minal Appeal No 341 of 1960
Appeal by special leave from the judgment and order dated July 20 1960 of the Bombay High Court in Criminal Appeals Nos 488 426 of 1960 with Review Application
555 and 641 of 1960
G C Mathur for the appellant
BRL Iyengar and D Gupta for the respondent
May 4
The Judgment of Kapur Subba Rao and Shah JJ was delivered by Kapur J and the judgment of Hidayatullah and Dayal JJ was delivered by Dayal J KAPUR J This is an appeal against the judgment and order of the High Court of Bombay imposing the sentence of death in appeal by the State against the order passed by the Sessions Judge Dhulia
The facts of the appeal are these The appellant in about 1950 married Sindhubai the daughter of Chandrabhagabai
Sindhubai who is the deceased had read up to the 7th Standard
The appellant and Sindhubai were residing in a one room tenement in a house belonging to one Tavar pleader in which there are in all 12 to 15 tenements
The tenement of the appellant was not very far from  that of the appellant s cousin Shantabai who was residing with her husband Pandu Genda and the house of 777 Cliandrabhagabai was about a furlong away from that of the appellant
The relations between the appellant and the deceased were normal for sometime but about two years before the occurrence differences had arisen and there were frequent quarrels between them
A child of the marriage was born about 1 12 years before the occurrence
The deceased was a frequent visitor to her mother s house to which the appellant took objection
The appellant bad stopped giving her the necessities of life including foodgrains etc
About a week before Diwali the appellant gave her a beating
The deceased used to have her meals with her mother and the appellant with his cousin Shantabai and the daughter of the marriage Urmila stayed with the mother of the deceased during the day time
The occurrence was on the Bhaubij day ie November 2 1959 between 130 and 330 in the afternoon
After having her meals at her mother s house the deceased returned to her husband s house and went to sleep in the afternoon
It is stated that while she was sleeping the appellant gave her a beating and after sprinkling Kerosene oil on her clothes set fire to them
The deceased with her clothes burning went in the direction of the house of Shantabai but fell down in front of it and was almost naked when some body covered her body with a dhoti
Chandrabhagabai received information it is stated from her nice Suman about this fact and Chandrabhagabai ran to the spot and found her body burnt
The cousin Shantabai and her husband Pandu Genda also arrived and on enquiry by Chandrabhagabai the deceased told her that her husband had set fire to her clothes after sprinkling kerosene oil on her
By this time a police constable informed the Police Station which was nearby and an ambulance car was sent and the deceased was taken to the Civil Hospital Dhulia at about 4 15 Pm
She was examined by Dr Javeri who 778 treated her and on his enquiry the deceased told him that her husband had set fire to her clothes after sprinkling kerosene oil on her clothes
Dr Javeri then informed the police and advised that a dying declaration be recorded
At about 5 30 Pm a Magistrate Mr Mhatre recorded the statement of the deceased but she died at 8 15 P M on the same day in the hospital
The defence of the appellant was that of alibi in that he was at work on the house of Mulchand Rajmal at Nehru Nagar which was being built and that he was entirely innocent of the offence
The trial court found that it was the appellant who had set fire to the clothes of the deceased after sprinkling kerosene oil that the appellant had the intention of causing such bodily injury to the deceased as was likely to cause death and it therefore convicted the appellant of an offence under section 304 Part 1 and sentenced him to three years  rigorous imprisonment and a fine of Rs 100 
The learned judge accepted the testimony of the mother Chandrabhagabai as to the dying declaration and also that of Dr Javeri and finally he accepted the dying declaration recorded by the Magistrate which was in the form of questions and answers
In all her dying declarations the deceased had accused the appellant of setting fire to her clothes and thus causing her severe bums
The State took an appeal to the High Court which convicted the appellant of an offence under section 302 Indian Penal Code and sentenced him to death
Against that judgment and order the appellant applied for certificate to appeal to this Court under article 134 1 a but the certificate was refused and this Court gave special leave under article 136 of the Constitution
The first question for decision is whether the appellant had a right of appeal to this Court under article 134 1 a and the decision of that must depend 779 upon the construction to be put on the language used in that Article the relevant portion of which is as follows 134 1 An appeal shall lie to the Supreme Court from any judgment final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court a has on appeal reversed an order of acquittal of an accused person and sentenced him to death
 If the High Court reverses an order of acquittal of an accused person and sentences him to death an appeal shall lie as of right to this Court under the Article
The argument raised on behalf of the appellant was that as the appellant was acquitted of the offence of section 302 and was convicted under section 304 Part 1 it was a case of reversing an order of acquittal
