# TARACHAND DAMU SUTAH v. THE STATE OF MAHARASHTRA

- **Citation:** [1962] 2 S.C.R. 775
- **Court:** Supreme Court of India
- **Decided:** 1959-11-02
- **Case number:** Criminal Appeal No. 341 of 1960
- **Bench:** T.L. Kapur, K. SunHA RAo, M. HrnAYA'l'ULLAH, J. C. Shah, RAGHUllAR DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tarachand-damu-sutah-v-the-state-of-maharashtra-2294
- **Pages:** 19

## Headnote

Appcal-O':a_rye uf murder---;Convictlon bY &•Iii°''." Juu,ye
for culpable homicide not amuunl•ny to murder-lbgh Cuu1t. °''
appeal cunvicting for n!'llrdcr and pa&siny sc1tte-ncc of deatlt-li<?ht
uf appeal-Acquittal, Aicaning of-Practice in appeat-Cunst1tu·
lion of India Art. 134 (1) (a).
The appe!lant was tried for an offence under s. 302
Indian Penal Code for the murder of his wife. The evidence
consisted mainly of the uncorroborated dying .declaration of
the wife. The Scssious Judge accepted the evidence but
convicted the aopellant under s. 304 Part I Indian Penal Code.
On appeal by the State the High Court convicted the appellant
of an offence under s. 302 Indian Penal Code and sentenced him
to death. The appe!lant contended that he had a right of appeal
to the Supreme Couri under Art.
134 (I) (a) of the Constitution and that his conviction was bad.
Held, that the appel!aut had a right ofappeal"to the
Supreme Court under An. 134 (1) (a) of the Constitution.
The conviction of the appellant under s. 304 Part I of the
Indian
Penal
Code by
the Sessions
Judge amounted
to an acquittal of the offence under s. 302 and the High
Court had reversed this order of acquittal and sentenced theappellant to death. The word "acquittal" in Art.
13+ (1) (a)
did not mean that the trial must have ended in a complete
acquittal of the charge, but acquittal of the offence charged
and conviction for a n1inor offence was included in the word
"acquittal".
Kishan Singh v. 'l'he King Emperor, (1928) L. R. 55,
I.A. 390 relied on.
Per Kapur, Subba Rao and Shah, JJ. The appellant
was rightly convicted and sentenced by the High Court. It
was legal to found a conviction on the uncorroborated dying
declaration. The dying declaration had been accepted both by
the Sessions Judge and by the High Court and there was
nothing in the evidence on the record which detracted from
the findings of those courts in regard to the correctness or the
propriety of this dying declaration.
1961
May, 4.
1961
Tarac1iantl
Damu Sutar
v.
The State of
Maharashtra.
Kapur J.
776
SUPREME COURT REPORTS
[1002]
Kltushal Rao v: The State of Bombay, (1958) S.C.R. 552,
referred to.
Per Hidayatullah and Dayal, JJ. Jn an appeal under
Art.
134 (I) (a) of the Constitution the Supreme Court
assessed afresh the evidence on record and did not follow the
practice in appeals by special Leave under Art. 136 that
concurrent findings cJf the Courts below could be interfered with
only when ~peCial circumstances existed. In the circumstances
of the present case it was not safe to rely on the dying declara.
tion and the appellant was entitled to be acquitted.

## Text

2 S.C.R.
SUPREME COURT REPORTS
775
TARACHAND DAMU SUTAH
v.
THE STATE OF MAHARASHTRA
(,T.L. KAPUR, K. SunHA RAo, M. HrnAYA'l'ULLAH,
J. C. SHAH and RAGHUllAR DAYAL, JJ.)
Appcal-O':a_rye uf murder---;Convictlon bY &•Iii°''." Juu,ye
for culpable homicide not amuunl•ny to murder-lbgh Cuu1t. °''
appeal cunvicting for n!'llrdcr and pa&siny sc1tte-ncc of deatlt-li<?ht
uf appeal-Acquittal, Aicaning of-Practice in appeat-Cunst1tu·
lion of India Art. 134 (1) (a).
The appe!lant was tried for an offence under s. 302
Indian Penal Code for the murder of his wife. The evidence
consisted mainly of the uncorroborated dying .declaration of
the wife. The Scssious Judge accepted the evidence but
convicted the aopellant under s. 304 Part I Indian Penal Code.
On appeal by the State the High Court convicted the appellant
of an offence under s. 302 Indian Penal Code and sentenced him
to death. The appe!lant contended that he had a right of appeal
to the Supreme Couri under Art.
134 (I) (a) of the Constitution and that his conviction was bad.
Held, that the appel!aut had a right ofappeal"to the
Supreme Court under An. 134 (1) (a) of the Constitution.
The conviction of the appellant under s. 304 Part I of the
Indian
Penal
Code by
the Sessions
Judge amounted
to an acquittal of the offence under s. 302 and the High
Court had reversed this order of acquittal and sentenced theappellant to death. The word "acquittal" in Art.
