STATE OF MAHARASHTRA versus HEMANT KAWADU CHAURIWAL ETC.
[2015] 10 S.C.R. 1112, Supreme Court of India, 2015
Outcome: Dismissed (Dismissed)
Segment: Facts
A 
B 
[2015] 10 S.C.R. 1112 
STATE OF MAHARASHTRA 
v. 
HEMANT KAWADU CHAURIWAL ETC. 
(Criminal Appeal Nos.1828-1829 OF 2013) 
DECEMBER 16, 2015 
[PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.] 
Penal Code, 1860 - ss. 302 and 3048 rlw. s. 34 and s. 
c 498A - Prosecution under - Of five accused - Trial court, 
relying on Dying Declaration and the letters written by the 
deceased to her father, convicted accused No. 1 ulss. 302 
and 498A rlw. s. 34 and accused No. 4 u/s. 498-A, while other 
accused were acquitted -
In appeal by the convicted 
D accused, High Court, acquitted them giving them benefit of 
doubt -
On appeal by the State, held: There are 
improvements in the testimony of material witnesses- In the 
facts and circumstances of the case, the Dying declaration 
as well as the alleged letters have not been proved - The 
E High Court rightly pointed out lacunae in the shabby 
investigation of the case - Thus the prosecution failed to 
prove its case beyond doubt - Rather possibility of suicide 
(as per the defence version) cannot be ruled out - Hence, 
the accused was rightly acquitted by High Court. 
F 
Dying Declaration - Evidentiary value - Held: Dying 
Declaration can be the sole basis of conviction - But, since;,_ ' 
it goes against the cardinal principle of law that 'evidence · · 
must be direGt', it must be judged and appreciated in the light 
G of surrounding circumstances and its weight should be 
determined with reference to the principle governing the 
weighing
of evidence - Evidence. 
Dismissing the appeals, the Court 
H 
1112
STATE OF MAHARASHTRA v. HEMANT KAWADU 
1113 
CHAURIWAL ETC. 
HELD: 1.1 It is a settled law that dying declaration A 
can be the sole basis of conviction and it does not 
require any corroboration. But it is equally true that dying 
declaration goes against the cardinal principle of law that 
'evidence must be direct'. Thus, dying declaration must 
be judged and appreciated in light of the surrounding B 
circumstances and its weight determined by reference 
to the principle governing the weighing of evidence. 
[Para 8] [1118-A-C] 
1.2 In the present case, dying declaration was c 
recorded by the Naib Tehsildar after she was informed 
vide a Memo by the police authorities. However, the said 
police official who delivered the Memo was never 
produced or examined before the Court. The Naib 
Tehsildar deposed before the Court that fitness D 
certificate as to mental capacity of the deceased was 
taken from the doctor. However, the certificate nowhere 
states that the deceased was in a fit and stable mental 
condition at the time of making the statement. The dying 
declaration was recorded on the same day of incident E 
but the same was recorded at 5:45 PM while the incident 
occurred in the morning at 8:00 AM. The dying 
declaration then formed the basis of the FIR lodged next 
day of the incident. However, there is no explanation as 
to in whose custody the said crucial piece of evidence F 
was placed for one full day. The prosecution did notgive 
any evidence to explain the
said delay. [Para 8] 
[1118-C-G] 
2. As regards the alleged letters written by the G 
deceased to herfather (PWJ), PWJ himself testified that 
the letters were written by the deceased in her own 
handwriting. The prosecution, however, had a duty to 
establish the veracity of such an important piece of 
evidence. The prosecution explained that it was unable H
1114 
SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A to find the handwriting of the deceased by any other 
means. However, it is not explained as to what steps were 
taken to investigate the said evidence in the case. Further, 
while recording the dying declaration, Naib Tehsildar 
deposed that the deceased was illiterate and the dying 
B declaration was read over and explained to her. These 
two facts are self-contradictory and severely detrimental 
to the prosecution case which ought to have been 
explained by the prosecution. [Para 9][1118-H;1119-A-D] 
c 
3. In the evidence of PW3 and PW4 (mother of the 
deceased) material improvements were made to support 
the prosecution case. The Investigating Officer (PW5) 
seemed to have deliberately or negligently erred in 
investigating the case. The case was of burn injuries, 
D there ought to have effect of the incident in the house, 
the place of occurrence was an important fact, the 
seizure of surrounding material was also important. 
