Sau. Kamalbai Waman Patil vs The State Of Maharashtra
- Court
- Supreme Court
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2026 INSC 1196
CRIMINAL APPEAL NO.118 OF 2018
SAU. KAMALBAI WAMAN PATIL APPELLANT
VERSUS
THE STATE OF MAHARASHTRA RESPONDENT
J U D G M E N T
ATUL S. CHANDURKAR, J.
1. The appellant questions her conviction by the High Court of
1
Bombay, Bench at Aurangabad for the offence punishable under
2
Section 302 of the Indian Penal Code, 1860 , as a result of which
she has been sentenced to suffer rigorous imprisonment for life
₹
and to pay fine of 25,000/-, in default, to suffer rigorous
imprisonment for one year. By the impugned judgment, the
acquittal of the appellant by the Sessions Court has been reversed.
2. The case of the prosecution in brief is that the son of the
appellant-Shamkant, A1 was married with one Sunitabai. The
Signature Not Verified
Digitally signed by
ABHINAV KUMAR
Date: 2026.11.05
14:34:21 IST
Reason:
1
For short, ‘the High Court’
2
For short, ‘Penal Code’
Criminal Appeal No.118 of 2018
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couple was residing with Waman-A2, the father of A1 and
Kamalbai-A3, the mother of A1. Jeejabrao, A4 is the younger
brother of A1. It was alleged that all the accused were ill-treating
Sunitabai on the ground that she was not having any issue from
the marriage. There was also demand of dowry followed by physical
and mental torture. Despite an earlier understanding between A1
and the family members of Sunitabai, her ill-treatment at the
hands of all the accused continued. It was further alleged that on
10.04.2005 at about 10 a.m. in furtherance of their common
intention, all the accused persons set Sunitabai on fire. On hearing
some commotion, their neighbours had gathered there. Sunitabai
was admitted to the Civil Hospital with burn injuries having been
taken there by one Vishwas Desle. Her statement was thereafter
recorded at 10.30 a.m. wherein she implicated the appellant as
having thrown kerosene on her and having set her on fire.
Sunitabai underwent treatment and her further statements were
recorded by Prakash Wagh, Assistant Sub-Inspector of Police as
well as by the Special Executive Magistrate. Ultimately on
15.04.2005, Sunitabai succumbed to her injuries. An offence was,
accordingly, registered against all the accused. On completion of
investigation, the case was committed to the Sessions Court.
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Charge was framed against A1 to A4 below Exhibit-8 for the offence
punishable under Sections 498A, 342, 406 and 302 read with
Section 34 of the Penal Code. The accused did not plead guilty and
were, thus, tried.
3. To bring home the charge against all the accused, the
prosecution examined Dr. Ajit Pathak at Exhibit-29 as PW-1. He
was working as Associate Professor at the Civil Hospital. He stated
that he had conducted the post-mortem examination of Sunitabai
on 15.04.2005. He opined that the victim had suffered 90 % burns
and that the cause of death was ‘Septicemia due to thermal burns’.
The post-mortem report was at Exhibit-27. The father of Sunitabai,
Subhash Patil was examined at Exhibit-36 as PW-2. He stated that
Sunitabai was his second daughter and that she was married with
A1. His daughter had narrated certain incidents of ill-treatment
after which a meeting was held between members of both the
families. In the said meeting, A1 had given a written assurance
that he would not ill-treat his wife. He further stated that on getting
information that his daughter had suffered burn injuries, he along
with his relatives rushed to village Vinchur. His daughter had been
admitted in the Civil Hospital where she stated that A1 and A4 had
tied her hands and legs by a rope while the appellant had poured
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kerosene on her person and she was set on fire by A2. He identified
the thumb impression of A1 on the stamp paper wherein a written
assurance of good treatment was recorded. The same was at
Exhibit-37.
