Supreme Court of India
SURYAKANT DADASAHEB BITALEversusDILIP BAJRANG KALE & ANR.
- Citation
- 2014 INSC 458
- Decided
- 2 July 2014
- Disposal
- Appeal(s) allowed
- Bench
- S MUKHOPADHAYA
Holding
The High Court was not justified to interfere with the Sessions Court’s acquittal; under Section 397 CrPC it may not re‑appreciate evidence, and the Sessions Court’s consideration of both dying declarations was proper.
Summary
The appellant Suryakant Bitale was acquitted by the Sessions Court of offences under Sections 302 and 498A IPC relating to the death of his wife, Archana, who suffered severe burns. The complainant, her father Dilip Kale, sought revision of the acquittal under Section 397 of the CrPC, alleging misappreciation of two dying declarations. The High Court re‑appreciated the dying statements and set aside the acquittal, remitting the case to the Sessions Court. On appeal, the Supreme Court held that a revisional court cannot re‑appreciate evidence and may interfere only when the trial court has wrongly excluded admissible material. Since the Sessions Court had considered both dying declarations and had not overlooked any admissible evidence, its order of acquittal was proper. Consequently, the Supreme Court set aside the High Court’s revision order and affirmed the Sessions Court’s acquittal.
Issues considered
- Whether a High Court exercising revisional jurisdiction under Section 397 CrPC may re‑appreciate evidence, such as dying declarations, in a revision of an order of acquittal where no appeal under Section 378 CrPC is filed.
- Whether the Sessions Court erred in acquitting the accused by overlooking or mis‑appreciating the dying declarations and other material evidence.
- Whether the dying declarations recorded on 14 July and 16 July 2003 are reliable and admissible.
- Whether the High Court was justified in setting aside the order of acquittal.
Legislation cited
- Code of Criminal Procedure, 1973s. 378, s. 397
- Indian Penal Code, 1860s. 302, s. 498A, s. 49BA
Subjects
revisional jurisdictionSection 397 CrPCdying declarationorder of acquittalSection 378 CrPCevidence appraisalCriminal Procedure CodeIndian Penal Codeadmissibility of evidence
Judgment
[2014] 8 S.C.R. 98
A SURYAKANT DADASAHEB BITALE
v.
DILIP BAJRANG KALE & ANR.
(Criminal Appeal No. 1708 of 2009)
JULY 2, 2014
B
[SUDHANSU JYOTI MUKHOPADHAYA AND
R.K. AGRAWAL, JJ.]
Code of Criminal Procedure, 1973 - s.397 - Interference
C with order of acquittal~ By High Court in exercise of revisional
jurisdiction - Validity -Death of appellant's wife due to burn
injuries - Multiple dying declarations -Appellant charged with
offences u/ss. 49BA and 302 /PC - But acquitted by Sessions
Court - Father of the deceased invoked revisional jurisdiction
D of High Court u/s.397 CrPC to challenge legality of the order
of acquittal - High Court remitted the matter back to Session
Court for consideration afresh - Held: High Court not justified
in interfering with the order- of acquittal in revision - The
Sessions Court did not rule out any evidence which was
E admissible and considered both the dying declarations -
Material evidence not overlooked by the Sessions Court -
Prosecution could not explain as to why the second dying
declaration wa..s taken, though in the said declaration the
deceased stated that she had not called for the second dying
F declaration - Alf these aspects were discussed by the
Sessions Judge who acquitted the appellant - View taken by
the Sessions Judge neither unreasonable nor perverse but
a possible reasonable view based on the evidence on record
- In the circumstances, High Court not justified in setting aside
G the order of acquittal - Order passed by the Sessions Court
affirmed - Penal Code, 1860 - ss. 498A and 302.
The appellant's wife sustained 95% burn injuries in
her matrlmonial house. She was admitted in the Hospital,
where the Special Executive Magistrate recorded her
H . 98
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 99
KALE
dying declaration. Two days later, the Special Executive A
Magistrate recorded another dying declaration.
