REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 637 OF 2006

SAMADHAN DHUDAKA KOLI      … APPELLANT

Versus

STATE OF MAHARASHTRA    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. This  appeal  is  directed  against  the  judgment  and  order  dated

13.07.2005 passed by a Division Bench of the High Court of Judicature at

Bombay,  Bench  at  Aurangabad  in  Criminal  Appeal  No.  190  of  1995

whereby and whereunder the appeal  preferred by appellant  herein from a

judgment  and  order  dated  28.6.1995  in  Sessions  Case  No.115  of  1992

convicting him for commission of an offence punishable under Section 302

of  the  Indian  Penal  Code  (for  short,  “the  IPC”)  and  sentencing  him to

undergo imprisonment for life and pay a fine of Rs.2,000/- and, in default,

to undergo R.I. for one year, has been dismissed.

2. Janabai, the deceased, was the wife of appellant.  They were married

in the year 1985.  They were having two daughters.  She suffered a burn

injury  during  the  night  between  03.09.1991  and  04.09.1991.   She  was

sleeping at her house.  However, the place where appellant was sleeping is

in dispute.   According to the First Information Report, the appellant was

sleeping with  the  deceased and two daughters  whereas  in  the  first  dying

declaration  made by the deceased,  he is  said  to  have  been sleeping in  a

nearby school.   

3. Indisputably, she suffered burn injuries. Upon hearing the screams for

help, some persons from the locality gathered.  They tried to extinguish the

fire.  She was thereafter removed in a bullock cart to a hospital of one Dr.

Warke.   From the  said  hospital  she  was  taken  to  Municipal  Hospital  at

Bhusawal as her condition became precarious.  On or about 4.9.1991, she

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gave a dying declaration before a police constable, Savda, which reads as

under:

“ I state that I stay with my husband, mother- in-law at the above mentioned place and earn our livelihood  by  doing  labour  work.   I  have  two daughters  and  my  maiden  home  is  at  Jalgaon Pimprala.   I had no dispute against  my husband, mother-in-law,  brother-in-law  and  I  was  living happily with my family.  

Today, on 04.09.1991 in between 12.30 to 1.00 O’clock in the night time my mother-in-law, brother-in-law, sister-in-law were sleeping inside the house.  My husband had gone to the school to sleep.  I suddenly started felt cold therefore, I got up  and  to  get  some  warmth  lighted  a  fore  and when I got up while making myself warm, part of my saree suddenly was lit  and I started shouting loudly that time my brother-in-law, mother-in-law and neighbours Bhagwat Chindu Koli and others came running and they by putting a blanket on me extinguished  the  fire  thereafter  after  a  while  my husband  Samadhan  Dhudku  Koli  came  running and as I was extensively burnt I was taken to Dr. Warke by putting  me in  the  bullock  cart.   I  am burnt by chest, face, waist, abdomen and my back is totally burn.  My both the hands are also burnt. I have not been burnt by anybody from the house nor I have burnt myself.  I have no suspicion on anybody.  While giving the statement I am fully conscious and whatever I have stated is correct.”

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The said dying declaration was marked as Exhibit 48.   

4. It stands admitted that another dying declaration was recorded by a

Judicial Magistrate on the same day.   The said dying declaration, however,

for reasons best known to the State was not produced.  An application for

bringing the said  dying declaration on  record was  filed  on  behalf  of  the

appellant,  which  was  rejected  by the learned Sessions  Judge.   The High

Court has also affirmed the said view.  We would advert to the said question

a little later.  

It  also  stands  admitted  that  on  or  about  6.9.1991,  another  dying

declaration  of  the  deceased  was  recorded  by the  Police  Head  Constable

Uttam Sonawane while she was undergoing treatment at Municipal Hospital

at Bhusawal.   

She, in the said dying declaration, attributed the act of commission of

the said offence on her husband, the appellant herein, stating:

“I,  state  on  asking  that  my  maiden  home  is Pimprala,  Tq. Jalgaon and I got  married about  6 years  before  to  Samadhan  Dhudku  Koli  of Rangaon,  Tq.  Raver  and  from  him  I  have  two daughters and their names are Jyoti aged 5 years

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and  Deepali  aged  1  year.   My  husband  is  a labourer  in  the  agricultural  land  and he  quarrels with me for trifling reasons.  

