Whether dying declaration recorded in language other than spoken by deceased is permissible?

Assuming that the deceased
          gave her statement in her own
          language, the dying declaration
          would not vitiate merely because
          it was recorded in a different
          language. We bear in mind that it
          is  not    unusual   that  courts
          record evidence in the language
          of the court even when witnesses
          depose in    their own language.
          Judicial officers are used to the
          practice   of   translating   the
          statements from the language of
          the parties to the language of
          the   court.   Such   translation
          process would not upset either
          the    admissibility    of    the
          statement  or   its  reliability,



          there are other reasons to doubt
          the truth of it.
         
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE  HONOURABLE MR.JUSTICE  P.BHAVADASAN

TUESDAY, THE 3RD DAY OF JULY 2012
CRL.A.No. 108 of 2009

         BIJU @ JOSEPH
        Vs

         STATE OF KERALA
         

     M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.

          

          Appellant was convicted and sentenced

to   imprisonment           for         life          and     fine of

Rs.20,000/-    and in default                      imprisonment for

two years, for murdering his wife, for the

offence punishable under Section 302 of Indian

Penal Code. Appeal is filed challenging the

conviction and sentence.

         2. The prosecution case in short is

that deceased Thressiamma, appellant and PW6

their   five   year         old       daughter             were living

together. Thresiamma was owning one acre rubber

estate which was exclusively given to her                         just

before her marriage by her sister and brother,

releasing   their        rights           inherited          from  the

father. The appellant was insisting to transfer


that    property  to  his  name  which was  being

resisted    by   Thressiamma. The  appellant  had

treated her with cruelty, both physical and

mental.     On   10/5/2005  night  after   9  p.m

Thressiamma reached the house of PW3 Omana to

call PW5 Ealiamma, her sister over phone. PW3

and      her husband had gone out and only PW4

Shibu their son, was there. Thressiamma called

PW5 over phone and intimated that the treatment

meted     out   to  her   by  the   appellant is

unbearable. She requested her to take her to

her house. PW5 consoled her and promised to

come     in the next morning to take her. By that

time     appellant along with minor daughter came

there and scolded her and PW4 alleging that PW4

is       having    immoral   relationship    with

Thressiamma.     Appellant took Thressiamma with

him and went to their house. PW4 in turn called

PW13, the Vicar of the church to inform the

CRA 108/09               3


conduct    of  the  appellant  and  disclosed  the

incident. PW13 promised to be there in the next

day morning to sort out the dispute. At about

3-4 a.m in the early morning on 11/5/2005,

appellant came to the house of PW2 Damodaran

requesting to provide his vehicle to take his

wife     to the   hospital  disclosing  that   she

suffered burns. Along with the appellant PW2

reached the house and found Thressiamma lying

on   the bathroom   near to the residential house

of   the   appellant  sustaining  burns.  She  was

unconscious. Appellant with the help of        PW2

took Thressiamma in that vehicle driven by the

son of PW2. PW2 was sitting on the front side.

His son was driving the vehicle. Appellant with

the deceased lying on his lap was sitting on

the back side. On the way PW2 asked appellant

what happened. Appellant did not reply. It is

alleged     that   the   deceased   who   regained

CRA 108/09                4


consciousness at that time replied that it was

done by the appellant. On the way when the

vehicle was stopped in      front of Co-operative

Hospital, Payyannur. The doctor advised them to

take the injured to Medical College Hospital.

Appellant took Thressiamma to Pariyaram Medical

College. PW22, the doctor     examined Thressiamma

at   the    casuality  and  found 90%   burns and

prepared Ext.P13 wound certificate at 4.05 a.m

and    admitted   her  in  S2  unit.  PW1  Thomas,

brother of Thressiamma got information from PW7

Joy, the husband of PW5 that Thressiamma is

hospitalized due to burns. He reached Pariyaram

Medical      College   Hospital   and   thereafter

furnished    Ext.P1  first  information  statement

which     was  recorded  by  PW17  Additional  Sub

Inspector, who registered the crime for the

offence under Section 307 of Indian Penal Code

under     Ext.P1(a)  FIR.  As  the  condition   of

CRA 108/09                5


Thressiamma was bad and Judicial First Class

Magistrate     Payyannur  was  not  available  and

recording      the   dying   declaration   by   the

Magistrate at Kannur, who was in charge, would

take time which may be fatal, on the request of

Sub Inspector under Ext.P10, the Superintendent

of Medical College directed PW15 Dr.Premarajan

to record her dying declaration. PW15 recorded

Ext.P9 dying declaration in the presence of

PW16    police   constable  and  entrusted  to  the

Superintendent     who  forwarded  it  to  Judicial

First Class Magistrate under Ext.P9(a) letter

enclosed     in  Ext.P9(b)  envelope.  PW20  Circle

Inspector     of  Police   prepared  Ext.P3   scene

mahazar and recovered MO.1 lantern and MO.2 can

which     was  filled   half  by   kerosene.  MO.3

remnants of Maxi and MO.4 remnants of under

skirt     were  sent  to  laboratory  for  chemical

analysis which were examined by PW23      Chemical

CRA 108/09              6


Examiner    who   furnished   Ext.P16   chemical

analysis report. While on treatment Thressiamma

breathed her last at 1.35 p.m. PW19 Circle

Inspector   of   Police   who  took   over   the

investigation   and  furnished   Ext.P11  report

altering the offence to one under Section 302

of   Indian  Penal  Code.  In  the  presence of

Thahasildar     PW20  conducted   inquest.  PW10

Gopalakrishna   Pillai,  Professor  of  Forensic

Medicine, conducted the autopsy and prepared

Ext.P4 postmortem certificate, certifying that

Thressiamma died due to the burns. Appellant

who    was in  the  hospital  was  detained and

thereafter he was arrested. After completing

the   investigation, charge  was  laid  for  the

offences under Sections 498 A and 302 of Indian

Penal Code. The learned Magistrate committed

the    case to  the  Sessions  Court.  When the

charge for the offence under Sections 498 A and

CRA 108/09               7


302 of Indian Penal code was framed and read

over, appellant pleaded not guilty. Prosecution

examined 23 witnesses and marked 19 exhibits

and    identified  six  material objects.  While

cross     examining  the  prosecution  witnesses

Exts.D1 and D2 portions of statements recorded

under Section 161 of Code of Criminal Procedure

were marked. After hearing the prosecution and

defence,and finding that    it is not a case for

acquittal under Section 232 of Code of Criminal

Procedure, as it is not a case without any

evidence    connecting the  appellant  with  the

offence, appellant was called upon to enter on

his    defence  and  adduce  evidence, if   any.

Appellant    did  not adduce  any evidence.  The

learned    Sessions  Judge     on  the  evidence

convicted and sentenced the appellant as stated

earlier. It is challenged in the appeal.