Subsequently, the appellant's wife died. The appellant
was charged for offences punishable under Sections 302
and 498A IPC. The Sessions Court acquitted the
appellant. Aggrieved, the complainant, father of the B
deceased invoked revisional jurisdiction of the High
Court under Section 397 CrPC to challenge the legality
and validity of the order of acquittal. The High Court under
revisional jurisdiction accepted that appreciation of
evidence was not within the jurisdiction of the revisional c
court, but re-appreciated the dying declaration and
remitted the matter back to the Session Court for
consideration
•,
afresh.
In the instant appeal, the appellant assailed the
judgment of High Court on the ground that in absence D
of appeal against the acquittal under Section 378 Cr.P.C.,
it was not open to the High Court to re-appreciate
evidence like dying declarations under Section. 397
Cr.P.C; that the Sessions Judge had extensively
appreciated the dying declarations of the deceased and_ E
thereafter come to the conclusion that appellant was not
guilty of the offence charged against him; and that where
two views were possible, the High Court should not have
interfered with the order of the acquittal.
F
Allowing the appeal, the Court
HELD:1.1. From the judgment passed by the
Sessions Judge, it is found that the Sessions Judge not
only dealt with dying declaration dated 14th July, 2003
and 16th July, 2003 but also noticed that the deceased G
made a declaration to her father, complainant, PW-5 on
15th July, 2003 i.e. a day prior to the lodging of FIR on
16th July, 2003. The Sessions Court did not rule out any
evidence which was admissible. Both the dying
·declarations were considered in proper prospect. The H
100 SUPREME COURT REPORTS [2014] 8 S.C.R.
A material evidence was not overlooked by the Sessions
Court, as apparent from the discussions ~ade by
Sessions Judge. In these circumstances, the High Court
was not justified in interfering with the order of acquittal
in a revision. [Paras 16, 20] [108-D-E; 113-F]
B
1.2. There were three dying declarations. One was
made before the Executive Magistrate on 14th July, 2003,
the second alleged to have been made by the deceased
before her father, PW-5-complainant on 15th July, 2003
and the t~--dying declaration was made in a format
C before the Executive Magistrate on 16th July, 2003. The
prosecution could not explain as to why the second
dying declaration was taken on 16th July, 2003, though
in the said declaration the deceased had stated that she
had not called for the second dying declaration. All this
D aspect has been discussed by the Sessions Judge who
acquitted the appellant. [Para 22) [114-8-E]
1.3. The view taken by the Sessions Judge is neither
unreasonable nor perverse. It is possible reasonable
E view based on the evidence on record. 1.n the
circumstances, the High Court was not justified in setting
aside the order of acquittal. For the reasons aforesaid, the
order passed by the Sessions Court is affirmed. [Paras
23; 24] [114-E-G]
F K. Chinnaswamy vs. State of A.P. AIR 1962 SC 1788:
1963 SCR 412; Aka/u Ahir & Others vs: Ramdeo Ram, AIR
1973 SC 2145=(1973) sec 2 583: 1974 (1) SCR 130; State
of Punjab vs. Parveen Kumar (2005) 9 SCC 769 - referred
to.
G
Case Law Reference :
1963 SCR .412 referred to Para 18
·1974 (1) SCR 130 referred to Para 19
H
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 101
KALE
c2oos) 9 sec 769 referred to Para 21 A
CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 1708 of 2009.
From the Judgment and Order dated 18.10.2007 in
Criminal Revision Application No. 321 of 2004 of the High B
Court of Judicature at Bombay.
Divya Sharma, Shivaji M. Jadhav for the Appellant.
Vinay Navare, Satyajeet, Keshav Ranjan, Abha R. Sharma C
for the Respondents.
The Judgment of the Court was delilvered by
SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This
appeal is directed against the judgment and order dated 18th 0
October, 2007 passed by the High Court of Judicature at
Bombay in Criminal Revision Application No.321 of 2004. By
the impugned judgment, the High Court set aside the judgment
dated 29th May, 2004 passed by the Sessions Judge, Satara
tn Sessions Case No.4 of 2004 acquitting the appellant- E
accused for the offence punishable under Section 498A and
302 of the Indian Penal Code and remanded back the
proceedings for c~nsideration afresh to the Session Court.
2. The factual matrix reveals that the deceased Archana
married to the appellant-accused on 6th June, 2003. F
Satyanarayan Puja was performed on 8th June, 2003. As per
family traditions, Archana returned to her father's house on 9th
June, 2003 and, thereafter, she went back to matrimonial home
on 11th June, 2003.