4. Govinda Patil was examined as PW-3 below Exhibit-38. He
was present at the Police Station where a panchnama was drawn
in respect of a newspaper report, stamp paper of Rs.20 as well as
a medical certificate of the victim. Prakash Wagh, PW-4 was
examined below Exhibit-43. He stated that he was serving as
Assistant Sub-Inspector and that on 10.04.2005, he had recorded
the statement of the victim at the Civil Hospital. In the said
statement, the victim had stated that A1 and A4 had tied her
hands and legs while the appellant had poured kerosene on her
person. She was set on fire by A2. He obtained the thumb
impression of the victim below her statement as well as an
endorsement of the Medical Officer who was present when the
statement was recorded. The same was at Exhibit-44. In his cross-
examination, he admitted that he had not mentioned the time
when the statement of the victim was recorded as well as the time
when the recording of that statement was complete. He further
stated that below the thumb impression of the victim, he had not
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mentioned whether the same was of her left or right hand or of her
legs. He further stated that he did not attempt to obtain any
signature of some relative or any other person present for
identification of the victim’s thumb impression.
5. The prosecution then examined Sardar Mansuri, PW-5 below
Exhibit-46. He was working as a Senior Clerk at the Tahsil office.
On 10.04.2005, after receiving a letter from the Police Station he
had recorded the statement of the victim. After the doctor had
endorsed that the victim was conscious and in a position to give
her statement, he had recorded the same. He obtained the left
thumb impression of the victim below the statement after reading
it over to her and her admission that it was correct. The said
statement was at Exhibit-48. In his cross-examination, he stated
that he had not recorded the statement of the victim in question-
answer form. He further stated that in the dying declaration at
Exhibit-48, it had not been mentioned as to whether the thumb
impression was of the left hand or of the left leg. He denied the
suggestion that the victim was not conscious and that she had not
given any such statement.
6. PW-6, Bhatu Patil was examined at Exhibit-52/C. He was the
cousin brother of the victim’s father. He stated that on 10.04.2005
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on getting a message that the victim had suffered burn injuries, he
along with other relatives had rushed to the Civil Hospital. He
stated that according to the victim, the appellant had poured
kerosene on her person and she was set on fire by A2.
7. Dr. Prashant Shinde, Medical Officer at the Civil Hospital,
was examined as PW-7 below Exhibit-54. He stated that he was on
duty on 10.04.2005 when the victim was brought to the hospital
by Vishwas Patil. Vishwas Patil has also been referred to as
Vishwas Desle. This witness produced the medico-legal case
papers at Exhibit-56 wherein the statement of the victim was also
recorded. He had started giving treatment to the victim after which
her statement was recorded by the Police Officer. When her
statement was recorded, the victim was conscious. When the
second statement of the victim was recorded by PW-5, he had
examined her and had found that she was in a position to give a
statement. He identified his signatures on the dying declarations
at Exhibits-44 and 48.
8. The Investigating Officer, Jainoddin Shaikh was examined as
PW-8 below Exhibit-57. He indicated the manner in which he
conducted the investigation which included seizure of various
articles and preparation of panchnama. In his cross-examination,
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he stated that during the course of investigation, it was disclosed
that Vishwas Patil had extinguished the fire and that he was the
first person to have gone to the place of occurrence and had
thereafter admitted the victim in hospital. Though he had recorded
the statement of Vishwas Patil, he denied the suggestion that in
the dying declaration recorded at 1.15 p.m., as there was nothing
stated against the accused, the same was not submitted along with
the chargesheet.
9. The learned Judge of the Sessions Court considered the
entire prosecution evidence. He noted that there was inconsistency
in the dying declarations recorded at Exhibits-44, 48 and 56. While
in the dying declaration at Exhibit-56, the victim had stated that
she was set on fire by the appellant, in the other two dying
declarations at Exhibits-44 and 48, it was stated that she was set
on fire by her father-in-law, A2. The learned Judge further found
that though the victim in her dying declarations had stated that
she was admitted in hospital by Vishwas Desle, he had not been
examined by the prosecution. On the contrary, the medico-legal
case papers at Exhibit-56 showed that the victim was admitted in
the hospital by her uncle, PW-6. However, in the deposition of PW-
6, he did not state that he had admitted the victim in the Civil
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Hospital. The prosecution had failed to explain the presence of his
signature at Exhibit-56. Absence of any neighbours being
examined by the prosecution also weighed with the Sessions
Court. Though it was the case of the prosecution that the hands
and legs of the victim had been tied, no witness was examined to
indicate presence of any piece of rope. It was further held that
merely on the basis of the stamp paper at Exhibit-37, the offence
under Section 498A of the Penal Code could not be proved. In the
light of the aforesaid, the learned Judge of the Sessions Court
acquitted all the accused of the offence with which they were
charged.