13+ (1) (a)
did not mean that the trial must have ended in a complete
acquittal of the charge, but acquittal of the offence charged
and conviction for a n1inor offence was included in the word
"acquittal".
Kishan Singh v. 'l'he King Emperor, (1928) L. R. 55,
I.A. 390 relied on.
Per Kapur, Subba Rao and Shah, JJ. The appellant
was rightly convicted and sentenced by the High Court. It
was legal to found a conviction on the uncorroborated dying
declaration. The dying declaration had been accepted both by
the Sessions Judge and by the High Court and there was
nothing in the evidence on the record which detracted from
the findings of those courts in regard to the correctness or the
propriety of this dying declaration.
1961
May, 4.
1961
Tarac1iantl
Damu Sutar
v.
The State of
Maharashtra.
Kapur J.
776
SUPREME COURT REPORTS
[1002]
Kltushal Rao v: The State of Bombay, (1958) S.C.R. 552,
referred to.
Per Hidayatullah and Dayal, JJ. Jn an appeal under
Art.
134 (I) (a) of the Constitution the Supreme Court
assessed afresh the evidence on record and did not follow the
practice in appeals by special Leave under Art. 136 that
concurrent findings cJf the Courts below could be interfered with
only when ~peCial circumstances existed. In the circumstances
of the present case it was not safe to rely on the dying declara.
tion and the appellant was entitled to be acquitted.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 341 of 1960.
Appeal by special leave from the judgment
and order dated July 20, 1900, of the Bombay High
Court in Criminal Appeals Nos. 488, 420 of 1960
with Review Application Nos. 555 and 641 of 1960.
G. C. Mathur, for the appellant.
B.R.L. Iyengar and D. Gupta, for the respondent.
HJ61. May 4. The Judgment of Kapur, Subba
Rao and Shah, JJ , was delivered by Kapur, J., and
the judgment of Hidayatullah and Dayal, JJ., was
delivered by Dayal, J.
KAPUR, J. This is an n.ppeal against the
judgment ~nd order of the High Court of Bombay
imposing the sentence of death in appeal by the
State against the order passed by the Sessions
Judge, Dhulia. The facts of the appeal are these:
The appellant,
in about
1950, married
Sindhubai the
daughter
of Chandrabhagabai.
Sindhubai who is the deceased had read up to the
7th. Standard. The appellant and Sindhubai were
residing in a one room tenement in a house belonging to one Tavar pleader in which there are in all
12 to 15 tenements. The tenement of the appellant
was not very far from that of the appellant's
cousin Shantabai who was residing with her
husband Pandu Geuda
and
the
house
of
2 S.C.R.
SUPREME COURT REPORTS
777
Chandrabha<rabai was about a furlong away from
that of the ;ppcllant. The relations between the
appellant and the tfoccased were normal for some.-
time but about two years before the occurrence
differences had arisen and there were frequent
quarrels between them. A ehild of the marriage
was born about 1-1/2 years before the occurrence.
The deceased was a frequent visitor to her mother's
house to which the appellant took objection. The
appellant had stopped giving her the necessities of
life including foodgrains etc. About a week before
Diwali the appellant gave her a
beating.
The
deceased used to have her meals with her mother
and the appellant with his cousin Shantabai and
the daughter of the marriage Urmila stayed with
the mother of the deceased during the day time.
The occurrence was on the Bhaubij day i. e.
November 2, 1959 betwee.n 1.30 and 3.30 in the
afternoon. After having her meals at her mother's
house the deceased returned to her husband's house
and went to sleep in the afternoon. It is stated
that while she was sleeping the appellant gave her
a beating and after sprinkling Kerosene oil on her
clothes, set fire to them. The deceased with her
clothes burning went in the direction of the house
of Shantabai but fell down in front of it and was
almost naked when some body covered her body
with a dhoti.
Chandrabhagabai received information, it is
stated, from her neice Suman about this fact and
Chandrabhagabai ran to the spot and found her
body burnt.
The cousin, Shantabai and her
husband Pandu Genda also arrived and on enquiry
by Chandrabhagabai the deceased told her that her
. husband had set fire to her clothes affor sprinkling
kerosene oil on her. By this time a police constable informed the Police Station which was nearby
and an ambulance car was sent and the deceased
was taken to the Civil Hospital, Dhulia at about
4-15 P.M. 8he wa8 examined by Dr. Javeri who
1961
Tarachanil
Damu Sut~r
v.
1'he State of
lvfaharaskl.'a
Kapur J.
19.01
TtJrachand
Damu Sutar
v.
The Stale of
Maharashtra
KapurJ.
778
SUPREME COURT REPORTS
[1962)
treated her and on his enquiry the deceased told
him that hPr lmshaud.hacl set fire to her clothes
after sprinkling kerosene oil on her clothes. Dr.
Jav!·ri then informed the police and advised that a
dying declaration he recorded. At about 5-30 P.M.
a Magistrate Mr. Mhatre recorded the statement of
the deceased but she died at 8-15 P. M. on the same
day in the hospital.
