity and also recorded statements of some of them. He went to
Sassoon hospital and prepared inquest exhibit 8. He did not
mention names of witnesses residing in the vicinity in the charge
sheet because nobody supported the incident in question and they
were not knowing about it.
th
30] In the cross-examination, PW 7 admitted that letter dated 25
th
April, 1989 exhibit 23 and one more letter dated 26 July, 1988
were produced before him by PW 4 Sarjerao. As far as post card
This Order is modified/corrected by Speaking to Minutes Order
29 [CORRECTED
JUDGMENT]crappeal473-91
th
dated 19 May, 1988, it might have been produced by PW 4
Sarjerao. He deposed that he wanted to record the statement of
persons residing in the adjoining premises to ascertain if any of
them heard shouts of deceased Sharada soon after the incident or
anyone of them extinguished fire of her clothes. He admitted that
he recorded statements of 21 persons residing in the same building
and same vicinity. He denied that he did not mention names of six
persons in the charge sheet because their version was contrary to
the case of prosecution.
31] Before we appreciate the evidence on record and deal with
the rival submissions made by learned counsel for the parties,
bearing in mind that we are dealing with appeal against acquittal,
let us consider the principles governing the power of the appellate
Court while dealing with the appeal against acquittal. In the case of
M.G.Agarwal V/s.State of Maharashtra, AIR 1963 SC 200 the
Constitution Bench of the Apex Court held in Paragraph Nos.16 &
17 of the Judgment as under:-
16. Section 423 (1) prescribes the powers of
the appellate Court in disposing of appeals
preferred before it and clauses (a) and (b) deal
with appeals against acquittals and appeals
against convictions respectively. There is no
doubt that the power conferred by clause (a)
which deals with an appeal against an order of
acquittal is as wide as the power conferred by
This Order is modified/corrected by Speaking to Minutes Order
30 [CORRECTED
JUDGMENT]crappeal473-91
clause (b) which deals with an appeal against
an order of conviction , and so, it is obvious that
the High Court's powers in dealing with criminal
appeals are equally wide whether the appeal in
question is one against acquittal or against
conviction. That is one aspect of the question.
The other aspect of the question centres round
the approach which the High Court adopts in
dealing with appeals against orders of acquittal.
In dealing with such appeals, the High Court
naturally bears in mind the presumption of
innocence in favour of an accused person and
cannot lose sight of the fact that the said
presumption is strengthened by the order of
acquittal passed in his favour by the trial Court
and so, the fact that the accused person is
entitled to the benefit of a reasonable doubt will
always be present in the mind of the High
Court when it deals with the merits of the case.
As an appellate Court the High Court is
generally slow in disturbing the finding of fact
recorded by the trial Court, particularly when
the said finding is based on an appreciation of
oral evidence because the trial Court has the
advantage of watching the demeanor of the
witnesses who have given evidence. Thus,
though the powers of the High Court in dealing
with an appeal against acquittal are as wide as
those which it has in dealing with an appeal
against conviction, in dealing with the former
class of appeals, its approach is governed by
the overriding consideration flowing from the
presumption of innocence. Sometimes the
width of the power is emphasized, while on
other occasions, the necessity to adopt a
cautious approach in dealing with appeals
This Order is modified/corrected by Speaking to Minutes Order
31 [CORRECTED
JUDGMENT]crappeal473-91
against acquittals is emphasized and the
emphasis is expressed in different words or
phrases used from time to time. But the true
legal position is that however circumspect and
cautious the approach of the High Court may
be in dealing with appeals against acquittals, it
is undoubtedly entitled to reach its own
conclusions upon the evidence adduced by the
prosecution in respect of the guilt or innocence
of the accused. This position has been clarified
by the Privy Council in Sheo Swarup v.Emperor,
61 Ind App 398 : (AIR 1934 PC 227 (2) and Nur
Mohammad v.Emperor, AIR 1945 PC 151.
17. In some of the earlier decisions of this
Court, however, in emphasizing the importance
of adopting a cautious approach in dealing with
appeals against acquittals, it was observed that
the presumption of innocence is reinforced by
the order of acquittal and so "the findings of the
trial Court which had the advantage of seeing
the witnesses and hearing their evidence can
be reversed only for very substantial and
compelling reasons" : Surajpal Singh v.The
State, 1952-3 SCR 193 at p.201 : (AIR 1952 SC
52 at p.54). Similarly in Ajmer Singh v.State of
Punjab, 1953 SCR 418: (AIR 1953 SC 76), it
was observed that the interference of the High
Court in an appeal against the order of acquittal
would be justified only if there are "very
substantial and compelling reasons to do so."