G
3. On 14th July, 2003 the deceased Archana sustained
95% burn injuries in her matrimonial house. Her husband,
appellantcaccused was present in the house at the relevant
point of time. She was admitted in Civil Hospital, Satara, where
H
102 SUPREME COURT REPORTS [2014] 8 S.C.R.
A the Special Executive Magistrate had recorded her dying
declaration on 14th July, 2003 (first dying declaration).
4. The message of the burn injuries suffered by Archana
was received by h&r maternal uricle on 15th July, 2003. He
along with his wife, went to see Archana and found ·that she was
8
under medical treatment in Civil Hospital at Satara.
5. On 16th July, 2003, Special Executive Magistrate
recorded another dying declaration of Archana at Civil Hospital,
Satara (second dying declaration).
c
6. Dilip Bajrang Kale (in short Dilip), father of the deceased
Archana, thereafter lodged an FIR on 16th July, 2003 with the
Pusegaon Police Station, District Satara against the appellant-
accused alleged that the accused had given mental and
0 physical harassment to Archana, since dowry demand was not
fulfilled and that, ultimately, Archana was made to suffer burn
injuries.
7. On 17th July, 2003 inquest panchnama on the body of
the deceased was carried at Civil Hospital, Satara and the
E dead body was sent for postmortem. The postmortem report
suggested that death is caused due to 90% superficial and
deep burn injuries.
8. The appellant-accused was arrested and initially
F proceeded for the charges under Section 498A and 307 IPC.
After the death of Archana, he was charged for the offence
punishable under Section 302 and 498A IPC.
9. After investigation, the case was committed to the
Sessions Court at Satara. The prosecution produced a number
G of witnesses and documentary evidence.
10. The Sessions Judge tried the accused for the offences
punisnable under Section 302 and 498A IPC and after
recording the evidence and appreciating submissions made by
H
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 103
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
the parties acquitted the appellant-accused of the offences A
alleged against him.
11. Being aggrieved by the aforesaid order of acquittal
dated 29th May, 2004 passed by the Sessions Judge, the
complainant Dilip, father of the deceased invoked revisional
B
jurisdiction of the High Court under Section 397 Cr. P.C. to
challenge the legality and validity of the order of acquittal. The
High Court under revisional jurisdiction while accepted that
appreciation of evidence is not within the jurisdiction of the
revisional court, re-appreciated the dying declaration and· C
observed as follows:
"23. Having taken survey of the_ law regarding dying
declaration and value which is to be attached to it, now
let me turn to the dying declarations which are available
on record. D
24. The deceased had stated in her first dying
declaration dated 14. 7.2003 that on 4. 7.2003 i.e. on the
date of incident at about 3.30 p.m. while cooking in the
kitchen on gas stove fire caught to the shore of her saree E
which she tried to extinguish, and, ultimately, suffered
injuries. That her husband, who was in the next room
brought a bed sheet and bad cover to extinguish fire. That
he had also suffered burn injuries. ,
25. In the second dying declaration recorded on F
16. 7. 2003, Archana had stated that first dying declaration
was given by her under pressure and she went on 'to say
that she having refused to have the sexual intercourse
on second occasion her husband (accused) got annoyed
and in the ·hit of anger poured kerosene on her person G
and set her on fire using matchstick. That her husband
did not try to extinguish fire.
26. With the aforesaid two dying declarations on record,
H
104 SUPREME COURT REPORTS [2014] 8 S.C.R.
A it was expected on the part of the learned Sessions
Judge to appreciate both dying declarations and to find
out which was reliable. It was open for him to appreciate
and to accept either of the dying declarations or to reject
both. But it was not open for him not to appreciate any of
B the dying declarations and exclude and/or omit or to
overlook this vital evidence from consideration.
27. The spot panchnama shows that gas cylinder was
empty; whereas, the report of Chemical Analyser shows
that residues of kerosene were detected on the clothes
c which were seized including those of the accused and the
deceased. The earth collected from the kitchen had a/so
trecess of the kerosene and that her husband (accused)
had also suffered burn injuries."
D In view of such observation, the High Court remitted the
matter back to the Session Court for consideration afresh.
