SAKHRABAI SHIVAJI MALLAVversusTHE STATE OF MAHARASHTRA AND ANR.

2026:BHC-KOL:9033-DB

                                                                        Appeal-425-2023.doc


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIRCUIT BENCH AT KOLHAPUR
                                   CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO.425 OF 2023
                                               WITH
                              CRI-INTERIM APPLICATION NO.365 OF 2026

               1. Sakhrabai Shivaji Mallav
               Age: 52 years, Occ. Labour,
               R/o. Tirhe, Tal. North Solapur,
               Dist. Solapur.
               2. Anita Vijay Bhoi
               Age: 38 years, Occ. Labour,
               R/o. Sarkoli, Tal. Pandharpur,
               Dist. Solapur.
               [At present both at Yerwada Central Prison]             ...Appellants
                         VERSUS
               1. The State of Maharashtra,
               Through Police Station, Solapur,
               District. Solapur.                                … Respondent
               __________________________________________________________________
               Appearance :
               Mr. Ritesh Thobde a/w Mr. Pushkaraj Yadav Deshmukh a/w Mr. Changdev
               Shingade and Ms. Divyashree Dhumal, Advocates for the Appellants
               Mr. S. H. Yadav, APP for the Respondent - State
               __________________________________________________________________
                                                 Coram :    Sharmila U. Deshmukh &
                                                            Neeraj P. Dhote, JJ.
                                                 Reserved on : 2nd September, 2026
                                                 Pronounced on : 21st September, 2026

               JUDGMENT : [PER NEERAJ P. DHOTE, J.]

               1.       This is an Appeal under Section 374(2) of the Code of Criminal

               Procedure, 1973 [hereinafter referred to as ‘the Cr.PC’] against the



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Judgment and Order dated 21.02.2023 passed by the learned Additional

Sessions Judge, Solapur, in Sessions Case No.89/2021, convicting and

sentencing the Appellants as under :

  1.     Accused Sakhrabai Shivaji Mallav and Anita Vijay Bhoi are
         hereby convicted vide Section 235(2) of the Code of Criminal
         Procedure of the offence punishable under Section 302
         section 34 of the Indian Penal Code and they are 302 r.w..
         sentenced to suffer Rigorous Imprisonment for life and to
         pay fine of Rs.1000/-(Rs. One Thousand Only) each. In
         default of payment of fine, the accused shall suffer Rigorous
         Imprisonment for one month.
  2.     Accused Salahrabai Shivaji Mallav and Anita Vijay Bhoi are
         hereby convicted vide Section 235(2) of the Code of Criminal
         Procedure of the offence punishable under Section 307 r.w.
         section 34 of the Indian Penal Code. However since accused
         are convicted for the offence punishable under Section 302
         r.w. section 34 of I.D.C., no seperate sentence is awarded on
         them.
  3.     Accused Sakhrabai Shivaji Mallav and Anita Vijay Bhoi are
         hereby convicted vide Section 235(2) of the Code of Criminal
         Procedure of the offence punishable under Section 452 r.w.
         section 34 of the Indian Penal Code and they are sentenced
         to suffer Rigorous Imprisonment for one year and to pay fine
         of Rs.1000/-(Rs.One Thousand) each. in default of payment
         of fine, the accused shall suffer Rigorous Imprisonment for
         one month.
  4.     Accused Sakhrabai Shivaji Mallav is hereby convicted vide
         Section 235(2) of the Code of Criminal Procedure of the
         offence punishable under Section 504 of the Indian Penal
         Code and she is sentenced to suffer Rigorous Imprisonment
         for six months and to pay fine of Rs.500/-(Rs.Five Hundred).
         In default of payment of fine, the accused shall suffer
         Rigorous Imprisonment for 15 days.
  5.     Accused Sakhrabai Shivaji Mallav is hereby convicted, vide
         Section 235(2) of the Code of Criminal Procedure of the
         offence punishable under Section 506 of the Indian Penal
         Code and she is sentenced to suffer Rigoro is Imprisonment
         for one year and to pay fine of Rs.1000/-(Rs. One Thousand).
         In default of payment of fine, the accused shall suffer
         Rigorous Imprisonment for one month.


