N Criminal Appeal No 401 of 1976
Appeal by Special leave from the Judgment and Order dated the 26th September 1976 of the Gauhati High Court in Criminal Appeal No 18 of 1975
SK Nandy and Krishna Prasad for the Appellant
D Goburdhan for the Respondent
The Judgment of the Court was delivered by MISRA J
The present appeal by special leave has been filed by the State of Assam against the judgment of the Gauhati High 243 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
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 Palashbari 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 pm he poured kerosene oil on his wife Jaygun Bibi and set fire to her body with the help of a match box
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
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 went 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 exhibit 3
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 AC Bhuyan PW 2 recorded the dying declaration of Jaygun Bibi
Eventually Jaygun Bibi succumbed to her injuries on that very day
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 244 time his wife wearing garments also accidently 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 flately denied that he poured kerosene oil on her body and then set fire as alleged
The only eye witness in the case is 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 AC Bhuyan PW 2
The Sessions Judge on a consideration of the evidence adduced by the prosecution found that the charge under section 302 IPC 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
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 Sessions Judge failed to properly appreciate the same
The evidence which has been relied upon by the Sessions Judge for convicting the respondent was the evidence of the eye witness Mantaz Ali the child witness and the two dying declarations one oral and the other written for convicting the respondent
The High Court however did not find it safe to convict the respondent on the basis of dying declaration and the statement of PW 7
It has been contended for the State of Assam that the conviction could be based upon the dying declaration even if there is no other corroborating evidence on the record and reference was made to Tarachand Damu Sutar vs The State of Maharashtra1 and Maniappan vs The State of Madras2 Mr Goverdhan counsel for the respondent accused on the other hand contends that the dying 245 declaration alone without corroboration cannot be made the basis of convicting the respondent and referred to Madhoprasad vs The State of Madhya Pradesh1
This Court has consistently taken the view that conviction can be based upon the dying declaration alone
In Maniappan s case supra the dying declaration was a completed statement which was categorical in character and there was nothing to show that the victim had anything more to say
This Court held that the dying declaration needed no corroboration and could be relied upon
In Khushal Rao vs State of Bombay2 this Court held   in our opinion there is no absolute rule of law or even a rule of prudence which has ripened into a rule of law that a dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of a conviction The Court referred to the following observation made in Madho Prasad s case supra  It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration
It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered and observed that they were in the nature of obiter dicta
In Lallubhai Devechand Shah  Ors
vs State of Gujarat3 dealing with a dying declaration this Court laid down  The law with regard to dying declarations is very clear
A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of 246 evidence in the light of the surrounding facts and circumstances of the case bearing in mind on the one hand that the statement is by a person who has not been examined in court on oath and on the other hand that the dying man is normally not likely to implicate innocent person falsely Thus 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
We therefore 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 but before doing so the Court has to be satisfied about the truthfulness of the dying declaration
In the instant case the occurrence took place on the 10th of April 1973
The deceased was alive upto 18th of April 1973
She did not disclose earlier to anyone she met in the hospital that her husband sprinkled kerosene oil and set her on fire
She met so many people after the occurrence she met the village people who appeared on the scene just after the occurrence and who took her to hospital
She did not disclose the story to the doctor or the nurse attending on her
There is no evidence of the doctor on the record that she was not in a position to speak or that she had become unconscious between 10th of April and 18th of April
It is only when her uncle met her on the 18th of April that she made an oral dying declaration to him and later to the Magistrate who recorded her statement
This throws doubt on the dying declaration made by Jaygun Bibi and this circumstance weighed with the High Court in discarding the dying declaration of the deceased
The High Court discarded the dying declaration on yet another ground that the name of the husband of the deceased given in the dying declaration was Mohsin Ali not Mafizuddin Ahmed and therefore the identity of the lady Jaygun Bibi was itself doubtful
Dr Ramananda Das Registrar of the Surgical Unit No 1 of the Gauhati Medical College Hospital PW 6 in whose presence the statement was recorded has not stated that the declarant was Jaygun Bibi
He has simply stated that the Magistrate recorded the statement of a patient of his unit who received burn injuries
247 Further the Magistrate Shri AC Bhuyan who recorded the dying declaration of the Jaygun Bibi stated that the daroga and a constable were present nearby when the statement was recorded
Coupled with these in the absence of the thumb impression of the deceased on the declaration
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 realm 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
The other direct evidence is the deposition of PW 7 the son of the deceased a lad of 7 years
The High Court has observed in its judgment   the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring A bare perusal of the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle
It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years
But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other
He had told the police that he was in the mango grove at the time of occurrence
If this be a fact then he could not be an eye witness of the occurrence but when he came to depose before the Court he said  Ahmed is my father s brother
He was not at home at the time of the occurrence
He came later
He taught me to tell police that I had been in the mango grove at the time of occurrence
That is why I told police so
Later in company with my maternal grand father Alimuddin I said what I had seen Again the first thing that he uttered when the house caught fire is Gharat Jui Lagil the house has caught fire
This statement is 248 more in consonance with the defence theory
His mother was more important for him and if it was a fact that his father had set fire to his mother by sprinkling kerosene oil to which he was a witness he would not have omitted to say so
In the next breath he deposed that his father poured scented oil on his mother s body and not kerosene oil
The fact that he was tutored is fully borne out by his own statement as will be clear from the following portion of his deposition  Nana accompanied me when I came to depose in the lower court but stayed outside
I stated in that court that I had stated what Nana asked me to
The day before I came to depose I had told Nana what I would say
 It is also clear from the materials on the record that on the advice of the police Alimuddin Ahmed the nana of PW 7 applied for his custody during the enquiry proceedings but the Magistrate instead of giving custody to the nana gave the custody of PW 7 to his nani who was no other than the wife of Alimuddin
So to all intents and purposes the custody of the boy remained with Alimuddin Ahmed the nana
Indeed he took the boy for giving evidence in court
PW 7 was in the full control of the nana and deposed as he was asked to depose
In this setting the observation made by the High Court is fully justified
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 burns on his hands goes a long way to support the defence version
For the reasons given above the appeal must fail
It is accordingly dismissed
PBR Appeal dismissed


Summary:
The prosecution case against the respondent was that after marrying for a second time he started ill treating his first wife the deceased and that on the day of the occurrence 10th April 1983 he poured kerosene oil on her and set fire to her body
When the deceased started screaming he gagged her and wrapped her with a quilt and threw her on the floor and in the process he himself received burn injuries on his hands
A week later on the 18th April 1973 when the uncle of the deceased called on her at the hospital and enquired as to how it happened she told him that her husband poured kerosene oil and set fire to her body
He then reported the matter to the police
Since her condition was precarious a Magistrate recorded her dying declaration
The respondent s case on the other hand was that on the day of the occurrence when his wife s garments accidentally caught fire when his house caught fire he attempted to extinguish the fire by covering her with a quilt and in the process he himself had received burn injuries
Believing the evidence of the son of the deceased a boy of 7 years and the dying declarations made to her uncle and the Magistrate the Sessions Judge held that the charge under section 302 IPC was established
But the High Court did not find it safe to convict him on the basis of the dying declarations and the statement of the child witness and acquitted him of the charge
In appeal to this Court it was contended on behalf of the State that even if there was no evidence on record to corroborate the dying declarations the respondent s conviction could be based on the dying declaration
Dismissing the appeal  HELD It is well settled that even in the absence of other corroborating evidence there can be a conviction on the basis of a dying declaration provided that the Court is satisfied about the truthfulness of the dying declaration and that it is not vitiated in any other manner
246 B C 242 Maniappan vs The State of Madras   Khushal Rao vs State of Bombay   and Lallubhai Devechand Shah  Ors
vs State of Gujarat AIR referred to
In the instant case even though the occurrence took place on 10th April and the deceased was alive till 18th April she did not disclose either to the villagers who visited her or to the doctor or the nurse attending on her that her husband sprinkled kerosene oil and set her on fire
There was no evidence that she was not in a position to speak or that she was unconscious between 10th April and 18th April
It was only on the 18th April that she made an or dying declaration for the first time to her uncle and later to the Magistrate
And secondly the name of the husband of the deceased in the dying declaration was shown as Mohain Ali and not the real name Mafijuddin Ahmed
The doctor in whose presence the dying declaration was recorded did not state that the declarant was the deceased he only stated that the Magistrate recorded the statement of a patient of his unit who had received the burn injury
Therefore the probability of her statement being inspired by her uncle cannot be weeded out
The aforesaid circumstances do cast doubt on the truthfulness of the dying declaration
246 D H 247 A C From the tenor of the evidence of the son of the deceased a boy of about 7 years it is evident that he was vacillating throughout and that he was not a free agent but he had been tutored
He said that he was in the mango grove at the time of the occurrence that his uncle taught him to tell the police that he was in the grove at the time of occurrence that it was the house that caught fire first that his father poured kerosene oil on his mother and set fire to her
He also said that his father poured sented oil on his mother s body and not kerosene oil
On the application of Alimuddin Ahmed the son of the accused was kept in the custody of his wife and thus to all intents and purposes the custody of the boy remained with the uncle of the deceased and his wife
247 E H 248 A D E The fact that the respondent covered the deceased with quilt to extinguish the fire and in the process had himself got burn injuries on his hands also lend support to the defence version
248F