10. The State of Maharashtra through the Police Station Officer,
being aggrieved by the acquittal of all the accused, challenged the
same in appeal. The Division Bench of the High Court was of the
view that the dying declaration recorded by PW-7, Dr. Prashant
Shinde at Exhibit-56 implicating the appellant appeared to be
voluntarily made without the influence of anyone. It further held
that as per the defence of the accused, the appellant alone was
present inside the house when the incident of burning had taken
place and she had failed to explain as to how the victim had
suffered burn injuries. The dying declaration at Exhibit-56 was,
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accordingly, accepted as being truthful. The High Court further
held that the dying declarations at Exhibits-44 and 48 were not
consistent with the initial dying declaration at Exhibit-56. It,
therefore, discarded these two dying declarations. On this
reasoning, it held that the prosecution had proved beyond
reasonable doubt that it was the appellant alone who had poured
kerosene on the person of the victim and had set her ablaze. The
appellant was, thus, convicted for the offence punishable under
Section 302 of the Penal Code. It held that insofar as A1, A2 and
A4 were concerned, there was no positive and dependable evidence
to connect them with the homicidal death of the victim. Their
acquittal by the Sessions Court was upheld. It further held that
offence under Sections 498A, 342 and 406 of the Penal Code was
not proved against any of the accused. After holding the judgment
of acquittal to be illegal and perverse, the appellant was convicted
for the offence punishable under Section 302 of the Penal Code.
She was, accordingly, sentenced to suffer rigorous imprisonment
for life. The appellant, thus, questions her conviction in this
appeal.
11. Mr. Dilip Taur, learned counsel for the appellant submitted
that the High Court erred in reversing the acquittal of the appellant
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and convicting her for the offence punishable under Section 302 of
the Penal Code. It was the case of the prosecution that three dying
declarations of the victim had been recorded being Exhibits-56, 44
and 48. The Sessions Court had disbelieved all the dying
declarations by holding that the same were not consistent with
each other. The finding of the Sessions Court discarding the dying
declarations at Exhibits-44 and 48 was upheld. The High Court,
however, proceeded to accept the dying declaration at Exhibit-56,
ignoring the fact that it was necessary for the prosecution to have
corroborated that piece of evidence with some other reliable
evidence. The High Court ought to have taken into consideration
the fact that the appellant had been acquitted by the Sessions
Court and therefore, while reversing her acquittal, it was necessary
that the material relied upon was without any doubt. Referring to
the deposition of the prosecution witnesses, it was submitted that
their evidence was not consistent and the High Court could not
have accepted the same while reversing the judgment of acquittal.
The learned counsel placed reliance on the decision in State of
3
Punjab Vs. Parveen Kumar and submitted that reversal of the
3
Criminal Appeal No.633/1999 decided on 18.11.2004
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appellant’s acquittal was contrary to law. He, therefore, submitted
that the judgment of the Sessions Court be restored and the
appellant be acquitted.
12.
Mr. Raman Yadav, learned counsel for the respondent
supported the impugned judgment. He submitted that the High
Court was justified in accepting the dying declaration at Exhibit-
56 recorded by the Medical Officer as it was voluntary in nature.