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     6.     Accused Anita Vijay Bhoi is hereby acquitted vide Section
            235(1) of the Code of Criminal Procedure of the offence
            punishable under Section 504 and under Section 506 of I.P.C.
     7.     ….. ….. …… …… …… …… …… ……. ……. ..…
     8.     ….. ….. …… …… …… …… …… ……. ……. ..…
     9.     ….. ….. …… …… …… …… …… ……. ……. …..
     10.    ….. ….. …… …… …… …… …… ……. ……. ..…
     11.    ….. ….. …… …… …… …… …… ……. ……. .…”

2.         The Prosecution’s case, as revealed from the police report, is as

under :

[I]        Appellant No.1 – Sakhrabai is the sister of the deceased –

Informant / Hausabai. Appellant No.2 – Anita is the daughter of

Appellant No.1 – Sakhrabai. The deceased – Hausabai was residing alone

at her house in Village - Tirhe, Taluka – South Solapur, District - Solapur.

Her son – Bhimrao was residing with his family in the agricultural field.

The deceased – Hausabai and Appellant No.1 – Sakhrabai were residing

nearby. There were illicit relations between the deceased – Hausabai

and the husband of Appellant No.1 – Sakhrabai. For that reason,

Appellant No.1 – Sakhrabai used to quarrel frequently with the

deceased – Hausabai. On 12.12.2020, around 13:00 hours, when the

deceased – Hausabai was sleeping in her house, she heard voice from

outside and she opened the door. Both the Appellants, the daughter-in-

law of Appellant No.1 – Sakhrabai, and the son of Appellant No.2 – Anita

entered the house of the deceased – Hausabai. Appellant No.2 – Anita

caught hold the right hand of deceased – Hausabai, son of Appellant



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No.2 – Anita caught hold the left hand of the deceased – Hausabai,

daughter-in-law – Sunita caught hold the hair of the deceased –

Hausabai, and Appellant No.1 – Sakhrabai dealt blows with knife on the

deceased – Hausabai.       Due to the shouts, neighbourers gathered

outside the house of the deceased – Hausabai. Appellant No.1 –

Sakhrabai along with Appellant No.2 – Anita threatened the

neighbourers, and so they ran away. Thereafter, Appellant No.1 –

Sakhrabai and Appellant No.2 – Anita again dealt blows with knife on

the deceased - Hausabai. After the assault, the assaulters left after

closing the door from outside. The neighbourers opened the door. The

son of deceased – Hausabai was informed by the villagers over the

phone. The deceased – Hausabai was removed to the Civil Hospital for

treatment. The statement of the deceased – Hausabai was recorded by

the police, and Crime bearing No.753/2020 came to be registered with

Solapur Rural Police Station for the offence punishable under Sections

307, 452 read with Section 34 of the Indian Penal Code, 1860

[hereinafter referred to as ‘IPC’].


[II]     During investigation, the Spot Panchnama was done and the

knife, pieces of bangles were seized from the spot of incident.

Statements of witnesses were recorded. The Appellants were taken into

custody. The clothes of the Appellants were seized. The supplementary



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statement of the deceased – Hausabai was recorded, wherein, she

exonerated the daughter-in-law of Appellant No.1 - Sakhrabai. The

seized Articles were sent for Chemical Analysis. The deceased –

Hausabai succumbed to the injuries during medical treatment. The dead

body was sent for the post-mortem, and the cause of death revealed as

“Stab injury to abdomen (Unnatural)”. The offence punishable under

Section 307 of IPC was converted to the offence punishable under

Section 302 of IPC. On completion of investigation, the Appellants came

to be charge-sheeted. As the offence punishable under Section 302 IPC

is exclusively triable by the Court of Sessions, the learned Magistrate

passed the committal order. The learned Trial Court framed the charge

against the Appellants for the offence punishable under Sections 302,

307, 452, 504 and 506 r/w Section 34 of IPC below Exhibit – 8. Both the

Appellants pleaded not guilty and claimed to be tried. In support of the

charge, the Prosecution examined in all sixteen (16) witnesses and

brought on record the relevant documents. After filing of evidence

closure pursis by the Prosecution, the statements of the Appellants

came to be recorded under Section 313(1)(b) of Cr.PC. The Appellants

stated that, they were falsely implicated. After hearing both the sides

and appreciating the evidence on record, the learned Trial Court

convicted and sentenced the Appellants as above.