The argument on behalf of the State was that the word acquittal meant complete acquittal
The decision of this must depend upon the construction of the word acquittal
If a person is acquitted of the offence charged and is convicted of a lesser offence as in the present case can it be said that he was acquitted and the High Court had on appeal reversed the order of acquittal
 In our opinion the word acquittal  does not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence than that for which the accused was tried is included in the word  acquittal
This view has the support of a judgment of the judicial Committee of the Privy Council in Kishan Singh vs The King Bmperor 1
In that case an accused person was tried by the Sessions Judge under section 302 of the Indian Penal Code on a charge of murder but was convicted under section 304 for culpable homicide not amounting to murder the Court having power to do that under section 238 2 of the Criminal Procedure Code
He was sentenced to 1 1928 LR 55 IA 390
780 five years  rigorous imprisonment
No acquittal of the charge under section 302 was recorded
There was no appeal to the High Court by the then local Government but it applied for revision under section 439 on the grounds that the appellant should have been convicted of murder and the sentence was inadequate
The High Court convicted the appellant of murder and sentenced him to death
On appeal to the Privy Council it was held that the finding of the trial court was to be regarded as an acquittal on the charge of murder and that under section 439 4 Criminal Procedure Code the word acquittal did not mean complete acquittal
At page 397 Sir Lancelot Sanderson observed Their Lordships however do think it necessary to shy that if the learned Judges of the High Court of Madras intended to hold that the prohibition in section 439 sub section 4 refers  only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges or offences and not to case such as the present where the accused has been acquitted of the charge of murder but convicted of the minor offence of culpable homicide not amounting to murder  their Lordships are unable to agree with that part of their decision
The words of the sub sec tion are clear and there can be no doubt as to their meaning
There is no justification for the qualification which the learned Judges in the cited case attached
to the sub section
 We are in respectful agreement with the interpretation put on the word acquittal by the Judicial Committee of the Privy Council and the word acquittal therefore does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused has been acquitted of the charge of murder and has been convicted of a lesser offence
In that view of the matter the appellant was entitled to a certificate 781 under article 134 1 a as a matter of right and this appeal must be treated as if it is under that provision of the Constitution
The facts of this appeal have been set out above
In support of the prosecution the evidence mainly if not solely consists of the dying declarations
The first dying declaration was made to the mother Chandrabhagabai as soon as she came to the place where the deceased was lying and in answer to her question as to who had done it the reply was that it was done by her husband also that the husband had set fire to her clothes
 In cross examination she stated that at the time when this statement was made by the deceased Shantabai and her husband Pandu Gonda were present
A suggestion was made to her that the deceased implicated the appellant at the instance of Chandrabhagabai but she repudiated this suggestion and both the trial court and the
High Court have accepted the correctness of this dying declaration and also that it was not prompted by the mother Cbandrabhagabai
Beyond a mere suggestion in the cross examination there is no material to support the contention of prompting by the mother
A similar statement accusing the appellant of setting fire to her was made by the deceased to the Doctor Dr Javeri who asked the deceased as to how she got the burns and her reply was that her husband had sprinkled kerosene oil on her and bad applied a match stick to her clothes
This statement was also accepted by the High Court and we find no reason to differ from that conclusion
The third dying declaration was made in the presence of and was recorded by Mr Mhatre a Magistrate at about 5 30 PM in the presence of Dr Javeri who certified that the deceased was in a fit state of mind to make the statement
The Magistrate asked her certain questions which are set out in detail and he took down the answers and his evidence is that the deceased understood the questions and replied to them
He 782 made a record of the questions and answers but that record was not signed by her nor her thumb impression taken on it because her hands were badly burnt
This examination took about an hour
This dying declaration was held by the trial Court to have been made without the help or prompting of anybody and according to Chandrabhagabai she was not present at the time
The learned Trial Judge held that the dying declaration was freely given without the influence of anybody
It was not made under influence of any personal feelings
 The High Court Also accepted the correctness of this dying declaration and there is no evidence on the record which would in any way detract from the finding of the trial Court or of the High Courtin regard to the correctness or the propriety of this dying declaration
The argument raised before us was two fold 1 that the appellant was not present at the place of occurrence at all and 2 that it was a case of suicide
