Important pointWhere suspicion can be raised as regards correctness of dying declaration Court before convicting an accused on basis thereof would look for some corroborative evidence.

Headnote:(i) Indian Penal Code, 1860—Section 302—Appellant convicted for murder of his wife—Appeal—Deceased nurtured grudge against appellant on belief that he had affair with another woman PW12 wife of his elder brother PW11—Appellant poured kerosene oil on deceased and set her on fire—Dying declaration of deceased was recorded by Judicial Magistrate in hospital and then by police in presence of doctor—Deceased died after five days of the incident—All prosecution witnesses in unison stated that before incident children were watching T.V. in room of deceased and they came out and deceased bolted room from inside—Witnesses stated that door was forced open by appellant who doused fire—Appellant took deceased to hospital—High Court held burden of proof shifted on appellant in term of Section 106 Evidence Act in view of fact that appellant did not suffer any burn injury—No prosecution case that appellant and deceased were together in room before incident—High Court took into consideration appellant’s conduct that he evaded arrest from 4.10.1998, date of incident, till 21.10.1998—Investigating Officer did not speak about any such abscondance—Son and daughter of deceased admitted that deceased was suffering from depression—When facts and circumstances indicated that what was stated in dying declaration might not be correct, such dying declaration could not be taken basis for conviction—Appellant deserved to be given benefit of doubt. (Paras 8 to 14)
(ii) Indian Evidence Act, 1872—Section 32—Dying declaration—Conviction can be recorded on basis of dying declaration alone but same must be wholly reliable—Where suspicion can be raised as regards its correctness, Court would look for some corroborative evidence.
Held : Indisputably conviction can be recorded on the basis of dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case, the circumstances which have been brought on records clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the Appellant has been charged under Section 302 of the Indian Penal Code, the presumption in terms of Section 113A of the Evidence Act is not available. In absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused. (Para 14)

Judgment

S.B. Sinha, J.—The Appellant was convicted on a charge of commission of an offence under Section 302 of the Indian Penal Code

and sentenced to undergo rigorous imprisonment for life as also a fine of Rs. 5000/- by a judgment and order dated 10.01.2001 passed by Additional Sessions Court Kanyakumari District at Nagercoil in S.C. No. 183 of 1999.

2. The deceased was the wife of the Appellant. They were not in good terms. The deceased nurtured grudge against him on the belief that the Appellant was having affairs with another woman (PW-12) who is wife of his elder brother (PW-11). On 4.10.1998 at about 10.45 a.m., some children had been witnessing television in the house of the Appellant. They came out therefrom stating that the deceased had asked them to go out of the house and bolted the door from inside. Upon hearing the same, PWs 1, 2 and the Appellant herein went back and broke open the door. Allegedly, the Appellant had poured kerosene on her and set fire to the deceased.

3. It is not in dispute that the door of the room was broken open. The said witnesses as also PWs 3 to 6 saw the deceased in flames. The fire was extinguished and she was taken to the government hospital. It is moreover not in dispute that the Appellant took her to the hospital along with other witnesses. They reached hospital at about 11.15 a.m. A dying declaration was recorded by a Judicial Magistrate between the period 12.25 p.m. and 12.45 p.m. in the presence of a doctor (PW-15). A Head Constable (PW-23), in-charge of Kulachal Police Station in the meantime received information about the said incident whereupon he arrived at the hospital recorded the statement of the deceased again from 14.15 p.m. to 14.45 p.m.; on the basis whereof the First Information Report was lodged. A case under Section 307 of the Indian Penal Code (Code) was registered against the Appellant. In Column No. 7 of the said First Information Report, the name of the Appellant was shown as accused. The Investigating Officer (PW-24) on 5.10.1998 made seizure of kerosene can, matchstick, matchbox, iron bolt, etc. She died in the government hospital at about 11.15 a.m. on 9.10.1998, whereafter the charge in the F.I.R. was altered to Section 302 of the Code. The Appellant was arrested in connection with the said case on 21.10.1998.

4. The Appellant was put on trial, a charge-sheet having been filed for commission of an offence under Section 302 of the Code. It is not in dispute that before the learned Sessions Judge, Kanyakumari District at Nagercoil in whose court the case was transferred for disposal, all the material witnesses turned hostile. The defence case was that she committed suicide as after undergoing a Histectomy operation, she suffered hormonal imbalance leading to mental stress and strain. She was said to have been not only suffering from mental illness and unsoundness of mind but also from depression. The son and daughter of the deceased categorically stated that the deceased had been suffering from mental illness and had made attempts to commit suicide by pouring kerosene and setting fire on her person on an earlier occasion but the same was prevented by PW-9.

5. The learned Sessions Judge convicted the Appellant relying only upon the dying declaration made by the deceased. The High Court on appeal preferred by the Appellant herein from the said judgment and order of conviction and sentence upheld the same inter alia holding that the dying declaration made by the deceased is reliable. The High Court moreover took into consideration also the circumstances that the Appellant had absconded from the place of occurrence from 4.10.98 to 21.10.1998. The learned court opined that it was for the Appellant herein to offer some explanation in terms of Section 106 of the Evidence Act as the occurrence took place inside a room and the Appellant was present therein. Only because the deceased had undergone Histectomy operation, the court was of the view, the same would not mean that

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