Judgment

AMARENDRA NATH SEN, J. - The appellant was convicted under Section 302 of the Indian Penal Code and sentenced to under go imprisonment for life by the Sessions Judge, Arrah. Against his conviction, the appellant preferred an appeal to the High Court at Patna. The High Court by its judgment and order dated 12-2-1975 dismissed the appeal and upheld the conviction of the appellant. Against the judgment and order of the High Court, the appellant has filed this appeal with special leave granted by this Court.

2. The ease of the prosecution may be briefly stated : On 30-10-1967 at about 5 a. m. Sabitri Devi deceased, (for whose murder the appellant has been convicted), of village Pakri, Police Station Bihiya had gone to the house of the appellant who is also the resident of the same village to take back her ornaments and a sum of Rs. 500/- in cash which Sabitri Devi had kept with the appellant for safe custody during the temporary absence of Sabitri Devis mother. The appellant refused to return the ornaments and the cash which were said to be kept in her safe custody and it is alleged that she sprinkled kerosene oil on the clothes of Sabitri Devi and set fire to the same. Sabitri Devi thereafter started running in flames towards her house and fell down on the road. While running she had been screaming and shouting that the appellant had not returned the ornaments and cash when demanded and had set fire to her clothes after sprinkling kerosene oil on the same. Sabitri Devi was thereafter removed to Arrah Sadar Hospital where Assistant Inspector of Police attached to Arrah Police Station recorded the statement of Sabitri Devi. This Fard-beyan of Sabitri Devi was sent to Bihiya Police Station. Sabitri Devi died in the Arrah Sadar Hospital on that very day at 9.30 a. m. There was the usual commitment enquiry under Chapter 18 of the Code of Criminal Procedure and the learned Magistrate who conducted the enquiry committed the appellant to the Court of Session to stand her trial there.

3. The appellant was charged with the murder of Sabitri Devi under Section 302 of the Indian Penal Code. In the Sessions Court the prosecution examined nine witnesses. The learned Sessions Judge relying on the statement made by Sabitri Devi to the Assistant Inspector of Police which has been recorded and which was treated as the dying declaration of Sabitri Devi and the testimony of five witnesses, namely, P. Ws. 1, 4, 5, 7 and 8 who had seen Sabitri Devi running in flames and heard the screams and utterances of Sabitri Devi, found that the prosecution case had been proved beyond doubt and held the appellant guilty and convicted her under Section 302 of the Indian Penal Code.

4. On appeal the High Court agreed with the findings of the learned Sessions Judge and held that the appellant had been rightly convicted and dismissed the appeal.

5. Before the learned Sessions Judge, the main contention of the appellant appears to have been that the case of the prosecution had not been properly established. It appears that the very same arguments were advanced before the High Court. The main argument before, the High Court was that the Sessions Judge went clearly wrong in placing any reliance on the statement alleged to have been made by Sabitri Devi to the Police Officer and recorded by the police officer. It was argued before the High Court that no reliance could be placed on the said statement which was considered to be the dying declaration of the deceased as the statement had not been made to a Magistrate but to a Police Officer and the facts and circumstances of the case would indicate that Sabitri Devi was not in a fit condition to make any statement at all. It had been further argued that there was no corroborative evidence of the said statement and in the absence of any corroboration of the dying declaration. conviction of the appellant only on the basis of the dying declaration could not be justified. The High Court in its judgment had carefully consider