          3. Learned counsel appearing for the

CRA 108/09              8


appellant challenged the conviction submitting

that though a motive was alleged, there is no

evidence to prove the motive. It was argued

that     it is  clear  that  appellant and   the

deceased were sleeping and appellant when woke

up, found     the deceased was missing. Hearing

the cry he rushed to the     bathroom and found

that the wife is burning and he did his best to

put out fire      and  as any ordinary prudent

husband he tried to provide     medical help at

the earliest and approached PW2 for a vehicle

and in that vehicle took the injured to the

Medical College Hospital and on the way even

tried to get treatment at the       Co-operative

Hospital, but as he was advised to take her to

Medical College, he had taken       her to the

Medical    College. It was  argued  that  though

learned Sessions Judge found     fault with the

appellant    for the inaction for sixty minutes,

CRA 108/09                9


based     on  the  evidence  of  PW2  that he  was

informed only at 4 a.m and therefore, found

that appellant did not do anything to help the

deceased who sustained burns, the finding is

against         proved    facts.   Ext.P13   wound

certificate and Ext.P14 case record showing the

treatment given to the deceased at Pariyaram

Medical College       show that the deceased was

examined by the doctor at 4.05 a.m and it

requires one hour to reach the hospital from

the house and hence there was no delay in

taking the deceased to the hospital. Learned

counsel     also   argued   that  the   fact  that

appellant was there in the hospital throughout,

till     he  was   taken  into   custody,  further

establishes that he has nothing to do with the

burns      sustained  by the deceased.    Learned

counsel      argued that being a case depending on

the circumstantial evidence, every link     of the

CRA 108/09               10


circumstance is to be fully established and the

facts so established should unerringly point

out     the guilt of the appellant and rule out

every other hypothesis and on the evidence,

appellant could not have been convicted. It was

argued that there is no evidence to prove that

death     of    Thresiamma   was   homicide   and

possibility of either an accidental fire or

the attempt to commit suicide     cannot be ruled

out and therefore, when it is not conclusively

proved that it is a case of homicide, appellant

cannot    be  convicted.  Learned counsel  argued

that it is the positive case of the prosecution

that     appellant poured kerosene on the body of

the deceased and set fire and thereby caused

burns     which caused her death, but evidence of

PW23      the  Chemical  Examiner   with  Ext.P16

report    of  Chemical  Analysis  establish  that

remnants of the dresses of the deceased, when

CRA 108/09              11


examined showed    only presence of petrol and

not kerosene and therefore, the very basis of

the prosecution case      has collapsed. It is

argued that when prosecution has no case that

appellant poured petrol on the deceased and set

fire and thereby caused her death, in the light

of Ext.P16, appellant cannot be convicted, when

the allegation is that he poured kerosene and

set   fire.  Learned  counsel  also argued  that

Ext.P9 dying declaration should not have been

relied on by the learned Sessions Judge as it

is inherently improbable. It was pointed out

that when the deceased was seen by PW21 doctor,

who prepared Ext.P13 wound certificate, she had

already    sustained   90%   burns  and   Ext.P4

postmortem   certificate  with  the evidence  of

PW10 show that she died due to 100% burns. It

was pointed out that evidence of   PW2 establish

that      when he  reached   the  house of   the

CRA 108/09               12


appellant,      he  found  the  deceased   lying

unconscious in the bathroom sustaining     burns

and     Ext.P14   case  sheet  establishes  that

deceased     was  disoriented and   Fortwin  was

administered, which is proved to be a sedative,

on the evidence of PW10 and therefore, the

deceased could not have given a declaration at

11 a.m as claimed by PW15, the doctor.    It was

also      argued  that   as  per  Ext.P9   dying

declaration it was recorded by PW15 at 11 p.m

on 11/5/2005 and as the declarant died at 1.35

p.m    on that day, such a declaration could not

have been recorded at all. It was also argued

that evidence of PW15 establishes that he does

not know Malayalam and he happened to record

the dying declaration as authorized by   Medical

Superintendent of the hospital, who in turn was

requested by the Sub Inspector of Police to

record the dying declaration and evidence of

CRA 108/09               13


PW16, the     police constable, in whose presence

Ext.P9 is seen recorded, with Ext.P10 establish

that the requisition was submitted by the Sub

Inspector    to  the  Superintendent  of  Medical

College Hospital on 11/5/2005 to record the

dying declaration. Learned counsel argued that

evidence    of  PW22  the  Investigating  officer

establish that he received copy of the FIR only

at   12    p.m on   that  day  while he  was   at

Taliparamba and thereafter authorized the Sub

Inspector to get the dying declaration recorded

and if that be so, it could have been recorded

only subsequent to 12 p.m and as the case is

that     it was recorded at 11 a.m, for that sole

reason it is to be discarded.     Learned counsel

also argued that Ext.P9 shows only that the

declarant was conscious    and not that  she was

physically and mentally fit to disclose     facts

or make dying declaration, so as to record    the

CRA 108/09              14


dying declaration and though at the time of

evidence,    PW15   also  added  that   she   was

oriented,    Ext.P16  case sheet establishes that

it is not true and as the injured could have

been     under the influence of sedative and she

breathed her last at 1.35 p.m, Ext.P9 dying

declaration could not have been furnished by

the deceased and therefore, Ext.P9 cannot be

treated as her dying declaration. Relying on

the decision of the Apex Court in Ramilaben

Hasmukhbhai Khristi and another vs.     State of

Gujarat & other connected cases (2002 (7) SCC

56), Waikhom Yaima Singh vs. State of Manipur

(2011 (13) SCC 125, Surinder Kumar vs. State of

Haryana (2011 (10) SCC 173),    Sharda vs. State

of Rajasthan (2010 (2) SCC 85),       Chacko vs.

State of Kerala (AIR 2003 SC 265),     Laxmi vs.

Om Prakash and others (AIR 2001 SC 2383),     Uka

CRA 108/09              15


Ram    vs.  State of Rajasthan (AIR 2001 SC 1814,

and Paparambaka Rosamma vs. State of Andhra

Pradesh (AIR 1999 SC 3455)    it was argued that

as the doctor has not certified in Ext.P9 that

Thressiamma was   fit to give dying declaration,

Ext.P9, in any case it cannot be accepted.

Learned counsel also argued that the evidence

of PW2 that the deceased disclosed       how she

sustained injury while she was being taken to

the hospital in the vehicle to PW2, should not

have been relied on, as she      was unconscious

when the deceased was taken from the house. It

was also pointed out that the evidence of PW2

shows that when the doctor    of the Co-operative

hospital    examined  Thressiamma,  before   they

reached    the  Medical  College  Hospital,   the

deceased     was   unconscious   and   in    such

circumstances,    when  PW2   claimed  that   the

deceased disclosed how she sustained injury to

CRA 108/09               16


him    when he asked  the reason to the appellant

is   artificial,   improbable  and  unbelievable.

Relying on the decision of the Apex Court in

Bhairon Singh vs. State of Madhya Pradesh    (AIR

2009 SC 2603) and Paparambaka Rosamma vs. State

of Andhra Pradesh (AIR 1999 SC 3455) it was

argued    that  as  the   factum  of  taking  the

deceased to the hospital has no connection with

the burns sustained, Section 6 of the Evidence

Act is not applicable at all and the learned

Sessions Judge erred in relying the principles

of res gestae. It was also     argued that  as it

is   proved   that  the  deceased  sustained  100%

burns     and   was   under   sedation   and   was

disoriented,    there  could  not  have  been  any

discloser to PW5 or PW3      and the evidence of

PW3     establishes  that   she  had   no   direct

knowledge about any such disclosure and she had

given evidence based only on the information

CRA 108/09              17furnished by PW5 and therefore,     based on the

dying     declaration,   appellant   cannot   be

convicted.   It  was  argued  that  the deceased

could have sustained burns accidentally     when

she had gone to the latrine with kerosene lamp

on that night and appellant cannot be held for

the   accidental  fire  or  burns.  It was  also

argued    that  even  the   possibility  of  the

deceased sustaining the burns     in her attempt

to commit suicide also cannot be ruled out and

when there is no conclusive evidence to prove

that it is a case of homicide, the conviction

of the appellant is unsustainable.

          4. Learned  Public Prosecutor  pointed

out that the evidence establish that only the

appellant, deceased and their minor daughter

were in that house on that night and evidence

of PW3, PW4 and PW5 establish that appellant

was demanding transfer of one acre property

CRA 108/09               18


standing in the name of the deceased to his

name and as the deceased was not willing he was

treating her with cruelty. It was pointed out

that    even  on  that  fateful  night,  appellant

physically    manhandled  her  as  proved  by  the

evidence of PW6, the daughter and fact that

deceased had gone to the house of PW4 to inform

PW5 and requested to take her to her house

because of the treatment meted out to her by

the appellant, is corroborated by the evidence

of Pws.4 and 5 as well as the evidence of PW13

the Vicar of the Church and the fact that

appellant alleged that the deceased was having

illicit relationship with PW4 and took        her

from the house of PW4 where she had gone to

contact her sister over phone, alleging that

the      illicit  relationship,   fortifies   the

prosecution case that    appellant had a   motive

to cause her death. It was also argued that

CRA 108/09                19


when     apart   from   the  deceased,   only  the

appellant     could  have  thrown  light  into the

incident and his explanation is proved to be

false,     prosecution  case   that  it   was  the

appellant     who    set  fire  after  pouring the

inflammatory material on the deceased     is to be

accepted. Learned Public Prosecutor also argued

that as found by the learned Sessions Judge,

evidence of PW23 the       Chemical Examiner shows

that when remnants of the dress of the deceased

were      examined,  there   is   possibility  for

incorrect      finding and in any case, petroleum

and kerosene      belong to the same mineral oil

and based on Ext.P16, it cannot be found that

the    inflammable material used was not kerosene

but petroleum. Learned Public Prosecutor also

pointed out that when there is absolutely no

possibility for a suicide or accidental fire

and there is no case that       any   third person

CRA 108/09              20


was likely to commit the offence, it cold have

been done only by the appellant. Learned Public

Prosecutor pointed out that certification of

the fitness of the deceased by the     doctor is

not   a   mandatory condition  and it  was  only

insisted as rule of caution and the question is

whether the disclosure was made voluntarily and

it    is   truthful. It   was  argued  that  the

evidence of PW15 establish that the deceased

was in a fit state of mind when the        dying

declaration    was  recorded.  Relying  on   the

decision    of   the Apex  Court  in   State  of

Rajasthan vs. Bhup Singh     (1997 (10) SCC 675)

it was submitted that the      dying declaration

recorded in Engligh, though it was disclosed

in    Malayalam, is not fatal and as PW15 does

not know to write Malayalam, but can understand

Malayalam, there is no reason to disbelieve the

statement recorded by PW15. Learned Prosecutor

CRA 108/09              21


also argued that the larger Bench of the Apex

Court on Laxman vs. State of Maharashtra (2002

(6)     SCC 710)   considered  the  decision   in

Paparambaka Rosamma's case (supra)      and held

that the view that     in the absence of medical

certification that the injured was in a       fit

state     of mind  at  the  time  of  making  the

declaration, the dying declaration cannot be

accepted is a hypertechnical view and         the

Paparambaka    Rosamma's case   (supra) was   not

correctly    decided  and  affirmed  the  earlier

decision in Koli Chunilam Savji vs. State of

Gujarat (1999 (9) SCC 562) and therefore, for

the reason that there is no certificate by the

doctor that the deceased was in a fit state of

mind to give a statement, Ext.P9 cannot be

discarded.    Relying on the decision of the Apex

Court in State of Haryana vs.    Harpal Singh and

CRA 108/09              22


others    (AIR  1978  SC  1530)  learned  Public

Prosecutor argued that even in a case where the

pulse of the injured was not palpable and blood

pressure unrecordable and the patient was in a

gasping    condition, Honourable  Supreme  Court

accepted the dying declaration. It was also

pointed out that in Goverdhan Raoji Ghyare vs.

State of Maharashtra (1993 Supp (4) SCC 316)

Honourable    Supreme   Court   held  that   the

difference    between fit   state  of  mind  and

conscious    state of mind is too hypertechnical

and when the evidence of PW15 establish that

the    doctor  found  the  declarant  conscious,

oriented and in a fit state of mind and her

statement    recorded, Ext.P9 was rightly relied

on   by   the  learned Sessions  Judge.  It was

therefore, argued that    there is no reason to

interfere with the conviction.

          5. The  fact that  appellant  and his

CRA 108/09              23


deceased wife Thressiamma and their daughter

PW6 Dona,    who was aged only five years at that

time, were living together in house No.XI/202

of Peringome Viakkara Panchayath,   situated  in

a   property   having  an  extent  of  one  acre

belonging to Thressiamma, during November 1998

is not disputed. The fact that Thressiamma who

sustained severe burns on that fateful night of

11/5/2005    was   taken  to  Pariyaram   Medical

College hospital in the vehicle belonging to

PW2 driven by his son on that very night, early

morning accompanied by the appellant is also

admitted.    The  fact  that   the  injured   was

examined by PW21, the doctor who recorded 90%

burns     in Ext.P13  wound certificate, at 4.05

a.m and she was admitted in S2 unit and       was

treated there as an inpatient, as evidenced by

Ext.P14 case sheet    and while on treatment she

breathed her last at 1.35 p.m is also not

CRA 108/09              24


disputed and conclusively proved. The evidence

of PW10, the Professor of Forensic Medicines

establish that he conducted the autopsy and the

burn was almost 100% and she died due to the

burns. This fact is also not disputed. The

question is whether it was a case of    homicide,

or suicide or    result of an accidental fire and

if it is homicide whether it was committed by

the     appellant. Prosecution   relied  on   the

circumstantial evidence, apart from the dying

declaration, to prove the guilt. As only      the

inmates of the house, viz. appellant,    deceased

and    PW6,  the  five year  old  girl  who   was

sleeping, were there on the house on that night

one cannot expect any other eye witness to

disclose how the deceased sustained injuries.

