Koli Chunilal Savji & Anr. v. State of Gujarat

CITATION1999(9) SCC 562
COURTSupreme Court of India
JUDGES/CORAMJustice G.B. Pattnaik, Justice N. SantoshHegde and Justice M. Srinivasan


A dying declaration can be extremely useful for the prosecution to prove its case. Section 32 of the Indian Evidence Act, 1872 lays down the instances where a dying declaration becomes relevant. In the present case, the Supreme Court laid down when a dying declaration can form the basis of a conviction. Further, the Court discussed the High Court’s power to reverse an order of acquittal.


The facts of the case are as follows: The appellants in this case were tried for offences under Section 302/34 Indian Penal Code 1860. The allegations against them were that on 28.6.84 at 4 a.m., they poured kerosene on the deceased and her son while they were sleeping. The accused (appellants) in the case were the husband and mother-in-law of the deceased. The two victims were taken to the hospital where the Police recorded a statement of the deceased, which was treated as FIR. A Magistrate also recorded her statement at 9 a.m. which was treated as dying declaration. Both the victims died, and the accused were charged under Sections 498A and 302/34.


The main issues in the case were:

  1. Whether or not the two dying declarations can be held to be voluntary and truthful and can be relied upon to convict the accused.
  2. Whether or not the High Court exceeded its jurisdiction in interfering with the order of acquittal.

Contentions of the Parties

The counsel for the appellants argued that the dying declaration cannot be relied upon because the doctor wasn’t present when the same was recorded by the Magistrate and thus, there is no endorsement of a doctor that the deceased was in a fit condition to make a statement. The doctor hasn’t been examined either. Further, there was a lot of delay between the incident and the time when the Magistrate recorded the statement. Lastly, it was contended that since there was an order of acquittal, High Court shouldn’t have interfered with it without any justifiable reasons.

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It was contended by the respondent State that the dying declaration was a truthful and voluntary one and was rightly relied upon by the HC. Also, absence of endorsement by doctor doesn’t automatically imply that the declaration is not truthful. The doctor did make an entry in the Police diary, indicating that the deceased was in a fit condition to make any and it was the doctor who took the Magistrate to the deceased. It was further argued that the power of the HC against an order of acquittal is the same as against an order of conviction.

Summary of court decision and judgment

The Sessions Judge did not rely upon the dying declaration and since there was no other evidence to connect the accused with the murder, they were acquitted of the charge under Section 302/34. However, the Judge concluded that the offence under Section 498A was proved beyond reasonable doubt and the accused were convicted under it. The State of Gujarat preferred an appeal against the acquittal whereas the accused preferred an appeal against their conviction.

In a common judgment, the High Court held the dying declarations to be reliable and set aside the order of acquittal under Section 302/34. The accused appealed against this order. The Supreme Court observed that the dying declarations cannot be called unreliable merely because the doctor didn’t make an endorsement or wasn’t examined. The Magistrate who recorded the statement stated in her evidence that she was introduced to the deceased by the doctor and the latter also informed her that the deceased is in a conscious condition and also made an endorsement in the Police yadi to this effect. The police also recorded a statement that corroborates with the statement given to the Magistrate. The Court also rejected the contention that there was a delay in recording the dying declaration and held it to be voluntary and truthful. The Court went on to observe that the High Court has the same power in setting aside an order of acquittal as the power in setting aside an order of conviction. The High Court is entitled to re-appreciate the materials on record. “The only compulsion on the part of the Appellate Court is to bear in mind the reasons advanced by the learned Sessions Judge while acquitting the accused and indicate as to why those reasons cannot be accepted.” The Court held that in the present case, the High Court was fully justified in interfering with the order of the Sessions Judge. Hence, the appeal was dismissed and the conviction of the two accused under Sections 498A and 302/34 was upheld.

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In the present case, there were several contentions against the dying declarations, all of which were rejected by the Court. To start with, the appellant had contended that in the absence of other evidence, the dying declarations cannot form the basis of the conviction. This is contrary to the established principle that if the Court concludes that the declaration is a truthful and reliable one, it can be the sole basis for conviction.[1]

Further, in the present case, there were two dying declarations. It is true that in case the multiple dying declarations give different versions; a serious doubt is created.[2] However, in this case, both of them gave the same version.

Coming to the contention that the doctor was not examined, it is true that a doctor’s certificate goes a long way in proving the reliability of the declaration, however, in certain cases, it can be relied upon even without such a certificate.[3] What is essentially required is that the person who records the statement must be satisfied that the injured person was in a fit state of mind. A medical certificate is only a rule of caution.[4] In the present case, even though the doctor was not made a witness, he is the one who took the Magistrate to the deceased and assured the Magistrate that the deceased at that time was conscious.

It was also a point of contention that since there was an order of acquittal, the High Court shouldn’t have interfered with it without any justifiable reasons. However, there is no provision of law that prohibits the High Court from interfering with an order of acquittal.[5]


The “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such a time, it is expected that a person will speak the truth and only the truth. Normally in such situations, courts attach the intrinsic value of truthfulness to such a statement.[6] While it can be relied upon to convict the accused, if there is any suspicion about its reliability, the benefit of doubt must go to the accused.[7]

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[1] Lakhan v. State of M.P., (2010) 8 SCC 514.

[2] State of Punjab versus Parveen Kumar, 2005 (9) SCC 769.

[3] Laxman v. State of Maharashtra, 2002 Cr. L.J. 4095 (SC); State of M.P. v. Dal Singh, AIR 2013 SC 2059; Nathu Ram v. State of Rajasthan, 2016 Cr. L.J. 2098

[4] Gulzarilal v. State of Haryana, AIR 2016 SC 795.

[5] Nirbhay Singh vs State of Madhya Pradesh, Criminal Appeal No.219 of 1966.

[6] Sudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569.

[7] Natha Mahajan v. State of Maharashtra,(2012) 7 SCC 569.

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