In some other decisions, it has been stated that
an order of acquittal can be reversed only for
"good and sufficiently cogent reasons" or for
"strong reasons". In appreciating the effect of
these observations, it must be remembered that
This Order is modified/corrected by Speaking to Minutes Order
32 [CORRECTED
JUDGMENT]crappeal473-91
these observations were not intended to lay
down a rigid or inflexible rule which should
govern the decision of the High Court in
appeals against acquittals. They were not
intended, and should not be read to have
intended to introduce an additional condition in
clause (a) of section 423 (1) of the Code. All
that the said observations are intended to
emphasis is that the approach of the High
Court in dealing with an appeal against
acquittal ought to be cautious because as Lord
Russell observed in the case of Sheo Swarup,
61 Ind App 398: (AIR 1934 PC 227 (2), the
presumption of innocence in favour of the
accused " is not certainly weakened by the fact
that he has been acquitted at his trial".
Therefore the test suggested by the expressing
"substantial and compelling reasons" should
not be construed as a formula which has to be
rigidly applied in every case. That is the effect
of the recent decisions of this Court, for
instance, in Sanwat Singh v.State of Rajasthan,
AIR 1961 Sc 714, and Harbans Singh v.State of
Punjab AIR 1962 SC 439 and so, it is not
necessary that before reversing a judgment of
acquittal, the High Court must necessarily
characterize the findings recorded therein as
perverse. Therefore, the question which we
have to ask ourselves in the present appeals is
whether on the material produced by the
prosecution, the High Court was justified in
reaching the conclusion that the prosecution
case against the appellants had been proved
beyond a reasonable doubt and that the
contrary view taken by the trial Court was
erroneous. In answering this question, we
This Order is modified/corrected by Speaking to Minutes Order
33 [CORRECTED
JUDGMENT]crappeal473-91
would, no doubt, consider the salient and
broad features of the evidence in order to
appreciate the grievance made by the
appellants against the conclusions of the High
Court. But under Art.136 we would ordinarily be
reluctant to interfere with the findings of fact
recorded by the High Court particularly where
the said findings are based on appreciation of
oral evidence.
32] In the case of State of Maharashtra V/s.Haribhau Deshmukh,
2003 Bom.C.R (Cri.) 1233, the Division Bench of this Court
reviewed the entire case law on this subject, to which one of us
(D.B.Bhosale, J.) was a party. The Division Bench considered
judgment in the case of Caetano Piedade Fernandes V./s. Union of
Territory of Goa, Daman & Diu), AIR 1977 SC 135, wherein the
Supreme Court observed thus:-
"It is now well settled that though the Appellate
Court has the same powers as the trial Court of
appreciating evidence and coming to its own
conclusion on questions of fact, it should not
interfere with an acquittal, unless it finds that the
view taken by the trial Court is unreasonable or
perverse. If the view taken by the trial Court is a
reasonably possible view, the Appellate Court
should not disturb an acquittal merely because it
thinks that another view is better or more
preferable."
This Order is modified/corrected by Speaking to Minutes Order
34 [CORRECTED
JUDGMENT]crappeal473-91
33] In State of Maharashtra v/s.Haribhau Deshmukh (supra) the
Division Bench also considered the case of Dhanna V/s.State of
M.P., AIR 1996 SC 2478. In case of Dhanna V/s.State of M.P.
(supra) the Apex Court reiterated the fact that the presumption of
innocence of the person is only strengthened by the order of
acquittal and the High Court should be very cautious in interfering.
It may be so interfered only if there is absolute assurance of the
guilt of the accused upon the appreciation of evidence on record.
