Pitchamml @ Pichamani @ Maniammal and Mayandi vs State

T. Mathivanan, J.—This memorandum of criminal appeal is directed against the Judgment dated 30.06.2011 and made in the Sessions Case

in S.C. No. 133 of 2010, on the file of the learned Principal Sessions Judge, Thoothukudi, finding the appellants/accused guilty u/s 302 I.P.C.,

convicting thereunder and sentencing them to suffer the imprisonment of life and also to pay a fine of Rs. 1,000/- each in default to suffer rigorous

imprisonment for a further period of six months. ""Insatiable greed killed sister and landed in gallows.

Yes....it is true! The present case has set an example for the above quote.

The appellants 1 and 2 are the wife and husband, whereas the deceased Velthangam is none other than the elder sister of the second appellant.

The trouble started in respect of a stretch of poramboke land measuring 6. Cents, over which the appellants 1 and 2 were claiming interest.

That on 27.08.2009, at about 04.30 p.m., on the frontage of the hut of the deceased, as per the case of the prosecution, the second appellant

being the younger brother of the deceased had set her on fire, while the first appellant had poured kerosene on her person.

The entire case of the prosecution hinges around the dying declarations said to have been given by the deceased Velthangam. Infact, the alleged

eyewitnesses viz., P.Ws. 2, 3 and 7 have not supported the case of the prosecution as they have turned hostile.

The case of the defence is that due to the family dispute, the deceased Velthangam had doused herself with kerosene and set herself on fire.

However, the learned Trial Judge, on appraising the evidences both oral and documentary has found that the burn wounds found on the person

of the deceased were homicidal burns and caused by the guru some act of the appellants 1 and 2 and he has also found that the dying declarations

of the deceased Velthangam were cogent, reliable and in tune with probabilities and inspired implicit confidence and therefore, he had proceeded

to found the appellants guilty under the simpliciter charge 302 I.P.C., convicted and sentenced them as aforestated.

The crucial question involved in this case is:

Whether conviction can be recorded on the basis of the dying declaration alone?

It is a settled proposition of law that a Court is entitled to convict an accused on the sole basis of dying declaration if in the circumstances of the

case it can be regarded truthful. This dictum has been laid down by the Honourable Supreme Court in Gopalsingh and Another Vs. State of

Madhya Pradesh and Another,

Once dying declaration is found to be true and voluntary, it can be the sole basis of conviction and needs no corroboration. Such a statement is

admissible not only against the person actually causing death but also against other persons participating in causing the declarant''s death. This

proposition has been laid down by the Honourable Supreme Court in Sant Gopal alias Bhagat (In Jail) Vs. State of U.P.,

In the instant case on hand, P.W. 18 Balamurugan, Inspector of Police attached to Thoothukudi South Police Station had laid a final report on

27.12.2009, before the learned Judicial Magistrate No. I, Thoothukudi as against the appellants 1 and 2 u/s 302 I.P.C., in connection with the

case in Crime No. 928 of 2009, on the file of the Thoothukudi South Police Station.

After the completion of the preliminary enquiry, the learned Judicial Magistrate No. I, Thoothukudi had committed the case records to the

Court of Sessions viz., the learned Principal Sessions Judge, Thoothukudi and he, in turn, had taken the same on his file in S.C. No. 133 of 2010.

After the appearance of the appellants and on hearing the learned counsel appearing for the defence as well as the learned Public Prosecutor

appearing for the State, the learned Principal Sessions Judge had framed a charge u/s 302 I.P.C., as against the appellants/accused.

When the ingredients of the charge were explained and questioned, the appellants/accused had pleaded innocent and claimed to be tried.

Therefore, they were put on trial.

The prosecution, in order to substantiate it''s case, has totally examined as nearly as 18 witnesses. During the course of their examination Exs.

P1 to P24 and the material objects in M.Os. 1 to 5 were marked.

