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Why suppress a dying declaration made before magistrate, asks Supreme Court

New Delhi: Fairness in investigation and trial is a human right of an accused. The state cannot suppress any vital document from court just because it would support the case of the accused, the Supreme Court has held.

“The prosecution must also be fair to the accused. The court, while appreciating evidence on the basis of different dying declarations, is required to take into consideration inconsistencies between two statements and must accept the one that is favourable to the accused,” said a Bench consisting of Justices S.B. Sinha and Cyriac Joseph. The Bench acquitted a convict, who was awarded life imprisonment by a lower court on the basis of a second dying declaration made by Janabai, blaming her husband Samadhan Dhudaka Koli, and completely ignoring her earlier statement before a magistrate that her saree caught fire in an accident. The second declaration was made before the police.

Writing the judgment, Justice Sinha pointed out that a dying declaration made before a judicial magistrate had a higher evidentiary value. The Bench said Janabai, in her first dying declaration, attributed her burns to 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 putting a blanket on her.”

The Bench said: “The judicial magistrate is presumed to know how to record a dying declaration. He is a neutral person. Why the prosecution suppressed the dying declaration recorded by the judicial magistrate is not known.”

Koli was awarded life imprisonment by a sessions court, which rejected his application to bring on record Janabai’s first declaration that was in his favour. This sentence was confirmed by the Aurangabad Bench of the Bombay High Court. Allowing Koli’s appeal against this judgment, the Supreme Court said: “The 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 why the said [first] declaration was not brought before the court. Evidently, there are a few inconsistent and contradictory dying declarations.”

“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,” the Bench said and directed that Koli be set at liberty forthwith.

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