SAMPAT BABSO KALE & ANR. versus THE STATE OF MAHARASHTRA
[2019] 5 S.C.R. 904, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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[2019] 5 S.C.R. 904
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SAMPAT BABSO KALE & ANR.
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal Nos. 694–695 of  2011)
APRIL 09, 2019
[S.A. BOBDE AND DEEPAK GUPTA, JJ.]
Penal Code, 1860:
ss. 302/498A r/w. s. 34 – Murder by husband and his sister –
By setting his wife on fire – 98% burn injuries– Dying declarations
made to the attending doctor as well as to the Judicial Magistrate –
Defence plea that the deceased committed suicide – Trial Court
acquitted the accused giving them benefit of doubt – High Court
relying on the dying declarations convicted the accused – On appeal,
held: If the dying declaration is truthful, voluntary and not a result
of any extraneous influence, court can convict on the basis of such
dying declaration – However, in view of the health condition of the
deceased, the dying declaration needs corroboration – Failure to
examine important witnesses leads to non-corroboration of dying
declaration – The defence version of suicide also cannot be ruled
out in the facts of the case – Trial Court rightly acquitted the accused
holding that prosecution failed to prove its case beyond reasonable
doubt – On acquittal of the accused by trial court the presumption
of innocence got strengthened, and hence High Court should not
have lightly interfered with the decision of trial court – Evidence –
Dying Declaration – Appeal – Appeal against Acquittal.
Allowing the appeals, the Court
HELD : 1. 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.
[Para 7][909-A-B]
Chandrappa & Ors. v. State of Karnataka (2007) 4
SCC 415 : [2007] 2 SCR 630 –  relied on.
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2.1  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. [Para 14][912-C-D]
Sham Shankar Kankaria v. State of Maharashtra
(2006) 13 SCC 165 : [2006] 5 Suppl. SCR 709
– relied on.
2.2 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 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 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. 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.
[Paras 13 and 15][912-A-C; 913-B]
3. The defence version that the deceased was not willing
to go to the village to look after her in-laws and,
therefore, she
committed suicide, cannot be brushed aside. There are two factors
which cast a grave doubt with regard to the prosecution story.  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 report indicates that the ornaments
i.e. mangalsutra, a nathni (nose ring), some glass bangles and
peinjan (an ornament worn on the foot) were kept below a pillow
on the cot in the room. 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
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married woman would normally not remove. 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.  [Paras 16, 17 and 18][913-C-E; 914-B-C]
4. 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 non-examination of these important
witnesses leads to non-corroboration 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. [Para 19][914-D-E]
5. Therefore, the finding of the trial court that the
prosecution had failed to prove its case beyond reasonable doubt,
could not be said to be perverse.  It was based on a proper
appreciation of evidence. [Para 20][914-F]
Case Law Reference
[2007] 2 SCR 630
        relied on
Para 7
[2006] 5 Suppl. SCR 709      relied on
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.694-695 of 2011.
From the Judgment and Order dated 13.10.2010 of the High Court
of
Judicature at Bombay in Criminal Appeal No. 473 of 1991 with Criminal
Application No. 3031 of 1991.
Uday B. Dube, Advs. for the Appellants.
V. V. V. Pattabhi Ram, Nishant Ramakantrao Katneshwarkar,
Advs. for the Respondent.
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The Judgment of the Court was delivered by
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 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 (PW-5), 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 (PW-2).
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 had with common intention poured
kerosene on Sharada and set her on fire.
4. The defence version is that Sharada belongs to a comparatively
well-off 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
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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 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
PW-2 and PW-5.  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 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.
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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:-
“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.
1(2007) 4 SCC 415
SAMPAT BABSO KALE & ANR. v. STATE OF
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(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 (PW-5) 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:
“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, PW-5
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 PW-2
came to the ward to record the dying declaration of the deceased.  This
witness states that before the dying declaration was recorded by the
PW-2, 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, PW-2
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. PW-5 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 the same as correct.
Thereafter, PW-2 made an endorsement to this effect and signed the
same.  The witness in cross-examination 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.
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11. The other important witness is Mr. Kamlakar Adhav (PW-2),
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 PW-5 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.
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 PW-
5 and need not be repeated.  A suggestion has been put to PW-2 that this
statement was not recorded in the presence of PW-5
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.
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
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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 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 cross-
examination. 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………….”
2 (2006) 13 SCC 165
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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 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 in-laws 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 (PW-1) 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 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.
SAMPAT BABSO KALE & ANR. v. STATE OF
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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
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 non-examination of these important
witnesses leads to non-corroboration 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 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.

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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.
Kalpana K. Tripathy
                               Appeals allowed.
SAMPAT BABSO KALE & ANR. v. STATE OF
MAHARASHTRA [DEEPAK GUPTA, J.]