The Supreme Court observed thus:-
"Though the code does not make any
distinction between an appeal from acquittal
and an appeal from conviction so far as
powers of the Appellate Court are concerned,
certain unwritten rules of adjudication have
consistently been followed by Judges while
dealing with appeals against acquittal. No
doubt, the High Court has full power to review
the evidence and to arrive at its own
independent conclusions whether the appeal
is against conviction or acquittal. But while
dealing with an appeal against acquittal the
Appellate Court has to bear in mind, first, that
there is a general presumption in favour of the
innocence of the person accused in criminal
cases and that presumption is only
strengthened by the acquittal. The second is,
every accused is entitled to the benefit of
reasonable doubt regarding his guilt and when
the trial Court acquitted him he would retain
This Order is modified/corrected by Speaking to Minutes Order
35 [CORRECTED
JUDGMENT]crappeal473-91
that benefit in the Appellate Court also. Thus
Appellate Court in appeals against acquittals
has to proceed more cautiously and only if
there is absolute assurance of the guilt of the
accused, upon the evidence on record, that
the order of acquittal is liable to be interfered
with or disturbed."
After considering the entire case law on the subject the Division
Bench ultimately observed in Paragraph No.22 as under:-
"22.
ig In our opinion, the scope and extent of
powers of the High Court under section 379 of the
1978 Code is well defined and has been disclosed
by the above referred judgment of the Supreme
Court of India. In our opinion, the consistent and
well settled law on the point is that the High Court
can interfere with the order of acquittal only when:-
1] The appreciation of evidence by the trial Court
is perverse or the conclusion drawn by it cannot
be drawn on any view of the evidence,
2] Where the application of law is improperly
done,
3] Where there is substantial omission to
consider the evidence existing on record,
4] The view taken by the acquitting Court is
impermissible on the evidence on record,
5] If the order of acquittal is allowed to stand it
will result the miscarriage of justice".
This Order is modified/corrected by Speaking to Minutes Order
36 [CORRECTED
JUDGMENT]crappeal473-91
34] In the present case the prosecution has heavily relied upon
the dying declaration. The Constitution Bench of the Apex Court in
the case of Laxman Vs. State of Maharashtra (supra) dealt with the
juristic theory regarding the acceptability of dying declaration. It
was observed in paragraph No.3 as under :-
"3. The juristic theory regarding
acceptability of a dying declaration is that
such declaration is made in extremity,
when the party is at the point of death and
when every hope of this world is gone,
when every motive to falsehood is
silenced, and the man is induced by the
most powerful consideration to speak only
the truth. Notwithstanding the same, great
caution must be exercised in considering
the weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect their
truth. The situation in which a man is on
death bed is so solemn and serene, is the
reason in law to accept the veracity of his
statement. It is for this reason the
requirements of oath and cross-
examination are dispensed with. Since the
accused has no power of cross-
examination, the court insist that the dying
declaration should be of such a nature as
to inspire full confidence of the Court in its
truthfulness and correctness. The Court,
however has to always be on guard to see
that the statement of the deceased was
not as a result of either tutoring or
This Order is modified/corrected by Speaking to Minutes Order
37 [CORRECTED
JUDGMENT]crappeal473-91
prompting or a product of imagination. The
Court also must further decide that the
deceased was in a fit state of mind and
had the opportunity to observe and identify
the assailant. Normally, therefore, the court
in order to satisfy whether the deceased
was in a fit mental condition to make the
dying declaration look up to the medical
opinion. But where the eye-witnesses state
that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor can
it be said that since there is no certification
of the doctor as to the fitness of the mind
of the declarant, the dying declaration is
not acceptable. A dying declaration can be
oral or in writing and in any adequate
method of communication whether by
words or by signs or otherwise will suffice
provided the indication is positive and
definite. In most cases, however, such
statements are made orally before death
ensues and is reduced to writing by
someone like a magistrate or a doctor or a
police officer. When it is recorded, no oath
is necessary nor is the presence of a
magistrate is absolutely necessary,
although to assure authenticity it is usual
to call a magistrate, if available for
recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be
made to a magistrate and when such
statement is recorded by a magistrate
there is no specified statutory form for
such recording. Consequently, what
This Order is modified/corrected by Speaking to Minutes Order
38 [CORRECTED
JUDGMENT]crappeal473-91
evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind.
Where it is proved by the testimony of the
magistrate that the declarant was fit to
make the statement even without
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor is
essentially a rule of caution and therefore
the voluntary and truthful nature of the
declaration can be established otherwise."
