SAMPAT BABSO KALE & ANR. versus THE STATE OF MAHARASHTRA on 9 April 2019

1. These appeals by the accused are directed against the judgmentof 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 theappellants were convicted for offences punishable under Section 302/498A of Indian Penal Code (‘IPC’ for short) read with Section 34 ofIPC and were sentenced to undergo imprisonment for life.

2. Briefly stated the facts are that the Appellant No. 2, TarabaiDhanaji Dhaigude is the sister of the Appellant No. 1, Sampat BabsoKale. Appellant No. 1, was married to Sharada Sampat Kale on25.04.1987. After residing for about one year at Thergaon, Chinchwad,they shifted to a quarter in MIDC Colony, Chinchwad. Sharada died ofburn injuries suffered during the night intervening 08.07.1989 and09.07.1989 in the wee hours of the morning of 09.07.1989. It is also notdisputed that on the date of the occurrence, the Appellant No. 2 hadcome to stay at the house of her brother i.e. the Appellant No. 1. Burninjuries were to the extent of 98%. Sharada made two dying declarations– the first was in the nature of the information given to Dr. SanjeevChibbar (PW-5), who had attended upon her when she was admitted tothe 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 andwife were cordial for about one and a half years. Thereafter, AppellantNo. 1 started ill treating his wife since she could not conceive. It is alsoalleged that, in fact, he wanted to marry again even when Sharada wasalive. For this reason, he and his sister had with common intention pouredkerosene on Sharada and set her on fire.

4. The defence version is that Sharada belongs to a comparativelywell-off family. She was residing with her husband in MIDC Colonyquarter which had all facilities. The case set up by the defence is thatthe parents of the appellants lived in a small one room hut in villageLonand with no facilities of toilet etc.. Appellant No.1 wanted that hiswife should go to look after his parents. She was not willing to do sosince material comforts like TV, WC, etc. were not available in the village A

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Aand the parents lived in a very small one room hutment. According tothe defence, on the evening of 08.07.1989, both the appellants requestedSharada to go to the village to look after the ageing parents. Sharada,who was sensitive, got upset and for this reason committed suicide. Itwas Appellant No. 1 who raised an alarm and tried to douse the fire bythrowing water on Sharada. He requested the neighbours to call for anBambulance but when nobody could be contacted on phone, he along withone neighbour went to the hospital to get an ambulance. Thereafter,Sharada was taken to Sassoon Hospital, Pune where she was admittedin the Burns Ward. Unfortunately, she passed away in the morning.

5. The accused were charged and tried for the murder of Sharada.CThe trial court acquitted the accused by giving them the benefit of doubtmainly on the ground that the possibility of the deceased having committedsuicide could not be ruled out. The trial court did not rely upon the dyingdeclarations. On the other hand, the High Court came to the conclusionthat there was no reason to discredit the dying declarations and held thatDdying declarations were totally reliable in view of the testimonies ofPW-2 and PW-5. The High Court held that the reasoning given by thetrial court was perverse and thereafter, allowed the appeal. Hence, thepresent appeals.

6. We have heard learned counsel for the appellants. The mainEargument of the learned counsel for the appellants is that the deceasedwas a very sensitive lady. She, as is apparent from the letters exchangedbetween 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 roomhutment and being sensitive in nature, she committed suicide. It is furtheralleged that even the sister of the deceased had committed suicide. ItFwas also contended that there are various discrepancies in the evidenceand the dying declarations cannot be relied upon. It was further urgedthat the deceased died due to a fire in the kitchen of the house and not inthe bedroom which clearly indicated that she had committed suicide. Itwas also contended that the defence version was a probable versionGand once there was a doubt then benefit of doubt should have beengiven to the accused persons. Lastly it was contended that the appellatecourt should not have lightly interfered with the findings given by thetrial court.

7. With regard to the powers of an appellate court in an appealagainst acquittal, the law is well established that the presumption ofinnocence which is attached to every accused person gets strengthenedwhen such an accused is acquitted by the trial court and the High Courtshould not lightly interfere with the decision of the trial court which hasrecorded the evidence and observed the demeanour of witnesses. ThisCourt in the case of Chandrappa & Ors. v. State of Karnataka[1], laiddown the following principles:- “42. From the above decisions, in our considered view, thefollowing general principles regarding powers of the appellate courtwhile dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate andreconsider the evidence upon which the order of acquittal isfounded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and an appellatecourt 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 compellingreasons”, “good and sufficient grounds”, “very strongcircumstances”, “distorted conclusions”, “glaring mistakes”, etc.are not intended to curtail extensive powers of an appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of “flourishes of language” to emphasise the reluctance ofan appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion.