The defence of the appellant was that of
alibi, in that he was at work on the house of
Mulchand Rajmal at Nehru Nagar which :was being
built and that he was entirely innocent of the
offence. The trial court found that it was the
appellant who had set fire to the clothes of the
deceased after sprinkling kerosene oil; that the
appellant had the intention of causing such bodily
injury to the deceased as was likely to cause death
and it therefore convicted the appellant of an offence under s. 304 Part I and sentenced him to three
years' rigorous imprisonment and a fine of Rs.JOO/-.
The learned judge accept4ld the testimony of the
mother Chandrabhagabai as to the dying declaration and. also that of Dr. Javeri and finally he
accepted the dying declaration recorded by the
Magistrate which was in the form of questions and
answers. In all her dying deelarations the deceased had accused the appellant of setting fire to her
clothes and thus causing her severe burns.
The State took an appeal to the High Court
which convicted the appellant of an offence under
s. 302, Indian Penal Code and sentenced him to
death.
Against that judgment and order the
appellant applied for certificate to appeal to this
Court under Art. 134 (I) (a) but the certificate was
refused and this Court ga vc special leave under
Art. 136 of the Constitution.
The first question for decision is whether the
appellant had a right of appeal to this Court under
Art. 134 (1) (a) and the decision of that must depend
2 s.c.R.
SUPREME COURT REPORTS
779
upon the construction to be put on the language
used in that Article the relevant portion of which is
as follows:
134 (1) "An appeal shall lie to the Supreme Court
from any judgment, final order or sentence in
a criminal proceeding of a High Court in the
territory of India if the High Court.-
( a) has on appeal reversed an order of acquittal of
an accused person and sentenced him to
death."
If the High Court reverses an order of acquittal of an accused person and eentences him to death
an appeal shall lie as of right to this Court under
the Article.
The argument raised on behalf of the
appellant was that as the appellant was acquitted
of the offence of s. 302 and was convicted under
s. 304 Part I it W(lS a case of reversing an order of
acquittal. The argument on behalf of the State was
that the word acquittal meant complete acquittal.
The decision of this must depend upon the construction of the word "acquittal". If a person is acquitted of the offence charged and is convicted of a
lesser offence, as in the present case, can it be said
that he was acquitted and the High Court had on
appeal reversed the order of acquittal." In our
opinion the word "acquittal ? does not mean
that the trial must have ended in a complete
acquittal of the charge but acquittal of the offence
charged and conviction for a minor offence (than
that for which the accused was tried) is included in
the word "acquittal". This view has the support of
of a judgment of the judicial Committee of the Privy
Council in Kishan Singh v. The King Emperor OJ. In
that case an accused person wa,s tried by the Sessions
Judge under s. 302 of the Indian Penal Code on a
charge of murder but was convicted under s. 304
for culpable homicide not amounting to murder, the
Court having power to do that under s. 238 (2) of
the Criminal Procedure Code. He was sentenced to
(I) (1,28) L.R. 551.A, 390,
1961
Tarachand
Darrvu8utar
v.
The State of
Maharashtra
Kapur J.
780
SUPREME COURT REPORTS
[1962]
five years' rigorous imprisonment. No acquittal of
1961
the charge under a. 302 was recorded.
There was
no appeal to the High Court by the then local
Tarnclmnd
Government but it applied for rovision under s. 439
Da1nu l:;uta,:r
\",
on the grounds that the 1ippellant should have been
The Sta.to of
convict!'d of mnrclcr and tho sentence was inadeA!_aharasllfrq
·quat.:.
The High Court com-iot.rd the a.ppellant of
_
murder and scntencocl him to death. On appeal to
Kapur J. =- the Privy Council it was lleld that the finding of
-
- t.he trial court was to be regarded as an acquittal
on the charge of nmrdor and that under s. 439 (4)
Criminal Procedure Code the word "acquittal" did
not mean complete acquittal.
At page 397 Sir
Lancelot. Sa11ders01i observed:
"Their LOrdships, however, do think it
necessary to say that if the learned Judges of
the High Court o( Madras intended to hold
that the prohibition in s. 430 sub-s. 4 refers
only to a· ca:s(\ where the trial has ended in a
compll·te: acquittal of the accused in respect
of all charg<'R or· offences,
and not to ease
'such as the present, "·here tho accused has
hem1 acquittocl of the charge of murder, but
convict<'<! of the minor offence of nulpable'
homicide not amounting to murder,
their
Lordships a1·c nnabli; t.o agrre with thoi.t part
nf t.heir deciAion.
Tho words of t.hc AUh-sect ion arc clear anrl t.her(' can he no clou1it as'to
t.Jwir mc-'aning.
There is 110 justification for
the qualification which the learned Judges in
the cited caAe" attaehed to the s1tb-section."
\Ve are in respectful. agreement with the interpretation pnt on the '~ord "acquittal" by the Judicia.l Committee of the Privy Council and the word
"acquittal" therefore docs not meitu that the trial
must h:we ~ncled in a complcto acquittal !mt would
aliso inclmln the ca.so whoro 1111 acCt!J'!Nl has been
a.oqnitted of the charge nf mnrder ian'd has been
convicted of a les:.er offence. In that "view .of the
matter the appelhnt was entitled to a certificate
.