(emphasis supplied)
35] In the case of Satish (supra) the Apex Court summarised the
principles governing the dying declaration. They are as under :-
i. There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without
corroboration. [ See: Munnu Raja v.State of M.P., 1976
(3) SCC 104].
ii. If the court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration. [see: State of U.P.v.Ram Sagar Yadav,
1985 (1) SCC 552, and Ramavati Devi v.State of Bihar,
1983 (1) SCC 211].
iii. The Court has to scrutinize the dying declaration
This Order is modified/corrected by Speaking to Minutes Order
39 [CORRECTED
JUDGMENT]crappeal473-91
carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the
declaration. [See: K.Ramachandra Reddy v. Public
Prosecutor, 1976 (3) SCC 618].
iv. Where a dying declaration is suspicious, it should not
be acted upon without corroborative evidence.[See:
Rasheed Beg v.State of M.P., 1974 (4) SCC 264].
v. Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to
it is to be rejected. [See: Kake Singh v. State of M.P.,
1981 Supp.SCC 25].
vi. A dying declaration which suffers from infirmity cannot
form the basis of conviction. [ See : Ram Manorath v.
State of U.P., 1981 (2) SCC 654].
vii. Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
[State of Maharashtra v. Krishnamurti Laxmipati
Naidu, 1980 Supp.SCC 455].
viii.Equally, merely because it is a brief statement, it is not
to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [ See: Surajdeo Ojha
v. State of Bihar, 1980 Supp.SCC 769] .
ix. Normally, the Court in order to satisfy whether the
deceased was in a fit mental condition to make the
dying declaration looks up to the medical opinion. But
where the eyewitness said that the deceased was in a
fit and conscious state to make the dying declaration,
the medical opinion cannot prevail. [ See: Nanhau
This Order is modified/corrected by Speaking to Minutes Order
40 [CORRECTED
JUDGMENT]crappeal473-91
Ram v. State of M.P., 1988 Supp. SCC 152].
x. Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. [ See: State of U.P. v. Madan
Mohan, 1989 (3) SCC 390].
xi. Whether there are more than one statements in the
nature of dying declaration, the one first in point of time
must be preferred. Of course, if the plurality of the
dying declaration could be held to be trustworthy and
reliable, it has to be accepted. [See: Mohanlal
Gangaram Gehani v. State of Maharashtra, 1982 (1)
SCC 700].
36] Bearing in mind the principles governing power of the
Appellate Court in dealing with an appeal against acquittal as also
the principles governing dying declaration laid down by the Apex
Court, let us consider the evidence on record. As noted earlier, the
prosecution had examined PW 2 Kamlakar Adhav, Special Judicial
Magistrate at exhibit 14. He had recorded the dying declaration of
Sharada. He deposed that when he went to Ward No.27 in
Sassoon Hospital, he met PW 5 Dr.Chibbar. He told PW 5
Dr.Chibbar that he wanted to record the dying declaration of
deceased Sharada. PW 5 Dr.Chibbar examined deceased and told
him that Sharada was fully conscious and well oriented to give
dying declaration. PW 2 Kamlakar asked deceased Sharada her
name and she gave her name as Sharada Sampat Kale, age 25
This Order is modified/corrected by Speaking to Minutes Order
41 [CORRECTED
JUDGMENT]crappeal473-91
years and that he was doing house hold work. She also gave her
address as M.I.D.C. Colony, A-3. He further asked her if she was
fully conscious and she answered the same in the affirmative. She
disclosed to her his identify and asked her as to how she sustained
th
burn injuries. Sharada told him that on 8 July, 1989 at 1:30
hours, her husband Sampat and his sister Tarabai pured kerosene
on her clothes at her residence and thereafter set fire to her. She
further told him that as she could not conceive and give birth to a
child, there used to be quarrel between her and her husband. He
used to taunt her and illtreat her. She further told him that because
of the said reason, the accused poured kerosene on her person
and set her on fire and resultantly, she sustained burn injuries. He
further deposed that he recorded the dying declaration as narrated
by her. The same was read over to her and she admitted the
same as true and correct. While he was recording dying
declaration of Sharada, PW 5 Dr.Chibbar and one staff nurse were
present with him and on the said dying declaration PW 5
Dr.Chibbar made endorsement to the following effect :
".......the statement issued to me by
this patient is in the total presence
of her mental faculties and in
presence of staff nurses. I certify
her fit to issue this statement."
PW 5 Dr.Chibbar had signed below said endorsement in the
presence of PW 2 Kamlakar.