Cogent reasons had been given for doing so. When this dying
declaration was considered along with other evidence including
seizure of the incriminating material and report of the Chemical
Analyser, the entire material was sufficient to sustain the
conviction of the appellant. Moreover, as per the statement of the
accused, the appellant was alone at home when the incident
occurred and, thus, there was no justifiable reason to interfere
with her conviction. He also referred to the relevant prosecution
evidence to support the judgment of the High Court. Reliance was
placed on the decisions in Jagbir Singh Vs. State (N.C.T. of
4
Delhi) and Rajendra s/o Ramdas Kolhe Vs. State of
5
Maharashtra . He, therefore, submitted that the appeal was liable
4
2019 INSC 1000
5
2024 INSC 422
Criminal Appeal No.118 of 2018
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to be dismissed.
13. We have heard the learned counsel for the parties at length.
We have also perused the evidence on record. The material
documentary evidence in the form of various exhibits has also been
looked into. Having given due consideration to the entire
prosecution material led on the basis of the charges framed against
all the accused coupled with the acquittal of all the accused by the
Sessions Court, we find that the reversal of the appellant’s
acquittal by the High Court was not called for and the judgment
under challenge cannot be sustained.
14. Admittedly, all the accused had been charged for committing
an offence punishable under Sections 498A, 342, 302 and 406
read with Section 34 of the Penal Code. In this appeal, we are
concerned only with the charge under Section 302 read with
Section 34 of the Penal Code as all accused were acquitted of the
other offences. The relevant charge framed under Section 302 read
with Section 34 of the Penal Code against all the accused reads as
under:
“Thirdly, that you accused Nos. 1 to 4 in furtherance of your common
intention, at the same date, time and place, did commit the murder
of Sunitabai w/o Shamkant @ Dhanraj Patil, intentionally or
knowingly causing her death by pouring kerosene on her person and
set her to fire and that you all thereby committed an offence
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punishable under section 302 read with section 34 of the Indian
Penal Code and within my cognizance.”
The charge indicates that in furtherance of the common
intention of all the accused, they had intentionally or knowingly
caused her death by pouring kerosene on her person and setting
her on fire. The High Court by the impugned judgment maintained
the acquittal of A1, A2 and A4 of all the charges but convicted the
appellant, A3 alone for the offence punishable under Section 302
of the Penal Code. The legality of this outcome deserves
consideration.
15. The High Court has sought to support its conclusion in
convicting the appellant alone under Section 302 of the Penal Code
by referring to the defence statement of all the accused that when
the unfortunate incident occurred, only the appellant, A3 and the
victim were present at home. On this basis, the High Court
proceeded to hold that since it was admitted by the accused that it
was only the appellant, A3 who was with the victim, it was clear
that she alone had poured kerosene on the victim and had set her
on fire. It is required to be stated that the defence raised by the
accused was in response to the charge framed against all of them.
The charge was that A1 to A4 in furtherance of their common
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intention, at the same date, time and place had caused the death
of the victim by pouring kerosene on her person and setting her on
fire, thus, committing an offence punishable under Section 302
read with Section 34 of the Penal Code. There was no independent
charge framed under Section 302 of the Penal Code against any of
the accused. Hence, to hold that the defence raised by the accused
that as the appellant, A3 was alone present at home with the victim
was sufficient to convict her under Section 302 of the Penal Code
would amount to making out a new accusation with which the
appellant was never charged. It would have been a different matter
altogether if an independent charge under Section 302 of the Penal
Code simplicitor was also framed against the appellant, A3. The
case of the prosecution was always that of involvement of all the
accused in furtherance of their common intention. Now, convicting
only one of them in the absence of any independent charge would
definitely be prejudicial to the appellant, in the facts of the present
case.
