KOLI CHUNILAL SAVJI AND ANR. versus STATE OF GUJARAT

Citation: [1999] SUPP. 3 S.C.R. 284 · Decided: 29-09-1999 · Supreme Court of India · Bench: G.B. PATTANAIK · Disposal: Dismissed

Judgment (excerpt)

A 
B 
KOLi CHUNILAL SAVJI AND ANR. 
v. 
STATE OF GUJARAT 
SEPTEMBER 29, 1999 
[G.B. PATTANAIK, M. SRINIVASAN AND 
N. SANTOSH HEGDE, JJ.] 
. Penal Code, 1860 : Sections 302/34 and 498-A-Bride burning-Hus-
band and mother-in-law burning the bride and child--Deceased making two 
C dying declarations, one to police and another to Magistrate-No endorsemellt 
of doctor on the dying declaration as to the menial condition of deceased-En-
dorsemellt in police yadi-No inconsistency in two dying declaration~ Trial 
Court not placing reliance 011 the dying declaratio11~Acquittal-On appeal, 
High Court holding the two dying declarations trnthful and voluntary--Co11-
D victio11 and sentence-Validity of-Held, dying declaration does not lose its 
value merely in the absence of endorsement by doctor-Two dying declarations 
made by deceased are trnthful and voluntary-Prosecution case has been 
established beyond reasonable doubt-<::onvictio11 and sentence upheld-
Evidence Act, 1872 : Section 32. 
E 
·Evidence Act, 1872 : Section 32-Dying declaration-No endorsement 
by doctor indicating the melltal condition of deceased-Effect of 
Criminal Procedure Code, 1973: Sections 378 and 386-Appeal against 
acquittal-Power of High Court to interfere with-Held, power of High Court 
while sitting in appeal against an order of acquittal is the same as the power 
F in appeal against conviction-However, appellate Court to bear in mind the. 
·reasons advanced by the Trial Court for acquitting the accused and indicate 
the reasons for non-accepting the same-Trial court e"o11eously excluded the 
dying .declaration which were found to be trnthful and voluntary-High Court 
justified in interfering with the order of acquittal. 
G 
The appellants were prosecuted for an offence under Section 302/34 
and 498-A IPC. Thi! prosecution case was that when 'D' and her son 'A' were 
sleeping the accused, viz. the husband and mother-in-law poured kerosene 
on them and set them o.n fire. They were taken to the hospital, where the 
Sub-Inspector (PW-14) recorded the statement of 'D' which was treated as 
H FIR (Exh.45). Besides this, Magistrate also recorded her statement in the 
284 
. .i 
KOU CHUNILAL SEVJI v. STATE 
285 
hospital which was treated as a dying declaration (Exh.14) Both 'D' and 'A' 
succumbed to their burn injuries. The Trial Court not relying upon the 
dying declaration acquitted the accused person for offence under Section 
302/34. However, the Trial Court convicted them for an offence under 
Section 498·A IPC and sentenced them to two years rigorous imprisonment. 
On appeal, High Court holding the two dying declarations truthful and 
voluntary convicted the accused under Section 302/34 IPC. and awarded 
sentence of imprisonment for fife. The High Court also affirmed the con· 
viction and sentence of Trial Court under section 498-A IPC. Aggrieved, the 
appellant-accused have preferred the present appeal. 
The contentions of the appellants were that (i) the two dying dee· 
Iarations cannot be relied upon inasmuch as the doctor was not present 
while the dying declaration was recorded by the Magistrate and further, 
there is no endorsement by the doctor, indicating the mental condition of 
A 
B 
c 
the deceased to the effect that she was in a fit condition to make the 
statement; (ii) the deceased was surrounded by her own relations before 
the dying declaration was recorded by the Magistrate and as such had D 
sufficient opportunity to be tutored and consequently the dying declara· 
tion recorded by the Magistrate becomes vitiated; (iii) the incident having 
taken place at 4 A.M. and the dying declaration having been recorded by 
the Magistrate at 9 A.M., five hours after the occurrence, there has been 
gross delay which makes the dying declaration doubtful and as such E 
should not have been accepted; (iv) the learned Sessions Judge having 
recorded an order of acquittal, the same should not have been interfered 
with by the High Court without justifiable reasons. 
The contentions of the respondent-State were that (i) the doctor did 
F 
make an entry in the police yadi, indicating that the deceased was in a 
fit condition to make any statement and it is he, who took the Magistrate 
to the deceased and non-endorsement by the doctor on the statement 
recorded by the Magistrate cannot be held to be fatal nor can any doubt 
arise on that score; (ii) the power of the High Court against an order of 
acquittal is the same as against an order of conviction a

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