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3.       Heard the learned Counsel for the Appellants and the learned

APP for the Respondent – State. Scrutinized the evidence on record.


[A]      It is submitted by the learned Counsel for the Appellants that, the

eyewitnesses did not support the case of Prosecution. The Dying

Declarations were not voluntary and the same were tutored, as the son

of the deceased – Hausabai was present at the time of recording the

statement of the deceased. In the second Dying Declaration, the

deceased – Hausabai exonerated the daughter-in-law – Sunita. Both the

statements of the deceased recorded by the Police Officer were

inconsistent to each other, and therefore independent corroboration

was necessary to prove the charge. No statement of the deceased was

recorded by the Magistrate. There are material omissions in the

evidence of the son of the deceased – Hausabai, and therefore his

version in respect of oral Dying Declaration cannot be believed. It has

come in the evidence of the son of the deceased – Hausabai that, the

deceased was not conscious when she was admitted to the Hospital.

There is no endorsement on the thumb impression of the deceased. The

CA reports show that, the result of ABO grouping of the blood of

deceased – Hausabai was inconclusive. Due to sore relations, the

Appellants were falsely implicated. The learned Trial Court took the aid

of the previous statements of the witnesses recorded under Sections



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161 and 164 of Cr.PC to corroborate the Dying Declaration and

convicted the Appellants. Considering the inconsistency in the Dying

Declarations, they cannot form the basis to prove the charge. The

motive cannot substitute proof. The Appeal be allowed. In support of his

submissions, he relied on several decisions, which would be considered

in the later part of this Judgment.


[B]      It is submitted by the learned APP that, the Prosecution’s case is

based on the Dying Declarations, wherein the deceased – Hausabai has

named the Appellants as the assaulters. The weapon used in the assault

was a knife, which was seized from the spot of incident. The injuries on

the dead body shown in the inquest and in the post-mortem report

corroborate each other. The evidence on record goes to show that, the

injuries on the deceased were possibly by use of knife. Though some of

the witnesses have not supported the Prosecution’s case, the

circumstantial evidence proved the charge against the Appellants. The

Prosecution has brought on record the motive behind the crime. The

learned Trial Court has rightly convicted and sentenced the Appellants,

and no interference was called for in the same.


4.       In Somasundaram @ Somu Vs. State; (2020) 7 SCC 722, Ram

Kishan Singh Vs. Harmit Kaur and Another; (1972) 3 SCC 280, Baij

Nath Sah Vs. State of Bihar; (2010) 6 SCC 736; Rajkumar Chotalal


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Rajput @ Chela Vs. State of Maharashtra, in Criminal Appeal

No.611/2014, Bombay High Court on 21.09.2021; Audumbar Digambar

Jagdane and Another Vs. State of Maharashtra, in Criminal Appeal

No.505/1994, Bombay High Court on 14.08.1998, cited by the learned

Counsel for the Appellants, the settled legal position that, the

statement under Section 164 of Cr.PC is not the substantive piece of

evidence and it can be used only to corroborate or contradict the

witness vis-a-vis statement before the Court and it would be

impermissible to record conviction on the basis of the statement under

Section 164 of Cr.PC, is reiterated.


5.       In Thurukanni Pompiaj Vs. State of Mysore; AIR 1965 SC 939,

Kamla Vs. State of Punjab; (1993) 1 SCC 1 and Uttam Vs. State of

Maharashtra; (2022) SCC 576, cited by the learned Counsel for the

Appellants, the settled legal principle in respect of Dying Declarations is

reiterated that, the Dying Declaration may form the sole basis of

conviction only when found reliable, where there are multiple Dying

Declarations, consistency, voluntariness, earliest recording, absence of

tutoring and the declarant’s capacity to observe and remember are the

material considerations and each case must be judged on its own facts

and circumstances.