(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him underthe fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby a competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,reaffirmed and strengthened by the trial court.

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A(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

8. We may first deal with the evidence in relation to the dyingdeclarations. Dr. Sanjeev Chibbar (PW-5) states that he was workingBin Sassoon Hospital, Pune in Ward No. 27 where the deceased SharadaSampat Kale was brought with 98% injuries of burn. He asked her howshe had suffered the burn injuries and she replied as follows:

“On being doused by her husband Sampat Baba Kale and hissister with kerosene and set on fire at 12.30 a.m. (approximately).”C

9. On the basis of the information given by the deceased, PW-5entered this as the history of the case in his own writing and he hasproved the same in the Court. He further states that thereafter PW-2came to the ward to record the dying declaration of the deceased. Thiswitness states that before the dying declaration was recorded by theDPW-2, he examined her and found that she was mentally fit and consciousto make her dying declaration. He further states that the dying declarationwas recorded by the Special Judicial Magistrate in his presence in questionand answer form. Since the hands of the deceased were burnt, PW-2took the impression of the left big toe on the statement. He made thefollowing endorsement on the dying declaration:E

“The statement issued to me by the patient is in the total presenceof her mental faculties and in presence of the staff nurses. Icertify her fit to issue this statement.”

10. PW-5 further states that he signed the aforesaid statementand, in his presence, the Special Judicial Magistrate read over the contentsFof the dying declaration to Sharada who admitted the same as correct.Thereafter, PW-2 made an endorsement to this effect and signed thesame. The witness in cross-examination admitted that in case of patientsof serious burn injuries painkillers are administered to the patients. Healso admits that in such cases the trauma may cause delusion in theGmind of the person. After perusal of the treatment chart he stated thatFortwin injection was given to the deceased at 3.30 a.m.. He does notrule out the possibility of the injection having been given before recordingthe dying declaration.

11. The other important witness is Mr. Kamlakar Adhav (PW-2),who was Special Judicial Magistrate, Pune. According to him, he wasasked by the police to record the statement of Sharada Sampat Kaleand thereafter he went to Ward No.27 in Sassoon Hospital, Pune. Hewas told by PW-5 that the female patient was fit and fully conscious tomake the dying declaration. On his asking, the deceased told him thather name was Sharada Sampat Kale, aged 25 years and she gave hercomplete address.

She was conscious and told him that she was voluntarily makingthe statement. The dying declaration which this witness has provedreads 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 myresidence my husband Sampat Babasaheb Kale and my sister inlaw Tarabai Dhanaji Dhaigude poured kerosene on my personand set me on fire and I sustained burn injuries. Quarrels used totake place between we both husband and wife and he also usedto 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 thempoured 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 thisstatement was not recorded in the presence of PW-5 and, therefore, thename of Dr. Chibbar has not been mentioned by him in the dyingdeclaration. He denied the said suggestion. He denied the suggestionthat Sharada was not in a position to utter a single word because ofextensive burn injuries.

13. In our view, though dying declarations stand proved, the issueis whether we can convict the accused only on the basis of these dying A

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Adeclarations. In a case of the present nature where the victim had 98%burns and the doctor has stated from the record that a painkiller wasinjected at 3.30 a.m. and the dying declaration had been recordedthereafter, there is a serious doubt whether the victim was in a fit stateof 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,Bthe possibility of her being in a state of delusion cannot be completelyruled out. It would also be pertinent to mention that the endorsementmade by the doctor that the victim was in a fit state of mind to make thestatement has been made not before the statement but after the statementwas recorded. Normally it should be the other way round.