~;(
·~ -
2
S.C.R. SUPREME COURT REPORTS
';Sl
under Art. 134 (1) (a) as a matter of right and this
appeal must be treated as if it is under that provision of the Constitution.
The facts of this <ipp<'al have boon set out
nbovo.
In suppoi't of the prosecution the evidcnc(l
m:\inly, if not solely, consists of the dying declarations.
The first ,]ying deelarntion was made to the
mother Chandrahhagabai as soon as she came to the
place where tho deceased was lying and in answer
to her question "tis to who had done it,"
the reply
was that ";twas clone by her husband; also that the
husband had set fire to her clothes." In crossexamination she stated that at the time when this
statement was made by the deceBsed Shantabai and
her lrnsband Pandu Genda were present. A suggestion W<tS made to her that the rlcccasecl implicated
the appellant at the inRtancc of Chanclrablmgahai !mt
she repudiated this suggestion and Loth tlw trial
court and thi;i High Court have accept1>d thP eorrPctncss of this dying declaration and also that it wa~
not prompted by the mother Chandrabhagabai.
Beyond a mere suggPstion in the' cross-examination
there is no material to support the' rontrntion of
prompting by the mother.
A Rimiln,r Rtatmncnt Mensing t.hP appellant of
setting fire to her was made by the deceased to the
Doctor (Dr. Javeri) who 'lskcd the clccC'ascd as to
how she got the burns and her reply was that lwr
husband had sprinklecl kerosene oil on her and hacl
applied a matehsbc·k to her C'lothes. This statement
was also accepted by the High Court and we find
110 reason to differ from that conclusion. The third
dying declaratfon was made in the pn'sonce of and
was recorded by Mr. Mhatrc, a Magistrate at about
5-30 P.M. in the presonrc of Dr. Javcri "·ho certified
tlrnt the cfoceased was in a fit stato of mind to make
the sfa'tcment. The Magistl'atu asked her certain
qu()'l!tions which are set out in detail and lie took
down the answers and his evidence is that the deceased understood the questions 11nd replied to them. He
1961
Tarachand
Damu S11tar
v.
The State of
Maharashtra
KapurJ.
1961
Tarachand
Damu Sutar
v.
The Statt of
Maharashtra
KapurJ.
782
SUPREME COURT REPORTS
(1962]
made a record of the questions and answers but that
record was not signed by her nor her thumb impression taken on it because her hands were badly burnt.
This examination took about an hour.
This dying
declaration was held by the trial Court to have been
made without the help or prompting of anybody
and according to Chandrabhagabai she was not
present a"t the time. The learned Trial Judge held
that the dying declaration was "freely given without the influence of anybody. It was not made
under influence of any personal feelings."
The
High Court also accepted the correctnesi; of this
dying declaration and there is no evidence on the
record which would in any way detr1t0t from the
finding of the trial Court or of the High Court in
regard to the correctness or tne propriety of this
dying declara t.ion.
The argument raised before us was two fold: (1)
that the appellant was not present at the place of
occurrence at all and (2) that it W'<S a case of
suicide. There are no cogent grounds which would
lead
to
the
conclusion
that the
deceased
wanted
to
commit
suicide
nor have any
circumstances been
shown to us which would
lead to any such conclusion. Even though it may be
true that the relations between the husband and the
wife were strained so much so that the husband had
almost refused to maintain the deceased and was
not prepared to give her even food there is no indication that the deceased was so worked up as to
have lost her self-control so as to commit suicide.
Certain other circumstances as to the absence of
any kerosene oil on the clothes of the appellant or
the absence of kerosene oil on the bedding have
been pointed out but in the circu1!1-st?'~ces of this
case those circumstances are of no s1gmf10ance. Both
the trial court and the High Court have found that
the deceased had died as a result of burns caused
by tre fire set to her clothes by
t~e appellant
who
had
sprinkled
kerosene
011
on
her.
2 S.C.R.
SUPREME COURT REPORTS
783
This is supported by the dying declarations against
the correctness of which no cogent reasons have
been given or suggested and a conviction ba~ed on
such evidence has been held to be sustainable
by this Court in Khushal Rao v. The State of
Bomhay<2l,
The plea of alibi was sought to be supported
by the evidence of Gangaram Sitaram a co-worker
of the appellant but his testimony was rejected by
both the trial Court and the High Court and
having gone through it we find no reason to differ
from that opinion.
In the result this appeal fails and is dismissed.
RAGHUBAR DAYAL, J. We agree that the
appellant had a right of appeal under Art. 134 (1)
(a) of the Constitution, but regret our inability to
agree with the view that the conviction of the
appellant under s.302, I. P. C., be maintained.
In appeals preferred under Art. 134 (l l (a)
of the Constitution, we are to assess afresh the
value of the evidence of record, and do not follow
the practice of this Court in appeals, by special
leave, under Art. 136 of the Constitution, that the
concurrent findings of the Courts below be not
interfered with, ordinarily, but be interfered with
only when special circumstances exist ..
