IMPORTANT POINT
Conviction based on dying declaration can not be interfered with when it is found established that deceased was in a fit state of mind and voluntarily made the statement.

JUDGMENT

M.K. Mukherjee, J.-This appeal under Section 379 of the Code of Criminal Procedure, 1973 is directed against the judgment of the Gujarat High Court in Criminal Appeal No. 1312 of 1983 which reversed the order of acquittal passed by the Sessions Judge, Bhavnagar and convicted the appellant for uxoricide and sentenced him to imprisonment for life.

2. According to the prosecution case the appellant married Hansaben (the deceased) three months prior to her death and since marriage they were living with the parents of the appellant. However, since a week before her death they started living separately at Nirmal Nagar. On January 8, 1983 at or about 8.45 A.M. Hansaben asked the appellant as to why he had sold her kandora (waist-band). The appellant replied that for paying rent he had to sell the same. Over this issue a quarrel ensued between them in course of which the appellant first started beating her with a tawetha (iron instrument used for cooking purpose). Thereafter he poured kerosene oil on her and set her on fire by throwing a lighted match stick. On seeing the blaze the appellant tried to extinguish the fire and in that process he also got burn injuries on his hands. Neighbouring people immediately rushed there and sent information to Laxmanbhai (PW 6), father of Hansaben who lived nereby. Lakhmanbhai rushed to the house of the appellant and removed both of them to the hospital in an ambulance van. There Dr. B.K. Joshi (PW 2) examined Hansaben at 9.15 A.M. in the emergency ward and found that she had sustained 65% burns. On the basis of the statement she made Dr. Joshi then informed the Bhavnagar City Police Station over telephone that Hansaben was burnt by her husband by pouring kerosene and he had also received burn injuries. Shri Lakshari (PW 8), who was then the Duty Officer of the Police Station, entered the telephonic information in the station diary book at 9.50 A.M. He immediately sent an yadi (note) to C.K. Patel, a head constable who was then attached to the hospital as duty clerk, for doing the needful. On receiving that note Patel went to the hospital and recorded the statement of Hansaben (deceased) (Ext. 23). After taking down her statement he read over it to her and took her thumb impression thereon. He forwarded the statement to the Police Station and sent for the Executive Magistrate to record the statement of Hansaben. Shri Mathur (PW 3), the Executive Magistrate, reached the hospital at 10.30 A.M. and on receipt of the opinion of Dr. Upadhyaya that she was conscious and fit to make a statement recorded her statement in a question and answer form.

3. On the basis of the statement earlier made by Hansaben before the head constable (Ext. 23) a case under Section 307 IPC was registered against the appellant and S.I. A.M. Khan (PW 29) took up investigation. He went to the house of the appellant, prepared a sketch map and seized some burnt cotton mattresses, some pieces of jute and other articles. Consequent upon the death of Hansaben on January 9, 1983 at 9.30 A.M. and completion of investigation he submitted chargesheet against the appellant under Section 302 IPC.

4. The appellant pleaded not guilty to the charge levelled against him and his defence was that while preparing breakfast Hansaben accidentally caught fire from the oven.

5. In the absence of any eye witness, the prosecution rested its case upon three dying declarations of the deceased; the first of which was before Dr. Joshi immediately on her admission in the hospital, the second before the head constable and the last one before the Executive Magistrate. On consideration of the evidence the trial Judge came to the conclusion that the prosecution failed to prove its case against the appellant beyond reasonable doubt and the defence of the appellant was probable. Accordingly he acquitted the appellant. In reversing the order of acquittal the High Court firstly noticed that the trial Judge did not even consider the dying declaration made by the