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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: MAFIZUDDIN AHMED

DATE OF JUDGMENT14/01/1983

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A.

CITATION:  1983 AIR  275            1983 SCR  (2) 241  1983 SCC  (2)  14        1983 SCALE  (1)16

ACT:      Penal Code-Section  302-Conviction if could be based on dying declaration which is not corroborated.      Evidence Act-Dying  declaration-Accused,  if  could  be convicted on  dying declaration  which is  not corroborated- Evidence of child witness-If could be accepted.

HEADNOTE:      The prosecution  case against  the respondent  was that after marrying for a second time he started ill-treating his first wife,  the deceased,  and  that  on  the  day  of  the occurrence (10th  April, 1983) he poured kerosene oil on her and  set  fire  to  her  body.  When  the  deceased  started screaming he  gagged her  and wrapped  her with  a quilt and threw her  on the  floor  and  in  the  process  he  himself received burn  injuries on  his hands.  A week  later on the 18th April,  1973 when  the uncle  of the deceased called on her at  the hospital and enquired as to how it happened, she told him  that her  husband poured kerosene oil and set fire to her  body. He  then reported  the matter  to the  police. Since her  condition was  precarious, a  Magistrate recorded her dying declaration.      The respondent’s case on the other hand was that on the day of  the occurrence when his wife’s garments accidentally caught fire  when his  house caught  fire  he  attempted  to extinguish the  fire by covering her with a quilt and in the process he himself had received burn injuries.      Believing the  evidence of  the son  of the deceased, a boy of 7 years, and the dying declarations made to her uncle and the  Magistrate, the Sessions Judge held that the charge under s.  302 I.P.C. was established. But the High Court did not find  it safe  to convict  him on the basis of the dying declarations and  the statement  of the  child  witness  and acquitted him of the charge.      In appeal  to this Court, it was contended on behalf of the State  that even  if there  was no evidence on record to corroborate  the   dying   declarations   the   respondent’s conviction could be based on the dying declaration.      Dismissing the appeal, ^      HELD: It  is well  settled that, even in the absence of other corroborating  evidence, there  can be a conviction on

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the basis  of a dying declaration provided that the Court is satisfied about  the truthfulness  of the  dying declaration and that it is not vitiated in any other manner. [246 B-C] 242      Maniappan v.  The State of Madras, [1962] 3 S.C.R. 869, Khushal Rao  v. State  of Bombay,  [1958]  S.C.R.  552,  and Lallubhai Devechand  Shah & Ors. v. State of Gujarat, A.I.R. 1976 S.C. 1776 referred to.      In the  instant case  even though  the occurrence  took place on  10th April  and the  deceased was  alive till 18th April, she  did not  disclose either  to the  villagers  who visited her  or to  the doctor or the nurse attending on her that her husband sprinkled kerosene oil and set her on fire. There was  no evidence  that she  was not  in a  position to speak or  that she  was unconscious  between 10th  April and 18th April.  It was  only on the 18th April that she made an or dying  declaration for  the first  time to  her uncle and later to  the Magistrate.  And  secondly  the  name  of  the husband of  the deceased  in the dying declaration was shown as Mohain  Ali and  not the  real name Mafijuddin Ahmed. The doctor,  in   whose  presence   the  dying  declaration  was recorded, did not state that the declarant was the deceased; he only stated that the Magistrate recorded the statement of a patient  of his  unit who  had received  the burn  injury. Therefore the probability of her statement being inspired by her uncle  cannot be weeded out. The aforesaid circumstances do cast  doubt on the truthfulness of the dying declaration. [246 D-H, 247 A-C]      From the  tenor of  the evidence  of  the  son  of  the deceased, a  boy of about 7 years, it is evident that he was vacillating throughout  and that he was not a free agent but he had  been tutored. He said that he was in the mango grove at the  time of the occurrence; that his uncle taught him to tell the  police that  he was  in the  grove at  the time of occurrence; that  it was  the house  that caught fire first; that his  father poured  kerosene oil  on his mother and set fire to  her. He also said that his father poured sented oil on  his   mother’s  body   and  not  kerosene  oil.  On  the application of  Alimuddin Ahmed  the son  of the accused was kept in  the custody of his wife and thus to all intents and purposes the  custody of  the boy remained with the uncle of the deceased and his wife. [247 E-H, 248 A, D-E]      The fact  that the respondent covered the deceased with quilt to  extinguish the fire and in the process had himself got burn  injuries on  his hands  also lend  support to  the defence version. [248F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 401 of 1976.      Appeal by  Special leave  from the  Judgment and  Order dated the  26th September, 1976 of the Gauhati High Court in Criminal Appeal No. 18 of 1975.      S.K. Nandy and Krishna Prasad for the Appellant.      D. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The present appeal by special leave has been filed by  the State  of Assam  against the  judgment of  the Gauhati High 243 Court dated 25th of September, 1975 whereby it set aside the conviction of  the respondent Mafizuddin Ahmed and acquitted him of the charge of murder.