The gravamen of the prosecution case is this:

15.1. P.W. 1 Esakkimuthu is the husband of the deceased Velthangam, whereas P.W. 4 Muthukumar is their son. The trouble started over a piece

of poramboke land measuring 6. Cents. P.W. 1 and the deceased Velthangam were residing along with P.W. 4 at No. 13, Bryant Nagar. The

deceased Velthangam had occupied a poramboke land measuring 6. Cents in Bharathi Nagar Kuruvimedu. Since the second appellant/accused

happens to be her younger brother, she had asked him to look after that land and in pursuant to her request he had also been living in the said land

along with the first appellant and their children.

15.2. While so, the deceased had demanded and got back a half portion of the said land from the second appellant and she had also put up a hut

over the said half portion. However, the second appellant/accused was not willing even to part with the half portion of the land and due to this

reason he had been picking up quarrel with her often.

15.3. That on 27.08.2009, at about 04.30 p.m., when the deceased Velthangam was engaged in repairing her hut, the appellants 1 and 2 came

there and picked up quarrel with her and they had also asked her as to ""what kind of work she was having there"" and they had also asked her to

go to her house.

15.4. While saying so, the first appellant Pichammal @ Pichamani @ Maniammal had brought kerosene in a coconut shell and pushed the

deceased down. After her falling down, the first appellant had poured the kerosene over her and the second appellant, who was standing by her

side, had lit a live matchstick and put it on her and thereby set her on ablaze by saying (***). On account of this reason, she had sustained burn

injury over her right hand, right back, right hip, right and left thigh. All her wearing apparels were burnt into ashes.

15.5. When the deceased had raised hue and cry, the inmates of the street had rushed there and quenched the fire. On seeing them, the accused 1

and 2 had fled away from that place.

15.6. P.W. 1 was informed about the incident by a boy and on hearing the news, he had rushed to the place of occurrence and found his wife in

front of the said hut with burn injuries. She was in a position to speak. She had told him that the appellants 1 and 2 had poured kerosene and set

her on ablaze. Thereafter, P.W. 1 had taken her to Thoothukudi Government Hospital in an Auto-rickshaw.

15.7. At about 05.45 p.m., when P.W. 14 Dr. Dexcy Clement, was on duty as an Assistant Surgeon at Government Hospital, Thoothukudi, the

deceased was brought to him by P.W. 1. When enquired about the history of burn injuries, the victim had stated that she was assaulted by two

known persons i.e., one male and one female with hands and then she was set on fire after pouring kerosene. During the course of his examination,

the deceased was conscious. P.W. 14 Dr. Drecy Clement had found the following burn injuries on the person of the deceased. Burns over right

arm, forearm, right upper chest, right back, right buttock and both lower limbs.

15.8. P.W. 14 had estimated the burn injury at 60% and admitted her in burns ward. In this connection, he had issued an accident register, which

was marked under Ex. P17. Thereafter, he had sent an intimation under Ex. P18 to the Hospital Out Police Station.

15.9. P.W. 15 Sub-Inspector of Police attached to Thoothukudi District South Police Station, after receiving the intimation at 06.15 p.m., had

been to the Government Hospital and recorded a statement under Ex. P1 from the deceased and thereafter he came down to Police Station and

registered a case in Crime No. 928 of 2009 u/s 307 I.P.C., The printed First Information Report was marked as Ex. P19. Then the first

information report Ex. P19 and the complaint under Ex. P1 were sent to the learned Judicial Magistrate and the copies of the same were also sent

to the Police higher officials.

15.10. At about 06.30 p.m., on the same date, P.W. 17 Inspector of Police attached to Thoothukudi South Police Station had received the copies

of the first information report and at about 07.00 p.m., he had been to the place of occurrence, inspected the same and prepared an observation

mahazar under Ex. P2 and a rough sketch under Ex. P22 in respect of the place of occurrence in the presence of P.W. 5 Kumar and yet another

witness. Subsequently, he had also seized a charred Chappel (M.O. 1), a charred blouse (M.O. 2), a coconut shell (M.O. 3), a match box (M.O.

4) and a Saree (M.O. 5) under the cover of a seizure mahazar Ex. P3. Then, he had examined the witnesses and recorded their respective

statements.

15.11. On the next day i.e., 29.08.2009, at about 10.00 a.m., he had arrested the first appellant Pitchammal at Kattabomman Nagar Bus stand

and sent her to judicial custody.

