Holding

A dying declaration recorded before a Judicial Magistrate has higher evidentiary value and must be considered; inconsistent declarations require corroboration, and conviction cannot rest solely on a later, contradictory declaration.

Summary

The appellant, Samadhan Dhudaka Koli, was convicted under s.302 IPC for the death of his wife Janabai, who died from severe burn injuries. Three dying declarations were recorded: the first before a police constable describing an accidental fire, the second before a Judicial Magistrate (not produced by the prosecution), and the third before a police head constable accusing the husband. The Sessions Court and High Court relied on the third declaration, acquitting the parents‑in‑law and convicting the husband. On appeal, the Supreme Court held that a dying declaration made before a Judicial Magistrate carries higher evidentiary value, the prosecution’s failure to produce it was unlawful, and the inconsistent declarations required corroboration. Consequently, the conviction could not stand on the basis of the later declaration alone, and the appellant was entitled to the benefit of doubt. The Court set aside the conviction and allowed the appeal, directing the appellant’s release.

Issues considered

The evidentiary weight of dying declarations recorded before a police constable versus a Judicial Magistrate.
Whether the prosecution must produce all dying declarations and explain any suppression.
Whether a conviction can be sustained solely on an inconsistent dying declaration without corroborative evidence.
Whether the benefit of doubt applies when the accused is not named in earlier dying declarations.
The relevance of parents‑in‑law testimony in attributing guilt to the appellant.

Legislation cited

Indian Penal Code, 1860s. 302

Subjects

dying declarationevidentiary valueinconsistencybenefit of doubtSection 302 IPCmurderburn injuriesprosecution suppressionjudicial magistratecriminal appeal

Judgment

[2008] 17 S.C.R. 1025
( '

SAMADHAN DHUDAKA KOLi A
~ v.
' "' -""' STATE OF MAHARASHTRA
(Criminal Appeal No. 637 of 2006)

DECEMBER 18, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Evidence: Dying declaration - Bum injuries resulting in

..
·4 death of wife - Third dying declaration attributed role of
husband in the incident - In first dying declaration, incident c
stated to be accidental - Second dying declaration recorded
,, by Magistrate not put on record by prosecution - Plea of
appellant to bring second dying declaration on record rejected
by courts below - Acquittal of parents-in-law - Conviction of
husband-appellant under s.302 /PC - Challenged·- Held:
D
Dying declaration before judicial magistrate has higher
evidentiary value - Prosecution did not explain why second
',,}
dying declaration was not brought before the· Court - In the
-"" first dying declaration, deceased stated that appellant was not
in the house at the time of incident and the fire was
extinguished by his family members who also brought her to E
hospital - There was no allegation of harassment meted out
to deceased at earlier point of time - Deposition of parents
'<
r of deceased implicating accused cannot be considered as
· circumstance against the accused - Consistency in dying
declaration is a relevant factor - When contradicting and F
inconsistent stand is taken by the deceased herself in different
\ dying declarations, they should not be accepted on face value
- As a rule of prudence, corroboration must be sought from
other evidence on record - Deceased attributed the acts
primarily on her parents-in-law and since they were acquitted,
G
appellant alone cannot be held responsible for causing her
death - Penal Code, 1860 - s.302.
Prosecution case was that appellant and his parents
a.--' poured kerosene on the wife of the appellant and lit fire.
1025 H

!Ao.
1026 SUPREME COURT REPORTS [2008) 17 S.C.R.
'
•
A She suffered burn injuries which resulted in her death. .-
In the first dying declaration made before the police
r
constable, the deceased stated that she caught fire :-....
accidentally. Second dying declaration was recorded by
the Magistrate. This was not produced by the State. An
B application for bringing the said dying declaration on
record was dismissed by the Sessions c;ourt. In the third
dying declaration recorded after 2 days of incident by the
Police Head Constable, deceased attributed the
commission of offence on appellant-husband. Sessions ~·
c Court did not rely upon the first and second dying
declaration on the premise that sufficient explanation was
given by deceased in the third dying declaration for not .,...
naming appellant as she was scared of her in-laws and "
was all along under their clutches. The Sessions Court