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6.       In Poonam Bai Vs. State of Chhattisgarh; (2019) 6 SCC 145,

Arun Bhanudas Pawar Vs. State of Maharashtra; (2008) 11 SCC 232,

Puran Chand Vs. State of Haryana; (2010) 6 SCC 566, State of Madhya

Pradesh Vs. Ramjan Khan and Others; 2024 INSC 823, Sunil Kashinath

Raimale Vs. State of Maharashtra; 2006 Cri. LJ 589 and Shahrukh

Salim Pathan Vs. State of Maharashtra; in Criminal Appeal

No.355/2016, Bombay High Court dated 14.06.2023, cited by the

learned Counsel for the Appellants, the principles in respect of oral

Dying Declarations are reiterated that, the oral Dying Declarations not

mentioned in the witnesses’ statements under Section 161 of Cr.PC but

introduced for the first time during trial was held to be an afterthought

and the improved version, rendering such evidence unsafe to rely upon,

the Courts have to be extremely careful when they deal with a Dying

Declaration as the maker thereof is not available for the cross-

examination, which poses a great difficulty to the accused person, a

mechanical approach in relying upon a Dying Declaration just because it

is there is extremely dangerous, the Court has to examine a Dying

Declaration scrupulously with a microscopic eye to find out whether the

Dying Declaration is voluntary, truthful, made in a conscious state of

mind and without being influenced by the relatives present or by the

investigating agency who may be interested in the success of

investigation or which may be negligent while recording the Dying


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Declaration and the signature of the deceased’s relative on the Dying

Declaration establishes his present at the time of recording, thereby

supporting the defence contention that, the possibility of tutoring

cannot be ruled out.


7.       In Gajanan Hanmantu Jiddewar Vs. State of Maharashtra; 2016

All MR Cri. 4919 and the State of Maharashtra Vs. Guddu Krish Yadav

in Confirmation Case No.4/2019, Bombay High Court dated

06.05.2022, cited by the learned Counsel for the Appellants, it is

observed that, no identification of the thumb impression, no signature

of the attesting witness and no endorsement regarding the patient’s

fitness to record the Dying Declaration, were the major and glaring

omissions affecting the reliability of the Dying Declaration.


8.       In Aher Raja Khima Vs. State of Saurashtra; AIR 1956 SC 217,

Jaffar Hussain Dastagir Vs. State of Maharashtra; (1969) 2 SCC 872,

Shri. Nankishore Naik Vs. State of Goa; 2014 All MR Cri. 2374,

Subramanya Vs. State of Karnataka; 2022 SCC online SC 1400, Kansa

Behra Vs. State of Orissa; (1987) 3 SCC 480 and Anwar Ali Vs. State of

Himachal Pradesh; (2020) 10 SCC 166, cited by the learned Counsel for

the Appellants, the principles in respect of recovery and forensic

evidence are laid down. It is observed that, when the police had already

obtained the information about the location, the discovery cannot be


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said pursuant to the information derived from the accused, mere

detection of human blood on the recovered clothes, without evidence

of the blood group, could not positively connect the bloodstains with

the deceased and in the absence of such evidence, the bloodstains

could not be treated as a circumstance against the accused and motive

may provide a link in a case based on circumstantial evidence, its

absence cannot be treated as fatal; however, absence of motive is a

factor that weighs in favour of the accused and motive cannot

substitute for clear and convincing proof of guilt.


9.       The principles laid down in the above Judgments are well settled.

When the charge is for the offence punishable under Section 302 of IPC,

the Prosecution has to establish that, the death was homicidal. The

evidence of PW – 8 [Bhimrao Mahadev Mallav] shows that, he is the son

of deceased – Hausabai. He resides in the agricultural field and his

deceased mother – Hausabai resides in the village. On 12.12.2020, when

he was in agricultural field, he received a phone call from Sukeshini

Mallav in respect of the incident of assault on Hausabai. He immediately

came to the village and removed his deceased mother – Hausabai with

the help of other villagers to the Hospital. The evidence of PW – 6 [Dr.

Tejas Tapan Mhatre] shows that, on 12.12.2020, he was the Medical

Officer at Solapur Civil Hospital. He was on 24 hours duty. On that day,



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around 03:00 p.m., the deceased – Hausabai was brought to the Hospital

with a history of assault by stabbing and she was hospitalized. The

cross-examination shows that, initially, she was taken to the casualty

department.