15.12. That on 10.09.2009, at about 01.45 p.m., P.W. 8 the learned Judicial Magistrate No. I, Thoothukudi had received a requisition under Ex.

P5 from P.W. 17 Inspector of Police and thereby he was requested to record the dying declaration of the deceased Velthangam, who was then

undergoing treatment for her burn injuries at Thoothukudi Government Hospital. Based on the said requisition, P.W. 8 the learned Judicial

Magistrate No. I, Thoothukudi had been to the Government Hospital, Thoothukudi.

15.13. P.W. 16 Dr. Balakumar had identified the victim and had also given a certificate under Ex. P20, wherein he had stated that the patient was

conscious, well oriented and she was in a position to give statement. Thereafter, P.W. 8 the learned Judicial Magistrate had recorded the dying

declaration of the victim under Ex. P6 in accordance with her narration and P.W. 16 had also issued another certificate under Ex. P21, wherein he

had stated that the patient was conscious, well oriented throughout the period of recording statement.

15.14. The deceased Velthangam had undergone treatment in the Government Hospital, Thoothukudi till 03.00 p.m., on 24.09.2009 and at about

04.00 p.m., she was brought to Thoothukudi Arulrhaj Hospital for further treatment, wherein P.W. 13 Dr. Ravichandran had examined her

condition. While so, he had noticed more deep burns over both thighs, back, chest and several regions. During the course of his examination, he

had found the burns to the extent of 40% and to that effect, he had also issued an accident register under Ex. P15. Then, the victim Velthangam

was admitted in the emergency/ICU Ward.

15.15. At about 10.30 a.m., on 26.09.2009, while she was undergoing treatment she had succumbed to burn injuries. Immediately, a death

intimation under Ex. P16 was given to P.W. 12 Head Constable attached to South Police Station, Thoothukudi. He in turn had entrusted the same

with P.W. 17 investigating officer and after receiving the death intimation he had altered the section of law to one u/s 302 I.P.C., from 307 I.P.C.

The alteration report was marked as Ex. P23.

15.16. Subsequently, P.W. 17 had been to Arulrhaj Hospital, Thoothukudi and on his request at about 12.30 p.m., the dead body of the

deceased was shifted to Government Medical College Hospital, Thoothukudi. He had also conducted an inquest on the dead body of the

deceased in the presence of the Panchayatdars and prepared an inquest report under Ex. P24.

15.17. Then, he had given a requisition to the medical authority through P.W. 11 Head Constable to conduct the postmortem examination.

Accordingly, P.W. 11 had identified the dead body to Dr. Manoharan, Assistant Professor Forensic Science Department at Thoothukudi

Government Medical College Hospital. In pursuant to the requisition under Ex. P7, P.W. 9 had started conducting of postmortem examination on

the dead body at 03.50 p.m., During the course of his examination, he had found the following burn scar on the parts of the dead body.

i. 10 cms x 7 cms seen over the right cheek and right ear noted,

ii. 5 cms x 4 cms seen over the right abdomen,

iii. 8 cms x 4 cms seen over the lateral side of right chest,

iv. 10 cms x 8 cms in the right hand,

v. 12 cms x 10 cms in the dorsum of right foot,

A bed sore of size 15 cms x 11 cms in between the buttocks.

15.18. After the completion of his examination, he had issued a postmortem certificate under Ex. P8, wherein he had stated that ""the deceased

would appear to have died of complications of superficial burns and he has also opined that the death would have occurred 4 to 12 hours prior to

the autopsy"". Then, P.W. 17 had examined the witnesses including Dr. Manoharan, who had conducted the postmortem examination and recorded

their respective statements.

15.19. That on 07.10.2009, P.W. 17 had arrested the second appellant Mayandi at about 03.00 p.m., on Thoothukudi-Tiruchendur main road in

the presence of one Thangamani (not examined) and one Muneeswaran (not examined). On interrogation, he had voluntarily given a confessional

statement and the same was reduced into writing by P.W. 17 in the presence of the above said witnesses and subsequently the second appellant

was also sent judicial custody.