Only the appellant could unveil the real facts.

          6. Being a case based on circumstantial

evidence, prosecution has to establish that the

CRA 108/09                25


circumstance from which the conclusion of guilt

is to be drawn      are fully established and all

the facts so established are consistent        only

with the      hypothesis of guilt of the accused

and are all of conclusive nature and tendency

and exclude     every other hypothesis except  the

one    proposes to be proved.    The principles are

well settled.     The five golden principles which

constitute the panchsheel of the proof of a

case based on circumstantial evidence are laid

down in      Sharad v. State of Maharashtra    (AIR

1984 SC 1622). It reads as follows:



          "The following    conditions must
          be  fulfilled   before   a   case
          against an accused can be said to
          be fully established:
             1) the    circumstances   from
          which  the conclusion of guilt is
          to be drawn     should be fully

CRA 108/09                26


          established.
             It may be noted here that
          this  Court  indicated  that  the
          circumstances concerned 'must or
          should'   and   not   'may    be'
          established. There is  not only a
          grammatical      but   a    legal
          distinction    between  'may   be
          proved' and "must be or should be
          proved" as was held by this Court
          in  Shivaji  Sahabrao  Bobade  v.
          State of Maharashtra where the
          following observations were made:
          [SCC  para  19,  p.807:SCC  (Cri)
          p.1047]
             Certainly, it is a primary
          principle that the accused must
          be and not merely  may be guilty
          before a court can convict and
          the mental distance between 'may
          be' and 'must be' is long and
          divides  vague  conjectures  from
          sure conclusions.
             2) the facts so established
          should be consistent only with

CRA 108/09                27


          the hypothesis of the guilt of
          the accused,   that is   to say,
          they  should  not be  explainable
          on any other hypothesis except
          that the accused is guilty.
             3) the circumstances should
          be of a conclusive nature and
          tedency.
             4) they    should      exclude
          every possible  hypothesis except
          the one to be proved, and
             5) there must     be a   chain
          of evidence so complete as not to
          leave any reasonable ground for
          the  conclusion  consistent  with
          the innocence of the accused and
          must  show  that  in   all  human
          probability   the act must have
          been done by the accused."

In   Padala    Veera  Reddy  v.  State  of Andhra

Pradesh     [(1989)   Supp  (2)   SCC  706],  the

principles are reiterated as follows;

          "(1) the circumstances from which

CRA 108/09                28


          an inference of guilt is sought to
          be drawn, must be cogently and
          firmly established;
          (2) those circumstances should be
          of a definite tendency unerringly
          pointing  towards  guilt  of   the
          accused;
          (3)   the   circumstances,   taken
          cumulatively, should form a chain
          so  complete  that  there  is   no
          escape from the conclusion that
          within all human probability the
          crime was committed by the accused
          and none else; and
          (4) the circumstantial evidence in
          order to sustain conviction must
          be  complete   and  incapable   of
          explanation    of    any     other
          hypothesis than that of the guilt
          of the accused and such evidence
          should not only be consistent with
          the  guilt  of  the   accused  but
          should be inconsistent with his
          innocence.

CRA 108/09               29


The same principles were reiterated in Bodhraj

vs. State of Jammu & Kashmir (2002 (8) SCC 45,

Bharat vs. State of Maharashtra (2003 (3) SCC

106), Jaswant Gir vs. State of Punjab (2005(12)

SCC 438), Reddy Sampath Kumar vs. State of

Andra     Pradesh  (2005  (7)  SCC  603),   Deepak

Chandrakant    Patil  vs.  State  of   Maharashtra

(2006 (10) SCC 151, State of Goa vs. Sanjay

Takran (2007 (3) SCC 755) and     Sattatiyya alias

Satish      Rajanna   Kartalla   vs.   State    of

Maharashtra (2008 (3) SCC 210). The evidence is

to be appreciated in the light of the settled

legal position.

          7. When the appellant, deceased and the

five year old daughter alone were living in the

house, and the wife sustained 90% burns, and

later died due to the burns, necessarily      only

the     appellant  could   disclose  what   really

CRA 108/09              30


happened    on  that   fateful  night.  In  such

circumstances, the disclosure   of the appellant

as   to   what  transpired  on  that  night,  as

revealed    by  him  in  his  written   statement

submitted at the time of his questioning under

Section    313  of  Code  of  Criminal Procedure

assume    importance. His  statement  is  to  the

effect that appellant along with the deceased

and their five year old daughter were residing

in that house at Aravanchal. At about 9 p.m on

10/5/2005, when he returned back to the house

after the days coolie work, he found that the

daughter was sleeping and the wife was missing.

He took the daughter and enquired about the

wife among his neighbours. He could not find

her. He thereafter reached the house of PW3 to

enquire about his wife. Thressiamma along with

PW4, the son of PW3 came out of the house.

Appellant questioned Thressiamma why she kept

CRA 108/09              31


the child alone in the house and came to that

house.     PW4 did not like it  and scolded the

appellant. Appellant along with the daughter

followed by Thressiamma returned to the house

Appellant scolded Thressiamma for going to the

house of PW4 on that night disclosing that

people     started  talking   bad   about   that

relationship. By 10 p.m they had their supper

and     slept together.   During  early  morning

hours, he woke up hearing a cry. Thressiamma

was not found near him. He took a torch and

proceeded to the place from where he heard the

cry. He reached the bathroom which is outside

the     house. He   found  Thressiamma  standing

engulfed in fire caught from the maxi worn by

her. Appellant took water, which was available

in the latrine, a part of the bathroom and poured

on her body. She fell on the floor. Appellant

took water from the nearby well and poured on

CRA 108/09              32


her body    and put out the fire completely. To

take Thressiamma to the hospital, he rushed to

the house of PW2 and sought his jeep. PW2 came

along with him to the house. Son of PW2 came

with a jeep which was parked near the house of

Krishnan Nambiar. Appellant took the injured

into the jeep    which was witnessed by Krishnan

Nambiar and his wife who came there hearing the

sound. Appellant made the deceased  lie   on his

lap on the back seat and       took her to the

hospital. Though a doctor from Payyannur Co-

operative    Hospital  examined  her  and   gave

medicines, he advised to take her to   Pariyaram

Medical College Hospital at the earliest. He

took her to the Medical College hospital and

the doctor examined her and admitted her. By

1.35     p.m on  11/5/2005 she  died.  She  was

unconscious from the moment she     fell on the

floor of the bathroom, till she died. She had

CRA 108/09              33


not spoken anything    till her death. Appellant

was with her. Her statement was not taken by

anybody from the hospital. After her death, two

police constables took the appellant in a jeep

to Peringome police station and due to the

influence of PW7, his brother-in-law as well as

PW1, brother of the deceased, police foisted

the case against the appellant. He had never

asked Thressiamma to transfer her property in

his   name.   He  has never  treated  Thressiamma

cruelty,     either   mentally  or    physically.

Thressiamma should have sustained burns when

she had gone to the latrine holding a kerosene

lamp accidentally, as the   maxi was polyester.

          8.   The evidence of PW21 and Ext.P15,

the     doctors do not give any indication as to

whether the death was homicidal or accidental.

Though    Adv.Maniprasad,  the  learned  counsel

appearing for the appellant vehemently argued

CRA 108/09               34


that      the motive alleged  namely, demand for

transfer of the property by the deceased in

favour of the appellant is not established, on

the evidence we cannot       agree. When PW1 was

examined,     he  deposed  that  one   acre plot

cultivated with rubber belongs to the deceased

exclusively and it originally belonged to their

father     and  subsequent  to  his   death, the

children     inherited  it  and  all  the  others

released     their  rights in   favour of    the

deceased. PW1 was cross examined as if that

fact was     disputed. But when PW22 through the

Investigating    Officer,  Ext.P12  copy  of the

release deed executed by PW1 and others in

favour of the deceased, releasing their rights

on 16/11/1998, (date of Ext.P12 shown in the

judgment of the trial court is not correct)

was marked, that aspect was not disputed. At

the time of questioning under Section 313 of

CRA 108/09              35


Code     of Criminal  Procedure,  appellant  also

admitted      that    fact.    Ext.P7    marriage

certificate,    proved  by    PW13,  the   Vicar,

establish that    marriage of the appellant with

Thressiamma    was   solemnized  on   23/11/1998.

Ext.P12    release deed  executed  in  favour  of

Thressiamma would establish that Pws.1, 5 and

others released their rights in favour of the

deceased    just   one   week  earlier   to   the

solemnisation of the marriage of the appellant

with     the deceased.  It  is  clear  that  the

deceased    wife  of  the  appellant  was   given

absolute     right   over   one   acre   property

subsequent to the betrothal and just one week

prior to the marriage      of the appellant with

the deceased. Evidence of PW.3, 4 and 5      that

appellant    was   demanding  the   deceased   to

transfer that property in his favour     was not

seen challenged while cross examining them. We

CRA 108/09             36


find no reason to disbelieve that evidence.

Therefore, evidence conclusively establish that

appellant was demanding his wife to transfer

the property    standing in her name in his

favour. Evidence of PW5 sister of the deceased

also shows that rubber trees standing in the

property was earlier sold by the appellant,

which was not liked by the deceased and   there

was a quarrel between them.   Evidence of Pws.3

to 5 also establish that appellant was treating

the deceased with cruelty, on account of her

disobedience to   transfer the property in his

favour. Evidence of PW4 also shows that the

deceased had      gone to his house on that

fateful night to enable her to contact PW5 over

phone, as there was no telephone connection in

the house of the appellant. Evidence of PW4 is

that the deceased had contacted PW5 in his

presence and requested her to take her to the

CRA 108/09              37


house of PW5 as she found the life with the

appellant unbearable and PW5 promised to reach

the house of the deceased    on the next morning.