10.      The evidence of PW – 16 [Suhas Laxman Jagtap], the Investigating

Officer, shows that, on 06.01.2021, Hausabai died during the treatment

in the Civil Hospital. The evidence of PW – 2 [Tai Ankush Bohi] shows

that, on 06.01.2021, she had been to Civil Hospital, Solapur and saw the

dead body of Housabai. There were injuries on the left side chest,

stomach, left hand and thigh. She deposed that, the inquest below

Exhibit – 19 was prepared. The evidence of PW – 16 [Suhas Laxman

Jagtap], Investigating Officer, shows that, the inquest was prepared by

PSI Tavare.


11.      The evidence of PW – 15 [Dr. Vinod Vasant Rathod] shows that, he

was Assistant Professor in the Department of Forensic Science at Civil

Hospital. On 07.01.2021, he performed the postmortem on the dead

body of deceased - Hausabai. He noticed six (06) injuries on the dead

body, which were as follows :

      “1.    Sutured wound of size 3 cm on left side of abdomen, 7 cm
             below xiphoid process, 5 cm lateral to midline, 2 sutures in
             situ, on opening of sutures, stab would of size 3.cm x 2 cm
             x muscle deep, healing margins.




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      2.       Sutured wound of size 4 cm on right side of abdomen 9 cm
               above pubic symphysis, 7 cm lateral to midline, 3 sutures in
               situ, on opening of sutures, stab wound of size 4cm x 1 cm
               x muscle deep, healing margins.
      3.       Sutured wound of size 6 cm on dorsum of left hand, 2 cm
               below wrist, between thumb and index fingure, 5 sutures
               in situ, on opening of sutures, incised wound of size 6 cm x
               1 cm x muscle deep, healing margins.

      4.       Surgical sutured incised wound of length 42 cm, present
               vertically on midline from 3 cm above xiphisternum to
               umbilicus, 32 sutures in situ suggestive of laparotomy
               wound, no gaping present, healing margins.
      5.       Surgical sutured puncture wound of 1 cm X 1 cm X cavity
               deep on right iliac region suggestive of drainage wound, 2
               sutures in situ, no gaping present, healing margins.

      6.       Therapeutic injection mark on right groin, 1 suture in situ,
               reddish margins.”

11.1.           His further evidence shows that, he noticed the injury to the

intestine and liver due to stabbing. The probable cause of death was

stab injury to abdomen and the postmortem report was at Exhibit – 48

and the provisional cause of death certificate was at Exhibit – 49. In the

cross-examination, it has come that, after stabbing the injury if death

occurs lately, there may be infection in absence of medical treatment.

Suggestion that, death was due to heart attack is denied.


12.        The cross-examination of the aforesaid witnesses shows that, the

homicidal death of Hausabai is not seriously disputed by the Appellants.

There is ample evidence brought on record by the Prosecution to

establish that, the death of Hausabai was homicidal. In light of the


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above discussed evidence, the Prosecution has successfully established

that, the death of Hausabai was homicidal.


13.      The Prosecution’s case largely rests on the Dying Declarations,

oral and written. As far as the oral Dying Declaration is concerned, the

Prosecution examined PW – 8 [Bhimrao Mahadev Mallav], the son of

deceased – Hausabai. He deposed that, the deceased – Hausabai was his

mother and he was residing separately in the agricultural field. On

12.12.2020, when he was in his agricultural field, he received a phone

call from PW – 12 [Sukeshini Tukaram Mallav] that, the deceased –

Hausabai was beaten. He reached the house of deceased – Hausabai.

With the help of the villagers, he removed deceased – Hausabai to the

Hospital. On the way to Hospital, the deceased – Hausabai was

conscious and he inquired with her about the incident and deceased –

Hausabai stated that, the Appellants and Juvenile – Suresh came to her

house and Appellant No.1 – Sakharabai asked her as to why she gave

food to Shivaji [husband of Appellant No.1 - Sakharabai] and she was

abused and assaulted by knife. In his further evidence, he deposed that,

the deceased – Hausabai was admitted to the Civil Hospital as an indoor

patient for about a month and she died in the Hospital. The cross-

examination of this PW – 8 [Bhimrao Mahadev Mallav] goes to show

that, his said evidence in respect of oral Dying Declaration by the



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deceased – Hausabai to him was an omission. In Paragraph No.8 of his

cross-examination, the said omissions are brought on record by the

defence. The said omission in respect of oral Dying Declaration is

proved by the defence through PW – 16 [Suhas Laxman Jagtap], the

Investigating Officer, who recorded his statement. From this evidence

on record, it is clearly brought on record that, the evidence of PW – 8

[Bhimrao Mahadev Mallav] in respect of the oral Dying Declaration was

an improvement and for the first time, he deposed before the learned

Trial Court in respect of the oral Dying Declaration. Therefore, under

such circumstances, the evidence of PW – 8 [Bhimrao Mahadev Mallav]

in respect of oral Dying Declaration by the deceased – Hausabai is

required to be seen with serious doubt and the said evidence is liable to

be discarded.


