SAMADHAN DHUDAKA KOLI versus STATE OF MAHARASHTRA

Citation: [2008] 17 S.C.R. 1025 · Decided: 18-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2008] 17 S.C.R. 1025 
' 
( 
SAMADHAN DHUDAKA KOLi 
A 
~ 
v. 
"' 
ST ATE 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 
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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 
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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 
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to deceased at earlier point of time - Deposition of parents 
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of deceased implicating accused cannot be considered as 
· circumstance against the accused - Consistency in dying 
declaration is a relevant factor - When contradicting and 
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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. 
a.--' 
Prosecution case was that appellant and his parents 
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 
constable, the deceased stated that she caught fire 
r 
:-.... 
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 
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Court did not rely upon the first and second dying 
c 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 
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of bringing the second dying declaration on record and 
upheld the decision of trial Court. Hence the instant 
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appeal. 
r 
Allowing the appeal, the Court 
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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 
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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 
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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 
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 
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not brought before the court. The Se~sions Judge as also 
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H the High Court surmised about the contents thereof. Not 
SAMADHAN DHUDAKA KOLi v. STATE OF 
1027 
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MAHARASHTRA 
only the contents of a dying declaration, but also the 
A 
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manner in which it is recorded and the details thereof play 
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a significant role in the matter of appreciation of evidence. 
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[Para 11] (1034-A-D] 
2. The veracity of depositions of the parents of the 
deceased should be considered having regard to the 
B 
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entire backdrop of the case. In none of the dying 
declarations the decease

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