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    The  prosecution   case  as   unfolded  in   the  first information report  and the  evidence is that the respondent Mafizuddin Ahmed  was a  sub-Inspector of  Police posted  at Gauhati. His  wife and children lived at his village home at Bholagaon  within   the  Palashbari   Police  Station.   The respondent had first married Jaygun Bibi and had one son and two daughters  from her.  Later on  he married  another lady Smt. Lal  Bari and  thereafter he started maltreating Jaygun Bibi. On  10th of April 1973 he went to his village home and at about  2 p.m.  he poured  kerosene oil on his wife Jaygun Bibi and  set fire to her body with the help of a match box. When she  screamed the  accused gagged  her mouth  and  then wrapped her  with a  quilt and threw her on the floor. In so doing the  respondent himself received some burn injuries on his hands.  The village  people hearing the cries came there and they  took Jaygun Bibi as well as the respondent accused to the  Gauhati Medical  College Hospital  where  they  were admitted for treatment.      Alimuddin Ahmed  was the uncle of Jaygun Bibi and lived at a  distance of  6 miles from the house of the respondent. He received  a news  that the  house of  the respondent  had burnt and that Mafizuddin and Jaygun Bibi had sustained burn injuries. A  few days  thereafter Alimuddin  Ahmed’s brother developed tetanus.  He got  him admitted  in  the  Isolation Hospital at  Kalapahar,  Gauhati.  From  there  he  went  to Gauhati Medical  College Hospital on 18th April, 1973 to see how Jaygun Bibi was faring. He met Jaygun Bibi and asked her how it  happened and  then she  told that  her  husband  had poured kerosene  oil on her body and set fire. He, thereupon went to  the Sadar Police Station and made a report (Ex. 3). On receipt  of the  report police arranged for recording the dying declaration  of Jaygun  Bibi by  a Magistrate  as  her condition was considered precarious. Shri A.C. Bhuyan (PW 2) recorded the  dying declaration  of Jaygun  Bibi. Eventually Jaygun Bibi succumbed to her injuries on that very day.      The accused  pleaded not guilty to the charge. His plea was one  of denial.  He, however,  admitted that  on 10th of April, 1973  his wife  received serious  burn  injuries  and later died  as a  result of  her  injuries  at  the  Gauhati Medical College  Hospital. His  case was that on 10th April, 1973 his house at Bholagaon caught fire and at that 244 time his  wife wearing garments also accidently caught fire. Having seen this he tried to extinguish the fire on her body by covering  her with  a quilt  and in  doing so  he himself received some  burn injuries.  He  flately  denied  that  he poured kerosene  oil on  her  body  and  then  set  fire  as alleged.      The only  eye witness in the case is Mantaz Ali the son of the  deceased Jaygun  Bibi and the accused-respondent. He was of only 5 years and odd at the time of occurrence and of 7 years  and odd  at the  time of  his deposition. The other material evidence relied upon by the prosecution are the two dying declarations,  one being oral made to Alimuddin Ahmed, the uncle,  and the  other being  written dying  declaration recorded by the Magistrate Shri A.C. Bhuyan, PW 2.      The Sessions  Judge on  a consideration of the evidence adduced by  the prosecution  found that  the charge under s. 302  IPC   was  fully   brought  home  to  the  accused  and accordingly convicted  him thereunder  and sentenced  him to life imprisonment.  On appeal,  the High Court set aside the order of  conviction and  acquitted the  respondent  of  the charge. The State of Assam has, as stated earlier, filed the above appeal by obtaining a special leave.      The contention  raised before  the High Court on behalf