14.      As regards the written Dying Declarations, the evidence of PW – 7

[Anil Atmaram Devade], the Police Officer, who was posted with Taluka

Police Station, Solapur, shows that, on 12.12.2020, PW – 16 [Suhas

Laxman Jagtap], the Investigating Officer, directed him to go to the Civil

Hospital, Solapur to record the statement of the injured. Accordingly, he

went to the Hospital, inquired about the fitness of the patient –

Hausabai and after the Medical Officer informed him that, the patient

was fit to give the statement, he recorded the statement below Exhibit



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– 31, which formed the basis to register Crime No.753/2020 for the

offences punishable under Sections 307, 452, 504 and 506 r/w Section

34 of IPC, wherein the deceased – Hausabai stated of assault by both

the Appellants and other accused persons with knife on account of her

relations with the husband of Appellant No.1 – Sakharabai. He deposed

that, the thumb impression of deceased - Hausabai was taken on her

statement. The evidence of PW – 6 [Dr. Tejas Tapan Mhatre] shows that,

he was the Medical Officer and attached to the Civil Hospital, Solapur

on 12.12.2020. On that day, around 03:00 p.m., the patient – Hausabai

stated the history of assault by stabbing and she was admitted. The

police recorded her statement in his presence and he gave endorsement

that, the patient was conscious, oriented and in a position to give

statement and his endorsement was at Exhibit – 28 on the statement.


15.      The evidence of PW – 7 [Anil Atmaram Devade] and PW – 6 [Dr.

Tejas Tapan Mhatre] is inconsistent on the point of presence of third

person at the time of recoding the statement of deceased – Hausabai. In

his cross-examination, PW – 7 [Anil Atmaram Devade] deposed that, the

deceased – Hausabai was alone in the Ward and he denied the

suggestion that, the statement of deceased – Hausabai was tutored at

the instances of the persons, who were present near her; whereas, the

evidence of PW – 6 [Dr. Tejas Tapan Mhatre] shows that, the statement



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of deceased – Hausabai was recorded in the Ward where three (03) to

four (04) relatives of the deceased – Hausbai were present when the

statement was recorded. The suggestion is given in the cross-

examination that, the said Dying Declaration below Exhibit – 31 was

tutored. The evidence of PW – 8 [Bhimrao Mahadev Mallav] shows that,

it has clearly come in his cross-examination that, when the police came

to the Civil Hospital, he and other relatives were near the bed of

Hausabai. Suggestion is given in his cross-examination that, his

signature was taken on the statement of deceased - Hausabai in the

Police Station. It has come in his cross-examination that, after two (02)

to three (03) days, the police came to the Hospital to record the

statement of deceased - Hausabai.


16.      Undisputedly, the Exhibit – 31, i.e. Dying Declaration, bears the

name and signature of PW - 8 [Bhimrao Mahadev Mallav], who is the

son of deceased – Hausabai. The said Exhibit – 31 clearly states that, the

said statement was read over by PW – 8 - [Bhimrao Mahadev Mallav] to

the deceased and she stated the same to be true. This evidence on

record clearly establishes that, when the statement of deceased –

Hausabai below Exhibit – 31 was recorded in the Hospital Ward, there

was presence of PW – 8 [Bhimrao Mahadev Mallav] and other relatives.

As seen above, the suggestions of tutoring are given to the witnesses. In



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light of the above, the Dying Declaration below Exhibit – 31 cannot be

treated as voluntary statement by the deceased – Hausabai, as the

evidence on record depicts the surrounding circumstances to suggest

the strong possibility of tutoring. The evidence on record do not

establish that, the said Dying Declaration was voluntary.


