2026 INSC 1196

Criminal Appeal No.118 of 2018

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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

Bombay, Bench at Aurangabad

1 for the offence punishable under

Section 302 of the Indian Penal Code, 1860

2, 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

1 For short, ‘the High Court’

2 For short, ‘Penal Code’

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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

Punjab Vs. Parveen Kumar

3

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 dy ing

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

Delhi)

4

and Rajendra s/o Ramdas Kolhe Vs. State of

Maharashtra

5

. He, therefore, submitted that the appeal was liable

4 2019 INSC 1000

5 2024 INSC 422

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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 Cou rt

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

Krishna Govind Patil Vs. State of Maharashtra

6

. Herein, four

6 1962 INSC 19

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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 nam ed 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

(Govt. of NCT of Delhi)

7

:

“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

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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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1973

8 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’

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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

Criminal Appeal No.118 of 2018

Page 24 of 28

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.

27. The provisions of Section 106 of the Evidence Act, 1872

9

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

Judge Bench of this Court in Anees Vs. The State Govt. of NCT

10

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

Criminal Appeal No.118 of 2018

Page 26 of 28

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

Criminal Appeal No.118 of 2018

Page 27 of 28

Prahllad Dongardive Vs. The State of Maharashtra

11

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

Criminal Appeal No.118 of 2018

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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.