There are no cogent grounds which would lead to the conclusion that the deceased wanted to commit suicide nor have any circumstances been shower to us which would lead to any such conclusion
Even though it may be true that the relations between the husband and the wife were strained so much so that the husband had almost refused to maintain the deceased and was not prepared to give her even food there is no indication that the deceased was so worked up as to have lost her self control so as to commit suicide
Certain other circumstances as to the absence of any kerosene oil on the clothes of the appellant or the absence of kerosene oil on the bedding have been pointed out but in the circumstances of this case those circumstances are of no significance
Both the trial court and the High Court have found that the deceased had died as a result of burns caused by the fire set to her clothes by the appellant who had sprinkled kerosene oil on her 783 This is supported by the dying declarations against the correctness of which no cogent reasons have been given or suggested and a conviction based on such evidence has been held to be sustainable by this Court in khushal Rao vs The State of Bombay 2
The plea of alibi was sought to be supported by the evidence of Gangaram Sitaram a co worker of the appellant but his testimony was rejected by both the trial Court and the High Court and having gone through it we find no reason to differ from that opinion
In the result this appeal fails and is dismissed
RAGHUBAR DAYAL J We agree that the appellant had a right of appeal under article 134 1 a of the Constitution but regret our inability to agree with the view that the conviction of the appellant under s302 I P C be maintained
In appeals preferred under article 134 1 a of the Constitution  we are to assess afresh the value of the evidence of record and do not follow the practice of this Court in appeals by special leave under article 136 of the Constitution that the concurrent findings of the Courts below be not interfered with ordinarily but be interfered with only when special circumstances exist
We are of opinion that it is not safe in this case to base the conviction of the appellant solely on the dying declarations made by the deceased even though in law a conviction can lawfully be based on dying declaration alone if the Court feels fully satisfied about its giving a true version of the incident
The first dying declaration was made to her mother by the deceased
It was certainly natural for the mother to question her daughter as to how she got burnt
But that does not really mean that 2  784 the daughter did state all what the mother deposes
Two points arise there and they are  a Did the mother speak the truth  and b Did the daughter speak the truth  The mother PW 1 admittedly has not good relations with her son in law
She made discrepant statements
The Sessions Judge has remarked in paragraph 12 of his judgment that there were lot of discrepancies in the statements of this witness
Reference may be made to her stating at one place that when she used to request the accused not to beat the daughter the result was adverse and denying the correctness of this statement when questioned in cross examination
According to her only she was sent away from the room when the Magistrate recorded the dying declaration of the deceased in the hospitals indicating that the accused and some others continued to remain in the room
This statement is not borne out by Dr Javeri or by the Magistrate
She expressed ignorance about the deceased making a statement
to the police
The Sub Inspector and Dr Javeri deposed about her making such a statement
She could not have been ignorant about it
She deposes that the accused came to the spot where Sindhubai the deceased lay injured about five minutes after her arrival She knew that he had set fire to Sindhubai s clothes after pouring kerosene oil on her
She did not question him about it
She did not reprimand him
She did not abuse him
She did nothing which could have been normally expected of a mother knowing that the accused bad burnt her daughter The explanation that she was sorrow strike lacks the ring of truth
Grief striken she must be but that would not have made her mute
According to her Sindbubai made this dying declaration when Shantabai cousin of the accused and her husband Pandu Genda were present
These witnesses have not been examined by the prosecution to corroborate her statement
785 The other dying declaration relied on by the Courts below was made by the deceased to Dr Javeri on his casually questioning the deceased as to how she got injured
It may be natural but we have our doubts for the Doctor to put such questions to the patient in agony which had no real connection with his duties as a medical man and such questioning cannot be said to have any comforting effect on the patient
Such questioning can be nothing but idle curiosity which a Doctor in that position should not evince
Any way it would not be a good precedent to rely on such a statement to the Doctor in such circumstances when the Doctor makes no record about it even if it be not required to be noted in the medico legal register
We would consider it safe not to rely upon such a statement made to a casual question by the Doctor the details of which statement are not clear
The dying declaration made to the police has been ignored the Sessions Judge considering that it was not made at all or not made at the time the Sub Inspector deposed to have got the dying declaration from the deceased
