IMPORTANT POINT
When in two dying declarations, one recorded by police and second by Magistrate, there were glaring contradictions and other circumstances created doubt in truthfulness of version, it could not be acted upon to base conviction.

Headnote:Indian Penal Code, 1860-Section 302-Appellant convicted for murder of her sister in law, brother s wife-Two dying declarations, one recorded by Head Constable when victim had been admitted in Hospital and 2nd recorded by Magistrate after six days of incident-Appellant was alleged to have first hit deceased on back of her head and she fell down unconscious and then poured kerosene on her body and set her on fire-Comparison of two dying declarations showed certain glaring contradictions-Factum of victim having seen appellant taking out kerosene and pouring same on her was not spoken in her second dying declaration-Motive in two dying declaration was entirely different-Wound certificate prepared by doctor PW 11 stated that deceased stated that she suffered injury due to accidental burns while preparing food-No strong motive for appellant to kill her sister in law by burning-Conduct of appellant having accompanied victim to hospital indicated otherwise-No injury was notice by doctor or in post mortem on back of head of deceased-Dying declaration could not be relied upon-Conviction was unsustainable. (Paras 8 and 9)

JUDGMENT

Santosh Hegde, J.-Appellant herein was convicted by the Court of Session, Pathanamthitta, Kerala for an offence punishable under section 302 IPC and was sentenced to undergo imprisonment for life for having committed the murder of her sister in law by name Suma Varghese. Her appeal to the High Court of Kerala at Ernakulam having failed she is before us in this appeal. The facts necessary to be noted for the disposal of this appeal are as follows:

2. Deceased Suma Varghese was the wife of Jose Mathew PW-1 and was residing with her husband and father in law PW-2 in Nellickal house. PW-2 father in law of the deceased had purchased a property which the appellant who was his daughter and sister in law of the deceased, wanted him to hypothecate to secure a housing loan for her. It is alleged PW-2 agreed to do so but the deceased objected to the same. It is because of this reason the appellant, according to the prosecution, had entertained an ill-will against the deceased. Prosecution alleges that on 8.7.1989 at about 8.45 a.m. when the deceased was dressed and ready to go to her mother s house, the appellant came to her house and struck her on the back of head with a piece of fire-wood because of which the deceased fell down. Thereafter it is alleged the appellant poured kerosene oil on her chest and set her on fire which caused serious burn injuries. On hearing the alarm raised by the children of the deceased, PW-2 and others came running and extinguished the fire, noticing the severe burn injuries suffered by the deceased. She was removed to the Government hospital at Kanjirappally where the Medical Officer on duty after giving first aid and noticing the nature of injuries on her body, referred her to the Medical College Hospital at Kottayam. The prosecution alleges that while she was in the Medical College Hospital, two dying declarations of hers were recorded; one by Head Constable Karunakaran Nair, PW-14 on 10.7.1989 at about 10.45 p.m. and the other by Judicial First Class Magistrate, PW-8 on 14.7.1989. As per the said dying declarations, the deceased implicated the appellant as the person who poured kerosene on her and lit the fire causing her burn injuries. A complaint in this regard was lodged on 10.7.1989 by PW-6 father of the deceased, based on which the investigation was initiated by the jurisdictional Police and on completion of the same a chargesheet as against the appellant was filed for an offence punishable under section 302 IPC. Deceased Suma died on 28.7.1989. As stated above, after trial the appellant was found guilty of the offence charged by the trial court which finding was confirmed by the High Court.

3. Mr. V.B. Saharya, learned amicus curiae appearing for the appellant, contended that the courts below have erred in placing reliance on the two dying declarations made by the deceased which when examined in the light of other evidence led by the prosecution, would clearly go to show that the deceased had implicated the appellant falsely and her own evidence as corroborated by the other evidence led in this case, indicates that the deceased had suffered accidental burns and she had falsely implicated the appellant as the assailant.

4. Learned counsel during the course of his arguments, pointed out that there was absolutely no motive for the appellant to commit such a gruesome crime. He also pointed out that even according to the entry made by the doctor, PW-11, in the wound certificate Ex. P-11, deceased had told him that she suffered the burns accidentally when she was cooking food for the piglings. Learned counsel then pointed out the discrepancies in the two dying declarations Ex. P-10 and 15. It is based on the said contradictions in the prosecution case, learned counsel pleaded that the appellant has been wrongly convicted by the two courts below.

5. Mr. Ramesh Babu, learned counsel appearing for the respondent, however, contended that both the courts below have rightly accepted the prosecution case wh

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2004 Supreme(SC) 233

IMPORTANT POINTWhen in two dying declarations, one recorded by police and second by Magistrate, there were glaring contradictions and other circumstances created doubt in truthfulness of version, it could not be acted upon to base conviction.

IMPORTANT POINT
When in two dying declarations, one recorded by police and second by Magistrate, there were glaring contradictions and other circumstances created doubt in truthfulness of version, it could not be acted upon to base conviction.