That evidence of PW4 is fully corroborated by

the evidence of PW5. When Pws.4 and 5 were

cross     examined,  the    fact   the   deceased

Thressiamma     had called  PW5 from the house of

PW4 on that night or the fact that PW5 promised

to be there in the      house of the deceased on

the    next  day  morning  were  not  challenged.

Evidence of PW6 daughter also shows that on

that night she had seen the appellant beating

the deceased Thressiamma. Added to this, the

fact that deceased had been in the house of PW4

on that night and appellant along with PW6 had

gone there as deposed by PW4, is admitted even

in his written statement filed at the time of

questioning    under  Section  313  of  Code   of

Criminal Procedure. What is stated therein is

CRA 108/09               38


that     appellant was  scolded  by  PW4  and on

returning     to  the   house,   appellant  asked

Thressiamma why she had gone there stating that

people had started talking about her illicit

relationship, evidence of PW4 is that after

reaching the house while the Thressiamma      was

in his house, appellant    came there and scolded

PW4     accusing  that   he  is   having  illicit

relationship with Thressiamma and therefore, he

called PW13 the Vicar to      inform about it and

to request PW13 to intervene. That evidence of

PW4 is fully corroborated by the evidence of

PW13.     The Vicar deposed that he had received

a call from PW4 on that night and he was

informed     about the incident and the Vicar had

promised to be there on the next day      to sort

out the dispute. Therefore, the evidence of PW4

is fully corroborated by the evidence of PW5

and PW13. It is therefore, proved that on that

CRA 108/09               39


fateful    night,  after  9  p.m    the  deceased

Thressiamma had gone to the house of PW4 and at

that time PW3 and her husband were not there

and     the deceased   had  conveyed  the   cruel

treatment meted out to her by the appellant to

PW5 over phone and PW5 had promised to be there

on   the   next   day  and  appellant  suspecting

illicit    relationship    with PW4  scolded  and

insulted PW4 and took Thressiamma to his house.

The evidence of PW6 proves that appellant     had

beaten the deceased on that night. In such

circumstances,     it   cannot  be   said    that

prosecution did not establish the motive    which

is definitely a strong link in the      chain of

circumstantial evidence.

          9. Learned counsel appearing for the

appellant    pointed  out  that    appellant  was

charged for the offence under Section 498 A of

Indian Penal Code also and learned Sessions

CRA 108/09               40


Judge     acquitted   him   finding   that    the

prosecution did not prove the cruelty alleged

and    in  such  circumstances,  finding  on  the

existence of the motive, on the same evidence,

by the learned Sessions Judge is unsustainable.

True,     learned  Sessions   Judge   found   the

appellant not guilty      of the offence    under

Section 498 A of Indian Penal Code. On going

through the judgment of the learned Sessions

Judge,     it is absolutely   clear that learned

Sessions Judge has not      correctly appreciated

the    evidence  lead  by  the   prosecution,  in

support of the case that appellant committed

an offence under Section 498 A of Indian Penal

Code.      Learned  Sessions  Judge    found the

appellant    not  guilty  of  the  offence  under

Section 498 A     holding that "cruelty to   come

within the meaning of Section 498 A of IPC

there must be evidence that the deceased was

CRA 108/09              41


pressed     hard by the accused to part with her

property. There is no    reliable  evidence that

the accused harassed her in such way so as to

coerce the deceased Thressiamma to meet the

unlawful     demand made by the accused for her

property.      The    evidence   available    is

insufficient to attract the ingredients of the

offence punishable under Section 498 A of IPC".

          10. True, as State has not challenged

the     acquittal  of  the  appellant  for  that

offence, even if that finding of the learned

Sessions Judge is not correct, he cannot be

convicted for that offence in the   appeal filed

by   him,   challenging his  conviction for  the

offence under Section 302 of Indian Penal Code.

But as the appellant is contending that in view

of the finding on Section 498 A of Indian Penal

Code the finding on motive is not sustainable,

it is necessary to consider the correctness of

CRA 108/09                42


that finding also.

          11. Section 498 A of Indian Penal Code

provides     punishment to a   husband or relative

of the husband of a woman, subjecting her to

cruelty. It consists of two limbs as is clear

from clause (a) and (b) of the Explanation

provided in the Section. Under Section 498 A of

Indian Penal Code, whoever, being     the husband

or the relative      of the husband of a woman,

subjects     such  woman   to  cruelty  shall   be

punished with imprisonment for a term which may

extend to three years and shall also be liable

to fine.      The cruelty was explained in the

explanation which reads;

            "For   the   purpose   of  this
         section, "cruelty" means--
            (a) any wilful conduct which is
         of such  a nature as is likely to
         drive the woman to commit suicide
         or to cause grave injury or danger

CRA 108/09               43


         to life, limb or health (whether
         mental or physical) of the woman;
         or
            (b) harassment   of  the   woman
         where such harassment is with a
         view to coercing her or any person
         related to her to meet any unlawful
         demand for any property or valuable
         security  or  is   on  account   of
         failure  by  her   or  any   person
         related  to   her  to   meet   such
         demand."

Clause (b) deals with      harassment with a view

to coercing    the wife   or any person related to

the wife to meet any unlawful      demand for any

property or valuable security or on account    of

failure by her or any person related to her to

meet such demand. Necessarily, to convict an

accused     for    the   cruelty   coming   within

explanation     (b),  the  cruelty  must  be   the

harassment, with a view to coercing the wife or

CRA 108/09              44


any person     related to the wife to meet an

unlawful demand for any property or valuable

security or on account of failure to meet such

demand. But even if the cruelty alleged does

not come under clause (b), if it comes within

the    ambit  of clause  (b)  it  is  definitely

punishable under the     Section.   Under clause

(a) there need not     be a   harassment with a

view to coercing the wife or any person related

to the wife to meet any unlawful demand for any

property or valuable security or on account of

the failure to meet such demand. If the accused

is guilty of    wilful conduct, which is of such

a nature as is    likely to drive   the woman to

commit suicide or to cause grave injury or

danger to life, limb or   health (whether mental

or   physical)  of  the  woman, it  would  be  a

cruelty     as provided under Section 498 A of

Indian    Penal  Code.   Unfortunately,  learned

CRA 108/09                45


Sessions Judge     diverted his attention only to

clause (b) and ignored clause (a). More over,

when the evidence of      PW1 the brother, PW5 the

sister of the deceased establish that appellant

was demanding the wife to transfer her property

in his favour, so as to dispose it      or to deal

with it according to his wishes and on the

failure     of  the  deceased  wife  to  meet that

demand,     she   was   harassed.  That   fact  is

corroborated by the evidence of Pws.3 and 4.

Hence on the evidence       it could not have been

found that      there was no cruelty as provided

under     Section  498  A.  But  unfortunately the

appellant was acquitted of that offence, and

the State has not challenged       that acquittal.

Hence it is not necessary to consider that

aspect     further. Suffice to say that the wrong

finding of the learned Sessions Judge on that

question will not disentitle him to positively

CRA 108/09               46


find the motive alleged by the prosecution. On

the evidence we have       no hesitation to hold

that      appellant   was    demanding   deceased

Thressiamma    to   transfer one   acre  property

standing in her name, in his favour which was

not    agreed  by  the  wife  and  appellant was

treating      her  with  cruelty.  Evidence  also

establishes that even on the night of that

fateful night appellant had treated     her with

cruelty, which compelled the deceased to go to

the house of PW4 and contact PW5 over phone to

request her to take her to her house on the

next day. Appellant reached the house of PW4

and questioned her chastity alleging illicit

relationship    with PW4 and scolded her and took

her to     the house and even in the presence of

the five year      old daughter beat her.   Hence

prosecution has succeeded in establishing the

motive.

CRA 108/09              47


          12.  Though appellant had attempted to

explain the burns sustained by the deceased,

alleging that it was an accidental fire as she

had gone to the latrine with a kerosene lamp

and accidentally fire spread on the maxi and

the underskirt worn     by the deceased, on the

evidence we cannot accept the case. Evidence of

PW10 with Ext.P4 postmortem certificate and the

details of burns noted in Ext.P14, including

the diagram prepared by the doctor at the time

of her examination, establish that there were

no burns on the lower limbs   below the knee. If

it   was   a  case of  accidental fire  and  the

kerosene lamp taken by the deceased to go to

the     bathroom  touched  the   maxi  and   the

underskirt worn by the deceased and the fire

accidentally    spread,  the  burn  should  have

started from the bottom and if that be so,

there should necessarily be burns   on her lower

CRA 108/09              48


limbs. Absence of any burns on the lower limb,

rules out that possibility. More over, even the

case of the appellant, in his statement filed

at the time of      his cross examination under

Section 313 of Code of Criminal Procedure, is

that he found the deceased standing in the

bathroom when he reached there   by hearing the

cry and he   poured water which was available in

the latrine     and while so, the deceased had

fallen    unconscious  on  the  floor   of   the

bathroom.   If   that  be  the   case  and   the

deceased was standing on the bathroom and her

dress was burning there should be burns on her

limbs. Ext.P3 scene mahazar shows that   latrine

was part of the same bathroom having a total

dimension of 140 cm x 150 cm. and the entrance

to that room is from the east having a width of

60 cm x 162 cm       and the   door   could   be

closed by a wooden sheet from inside. It also

CRA 108/09               49


shows     that  a portion  of  the  bathroom was

converted into a latrine and near the closet

there were two vessels, evidently for keeping

water. If the case of the appellant is true and

he   found    the  deceased  standing  with  fire

spreading     on  her  body,  appellant,  without

sustaining     burns, could not have entered the

latrine portion of the bathroom. He could not

have taken water and poured on the body of the

deceased     from that  room  without  sustaining

burns. More over, as according to the appellant

the deceased was standing on the floor of the

bathroom, fire should have spread on her dress

from the bathroom or after it got spread     from

that     portion of the room which was being used

as latrine and she would have come towards the

bathroom. If the dress has to catch fire     from

the kerosene lamp and that too when    sufficient

water is available in the vessel    kept near the

CRA 108/09               50


closet, as any prudent woman she would have

poured    water by taking from the latrine room.