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of the  respondent was  that the evidence was too meagre and unreliable  to   sustain  the  conviction  and  the  learned Sessions Judge  failed to  properly appreciate the same. The evidence which  has been  relied upon  by the Sessions Judge for convicting  the respondent  was the  evidence of the eye witness Mantaz  Ali, the  child witness,  and the  two dying declarations, one  oral and the other written for convicting the respondent.  The High  Court, however,  did not  find it safe to  convict  the  respondent  on  the  basis  of  dying declaration and the statement of PW 7.      It has  been contended  for the State of Assam that the conviction could be based upon the dying declaration even if there is  no other  corroborating evidence on the record and reference was  made to  Tarachand Damu Sutar v. The State of Maharashtra(1) and  Maniappan v. The State of Madras.(2) Mr. Goverdhan, counsel  for the respondent-accused, on the other hand contends that the dying 245 declaration alone  without corroboration  cannot be made the basis  of   convicting  the   respondent  and   referred  to Madhoprasad v. The State of Madhya Pradesh(1).      This  Court   has  consistently  taken  the  view  that conviction can be based upon the dying declaration alone. In Maniappan’s  case   (supra)  the  dying  declaration  was  a completed statement  which was  categorical in character and there was  nothing to show that the victim had anything more to say. This Court held that the dying declaration needed no corroboration and  could be  relied upon.  In Khushal Rao v. State of Bombay(2) this Court held :           "... in  our opinion, there is no absolute rule of      law, or  even a rule of prudence which has ripened into      a  rule   of  law,  that  a  dying  declaration  unless      corroborated by  other independent evidence, is not fit      to be acted upon, and made the basis of a conviction." The Court  referred to  the following  observation  made  in Madho Prasad’s case (supra) :           "It is  settled law that it is not safe to convict      an accused person merely on the evidence furnished by a      dying declaration without further corroboration because      such a statement is not made on oath and is not subject      to cross-examination  and because the maker of it might      be mentally  and physically in a state of confusion and      might well be drawing upon his imagination while he was      making the  declaration. It  is in  this light that the      different dying  declarations made  by the deceased and      sought to be proved in the case have to be considered." and observed that they were in the nature of obiter dicta.      In  Lallubhai   Devechand  Shah  &  Ors.  v.  State  of Gujarat(3) dealing  with a dying declaration this Court laid down :           "The law with regard to dying declarations is very      clear. A  dying declaration must be closely scrutinised      as to  its truthfulness  like any other important piece      of 246      evidence in  the light  of the  surrounding  facts  and      circumstances of  the case,  bearing in mind on the one      hand, that  the statement  is by  a person  who has not      been examined  in court on oath and, on the other hand,      that the  dying man is normally not likely to implicate      innocent person falsely." Thus, the  law  is  now  well  settled  that  there  can  be conviction on  the basis  of dying declaration and it is not at all  necessary to have a corroboration provided the Court is satisfied  that the dying declaration is a truthful dying

