SHUDHAKAR versus STATE OF M.P.

Citation: [2012] 7 S.C.R. 128 · Decided: 24-07-2012 · Supreme Court of India · Bench: SWATANTER KUMAR · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2012] 7 S.C.R. 128 
SHUDHAKAR 
v. 
STATE OF M.P. 
(Criminal Appeal No. 2472 of 2009) 
JULY 24, 2012 
[SWATANTER KUMAR AND FAKKIR MOHAMED 
IBRAHIM KALIFULLA, JJ.] 
Evidence Act, 1872 - s.32 - Multiple dying declarations -
C Which one should be believed by the Court - Principles 
governing such determination - Death of appellant's wife due 
to severe burn injuries - Deceased made three dying 
declarations - Naib Tehsi/dar, DW1, recorded the first dying 
declaration wherein deceased stated that she received the 
D burn injuries from a stove while cooking food - Second and 
third dying declarations were recorded by Tehsi/dar (PW9) 
and Sub-Inspector (PW?), respectively, in both of which 
deceased stated that appellant had put kerosene oil on her 
and set her on fire and further that earlier she had given wrong 
E statement on the tutoring of appellant - Conviction of appellant 
u/s.302 /PC - Challenge to - Held: In cases where multiple 
dying declarations are involved and such qeclarations are 
either contradictory or at variance with each other to a large 
extent, the test of common prudence would be to first examine 
F which of the dying declarations is corroborated by other 
prosecution evidence - Further, the attendant circumstances, 
the condition of the deceased at the relevant time, the medical 
evidence, the voluntariness and genuineness of the statement 
made by the deceased, physical and mental fitness of the 
deceased and possibility of the deceased being tutored are 
G some of the factors which would guide the exercise of judicial 
discretion by the Court in such matters - In the instant case, 
on examination of the evidence, it is clear that the first dying 
declaration, which had completely absolved the appellant, 
H 
128 
SHUDHAKAR v. STATE OF M.P. 
129 
was not voluntary and not made by free will of the deceased 
A 
- Relatives of appellant were present at the time of making 
the first dying declaration and deceased had stated wrongly 
on the tutoring of appellant - Further, before recording the 
dying declaration, DW1 had not obtained fitness certificate 
from the doctor on duty - The second and third dying 
B 
declarations, which implicated the appellant, however, had 
been recorded after due certification by the doctor and were 
a/so authentic, voluntary and duly corroborated by other 
prosecution witnesses including the medical evidence, and, 
thus, could safely be made the basis for conviction - c 
Conviction of appellant accordingly sustained - Penal Code, 
1860 - s. 302. 
Evidence Act, 1872 - s. 32 - Dying declaration -
Admissibility and evidentiary value of - Held: 'Dying 
declaration' is the last statement made by a person at a stage 
D 
when he is in serious apprehension of his death and expects 
no chances of his survival - At such time, it is expected that 
a person will speak the truth and only the truth - Normally in 
such situations the courts attach the intrinsic value of 
truthfulness to such statement - Once such statement has 
E 
been made voluntarily, it is reliable and is not an attempt by 
the deceased to cover up the truth or falsely implicate a 
person, then the courts can safely rely on such dying 
declaration and it can form the basis of conviction - More so, 
where the version given by the deceased as dying declaration 
F 
is supported and corroborated by other prosecution evidence, 
there is no reason for the courts to doubt the truthfulness of 
such dying declaration. 
Evidence Act, 1872 - s.114 - Adverse inference under -
G 
When arises - Held: Question of presumption in terms of s. 114 
only arises when an evidence is withheld from the Court and 
is not produced by any of the parties to the /is. 
Criminal Trial - Onus of proof - On prosecution and on 
defence - Held: The prosecution has to prove its case beyond 
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130 
SUPREME COURT REPORTS 
[2012] 7 S.C.R. 
A any reasonable doubt while the defence has to prove its case 
on the touchstone of preponderance of probabilities. 
The appellant's wife received severe burn injuries 
and was admitted in the hospital where she ultimately 
8 died. It was alleged by the prosecution that the appellant 
had assaulted his wife and poured kerosene oil on her 
and thereafter, put her ablaze by lighting a match stick. 
Before her death, the appellant's wife made three dying 
declarations. The Naib Tehsildar, DW1, recorded the first 
C dying declaration (Exhibit D/2). In her first dying 
dec*+laration, the deceased did not implicate ap

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