On  Tuesday,  03.09.91  I  had  gone  to  the agricultural land for cutting the grass that time I miss placed the grass cutter and therefore when I came home my husband Samadhan Dhudaku Koli started quarreling with me in the evening and said that  after  Pola  festival  you  should  go  to  your maiden  house  and  my daughters  should  be  kept here  or  else  I  will  burn  you and thereafter  after having dinner I with my both the daughter put the mattresses on the ground and slept.  My husband Samadhan  also  slept.   Thereafter  at  about  12 O’clock I got up as I felt  something cold on my body at that time my husband Samadhan Dhudaku Koli  was  pouring  kerosene  on  my  person  and therefore, I got scared and I got up but he lighted the match stick and lit it to me.  As I was burning I started  shouting  at  that  time  my  brother-in-law Sopan Dhudaku Koli  and Bhagwat  Sindhu  Koli, Baliram Sitaram (Police Patil) and several people from the  block  came there  and  extinguished  the fire  and  took  me  to  the  hospital  of  Dr.  Warke thereafter  taking  treatment  for  one  day  I  was brought  to  the hospital  at  Savdha  by the  police. My statement was recorded by the police.  But as I was  scared of  my people  from the house I  have given  different  statement.   I  am burnt  on  neck, hand, on my stomach, back and my thigh.”

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5. Before the learned Sessions Judge, the prosecution examined twelve

witnesses.   We may not  deal  with  the  depositions  of  all  of  them.   The

witnesses proving mahazar and seizure of some material  objects,  namely,

P.Ws. 1 to 6 were declared hostile.  P.W. 7 – Chandrabhagabai Koli, is the

mother of the deceased and P.W. 8 – Ananda Ramchandra Koli is the father

of the deceased.  P.W. 10 – Uttam Dasharath Sonawane is Head Constable

and P.W. 12 is Dr. Vishnu Jadhav who certified that the deceased was in a

fit physical and mental condition to make her statement before him.   

6. The  learned  Sessions  Judge  opined  that  there  was  no  satisfactory

evidence in regard to the motive for commission of offence of murder by

appellant.  As far as the question of guilt of the appellant and his parents is

concerned, while the other two accused were acquitted, the appellant was

found guilty.   

The learned Sessions Judge although noticed that there was no direct

evidence, but the offence was said to have been proved by P.W. 7 and P.W.

8 before whom a purported oral declaration was made by the deceased as

also  the  dying  declaration  in  Exhibit  30.   So  far  as  the  previous  dying

declaration  made by the  deceased  is  concerned,  the  same was not  relied

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upon, inter alia, on the premise that sufficient explanation had been given

by  the  deceased  that  she  had  all  along  been  under  the  clutches  of  the

appellant and his family.   

7. It  must  be  borne  in  mind  that  even  the  learned  Sessions  Judge

recorded a judgment  of  acquittal  so far as the  accused Nos.  2  and 3 are

concerned.  That part of the story that accused Nos. 2 and 3 acted in concert

with the appellant has been disbelieved. It was, therefore, not proper for the

learned Sessions Judge and the High Court to place implicit reliance upon

the depositions of P.Ws. 7 and 8.

The High Court by reason of the impugned judgment negatived the

contentions  raised  on  behalf  of  the appellant  that  the prosecution should

have  brought  on  record  the  statement  made  by  the  deceased  before  the

Executive Magistrate on 4.9.1991, stating that no purpose would be served

thereby  as  she  must  have  made  a  similar  statement  before  the  learned

Magistrate.   