-
acquitted accused 2 and 3 and convicted appellant under
D s.302 IPC. High Court also rejected the plea of appellant
of bringing the second dying declaration on record and
upheld the decision of trial Court. Hence the instant .
-' ./·
appeal. r
Allowing the appeal, the Court
E HELD:1. 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
F Judicial Magistrate is 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 j
suppress any vital document from the court only
because the same would support the case of the
G .accused. The Sessions Judge as also the High Court
committed a seri5>US illegality in refusing to consider the
said question in its proper perspective. The pro.secution
did not explain as to why the said dying declaration was
~
not brought before the court. The Se~sions Judge as also }

the High Court surmised about the contents thereof. Not
H
SAMADHAN DHUDAKA KOLi v. STATE OF 1027
MAHARASHTRA

.,
----#

only the contents of a dying declaration, but also the A
manner in which it is recorded and the details thereof play
"t
~
a significant role in the matter of appreciation of evidence.
[Para 11] (1034-A-D]
2. 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 two months prior to the
B

incident. If the relationship between the couple became
strained from that time, it was expected that the same c.
would have been stated by the deceased in her dying
declaration. Why such a statement had been brought on
record for the first time before the court by the parents
of the deceased is difficult to comprehend. Only because
such a statement was made by them, the same sh9uld
not have been considered to be a circumstance against D
the appellant, particularly when no allegation about
,> harassment meted out to her at an earlier point of time
"'\ was made by the deceased herself. [Paras 12 and 13]
(1034-D-G]
3.1. Evidently, there are a few inconsistent and E
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. The Sessions
Judge and the High Court proceeded on the basis that F
out of the three dying declarations, in two of them the
\ deceased did not make any allegation against her
husband. 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.
G
Indisputably, for ascertaining the truth as regards the
voluntariness· of making such a dying declaration, the
court is entitled to 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 H
1028 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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
8 extinguished by his family members. [Paras 14 and 15]
(1034-G-H; 1035-A-D]
3.2. Consistency in the dying declaration, therefore,
is a very relevantfactor. Such a relevant factor cannot be
ignored. When a contradictory and inconsistent stand is
C 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.
The court noticed that as the deceased attributed the acts
primarily on her parents-in-law and they having been
D acquitted, it was difficult to hold that appellant alone was
responsible for causing her death. [Paras 16 and 17]
(1035-D-E; 1036-A]
Mehiboobsab Abbasabi Nadaf vs. State of Karnataka
(2007) 9 SCALE 473, relied on.
E
Amarsingh Munnasingh Suryawanshi vs. State of
Maharashtra (2007) 12 SCALE 764, referred to.
Case Law Reference:
(2007) 9 SCALE 473 relied on Para 17
F (2007) 12 SCALE 764 referred to - Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 637 of 2006. J
From the Judgment and final Order dated 13.7.2005 of the
High Court of Judicature at Bombay, Bench at Aurangabad in
G Criminal Appeal No. 190 of 1995.
Sudhanshu S. Choudhari, Arundhati S. and Naresh Kumar
for the Appellant.
Ravindra Keshavrao Adsure for the Respondent. . -~

The Judgment of the Court was delivered by
H
SAMADHAN DHUDAKA KOLi v. STATE OF 1029
MAHARASHTRA

S.B. SINHA, J.1. This appeal is directed against the A
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. 1.995 in Sessions Case No.115 B
I
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.
.c
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.
D
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 schogl.
' 3. Indisputably, she suffered bum injuries. Upon hearing the
E
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
gave a dying declaration before a police constable, Savda, F
~
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 G
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,
H
1030 SUPREME COURT REPORTS , [2008] 17 S.C.R.

"'·
A 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
~nd when I got up while making myself warm, part of my
)o..
f'
-
saree suddenly was lit and I started shouting loudly that
B time, my brother-in-law, mother-in-law and neighbours
Bhagwat Chindu Koli and others came running and they
by putting a blanket ori 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,
t-·
c 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."
D 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 r
was not produced. An application for bringing the said dying
E 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 ~ ljttle later.
It also stands admitted that on or about 6.9.1991, another
F dying declaration of the deceased was recorded by the Police
Head Constable Uttam Sonawane while she was undergoing r
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
G 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 Kali of Rangaon, Tq. Raver and from i"
him I have two daughters and their names are Jyoti aged
H
SAMADHAN DHUDAKA KOLi v. STATE OF 1031
MAHARASHTRA [S.B. SINHA, J.]