16. We are fortified in this view by the decision of this Court in
6
Krishna Govind Patil Vs. State of Maharashtra . Herein, four
6
1962 INSC 19
Criminal Appeal No.118 of 2018
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accused were tried for a murder. The charge against them was that
in view of their common grudge against the deceased, they together
did away with him. All the four accused were charged under
Section 302 read with Section 34 of the Penal Code. They were also
charged separately for the substantive offence under Section 302
of the Penal Code. The trial Court acquitted all the accused by
giving them the benefit of doubt. Against the acquittal of the
accused under Section 302 read with Section 34 of the Penal Code,
the State preferred an appeal. However, no appeal was preferred
against their acquittal under Section 302 of the Penal Code for
which the accused were charged separately. The High Court
confirmed the acquittal of three accused. However, with regard to
one of the accused, it was held that he had participated in the
assault and there was no basis in his plea of private defence. The
said accused was, accordingly, convicted under Section 302 read
with Section 34 of the Penal Code. His conviction was challenged
in this Court. It was argued on behalf of the sole convicted accused
that the trial Court having acquitted all the accused under Section
302 read with Section 34 of the Penal Code as well as under Section
302 of the Penal Code, the appeal in the High Court was confined
only to the acquittal of the accused under Section 302 read with
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Section 34 of the Penal Code. It was, thus, urged that when three
of the four named accused charged under Section 302 read with
Section 34 of the Penal Code were acquitted, the Court could not
have convicted only the fourth accused on the basis of constructive
liability. A Bench of four learned Judges upheld this contention
and observed as under:
“It is well settled that common intention within the meaning of the
section implied a pre-arranged plan and the criminal act was done
pursuant to the pre-arranged plan. The said plan may also develop
on the spot during the course of the commission of the offence; but
the crucial circumstance is that the said plan must precede the act
constituting the offence. If that be so, before a court can convict a
person under s. 302, read with s. 34, of the Indian Penal Code, it
should come to a definite conclusion that the said person, had a prior
concert with one or more other persons, named or unnamed, for
committing the said offence. A few illustrations will bring out the
impact of s. 34 on different situations.
(1) A, B, C and D are charged under s. 302, read with s. 34, of
the Indian Penal Code, for committing the murder of E. The evidence
is directed to establish that the said four persons have taken part in
the murder.
(2) A, B, C and D and unnamed others are charged under the
said sections. But evidence is adduced to prove that the said persons,
along with others, named or unnamed, participated jointly in the
commission of that offence.
(3) A, B, C and D are charged under the said sections. But the
evidence is directed to prove that A, B, C and D, along with 3 others,
have jointly committed the offence.
As regards the third illustration, a Court is certainly entitled
to come to the conclusion that one of the named accused is guilty of
murder under s. 302, read with s. 34, of the Indian Penal Code,
though the other three named accused are acquitted, if it accepts the
evidence that the said accused acted in concert along with persons,
named or unnamed, other than those acquitted, in the commission
of the offence. In the second illustration, the Court can come to the
same conclusion and convict one of the named accused if it is
satisfied that no prejudice has been caused to the accused by the
defect in the charge. But in the first illustration the Court certainly
can convict two or more of the named accused if it accepts the
evidence that they acted conjointly in committing the offence. But
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what is the position if the Court acquits 3 of the 4 accused either
because it rejects the prosecution evidence or because it gives the
benefit of doubt to the said accused? Can it hold, in the absence of a
charge as well as evidence, that though the three accused are
acquitted, some other unidentified persons acted conjointly along
with one of the named persons? If the Court could do so, it would be
making out a new case for the prosecution: it would be deciding
contrary to the evidence adduced in the case. A Court cannot
obviously make out a case for the prosecution which is not disclosed
either in the charge or in regard to which there is no basis in the
evidence. There must be some foundation in the evidence that
persons other than those named have taken part in the commission
of the offence and if there is such a basis the case will be covered by
the third illustration.”
17. It was held that while the High Court acquitted three out of
the four accused under Section 302 read with Section 34 of the
Penal Code, it convicted the fourth accused under Section 302 read
with Section 34 of the Penal Code for having committed the offence
jointly with the acquitted persons. This was found to be a legally
impossible position. When the accused were acquitted either on
the ground that the evidence was not acceptable or by giving
benefit of doubt to them, the result in law would be the same, that
is, it would mean that they did not take part in the offence. The
effect of acquittal of the three out of the four accused was that they
did not conjointly act with the fourth accused in committing the
murder. The fourth accused, therefore, could not have acted
conjointly with them. It was, thus, held that on the findings arrived
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at by the High Court, the conviction of the only accused was clearly
wrong.