12. Learned counsel for the appellant assailed the
judgment on the ground that in absence of appeal against the
E acquittal under Section 378 Cr.P.C., it was not open to the High
Court to re-appreciate the evidence like dying declarations
under Section 397 Cr.P.C. It was further contended that the
Sessions Judge had extensively appreciated the dying
declarations of the deceased and thereafter had come to the
conclusion that the appellant is not guilty of the offence charged
F against him. Where two views are possible, the High Court
should not have interfered with the order of the acquittal.
13. To appreciate the arguments, it is desirable to refer
the two dying declarations made by the deceased Archana and
G recorded by the Special Executive Magistrate, one on 14th July,
2003 and the other on 16th July, 2003.
14. Dying declaration dated 14th July, 2003 is in the form
of statement and reads as follows:
H
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 105
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
"Statement ·A
Dated: 14.7.2003
I, Archana Suryakant Bitale, age 22, Rio Garwadi Taluka
Khatav, District Satara.
B
On being asked I hereby give my statement in Ward
No. 27 that I have been-'residing at the aforesaid place
alongwith my father-in-law Tai Dadaso Bitale. My
husband Suryakant Dadaso Bitale is working as Mothadi
Labourer in Nhava Sheva Project Mumbai and my C
marriage took place as per my wish and with the consent
of people from parent's side. My marriage took place on
6th June, 2003. Since my marriage I have belJn residing
at my husband's place. I have studied upto 12th and my
marriage took place at Kalewadi i.e. my pare@t's place.
D
Today i.e. 14.7.2003 around 3.30 I was cooking on the
gas stove and my husband was sleeping in the other
room. While cooking my saree accidentally fell on the
flame of the gas and caught fire. I tried to extinguish but
my saree caught fire and since I got burnt I came out of E
the kitchen shouting. My husband and neighbours
extinguished the fire with bed sheet and bed cover. My
husband also suffered burn injury while trying to
extinguish the fire. I got burn injuries on both the legs,
· chest, back, abdomen, both legs and neck and it is F
paining. I was taken to the primary health centre Diskal
in a jeep from our _village and from there I was taken to
the Civil Hospital; Satara. I am being treated here.
Therefore on. 14. 7. 2003 around 3. 30 my husband had' to
go to Mumbai and while I was cooking around 3.30 my G
saree caught fire ad I got burnt. At the time of incident
me and my husband were at home and my father-in-law
had gone to the field and nobody has set me on fire. My
saree fell on the gas stove and therefore, I got burnt I do
not have any complaint against anyone. H
106 SUPREME COURT REPORTS [2014] 8 S.C.R.
A The aforesaid statement is written down correctly as stated
by me and hereby sighing the same.
The aforesaid statement started at 16.00 and completed
at 6.30.
B 14. 7.2003
Sdl-'
AS./..
Hospital Duty'
Satara City Police Hospital."
C 15. On the other hand dying declaration dated 16th July,
2003 is recorded in the format which reads as follows:
"DYING DECLARATION DATED 16.7.2003
I, Sou, Archana Suryakant Bita/e, again state and answer
D
the following questions:
1. Full Name Sou. Archana Suryakant
2. Age 22 years
E 3. Occupation Household work
4. Residing at Garvadi Taluka Khatav
5. Reason of My husband Suryakant Dada
Burning Saheb Bitale poured
F Kerosene on my person and
lit me on fire after I disallowed
him to have intercourse on
second occasion.
G 6. Quarrel with There was no quarre~ with
Whom anybody in the house.
7. Did husband or No
in-laws make
any demand for
H dowry
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 107
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
8. How many years Marriage took place on A
have lapsed 6,6,2003.
After marriage?
9. Is this second Nobody asked me to give
Statement being the second statement.
B
Recorded at the
Behest of
anybody?
10. Why did you Statement dated 14.7.2003
not tell the was recorded under c
informatio"n pressure and, therefore,
given in the I could not state.
earlier However, since my agony
statement has increased, I am
recorded on making this fresh D
14.7.2003 ? statement.