We are of opinion that it is not s~.fe in this
case to bru;e the conviction of the appellant solely
on the dying declarations made by the deceased,
even though in law a conviction can lawfully be
based on dying declaration alone if the Court feels
fully satisfied about its giving a true version of the
incident.
The first dying declaration was made to her
mother, by the decef\sed. It was certainly natural
for the mother to question her daughter as to how
she got burnt. But that does not really mean that
(2) ( 1958) S. C. R. 552.
1961
Tarachand
Damu Sutar
v.
The State of
Maharll8htra
Kapur J.
Raghubar Dayal
J.
1961
Tarachand
n,,mu Sittar
v.
The State of
Mal!arashtra
Raghubar Dayal
J.
784
SUPREME COUH.T BEPORTS
(1962]
the daughter did state all wlmt the mother deposes.
Two points arise there, :md they are : (a) Did the
mother speak th:e trnth ? aud (b} Did the cfaughter
speak the trnth ? The• mother, P.W. J, admittedly,
has not good relations 11·ith her son-in-law. She
made discrepant statements. Tho Sessions Judge has
remarked, in paragraph I:! of his judgment, that
there were lot of discrepancies in the statemcents of
this witness. Reference ma,y be made to her
stating at one plaeo that when she used to request
the accused not to beat the tbughter, the result
was adverse and denying tho correctness of this
statement when questioned in cross-examination.
According to her, only she was sen~ away from the
room when the Magistrate recorded the dying declaration of the deceased in the hospital, indicating
that the accused and some othel'S continued to
remain in the room. This statement is not borne out
by Dr. Javeri or by the Magistrate. She expressed
ignorance about the deceased making a statement
to the
police.
The Sub-Inspector and Dr.
Javori deposed about her making such a st'.ttement.
:)he could not have been ignorant about it.
She deposes that the accused came to the
spot where Sindhubai, the deceased, lay injured,
about five minutes after. her arrival. She .knew that
he had set fire to Sindhubai's clothes after pouring
kerosene oil on her.
She did not question him
about it. She did not reprimand him. She did
not abuse him. She did nothing which could have
been normally expected of a mother knowing that
the accused had burnt her daughter. The explanation that she was sorrow-strikcn, lacks the· ring of
truth. Grief striken she must be, but that would
not have made her mute.
According to her, Sindhubai made this dying
declaration when Shantabai, cousin of the accused,
and her husband Pandu Geuda were present. These
witnesses have not been examined by the prosecution to corroborate her statement.
2 S.C.R.
SUPREME COUHT ItEPORTS
785
The other dying declaration relied on by the
Courts below
was made by
the deceased to
Dr. Javeri, on his c~sually questioning the deceased
as to how she got injured. It may be natur d, but we
have our doubts, for the Doctor to put such questions to the patient in agony, which had no re;il
connection with his duties as a medical man, and
such questioning cannot be said to have any com·
forting effect on the
patient. Such questioning
can be·nothing but idle curiosity which a Doctor
in that position should not evince. Any way, it
would not be a good precedent to rely on such a
statement to the Doctor in such ciruumst:i,nccs,
when the Doctor makes no record about it, even if
it be not required to be noted in the medico-legal
register. We would consider it safe not to rely
upon such a statement made to a casual question
by the Doctor, the details of which statement are
not clear.
The dying declaration made to the police has
been ignored, the Sessions Judge considering that
it was not made at all, or not made at the time the
Sub-Inspector deposed to have got the dying declaration from the cteceased. No significance attaches
to this dying declaration in any case when it was
recorded after the deceased had made a formal
dying declaration to the Magistrate.
The dying declaration to the MtLgistmte has
certainly been recortled with care.
'l'he relevant
statements made in this dying tleclaration are the
following:
"I am suffering injuries of burning. My
husband is my enemy. My husband has burnt
me. Kerosene was poured over my body and
a match stick was lighted. I was sleeping in
the house. He, i.e., my husband, beat me
and then burnt me.
I shouted, but nobody
came. He was ill treating me. He was harasssing me and was cansing me starvation for
1961
Tarachand
Dronu S,ufar
v.
'1
1he State of
~\faftara.shtra
llaylrnbar Dayal
J.
1961
Taraehand
Damu Sutar
v.
Tht State of
Maharashtra
Raghvhar Dayal
J.
786
SUPREME COURT REPORTS
[1962]
the last 8 days. I had complained about it to
Pandu Genda and Shanta Pandu. I did not
send any information to my parents about
the starvation."
The High Court has stated several times in
its judgment that Sindhubai was sleeping when the
accused set fire to her clothes. The panchnamaExhibit No. 14. prepared about the room, does not
show that the bedding had any oil sprinkled ovBr it
or that it got burnt. Quite a number of other
clothes were burnt, which need not have caught fire.
Absence of oil on the bedding is not consistent with
her statement that she was sleeping in the house
when the thing happened.
