Decided on December 19,1983



D.C.Gheewala, J. - (1.) The present appeal is directed against the order of acquittal recorded by the learned sessions Judge, Surendranagar, in Sessions Case No. 23 of 1979.
(2.) The respondent accused was prosecuted for an offence punishable u/s. 302 of the I.P. Code on an allegation that on 23-7-79, at village Haived, District Surendranagar, the accused had poured kerosone over deceased Kusum set her ablaze and brought about her death. The motive for the crime seems to be that the husband of the accused and the husband of the deceased were serving in the same office. They were school friends and the husband of the accused was in the habit of visiting the house of the deceased. The accused, therefore, was alleged to be suspecting that her husband was in illicit connection with the deceased Kusumben. On the date of the incident she is alleged to have gone to the house of the deceased and told her that her husband was concealed in the upper storey of the house of the deceased. She, therefore, challenged her to go to the upper storey. The deceased accompanied the accused. There the accused is alleged to have disrobed the deceased by snatching away her sari and is alleged to have given two slaps. Then she bolted the door from without, went down, caught hold of the keroscene tin and match box, once again went up, felled the deceased, poured kerosene over her and set her ablaze. Thereafter, she conveniently went down, left the house of the deceased and went to her place. The deceased is alleged to have come down and also to have extinguished the flame by means of pouring a bucketful of water over her lower extremity as her petticoat was burning. Thereafter the deceased is alleged to have called one Vasanti who was her neighbour and sent her to the mother-in-law of the deceased, who was staying at a distance of about four houses in the same street. The husband of the deceased at the relevant time was at Dhangahdra for consulting a Doctor. The persons collected there. The deceased was first removed to Halvad Primary Health Centre and from there she was taken to Dhrangadhra. She died after a few days on 9th August, 1978 and thereafter the accused was arranged before the learned Sessions Judge on the above charge,
(3.) The prosecution relied upon dying declaration allegedly made by the deceased and as it was a case of circumstantial evidence it was sought to be argued before the learned trial Judge as it was argued before us by Mr. M.C. Patel, the learned Public Prosecutor that there is a ring of truth in the said dying declaration and the position of law has now been crystalised that there is no bar in basing conviction of the accused on the sole- basis of a dying declaration. There cannot be any dispute regarding this particular proposition of law. But before the dying declaration can be made the sole basis for convicting the accused, the court must necessarily scrutinise the veracity of the said dying declaration should satisfy itself as to whether the contents of the dying declarations sound truthful, that the incident narrated in the said dying declaration could have happened in the way in which the person making the dying declaration has stated that this has so happened. In the instant case, the prosecution has relied upon three dying declarations. At Exh. 14 is the first dying declaration which was recorded at about 7-00 p.m. That is about two hours after the incident by the P.S.O. who had gone to the Hospital. The said dying declaration is recorded in the form of questions and answers and the Doctor of the Health Centre has also certified that the patient Was conscious. Another dying declaration was recorded on 29-7-1978. That has been produced by Exh. 48 and the third dying declaration produced at Exh. 44 is in the nature of a further- statement of the deceased. The consistent thread which runs through all these declarations is that the accused had come to the house of the deceased: that she had slapped her, then she had gone down and brought kerosone and set her ablaze. Thereafter the deceased had gone down, extinguished the flames herself, lied down on the cot, called Vas anti and then process of investigation started and people started coming. These dying declarations according to the learned Judge, were not reliable and for reasons to be now recorded, we feel that the learned trIal Judge was perfectly justified in coming to the conclusion that he did.;

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