8. An application filed before the High Court for bringing the second

dying declaration on record was rejected, stating:

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“8. Considering the factual aspect in the present case as it is apparently clear that the dying declaration   of  Janabai  was  recorded  on 04.09.1991 and the same is  proved by the prosecution  though  it  is  not  favourable  to the prosecution; but the same is brought on record with view that the Court can find out the truth as to whether the dying declaration dated 04.09.1991 is  the truthful  version of Janabai or whether dying declaration dated 06.09.1991  is  the  truthful  version  and  the Court  below,  after  scanning  the  evidence, has  concluded  that  the  dying  declaration dated  06.09.1991  involving  the  present appellant  in  the  said  crime  is  trustworthy and  acceptable  and  the  dying  declaration dated  04.09.1991 is  an  outcome of  threats extended  by the  appellant  accused.   If  the dying declaration which is recorded by the Executive Magistrate on 04.09.1991 if again brought on record the question remains as to which  dying declaration is  acceptable  and, therefore,  we find that  there  is  no need to remand the matter for recording evidence of the Executive Magistrate, as the said course is  not  at  all  necessary in  the  present  case. Therefore, the application filed by accused i.e.  Criminal  Application  No.  1418/2005, needs to be rejected.”   

9. The  High  Court  furthermore  while  noticing  that  the  prosecution

witnesses No. 1 to 6 had turned hostile and did not support the prosecution

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case but  having regard to the said purported dying declaration and some

other  circumstances  which  were  allegedly  brought  on  record  by  the

evidence of P.W.-7 and P.W.-8 upheld the judgment of the learned Sessions

Judge.   

10. The High Court inter alia noticed that P.W. 7 and P.W. 8 had testified

that about two months prior to the incident, the appellant had poured boiling

tea on the person of the deceased as a result  of which she had sustained

injuries to her hands, legs, etc.   

11. In her first dying declaration, she attributed suffering of burn injury

by reason of an accident.   She categorically stated that she had not been

burnt by anybody from the house nor did she do so herself.  She stated that

her  brother-in-law,  mother-in-law  and  neighbours  came  there  and

extinguished the fire after putting a blanket on her.

A dying declaration made before a Judicial Magistrate has a higher

evidentiary value.   The Judicial  Magistrate  is  presumed to  know how to

record a dying declaration.  He is a neutral person.  Why the prosecution

had suppressed the dying declaration recorded by the Judicial Magistrate is

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not  known.  Prosecution  must  also  be  fair  to  the  accused.   Fairness  in

investigation as also trial is a human right of an accused.  The State cannot

suppress any vital document from the court only because the same would

support  the case of the accused.   The learned Sessions Judge as also the

High Court,  in  our opinion,  committed a serious  illegality  in  refusing  to

consider the said question in its proper perspective.  The prosecution did not

explain  as to why the said dying declaration was not  brought before the

court. The learned Sessions Judge as also the High Court surmised about the

contents thereof.  Not only the contents of a dying declaration, but also the

manner in which it is recorded and the details thereof play a significant role

in the matter of appreciation of evidence.   

12. The veracity of depositions of the parents of the deceased should be

considered having regard to the entire backdrop of the case.  In none of the

dying declarations the deceased stated that her husband had poured hot tea

on her body.  If the relationship between the couple became strained from

that  time,  it  was  expected  that  the  same would  have  been  stated  by the

deceased in her dying declaration.  Why such a statement had been brought

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on record for the first time before the court by the parents of the deceased is

difficult to comprehend.  

13. Only because such a statement was made by them, the same should

not  have  been  considered  to  be  a  circumstance  against  the  appellant,

particularly when no allegation  about  harassment  meted  out  to  her  at  an

earlier point of time was made by the deceased herself.  

14. Evidently,  there  are  a  few  inconsistent  and  contradictory  dying

declarations.   The court while appreciating evidence on the basis of such

dying  declarations  is  required  to  take  into  consideration  inconsistencies

between two statements.  In this case, the learned Sessions Judge and the

High Court proceeded on the basis that out of the three dying declarations,

in  two  of  them  the  deceased  did  not  make  any  allegation  against  her

husband.  