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14. No doubt, a dying declaration is an extremely important pieceof evidence and where the Court is satisfied that the dying declaration istruthful, voluntary and not a result of any extraneous influence, the Courtcan convict the accused only on the basis of a dying declaration. Weneed not refer to the entire law but it would be apposite to refer to theDjudgment of this Court in the case of Sham Shankar Kankaria v. Stateof Maharashtra[2] held as follows:

“11. Though a dying declaration is entitled to great weight, it isworthwhile to note that the accused has no power of cross-Eexamination. Such a power is essential for eliciting the truth as anobligation of oath could be. This is the reason the court also insiststhat the dying declaration should be of such a nature as to inspirefull confidence of the court in its correctness. The court has to beon guard that the statement of deceased was not as a result ofeither tutoring or prompting or a product of imagination. The courtFmust be further satisfied that the deceased was in a fit state ofmind after a clear opportunity to observe and identify the assailant.Once the court is satisfied that the declaration was true andvoluntary, undoubtedly, it can base its conviction without any furthercorroboration. It cannot be laid down as an absolute rule of lawGthat the dying declaration cannot form the sole basis of convictionunless it is corroborated. The rule requiring corroboration is merelya rule of prudence………….”

2 (2006) 13 SCC 165

15. In the present case, as we have already held above, therewas some doubt as to whether the victim was in a fit state of mind tomake the statement. No doubt, the doctor had stated that she was in afit state of mind but he himself had, in his evidence, admitted that in thecase of a victim with 98% burns, the shock may lead to delusion.Furthermore, in our view, the combined effect of the trauma with theadministration of painkillers could lead to a case of possible delusion,and therefore, there is a need to look for corroborative evidence in thepresent case.

16. The two accused filed separate written statements underSection 313 of Criminal Procedure Code (‘CrPC’ for short). The defence,as pointed out above, was that the deceased was not willing to go to thevillage 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 regardto the prosecution story. As pointed out above, the prosecution story isthat the appellants- brother and sister, poured kerosene on the victimand set her on fire. It is the admitted case that the house in which thevictim 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 thebedroom. The panchanama (Exhibit 13) and the evidence of Narayan,panch witness (PW-1) clearly show that when the accused SampatBabso Kale was taken to his residence after he was arrested, he openedthe door by removing the lock. This clearly indicates that after thevictim had been taken to the hospital, the premises was lying locked.Presumably, the second appellant or any other person in the house hadalso 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 hada separate privy and bathroom. There was a plastic container containingkerosene oil. There was smell of kerosene in the kitchen and there waswater on the floor of the kitchen. A match box and some burnt clothwere also found in the kitchen. This proves that the occurrence tookplace in the kitchen and not in the bedroom.

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18. The second important factor which comes out from thestatement of the panch witnesses is that in the first room in which therewas a cot, there were two pillows on the cot and below a pillow therewere some ornaments and other things. The panchanama reportindicates that the ornaments were one yellow and black mangalsutra, aBnathni (nose ring), some glass bangles and peinjan (an ornament wornon the foot). It is also recorded that, according to the accused, theseornaments belong to his wife. Mangalsutra, peinjan and even glassbangles are such ornaments which an Indian married woman wouldnormally not remove. In Indian society these are normally worn by theladies all the times. Therefore, the defence version that the deceasedCtook off all these ornaments and then went to the kitchen and committedsuicide cannot be totally ruled out.

19. Another factor which needs to be taken into consideration isthat none of the witnesses from the neighbourhood have been examined.Even as per the prosecution case it was the neighbours who first raisedDan alarm. There is no explanation why none of them have been examined.It is also the prosecution case that the accused husband along with anotherneighbour went to the hospital to arrange for an ambulance. This personhas not been examined. The non-examination of these importantwitnesses leads to non-corroboration of the dying declaration. The bestEwitnesses would have been the neighbours who reached the spotimmediately after the occurrence. They would have been the bestpersons to state as to whether the victim told them anything about theoccurrence or not.

20. In view of the aforesaid circumstances the trial court heldFthat 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 wasbased on a proper appreciation of evidence. The trial court, afterdiscussing the entire evidence in detail, had come to the conclusion thatthe prosecution had failed to prove its case beyond reasonable doubt.GThe High Court came to a different conclusion. On perusal of the entireevidence and the law on the subject we are of the view that the trialcourt was right in holding that the prosecution had failed to prove itscase beyond reasonable doubt.

SAMPAT BABSO KALE & ANR. v. STATE OFMAHARASHTRA [DEEPAK GUPTA, J.]

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

22. Appellant No. 1 is stated to be in jail. He shall be releasedforthwith, 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.

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