15.20. That on 24.10.2009, P.W. 17 had given a requisition under Ex. P9 to P.W. 8 the learned Judicial Magistrate No. I, Thoothukudi

requesting to send the material objects viz., a charred violate colour blouse, a charred Saree designed with blue colour border and rose colour

flowers, a coconut shell with kerosene smell, collected in this case to Forensic Sciences Department. Pursuant to the requisition under Ex. P9, the

learned Judicial Magistrate No. I, Thoothukudi had sent the material objects for chemical examination through his official letter dated 12.11.2009

under Ex. P10.

15.21. Accordingly, a chemical analysis report dated 21.12.2009 under Ex. P11 seems to have been received by the learned Judicial Magistrate

No. I on 18.02.2010, wherein it has been stated that kerosene was detected in all the three items. Since P.W. 17 investigating officer went on

transfer, the further investigation was taken up by P.W. 18 and after the completion of his investigation he had laid a final report on 27.12.2009

against the accused 1 and 2 u/s 302 I.P.C.,

15.22. When the incriminating circumstances, arising out of the testimonies of the prosecution witnesses, were put to the appellants/accused to

explain as contemplated u/s 313(i)(b) Cr. P.C., they had replied that this case was foisted against them. Though they had stated that they were

going to examine witnesses on their part, neither oral nor documentary evidence was adduced.

Heard Mr. S. Jayasingh, learned counsel appearing for the appellants/accused and Mr. C. Ramesh, learned Additional Public Prosecutor

appearing for the respondent Police.

As herein before stated, the following two versions have been brought before us:

Firstly,

As per the case of the prosecution, while the first appellant had poured kerosene on the deceased Velthangam, the second appellant had set her on

fire.

Secondly,

As per the case of the defence, on account of her family dispute, the deceased had set herself on fire after dousing her with kerosene.

Having been projected a defence theory saying that the deceased had set herself on fire after dousing her with kerosene, it is the prime

obligation on the part of the defence i.e., on the part of the appellants 1 and 2 to establish this factum. The mere suggestion in this regard, which

was put to P.W. 1, who is the husband of the deceased and P.W. 4, who is the son of the deceased Velthangam during their cross-examination

are not sufficient to substantiate the defence theory.

In the absence of clinching and unassailable evidence, the defence theory i.e., the deceased had set herself on fire after pouring kerosene is

rejected. The Trial Court was also not ready to accept this defence theory.

As it appear from the prosecution story, the deceased Velthangam is said to have given five dying declarations. They are:

i. On hearing about the incident through a Boy, P.W. 1, who is the husband of the deceased Velthangam had rushed to the place of the

occurrence, wherein he had found his wife with burn injuries and according to him, she was in a condition to speak. She told him that the appellants

1 and 2 had poured kerosene on her and set her on fire. This dying declaration appears to be oral in nature.

ii. No sooner than the occurrence, the deceased Velthangam was taken to Thoothukudi Government Medical College Hospital by P.W. 1, who is

the husband of the deceased Velthangam, wherein P.W. 14 Dr. Dexcy Clement had enquired about the history of the burn injuries. According to

P.W. 14, Dr. Dexcy Clement, the victim Velthangam was conscious and oriented. She had represented before P.W. 14 that two known persons

(one male and one female) at about 04.30 p.m., at Bharathi Nagar had assaulted her with hands and then set her ablaze by pouring kerosene. As

per Ex. P17 Accident Register, P.W. 14 had estimated the burn injuries at 60%. This is the earliest version given by the victim herself before P.W.

14 Dr. Dexcy Clement.

iii. On the intimation, under Ex. P18, given by P.W. 14 Dr. Dexcy Clement, P.W. 15 Sub-Inspector of Police attached to Thoothukudi South

Police Station had been to the Government Hospital, Thoothukudi and recorded a statement from the victim under Ex. P1 complaint. It is pertinent

to note here that on the fateful day i.e., on 27.08.2009 at about 05.45 p.m., the victim was brought to P.W. 14 Dr. Dexcy Clement for treatment.