However, no such efforts were made. Even the 
handwriting of the deceased was not investigated. 
E [Paras 10 and 11] [1119-E-H; 1120-A] 
4.The defence deposed before the Court that the 
deceased locked herself in the bathroom, poured 
kerosene and set herself on fire. The probability tilts in 
F favour of the accused that possibility of suicide being 
committed by the deceased cannot be ruled out 
completely. Therefore, the dying declaration and the 
alleged letters having not been proved, strikes at
the very 
root of the prosecution case. The High Court rightly 
G pointed out the lacunae in the shabby investigation of 
the case. Moreover, the prosecutfon failed to stand its 
ground and bring home its case. [Paras 11 and 12] 
[1120-A-D] 
CRIMINALAPPELLATE JURISDICTION: CriminalAppeal 
H Nos. 1828-1829 of2013
STATE OF MAHARASHTRA v. HEMANT KAWADU 
1115 
CHAURIWAL ETC. 
From the Judgment and Order dated 02.07.2012 of the A 
High Court of Judicature at Bombay, Nagpur Bench, Nagpur 
in Criminal Appeal No. 53 of 2007 and Criminal Appeal No. 
70 of2007 
Siddharth 
Bhatnagar, 
Nishant Ramakantrao B 
Katneshwarkar for the Appellant. 
Anshuman Animesh, Sakshi, Aastha Deep, Shivaji M. 
Jadhav for the Respondents. 
The Judgment of the Court was delivered by 
PINAKI CHANDRA GHOSE, J. 1.These appeals, by 
special leave., have been directed against the judgment and 
order dated 2.07.2012 passed by the High Court of Judicature 
c 
at Bombay, Nagpur Bench, Nagpur, in Criminal Appeal Nos.53 D 
of 2007 and 70 of 2007. Criminal Appeal No.53 of 2007 was 
filed by accused No.1, who was husband of the deceased and 
Criminal Appeal No.70 of 2007 was filed by accused No.4, 
who was the mother-in-law of the deceased. Both these 
accused are respondents herein. Apart from the above two 
E 
accused, there were three other accused but they were 
acquitted by the Trial Court while the respondents were 
convicted. In appeal by the convicted respondents, the High 
Court quashed and set aside their conviction and sentence 
F 
and absolved them of all the charges. 
2. The facts of the case, as disclosed by the prosecution, 
are that an FIR was lodged on 21.06.2004 at Ghatanji Police 
Station after receipt of dying declaration recorded on 
20.06.2004, by Naib Tehsildar at Yavatmal General Hospital. G 
In the
morning of 20.06.2004, deceased Asha Hemant 
Chauriwal was brought to Ghatanji Hospital for treatment of 
burn injuries. She was later shifted to Yavatmal Hospital for 
further treatment. Her dying declaration was recorded by Naib H
1116 
SUPREME COURT REPORTS 
[2015] 10S.C.R. 
A 
Tehsildar at around 5:45 PM on the same day, following which 
the above said FIR was lodged. The deceased died on 
22.06.2004 due to septicemia as a result of 88% dermo 
epidermal infected burn injuries. 
B 
3. After investigation, charge-sheet was filed against five 
accused. After considering the material on record and hearing 
the counsel for the accused persons, they were charged for 
offences punishable under Section 302 read with Section 34, 
Section 304-B read with Section 34 and also under ?ection 
C 498A of the Indian Penal Code, 1860 (hereinafter referred to 
as "IPC"). The charges were read over and explained to them. 
