M.F.SALDANHA, J. - (1.) AN interesting facet of the law relating to an acceptability of dying declarations particularly when applied to wife burning cases has fallen for determination in this appeal.
(2.) THE Respondent before us who was the original accused is the husband of Smt. Suvarna who is the unfortunate victim in the burning incident. On the afternoon of 11-6-1996, Smt. Suvarna was severely burnt as a result of her clothes having been set on fire and she was taken to a private hospital with 61% burns and having regard to the seriousness of her condition, she was thereafter shifted to the Government Hospital at Sangli. On the evening of the same day, the police recorded her statement in the form of a complaint which is Ex. P-9 and in this complaint, she has implicated the husband as being the person who poured kerosene on her clothes and set them on fire. According to her, she was sleeping after having had her afternoon meal and that she suddenly woke up because she found her clothes were wet and that she saw her husband light a match-stick and having lit her clothes. Later that night, a formal dying declaration has been recorded which is Ex. P-13. In this dying declaration, Suvarna has elaborated the circumstances under which she was burnt by stating that there was a violent argument between her husband who is the accused and herself over the fact that she had gone to her parents' place and that this culminated in his throwing kerosene on her clothes and setting them on fire. In both the complaint and in the dying declaration, the accused-husband has been implicated. Apart from this evidence, there is virtually zero evidence on record because the entire string of witnesses who have deposed before the Court have effectively stated that they do not know under what circumstances, the incident took place and secondly, that the relations between the husband and the wife were cordial. Strangely enough, when it came to her own parents, we still have similar evidence on record viz., that they were not aware of any disagreement or hostility between the husband and the wife at any time. The entire record of the prosecution case, therefore, rests on the two documents viz., the complaint and the dying declaration and the learned trial Judge for a variety of reasons that have been set out by him has come to the conclusion that the charge under Section 302 of the Indian Penal Code cannot be sustained on the basis of this material and has, therefore, acquitted the accused. The State has assailed the correctness of this decision through the present appeal. We have heard the learned Government Pleader who represents the appellant- State and we have also heard the learned Counsel Sri B. S. Kamate who appears on behalf of the Respondent-Accused.
(3.) THE record of this case is reasonably modest and the two learned counsel have not only referred to different parts of it but have also taken us thread-bare through the whole of this record. As indicated by us earlier, the prosecution case either succeeds or fails entirely on the basis of the two documents referred to by us earlier. 4-A. The learned State Counsel first alluded to the legal position. We do not need to elaborately set out the decisions one by one because the law on the point is well settled insofar as the Supreme Court has laid down more than once that a conviction is permissible on the sole basis of a dying declaration provided that piece of evidence inspires total confidence in the mind of the Court. Elaborating further, the law contemplates that for obvious reasons particularly in this class of cases relating to matrimonial offences where everything has transpired between the accused and the deceased within the four corners of the matrimonial home where it is impossible to expert (expect ?) eye-witnesses and where even friends and neighbours often times for obvious reasons are not willing to come forward to depose about what transpired between the spouses and, therefore, the only available evidence is in the form of the dying declaration. This is a head of evidence which unfortunately cannot be tested through cross-examination because the deponent has died but the Evidence Act imports the garb of relevancy to this head of evidence which is not only admissible but is an important head of evidence because it represents in the words of the victim the exact circumstances under which the injuries or the burns were sustained. Over the years, the courts have filled in many safeguards as far as dying declarations are concerned, in order to ensure that there is hundred percent reliability in this head of evidence and that explains the reason why the Courts are required to be rigorous in their scrutiny because, it is equally important to be fair to the accused who has no means of assailing the contents of that dying declaration since the deponent is no longer alive. Heavy reliance is placed on the certificate of the doctor because the physical and mental condition of the deponent is of paramount importance but, the experience has shown that the Courts are again required to be rather circumspect even with regard to this head of certification because of the general calibre, competency and integrity or lack of it, as the case may be, of the doctors concerned. Similarly, the Courts have to take cognizance of the fact that the moment an incident of this type takes place, the police ipso facto jump to the conclusion that the husband and the in-laws are the culprits and the Courts have even found that in a large number of instances, this suspicion of allegation is unfounded. Being conscious of the fact that the charges are of an extremely serious nature, particularly under Sections 302 and 304A of the Indian Penal Code, the Courts are required to be guarded before recording a conviction. At the same time, the Courts are conscious of the fact that heinous and anti-social offences of this type cannot go unpunished merely because of legal technicalities or an over-zealous approach on the part of the Courts in bending over backwards in favour of the accused despite the existence of tangible evidence. The mean, therefore, has been struck by the Courts through various decisions and safeguards have been laid down and if the dying declaration passes all these and inspires total confidence in the mind of the Court, it can certainly form sole basis for a conviction. ;