IMPORTANT POINT
In this case High Court was wrong in not relying on the dying declarations of deceased Guddi and giving benefit of doubt to her husband who caused her murder by pouring kerosene and litting fire at the instigation of his mother. The reasons given for not relying on dying declarations are clearly erroneous and unsustainable on close and careful scrutiny of the evidence and circumstances in this case.

Headnote:(i) Evidence Act, 1872-Section 32(1)-Dying declaration-Whether dying declarations are reliable pieces of evidence? (Yes) (Para 10)-It can form basis of conviction without any corroboration if found to be true. (Para 11)
       (ii) Indian Penal Code, 1860- Section 302-Respondent husband causing murder of his wife by putting kerosene and match at the instance of his mother-Mother-in-law acquitted - Respondent convicted on the basis of 3 dying declarations -One recorded by SHO as FIR-2nd under Section 161 Cr.P.C. statement by I.O. and third by the Judicial Magistrate in questions answers -High Court acquitted even respondent-husband giving benefit of doubt- Whether correct? (No)- Appeal allowed-Acquittal set aside. (Para 20)
       Held : The declaration reflects the true state of affairs at the time of occurrence and her statement is a truthful version and is reliable one. (Para 13)
       One important factor which cannot be lost sight of is that no one was present with the deceased at the time of recording Ex.P-8 to tutor her to give any false statement or to implicate falsely anyone. As a fact, all the three declarations are spontaneous. That would lend reliability to her declaration coupled with the brutally frank statement given by the deceased Guddi to PW.1 accusing only the respondent and her mother-in-law which inspires us to believe that Ex.P-8 contains all grains of truth and is a reliable statement made by Guddi, the deceased in expectation of her death due to extensive 80 per cent burn injuries. Therefore, it would by itself form basis for conviction. If, at all, any corroboration in needed, Ex.P-16, FIR and Ex.P-19 would corroborate her evidence. (Para 14)
       The omission to attribute motive to the respondent is not a material consequence since it was done at the instigation of his mother. (Para 15)
       Held further : That though co-accused Pushpa was wrongly acquitted of the charge of murder, it does not cast any doubt on the veracity of the statement of the deceased under Ex.P-8 nor can it be suspect to act upon the self-same evidence against the respondent. Every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not the doubt of a vacillating Judge. (Para 17)
       It is equally true that the investigating officer PW.8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. It is seen from the Panchnama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by destroying the evidence. Others were prevented from entering the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene oil on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but felt it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt. (Para 18)
       Held thus : The reasons, therefore, are clearly erroneous and unsustainable to a close and careful scrutiny and meticulous examination of the evidence and circumstances in the case. The evidence proves the prosecution case beyond reasonable doubt that the respondent had poured kerosene oil on the deceased, lit the fire with match-stick causing 80 per cent burn injuries to the deceased which resulted in her death. Thereby, the offence of murder punishable under Section 302, IPC has been established beyond reasonable doubt. The Sessions Court, therefore, rightly recorded the conviction under Section 302, IPC and sentenced him to undergo imprisonment for life.

JUDGMENT

K. Ramaswamy, J.-Leave granted.

2. Despite issuance of non-bailable warrant and attachment of the properties, presence of the respondent could not be secured for executing the warrants as it was reported that his whereabouts were not known. Consequentially, as per the directions of the Court, the Legal Aid Committee assigned Shri S. K. Pasi to assist the Court as a counsel for the respondent. After hearing the counsel for the State and the respondent, we had reserved the judgment on January 30, 1996. However, on February 2, 1996, the respondent was brought and his counsel Shri Sushil Kumar Jain requested the Court to give an opportunity for hearing. Accordingly we heard the matter again. This case also indicates avoidance on the part of the people like the respondent to delay the disposal of the appeal in this Court. When the attempts were found to be unsuccessful, he made appearance in the Court which gave us an insight to adopt such appropriate procedure for securing presence for early disposal to avoid miscarriage of justice.

3. On June 21, 1984, PW.6, Station House Officer, Sodala Police Station in Jaipur, Rajasthan State had received a telephonic message, recorded under Ex.P-22, that Guddi, the deceased was burnt of injuries and was admitted in the hospital. After its entry in the G.D., he proceeded to the hospital and recorded her statement Ex.P-16, came back to the police station, issued the F.I.R. and set the investigation in motion. PW.8 took over the investigation, went to the deceased and recorded her statement Ex.P-19 under Section 161 of the Code of the Criminal Procedure, [Cr.P.C.] and sent the requisition Ex.P7 to the Chief Judicial Magistrate, Jaipur to record her declaration. The latter directed PW.1, the Addl. Chief Judicial Magistrate by name Hari Singh Punia to proceed to the hospital and record the statement. Accordingly, PW.1 on receipt of the order at 9.45 p.m. proceeded to the hospital and reached the hospital at about 10.10 p.m. on June 21, 1984. He sent a nurse to get the doctor for his proceeding with the recording of her statement. He waited till 10.50 p.m. but no doctor turned up. Consequentially, he proceeded to record her statement by way of questions and answers under Ex.P-8. He put 8 questions in all. Relevant questions are: Question Nos.1, 2 and 3. They along with answers read as under :

"1. Question - What was the time of incident?

Answer - It was 2 O Clock at day. After pouring kerosene oil, lit match-box.

2. Question - Who were present at your house at that time?

Answer - My mother-in-law, four sisters-in-law and my daughter. Sisters-in-law are Suman, Guddi, Wanchuki, Sampat.

3. Question - How did you get burnt?

Answer - In the morning, my mother-in-law poured kerosene oil on me but I did not get burnt. After this, my husband come for lunch at noon and my mother-in-law asked him to lit match-box on me. Then my husband after pouring kerosene oil on me, lit match-box and my husband came out of the house. My mother-in-law kept on watching.

4. The other questions are not relevant for the purpose of this case; hence omitted. She died on June 22, 1984 due to 80 per cent burn injuries. The crime was covered under Section 302, Indian Penal Code [IPC]. PW.7, the doctor conducted autopsy and issued post-mortem certificate, Ex.P-21. At the trial, prosecution had examined as many as 8 witnesses including PW.3 and PW.4, the immediate neighbours and PW.2, brother of the deceased to prove motive. PW.3 and PW.4 turned hostile. The Sessions Judge relied upon the three dying declarations and he has given primacy to the dying declaration recorded by the Judicial Magistrate under Ex.P-8 and held that the charge under Section 302, IPC was proved against the respondent and convicted him under Section 302 and sentenced him to undergo rigorous imprisonment for life. But he acquitted the deceased s mother-in-law, Pushpa.

5. The State

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1996 Supreme(SC) 480

Cases Referred (9)