All the accused persons pleaded not guilty and claimed for 
trial. 
D 
4.The Trial Court by its judgment and order convicted 
accused Nos.1 and 4. Accused No.1 was convicted for 
offences punishable under Section 302 as well as Section 498-
A read with Section 34 of the IPC. However, accused No.4 
was convicted only for the offence punishable under Section 
E 498-A of IPC. Upon appeal by the two convicted respondents, 
the High Court by the impugned judgment and order allowed 
both the appeals on the ground that the prosecution failed to 
bring home the guilt of these accused beyond reasonable 
doubt and as such, they were entitled for benefit of doubt. The 
F 
High Court quashed and set aside their conviction and 
sentence and absolved them of all the charges. The State of 
Maharashtra is in appeal
before us, challenging their acquittal 
order. 
G 
5.The prosecution case as accepted by the Trial Court 
was based on two important evidences: Firstly, the dying 
declaration made by the deceased to the Naib Tehsildar based 
upon which the accused husband was convicted for the murder 
of the deceased. Secondly, the Trial Court relied on the letters 
H allegedly written by the deceased to her father, which disclosed
STATE OF MAHARASHTRA v. HEMANT KAWADU 
1117 
CHAURIWAL ETC. [PINAKI CHANDRA GHOSE, J.] 
mental and physical cruelty imputed on the deceased by her A 
in-laws, based upon which the Trail Court convicted accused 
husband and accused mother-in-lawfor the offence of cruelty. 
6.Learned counsel appearing for the appellant has made 
various submissions on the ba.sis of the Trial Court judgment. 
8 
It was argued that the dying declaration and the evidence of 
PW1 (Naib Tehsildar) and PW5 (attending Doctor) along with 
the certificate of the doctor leads to the conclusion that the 
dying declaration was truthful and reliable and was correctly 
recorded. The said dying declaration was contended to be. c 
consistent with the testimony of the witnesses of PW1 and 
PW5. As against the alleged letter the petitioner counsel 
vehemently argued that the evidence of PW3 (father of the 
deceased) and PW4 (mother of the deceased) corroborated 
the incidence of cruelty committed upon the deceased. Further D 
the evidence of PW3 proved that the alleged letters were written 
by the deceased in her own handwriting. 
?.Learned counsel appearing for the respondents/ 
accused made various submissions countering the arguments 
E 
put forward by the appellant. The FIR was contended to be 
delayed by about one full day. The learned counsel pointed 
out various lapses and contended that the prosecution failed 
to materially explain few facts. For instance, there was no 
explanation as to why there was
delay in lodging the FIR; the 
F 
dying declaration reached the police station late by about one 
full day; the material witness were not examined as to explain 
such delay; material recovery at the spot was not conducted. 
Another fact which was not explained by the prosecution was 
as to why no action or investigation was initiated when the G 
police officers came to know about the death of a person on 
20.06.2004 in the Yavatmal Government Hospital itself. The 
respondents' counsel also argued that the alleged letters were 
not proved by the prosecution to be in the own handwriting of 
the deceased. 
H
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SUPREME COURT REPORTS 
[2015] 10 S.C.R. 
