The Supreme Court has held that when all accused are charged with murder under Section 302 read with Section 34 of the Indian Penal Code (IPC) on the allegation of having acted in furtherance of their common intention, one accused cannot be convicted individually under Section 302 IPC if the others are acquitted, unless an independent charge under Section 302 IPC simpliciter was framed against that accused.

The Court made the observation while acquitting a woman, Sau Kamalbai Waman Patil, who was convicted by the Bombay High Court's Aurangabad Bench for allegedly murdering her daughter-in-law, Sunitabai, by setting her on fire.

A bench of Justice Ujjal Bhuyan and Justice Atul S Chandurkar observed that the High Court erred in convicting the appellant alone under Section 302 of the Indian Penal Code, 1860 (IPC/now Section 103 of the Bharatiya Nyaya Sanhita, 2023/BNS), as she was never separately charged under that provision. The Court also found that the sole dying declaration relied upon by the High Court was not corroborated, even though the victim's other dying declarations were inconsistent with it.

It is alleged that the victim was ill-treated by her husband (A1), her father-in-law (A2), her mother-in-law (A3, the appellant) and her brother-in-law (A4) because she had no child from the marriage, and that there were also dowry demands. In 2005, all the said accused persons set the victim on fire allegedly in furtherance of their common intention, due to which she died.

Subsequently, all four accused were charged under Sections 498A, 342, 406 and 302 read with Section 34 IPC (now Sections 85, 127(2), 316(2), 103, 3(5) of the BNS. The Sessions Court acquitted all of them, noting inconsistencies in three dying declarations and the non-examination of the witness who took the victim to the hospital.

Thereafter, an appeal was filed before the High Court upheld the acquittal of A1, A2 and A4 and of all accused on the other charges. However, the High Court maintained the acquittal of the other three accused while convicting the appellant alone under Section 302 IPC

Aggrieved by the High Court's ruling, the appellant approached the Supreme Court.

Before the Supreme Court, the appellant argued that the High Court ignored the need to corroborate the said dying declaration (Exhibit 56) and that, in reversing an acquittal, the material relied upon had to be beyond doubt.

Per contra, the prosecution argued that the dying declaration was voluntary and, read with other evidence including seizures and the Chemical Analyser's report, it was sufficient to sustain the conviction. The fact that the appellant was alone at home when the incident occurred, was also pointed out before the bench.

The Supreme Court first examined the legality of convicting only one of four accused charged with common intention. It noted that the High Court relied on the defence statement that the appellant alone was present at home with the victim. On this, the bench observed as follows:

“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 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.”

It added that holding the defence arguments sufficient to convict her under Section 302 would amount to making out a new accusation with which the appellant was never charged. “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,” it observed.

Reliance was placed on Krishna Govind Patil v State of Maharashtra, wherein it was held that if three of four accused charged under Section 302 read with Section 34 are acquitted, the fourth cannot be convicted on that basis. It further explained that acquittal, whether on rejection of the evidence or by giving benefit of doubt, would mean that they did not take part in the offence.

Referring to the aforesaid, the bench observed as follows:

“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.”

The bench further said that it had assessed the evidence on record independently. It referred to the principles on multiple dying declarations in Abhishek Sharma v State (Govt. of NCT of Delhi) that when inconsistencies are found between various dying declarations, other evidence available on record may be considered for corroboration.

The High Court had discarded the dying declarations (Exhibit 44 and 48) in which the victim had said that A1 and A4 tied her hands and legs, the appellant poured kerosene and A2 set her on fire. The Court noted that this finding was not challenged by the prosecution. It held that the High Court ought to have corroborated the dying declaration (Exhibit 56) it relied upon.

The bench found that the person who took the victim to the hospital, was a material witness since he was the first person who went to the house of the accused, rescued the victim and thereafter brought her to the hospital. He was present when the victim's story was noted in Exhibit 56, yet the prosecution did not examine him and gave no reason. The Court found that he would have been a material witness to prove the burnt piece of rope with which the victim was allegedly tied.

It also noted that the victim was about thirty years old and the appellant about sixty, and held that the age difference “was also a relevant factor to be considered especially while reversing the appellant's acquittal.”

Further, the bench noted that the High Court had given importance to the appellant's failure to explain how the victim suffered burn injuries. The bench rejected this reasoning, holding that Section 106 of the Indian Evidence Act, 1872 (IEA, now Section 109 of the Bharatiya Sakshya Adhiniyam, 2023/BSA) “would come into play only after the prosecution discharges its initial burden pointing to the involvement of the concerned accused.” Relying on Anees v State Govt. of NCT, the bench noted that Section 106 cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused.

The Court also noted that after reversing the acquittal, the High Court did not hear the appellant on sentence as required under Section 386(a) of the Code of Criminal Procedure, 1973 (CrPC, now Section 427 of the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS) .

The bench concluded that the Sessions Court was correct in giving the appellant the benefit of doubt.

“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.”

In the light of aforesaid, the Supreme Court quashed the High Court's judgment and acquitted the appellant, directing that she must be set free forthwith.

Appearances:

For Appellant: Mr. Dilip Annasaheb Taur, AOR; Mr. Amol V Deshmukh, Adv.

For Respondent: Mr. Raman Yadav, Adv.; Mr. Siddharth Dharmadhikari, Adv.; Mr. Aaditya Aniruddha Pande, AOR; Mr. Shrirang B. Varma, Adv.; Ms. Deepsea Chakraborty, Adv.