Samadhan Dhudaka Koli
Vs. State of Maharashtra [2008] INSC 2227 (18 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 637 OF 2006
SAMADHAN DHUDAKA KOLI ... APPELLANT Versus
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 2 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 3 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."
4 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 5 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."
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.
1.
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 7 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:
8 "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 9 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 10 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 11 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 12
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
13 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 was named only in the 3rd 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 14 Information Report.
Evidently, the deceased made improvement in his 3rd 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 would not have been named in the 1st or 2nd 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 15 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]
New
Delhi;
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