A 
8.ln our considered opinion, two main arguments have 
been advanced before this Court and we shall now examine 
each and every contention in light of the arguments adduced 
before us. It is a settled law that dying declaration can be the 
sole basis of conviction and it does not require any 
B corroboration. But it is equally true that dying declaration goes 
against the cardinal principle of law that 'evidence must be 
direct'. Thus, dying declaration must be judged and 
appreciated in light of the surrounding circumstances and its 
weight determined by reference to the principle governing the 
C weighing of evidence. In the present case, dying dectaration 
was recorded by the Naib Tehsildar after she was informed 
vide a Memo by the police authorities. However, it is on record 
that the said police official who delivered the Memo was never 
0 
produced or examined before the Court. The Naib Tehsildar 
deposed before the Court that fitness certificate as to mental 
capacity of the deceased was taken from the doctor. However, 
the certificate nowhere states that the deceased was in a fit 
and stable mental condition at the time of making the 
E statement. The dying declaration was recorded on 20.06:2004 
i.e. the same day of incident but the same was recorded at 
5:45 PM and it is undisputed that the incident occurred in the 
morning at 8:00 AM. The Naib Tehsildar specifically deposed 
that she ordered the blood relation of
the deceased to be 
F 
removed from the ward. The dying declaration was signed by 
the Naib Tehsildar PW1, the doctor PW5 and thumb impression 
of the deceased was taken at about 5:55 PM. The dying 
declaration then formed the basis of the FIR on 21.06.2004 at 
Ghatanji Police Station, however, there is no explanation as to 
G in whose custody the said crucial piece of evidence was placed 
for one full day. The prosecution did not give any evidence to 
explain the said delay. 
9.The second issue which is of paramount consideration 
H is the alleged letters written by the deceased to her father, which
STATE OF MAHARASHTRA v. HEMANT KAWADU 
1119 
CHAURIWAL ETC. [PINAKI CHANDRA GHOSE, J.] 
were argued to be in her own handwriting. PW3 himself A 
deposed that he only produced a few letters which helped his 
case. Further, he himself testified that the letters were written 
by the deceased in her own handwriting as was known to him. 
The prosecution, however, had a duty to establish the veracity 
of such an important piece of evidence. The prosecution 
B 
. explained that it was unable to find ·the handwriting of the 
deceased by any other means. However, it is not explained as 
to what steps were taken to investigate the said evidence in 
the case. Another important fact which is on record is that while 
recording the dying declaration, Naib Tehsildar deposed that C 
the deceased was illiterate and the dying declaration was read 
over and explained to her. These two facts are self-
contradictory and severely detrimental to the prosecutior:i case 
which ought to have been explained by the prosecution. 
D 
10. Apart from the above two pivotal facts, the testimonies 
of PW3 (father of the deceased), PW4 (mother of the 
deceased) and PW5 (investigating officer) are worth 
considering. PW3 and PW4 both deposed that the deceased 
used to narrate about the incidents of cruelty committed upon 
E 
her. Physical beating after the 121h day of the marriage was 
deposed, the taunt which the deceased used to face for not 
cooking well, the rationing on edible items, etc .. However, when
the cross-examination was made, these witnesses have not F 
stated these facts to the police and it was only before the Court 
that such material improvements were made to support the 
prosecution case. 
11. The Investigating Officer seemed to have deliberately 
or negligently erred in investigating the case. The case was of G 
burn injuries, there ought to have effect of the incident in the 
house, the place of occurrence was an important fact, the 
seizure of surrounding material was also important. However, 
' 
i such efforts were made.Even the handwriting of the 
H
1120 
SUPREME COURT REPORTS 
[2015] 1 O S.C.R. 
A deceased was not investigated. In the light of the above, the 
defence deposed before the Court that the deceased locked 
herself in the bathroom, poured kerosene and set herself on 
fire. It was further stated that the accused had to break open 
the door and then the deceased was taken to the hospital. 
B The Investigating Officer could have easily located the place 
of occurrence or even a broken door or lock. The probability 
here, tilts in favour of the accused that possibility of suicide 
being committed by the deceased cannot be ruled out 
completely. 
c 
12. In our opinion, the two pivotal evidence i.e. dying 
declaration and the alleged letters having not been proved, 
strikes at the very root of the prosecution case. We are, 
therefore, of the view that the High Court rightly pointed out the 
D lacunae in the shabby investigation of the case. Moreover, the 
prosecution failed to stand its ground and bring home its case. 
13. Thus, in the light of the above discussion, we find no 
compelling and substantial reasons to interfere with the 
E judgment passed by the High Court. The appeals are, 
accordingly, dismissed. 
Kalpana K. Tripathy 
Appeals dismissed. 
F