Life term on one uncorroborated dying declaration: Supreme Court frees mother-in-law

Justice Atul S. Chandurkar and Justice Ujjal Bhuyan restore a Sessions Court acquittal, holding that the High Court could not convict one of four accused alone, charged jointly, on a single uncorroborated statement.

The Supreme Court on 5 November 2026 acquitted a woman whom the Bombay High Court had sentenced to life imprisonment for the murder of her daughter-in-law. The High Court had reversed her acquittal by the Sessions Court and convicted her alone, while upholding the acquittal of her husband and two sons.

A bench of Justice Ujjal Bhuyan and Justice Atul S. Chandurkar found two defects. The prosecution had charged all four accused jointly with murder, and no independent charge of murder had been framed against her. Her conviction also rested on one dying declaration that nothing else supported.

The judgment, written by Justice Chandurkar, is marked reportable. The bench ordered that she be set free forthwith if not required in any other case.

Three dying declarations, three versions

The appellant, Sau. Kamalbai Waman Patil, is the mother of Shamkant, the first accused. His wife, Sunitabai, lived with him and his parents. The other accused were his father Waman and his younger brother Jeejabrao.

The prosecution said the family ill-treated Sunitabai because she had no child, and demanded dowry. It said a written assurance of good treatment, given by Shamkant after a meeting of the two families, did not stop the ill-treatment.

On 10 April 2005, at about 10 am, the accused were alleged to have set Sunitabai on fire in furtherance of their common intention. She was taken to the Civil Hospital with burn injuries and died on 15 April 2005. The post-mortem put her burns at 90 per cent and the cause of death as septicaemia due to thermal burns.

Three statements of hers were recorded on 10 April. The medical officer, Dr. Prashant Shinde, recorded one in the medico-legal case papers (Exhibit-56). It named the appellant as the person who threw kerosene and set her alight.

A police officer, Assistant Sub-Inspector Prakash Wagh, recorded the second (Exhibit-44). A Special Executive Magistrate, Sardar Mansuri, recorded the third (Exhibit-48). Both said that Shamkant and Jeejabrao tied her hands and legs, the appellant poured kerosene, and Waman set her on fire.

A doctor endorsed on each police and magistrate statement that she was conscious and fit to give it.

Why the Sessions Court acquitted everyone

Charges were framed against all four accused under Sections 498A, 342, 406 and 302 read with Section 34 of the Indian Penal Code, 1860. The accused pleaded not guilty and were tried.

The Sessions Court found the three dying declarations inconsistent. In Exhibit-56 the appellant set the fire, while in Exhibits-44 and 48 it was her father-in-law.

It also noted that Vishwas Desle, who the dying declarations said took Sunitabai to hospital, was never examined. The medico-legal papers instead showed that her uncle brought her in. That uncle, a witness, did not say so in his deposition, and the prosecution did not explain his signature on the papers.

No neighbour was examined. Although the prosecution said her hands and legs had been tied, no witness spoke of a rope. The stamp paper recording the assurance of good treatment was not enough, the court held, to prove cruelty under Section 498A. All four accused were acquitted.

How the High Court convicted one

The State appealed to the Bombay High Court, Bench at Aurangabad. A Division Bench found that Exhibit-56 appeared voluntary and free from outside influence. It accepted the statement as truthful.

It found that the accused’s own defence was that only the appellant was at home with Sunitabai when she was burned. The appellant had not explained how Sunitabai suffered the burns. The High Court discarded Exhibits-44 and 48 as inconsistent with Exhibit-56.

It held the Sessions Court’s judgment illegal and perverse as to the appellant. On 28 September 2017 it convicted her under Section 302 and sentenced her to rigorous imprisonment for life and a fine of Rs 25,000, with one year’s rigorous imprisonment in default.

For Shamkant, Waman and Jeejabrao, it found no positive and dependable evidence and upheld their acquittal. It also found Sections 498A, 342 and 406 unproved against all four.

The arguments in the Supreme Court

Mr. Dilip Taur, for the appellant, argued that Exhibit-56 needed corroboration. The Sessions Court had disbelieved all three declarations, and the High Court had upheld its view on two of them. Because the appellant was acquitted at trial, he said, reversing that acquittal needed material beyond doubt. He cited State of Punjab v. Parveen Kumar.

Mr. Raman Yadav, for the State, said Exhibit-56 was voluntary and cogently accepted. Along with the seized material and the Chemical Analyser’s report, it was enough for conviction, he said.

He added that the accused themselves said the appellant was alone with the victim. He relied on Jagbir Singh v. State (NCT of Delhi) and Rajendra v. State of Maharashtra.

A charge against four, a conviction of one

The bench began with the charge. Exhibit-8 charged all four accused with causing the death by pouring kerosene on Sunitabai and setting her on fire, in furtherance of common intention, under Section 302 read with Section 34. There was no separate charge under Section 302 alone against anyone.