My husband Suryakant Dada Saheb Bitale poured
kerosene from the kerosene cane in the house and set
· me on fire by lighting matchstick. At that time, there was E
nobody else in my house. After I was lit on fire, my
husband was lying on the bed. After I was set on fire, I
started shouting loudly. However, somebody from the
neighbouring house whose name I do not know came to
douse the fire. However, he saw my husband and
'
returned back without doing anything. My husband did F
not try to douse the fire. On the day of the incident my
. husband and other persons in the village admitted me
to Civil Hospital at 3.30 p.m. It is my accusation that my
husband set me on fire. There is no a/legation by me
against my mother-in-law, father-in-law, brother-in-law in G
our house and I do not have any complaint against them.
My husband should be severely punished. Neither the
Police Officer nor any of my relatives were present while
recording my statement nor am I making this statement
H
108 SUPREME COURT REPORTS [2014] 8 S.C.R.
A under pressure of anybody. Rec_ording of my statement
started at 12. 40 in the afternoon and continued till 1. 10
p.m. on 16.7.2003. The statement was read over to me
and the contents thereof are correct.
. .
Accordingly, the statement is recorded.
B
Dated: 16.7.2003.
In the presence of
Sd/-
Special Executive Magistrate,
Satara
c Tf)umb Impression of
Archana Suryakant Bitale."
16. From the judgment dated 29th May, 2004 passed by
the Sessions Judge in Sessions Case No.4 of 2004, what we
o find is that the Sessions ·Judge not only dealt with dying
declaration dated 14th July, 2003 and 16th July, 2003 but also
noticed that the.deceased Archana made a declaration to her
father, complainant, Dilip (PW-5) on 15th July, 2003 i.e. a day
prior to the lodging of FIR on 16th July, 2003.
E 17. While dealing with so, the Sessions Judge observed
qs follows:
"10 .. , .................................. Therefore, what remains
for scrutiny is dying declaration of Archana recorded by
F Pusalkar on 16. 7. 2003.
11. Before .dealing with dying declaration recorded by
• Pusalkar, it will be just and proper to see what Dilip has
stated in his evidence. According to him after coming in
Civil Hospital at Satara on 15. 7. 2003 he is not asking
G
Archana as to how she sustained burn injuries. Archana
on her own accord disclose him that accused was asking
for sexual intercourse second time on 14. 7. 2003 and,
when she refused for it, he set her on fire. Without knowing
as to what statement she made previously, it is his say
H
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 109
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
that Archana on her own accord expressed that accused A
had forced her to make statement about burn injuries
sustained by her accidentally that is why this witness had
been to Police Station on the very day to file application.
