IMPORTANT POINT
Despite 92% burn injury a person may be in a fit state of mind to make dying declaration.

JUDGMENT

Dipak Misra, J.:-The present appeal depicts a gruesome and repulsive picture that paints the appellant justifiably as the cruel protagonist who, invaded by passion of an uncultivated mind, insatiated by sexual desire and a further sense of suspicion that leads one into the realm of the worst, committed an act of unthinkable depravity. The ghastly act here is the murder of wife. In fact, the accused-appellant, as the prosecution story would reveal, was not only driven by the fierce frenzy of passion but also his rational thinking had been totally darkened. In the ultimate eventuate, consumed by the fire and ire of anger, he burnt his wife to death. He might have thought that he would bring an end to the anarchy in his house but his uncontrolled act ushered in anarchy of the darkest hour in his own life. The result is the conviction under Sections 302 and 307 of the Indian Penal Code (for short “IPC”) and sentence for life and rigorous imprisonment for three years on both the counts by the learned trial Judge in S.C. No. 169 of 2004 which has received the stamp of approval by the High Court of Kerala in respect of conviction under Section 302 IPC vide judgment dated 17.9.2008 in Criminal Appeal No. 280 of 2005. Hence, the present appeal by special leave.

2. The prosecution case as uncurtained is that the accused was living with the deceased, and their daughter, PW-3, and son-in-law, PW-5, along with their two grand children. The accused harboured a suspicion that his wife was having an illicit relationship with the son-in-law. The said suspicion got aggravated and intensified due to non-cooperation of the wife to satisfy his lustful hunger for sex. The uncontrolled sensual desire was further inflamed by the seed of suspicion that he himself had planted in his heart and nurtured relentlessly in his mind. The ablaze of anger led him, in the early hours of 23.12.2002, to pour petrol and set his wife on fire. The horrendous act resulted in the tragic incident. She suffered 92% burn injuries and was taken to Jubilee Mission Hospital, Thrissur about 3.40 a.m. on that day where she succumbed to the injuries at 2.15 p.m. on 24.12.2002.

3. It is worthy to mention here that after the incident, the accused surrendered at Thrissur Town West Police station in the early morning of 23.12.2002 and narrated the incident to the police. The Thrissur Town West Police Station informed the incident to Anthikkad Police Station. The Head Constable of Anthikkad Police Station went to the Jubilee Mission Hospital and there the dying declaration, Ext. P-3, of the deceased was recorded by the doctor, PW-1, working in the Jubilee Mission Hospital. Initially, the daughter of the deceased, PW-3, had lodged an FIR, Ext.P-14, and a crime was registered by the ASI for the offence punishable under Section 307 IPC and the allegation was that the accused had attempted to commit the murder of his wife as well as that of his grand child. The said crime was registered by the Assistant Sub-Inspector, PW-15. Later on, after the death of the deceased, Section 302 IPC was added as per the report contained in Ext.P-16. The accused was arrested on 24.12.2002. The initial Investigating Officer prepared the scene mahazar, conducted the inquest and prepared the report, recorded the statement of the witnesses and, thereafter, his successor-in-office, PW-17, completed the investigation and placed the charge sheet before the Judicial First Class Magistrate, Court II, Thrissur, who committed the case for trial to the Court of Session. It was eventually tried by the learned III Additional Sessions Judge (Ad hoc) Fast Track Court No. I, Thrissur.

4. The accused pleaded innocence and claimed to be tried.

5. The prosecution examined 18 witnesses and brought Exhibits P-1 to P-23 on record. Material objects MO-1 to MO-5 were marked at the instance of the prosecution. The accused, in his examination under Section 313 of Code of Criminal Procedure (for short ‘The Code’), denying