17.      Another aspect is in respect of fitness of the deceased –

Hausabai to give statement. Though PW – 6 [Dr. Tejas Tapan Mhatre]

deposed that, he gave endorsement that, the patient was conscious,

oriented and in a position to give the statement, he admits that, when

the patient is brought to the Hospital in the causality ward, the case

papers are prepared with the history. The evidence of PW – 16 [Suhas

Laxman Jagtap], the Investigating Officer, shows that, he had not

collected the medical papers regarding the physical condition of

deceased – Hausabai before recording her statement. According to PW –

8 [Bhimrao Mahadev Mallav], when the police came to the Civil Hospital,

firstly, the deceased – Hausbai was not in a position to give statement

and oxygen cap (mask) was put to her mouth and nose for about 10 – 15

days. Further, the evidence of PW- 6 [Dr. Tejas Tapan Mhatre] goes to

show that, due to heavy bleeding, blood pressure of the patient may go

down and due to assault on the stomach, heavy bleeding had taken

place, and therefore, it was possible that, the patient may go in Coma.



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This evidence clearly goes to show that, there is no clear, cogent and

trustworthy evidence on record to show that, the deceased – Hausabai

was in conscious and in a fit condition to give the statement. Absence of

the clear evidence in respect of fitness of deceased – Hausabai to give

the statement, the above discussed evidence on record in respect of

Exhibit – 31 - Dying Declaration is required to be seen with doubt and

cannot form the basis to prove the charge.


18.      The evidence of PW – 16 [Suhas Laxman Jagtap], the

Investigating Officer, goes to show that, on 29.12.2020, he recorded the

supplementary statement of the deceased – Hausabai, wherein, she

stated of assault by three (03) accused persons and denied the presence

of the accused – Chayabai. His evidence nowhere shows as to whether

the fitness of deceased – Hausabai was ascertain from the Medical

Officer before recording the said supplementary statement. There is no

evidence of the Medical Officer in respect of the said supplementary

statement dated 29.12.2020. In the cross-examination, PW – 16 [Suhas

Laxman Jagtap] admitted that, after the admission of Hausabai to the

Hospital till her death, he did not record her statement. The fact

remains that, the accused - Chayabai, who is named as the accused in

the Dying Declaration Exhibit – 31, is exonerated. This evidence clearly

brings on record inconsistency in the two (02) statements dated



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12.12.2020 and 29.12.2020. The first statement below Exhibit – 31 is

against both the Appellants and two more accused persons; whereas in

the second statement as deposed by PW – 16 [Suhas Laxman Jagtap]

the deceased - Hausabai completely exonerates the accused – Chayabai.

This becomes another reason to see the Dying Declarations with serious

doubt. With this evidence on record, the evidence in respect of the

Dying Declarations in any event cannot form the basis to prove the

charge.

19.      The other evidence brought on record by the Prosecution is the

discovery of Saree at the instance of Appellant No.2 – Anita Vijay Bhoi

pursuant to her statement. On this point, the Prosecution relied on the

evidence of PW – 1 [Prasad Vitthal Survase], who deposed that, on

25.12.2020, he was called to the Taluka Police Station, wherein,

Appellant No.2 – Anita Vijay Bhoi stated to produce the Saree and

memorandum statement at Exhibit - 15 was accordingly prepared, and

thereafter Appellant No.2 – Anita Vijay Bhoi led them to one place and

removed the Saree from the sugarcane crop. According to this witness,

there were blood stains on the said Saree and the same was seized

under the Panchnama below Exhibit – 16. This evidence of PW – 1

[Prasad Vitthal Survase] receives serious dent, in the cross-examination,

wherein it has come that, on inquiry with the Police, they told that, one

Saree was to be seized and the Saree was lying inside the sugarcane


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crop, which was an open place.      Suggestions are given that, this