At about 06.15 p.m., P.W. 15 had received an intimation under Ex. P18 from the Out Police Station of Government Hospital, Thoothukudi. At

about 06.45 p.m., P.W. 15 Sub-Inspector of Police had recorded her statement under Ex. P1 complaint, wherein the victim had stated that ''she

was having 6. Cents of poramboke land at Bharathi Nagar, Kuruvimedu. She had asked younger brother Mayandi (second appellant) to look after

the land. He had been residing in that land along with his wife (first appellant) and their children.

Thereafter, she had got back half portion of the said land from the second appellant and she had also put up a hut and residing there. However, she

was not willing to reside in the hut as the second appellant had often been picking up quarrel and giving unbearable torture.

Having been developed grudge, that on 27.08.2009, at about 04.30 p.m., when she was arranging her hut, the appellants 1 and 2 came there and

asked her as to what kind of work she was having there and they had also asked her to go to her house. While so, the first appellant Pichammal

had brought kerosene in a coconut shell and pushed her (victim) down. After her falling down, the first appellant had poured kerosene over her

and the second appellant being her younger brother had lit a matchstick and put on her and thereby set her on ablaze. When she had raised hue

and cry, both the appellants had fled away from the scene of occurrence and on hearing her screaming the neighbors came there and quenched the

fire.

iv. That on 10.09.2009, at about 01.45 p.m., in pursuant to the requisition made by the Inspector of Police, Thoothukudi, under Ex. P5, P.W. 8,

the learned Judicial Magistrate No. I, Thoothukudi had been to Thoothukudi Government Hospital and recorded a dying declaration from the

victim Velthangam while she was undergoing treatment for her burn injuries.

In this connection, P.W. 16 Dr. Balakumar had certified under Ex. P20 saying that the patient was well oriented, conscious and she was in a

position to give a statement.

In her dying declaration given before P.W. 8, the learned Judicial Magistrate No. I, Thoothukudi, the victim had ratified her relationship with the

appellants 1 and 2. She had also stated that fifteen days before the occurrence was taken place and that there was a dispute between her and the

appellants 1 and 2 in respect of the land. Fifteen days before, when she had been to the said land, over which the dispute was prevailing between

her and the appellants, to take stick, she had asked the first appellant, who is the wife of the second appellant as to why she was removing the hay,

for that, the first appellant had replied ""I will do like that"".

On hearing this, the deceased had warned her not to do. While so, the first appellant had declared that ''I will not leave you without killing''. While

saying so, she had brought kerosene in a coconut shell and poured on her. Immediately, the second appellant had set fire on her. Again, the victim

had ratified her version saying that the first appellant had poured kerosene over her and the second appellant had set her on ablaze. Thereafter, she

had swooned and subsequently brought to hospital. P.W. 16 Dr. Balakumar, after the completion of the recording of the dying declaration had

certified saying that the patient was conscious, well oriented throughout the period of recording the statement.

v. That on 24.09.2009, at about 04.00 p.m., the victim was shifted to a private hospital at Thoothukudi called Arulrhaj Hospital for further

treatment. In this connection, P.W. 13 Dr. Ravichandran, who had treated the victim has deposed that when enquired about the history of burn

injuries, the victim had told that on 27.08.2009, at about 04.30 p.m., her relatives viz., Mayandi and his wife Pitchammal, appellants 1 and 2, had

poured kerosene and set her on fire.

It is pertinent to note here that at the time of her admission in the above said private hospital, the percentage of the burn injuries was estimated

at 40%. As it appears from his evidence as well as from Ex. P15 Accident Register issued by him, during the course of his examination, he had

found certain healed burn scars over her person and more deep burns were also present over her thigh, back and front. His evidence as well as

Ex. P16 death intimation would go to show that she was on treatment in their hospital from 04.00 p.m., on 24.09.2009 till 26.09.2009 and at

about 10.30 a.m., on 26.09.2009 she was declared dead. Therefore, it cannot be heard to say that when she was brought Arulrhaj Hospital, she

was not found to be conscious.

As seen from the above context viz., Serial Nos. 1 to 5, the dying declarations said to have been given by the victim, which are plural in nature,

they are pointing towards the guilt of the appellants 1 and 2.