5 years and Deepali aged 1 year. My husband is a 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 B
Samadhan Dhudaku Kali 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
:4- or else I will burn you and thereafter after having dinner I
with my both the daughter put the mattresses on the ground c
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 Keli
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 D
brother-in-law Sopan Dhudaku Keli and Bhagwat Sindhu
Keli, 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 E
·'
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."
5. Before the learned Sessions Judge, the prosecution F
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 G
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 H
1032 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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 wer~ ~caujtted, the appellant was found guilty.
The learned Sessions Judge although noticed that there
B 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
c not relied 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 eoncerned. That part of the story that accused
0
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.
E 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 woulq be served thereby as
she must have made a similar statement before the learned
F ·Magistrate~
8. An application filed before the High Court for bringing
the second dying declaration on record was rejected, stating:
"8. Considering the factual aspect in the present case
as it is apparently clear that the dying declaration
G
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
H
/
SAMADHAN DHUDAKA KOLi v. STATE OF 1033
MAHARASHTRA [S.B. SINHA, J.]

dated 04.09.1991 is the truthful version of Janabai A
or whether dying declaration dated 06.09.1991 is
the truthful version and the Court below, after
'-1
scanning the evidence, has concluded that the
dying declaration dated 06.09.1991 involving the
present appellant in the said crime is trustworthy B
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
-J 04.09.1991 if again brought on record the question
remains as to which dying declaration is
c
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 D
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 case but having regard to the.saiCI
purported dying declaration and some other circumstances E
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 F
appellant had poured boiling tea on the person of the deceased
\ as a res~!t 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 G
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.
H
'r
1034 SUPREME COURT REPORTS [2008] 17 S.C.R.
'.
~
•
"
A 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 tbe dying
....,.
declaration recorded by the Judicial Magistrate is not known.
B 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, >-
)

c 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 manryer in which it is
D 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 .-
'1

deceased should be considered having regard to the entire
Jr
backdrop of the case. In none of the dying declarations the
E 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 on record for the first time before -
F the court .by the parents of the deceased is difficult to
comprehend.
13. Only·because such a statement was made by them, i
the same should not have been considered to be a
- circumstance against the appellant, particularly when no
G 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 r.leclar.ations. The court while appreciating evidence on j,..
the basis of such dying declarations is r~quired to take into (

,...
H consideration inconsistencies between two statements. In this

,
.
I
SAMADHAN DHUDAKA KOLi v. STATE OF 1035
MAHARASHTRA [S.B. SINHA, J.]

case, the learned Sessions Judge and the High Court A
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 B
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 look into the
other circumstances but the converse may not be true. It is not
' ~J a case where the deceased and appellant were living c
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 D
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 E
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 4 73] where four dying F
{
declarations were recorded, this Court opined:

' "6. Conviction can indisputably be based on a dying
declaration. But, before it can be acted upon, the same
must be held to have been rendered voluntarily and
truthfully. Consistency in the dying declaration is the relevant G
factor for placing full reliance thereupon. In this case, the
deceased herself had taken contradictory and inconsiste11t
~ stand in different dying declarations. They, therefore, should
not be accepted on their face value. Caution, in this behalf,
is required to be applied." H
.1

r-
1036 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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 resp9nsible for ~·
~·

causing her death. It was furthermore noticed:
"8. In Mohammed Arshad v. State of Maharashtra and
B Ors. [2006 (12) SCALE 370), this Court opined as under:
'So far as the appeal preferred by Mohammed
t
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 ~,.-. I-
c only in. the 3rd dying declaration.
I
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 Information Repqrt. Evidently, the deceased
made improvement iri his 3rd dying declaration
before the Police Officer.
D
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.
E
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
F
[(2004) 13 SCC 314] and Muthu Kutty and Anr. v.
State by Inspector of Police, T.N. [(2005) 9 SCC
113) held:
I
'We are of the opinion that whereas the findings of
the learned Sessions Judge as ·also the High Court
G
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, .Ji.
however, uphold the conviction and sentence of both
H
SAMADHAN DHUDAKA KOLi v. STATE OF 1037
> MAHARASHTRA [S.8. SINHA, J.]

the Appellants under Section 498-A IPC."' A
18. The said decision, we must place on record, was
• ., -1 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 B
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
app_eal is allowed. Appellant is in custody. He is directed to be C
set at liberty forthwith unless wanted in connection with any other
case.
) D.G. Appeal allowed.