No significance attaches to this dying declaration in any case when it was recorded after the deceased had made a formal dying declaration to the Magistrate
The dying declaration to the Magistrate has certainly been recorded with care
The relevant statements made in this dying declaration are the following I am suffering injuries of burning
My husband is my enemy
My husband has burnt me
Kerosene was poured over my body and a match stick was lighted
I was sleeping in the house
He ie my husband beat me and then burnt me
I shouted but nobody came
He was ill treating me
He was harassing me and was causing me starvation for 786 the last 8 days
I had complained about it to Pandu Genda and Shanta Pandu
I did not send any information to my parents about the starvation
The High Court has stated several times in its judgment that Sindhubai was sleeping when the accused set fire to her clothes
The panchnama Exhibit No 14
prepared about the room does not show that the bedding had any oil sprinkled over it or that it got burnt
Quite a number of other clothes were burnt which need not have caught fire
Absence of oil on the bedding is not consistent with her statement that she was sleeping in the house when the thing happened
This statement is also not consistent with the next statement made by her that her husband beat her and then burnt her
Her statement that nobody came on her shouts because the door of the house was shut does not fit in with her statement to the police in Exhibit 19 that the accused ran away on his work after he had set fire
The probability too is that if the accused had set fire to her clothes he would run away just after setting fire as he could expect that the victim would shout and that her shouts would attract neighbours and persons passing by
Even if the door was latched for some time while the accused remained there because he did go subsequently that does not explain the non arrival of any person
The persons could have come and could have knocked at the door
It is really remarkable that in this case not a single witness of the neighbourbood has come to depose anything in support of the prosecution case
There is no evidence at all from an outside source
The investigation seemed to have revealed nothing whatever
 There is nothing inthe case to lend assurance to any circumstance
Surely this cannot be the result of the accused sinfluence on the witnesses or the result of a general inclination not to speak the truth in the interests of justice even when the 787 accused committed the dastardly act of setting fire to his own wife
Their absence from the witness box may be due to their not standing what they knew to be untrue or did not consider to be true
It is always a difficult question to speculate why deceased accused a certain person of committing the crime or why a witness deposes against a person with whom he has no ostensible cause of enmity or why the police
in the discharge of its public duty should influence persons to make inaccurate statements when Courts come to the conclusion that the accusation or the evidence does not appear to be true and that there are reasons to suppose that the
police had influenced the testimony of witnesses
Anyway the same difficulty occurs in the present case
But it is clear that the relations between the wife and the husband were strained to such an extent that according to the prosecution the accused not only starved her but also set fire to her clothes with the intention to cause her death
Such a conduct of the husband cannot be on account of ordinary domestic unpleasantness but must be the result of a very acute feeling of desperation and a desire not to live any more with his wife
If such were the relations which one is inclined to infer from what the prosecution wants the Court to believe it should not be difficult to imagine that the wife s motives in charging the husband falsely may be equally strong
She too must have been fed up with the misery of her life and might have committed suicide and put an end to her life but when as often happens she was questioned she accused her husband of setting fire to her clothes not with a view to save herself from a conviction for attempting to commit suicide but either on account of her feeling that her husband was responsible for all her troubles and that her disparate action was also due to the same cause or out of malice
Any way a dying declaration is not to be believed merely because no possible reason 788 can be given for accusing the accused falsely
It can only be believed if there are no grounds for doubting it at all
Apart from the above considerations indicating that implicit reliance cannot be placed on the dying declaration there are other circumstances which add to the feeling of uncertainty about the truth of the accusation made in the dying declaration
The panchnama of the room shows that a few shirts and old trousers and pieces of two sarees lay near the southern wall of the room in a wet and half burnt condition There is no explanation why such clothes should have been burnt
There was no point in the accused pouring kerosene oil on these clothes even if they just lay huddled near the wall
If Sindhubai fell on the clothes lying there that may burn some of them but will not explain their getting wet
There is no suggestion that anybody had poured water over the burnt clothes in order to extinguish the fire because none came there at all
In fact Ranganath Sitaram PW 6 one of the Panchs states that the burnt clothes were also giving smell of rock oil