This Order is modified/corrected by Speaking to Minutes Order
42 [CORRECTED
JUDGMENT]crappeal473-91
37] In the cross-examination, he deposed that Sharada had
sustained 100% burn injuries and she was in agonies and pains.
She was speaking with difficulty. She was also moaning. He
denied that female patient (Sharada) was not in a fit condition to
utter a single word because of extensive burn injuries and further
denied that he recorded contents of the dying declaration as
narrated by the police. He denied that PW 5 Dr.Chibbar did not
examine Sharada before recording her dying declaration. He also
denied that he obtained endorsement of PW 5 Dr.Chibbar below
dying declaration subsequently. He further denied that PW 5
Dr.Chibbar was not present while recording the dying declaration.
He also denied that he did not read over the contents of the dying
declaration to Sharada and that she did not admit the same as true
and correct. He also denied that he did not record the dying
declaration of Sharada as narrated by her and simply obtained
impression of her great toe on it. In the earlier part of our
judgment we have already extracted in verbatim the Question No.3
put by PW 2 Kamlakar and the answer given by deceased
Sharada.
38] The prosecution has also examined PW 5 Dr.Chibbar. He
examined Sharada at 2:50 am when she was brought in Ward No.
27 of Sassoon. He asked her about the history of burn injuries and
This Order is modified/corrected by Speaking to Minutes Order
43 [CORRECTED
JUDGMENT]crappeal473-91
she told him of being doused by her husband and his sister with
kerosene and set her on fire at 12:30 hours. He wrote history of
accused in his hand writing in the case papers exhibit 25. He
further deposed that he examined Sharada before recording dying
declaration and found that at that time she was lucid. In other
words, she was in a position to understand and was showing an
ability to think clearly. It was his observation by experience that
even in case if a patient sustains burn injuries upto 100%, still such
a patient is having a clear brain and he can talk with understanding.
He found that Sharada was fit and conscious to give her dying
declaration. In his presence, PW 2 Kamlakar asked question and
recorded answers given by her. After PW 2 Kamlakar recorded
dying declaration, he made endorsement to the effect that "the
statement issued to me (PW 5) 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." He further
deposed that the contents of dying declaration were read over to
Sharada by PW 2 Kamlakar and she admitted the same as true
and correct.
39] In so far as the evidence of PW 2 Kamlakar and PW 5
Dr.Chibbar is concerned, they are totally independent persons. It
can not be said that their version is interested one. They had no
animosity or grudge against the accused. PW 2 Kamlakar, Special
This Order is modified/corrected by Speaking to Minutes Order
44 [CORRECTED
JUDGMENT]crappeal473-91
Judicial Magistrate was satisfied that Sharada was in a fit mental
condition to give dying declaration. Even PW 5 Dr.Chibbar told him
that Sharada was fully conscious and was well oriented to give
dying declaration.
40] Learned counsel for the accused submitted that PW 2
Kamlakar admitted in cross-examination that Sharada sustained
100% burn injuries and that she was in agonies and pains. She
was speaking with difficulty. She was also moaning. According to
learned counsel for accused, PW 2 Kamlakar further admitted that
before recording her dying declaration he did not put any other
question to ascertain if she was in a fit mental condition to give
dying declaration and that he has not made separate endorsement
on the dying declaration that he recorded the same in the presence
of Dr.Chibbar. He further admitted that Dr.Chibbar who examined
Sharada did not make endorsement that he examined her before
recording dying declaration and that he found her to be fit to give
statement. Relying upon this part of testimony, learned counsel for
the accused submitted that the testimony of PW 2 Kamkalar does
not inspire confidence. They submitted that deceased Sharada
was not in a fit mental condition to give dying declaration.
41] Learned counsel for the accused also criticized the evidence
of PW 5 Dr.Chibbar and submitted that he had admitted that when
This Order is modified/corrected by Speaking to Minutes Order
45 [CORRECTED
JUDGMENT]crappeal473-91
Sharada was admitted in hospital she was in a very serious
condition. Because of extensive burn injuries over her face and
neck, she was in great pains and agonies. He further deposed that
when there is higher percentage of burn injuries, there is every
possibility that such patient goes in shock, mental process of the
patient is hampered and the patient may go in delirium. In that
case also, a patient may go in comma. Because of 100% of burn
injuries, there is dehydration in the body of the patient. He further
admitted that because of dehydration, the tongue would go dry and
it would cause difficulty to the patient while talking. He has also
agreed that burn injuries caused by kerosene are more dangerous
as compared to burn injuries sustained by other things. Relying
upon this part of the testimony, learned counsel for the accused
submitted that the admissions given by PW 5 Dr.Chibbar in cross-
examination showed that Sharada was not in a fit mental condition
to give dying declaration.
