Full Judgment Text
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
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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
rd
was named only in the 3 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
rd
deceased made improvement in his 3
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
st
would not have been named in the 1
nd
or 2 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