18. In the present case too, we are faced with a similar situation.
Of the four accused tried for the charge under Section 302 read
with Section 34 of the Penal Code, the acquittal of three out of said
four accused was maintained by the High Court. The appellant, A3
alone has been convicted for the substantive offence punishable
under Section 302 of the Penal Code, a charge that was never
framed against her.
19. Notwithstanding this position, we have independently
assessed the evidence on record. The present is a case where there
are three dying declarations on record. The Sessions Court
discarded all the dying declarations as they were not consistent
with each other. The High Court, however, accepted the dying
declaration at Exhibit-56 while discarding the other two at
Exhibits-44 and 48. In Jagbir Singh (supra), this Court considered
the presence of multiple dying declarations including those that
were inconsistent with each other. It was held that each case was
required to be decided on its own facts after carefully examining
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the entirety of materials as well as the circumstances surrounding
the making of different dying declarations.
20. In our view, the High Court ought to have borne the following
legal aspects in mind before accepting the dying declaration at
Exhibit-56 as held by this Court in Abhishek Sharma Vs. State
7
(Govt. of NCT of Delhi) :
“9. Having considered various pronouncements of this Court, the
following principles emerge, for a Court to consider when dealing with
a case involving multiple dying declarations:
9.1 The primary requirement for all dying declarations is that they
should be voluntary and reliable and that such statements should
be in a fit state of mind;
9.2 All dying declarations should be consistent. In other words,
inconsistencies between such statements should be 'material' for
its credibility to be shaken;
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be considered
for the purposes of corroboration of the contents of dying
declarations.
9.4 The statement treated as a dying declaration must be
interpreted in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The
court has to examine upon which of the statements reliance can
be placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that has been
recorded by a Magistrate or like higher officer can be relied on,
subject to the indispensable qualities of truthfulness and being
free of suspicion.
9.7 In the presence of inconsistencies, the medical fitness of the
person making such declaration, at the relevant time, assumes
importance along with other factors such as the possibility of
tutoring by relatives, etc.”
7
2023 INSC 924
Criminal Appeal No.118 of 2018
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These principles have also been highlighted in Rajendra s/o
Ramdas Kolhe (supra).
21. It is material to bear in mind that while convicting the
appellant under Section 302 of the Penal Code, the High Court
disbelieved the dying declarations at Exhibits-44 and 48 as well as
the oral statements made by the victim to her father Subhash Patil,
PW-2 and Bhatu Patil, PW-6. The High Court has based the
conviction of the appellant solely on the deposition of Dr. Prashant
Shinde, PW-7 and the statement of the victim as recorded in the
medico-legal case papers at Exhibit-56. Thus, the material factor
to be considered is whether the statement recorded below Exhibit-
56 by Dr. Prashant Shinde is sufficient to overturn the acquittal of
the appellant and convict her under Section 302 of the Penal Code.
22. When the examination-in-chief of Dr. Prashant Shinde, PW-7
is perused, he states that on 10.04.2005 one Vishwas Patil had
brought the victim at the Civil Hospital. He had recorded the
history of the patient and had mentioned the same on the medico-
legal case papers. He, thereafter, obtained the thumb impression
of the patient thereon. He further states that at about 1.40 p.m.
the police had arrived at the Civil Hospital for recording the
statement of the victim. After examining her and finding that she
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was conscious and able to give her statement, an endorsement to
that effect was put on the police papers. The statement of the victim
was thereafter recorded. At its conclusion, the victim was again
examined and on noting that she was conscious and able to give
her statement, an endorsement on the statement recorded was put
(Exhibit-44). This witness further states that at about 2.15 p.m. on
the same day, the Special Executive Magistrate, PW-5 had come for
recording the patient’s statement. After again verifying the status
of the patient, her statement (Exhibit-48) was recorded by the
Special Executive Magistrate.