More over, there is no possibility to catch

fire on her dress, while        the deceased was

standing on the floor    of the bathroom.

          13.  It is advantageous to bear in mind

the features of homicidal burning in Medical

Jurisprudnce, Toxicology and Forensic Science

for class room, investigation and court room

with case laws, Second Edition by Professor

(Dr.) A.S.Deoskar. The relevant portion at page

137   reads;

          "Homicidal Burning
          This is not so common. It is
          difficult    to    kill    active
          conscious  person   by   burning.
          There may be evidence of making
          the   subject    unconscious   or
          semiconscious  by   poisoning  or
          injury  or   gagging  any   tying
          hands. In most of such cases, he

CRA 108/09                51


          or  she   remains  in  lying  down
          position   before    starting   of
          procedure of burning. Hence there
          are no burn   injuries on the part
          touching   the ground. Inflammable
          material will be detected more on
          other parts of body than vertex."

Hence absence of a burn on the part of the body

touching on the ground, namely,     lower limb, is

definitely     a  clear  indication  of  homicidal

burning.      True, as there is no eye witness,

apart from the appellant, prosecution could not

unveil what really transpired in that bathroom

on that night, as to whether the appellant made

her unconscious before setting fire. In any

case, from the facts born out, accidental fire

could     definitely be ruled out.

          14. Similar is the case with  the theory

of suicide. First of all when the prosecution

witnesses were examined, there was no case for

CRA 108/09             52


the defence that the deceased sustained burns

in an attempt to commit suicide. No material

whatsoever, was pointed to compel the  deceased

to commit suicide and that too leaving behind

a five year old girl child. If it was a case of

suicide, definitely there should be a can or

any other vessel, containing the inflammable

material used for pouring it on her body before

setting fire. More over,  if appellant and the

deceased were sleeping in one room and the

deceased     decided to  commit   suicide   and

proceeded to the bathroom,   which is 8 meters

away from the house, in all probability she

would     close the door before  attempting  to

commit suicide. Appellant has no case that the

door of the bathroom was closed from inside and

he had break opened the door. More over, if

appellant reached the bathroom on hearing the

cry, the cry could only be after     sustaining

CRA 108/09               53


the burns in an attempt to commit suicide by

burning, appellant would not have found her

standing on her legs as claimed by him. In such

circumstances, we have no hesitation to hold

that    possibility  of  the  deceased  sustaining

burns, in her attempt to commit suicide could

only    be  ruled  out.  If  that  be  so,  it  is

definitely    a case of homicide.

     15. We have already found that appellant,

the   deceased     and  PW6,  the  five  year  old

daughter alone were in the house on that day.

In such circumstances, appellant has definitely

a duty to explain what happened on that day. It

is necessary to bear in mind that under Section

106    of  Evidence   Act,  when   any  fact  is,

exclusively within the knowledge of any person,

the burden of proving that fact is upon him.

Illustration    (b)   appended  to   the  section

provides that when A is charged with travelling

CRA 108/09               54


on a railway      without ticket, the burden of

proving    that he had a ticket is on him.   When

the offence like a murder is committed     within

the four walls of a house, the initial burden

to prove the case would undoubtedly be upon the

prosecution. But in such a case, the nature and

the    amount  of  evidence  to  be  led  by  the

prosecution cannot be of the    same degree as is

required    in   other  cases  of   circumstantial

evidence.    The  burden  should  necessarily  be

comparatively of lighter    character. Honourable

Supreme Court in       Collector of Customs vs.

D.Bhoormall (1974 (2) SCC 544) considered this

question    with  respect  to  an  offence  under

Sections 167 and 178 A of     Sea Customs Act and

held;

             "on       the      principle
          underlying     Section     106,
          Evidence  Act,  the  burden  to

CRA 108/09               55


          establish those facts is cast
          on the person concerned; and if
          he  fails   to   establish   or
          explain those facts, an adverse
          inference  of  fact  may  arise
          against him, which coupled with
          the    presumptive     evidence
          adduced by the prosecution or
          the   Department   would rebut
          the  initial   presumption   of
          innocence  in  favour  of  that
          person  and   in  the   result,
          prove him guilty".

That principles were followed in Balram Prasad

Agrawal vs. State of Bihar (1997 (9) SCC 338).

Honourable Supreme Court in        State of West

Bengal vs.     Mir Mohd.Omar (2000 (8) SCC 382),

analysing Section 106 of Indian Evidence Act

held;

          "31. The pristine rule that the
          burden  of  proof  is   on  the
          prosecution to prove the guilt

CRA 108/09               56


          of the accused should not be
          taken as a fossilised doctrine
          as though it admits no process
          of intelligent reasoning. The
          doctrine of presumption is not
          alien to the above rule, nor
          would it impair the temper of
          the rule. On the other hand, if
          the traditional rule relating
          to  burden  of   proof  of  the
          prosecution is allowed to be
          wrapped  in  pedantic  coverage
          the   offenders    in   serious
          offences  would  be  the  major
          beneficiaries, and the society
          would be the casualty.
          32.   In   this    case,   when
          prosecution    succeeded     in
          establishing the aforenarrated
          circumstances, the Court has to
          presume   the    existence   of
          certain facts. Presumption is a
          course recognised by the law
          for the Court to rely on in
          conditions such as this.

CRA 108/09               57


          33. Presumption of fact is an
          inference as to the existence
          of one fact from the existence
          of some other facts, unless the
          truth  of  such   inference  is
          disproved. Presumption of fact
          is a rule in law of evidence
          that a fact otherwise doubtful
          may be inferred from certain
          other   proved    facts.   When
          inferring the existence of a
          fact from other set of proved
          facts, the Court exercises a
          process of reasoning and reach
          a  logical  conclusion  as  the
          most  probable   position.  The
          above  principle   has   gained
          legislative   recognition    in
          India  when   Section  114   is
          incorporated in   the  Evidence
          Act. It empowers the Court to
          presume the existence of any
          fact which it thinks likely to
          have happened. In that process
          Court shall have regard to the

CRA 108/09               58


          common   course   of    natural
          events, human conduct etc. in
          relation to the facts of the
          case.
          34. When it is proved to the
          satisfaction of the Court that
          Mahesh  was  abducted  by   the
          accused and they took him out
          of that area, the accused alone
          knew what happened to him until
          he was with them. If he was
          found murdered within a short
          time after the abduction the
          permitted   reasoning   process
          would enable the Court to draw
          the   presumption   that    the
          accused have murdered him. Such
          inference can be disrupted if
          accused would tell the Court
          what else happened to Mahesh at
          least until he was in their
          custody."

          15.    Honourable   Supreme   Court in

Trimukh Maroti Kirkan v. State of Maharashtra

CRA 108/09               59


(2006(10) SCC 681),     considered  the failure of

the accused to offer any explanation or the

effect of an explanation     which is found to be

untrue and held;

             "In    a   case    based    on
          circumstantial evidence where no
          eyewitness account is available,
          there is another    principle of
          law which must be kept in mind.
          The principle is that when an
          incriminating  circumstance    is
          put to the accused and the said
          accused    either    offers    no
          explanation    or    offers    an
          explanation which is found to be
          untrue,  then the same becomes an
          additional  link in the chain of
          circumstances    to    make    it
          complete.  This  view  has   been
          taken in a catena of decisions
          of this Court (See  State of T.N.
          v.  Rajendran  (1999(8)  SCC  679
          para  6);     State  of  U.P   v.

CRA 108/09               60


          Dr.Ravindra Prakadh Mittal (1992
          (3) SCC 300 para 39); State of
          Maharashtra v. Suresh (2000 (1)
          SCC 471 para 27); Ganesh Lal v.
          State of Rajasthan (2002 (1) SCC
          731 para 15); and Gulab Chand v.
          State of M.P (1995 (3) SCC 574
          para 4)."



It was held that where an accused is alleged to

commit murder of his wife and the prosecution

succeeds in leading       evidence to show that

shortly before the commission of crime        they

were seen together       or the offence      takes

place     in the dwelling home where  the husband

is normally residing, it has been consistently

held that      if the accused does not offer any

explanation     on  how  the  wife  received   the

injuries    or  offers  an  explanation  which  is

found to be false, it is a strong     circumstance

CRA 108/09                61


which     indicate  that  he  is  responsible  for

commission of the crime.

          16.     When   the  only     explanation

offered by the appellant as to what transpired

on that night, is found to be false, it is

definitely an additional link in the chain of

circumstances     establishing  that  it  was  the

appellant himself who poured the inflammable

material on the body of his wife and set fire

and caused her death by burns.

          17.     Learned Sessions Judge accepted

Ext.P9 as the dying declaration of the deceased

recorded by PW15    Premarajan. It reads;

             "I   above   mentioned   hereby
         declare  that  I   have  taken  the
         dying    declaration     of     pt.
         Mrs.Thresiamma,  34   yrs,  hailing
         from      Puthanparambu      house,
         Aruvichal, Kannur on 11/5/05 at
         11.00   p.m.  She   was   in   full

CRA 108/09               62


         conscious at the time. She claimed
         that her husband Mr.Biju put fire
         on her after pouring kerosene in
         the toilet adjacent to the house
         at 3.00 Am on 11/5/05.
         Note-The  victim  Thresiamma  told
         the  statement  in  Malayalam  and
         this is the English    version of
         the same."

     18.      As per   Ext.P9, it was recorded at

11 p.m on 11/5/2005. PW9 deposed that    the time

noted was mistake and instead the correct time

was 11 a.m and it was wrongly shown as 11 p.m.