He requested police to record statement of Archana
again. He is not filing any complaint with police on said B
day against accused. Complaint is filed by him on
16. 7. 2003 it was taken to station diary at about 1. 00 noon
or about. Whereas dying declaration recorded by
Pusalkar in between 12.40 to 1.00 noon. It is denied by
Dilip that he was present when Pusalkar recorded dying c
declaration. Statement of Dilip is recorded by police on
18. 7.2003. Dilip denies that he made statement before
police about his presence at the time when Pusalkar
recorded dying declaration on 16. 7. 2003. Statement was
pointed out by way of contradiction (Exh.36) wherein it is 0
stated by this witness that as per his request .:;tatement
of Archana was re-recorded on 16. 7. 2003 and she made
such statement in his presence. It means that at the time
of filing complaint he was aware of the fact as to what
Archana disclosed before Pusalkar in her subsequent E
dying declaration. In complaint filed by Dilip Exh.24 on
16. 7. 2003 it is no where stated that accused intended to
have sexual intercourse for second time on 14. 7.2003
and when she refused for it, he set her on fire. In
complaint it is stated by Dilip that Archana herself set on
fire due to ill-treatment to her. Thus prosecution itself is F
coming with two-fold cause about sustaining burn by
Archana namely an attempt to commit suicide by
Archana by setting fire to herself, at the same time
causing burn injuries to her by her husband for the
reasons stated above. If at all Archana would not have G
stated to her father as to how she _sustained bur injuries,
one would not have found contents in F. I. R. that in an
attempt to commit suicide, Archana sustained burn
injuries. Attempt is made by Dilip Kale to explain about
state of his mind, when he filed complaint with police on H
11.0 SUPREME COURT REPORTS [2014] 8 S.C.R.
A 16. 7. 2003. One cannot attach much importance
explanation at belated stage. Prosec'Jtion itself is coming
with the case that Oilip came to know on 14. 7.2003 itself
from Hanmant that accused set her on fire. Then on next
day he is coming to Hospital where according to him
B Archana disclosed him that accused set her on fire. He
is insisting police ·to re-record dying declaration of
Archana on 15.7.2003 itself. Under these circumstances
omission in complaint by Oilip of homicidal death of
Archana amounts to making improvement. The
c contradictory version in complaint is that she sustained
bum injuries, in an attempt to commit suicide, is quire
inconsistent facts. Prosecution thus itself is coming with
two possibilities namely suicidal death by deceased
Archana, at the same her homicidal death. Question is
D to whom benefit of such inconsistency will go. Certainly
it will go in favour of accused and not prosecution. Now
let us see dying declaration recorded by Pulsakar.
12. Pulasakar was aware of the fact that dying declaration
was already recorded by his colleague on 14. 7.2003.
E Therefore he did not read earlier dying declaration of
Archana. He came to know from his colleague Mirza that
Archana in her statement state<;[ that she sustained bum
injuries when her saree came into contact with gas-
burshen. According to him he did not put question to
F Archana as to what statement she made previously.
When no question was put to Archana about it, then how
question No.9 finds place in 0.0. recorded by Pusalka.
There is specific question to her as to why she did not
state about act of accused when her statement was
G recorded on 14.7.2003 when question was not put to
Archana in suggestive form naturally it was expected to
. answer that due to some reason she made statement.
Then answer to it is that her husband and his cousin
brother pressurised her to make statement on 14. 7.2003.
H Now the statement of Archana.recorded by Pusalka is
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 111
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
mostly in question and answer form up to 9th question. A
Questions are objective in nature. Question No. 5 is put
as to whether there was any quarrel between her and
other person. It means that Pusalkar pre-supposes that
there was quarrel. Answer to this question no doubt is that
there was no any quarrel as suggested to Archana. Now B
question No.8 is as at whose instance she was making
this statement. Now in fact this question does not relate
to cause of death of a person, but some sort of enquiry
with deceased in form of suggestive question. Answer to
it which is brought on record is that Archana had not C
made statement at instance of any other person. I do not
understand as to why where was doubt in mind of
Pusalkar to put such question. At this stage at the cost
of repetition, I may point out here about an attempt made
by some person to extinguish fire. He is Hanmant who
0
is coming with such case. He states before us that
Archana prayed him to save her from fire. If at all
Hanmant would have present there, then Archana would
have disclosed his name. In dying declaration what is
stated is that one person came but seeing accused he
went away. It is not say of Hanmant that in Hospital E
Archana disclosed him that accused set her on fire,
when she refused to have sexual intercourse for second
time. It was specifically put to him whether he asked Dilip ·
to approach police to re-record D.D. Said statement is
made by this witness before police, but he denies that F
he made such statement and contradictory version is
brought on record with held of I. 0. examined in this
case. It is stated by this witness that he asked Dilip to
inform police to record statement of Archana again. It is
not stated by Pusalkar in his examination-in-chief that G
father of Archana was present when he recorded D.D.
However, we find from D.D. that wh~n Pusalkar recorded
D.D. no relative of Archana was present. All these facts
clearly suggest that D.D. recorded on 16.7.2003 by
Pusalkar must be effect of prompting to her. Questions H
112 SUPREME COURT REPORTS [2014] 8 S.C.R.
A are also put by Pusalka to Archana in such way so as to
expect answer "Yes" or "No". There is also doubt as t
whether Archana really must be in position to make
statement.
B 13. Pusalkar states in para 4 of his deposition that entire
body of Archana was covered with net. He states that no
I. V. was on when he saw Archana. He then states that
before giving opinion by Dr. about condition of Archana,
Dr. read pulse of Archana. He also checked her chest
with stethoscope. Dr. Nalawade states in his deposition
c at Exh.31 that he did not see pulse of Archana. He also
did not see her B.P. He then states that I. V. was on to
Archana when Pusalkar recorded her statement in his
presence. However, Dr. Nalawade thus took the matter
as routine. It appears to be somewhat peremptory
D approach, when D.D. was recorded by Pusalkar. Shri B.D.