23. When the history of the patient as recorded by PW-7 is
considered, it is seen that the same was endorsed by one Vishwas
Desle. He had brought the patient to the Civil Hospital as stated by
PW-7. Pertinently, Vishwas Desle was not examined by the
prosecution. In the cross-examination of the Investigating Officer,
PW-8, he admitted that during the course of investigation, it was
disclosed that Vishwas Patil, who was a Police Patil, had
extinguished the fire and he was the first person to go to the house
of the accused. He had also admitted the victim in hospital. His
statement under Section 161 of the Code of Criminal Procedure,
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8
1973 had been recorded. There is, however, no reason furnished
for non-examination of this material witness, especially, when he
was the first person to have gone to the house of the accused,
extinguished the fire and thereafter, admitted the victim to
hospital. This factor weighed with the Sessions Court. The High
Court, however, despite acknowledging the fact that Vishwas Patil
had gone to the spot of the incident after the victim was burnt and
had taken her to the hospital, proceeded to observe that his non-
examination did not have any adverse effect on the case of the
prosecution. In our view, Vishwas Patil was definitely a material
witness since he was the first person to go to the house of the
accused, rescue the victim and thereafter bring her to the hospital.
Even according to the Medical Officer, PW-7 he was present when
the patient’s history was noted on the case papers at Exhibit-56.
24. We may, thus, observe that since the High Court found that
the dying declarations at Exhibits-44 and 48 were not consistent
with the dying declaration at Exhibit-56, it ought to have looked
for some corroborative material while accepting the dying
declaration at Exhibit-56, especially when the burn injuries were
8
For short, ‘the Code’
Criminal Appeal No.118 of 2018
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to the extent of 94% as per PW-7. It is here that the examination of
Vishwas Desle, who was present when PW-7 noted the patient’s
history on Exhibit-56 would have been material. He was, however,
not examined. Thus, Exhibit-56 without any corroboration cannot
be the sole basis to reverse the acquittal of the appellant and
thereafter convict her alone.
25. It was the case of the prosecution since inception that all the
accused in furtherance of their common intention had caused the
death of the victim by pouring kerosene on her person and setting
her on fire. The charge framed was under Section 302 read with
Section 34 of the Penal Code. In the dying declarations at Exhibits-
44 and 48, it was asserted that the victim’s husband, A1 and her
brother-in-law, A4 had tied her hands and legs by a rope after
which the appellant, A3 had poured kerosene on her person and
A2 had set her on fire. A similar narration can be found in the dying
declaration at Exhibit-48. Both these dying declarations, however,
have been discarded by the Sessions Court as well as the High
Court. This finding has not been assailed by the prosecution. It was
also specifically deposed by PW-2, the victim’s father as well as
PW-6 that Sunitabai had told them that her hands and legs had
been tied by A1 and A4. During the course of investigation, the
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prosecution had seized an empty plastic can, partially burnt cloth
pieces and a partially burnt piece of rope. Here, Vishwas Desle
would have been a material witness to prove the presence of the
burnt piece of rope with which the victim was allegedly tied. The
High Court, however, while proceeding to accept the dying
declaration at Exhibit-56 did not indicate as to why the case of the
prosecution in terms of the charge framed below Exhibit-8 was not
liable to be accepted. It is material to note that common intention
was attributed to all the accused and they all were charged for the
offence punishable under Section 302 with the aid of Section 34 of
the Penal Code. However, it is only the appellant, who has been
convicted by the High Court under Section 302 of the Penal Code.
The appellant’s conviction was, therefore, required to be supported
by convincing evidence. It also ought to be borne in mind that the
victim was stated to be aged about thirty years when the incident
took place while the appellant was stated to be aged sixty years.
According to the High Court, it was the appellant alone who poured
kerosene on the victim and also set her on fire. The difference in
the age of the victim and the appellant was also a relevant factor to
be considered especially while reversing the appellant’s acquittal.
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26. The High Court has attached considerable importance to the
absence of any explanation being furnished by the appellant as
regards the manner in which the victim suffered burn injuries.
This, according to the High Court, was a major factor that worked
against the appellant as she was stated to be alone with the victim
at home when the incident occurred.