The fact that     Thresiamma  died at 1.35 p.m on

11/5/2005 is not disputed and proved by Ext.P14

and     other  evidence.   Therefore,  the  dying

declaration could not have been recorded at 11

p.m and evidence of PW15 that it was a mistake

for    11 a.m can only be accepted. The evidence

of   PW15   is  that  he  was  instructed by  the

Superintendent to record the dying declaration

CRA 108/09              63


of Thresiamma and he was in charge of S3 unit

on that day and he recorded her statement in

Ext.P9. Evidence of PW15 is that though he can

understand     Malayalam,   he   cannot    write

Malayalam, as he belongs to Karnataka State

though    he is  working  in  Pariyaram  Medical

College Hospital, Kerala. According to PW15  he

had recorded the statement of the deceased that

it was her husband who set fire after pouring

kerosene on her. It was     as disclosed by her

and it is her dying declaration. Though learned

counsel argued that as there are other doctors

who can     write  Malayalam, PW15 who does not

know how to write Malayalam, recorded the dying

declaration   in  Engligh  and  that  itself  is

suspicious. It was also argued that due to that

defect Ext.P9, is to be discarded. In spite of

the fact that PW15     disclosed that he he can

understand Malayalam, though he cannot write

CRA 108/09               64


Malayalam, the capacity of PW15 to understand

Malayalam, if spoken to him was not tested or

challenged    in cross examination. Therefore, it

is to be taken that PW15 could follow Malayalam

and what was disclosed to him by the deceased

in Malayalam was recorded in English in Ext.P9.

On   going   through  the  evidence,  we find  no

reason whatsoever, to doubt the integrity of

PW15. We find no valid reason for PW15, to

fabricate a dying declaration or to join the

prosecution    to  create  one.  Argument of  the

learned counsel is that     as PW22 deposed that

he instructed the Sub Inspector to get a dying

declaration recorded, it could only be after

receipt of the copy of FIR which according to

PW22 was 12 noon and if so,       PW15 could not

have    recorded  Ext.P9  at  11  a.m  as Ext.P10

request from the Sub Inspector which in turn

could     only be  on  the  instruction  of  PW22


received only after 12 noon. True, PW22 deposed

that he had instructed the Sub Inspector to get

a dying declaration recorded as Judicial First

Class Magistrate, Payyannur who has to normally

record the dying declaration is on leave and

his    charge   was  with  Judicial   First  Class

Magistrate, Kannur. Ext.P10 with the evidence

of PW16     police constable show that request was

made by the Sub Inspector to the Superintendent

of   the   Medical  College  to  get  the    dying

declaration recorded. But it is to be born in

mind that PW22 was at Taliparamba        and from

Taliparamba he could not have ascertained the

position of the injured       and  decide whether

dying     declaration of   the  injured  could  be

delayed till the Magistrate of Kannur could be

made available.     Such decision could have been

taken only after getting the details of the

physical condition of the injured. PW22 was not

CRA 108/09               66


specifically asked whether he had given the

instructions to the Sub Inspector after receipt

of the copy of the FIR. True,       PW22 did not

depose that he got information earlier to the

receipt of copy of the FIR. But on that ground

we find no reason to     suspect the  genuineness

of Ext.P9. We find that immediately after the

arrest of the appellant, he was produced before

the learned Magistrate with a remand report on

12/5/2005. The remand report discloses that a

dying     declaration has  already been  recorded

which strengthens the genuineness of Ext.P9.

Learned counsel also argued that though   Ext.P9

was recorded on 11/5/2005, Ext.P9(b) and Ext.P9

(a) show that it was sent to the Magistrate

from      Medical  College,  Pariyaram  only   on

23/8/2005 and there is no explanation for the

delay. True, Ext.P9(a) forwarding letter shows

that Ext.P9 was forwarded from the hospital

CRA 108/09                67


only on 23/8/2005 by the Superintendent and

Ext.P9(b)     envelope  shows  that  it  was  sent

directly     to  the   learned  Magistrate  in   a

confidential     cover  by  post.  As   the  dying

declaration     was  recorded  as  proved  by  the

evidence of PW15 on 11/5/2005 itself, and the

evidence of PW15 shows that he entrusted Ext.P9

to    the       Superintendent,  Medical   College

Hospital under whose instructions he      recorded

the dying declaration, as Ext.P9 was sent in a

confidential cover to the Magistrate directly,

We find no reason      to suspect its genuineness

or to     discard Ext.P9 on the ground of delay.

          19.     The fact that PW15 does not know

to write Malayalam and the dying declaration

was recorded     not in the language spoken to by

the deceased     is not fatal. A dying declaration

made in Bagri     language which was recorded   by

the Magistrate in Hindi was considered by the

CRA 108/09                68


Honourable Supreme Court in State of Rajasthan

vs.    Bhup Singh (1997    (10) SCC 675).  Failure

to record      the dying declaration in the same

language and not in question and answer form

were considered therein. It was held,

          "10.  Assuming that the deceased
          gave her statement in her own
          language, the dying declaration
          would not vitiate merely because
          it was recorded in a different
          language. We bear in mind that it
          is  not    unusual   that  courts
          record evidence in the language
          of the court even when witnesses
          depose in    their own language.
          Judicial officers are used to the
          practice   of   translating   the
          statements from the language of
          the parties to the language of
          the   court.   Such   translation
          process would not upset either
          the    admissibility    of    the
          statement  or   its  reliability,



          there are other reasons to doubt
          the truth of it.
          11.    Nor    would    a    dying
          declaration go bad merely because
          the magistrate did not record it
          in  the  form  of  questions  and
          answers.  It  is  axiomatic  that
          what matters is the substance and
          not the form. Questions put to
          the dying   man would have been
          formal  and  hence   the  answers
          given    are  material.  Criminal
          courts   may evince interest in
          knowing the contents of what the
          dying   person   said   and   the
          questions put to him are not very
          important  normally. That part of
          the statement which relates    to
          the    circumstances    of    the
          transaction which resulted in his
          death  gets   the   sanction   of
          admissibility.    Here   it    is
          improper  to throw such statement
          overboard on a pedantic premix
          that it was not recorded in the


          form of questions and answers.
          (Vide  Ganpat  Mahadeo  Mane  v.
          State of Maharashtra (1993 Supp
          (2) SCC 242)).

     20.         True,  in  Ext.P9  it  was  not

specifically recorded that Thresiamma was fit

to give a declaration. What is stated therein

is that "she was in full conscious at that

time".     When PW15 was examined he also deposed

that she was oriented. Argument of the learned

counsel appearing for the appellant is that

consciousness and fit to give statement are two

different      stages   and  unless  the   doctor

certifies that     she was in a fit state of mind

to    give    a   statement,  Ext.P9  cannot   be

accepted. Though reliance was placed on the

decision in Paparambaka Rosamma's case (supra)

whereunder, in the dying declaration the doctor

had appended a certificate to the effect that


patient     was conscious   while recording the

statement, and hence it was held that it would

not be safe to accept the dying declaration as

true and genuine and was made when   the injured

was     in  a  fit  state  of  mind   since  the

certificate of the doctor was only       to the

effect     that  patient   is  conscious   while

recording the statement, we find that a five

Judge Bench of the Apex Court considered the

said decision in      Laxman's case (supra) and

held that    the observation in that case to the

effect     that  in  the   absence  of   medical

certification that the injured     was in a fit

state     of mind at  the  time  of  making  the

declaration, it would     be very much risky to

accept     the  subjective  satisfaction  of   a

Magistrate, who opined that the injured   was in

a fit state of mind at the time of making a

declaration is not a correct enunciation of the


law.    It was held;

             "It    is        indeed    a
          hypertechnical   view that the
          certification  of  the   doctor
          was  to  the  effect  that  the
          patient is conscious and there
          was no certification that the
          patient was in a fit state of
          mind   especially   when    the
          Magistrate categorically stated
          in his evidence indicating the
          questions he had put to the
          patient and from the answers
          elicited was satisfied that the
          patient  was in a fit state of
          mind whereafter he recorded the
          dying  declaration.  Therefore,
          the judgment of this Court in
          Paparambaka Rosamma v. State of
          A.P (1997 (7) SCC 695) must be
          held  to  be     not  correctly
          decided and we affirm the law
          laid down by this Court in Koli
          Chunilal  Savji  v.  State   of


          Gujarat (1999 (9) SCC 562)."

The Constitution Bench held;

          "The juristic theory regarding
          acceptability   of   a    dying
          declaration   is   that    such
          declaration    is    made    in
          extremity, when the party is at
          the point of death and when
          every hope of this world is
          gone,  when  every  motive   to
          falsehood is silenced, and the
          man  is  induced  by  the  most
          powerful consideration to speak
          only the truth. Notwithstanding
          the same, great caution must be
          exercised  in  considering  the
          weight  to  be  given  to  this
          species of evidence on account
          of  the   existence   of   many
          circumstances which may affect
          their truth. The situation in
          which a man is on death bed is
          so solemn and serene, is the
          reason in law to accept the



          veracity of his statement. It
          is   for   this   reason    the
          requirements of oath and cross-
          examination are dispensed with.
          Since the accused has no power
          of cross-examination, the court
          insist    that    the     dying
          declaration should be of such a
          nature  as   to  inspire   full
          confidence of the court in its
          truthfulness  and  correctness.
          The  court,   however  has   to
          always be on guard to see that
          the statement of the deceased
          was not as a result of either
          tutoring  or  prompting  or   a
          product  of  imagination.   The
          court also must further decide
          that the deceased was in a fit
          state  of  mind  and  had   the
          opportunity  to   observe   and
          identify     the     assailant.
          Normally, therefore, the court
          in order to satisfy whether the
          deceased was in a fit mental



          condition  to  make  the  dying
          declaration  look  up  to   the
          medical opinion. But where the
          eye-witnesses  state  that  the
          deceased  was  in  a  fit   and
          conscious  state  to  make  the
          declaration,    the     medical
          opinion will not prevail, nor
          can it be said that since there
          is  no  certification  of   the
          doctor as to the fitness of the
          mind  of  the  declarant,   the
          dying   declaration   is    not
          acceptable. A dying declaration
          can be oral or in writing and
          in  any   adequate  method   of
          communication whether by words
          or by signs or otherwise will
          suffice provided the indication
          is positive and definite. In
          most   cases,   however,   such
          statements  are   made   orally
          before  death  ensues  and   is
          reduced to writing by someone
          like a magistrate or a doctor


          or a police officer. When it is
          recorded, no oath is necessary
          nor  is  the   presence  of   a
          magistrate    is     absolutely
          necessary, although to assure
          authenticity  it  is  usual  to
          call a magistrate, if available
          for recording the statement of
          a man about to die. There is no
          requirement of law that a dying
          declaration must necessarily be
          made to a magistrate and when
          such statement is recorded by a
          magistrate    there    is    no
          specified  statutory  form  for
          such  recording.  Consequently,
          what evidential value or weight
          has  to  be  attached  to  such
          statement  necessarily  depends
          on the facts and circumstances
          of each particular case. What
          is essentially required isthat
          the person who records a dying
          declaration must be satisfied
          that the deceased was in a fit


          state  of  mind.  Where  it  is
          proved by the testimony of the
          magistrate that the declarant
          was fit to make the statement
          even without examination by the
          doctor the declaration can be
          acted upon provided the court
          ultimately holds the same to be
          voluntary   and   truthful.   A
          certification by the doctor is
          essentially a rule of caution
          and therefore the voluntary and
          truthful    nature    of    the
          declaration can be established
          otherwise."