15. A judgment  of conviction  can be recorded on the basis of a dying

declaration alone, but the court must have been satisfied that the same was

true and voluntary.  Indisputably, for ascertaining the truth as regards the

voluntariness of making such a dying declaration, the court  is  entitled to

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look into the other circumstances but the converse may not be true.  It is not

a case where the deceased and appellant were living separately.  It is also in

dispute, and as would appear from the statements made by the deceased in

her first dying declaration that, even on the night in question appellant was

not in the house; she was brought to the hospital by her husband and his

family.  If the intention of the appellant was to cause death to her, the fire

would not have been extinguished by his family members.  

16. Consistency  in  the  dying  declaration,  therefore,  is  a  very  relevant

factor.  Such a relevant factor cannot be ignored.  When a contradictory and

inconsistent  stand  is  taken  by  the  deceased  herself  in  different  dying

declarations, they should not be accepted on their face value.  In any event,

as a rule of prudence,  corroboration must be sought  from other evidence

brought on record.   

17. In  Mehiboobsab Abbasabi  Nadaf  vs.  State  of  Karnataka  [2007 (9)

SCALE  473]  where  four  dying  declarations  were  recorded,  this  Court

opined:

“6. Conviction can indisputably be based on a dying  declaration.   But,  before  it  can  be  acted

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upon, the same must be held to have been rendered voluntarily  and  truthfully.   Consistency  in  the dying declaration is the relevant factor for placing full reliance thereupon.  In this case, the deceased herself  had  taken  contradictory  and  inconsistent stand  in  different  dying  declarations.   They, therefore,  should  not  be  accepted  on  their  face value.   Caution,  in  this  behalf,  is  required to  be applied.”

The court noticed that as the deceased attributed the acts primarily on

her parents-in-law and they having been acquitted, it was difficult to hold

that  appellant  alone  was  responsible  for  causing  her  death.   It  was

furthermore noticed:

“8. In Mohammed Arshad v. State of Maharashtra and  Ors.  [2006  (12)  SCALE  370],  this  Court opined as under:

‘So  far  as  the  appeal  preferred  by Mohammed Ashraf  is  concerned, we are of the opinion that he is entitled to benefit of doubt. He was not named in the  first  two  dying  declarations.  He was  named  only  in  the  3rd dying declaration.  No  injury  by  stick  was found  on  the  back  of  the  deceased. The  motive  ascribed  as  against  him did  not  find  place  in  the  First

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Information  Report.  Evidently,  the deceased made improvement in his 3rd dying  declaration  before  the  Police Officer.

Keeping  in  view  the  backdrop  of events, we fail to see any reason as to why  appellant  Mohammed  Arshad would not have been named in the 1st or 2nd dying declarations if the motive for his involvement was non-payment of  a  sum  of  Rs.  60,000/-  as  was disclosed by the deceased.

This Court in Balbir Singh and Anr. v. State of Punjab [2006 (9) SCALE 537] relying upon several decisions of this  Court  including  State  of Maharashtra  v.  Sanjay  s/o Digambarrao  Rajhans  [(2004)  13 SCC 314] and Muthu Kutty and Anr. v. State by Inspector  of Police,  T.N. [(2005) 9 SCC 113] held:

‘We are of the opinion  that  whereas the  findings  of  the  learned  Sessions Judge  as  also  the  High  Court  in regard  to  guilt  of  Appellant  No.  1 must be accepted, keeping in view the inconsistencies  between  the  two dying  declarations,  benefit  of  doubt should be given to Appellant  No. 2. We, however,  uphold  the  conviction

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and sentence  of  both  the Appellants under Section 498-A IPC.’”

18. The  said decision,  we must  place  on  record,  was  distinguished  on

facts  in  Amarsingh  Munnasingh  Suryawanshi  vs.  State  of  Maharashtra

[2007 (12) SCALE 764] wherein a dying declaration recorded by P.W.8 –

Special Judicial Magistrate was given primacy as it was noticed that he had

taken  all  the  precautions  and  in  fact  when  the  dying  declaration  was

recorded a medical officer was present.  

19. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained; it is set aside accordingly.  The appeal is allowed.  Appellant is in

custody.   He is  directed  to  be  set  at  liberty  forthwith  unless  wanted  in

connection with any other case.   

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

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New Delhi; December 18, 2008

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