Th.is statement is also
not consistent with the next statement made by her
that her husband beat her and then burnt her. Her
statement that nobody came on her shouts because
the door of the house was shut, does not fit in with
her statement to the police in Exhibit 19 that the
accused ran away on his work after he had set fire.
The probability too is that. if the accused had set
fire to her clothes he would run away just after
setting fire as he could expect that the victim
would shout and that her shouts would attract
neighbours and persons passing by.
Even if the
door was latched for some time while the accused
remained there because he did go subsequently,
that does not explain the non-arrival of any person.
The
persons
could
have come and
could
have knocked at the door. It is really remarkable
that in this case not a single witness of the neighbourhood has come to depose anything in support
of the prosecution case.
There is no evidence at
all from an outside source.
The investigation
seemed to have revealed nothing whal!ever.
There
is nothing in the case to lend assurance to any
circumstance. Surely, this cannot be the result of
the :<ccused's influence on the witnesses or the
result of a general indination not to speak the
truth in the interests of justice, even when the
I •
2 S.C.R.
"SlJPREME COURT REPORTS
787
{Lccused commited the dastardly act of setting fire to
his own wife.
Their absence from the witness box
may be rlue to their not standing what they knew
to he untrue or clid not consider to be true.
It is always a tliffioult gnestion to sp('culate why
cfocoase.cl :wcuH<'<l a !'6l'(ain person of.committing the
crime, or why a witnoRs c1eJJOHes against a: person
with whom he ha8 no nstcnsih le eam:e of enmity or
why tho p'o lire, in the <lii;chargc·of its public dnty
should influonce persons to mako inaccurate stat.ements, when Courts come to tho conclusion that the
accusation or the cvidt>nce docs not appear to· be
true and t.11at there arc reasons ·1'0 suppose that the
police liad influenced the ·testimmiy of witnesses.
Anyway, the same· clifficu Hy <H?<•urn in the present
c·ase.
But. it is. dear tlmt. tlu' J't•lations between the
wife and the husl!nnd were st.rained to such an
exte1~t that, accmding to the prosecution, the
accused not .only st.'trVl'<l her, but. also set fire to
her clothes wit.h the intention to '<:ause her death.
Such a uL>nduc;i. of the husban1l cannot be on
account of ordinary domestic: unpleasantner;ses, but
must be the result of a vl:<ly i1cut.<l feeling of despar;1tion and n < \eHirn not to Jive >1ny more with his
wife. If such· we>rc the re lat.ion8 which one is in·,
dined to infor from what the prosechtiol! w;tnt~ the
Court t.o believe, it shou lcl not be difficult to imagine that the wife's motives fo ehargi'ng the husband
falsely may be equally strong. She too must have
been fed up with the misery of her life and might
have committed suicide and put an end to her life,
but when, as often happens, she was questioned,
she accused her husband of setting fire to her
clothes, not with a view to save herself from a
conviction for attempting to commit suicide, but
either on account of her feeling that her husband
was responsible for all her troubles and that -her
desparatc action was also due to the same cause or
out of malice. Any wf1y, a dying declaration is not
to be believed me'rely because no possible reason
'
1961
Tarashtind
Dam,,; Butar
v.
The Bt,are of
Maha.raahtrtt
Raghuhar Dayal
J.
1961
Tara~hand
Damu.Sutar
v.
The State of
Afaharnshtra
Rag/111/",,. Dayal
·'·
788
SUPREME COURT REPORTS
[1962)
can be given for accusing the accused falsely. It
can only be believed if there are no grounds for
doubting it. at all.
Apart from t.hc above considerations indicating that implicit reliance cannot he placed on the
dying declaration, tlwro arc other circumstances
which arlrl to tlrn foding of uncertainty about the
truth of the aecusation ma1le in the dying declaration.
The panehnama of the room shows that a
few shirts nnd olrl trousers and pieces of two sarccs
fay nenr the southern wall of tho room in a wet
and half burnt condition. There is no explanation
why such clothes should have been burnt. There
was no point in the accused pouring kerosene oil on
these clothes even if they just lay huddled near the
wall. If Sindhubai fell on the clothes lying there,
that may burn some of them, but will not explain
their getting wet. There is no suggestion that any-·
body had poured wnter over the burnt clothes in
order to extinguish the fire, because none came
there a~ all. In fact, Ranganath Sitaram, P.W. 6,
one of the Panchs, states that the burnt clothes
were also giving smell of rock oil.
The panchnama
furtl1 er n otcs :
"On the eastern wall, two feet height
from tho grounrl there is a black spot caused
due to the burning of tJw clothes and the
same is recont one."
Thero is no explanation why such a mark should
be there.
Sindhubai could not have stood opposite the
w:iJl and, oven if she did, there should have been
marks of burning along the length of her body
beside the wall and not at a certain spot only.
These two observations can be consistent only
with somebody deliberately setting fire ·to the
clothes and keeping some burning clothe~ beside
the. w&ll for a little time. The appellant, or whoever
'
'
2 s.c.R.
