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Sow. Chhaya vs The State Of Maharashtra on 3 August, 2018




(arising out of Special Leave Petition (Crl.) No.9142/2016)

SOW. CHHAYA …..Appellant





Leave granted.

2. This appeal is presented by the convicted accused

questioning the Judgment and Order dated 13.6.2016 passed

in Criminal Appeal No. 165 of 2014 by the High Court of

Judicature at Bombay (Aurangabad Bench).

By the impugned judgment, the High Court confirmed the

judgment and order of conviction passed by the Trial Court for

the offences punishable under Section 302 read with Section

34 and Section 498A read with Section 34 of the Indian Penal



3. The case of the prosecution in brief is that Kavita (the

victim) sustained 100% burn injuries at about 7.00 a.m. on

11.2.2013 while she was in her matrimonial house at village

Javla Bazar, Tq. Basmath. Immediately thereafter, she was

brought to the Civil Hospital, Parbhani wherein she succumbed

to her injuries at 5.50 p.m. During the course of treatment, her

Dying Declaration was recorded at 3.10 p.m. in the hospital in

which she implicated both the accused.

As mentioned supra, the Trial Court as well as the High

Court convicted both the accused.

4. This Court, on 21.11.2016, while issuing notice of the

appeal in so far as Accused No.2, Smt. Chhaya (sister-in-law of

victim’s husband) was concerned, dismissed the appeal filed by

Accused No.1 namely Gangadhar @ Baburao Nagorao Ambhore

(victim’s husband). Thus, the judgment and order of conviction

passed against Accused No.1 namely Gangadhar @ Baburao

Nagorao Ambhore has attained finality. Accused No.2, Smt.

Chhaya, is the only appellant before this Court at present.

5. We have heard the learned counsel for the appellant and

the learned counsel for the State of Maharashtra.

During the course of hearing, learned counsel for the

respondent drew the attention of the Court to the Medical

Certificate issued by the Medical Superintendent, Rural

Hospital, Partur, indicating therein that the appellant

underwent surgery on 30.1.2013. Learned counsel for the

appellant, by relying on the said certificate argued in support of

her plea of alibi. This Court on 10.2.2018 granted time to the

learned counsel for the State to verify the same and to have his

say on the reliability/genuineness or otherwise of the


During the course of hearing, Shri Nishant Ramakantrao

Katneshwarkar, learned counsel appearing on behalf of the

State, on instructions, submitted that the certificate issued by

the Medical Superintendent, Rural Hospital, Partur, indicating

that the appellant, Smt. Chhaya underwent surgery on

30.1.2013, is genuine inasmuch as she had underwent surgery

on 30.1.2013.

6. It is the specific case of the appellant herein that she had

to take bed rest for more than 15 days after the operation,

which pertained to family planning, inasmuch as she was

unable to move out of the house. This plea is substantiated by

the Medical Certificate on record. There is no reason for us to

ignore such medical certificate, particularly when the same is

not disputed by the State. Moreover, the appellant had a minor

daughter to be looked after during the relevant period of time.

Except the bald allegations against the appellant, no case is

made out against her so as to bring home guilt against her.

7. Though ample material was found against Accused No.1

(Gangadhar), the only material against the appellant (Accused

No.2) is that her name is also found in the Dying Declaration.

Undisputedly, the incident has taken place inside the house of

Accused No.1 and that too early in the morning. It is not

disputed that the appellant is the wife of the brother of Accused

No.1. The appellant was living with her husband (the brother of

Accused No.1) separately in a different house. In other words,

the appellant was not living with the deceased and Accused

No.1. The same has also been observed by the High Court in its

judgment. However, the Courts proceeded to convict the

appellant also, based on the Dying Declaration of the deceased,

by observing that there was no reason as to why the appellant

was to be falsely implicated. However, having regard to the

Medical Certificate issued by the Medical Superintendent, Rural

Hospital, Partur, showing that the appellant was admitted to

the hospital and underwent surgery on 30.1.2013, the plea of

alibi taken by the appellant deserves to be accepted.

8. A perusal of the oral evidence of the parents of the

deceased would indicate that only minor allegations are made

against the appellant. Vague and cryptic allegations are found

against her with no specific allegation in respect of demand for

dowry or harassment in any manner. In the absence of definite

evidence against the appellant, the Sessions Court and the High

Court are not justified in convicting her even for the offence

punishable under Section 498A of the IPC.

9. In view of the same, the appeal filed by the appellant is

allowed by giving her the benefit of doubt, and the impugned

order is set aside so far as it relates to Accused no.2 – Smt.

Chhaya, appellant herein. Needless to say that the appellant

be released forthwith if not required in any other case.


(N.V. Ramana)

(Mohan M. Shantanagoudar)
New Delhi;

August 03 , 2018.

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