Therefore, on the ground that in Ext.P9, PW15

only recorded that the injured was "in full

conscious" at the time when it was recorded and

did not specifically certify that she was in

full     state of   mind,  the  dying  declaration

cannot     be   discarded.  In   Goverdhan   Raoji

Ghyare's case (supra) considering the fit state


of mind and conscious state of mind, their

Lordships held, "the distinction sought to be

made out by the learned Sessions Judge that

'fit state of mind' and 'conscious state of

mind'     were  not  the   same  thing,  is   too

hypertechnical". Therefore, on that ground also

Ext.P9 dying declaration cannot be discarded.

          21. The  principle   on   which   dying

declaration    are   admitted  in   evidence   is

indicated in legal maxim.

     "nemo moriturus proesumitur mentiri"

which means, a man will not meet his Maker with

a lie in his mouth. It is on the principle that

when a man faces death, there is no reason for

him to falsely    allege any fact as to the cause

of his death. Secondly, if a dying declaration

is    to   be   excluded,  it  will   result  in

miscarriage of justice as he may be the only

eye witness in a serious crime, and     exclusion


of   the statement would leave the Court without

a scrap of evidence. While considering the

dying declaration it is worthwhile to remember

that     accused has no power to cross examination

the declarant, which is essential for eliciting

the truth. It is for such reason the Court is

to be     on guard to find  whether declaration is

a result of either tutoring, prompting or a

product    of   imagination. The  Court  must   be

satisfied that the deceased    was in a fit state

of mind    and capable of disclosing the fact.

          22. The principles to be followed in

appreciating     a  dying  declaration  are   well

settled. There is no rule of law that dying

declaration     cannot  be   acted  upon   without

corroboration. (Munnu Raja vs. State of M.P.

(1976 (3) SCC 104), State of U.P    vs. Ram Sagar

Yadav (1985 (1) SCC 552),       Ramawati Devi vs.

State     of   Bihar  (AIR   1983  SC   164)   and


S.P.Devaraji vs. State of Karnataka (AIR 2009

SC 1725)).     If the Court is satisfied that the

dying declaration is true and    voluntary it can

be the basis for conviction, even if there is

no corroboration. (State of U.P     vs. Ram Sagar

Yadav (1985 (1) SCC 552),      Ramawati Devi vs.

State of Bihar (AIR 1983 SC 164)). The Court

has     to   scrutinise  the  dying   declaration

carefully and must ensure    that the declaration

is not the result of tutoring, prompting or

imagination. (K.Ramachandra Reddy vs. Public

Prosecutor (1976 (3) SCC 618)).     If the dying

declaration is suspicious it should not be

acted     upon  without  corroborative  evidence.

(Rasheed Beg     vs. State of M.P.(1974 (4) SCC

264). The dying declaration    which suffers from

infirmity cannot form the basis of conviction

(Ram Manorath vs. State of U.P (1981 (2) SCC

654).



          23.   Normally the Court in order to

satisfy     whether deceased was in a fit mental

condition to make the dying declaration look up

to the medical opinion. But where the eye

witness has said that the deceased was in a fit

and     conscious  state   to  make  this  dying

declaration the medical opinion cannot prevail.

(Nanahau Ram vs. State of     M.P.(1988 Supp SCC

152).

          24.     There is no law or rule that a

dying declaration is to be recorded only by a

Magistrate. The legal position is settled in

Ramavati Devi vs. State of Bihar (AIR 1983 SC

164). Honourable Supreme Court in    B.P.Agarwal

& another vs. Dhanalakshmi Bank Ltd & Ors. (AIR

2008 SC 1431) analysing the earlier decisions

held;

          "Acceptability   of   a   dying
          declaration is greater because


          the  declaration   is  made   in
          extremity. When the party is at
          the verge of death, one rarely
          finds   any   motive   to   tell
          falsehood and it is for this
          reason that the requirements of
          oath and cross examination are
          dispensed  with  in  case  of  a
          dying  declaration.  Since   the
          accused has no power of cross-
          examination,  the  court   would
          insist    that     the     dying
          declaration should be of such a
          nature  as   to   inspire   full
          confidence of the court in its
          truthfulness  and   correctness.
          The court should ensure that the
          statement was not as a result of
          tutoring  or   prompting  or   a
          product of imagination. It is
          for the court to ascertain from
          the evidence placed on record
          that the deceased was in a fit
          state  of  mind  and  had  ample
          opportunity   to   observe   and


          identify the culprit. Normally,
          the court places reliance on the
          medical  evidence  for  reaching
          the   conclusion   whether   the
          person    making     a     dying
          declaration was in a fit state
          of mind, but where the person
          recording the statement states
          that the deceased was in a fit
          and conscious state, the medical
          opinion will not prevail, nor
          can it be said that since there
          is  no   certification  of   the
          doctor as to the fitness of mind
          of  the  declarant,  the   dying
          declaration is not acceptable.
          What is essential is that the
          person   recording   the   dying
          declaration  must  be  satisfied
          that the deceased was in a fit
          state  of  mind.  Where  it   is
          proved by the testimony of the
          Magistrate  that  the  declarant
          was fit to make the statement
          without there being the doctor's


          opinion to that effect, it can
          be acted upon provided the court
          ultimately holds the same to be
          voluntary   and   truthful.    A
          certificate  by  the  doctor  is
          essentially a rule of caution
          and,  therefore,  the  voluntary
          and   truthful   nature   of   a
          statement  can  be   established
          otherwise."

The     evidence  of   PW22   establish   that  a

Magistrate    was  not  available  to  record the

dying declaration as the local Magistrate was

on   leave   and   getting  it  recorded  by  the

Magistrate who was in charge would take time

and the condition of the injured did not permit

to    delay   the  recording.  It   was  in  such

circumstances,    PW15  happened  to  record  the

dying declaration pursuant to Ext.P10 request

as authorized     by the    Superintendent of the

Medical College Hospital, PW15, being a doctor



of    the   same  Medical  College  Hospital   is

competent to consider the fit state of mind of

the     injured  and   decide  whether  a   dying

declaration could be recorded. Evidence of PW15

with Ext.P9 establish that injured Thressiamma

was in fit state of mind to record her dying

declaration    and   PW15  recorded  it.   Though

learned counsel based on the entries in Ext.P14

case sheet argued that     at 4.05 a.m   fortwin,

which     is  a  sedative,  was  administered  to

Thressiamma     and    fact that the subsequent

entry shows that she was on sedation and was

disoriented casts sufficient doubt     on fitness

of the state of mind of Thressiamma. Ext.P14

establishes      that    though    fortwin    was

administered    at 4.55 a.m  subsequently, it was

again     directed  to   be  administered   after

recording the dying declaration. There is entry

in Ext.P14     regarding the recording of dying



declaration. Though learned counsel argued that

those entries are subsequently created, we find

absolutely no reason to doubt the genuineness

of such entries as neither the doctors nor

hospital    authorities   have  any   reason   to

fabricate the records, especially when no such

motive was even alleged. On appreciating the

entire    evidence,  we  have  no  hesitation  to

record    evidence  of  PW15  and   Ext.P9.  They

establish that the injured before her death

disclosed to PW15 that she was set fire after

pouring    the   inflammatory  material  by   her

husband, the appellant.

          25.    Argument of the learned counsel

is that as Ext.P16     with the evidence of PW23

shows that burned portion of     maxi and   skirt

examined at the laboratory    showed that it does

not contain kerosene but petrol and for that

reason    prosecution case is to be thrown out.


Evidence of PW23 with Ext.P16 establish that

kerosene   and petrol are products of the  same

mineral oil.   The distinguishing features are

Rf value and    colour. Rf value of petrol is

0.91, diesel is 0.85 and kerosene is 0.89. So

also, the colour of petrol is pink, diesel is

blue and kerosene is purple. Chemical analysis

as revealed from  Ext.P16 report shows  that Rf

value found was  0.91 and colour was pink. Both

the characteristics of petrol and not kerosene.

It is based on these findings it was certified

that presence of petrol was deducted in the

remnants of the burned maxi and skirt of the

deceased. Evidence of PW23 establish that when

remnants of the burned articles are examined,

there is possibility of error for the tests of

colour as well as Rf value. Therefore, based on

the said findings in Ext.P16 report alone, it

is not possible to hold that what was poured on


the deceased was petrol    and not kerosene. Both

are the same mineral oil and are inflammatory

materials. More over, the dress examined was

polyester which is also the product of crude

oil    like  petrol.  The    possibility  of the

difference in the RL value and colour from that

of kerosene could also be    due to this factor.

Even if it is taken that instead of kerosene,

appellant poured petrol on the deceased and set

fire and caused her death, for the reason that

prosecution case was that it was kerosene which

was    poured,  appellant  cannot be   found  not

guilty. Even the benefit of reasonable doubt

cannot be granted.      Whether it is petrol or

kerosene, when both are inflammable, and the

evidence establish that it was the appellant

who poured the inflammatory material on the

deceased, set fire and caused her death the

difference of kerosene and petrol is not very


relevant. It is necessary to bear in mind that

rule of benefit of reasonable doubt cannot be

at the expense of dispensation of justice and

all acquittals cannot be good, regardless of

justice     to the victim    and the   community.

