Dying declarations can form the sole basis for conviction if found to be true and voluntary, subject to caution and medical opinion.

S. B. SINHA, J.

( 1 ) APPELLANT is before us being aggrieved by and dissatisfied with the judgment dated 19. 7. 2005 passed by a Division Bench of the Bombay High court, Aurangabad Bench, in Criminal Appeal No. 576 of 1996 dismissing the appeal preferred by him against the judgment and order of conviction and sentence dated 7. 9. 1996 of the learned Additional Sessions Judge, Jalna under Section 302, i. P. C. in Sessions Case No. 24 of 1991.

( 2 ) KAMLABAI, the deceased, was married to the appellant 15 years prior to the incident which took place at about 9. 00 p. m. on 7. 6. 1990. The couple had five children -two daughters and three sons - all being minor at the material time. Appellant was not doing any work. He was said to be addicted to liquor. Deceased used to work as a labourer in Bajrang Dal Mill.

( 3 ) IT is the case of the prosecution that she had all along been ill-treated by her husband. On the fateful day of 7. 6. 1990, she came from work at about 6. 30 p. m. She had prepared food. At about 9 p. m. when she was serving food to the appellant, he took out kerosene from the lamp, poured it on her and set her ablaze. He, thereafter, fled away from the place.

( 4 ) ON hearing her cries, the neighbours came and extinguished the fire. But she was left at lurch. It appears that somebody informed her uncle-Laxmansingh who visited her next day morning. He took her to the Civil Hospital, Jalna.

( 5 ) THE said incident having been reported to the police authorities, the Officer In-charge of the Police Station asked the Head Constable Sitaram to visit the hospital. He visited the hospital at about 8. 45 p. m. and recorded the dying declaration of the deceased which was marked as Exhibit 37 before the learned trial Judge. On the said basis, a First Information Report was lodged. Another dying declaration was recorded by the Special Judicial Magistrate at about 3. 15 p. m. on the same day. The said dying declaration was marked as Exhibit 43 before the learned Sessions Judge.

( 6 ) WE may notice that the deceased breathed her last on 22. 6. 1990, i. e. , about 15 days after the incident.

( 7 ) DESPITE the appellant having been named in the First Information Report, in the aforementioned two dying declarations, he could not be arrested as he was absconding. He surrendered only on 5. 7. 1990.

( 8 ) BEFORE the learned trial Judge twelve witnesses were examined on behalf of prosecution. Apart from P. W. 2-Vinod son of the deceased, no other witness was examined by the prosecution to prove the act of commission of the offence. He, however, turned hostile. It also appears that other prosecution witnesses also did not support the prosecution case.

( 9 ) WE may, however, notice that the defence of the appellant was that at the relevant time he was in Bombay. In support of the said defence, however, he did not examine any witness.

( 10 ) LEARNED trial Judge upon consideration of the materials on record, recorded a judgment of conviction against the appellant. He was sentenced to undergo rigorous imprisonment for life. Appeal preferred by him has been dismissed by the High court by reason of the impugned judgment.

( 11 ) LEARNED counsel appearing on behalf of the appellant would submit;

(i) none of the two dying declarations Exhibits 37 and 43 being reliable, the learned trial Judge as also the High Court committed a serious error in recording a judgment of conviction against the appellant; (ii) no certificate having been obtained to the effect that the deceased was in a fit mental condition to make the said statement, the dying declaration should not have been relied upon; (iii) one of the dying declarations having been recorded in Marathi language and another in Hindi, a doubt is created as to whether the deceased understood the implication of the statements made by her; (iv) P. W. 2-Vinod was the only eye-witness to the incident and he having not supported the prosecution case, the impugned judgment is wholly unsustainable; (