The panchnama further notes  On the eastern wall two feet height from the ground there is a black spot caused due to the burning of the clothes and the same is recent one
 There is no explanation why such a mark should be there
Sindhubai could not have stood opposite the wall and even if she did there should have been marks of burning along the length of her body beside the wall and not at a certain spot only
These two observations can be consistent only with somebody deliberately setting fire to the clothes and keeping some burning clothes beside the wall for a little time The appellant or whoever 789 set fire to her clothes would not have done this as he would have made a very quick exit after drenching Sindhubai with kerosene oil and setting fire to her clothes
Sindhubai does not make any statement about such a conductor the accused in her dying declaration
The only inference then possible is that she herself lid all this in accordance with her own inclinations
Why she did this one cannot say
Sindhubai returned to her house with her daughter after taking her mid day meal at her mother s house and sent back the daughter with Usha
This is according to the statement of her mother
She brought the child when according to her mother s statement she expected her husband to come to the house after taking his meal at his cousin s place
The conduct is unusual as ordinarily the child used to remain with her maternal grand mother during the day time as for some reason the accused probably felt aversion to her
The conduct can be consistent with her intention to commit suicide
She brought the child to her place to fondle with her for the last time and then sent her back to her mother
Sindhubai s running towards the house of Shantabai her husband s cousin and not running towards her mother s place also appears to be unnatural
It may be that in such troubles moments one need not be absolutely logical but it is expected to be instinctive that when in trouble one thinks of one s relations who are expected to be sympathetic and helpful on the occasion
It is in the statement of her mother that the route to her house is different from the passage to the house of Shantabai
It may be that the accused did not go to the house as expected and went away to his job from his cousin s place
It was a day of festival
Sindhubai might have felt this conduct badly set fire to her clothes and then run towards 790 Shantabai s house where she might have expected her husband to be present
The time of the incident though said to be between 1 30 and 3 30 Pm appears to have been near about 3 O  clock
The mother states to have got information about that time
Tile police got information at about 3 45 Pm and the ambulance took Sindhubai to the hospital at 4 15 PM
The accused was not expected to be at his house at 3 Pm
The learned Judges of the High Court did not believe the defence evidence about the accused working at the house of Mulchand Rajmal from about 2 Pm and to have gone to his house on receiving information from one Daga because Daga was
not examined the Munim of the house owner was not examined and the register of workers was not produced
It is however the case for the prosecution that the accused used to go to work at 7 AM to return at 12 O clock and again go for work at 2 Pm and then return at 6 Pm Chandrabhaga the mother of the deceased deposes so
There is therefore no good reason to think that the accused did not go to his duty at 2 PM that day as deposed to by DW I Sindhubai herself stated in her statement to the police that the accused after setting her on fire ran away to his work
If the time of the incident be calculated from the time the police was informed i e from 3 45 Pm the incident would have taken place some time between 3 and 3 30 Pm and the accused would not have been at his house at that time
In fact it appears to us that it is to avoid this difficulty that at Rome stage an attempt was made to time the incident at about 1 30 Pm
The incident could not have taken place before 2 Pm as in that case information to the police would be very belated and in the normal course of events it is not expected that Sindhubai would have tarried in the room for long or that the persons who must 791 have collected after her running towards Shantabai s place and falling down there Would not have taken steps to inform the police without any undue delay
The mother s statement that Sindhubai used to tell her that if the ill treatment continued she would sever her connection with the accused and would earn her own living would support the view that she had really got tried of her living with the accused and that this could have prompted her to attempt suicide
If Sindhubai was not actually asleep when the kerosene oil was poured on her it does not stand to reason that she would not have made any attempt to run away and the possibility of the accused successfully setting fire to her clothes in the course of the struggle would be remote and even if he succeeded it is a moot point whether he too would not have been singed if not burnt
Those are the various considerations which make us feel doubtful about the truth of the dying declaration and take the view that the appellant s conviction on the basis of the dying declaration should not be maintained
It appears from the High Court judgment that the case put before it was sometime after 130 Pm the accused latched the room from inside and while Sindhubai was sleeping he poured a large quantity of kerosene oil on her person