Kadam, learned Adv. for defence pointed out
observations in Uka Ram vs. State. pf Rajasthan reported
in 2001 (2) B. Cr. C. (SCC) 492 wherein it is observed as
below:
E
"It has always to be kept in mind that though a
dying declaration is entitled to great weight, yet it
is worth-while to note that as the maker of the
statement is not subjected to cross-examination,
F it i~ essential for the Court to insist that dying
declaration should be of such nature as to inspire
full confidence of the Court in its correctness. The
Court is observed to rule out the possibility of the
statement being the result of either tutoring,
G prompting, or vindictive or product of imagination.
Before relying upon a dying declaration, the Court
should be satisfied that the -deceased was a fit
state of mine to make the statement. Once the
Court is s_atisfied that the dying declaration was
true, voluntary and not influenced by any
H
SURYAKANT DADASAHEB BITALE v. DILIP BAJRANG 113 -
KALE [SUDHANSU JYOTI MUKHOPADHAYA, J.]
extraneous consideration, it can base its A
conviction without any further corroboration as rule
requiring corroboration is not a rule of law but only
a rule of prudence."
18. The scope of revisional jurisdiction was considered B
by this Court in K. Chinnaswamy vs. State of A.P., AIR 1962
SC 1788 and held as follows:
"Where the appeal Court wrongly, ruled out evidence
which was admissible, the High Court would be justified
in interfering with the order of acquittal in revision, so that C
the evidence may be re-apprised after taking into
account the evidence which was wrongly ruled out as
inadmissible. But the High Court should continue itself
only to the admissibility of the evidence and should not
go further and appraise the evidence also." D
19. In Akalu Ahir & Others vs. Ramdeo Ram, AIR 1973
SC 2145=(1973) SCC 2 583, this Court held that where the
material evidence have been over looked by the Trial Court or
Sessions Court, the High Court in revisional jurisdiction can E
interfere with the finding of acquittal.
20. In the present case the Session Court has not ruled
out any evidence which was admissible. Both the dying
declarations were considered in proper prospect. The material
evidence has not been overlooked by the Sessions Court, as F
apparent from the discussions made by Sessions Judge and
quoted above. In these circumstances, the High Court was not
justified in interfering with the order of acquittal in a revision.
21. In State of Punjab vs. Parveen Kumar, (2005) 9 SCC G
769, this Court noticed different versions of incident in three
several dying declarations which created doubt about their
truthfulness. One dying declaration was made by the deceased
before the uncle, second before the Executive Magistrate and
third before the SI, Police. This Court having noticed the H
114 SUPREME COURT REPORTS [2014] 8 S.C.R.
A inconsistency with each other, sin.ce versions disclosed in those
dying declarations were quite different, affirmed the order of
acquittal recorded by the High Court.
22. In the present case, in fact, there are three dying
declarations. One was made before the Executive Magistrate
8
on 14th July, 2003, the second alleged to have been made by
the deceased Archana before her father, Dilip (PW-5)-
complainant on 15th July, 2003 and the third dying declaration
was made in a format before the Executive Magistrate on 16th
July, 2003. The complainant, Dilip (PW-5), father of the
C deceased in his FIR dated 16th July, 2003 had not stated that
her daughter Archana alleged that the accused was asking for
intercourse second time on 14th July, 2003, and when she
refused the accused sprinkled kerosene on her and put her on
fire. The prosecution could not explain as to why the second
D dying declaration was taken on 16th July, 2003, though in the
said declaration the deceased Archana had stated that she had
not called for the second dying declaration. All this aspect has
been discussed by the Sessions Judge who acquitted the
appellant.
E
23. In the present case, the view taken by the Sessions
Judge is neither unreasonable nor perverse. It is possible
reasonable view based on the evidence on record. In the
.circumstances, the High Court was not justified in setting aside
F the order of acquittal.
24. For the reasons aforesaid, we set aside the impugned
judgment and order dated 18th October, 2007 passed in
Criminal Revision Application No. 321 of 2004 and affirm the
order passed by the Sessions Court. The appeal is allowed.
G
Bibhuti Bhushan Bose Appeal allowed.
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