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SUPREME COURT OF INDIA
D. A. Desai and R. B. Misra, JJ.
State of Assam - Appellant
versus
Mafizuddin Ahmed - Respondent
Criminal Appeal No. 401 of 1976
Decided on January 14, 1983
A. Whether an accused person can be convicted merely on the evidence furnished by a dying declaration? (Yes: But subject to a limitation of its being truthful.)
B. Whether corroboration is required to base a conviction on a dying declaration? (No)
C. Defence version and circumstances-Scrutiny of-
Summary of the case-
The Respondent, a sub-inspector of Police married a second wife and began to maltreat his first wife who was living in his village home. He poured kerosene oil on her at about 2 p.m. and set, fire on her body by lighting a match stick. When she was screamed the Respondent gagged her mouth and wrapped her with a quilt and threw, her on the floor. In so doing he received some burns on his hands.
On hearing cries village people collected and took both the victim and the respondent to the Hospital.
Procedure followed-
The victim told her uncle in the Hospital how incident occurred. The latter lodged F.I.R. She made a dying declaration before a Magistrate and thereafter succumbed to the injuries. The Respondent was tried under section 302 Indian Penal Code. He pleaded not guilty and that the house accidentally caught fire and in attempt to save her wife he received some bum injuries. He was charged with the offence of murder under section 302 Indian Penal Code.
The Sessions Judge held the Respondent guilty of murder and convicted him under section 302 Indian Penal Code and sentenced to life imprisonment.
On appeal by Respondent the High Court set aside the conviction and acquitted him.
Then the State of Assam filed Appeal by Special Leave to the Supreme Court. The above mentioned questions of law arose before the Supreme Court for decision. The Supreme Court dismissed the appeal laying down the following:
Principles or Law-
The law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. (Para 11)
We find considerable force in the contention of the counsel for the State of Assam that there can be a conviction on the basis of dying declaration even in the absence of other corroborating evidence. (Para 12)
But before doing so, the Court has to be satisfied about the truthfulness of the dying declaration. (Para 12)
The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration. It is not outside the trial of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent on such a dying declaration. (Para 14)
There are two other circumstances which also cannot be lost sight of Covering the burning body of the Jaygun Bibi with quilt will help in extinguishing the fire. That will stop the passing of oxygen to the fire and the fire will automatically extinguish. The further fact that in so doing the husband also got bums on his hands goes a long way to support the defence version. (Para 20)
JUDGMENT
Misra, J. - The present appeal by special leave has been filed by the State of Assam against the judgment of the Gauhati High Court dated 25th of September, 1975 whereby it set aside the conviction of the respondent Mafizuddin Ahmed and acquitted him of the charge of murder.
2. The prosecution case as unfolded in the first information report and the evidence is that the respondent Mafizuddin Ahmed was a Sub-Inspector of Police posted at Gauhati. His wife and children lived at his village home at Bholagaon within the Paleshbari Police Station. The respondent had first married Jaygun Bibi and had one son and two daughters from her. Later on he married another lady Smt. Lal Bari and thereafter he started maltreating Jaygun Bibi. On 10th of April 1973 he went to his village home and at about 2 p.m. he poured kerosene oil on his wife Jaygun Bibi and set fire to her body with the help of a matchbox. When she screamed the accused gagged her mouth and then wrapped her with a quilt and threw her on the floor. In so doing the respondent himself received some burn injuries on his hands. The village people hearing the cries came there and they took Jaygun Bibi as well as the respondent-accused to the Gauhati Medical College Hospital where they were admitted for treatment.
3. Alimuddin Ahmed was the uncle of Jaygun Bibi and lived at a distance of 6 miles from the house of the respondent. He received a news that the house of the respondent had burnt and that Mafizuddin and Jaygun Bibi had sustained burn injuries. A few days thereafter Alimuddin Ahmed’s brother developed tetanus. He got him admitted in the Isolation Hospital at Kalapahar, Gauhati. From there he well to Gauhati Medical College Hospital on 18th April, 1973 to see how Jaygun Bibi was faring. He met Jaygun Bibi and asked her how it happened and then she told that her husband had poured kerosene oil on her body and set fire. He, thereupon went to the Sadar police Station and made a report (Ex. 3.1. On receipt of the report police arranged for recording the dying declaration of Jaygun Bibi by a Magistrate as her condition was considered precarious. Shri A. C. Bhuyan (PW 2) recorded the dying declaration of Jaygun Bibi. Eventually Jaygun Bibi succumbed to her injuries on that very day.
4. The accused pleaded not guilty to the charge. His plea was one of denial. He, however, admitted that on 10th of April, 1973 his wife received serious burn injuries and later died as a result of her injuries at the Gauhati Medical College Hospital. His case was that on 10th April, 1973 his house at Bholagaon caught fire and at that time his wife wearing garments also accidentally caught fire. Having seen this he tried to extinguish the fire on her body by covering her with a quilt and in doing so he himself received some burn injuries. He flatly denied that he poured kerosene oil on her body and, hen set fire as alleged.
5. The only eye witness in the case in Mantaz Ali the son of the deceased Jaygun Bibi and the accused-respondent. He was of only 5 years and odd at the time of occurrence and of 7 years and odd at the time of his deposition. The other material evidence relied upon by the prosecution are the two dying declarations, one being oral made to Alimuddin Ahmed, the uncle, and the other being written dying declaration recorded by the Magistrate Shri A.C. Bhuyan, PW 2.
6. The Sessions Judge on a consideration of the evidence adduced by the prosecution found that the charge under section 302 I.P.C. was fully brought home to the accused and accordingly convicted him thereunder and sentenced him to life imprisonment. On appeal, the High Court set aside the order of conviction and acquitted the respondent of the charge. The State of Assam has, as stated earlier, filed the above appeal by obtaining a special leave.
7. The contention raised before the High Court on behalf of the respondent was that the evidence was too meagre and unreliable to sustain the conviction and the learned Sessi
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