Her clothes became wet with that kerosene oil and before she could struggle and get up he searched for a match stick lighted it and set Sindhu s clothes on fire 
Such a case could not be made out from the dying declaration recorded by the Magistrate
Sindhubai had said at first she was sleeping when it happened but in answer to the very next question she said that her husband beat her and then burnt her
If the burning followed the beating there could be no question of throwing kerosene oil on 792 her while asleep
No reason for this conduct was stated
The Magistrate who cleared the doubt full points failed to elicit why this deed was perpetrated
Further the searching for a match box is very improbable thing
If the accused had decided to set fire to his wife he would have got a match box handy and if he did forget about it and had to search for it that would give sufficient time to Sindhubai to make good her escape
The aversion of Sindhubai to tell the name of her husband could not have been on account of any tender feeling for her husband but was the natural act of a Hindu married woman not to tell her husband s name
This aversion to tell the name of her husband is no guarantee of the truth of her subsequent statement accusing her husband of the crime
We do not find any justification for the following observation of the High Court when considering the defence evidence  The accused has led evidence and his case is that he was not responsible for this murder at all
But in fact he was in the house when the incident took place
 The High Court had made the latter statement as a statement of fact though there was no evidence to support it
Of course on the basis of a dying declaration the High Court had already held before discussing the defence evidence that the accused was responsible for the murder of his wife
If the defence evidence is to be adjudged on the basis of the final finding of the Court there is no use for defence evidence
It has to be taken into consideration before arriving at a final finding
The conduct of the accused in travelling in the same ambulance car and in remaining in the 793 hospital is in his favour and is against the prosecution
The accused stated in his examination that he paid the charges for the ambulance car
We would like to remark that the learned Judges who heard the appeal should not have heard it when they at the time of admitting it felt so strongly about the accused being wrongly acquitted of the offence of murder that they asked the Government Pleader to look into the papers to find out whether it was a case where the Government would like to file an appeal against the acquittal under section 302 IPC Government did file an appeal against that acquittal
We do not know whether it was at the suggestion of the Government Pleader or not
But in these circumstances it would have beep better exercise of discretion if this appeal against the acquittal had not been heard by the same Bench which in a way suggested the filing of the Government appeal
In fact to make such a suggestion appears to be very abnormal
We are therefore of opinion that it is not satisfactorily proved that the appellant committed the murder of his wife by setting fire to her clothes
We would therefore allow the appeal
 set aside the order of the Court below and acquit the appellant of this offence
By COURT
In accordance with the opinion of the majority this appeal fails and is dismissed


Summary:
The appellant was tried for an offence under section 302 Indian Penal Code for the murder of his wife
The evidence consisted mainly of the uncorroborated dying declaration of the wife
The Sessions judge accepted the evidence but convicted the appellant under section 304 Part 1 Indian Penal Code
On appeal by the State the High Court convicted the appellant of an offence under section 302 Indian Penal Code and sentenced him to death
The appellant contended that he had a right of appeal to the Supreme Court under article 134 1 a of the Constitution and that his conviction was bad
Held that the appellant had a right of appeal to the Supreme Court under article 134 1 a of the Constitution
The conviction of the appellant under section 304 Part 1 of the Indian Penal Code by the Sessions judge amounted to an acquittal of the offence under section 302 and the High Court had reversed this order of acquittal and sentenced the appellant to death
The word acquittal in article 134 1 a did not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence was included in the word acquittal
Kishan Singh vs The King Emperor 1928 L R 55 IA 390 relied on
Per Kapur Subba Rao and Shah JJ
The appellant was rightly convicted and sentenced by the High Court
it was legal to found a conviction on the uncorroborated dying declaration
The dying declarations had been accepted both by the Sessions judge and by the High Court and there was nothing in the evidence on the record which detracted from the findings of those courts in regard to the correctness or the propriety of this dying declaration
776 Khushal Rao vs The State of Bombay   referred to
Per Hidayatullah and Dayal JJ
In an appeal under article 134 1 a of  the Constitution the Supreme Court assessed afresh the evidence on record and did not follow the practice in appeals by special Leave under article 136 that concurrent findings of the Courts below could be interfered with
only when special circumstances existed
In the circumstances of the present case it was not safe to rely on the dying declaration and the appellant was entitled to be acquitted