It is significant to note here that that the appellants 1 and 2 are not strangers either to the deceased Velthangam or to P.W. 1 her husband or to

P.W. 4 her son respectively. They are closely related to with each other and more over the second appellant is the younger brother of the

deceased.

On considering the solemn occasion, when she was making the statements before her husband P.W. 1 at first instance after the occurrence,

before P.W. 14 Dr. Dexcy Clement, P.W. 15 Sub-Inspector of Police under Ex. P1 complaint, P.W. 8 the learned Judicial Magistrate No. I,

Thoothukudi, which was duly certified by P.W. 16 Dr. Balakumar and finally before P.W. 13 Dr. Ravichandran two days prior to her death, we

are of concluded view that there is no reason to discard her statement as being un trusted.

Mr. S. Jayasingh, learned counsel appearing for the appellants 1 and 2 has argued that even as per the case of the prosecution, when she was

admitted in Government Hospital, Thoothukudi, as per the statement given by P.W. 14 Dr. Dexcy Clement, she had sustained 60% of burn injuries

and at that stage she could not have spoken to about the history of injuries and therefore the alleged statements could not have been concocted or

she might have been tutored by her relatives specifically by P.W. 1 being her husband to give a statement as against the appellants 1 and 2 by way

of wreaking vengeance.

He has also maintained that all the above referred dying declarations are not cogent and they contradicted with each other. He has also

maintained that the uncorroborated dying declarations alleged to have been given by the deceased could not be accepted, as there were variations

between the above said five dying declarations and therefore the learned Trial Judge ought not to have maintained conviction upon the appellants

solely based upon the uncorroborated dying declarations of the deceased.

On the other hand, Mr. C. Ramesh, learned Additional Public Prosecutor appearing for the respondent Police has argued that the dying

declarations of the victim did not require any corroboration as they were fully supported by the evidences of P.W. 1, P.W. 8, P.W. 13, P.W. 14,

P.W. 15 and P.W. 16.

He has further argued that as per the case of the prosecution, P.Ws. 2, 3 and 7 were the direct eye witnesses to the occurrence. But,

unfortunately they had not supported the case of the prosecution. However, the case of the prosecution did not paralyze on their hostile nature, but

still the dying declarations given by the victim had provided a supporting pillar to the entire case of the prosecution. He has also canvassed that

there was no bar to record the conviction on the appellants 1 and 2 based on the dying declarations given by the deceased.

On coming to the instant case on hand, we find that the prosecution witnesses viz., P.W. 1, P.W. 8, P.W. 13, P.W. 14, P.W. 15 and P.W. 16

have spoken to about the victim''s consciousness, well orientedness and therefore, we do not find any reason to disbelieve the version of the

aforesaid witnesses.

Apart from this, as observed by the Honourable Supreme Court in Jai Prakash and Others Vs. State of Haryana, , when a statement was

recorded as general by Police, it becomes a dying declaration as a deceased succumbed to injuries. There is no need to get any endorsement of a

Doctor.

In this connection, we would like to place it on record that any person in such a condition would state that much which she could recollect on

such an occasion. When asked repeatedly, the person concerned could not be expected to repeat the entire episode in a parrot-like fashion.

P.W. 1 being the husband of the deceased has stated in his evidence that he was informed by a boy that his wife was set on fire. The

prosecution has not chosen to examine that boy. However, the evidence of P.W. 1 cannot be doubted as it is natural and not tainted with any

moonshine. As stated in the opening paragraphs, the appellants 1 and 2 are not strangers to P.W. 1.

The evidence of P.W. 1, as claimed by the learned counsel appearing for the appellants, cannot be termed as hearsay. After hearing the news

about the incident, he had rushed to the place of occurrence and seen his wife sustained with fire wounds and she alone had told him that the first

appellant had poured kerosene and the second appellant had set her on fire and in all the five dying declarations, the same version has been

reflected and therefore we do not find any inconsistency between the statements given by the deceased to various persons like P.W. 1, P.W. 8,

P.W. 13, P.W. 14, P.W. 15 and P.W. 16. The reason why is, the statements given to P.W. 1 being her husband and P.W. 14 Dr. Dexcy Clement

are the earliest versions referring to the overt act of the appellants 1 and 2 and the same has been perfectly reflected in Ex. P1 complaint recorded

by P.W. 15 Sub-Inspector of Police attached to Thoothukudi South Police Station and with regard to these three statements, it cannot be stated

that the victim would have been prompted to give such a statement against the appellants 1 and 2. The same version has been stated by her in all

the remaining two statements i.e., given before P.W. 8 learned Judicial Magistrate No. I, Thoothukudi, which was duly certified by P.W. 16 Dr.