SUPREME COURT REPORTS
789
set fire to her clothes,
would not have done
this as he would have made a \'Pry quick exit. after
drenching Sindhubai with kei'osene oil and setting
fire to her clothes. Sindhubai does not. make env
statement about such a conduct of the accused i~
her dying declaration. The onl:v inference then
possible is that she herself did all this, in accordance
with her own inclinations. 'Vhv Rhe did this, one
camrnt say.
Sindhulmi r<•tm1w1l to lwr housn "'ith her
daughter after taking hPr mi1l-rlay mral at her
mother's housn aml s<mt l>1tt•k the daughter with
Usha. This is according to the statement of hC'r
mother. She brought the child, when, according
to her mother's
~tatcment, she expected her
husband to come to tho house after tu.king his meal
at his cousin's place.
The 1·1mduct is unusual, as,
ordinarily, the ehilrl used to remain with her
muternal grand-mother during foe day time, as for
some reason the accused probn bly felt aversion to
her. The conduct euu
be L'Onsistent with her
intention to !'Ommit suiride. She brought the
child to her pluc:e to fondle wit.h her for the last
t.ime and th1m Kl'nt h<>r baek to hN mot.her.
Sindhuhai'~ running towards t.J1e house of
Shantubui, her hu8hand 'H eousin, an<l not running
towards her mother'H place, also appears to be
unnatural. It may lw t.hat in such troublous
moments one need not be absolutely logical, but
it is expected to be instinctive that when in trouble
one thinks of one 'R relations who are expected to
be sympathetic:, anti holpful, on the occ~asion. It is
in the statement of her mother that. the route to her
house is diffnnnt from the paxsage to the house
of Shantabai. It may lw thnt the uecused did not
go to the house as expected, and went. away to his
job from his cousin's place. It was a day of
festival. Sindhubai might have felt this conduct
badly, set fire to her clothes, and then rnn towards
1961
Tam ch and
/lamu FJutal'
v.
T/ie St"te of
Maharashtra
Raghubar Da'1ia I
J.
1961
Tarachand
Drr.mu ,qutar
v.
'Jl/1r /{lair; nf
Mahnras.1d1:a
Ragl11f/;rn· JJnyal
.T.
790
SUPREME COURT REPORTS
(1962]
Shantabai's house where she might have expected
her husband to be present.
ThP timP of the incidt'nt though R::licl to be
betwcPn 1-30 and 3-30 P.11r., app0arn to lrnve bf'en
near about 3 0' i'lock.
The mot.h!'r staks to have
got informat.ion about th11t time. The police got
information at 11hout 3-4ii r.M., anrl the amhnlance
t.ook Rimllmbai to the hospital at -i-lii r.M.
The
ac:('uqed wnR not cxpect1·d to lJe at his house at 3
P.l\L
The learned Judgl's of the High Court rlid
not believe tho defence evidence about the accused
working at the house ofMulchan<l Rajmal from about
2 r.M. and to have gone to his house on receiving
information from onl' Daga, bccm1se Daga was not
examined, the Munim of the house-owner w1s not
examined ·md the register of workers was not
procluced. It is however tho case for the prosecu- '
tion that the accused used to go to work at 7 A.l\L,
to return at 12 O'clock and again go for work at 2
P.M., and then return at 6
P.M. Ch'1ndrabhaga,
thr mother of the deceased, deposes so.
ThPre
is thcreforr no good reason to think that the
areuserl ditl not go to his dut.y at 2 r.M., that day
as deposer! to hy D.W. 1.
Sinrlhuhai hNself stated in her statement to
the police th 'It the accnscrl, after setting her on
fire, ran away to his wol'k. If the time of the
incidl'nt he ~n.lculated from tho time the police
was informed, i. e., from 3-45 P.M., tho incident
would have taken place some time between 3 and
3-30 P.M., and the accused would not have been
at his house at that time. In fact, it appears
to us that it is to avoid this difficulty that
at some stage an attempt was made to time
the incident at about 1-30
P.M. The incident
could not have taken place before 2 P.M., as, in
that C'ase, information to the police would be very
belated and in the normal course of events, it is
not expected that Sindhubai would have tarried in
the room for long or that the persons who must
2 S.C.R.
SUPREME COURT REPORTS
791
have collected after her running towards Shantabai's
place and falling down there, would not have taken
steps to inform the polic·e without any undue
delay.
Tho motlwr's statPm0nt that Rindhu hai used
to toll her that if tJw ill-trentmPnt <'outinued, she
woul<l Hl'VCl' hnr comwd ion wit.h tlw aceuscd and
would earn her own living, would support tl1e view
that she had rcall:v got tri<'<l of her living witl). the
al'euscd and that this "nuld lmv<' 1n·ompt1'1l her to
atto1,11pt suicide.
If Sindhubai was not actually asleep wh<'n the
kerosene oil was poured on her, it docs not stand
to reason that she would not hav<'
marl0 anv
attempt to run away aml the possibility of th'e
accusml sucu1'-'>Rfully setting fire to her r.lothPR in tht•
course of the stniggle, would bo remote, 1iml oven
if he sucu0c<krl, it is a moot point whethel' lw too
woulrl n.it, ha1·1• lH'<'n Ring<'<I. if not hnmt.