42] We are unable to appreciate these submissions. The so
called admissions given by PW 5 Dr.Chibbar are mere possibilities
in a given case. However, PW 5 Dr.Chibbar was not pointedly
asked a question as to whether the possibilities in a given case, in
fact, turned out in realities in the case of Sharada. As observed in
paragraph no.12 in the case of Satish (Supra), PW 5 Dr.Chibbar
had given hypothetical answers to the questions regarding the
This Order is modified/corrected by Speaking to Minutes Order
46 [CORRECTED
JUDGMENT]crappeal473-91
effect of person who suffered burns of a very high percentage. PW
5 Dr.Chibbar had categorically deposed that deceased Sharada
who gave dying declaration was in a position to do so. Even
otherwise, the accused have not pointed out any animosity. PW 5
Dr.Chbbar is totally independent and disinterested witness. The
testimony of PW 2 Kamlakar and PW 5 Dr.Chibbar clearly show
that deceased Sharada had given dying declaration which
implicated accused. From the testimony of PW 2 Kamlakar and
PW 5 Dr.Chibbar, we are satisfied that the said testimony inspires
confidence as also they have duly proved the dying declaration
made by deceased Sharada.
43] From the evidence of PW 2 Kamalakar Adhav, Special
Judicial Magistrate and Dr.Chibbar (P.W.5) we are satisfied that the
dying declaration recorded by P.W.2 Kamalakar Adhav is free from
any infirmity worth taking note of and to discard the dying
declaration. Both these witnesses have clearly stated that the
deceased was in a fit and conscious state to make the declaration.
The question, therefore, arises as to what evidential value or weight
has to be attached to such statement necessarily depends upon
the facts and circumstances of each particular case and while
doing so one has to see whether the statement of the deceased
was not as a result of either tutoring or prompting or product of
imagination as observed by the Supreme Court in Laxman Vs.
This Order is modified/corrected by Speaking to Minutes Order
47 [CORRECTED
JUDGMENT]crappeal473-91
State of Maharashtra (supra). In the present case both these
witnesses (P.W.2 and P.W.5) are absolutely independent and they
had no reason whatsoever to either fabricate dying declaration or to
reduce it in writing by imagination. Admittedly, none of the
relatives of the deceased were with her right from the date and time
of incident till her oral dying declaration was recorded by P.W.2 -
Kamlakar Adhav. Therefore, the question in present case of either
tutoring or prompting does not arise at all.
44]
The next question, therefore, would arise as to whether the
dying declaration is product of imagination of the deceased. In our
opinion, it is not. It is because at the time of her admission in the
hospital while giving history to the doctor, she told as to how she
sustained burn injuries and it is consistent with dying declaration
recorded subsequently by Kamalakar Adhav. As a matter of fact,
when she was admitted in the hospital her husband and his
relatives were in the hospital. Despite this, the deceased dared to
tell the doctor as who were responsible for the injuries sustained by
her. Thereafter, P.W.2 - Kamalakar Adhav also recorded her
statement in question and answer form after obtaining certification
of the doctor as to fitness of mind of the deceased. In defence, the
husband has stated that his relations with wife and her all relatives
were extremely good and he had no reason to commit her murder.
If that was so there was also no reason for the deceased to commit
This Order is modified/corrected by Speaking to Minutes Order
48 [CORRECTED
JUDGMENT]crappeal473-91
suicide and falsely implicate the accused as persons responsible
for sustaining burn injuries. When we examined this from another
angle i.e.the defence disclosed in the written statement, we are
satisfied that the defence is not consistent with dying declaration as
product of imagination.
45] In defence, it is brought on record by way of written
statement that both accused wanted the deceased to go and stay
with their parents at Lonand and, therefore, she committed suicide.
This defence is not at all acceptable for more than one reason.