evidence in respect of discovery under Section 27 of the Evidence Act,

1872 [hereinafter referred to as ‘the Evidence Act’] was false. This

evidence of PW – 1 [Prasad Vitthal Survase] finds no corroboration from

the evidence of PW – 16 [Suhas Laxman Jagtap] as to the place from

where the Saree was seized. The evidence of PW – 16 [Suhas Laxman

Jagtap] shows that, on 25.12.2020, Appellant No.2 – Anita Vijay Bhoi

produced one Saree as per her statement. The evidence of PW – 1

[Prasad Vitthal Survase] and PW – 16 [Suhas Laxman Jagtap] do not

establish that, the seizer of Saree was pursuant to the voluntary

statement by Appellant No.2 – Anita Vijay Bhoi during the course of

investigation. Further, the CA report below Exhibit – 67 though show

human blood on Saree at Exhibits – E and H at Serial Nos.5 and 8,

respectively, the CA report at Exhibit – 71 in respect of blood of the

deceased – Hausabai shows that, the blood group could not be

determined as the results was inconclusive. The CA report below Exhibit

– 69 in respect of blood group of Appellant No.1 - Sakhrabai Shivaji

Mallav shows that, her blood group was ‘A’, and therefore human blood

of group – ‘A’ on the Saree below Exhibit – E at Serial No.5 cannot be

treated as incriminating circumstance. Therefore, the seizure of Saree

will not be relevant.




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20.      As regards the evidence of PW – 4 [Hirabai Sanjay Tupsundar]

shows that, the Police produced the clothes before her, which were

seized under the Panchnama below Exhibit – 23. In cross-examination,

she admitted that, the Panchnama was already written and she was

asked by the Police to put her thumb impression and the Panchnama

was not read over to her. Similarly, the evidence of PW – 16 [Suhas

Laxman Jagtap] do not show that, the seizure of the clothes of

Appellant No.1 - Sakhrabai Shivaji Mallav was pursuant to her statement

under Section 27 of the Evidence Act. As regards the Article – Knife,

which was seized from the spot of incident show the human blood of ‘A’

group. As the analysis of blood group of the deceased – Hausabai was

inconclusive, the same cannot be termed as incriminating circumstance.

21.      The other evidence brought on record by the Prosecution is of no

assistance for the Prosecution and takes the case no further. The

evidence of PW – 3 [Sachin Suresh Gaikwad], PW – 5 [Ritesh Pandurang

Mallav], PW – 9 [Suraj Tanaji Patil], PW – 10 [Samadhan Nagnath Lavate],

PW – 11 [Jayashri Prabhakar Mallav], PW – 12 [Sukeshini Tukaram Mallav]

and PW – 13 [Mangesh Suresh Mallav] shows that, they did not support

the case of Prosecution and though cross-examined by the learned APP,

nothing material came on record in support of the Prosecution’s case.

The evidence of PW – 14 [Kiran Vijay Pawar] shows that, he had carried

the muddemal to the Laboratory.


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22.      The re-appreciation of the evidence on record leads us to record

the finding that, the Prosecution has failed to establish the charge

against the Appellants. The evidence on record do not conclusively

establish the charge against the Appellants. As discussed above, the

evidence in the nature of Dying Declarations is liable to be discarded for

the reasons discussed above. The other corroborative evidence do not

take the Prosecution’s case any further. The motive, by itself, does not

prove the case of the Prosecution. In light of the above discussion, the

conviction and sentence recorded by the learned Trial Court against the

Appellants are liable to be set aside, and the Appellants are entitled for

acquittal. Hence, the following order :

                                   ORDER

  [a] The Criminal Appeal is allowed.

  [b] The Judgment and Order dated 21.02.2023, passed by the
         learned Additional Sessions Judge, Solapur, in Sessions Case
         No.89/2021, convicting and sentencing the Appellants for the
         offence punishable under Sections 302, 307, 452, 504 and
         506 r/w Section 34 of IPC is quashed and set aside.

  [c] The Appellants stands acquitted for the offence punishable
         under Sections 302, 307, 452, 504 and 506 r/w Section 34 of
         IPC.

  [d] The Appellant No.1 - Sakhrabai Shivaji Mallav is behind the
         bars. She be released, if not required in any other offence.



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  [e] The Appellant No.2 - Anita Vijay Bhoi is on bail. Her bail bond
         stands cancelled.

  [f] The muddemal be dealt with as per the operative order of
         the Judgment passed by the learned Trial Court.


  [g] In view of disposal of Appeal, pending application, if any,
         stands disposed of accordingly.



 [Neeraj P. Dhote, J.]                       [Sharmila U. Deshmukh, J.]




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