Summary
The appellant's conviction under Section 302 IPC for burning his wife rested on a dying declaration recorded by a Judicial Magistrate six days after the incident, which contradicted two statements the deceased made on the day of the incident (to the doctor and to the police) that she caught fire accidentally while cooking. The Court held that where dying declarations are inconsistent, conviction cannot rest on one of them without corroboration; finding no reliable corroboration and several circumstances inconsistent with the prosecution case, it acquitted the appellant on benefit of doubt.
Issues
- Whether a conviction under Section 302 IPC can rest solely on a dying declaration recorded by a Judicial Magistrate when the deceased had earlier given contradictory statements attributing the fire to an accident.
- Whether the Observation Mahazar recording recovery of a kerosene can and matchstick, and the other prosecution evidence, corroborated the later dying declaration.
Provisions considered
- Section 302, Indian Penal Code, 1860The appellant had been convicted and sentenced to life imprisonment for the murder of his wife; the Court set aside the conviction because the dying declaration on which it rested was unreliable and uncorroborated. (¶¶ 1, 4, 6, 11, 18)
- Section 307, Indian Penal Code, 1860The case was first registered as an accidental fire, converted to Section 307 on the deceased's second statement of 15.09.2008, and altered to Section 302 on her death; recorded as part of the chronology. (¶ 4)
Held
- A dying declaration is an important piece of evidence and can by itself sustain a conviction, but only after the court is satisfied of its quality in the light of the entire facts. Where the deceased has made inconsistent dying declarations, the court must look for corroborative evidence to decide which of them to believe and must act cautiously. (¶¶ 12, 14)
- Two statements made by the deceased on the day of the incident, to the attending doctor (PW-13) and to the police (PW-9), said she caught fire accidentally while cooking; her later statement to the Judicial Magistrate (PW-12) blaming the appellant was uncorroborated, the Magistrate did not question her about her earlier statements, she did not tell him she had lied earlier, and the reason she gave for the assault was inconsistent with the timeline established by PW-1. The dying declaration was therefore extremely doubtful and could not be the sole basis of conviction. (¶¶ 12, 13, 14)
- The Observation Mahazar recording seizure of an empty kerosene can and matchstick did not corroborate the dying declaration: it was sent to court with inordinate delay, the seizure witnesses (PW-5 and PW-6) turned hostile, no other witness spoke of such articles, and the doctor who examined the deceased within hours found no smell of kerosene on her body, which would ordinarily have persisted for a few hours. (¶¶ 15, 16)
- The prosecution version that the appellant neither tried to douse the fire nor accompanied the deceased to hospital was contradicted by PW-3, PW-4 and PW-13, and was in any event self-defeating because the prosecution's explanation for the deceased's first statement was that the appellant was present at the hospital when it was recorded. The absence of any external injury other than burns ruled out a prior assault. (¶¶ 9, 10)
- Given the admitted enmity between the two families, the appellant's suggestion that the later dying declaration was an afterthought made on tutoring by PW-1 and PW-2 could not be ruled out, though the Court expressed no definitive view on it; total reliance on the dying declaration was misplaced and the appellant was entitled to the benefit of doubt. The High Court had mechanically affirmed the conviction without appreciating the facts in proper perspective. (¶¶ 11, 17)
Result
Appeal allowed; High Court order dated 28.02.2012 set aside; appellant acquitted of the offence under Section 302 IPC and directed to be released from jail forthwith; pending applications disposed of.