Firstly, nobody had forced the deceased to go and stay with her in-
laws at Lonand in a small house of 10 X 10 sq. ft. Secondly, the
unmarried sister of accused was at Lonand staying with their
parents, apart from the fact that one more brother of accused was
also residing at Lonand. Accused No.2 was also residing at
Lonand along with her husband. This defence, therefore, appears
to be an after thought. If relations between the two were cordial
and if they were leading happy married life, as is claimed by
accused no.1, she had no reason to go to extent of committing
suicide. We have no doubt in our mind that the accused are
suppressing as to how burn injuries were sustained by the
deceased and why in a small house they waited till she sustained
almost 100% injuries and did not make any effort to extinguish the
fire. As noted earlier, the defence admitted the injury certificates of
This Order is modified/corrected by Speaking to Minutes Order
49 [CORRECTED
JUDGMENT]crappeal473-91
the accused at exhibits 9 and 10. No burn injuries were sustained
by the accused which falsifies their defence. This all clearly points
to the guilt of accused. We are satisfied that the dying is true and
voluntary and is sufficient to base conviction of the accused. The
dying declaration is not the result of tutoring, prompting or
imagination. She was in fit state of mind to make declaration. It is
not suspicious. The opinion of the doctor expressed in response to
the questions of general nature would not come in our way for
accepting the evidence of P.W.2 and P.W.5 which clearly show that
the statement was made by the deceased. Apart from the fact that
the contents of statement also support that it was made by the
deceased. The trial Court has wrongly discarded the dying
declaration only on the basis of the opinion expressed by the
doctor in response to hypothetical questions put to him in the cross
examination. The dying declaration is consistent with the
prosecution case and, therefore, it is trustworthy and reliable and
deserves to be accepted.
46] Learned Sessions Judge has merely discussed the evidence
of PW 2 Kamlakar in paragraph 19 of the impugned judgment by
observing that taking into consideration the admissions given by
Dr.Chibbar, it is difficult to agree that the deceased Sharada was in
a fit mental condition and was fully conscious to give dying
declaration. The learned Sessions Judge has not at all given any
This Order is modified/corrected by Speaking to Minutes Order
50 [CORRECTED
JUDGMENT]crappeal473-91
reasons for discarding the evidence of PW 2 Kamlakar. There is
substantial omission on the part of learned Sessions Judge to
consider the testimony of PW 2 Kamlakar.
47] As noted earlier, PW 4 Sarjerao had deposed the illtreatment
as also cruelty meted out to deceased Sharada on the ground that
she was not in a position to conceive and give birth to child. Merely
because PW 7 PSI Bhat, Investigating Officer did not examine any
persons from the vicinity where accused was residing, cannot be a
ground to disbelieve the dying declaration made by deceased
Sharada which is duly proved by PW 2 Kamlakar and PW 5
Dr.Chibbar. The appreciation of evidence by learned Sessions
Judge is perverse as also the conclusions drawn by him could not
have been drawn in view of the evidence. The view taken by
learned Sessions Judge while acquitting accused is impermissible
on the evidence on record. Having regard to the evidence on
record, there is absolute assurance of guilt of the accused which
necessitates interference with the order of acquittal. If the order
of acquittal is allowed to stand, it will result in miscarriage of justice.
48] Learned counsel for the accused relied upon the judgment of
the Apex Court in the case of Mahendra Pratap to contend that
unless the conclusion of the trial court drawn on the basis of
evidence are found to be unreasonable or perverse,the order of
This Order is modified/corrected by Speaking to Minutes Order
51 [CORRECTED
JUDGMENT]crappeal473-91
acquittal should not be disturbed. The present appeal remained
pending before this court almost for 19 years. It was, therefore,
submitted that this is not a fit case for interfering with the order of
acquittal. To that effect, learned counsel for the respondents also
relied upon the judgment of the Apex Court in the case of Darshan
Singh (supra) and State of Rajasthan Vs. Prithvi Raj (supra). We
do not find any merit in this submission as we have already come to
the conclusion that the conclusions drawn by the learned Sessions
Judge on the evidence are unreasonable, perverse and
unsustainable. The impugned order has led to failure of justice. As
observed by the Apex Court in the case of State of Karnataka Vs.
Moin Patel and ors, AIR 1996 SC 3041 we are unable to accept the
contentions raised on behalf of the accused that having regard to
the long interval between the acquittal and hearing of this appeal,
this Court may not interfere with the judgment.