Balakumar and before P.W. 13 Dr. Ravichandran.

In this connection, we find that it may be better to extract the provisions of Section 32(1) of the Indian Evidence Act, 1872. Section 32 deals

with statements by persons who cannot be called as witnesses. It enacts as follows:

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of

giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case,

appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his

death, in cases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death,

and whatever may be the nature of the proceeding in which the cause of his death comes into question.

In so far as the scope and application of Section 32 of the Indian Evidence Act, 1872 are concerned, the provisions of this Section are

exceptions to the general rule that hearsay evidence is not admissible.

In a similar case, the Honourable Supreme Court in Som Nath Vs. State of Haryana, has observed that:

Where there were three dying declarations of a woman, corroborated by other circumstances, the Supreme Court held that the dying declarations

are the groaning utterances of the dying woman in the grip of dreadful agony, and cannot be judged by the standards of fullness of particulars which

witnesses may give in other situations; that if they are basically credible, even if there are some short-falls or there are some unrealistic and

unnatural facts, the declarations cannot be discredited. When they are corroborated by other circumstances, the declarations are sufficient to bring

home the offence.

In Godhu and Another Vs. State of Rajasthan, also the Honourable Supreme Court has held that:

Where there was consistence story in all the three dying declarations, one made to the witness, the second one in the F.I.R. and the third made to

Naib Tahsildar stating that it was the accused who poured kerosene and set fire to the deceased, it was held that minor contradictions would not

affect the acceptability of the dying declarations.

In Babu Lal v. State of M.P., reported in AIR 2004 SC 846, at paragraph No. 7, the Honourable Supreme Court has quoted the words of

Mathew Arnold in the following manner:

Truth sits on the lips of dying man.

In Uka Ram Vs. State of Rajasthan, , the Honourable Supreme Court has observed that:

The maxim is: ''A man will not meet his Maker with a lie in his mouth.'' A dying declaration made by the victim in a fit mental condition and on the

verge of death has a special sanctity; at the solemn moment, a person is most unlikely to make an untrue statement, the shadow of impending death

is itself the guarantee of the truth of his declaration as to the causes or circumstances leading to his death; a dying declaration is almost sacrosanct.

There is no hard and fast rule of universal application on the question whether the percentage of burns suffered is the determinative factor to

affect the credibility of the dying declaration and the improbability of its recording. Much would depend upon the nature of the burn, the part of the

body affected by the burn, impact of burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors.

Percentage of burns alone would not determine the probability or otherwise of making the dying declaration. (In the instant case on hand the

percentage of burn injury was estimated at 60% as per the evidence given by P.W. 14)

In an unreported Judgment dated 31.01.2013, in Hiraman vs. State of Maharashtra, the Honourable Supreme Court has extensively gone to

the special sanctity attached to the statement made by a dying person as to the cause of his own death. In this case, with regard to the parameters

governing the approach towards the relevance of the dying declarations, a decision in Khushal Rao Vs. The State of Bombay, was referred to. In

paragraph No. 11 of the above cited decision, while speaking on behalf of the Three Judges Bench, B.P. Sinha, J. has observed as under:

The legislature in its wisdom has enacted in Section 32(1) of the Evidence Act that

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his

death, in cases in which the cause of that person''s death comes into question.'' such a statement written or verbal made by a person who is dead

(omitting the unnecessary words) is itself a relevant fact. This provision has been made by the legislature, advisedly, as a matter of sheet necessity

by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination, is not

admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness.

In the view of the legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the

statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of

cross-examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons.