Th<%' :tl'e tlw v!ll'ious considcratimrn which
m11lrn UR fo<'l 1lonhtf11l ahont tho truth of j,)w <lying
<ledal'ation nn<l tnke the vi<'W j,]111t tlw appell1int's
cmwietion on thn lusis of the rlving rfoelarat,ion
should not ho m::dntninerl.
·
·~
It nppr>ars from the High Court jurlgmont.
that tho r.1so put !1oforc it wns 'somet.ime after l.30
r. >!., the nccuso<l fatolwd tho room from iusidn and
while Sindhuhai was sleeping he pourcrl ~ large
quantity of kerosene oil on her person. Her clothes
became wet with that kerosene oil and before she
could struggle and get up he searched for a match
stick, lighted it and set Sindhu's clothes on fire'.
Such a cnse could not be made out from the dying
declaration recorded by the Magistrate. Sindhubai had said at first she was sleeping when it happened, but, in answer to the very next question,
she siid that her husband beat her and then burnt
her. If the burning followed the beating, there
could be no question of throwing keresene oil on
1961
Tar,,chand
Dn'!itU 1.9utar
v.
The St,,te nf
Jvfa/;araslitm
Rngll'lf/,ar D"71" I
J.
1%1
Tarachand
Damu l~utnr
v.
The Stnte nf
Maharashtra
Ttnr1huhar Drtynl
.1.
792
SUPREME COURT REPORTS
[1962]
her while asleep. No re<ison for this conduct was
stated. The Magistrate who cleared the doubtful points failed to elicit why this deed was
P.erpetmted.
}j'nrther, the searching for a match box is
very improbable thing. If.the accused had decided to set fire to his wifo, he would have got a
match box handy and if he clid forget about it and
had ,to search for it, that would give sufficient time
to Sindhuhai to make goorl her escape.
The aversion of Sinclhub'1i to tell the name
of her husband coulrl not have been on account of
any tender feeling for lwr husband, but was the
nntur.-il act of a Hindu marriPl1 woman not to tell
her husband's name. This aversion to tell the
name of her lmsbancl is no guarantee of the truth
of her subsequent statement accusing her lmAhanrl
of the crime.
We do not. find any justification for the following observation of the High Court, when considering the defence 1wirlence :
"The accused has led evidence and his
case is that he was not responsible for this
murder nt all. But in fo..t. lw was in the
houRe when 1.lw ineident took plae<e."
The High Conrt had made tlw .latter statemPnt as a statement of fact., though there was no
evidence t.o support it. Of conrn1', on the bnRis of a
dying declaration, the High Comt had alrPacly
held before discussing the defrnl'e 0vidence, that
the accused was responsible for tlw murder of hiR
wife. If tho defence evidence is to he adjudgl'<l
on t,Jie basis of the final finding of the C'ourt, therr
is no use for defence evidenl'{'. It has to be taken
into consideration before arriving ai a final finding.
The conduct of the act,nsed in travelling in
the same ambulance car and in remaining in the
2 S.C.R.
RUPREME COURT REPORTR
79::1
hospital is in his favour and is against the prosecution. The accused stated in his oxamination that
he paicl thc charges for the amlrnlanco cnr.
We would like to remark t.hat tho learned
.Jwlges who hcarrl the ap]W<l.l shonld not. have !101J.rd
it wlwn t.hcy, at the tim<" ol' :vlmitting it, folt so
strongly about the accnsccl lwinp: '1Tongly acquitted of the offence of nnmll'I' tlrnt tlwv asked 1-lw
Governmenh Pleader to look into the. papers to
fincl out wlwther it was a <'asc where tho Government won Id like to filn :m P.ppPal ag~i1rnt tlw ar'-
quittal, under s. 302, I.P.C. Govcrmnrnt clid fi]p nn
appeal against t,hat acquittal. W c clo not lmnw
whether it was at the suggestion of the Government Pleader or not. But, in these circumstam:Ps,
it w011ltl have bePn hotter exercise of discretion if
this appeal against tho acquittal had not hrPn
heard by the same Bench which, in a
wa~', sugg<'sterl the filing of the Government appt>al.
In fart,
to mn.h:c•
Rnc·l1 n. R11_ggnstio11,
;l,l•JH'tiT:-; tn lH'
\'f'!'~~
ahnnn:1al.
We are therefore o[ opinion that it iR not
satisfactorily proved that the appcI!ant eommitft•cl
the murder of hiR wife by setting fire to ltrr
clothes. We would therefore :i.Ilow the appeal,
set aHide the order of the Court. below am! at·quit.
the appellant of this offence.
BY COURT. In accordance with t.he opinion of
the majority, this appeal fail8 uncl is dismissed.
1961
Tarachand
!Ja1n1t S11far
v.
Th State of
kfa/ufroshfr;J
Rrtg/11cb11r /)11.1f11l
J.