The High Court had treated the defence statement that the appellant was alone with the victim as enough to convict her. The bench said that response was to a joint charge against all four.

“a new accusation with which the appellant was never charged” (para 15)

Convicting her on that basis would amount to making out such an accusation, it held. It would have been different had an independent Section 302 charge also been framed against her. Convicting one of the four alone, without it, would be prejudicial to her.

The bench relied on Krishna Govind Patil v. State of Maharashtra, a four-judge decision. There four accused were charged under Section 302 read with Section 34 and also separately under Section 302. The trial court acquitted all four. The High Court confirmed three acquittals and convicted the fourth under Section 302 read with Section 34.

This Court held that position legally impossible. Common intention needs a prior concert between persons. When the others are acquitted, whether for lack of acceptable evidence or on the benefit of doubt, the law treats them as not having taken part. The remaining accused could not then have acted conjointly with them.

The bench found the present case similar. The High Court maintained the acquittal of three of four accused charged under Section 302 read with Section 34. It then convicted the fourth of the substantive offence, a charge never framed against her.

The multiple dying declarations test

The bench then assessed the evidence independently. It noted that in Jagbir Singh the Court had held that each case with several, inconsistent dying declarations must be decided on its own facts, after weighing the circumstances in which each was made.

It set out the principles from Abhishek Sharma v. State (Govt. of NCT of Delhi). Each declaration must be voluntary, reliable and made in a fit state of mind. Inconsistencies must be material to shake credibility.

Where declarations conflict, other evidence on record may corroborate the contents. A statement recorded by a magistrate or higher officer can be relied on if truthful and free of suspicion. Medical fitness and the possibility of tutoring by relatives assume importance.

The High Court had disbelieved Exhibits-44 and 48 and the victim’s oral statements to her father and her father’s cousin. That left its conviction resting solely on Dr. Shinde’s evidence and Exhibit-56.

The missing witness who put out the fire

Exhibit-56 was endorsed by Vishwas Desle, who brought Sunitabai to the hospital, according to Dr. Shinde. The prosecution did not examine him.

The Investigating Officer admitted in cross-examination that Vishwas Patil, a Police Patil, put out the fire, was the first to reach the house and admitted her to hospital. His statement under Section 161 of the Code of Criminal Procedure, 1973 had been recorded.

The bench said no reason was given for not examining him. He was a material witness, it held, since he was first at the house, rescued the victim and took her to hospital. The High Court had acknowledged his role but said his absence did not harm the prosecution.

Since the High Court found Exhibit-56 inconsistent with the other declarations, the bench said, it should have looked for corroboration, especially as the burns were 94 per cent by Dr. Shinde’s account.

“Exhibit-56 without any corroboration cannot be the sole basis to reverse the acquittal” (para 24)

Desle would also have been material in proving the burnt piece of rope with which Sunitabai was said to have been tied. The police had seized an empty plastic can, partly burnt cloth and a partly burnt rope.

The bench added that the High Court had not said why the prosecution case under the charge, of joint action by all four, was not to be accepted. A conviction of the appellant alone had to rest on convincing evidence.

It pointed to the ages as a relevant factor in reversing an acquittal. Sunitabai was about 30 and the appellant about 60.

Section 106 and the burden of explanation

The High Court had also held against the appellant for not explaining how Sunitabai was burned when she was alone with her at home. The bench held that Section 106 of the Indian Evidence Act, 1872 applies only after the prosecution discharges its initial burden of pointing to the accused’s involvement.

It cited the three-judge decision in Anees v. State Govt. of NCT. Section 106 must be applied with care in criminal cases, that ruling said. It cannot make up for the prosecution’s inability to produce evidence of circumstances pointing to guilt.

The bench noted that the prosecution had not discharged that burden here. It declined to accept the High Court’s reasoning on this ground.

No hearing on sentence

The bench pointed to another defect. After reversing the acquittal and convicting the appellant under Section 302, the High Court did not hear her on sentence. Section 386(a) of the Code of Criminal Procedure requires it.

The bench cited Ramkrushna Prahllad Dongardive v. State of Maharashtra on the point. Since it held the reversal itself unjustified, it said, nothing much turned on the omission.

Order

The bench was more than satisfied that the Sessions Court was right to give the appellant the benefit of doubt because the three dying declarations were inconsistent. The presumption of innocence in her favour was enhanced by her acquittal, it said.

The Sessions Court’s view could not be called perverse or illegal, and Exhibit-56 had been accepted without corroboration. The Supreme Court quashed the High Court’s judgment of 28 September 2017 in Criminal Appeal No. 63 of 2008.

It acquitted Kamalbai Waman Patil of the offence under Section 302 and directed that she be set free forthwith, if not required in any other case. Criminal Appeal No. 118 of 2018 was allowed.