The main legal point established in the judgment is the reliance on dying declarations, circumstantial evidence, and medical opinions to determine the guilt of the accused under Sec. 304 Part I IPC and Sec. 498 A IPC.

K.A. Abdul Gafoor, J.

The sole accused in S.C. No. 17/98 on the file of the Sessions Court, Kozhikode is the appellant. He has been charged with offences punishable under Sec. 498 A and 302 of the Indian Penal Code for having committed murder of his wife Pushpa. He has been found guilty under those counts and convicted. On the first count, he has been sentenced to undergo rigorous imprisonment for one year and on the second count, he has been sentenced to undergo imprisonment for life. Therefore this appeal.

2. The prosecution case was that, on 15.3.1996 at about 5.30 P.M., the appellant/accused poured kerosene on his own wife Pushpa and set fire on her throwing a lighted match stick. The injured was taken to the Medical College Hospital, Calicut. While on treatment, she succumbed to the injuries on 22.3.1996 at about at about 4.15. P.M. It was also alleged that the appellant had been in the habit of causing mental and physical cruelty even prior to the occurrence towards his own wife, deceased pushpa. It was on its basis that the appellant/accused has been charged as aforesaid.

3. The evidence consists of the oral testimony of Pws. 1 to 21, documents Exts, P1 to P24 and M.Os. 1 to 4, viz., a packet of burnt cloths, kerosene bottle, match box and burnt match stick respectively.

4. There were no eye witnesses to the occurrence. There were there dying declarations, as spoken to by PW.11, PW.5 and PW.13. On the basis of the circumstantial evidence and the oral testimony of the witnesses, the trial court found him guilty, convicted and sentenced him as aforesaid.

5. It is submitted by the appellant that the dying declarations relied on by the court below are not worthy to repose confidence in court. There are discrepancies even with regard to the nature of the injury caused on the victim, as spoken to by her to the witnesses, who speak about the dying declarations. It is further submitted that none of the dying declarations disclosed before the court below had been in first person. Therefore, it was not discernible as to what really the victim had told the witnesses. Hence, those dying declarations cannot be connected with any other evidence. It is further submitted that the post mortem certificate, Ext. P14, issued by Pw.12, doctor who conducted the autopsy, discloses that the death had occurred due to burn injuries sustained by the victim which were complicated by pyemia. How did this complication arise? No evidence is available in the case. Therefore, it cannot be taken that the death was due to the burn injuries and not because of the further and subsequent complications. It is further contended that, as spoken to by various witnesses, while taking the injured to the hospital, the accused had also accompanied her. In such circumstances, it cannot be taken that he did have any intention to cause death. There was also no evidence with regard to any cruelty on his part towards his wife to find him guilty under Sec. 498 A IPC, except the evasive version given by PW.5. So, on any count, the conviction cannot be sustained.

6. Alternatively, it is contended that if at all a conviction is possible, it cannot be for committing murder, but only for manslaughter under Sec. 304 IPC. In this regard, attacking the finding Sec. 304 IPC. In this regard, attacking the finding based on Ext.P14 post mortem certificate and relying on the evidence of PW.12, it is submitted that there was no evidence on record that the death was not due to any intervening circumstances. The decision reported in Kishore Singh v. State of M.P. (AIR 1977 SC 2267) is also relied on.

7. It is true that the doctor had deposed, the counsel for the appellant submits, that the burn injury caused was sufficient to cause death. Even in such circumstances, as nothing is brought out in evidence with regard to the intervening circumstances causing pyemia, the offence revealed is not one under Sec. 302 I.P.C. It can only came under Sec. 304 Part II of the IPC. In this regard