SALIM GULAB PATHAN versus STATE OF MAHARASHTRA THROUGH SHO

Citation: [2012] 5 S.C.R. 930 · Decided: 10-05-2012 · Supreme Court of India · Bench: SWATANTER KUMAR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[20121 5 S.C.R. 930 
SALIM GULAB PATHAN 
v. 
STATE OF MAHARASHTRA THROUGH SHO 
(Criminal Appeal No. 1882 of 2010) 
MAY 10, 2012 
[SWATANTER KUMAR AND RANJAN GOGOi, JJ.] 
Penal Code, 1860 - s. 302 - Murder of wife - By setting 
her on fire - Statement of deceased implicating the accused 
C - Before three witnesses PWs 1, 3 and 4 immediately after 
the incident and to police constable (PW6) in the hospital -
Doctor certifying that deceased was in fit mental condition to 
make the statement - Plea of discrepancies in the evidence 
of PW1 - Conviction by courts below - On appeal, held: 
D Conviction justified in view of the dying declaration anq the 
evidence of PWs 1, 3 and 4 - Dying declaration was 
admissible - Discrepancies in the evidence of PW 1 not 
material - Dying Declaration. 
Evidence Act, 1872 - s. 32 - Dying Declaration - Dying 
E declaration recorded by Police Officer - Efficacy of - The 
statement of a deceased recorded by police officer as a 
complaint and not as a dying declaration, can be treated as 
a dying declaration, if other requirements in this regard are 
satisfied. 
F 
The prosecution case was that the accused-appellant 
and his wife were living in the house of PW1 (father-in-
law of the accused); that on the incident date, after a 
quarrel between the couple, the accused poured 
G kerosene on his wife and set her on fire. She came 
running out of the house in a burning condition. PW1 
alongwith PWs 3 and 4 extinguished the fire. The 
deceased stated to the witnesses that she was set on fire 
by the accused. She was taken to the hospital where, 
H 
930 
SALIM GULAB PATHAN v. STATE OF MAHARASHTRA 
931 
THROUGH SHO 
after certification of the doctor (PW2), she made statement 
A 
before the police constable (PW6). The trial court 
convicted the accused u/s. 302 IPC. The High Court 
affirmed the conviction. 
In the instant appeal, the appellant challenged his 
8 
conviction contending that the alleged dying declaration 
(i.e. the statement of deceased as recorded by PW 6) was 
unworthy of credence and, that PWs 1, 3 and 4 being 
related to the deceased were interested witnesses and, 
as such, not reliable. 
c 
Dismissing the appeal, the Court 
HELD: 1.1. A dying declaration would not lose its 
efficacy merely because it was recorded by a police 
officer and not by a Magistrate. The statement of a 0 
decseased recorded by a police officer as a complaint and 
not as a dying declaration can in fact be treated as a dying 
declaration, if the other requirements in this regard are 
satisfied. [Para 9] [938-C-D] 
Paras Yadav vs. State of Bihar 1999 (2) SCC 126: 1999 
E 
(1) SCR 55; Ba/bir Singh vs. State of Punjab 2006 (12) SCC 
283: 2006 (6) Suppl. SCR 636; Atbir vs. Government (NCT 
of Delhi) 2010 (9) sec 1: 2010 (9) SCR 993 - relied on. 
1.2. In a situation where PW 2 (doctor) has clearly 
F 
certified, both at the time of commencement of the 
recording of the statement of the deceased as well as at 
the conclusion thereof, that deceased was fully 
conscious and in a fit mental condition to make the 
statement, the said opinion of the doctor who was G 
present with the deceased at the relevant time is 
acceptable. Coupled with the above, there is the evidence 
of PW 1, PW 3 and PW 4 that immediately after the 
incident, the deceased had implicated her husband. In 
addition, the dying declaration stands fortified by the case 
H 
932 
SUPREME COURT REPORTS 
[2012] 5 S.C.R. 
A history of the deceased recorded by PW 2 at the time of 
her admission into the hospital. As regards the plea that 
having regard to the extent of burn injuries suffered by 
the deceased, it was not possible on her part to make the 
statement which was recorded by PW-6, no such 
B question was put to PW-2 in cross-examination. PW-2 
has clearly deposed that the deceased had narrated the 
history of the injuries suffered by her in the course of 
which she had implicated her husband. PW-2 has also 
deposed that the police constable (PW 6) had visited the 
c burn ward and had recorded the statement of the 
deceased. PW 2 and PW 6 cannot be attributed with any 
intention to falsely implicate the accused. [Paras 11 and 
13] [940-A-D; 941-A-C] 
2.1. The collection of sample of earth alone by the 
D police from the place of occurrence as testified by PW 1 
has to be understood in the context of the evidence of 
PW 5 who has deposed that in addition to samples of 
earth other articles were also seized and collected from 
the place of o

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