Three decades back, Krishna Iyer,J. in Sivaji

Sahebrao Bobade and another       vs.   State of

Maharashtra (AIR 1973 SC 2622)   held;

        "The evil of acquitting a guilty
        person light-heartedly as a learned
        author*  (Glanville   Williams  in
        Proof  of   Guilt)  has   sapiently
        observed,  goes  much  beyond   the
        simple fact that just one guilty
        person  has  gone  unpunished.   If
        unmerited     acquittals     become
        general, they tend to lead to a
        cynical disregard of the law, and
        this in turn leads to a, public
        demand    for     harsher    legal
        presumptions    against    indicted
        'persons'    and    more     severe


        punishment of those who are found
        guilty.    Thus     too    frequent
        acquittals of the guilty may lead
        to   a    ferocious    penal   law,
        eventually  eroding   the  judicial
        protection of the guiltless. For
        all these reasons it is true to
        say, with Viscount Simon, that "a
        miscarriage of justice may arise
        from the acquittal of the guilty no
        less than from the conviction of
        the  innocent  ..."  In  short  our
        jurisprudential    enthusiasm   for
        presumed    innocence    must    be
        moderated by the pragmatic need to
        make criminal justice potent and
        realistic.  A  balance  has  to  be
        struck   between   chasing   chance
        possibilities as good enough to set
        the delinquent free and chopping
        the    logic    of     preponderant
        probability  to   punish   marginal
        innocents."

The position has been reiterated in      State of

CRA 108/09               91


Punjab vs. Karnail Singh (2003 (11) SCC 271)

as follows;

          "12.Exaggerated  devotion  to   the
          rule of benefit of doubt must not
          nurture    fanciful    doubts    or
          lingering  suspicion  and   thereby
          destroy  social  defence.   Justice
          cannot be made sterile on the plea
          that it is better to let hundred
          guilty  escape   than   punish  an
          innocent. Letting guilty escape is
          not doing justice according to law.
          (See : Gurbachan Singh v. Satpal
          Singh  and  others,  (AIR  1990  SC
          209)). Prosecution is not required
          to meet any and every hypothesis
          put forward by the accused. (See
          State  of  U.P.   v.  Ashok   Kumar
          Srivastava, (AIR 1992 SC 840)). A
          reasonable   doubt   is   not   an
          imaginary,   trivial   or    merely
          possible doubt, but a fair doubt
          based upon reason and common sense.
          It must grow out of the evidence in


          the  case.  If  a  case  is  proved
          perfectly, it is argued that it is
          artificial;  if  a  case  has  some
          flaws  inevitable   because   human
          beings are prone to err, it is
          argued that it is too imperfect.
          One   wonders   whether   in    the
          meticulous   hypersensitivity    to
          eliminate  a  rare  innocent   from
          being punished, many guilty persons
          must be allowed to escape. Proof
          beyond  reasonable   doubt   is  a
          guideline, not a fetish. (See Inder
          Singh and another v. State Delhi
          Admn.), (AIR 1978 SC 1091). Vague
          hunches  cannot   take   place   of
          judicial evaluation. "A judge does
          not preside over a criminal trial,
          merely to see that no innocent man
          is punished. A judge also presides
          to see that a guilty man does not
          escape. Both are public duties."
          (Per Viscount Simon in Stirland v.
          Director  of   Public   Prosecution
          (1944 AC (PC) 315)) quoted in State


          of U.P. v. Anil Singh, (AIR 1988 SC
          1998).  Doubts   would  be   called
          reasonable if they are free from a
          zest for abstract speculation. Law
          cannot afford any favourite other
          than truth. (See : Shivaji Sahabrao
          Bobade  and  another  v.  State  of
          Maharashtra, (1974 (1) SCR 489)) ,
          State of U.P. v. Krishna Gopal and
          another, (AIR 1988 SC 2154) and
          Gangadhar  Behera  and  others   v.
          State of Orissa, (2002 (7) Supreme
          276)."

     26.     Though learned Sessions Judge relied

on Section 6 of Indian Evidence Act and the

principles    of   res  gestae   relying  on  the

evidence of PW2 that the deceased had disclosed

to him on the way to the Medical College, while

being taken in his vehicle that it was done by

the appellant, on appreciating the evidence in

the proper perspective, we find it not safe to

rely on that evidence of PW2. Evidence of PW2


establishes    that   he   found   the   deceased

unconscious and she was taken in his jeep,

driven by his son, along with the appellant.

According to PW2, before they reached the Co-

operative   Hospital,  Payyannur,  he  asked  the

appellant what happened and appellant did not

reply and the deceased told him that it was

done by the appellant. Though learned Sessions

accepted it, we find it difficult to believe.

the evidence of PW2 is that deceased was not in

a position to speak either when he found her at

the bathroom or when the doctor of the        Co-

operative    hospital    saw   her.    In   such

circumstances, it cannot be believed that on

the   way  deceased  regained  consciousness  and

disclosed the cause for the burns and that too

when PW2 asked   the appellant the cause. In any

case, Section 6 of the Evidence Act cannot be

made invoked as under Section 6 of the Act,


relevancy     of   facts   could  only   be  those

statements contemporaneously made with the acts

forming the incident involved. Section 6 of the

Evidence Act is an exception to the general

rule      whereunder  hearsay    evidence  becomes

admissible. Section 6 provides that facts which

though not in issue, are so connected with a

fact in issue as to form part of the same

transaction, are relevant, where they occurred

at the same time and places. Honourable Supreme

Court in Sukhar vs. State of U.P (1999 (9) SCC

507) considered the principles of Section 6 of

Evidence Act and held.

           "6. Section 6 of the Evidence
           Act  is  an  exception   to  the
           general  rule    whereunder  the
           hearsay     evidence     becomes
           admissible.  But   for  bringing
           such hearsay evidence within the
           provisions of Section 6, what is


          required to be established is
          that   it    must    be   almost
          contemporaneous  with  the  acts
          and  there  should   not  be  an
          interval   which   would   allow
          fabrication.   The    statements
          sought    to     be    admitted,
          therefore, as forming part of
          res gestae, must have been made
          contemporaneously with the acts
          or immediately thereafter. The
          aforesaid rule as it is stated
          in Wigmore's Evidence Act reads
          thus :
          "Under the present Exception [to
          hearsay]  an  utterance  is   by
          hypothesis,   offered   as   an
          assertion to evidence the fact
          asserted  (for  example  that  a
          car-brake was set or not set),
          and the only condition is that
          it   shall   have   been    made
          spontaneously,   i.e.   as   the
          natural effusion of a state of
          excitement. Now this state of


          excitement may well continue to
          exist after the exciting fact
          has  ended.   The   declaration,
          therefore,  may  be   admissible
          even though subsequent to the
          occurrence, provided, it is near
          enough  in  time  to  allow  the
          assumption  that  the   exciting
          influence continued."
          7. Sarkar on Evidence (Fifteenth
          Edition)  summarises   the   law
          relating  to  applicability   of
          Section 6 of the Evidence Act
          thus :
          "1. The declarations (oral or
          written) must relate to the act
          which is in issue or relevant
          thereto; they are not admissible
          merely because they accompany an
          act. Moreover the declarations
          must relate to and explain the
          fact  they  accompany,  and  not
          independent  facts  previous  or
          subsequent thereto unless such
          facts are part of a transaction


          which is continuous.
          2.  The  declarations  must   be
          substantially    contemporaneous
          with the fact and not merely the
          narrative of a past.
          3. The declaration and the act
          may be by the same person, or
          they   may   be   by   different
          persons, e.g., the declarations
          of the victim, assailant and by-
          standers.  In  conspiracy,  riot
          andc. the declarations of all
          concerned in the common object
          are admissible.
          4. Though admissible to explain
          or corroborate, or to understand
          the  significance  of  the  act,
          declarations are not evidence of
          the   truth   of   the   matters
          stated.".

The fact that appellant was    being taken to the

hospital after sustaining injuries, do not form

part     of same   transaction  in  which    she


sustained the burns. Hence Section 6 of the

Evidence Act cannot have any application, as

held    by  the  Apex    Court in  Sukhar's  Case

(supra) and reiterated in      Bhairon Singh vs.

State of Madhya Pradesh (AIR 2009 SC 2603).

Similarly, though evidence of Pws.3 and 4 were

relied     on, on appreciating the evidence, we

find it unsafe to rely on their evidence on the

dying declaration. Though PW3 deposed in chief

examination    that  deceased had  disclosed  the

cause     for  her   burns  to   her,  in  cross

examination she deposed it as disclosed to her

by   PW5.    Though  PW5  claimed  that  deceased

disclosed    as   to  how  she  sustained  burns,

considering    the  physical  condition  of   the

deceased as is clear from Ext.P14 case records,

it cannot be believed that she had disclosed

the cause to PW5 from the hospital. But the

fact     that  the   cause  of   burns  allegedly


disclosed by the deceased to PWs.3 and 4     are

not    found  trustworthy  will  not affect  the

prosecution case.

          27. On    appreciating   the    entire

circumstantial    evidence  pointed out  earlier

with the dying declaration, it is conclusively

established that it was the appellant who set

fire on Thressiamma, his deceased wife, after

pouring the inflammable liquid. The facts so

established are complete and taken cumulatively

should form a chain which is complete. There is

no room for any escape from the conclusion that

within    all  human probability  the crime  was

committed by the appellant and none else. The

circumstances, so established are complete and

incapable of explaining any other hypothesis

that of the guilt of the appellant. They are

consistent with the guilt of the accused and

are inconsistent with his innocence.



          We confirms the conviction and sentence

for the     offence under Section 302 of Indian

Penal Code.

          Appeal is dismissed.



                            M.SASIDHARAN NAMBIAR,
                                         (Judge).




                                    P.BHAVADASAN,
                                         (Judge).

uj.

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