Dying declarations, if credible and voluntary, are admissible evidence regardless of the presence of a magistrate during recording, as established by precedents.

JUDGMENT

K.T.Sankaran, J.

The appellant was convicted in S.C.No.769 of 2003 on the file of the Additional District and Sessions Judge (Fast Track Court - I), Thiruvananthapuram, for the offence under Section 302 of the Indian Penal Code and he was sentenced to undergo imprisonment for life and to pay a fine of `10,000/- and in default, to undergo simple imprisonment for a period of one year. The appellant challenges the conviction and sentence.

2. Rajani, (the deceased) was the wife of the appellant/

accused. The marriage of the appellant and the deceased took place about twelve years before the incident. Two children were born in that wedlock. The prosecution case is that the accused suspected the fidelity of his wife Rajani and he used to torture her.

On 24.5.2002, during night, the accused manhandled and tortured Rajani. On the next day, at about 1.15 PM, while the deceased was lying down in the house, the accused poured kerosene on her body and set ablaze her. She sustained 95% burn injuries. Rajani was taken to the Medical College Hospital, Thiruvananthapuram by her relatives (PW1, PW3 and PW5). Rajani succumbed to the burn injuries by about 3.15 AM on 26.5.2002. On getting information about the admission of Rajani in the hospital, the Sub Inspector of Police, Vithura (PW14) went to the hospital. PW9, the Assistant Professor, Surgery, who was on duty informed PW14 that the condition of Rajani was serious. PW14 recorded Ext.P1 dying declaration of Rajani at 2.30 AM on 26.5.2002 in the presence of PW9, PW1 (Ratheesh - brother of Rajani) and PW3 (Krishnamma - the maternal aunt of Rajani). On the basis of Ext.P1, PW14 registered Ext.P9 First Information Report against the appellant/ accused under Section 307 of the Indian Penal Code . At about 3.15 AM on 26.5.2002, Rajani died at the hospital.

3. On 27.5.2002, the accused was arrested. He had sustained burn injury on his right hand. Therefore, he was produced before the Community Health Centre, Vithura and he was treated there.

4. PW15, Circle Inspector of Police, took over the investigation. Ext.P2 inquest report and Ext.P3 scene mahazar were prepared and MO1 to MO7 were seized. He submitted Ext.P13 report to include Section 302 of the Indian Penal Code instead of Section 307 IPC as the offence revealed in the case.

5. On the side of the prosecution, PW1 to PW16 were examined, Exts.P1 to P14 were marked and MO1 to MO7 were identified. On the side of the defence, Exts.D1 to D3 were marked.

6. In Ext.P5 postmortem certificate, the following ante-mortem injuries were noted:

“1. Dermoepidermal burns involving the whole body except hairy region of scalp and soles.

2. Contusion 0.5x0.2x0.1 cm on the inner aspect of right side of lower lip 2.5 cm inner to the right angle of mouth.

3. Contusion 1x1x0.2 cm on the inner aspect of right side of upper lip 1 cm inner to the right angle of mouth.”

In the postmortem certificate, the opinion as to cause of death is shown thus:

“Death was due to dermoepidermal burns involving 95% of body surface.”

7. The evidence in the case reveals that around three months before the date of occurrence, the accused and Rajani had shifted to the place in Tholicode Village where PW1 to PW5 are residing. It is also alleged by the prosecution that the accused suspected that the deceased had illicit relationship with one Thambi and that was why the residence was shifted to Tholicode Village. The case put forward by the accused in defence was that Rajani committed suicide by pouring kerosene and by self immolation. The accused and the deceased were residing in a thatched shed with only a single room. Ext.P3 scene mahazar shows that pieces of charred cloth and mat with pieces of flesh were found in the room. A can containing kerosene was also found in the room.

8. PW1 is the brother of the deceased. He is residing very close to the house of the deceased. He heard the cry of Rajani that she was being killed. PW1 rushed to the spot. The accused took a stone in his hand and ask