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declaration and not vitiated in any other manner.      We,  therefore,   find  considerable   force   in   the contention of  the counsel for the State of Assam that there can be  a conviction  on the basis of dying declaration even in the  absence of  other corroborating  evidence but before doing  so,   the  Court   has  to  be  satisfied  about  the truthfulness of the dying declaration.      In the  instant case,  the occurrence took place on the 10th of  April, 1973.  The deceased  was alive  upto 18th of April 1973.  She did  not disclose earlier to anyone she met in the  hospital that her husband sprinkled kerosene oil and set  her   on  fire.  She  met  so  many  people  after  the occurrence-she met  the village  people who  appeared on the scene  just  after  the  occurrence  and  who  took  her  to hospital. She  did not  disclose the  story to the doctor or the nurse  attending on  her. There  is no  evidence of  the doctor on the record that she was not in a position to speak or that she had become unconscious between 10th of April and 18th of April. It is only when her uncle met her on the 18th of April  that she made an oral dying declaration to him and later to  the Magistrate  who recorded  her statement.  This throws doubt  on the  dying declaration  made by Jaygun Bibi and  this  circumstance  weighed  with  the  High  Court  in discarding the  dying declaration  of the deceased. The High Court discarded  the dying declaration on yet another ground that the  name of  the husband  of the deceased given in the dying declaration  was Mohsin  Ali not Mafizuddin Ahmed and, therefore, the  identity of  the lady Jaygun Bibi was itself doubtful. Dr.  Ramananda Das, Registrar of the Surgical Unit No. 1  of the  Gauhati Medical  College Hospital,  PW 6,  in whose presence  the statement  was recorded,  has not stated that the  declarant was  Jaygun Bibi.  He has  simply stated that the  Magistrate recorded  the statement of a patient of his unit who received burn injuries. 247 Further, the  Magistrate, Shri A.C. Bhuyan, who recorded the dying declaration  of the Jaygun Bibi stated that the daroga and a  constable were  present nearby when the statement was recorded. Coupled  with these  in the  absence of  the thumb impression of the deceased on the declaration.      The cumulative  effect of  all the  circumstances which weighed with  the High  Court is  that they cast doubt about the truthfulness of the dying declaration. It is not outside the realm  of probability  that her  statement may have been inspired by her uncle and, therefore, it will not be safe to base  the   conviction  of   respondent  on   such  a  dying declaration.      The other  direct evidence  is the  deposition of PW 7, the son  of the  deceased, a  lad of 7 years. The High Court has observed in its judgment :           "... the  evidence of  a child  witness is  always      dangerous unless  it is available immediately after the      occurrence and  before there  were any  possibility  of      coaching and tutoring."      A bare  perusal of  the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to  depose either  by his nana or by his own uncle. It is true  that we  cannot  expect  much  consistency  in  the deposition of  this witness  who was  only a lad of 7 years. But from  the tenor  of his deposition it is evident that he was not  a free  agent and has been tutored at all stages by someone or the other.      He had  told the  police that he was in the mango grove at the  time of  occurrence. If this be a fact then he could not be  an eye witness of the occurrence but when he came to

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depose before the Court he said :           "Ahmed is  my father’s brother. He was not at home      at the time of the occurrence. He came later. He taught      me to tell police that I had been in the mango grove at      the time  of occurrence.  That is why I told police so.      Later,  in  company  with  my  maternal  grand  father,      Alimuddin I said what I had seen." Again, the first thing that he uttered when the house caught fire is "Gharat Jui Lagil" (the house has caught fire). This statement is 248 more in  consonance with  the defence theory. His mother was more important  for him and if it was a fact that his father had set  fire to  his mother  by sprinkling  kerosene oil to which he  was a witness he would not have omitted to say so. In the next breath he deposed that his father poured scented oil on his mother’s body and not kerosene oil.      The fact  that he was tutored is fully borne out by his own statement,  as will  be clear from the following portion of his deposition:           " "Nana"  accompanied me  when I came to depose in      the lower  court, but  stayed outside. I stated in that      court that  I had  stated what  "Nana" asked me to. The      day before  I came  to depose, I had told "Nana" what I      would say."      It is  also clear from the materials on the record that on the  advice of the police Alimuddin Ahmed, the nana of PW 7 applied for his custody during the enquiry proceedings but the Magistrate  instead of  giving custody  to the nana gave the custody  of PW  7 to his nani, who was no other than the wife of  Alimuddin. So  to  all  intents  and  purposes  the custody of  the boy remained with Alimuddin Ahmed, the nana. Indeed, he took the boy for giving evidence in court. P.W. 7 was in  the full  control of  the nana and deposed as he was asked to depose. In this setting the observation made by the High Court is fully justified.      There are  two other circumstances which also cannot be lost sight  of. Covering the burning body of the Jaygun Bibi with quilt  will help  in extinguishing  the fire. That will stop the  passing of  oxygen to  the fire  and the fire will automatically extinguish.  The further fact that in so doing the husband  also got  burns on his hands goes a long way to support the defence version.      For the reasons given above the appeal must fail. It is accordingly dismissed. P.B.R.                                     Appeal dismissed. 249