Judgment

HANSARIA, J.- This appeal on certificate would require our decision, inter alia, on the question of evidentiary value of dying declaration made by gestures. This question arises, because from what is being stated later, it would be clear that the conviction of the appellant under Section 302 IPC is principally based on dying declaration of deceased, Meesala Ramanamma alias M. Venkata Ramanamma, who was none else than the wife of the appellant. As the deceased was not in a position to speak at the relevant time her dying declaration came to be recorded by a Magistrate on the basis of some nods and gestures made by her. It is this dying declaration which has led in the main to find the appellant guilty of murder of his wife which has resulted in his being sentenced to RI for life - the minimum punishment provided by law.

2. The appellant alone had faced the trial relating to murder of his wife. The Sessions Judge, Visakhapatnam, found the appellant guilty under Section 302 and sentenced him as aforesaid. On appeal being preferred before the High Court of Andhra Pradesh, the same came to be heard by a Division Bench consisting of Justice Jayachandra Reddy (as he then was) and Justice Sardar AH Khan. The learned Judges differed in their ultimate conclusions. Justice Reddy gave the benefit of doubt and ordered to acquit the appellant. Justice Khan on the other hand was of the view that the charge of murder has been brought home and so he dismissed the appeal. On the papers being placed before the Chief Justice of the High Court, it was ordered to place the appeal for hearing before Justice Rama Rao who agreed with the view expressed by Justice Khan, because of which the appeal ultimately came to be dismissed by the High Court. However, being of the view that the case is fit for appeal to this Court on the question mentioned above, a certificate was granted under Article 134( 1)(c) of the Constitution.

3. Before addressing ourselves on the question on which certificate has been granted, we have to see whether the conviction as ultimately upheld by the High Court is sustainable on the basis of materials on record. As already indicated, the principal evidence is the dying declaration to which we shall advert a little later to decide whether on the basis of the declaration as made the conviction was warranted.

4. Though the law is well settled that conviction can be founded solely on the basis of dying declaration if the same were to inspire full confidence, which has been the view of this Court ever since the decision in Khushal Rao case{Khushal Rao v. State of Bombay, AIR 1958 SC 22}, which view was reiterated in Kusa v. State of Orissa{(1980) 2 SCC 207}, which legal position has not been questioned by the learned counsel for the appellant, we may nonetheless state that apart from the dying declaration there are materials on record to lend credence to the prosecution case that it is the appellant who had murdered his wife. This material has been provided by PWs 1, 2 and 3 who are immediate neighbours of the appellant. According to PW 1 he heard some shouts coming from the house of the deceased on the day of occurrence (17-6-84) at about 12.30 p.m. when he was taking lunch. This brought him to the house of the appellant and entering inside the house he found the appellant standing by the side of his wife who was in flames. On being questioned, the appellant stated that he could not put down the flames as he was afraid. It is this witness who covered the deceased thereafter with a bedsheet and put down the flames and then took her inside the main room in which action he was assisted by the appellant. On advice being given to the appellant to take his wife to the hospital it was so done. According to PW 2 she heard shouts and saw the deceased in flames and the appellant standing near the door. Of course, she admitted in cross-examination that she did not enter the house and that she had peeped through the window. To the similar eff