49] Learned counsel for the respondents also relied upon the
judgment of the Apex Court in the case of Shantabai (supra) as
also the judgment of the Apex Court in the case of Darshan Singh
(supra), State of Rajasthan Vs.Prithvi Raj (supra) and State of
Rajasthan Vs. Yusuf (supra) to contend that the conviction cannot
be based on the dying declaration as the accused have been
falsely implicated on the basis of the evidence on record. It cannot
be said that the dying declaration can be regarded as truthful. We
This Order is modified/corrected by Speaking to Minutes Order
52 [CORRECTED
JUDGMENT]crappeal473-91
do not find any substance in this submission for the reasons
already noted earlier. We came to the conclusion that the in the
instant case the dying declaration is truthful.
50] Learned counsel for the respondents also relied upon the
written submission filed by the accused no.1 at exhibit 32 as also
letters at exhibits 34 to 39. It was submitted that deceased
Sharada was highly emotional and sentimental. The parents of
accused were keeping illhealth and therefore they desired that their
daughter-in-law Sharada should look after them at Lonand.
th
Accused discussed this issue in the night of 8 July, 1989 and
expressed their desire that the deceased Sharada should reside at
Lonand for a period of one year to look after their ailing parents.
Having regard to the facilities available at the residence of the
parents of the accused, Sharada was not willing to reside at
Lonand. Since there was no one to look after the parents of
accused, they merely expressed desire that Sharada should reside
at Lonand for one year. Deceased Sharada did not like this and in
th
order to pressurise the accused, in the night of 8 July, 1989 she
poured kerosene on herself and set her on fire. However, the said
attempt of Sharada setting her on fire blew out of proportion with
the result she sustained 100% burn injuries. This submission was
made for the first time during the course of argument of this appeal
and no such case was made out even in the written statement.
This Order is modified/corrected by Speaking to Minutes Order
53 [CORRECTED
JUDGMENT]crappeal473-91
51] It has come in the cross-examination of PW 4 Sarjerao that
the unmarried sister of accused namely Gangu was residing at
Lonand. Even accused no.2 is residing at Lonand with her
husband and children. In the examination-in-chief, PW 4 Sarjerao
th
deposed that on 9 July, 1989 a message was received from
accused no.1 by his neighbour that PW 4 Sarjerao and brother of
accused no.1 were called to Pune immediately. PW 4 Sarjerao
went to Lonand and contacted the brother of accused no.1 and they
both went to the house of accused no.1. This also suggests that
one brother of accused was also residing at Lonand. Therefore,
the story put by the defence that since nobody was at Lonand to
look after the parents of accused, in our opinion, is not a worth
believing. The reliance placed by accused on various letters
th
addressed by accused no.1 and, in particular, on letter dated 25
April, 1989 exhibit 23, is misconceived.
52] Learned counsel for the accused submitted that in view of
passage of time as also in view of the fact that appeal was pending
in this court for about 19 years, we should not interfere with the
order of acquittal. The Division Bench of this Court in the case of
State of Maharashtra Vs. Haribhau Krishnaji Deshmukh and ors,
2003 Bom.C.R. (Cri).1233 had noted that in most of the appeals
preferred by the State against an order of acquittal, they are given
This Order is modified/corrected by Speaking to Minutes Order
54 [CORRECTED
JUDGMENT]crappeal473-91
a back seat as the accused are enlarged on bail. This
necessitates that the matter right from the year 1987-88 were
pending. We are also not oblivious of the fact that this appeal has
come up for final hearing in 2010. Precisely, for that reason we
were slow and cautious in dealing with this matter. Having regard
to the evidence on record, we are satisfied about the guilt of the
accused. We have, therefore, no alternative but to interfere with
the order of acquittal.
53]
In the result, Appeal is allowed. The impugned judgment and
th
order dated 20 March, 1991 passed by the learned Sessions
Judge, Pune in Sessions Case No.33 of 1990, is set aside.
Accused are held guilty of the offences punishable under Sections
302 and 498-A read with 34 IPC and are sentenced to undergo
imprisonment for life. We grant eight weeks time to the accused to
surrender.
[R.G. KETKAR, J.] [D.B.BHOSALE, J.]
.........
th
[Note: As per the Court's order dated 18 October, 2010, the
th
typographical/clerical errors in the judgment dated 13 October,
2010 have been corrected and the above corrected judgment is
uploaded again.]