9
27. The provisions of Section 106 of the Evidence Act, 1872
would come into play only after the prosecution discharges its
initial burden pointing to the involvement of the concerned
accused. It is only when the prosecution has led evidence, which
if believed would sustain a conviction that the absence of a
plausible explanation by the accused could be a factor against
such accused. We may in this regard refer to the decision of a three
10
Judge Bench of this Court in Anees Vs. The State Govt. of NCT
wherein it was held as under:
“42. Applying the aforesaid principles, this Court while maintaining
the conviction under Section 364 read with Section 34 of the IPC,
reversed the order of acquittal under Section 302 read with Section
34 of the IPC, and convicted the accused under the said provision
and sentenced them to imprisonment for life.
43. Thus, from the aforesaid decisions of this Court, it is evident
that the court should apply Section 106 of the Evidence Act in
criminal cases with care and caution. It cannot be said that it has no
application to criminal cases. The ordinary rule which applies to
9
For short, ‘the Act of 1872’
10
2024 INSC 368
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criminal trials in this country that the onus lies on the prosecution
to prove the guilt of the accused is not in any way modified by the
provisions contained in Section 106 of the Evidence Act.
44. Section 106 of the Evidence Act cannot be invoked to make up
the inability of the prosecution to produce evidence of circumstances
pointing to the guilt of the accused. This section cannot be used to
support a conviction unless the prosecution has discharged the onus
by proving all the elements necessary to establish the offence. It does
not absolve the prosecution from the duty of proving that a crime was
committed even though it is a matter specifically within the
knowledge of the accused and it does not throw the burden on the
accused to show that no crime was committed. To infer the guilt of
the accused from absence of reasonable explanation in a case where
the other circumstances are not by themselves enough to call for his
explanation is to relieve the prosecution of its legitimate burden. So,
until a prima facie case is established by such evidence, the onus
does not shift to the accused.”
In the absence of the initial burden being discharged by the
prosecution herein, we are not inclined to accept the reasoning of
the High Court in this regard by relying upon Section 106 of the
Act of 1872.
28. Another material infirmity in the impugned judgment of the
High Court is that after convicting the appellant for the offence
punishable under Section 302 of the Penal Code, the appellant was
not heard on the quantum of sentence to be imposed upon her.
After reversing the appellant’s acquittal, the High Court ought to
have heard her in this regard as required by Section 386(a) of the
Code. The record indicates, however, that the appellant was not
heard on the aspect of sentence. This Court in Ramkrushna
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11
Prahllad Dongardive Vs. The State of Maharashtra has
considered the aforesaid aspect in detail. However, since we are of
the view that the High Court was not justified in reversing the
appellant’s acquittal, nothing much would turn on this aspect. As
the aforesaid position is obvious from the record, it has been
referred to.
29. After considering the entire material on record, we are more
than satisfied that the Sessions Court was correct in holding that
in view of inconsistency in the three dying declarations, the
appellant was entitled to the benefit of doubt. The High Court,
while considering an appeal against acquittal, ought to have given
due consideration to this aspect before proceeding to reverse the
judgment of the Sessions Court. The presumption of innocence in
favour of the appellant was in fact enhanced by her acquittal by
the Sessions Court. The view taken by the Sessions Court could
not be said to be either perverse or illegal as held by the High Court.
The dying declaration at Exhibit-56 was accepted by the High
Court without any corroborating evidence being available. The
judgment of the High Court, therefore, cannot be sustained.
11
2026 INSC 1099
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30. For all the aforesaid reasons, the judgment of the High Court
passed in Criminal Appeal No.63 of 2008 on 28.09.2017 is
quashed. The appellant is acquitted of the offence punishable
under Section 302 of the Penal Code. The appellant be set free
forthwith, if not required in any other case. The Criminal Appeal is,
accordingly, allowed.
…...………………………..J.
[ UJJAL BHUYAN ]
.…..………………………..J.
[ATUL S. CHANDURKAR]
NEW DELHI,
NOVEMBER 5, 2026.
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