Thus, a statement made by a dying person as to the cause of death, has been accorded by the legislature, a special sanctity which should, on first

principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in

expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight.

It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a

reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was

ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by

some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that

statement.

These may be some of the circumstance, which can be said to detract from the value of a dying declaration. But 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 Honourable Supreme Court has referred the decision of Khushal Rao''s case in several cases. One of such decisions is Munnu Raja and

Another Vs. The State of Madhya Pradesh,

In the above cited case i.e., Hiraman''s case (cited supra), the Honourable Supreme Court has followed the decision in Gulam Hussain and

Another Vs. State of Delhi, wherein the decisions in Khushal Rao and Mannu Raja (cited supra) have been referred to. In paragraph No. 8 of the

decision in Gulam Hussain''s case (cited supra), the Honourable Supreme Court has held that: ""8. Section 32 of the Evidence Act is an exception

to the general rule of exclusion of hearsay evidence and the statement made by a person, written or verbal, of relevant facts after his death is

admissible in evidence if it refers to the cause of his death or any circumstances of the transactions which resulted in his death. To attract the

provisions of Section 32, the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or

whose attendance cannot be procured without any amount of delay or expense or he is incapable of giving evidence and that such statement had

been made under any of the circumstances specified in sub-sections (1) to (8) of Section of the Evidence Act.....

The Supreme Court has also referred the decision in Babu Lal''s case (cited supra), in the above cited case viz., Hiraman''s case (cited supra).

In paragraph No. 7 of Babu Lal''s case (cited supra), the Honourable Supreme Court has observed as under:

7....A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is

obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words

of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The

maxim is ''a man will not meet his maker with a lie in his mouth'' (Nemo moriturus praesmitur mentire). Mathew Arnold said, ''truth sits on the lips

of a dying man''. The general principle on which the species of evidence is admitted is that they are declarations 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 mind induced by the most

powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed

by a positive oath administered in a court of justice.

As argued by the learned counsel appearing for the appellants, the case of the prosecution cannot be doubted as the dying declarations of the

deceased are cogent and convincingly established the inherent probabilities of the complicity of the appellants 1 and 2.

Ultimately, in Hiraman''s case (cited supra), the Honourable Supreme Court has observed that:

...by enacting Section 32(1) in the Evidence Act, the legislature has accorded a special sanctity to the statement made by a dying person as to the

cause of his own death. This is by virtue of the solemn occasion when the statement is made. Besides, when the statement is made at the earliest

opportunity without any influence being brought on the dying person, there is absolutely no reason to take any other view for the cause of his or her

death. The statement has to be accepted as the relevant and truthful one, revealing the circumstances which resulted into his death. Absence of any

corroboration cannot take away its relevance. Exaggerated doubts, on account of absence of corroboration, will only lead to unmerited acquittals,

causing grave harm to the cause of justice and ultimately to the social fabric. With the incidents of wives being set on fire, very unfortunately

continuing to occur in our society, it is expected from the Courts that they approach such situations very carefully, giving due respect to the dying

declarations, and not being swayed by fanciful doubts.

On coming to the instant case on hand, the alleged occurrence is said to have been taken place on 27.08.2009 at about 04.30 p.m., in the

frontage of the hut of the deceased Velthangam at Bharathi Nagar Kuruvimedu. As per the case of the prosecution, the suggested motive for the

occurrence is claiming of interest over the stretch of land measuring 6. Cents, which is classified as Poramboke. As per Ex. P1 complaint, the

deceased Velthangam had occupied the said Poramboke land and had been in possession and enjoyment of the same. Thereafter, she had asked

the second appellant, who is none other than the younger brother, to look after her land and since she had got back half portion of the land, the

second appellant along with his wife, who is the first appellant had developed grudge over her.

On a meticulous analysis of the testimonies of the prosecution witnesses, we are of the opinion that no reliable evidence is available to show

that the appellants 1 and 2 were having pre-meditation or criminal intention to kill the deceased. The prosecution agency is also not in a position to

explain as to whether the appellants 1 and 2 were waiting for the arrival of the deceased so as to materialize their criminal intention. Even according

to the deceased as it appear from Ex. P1 complaint, when she was arranging her hut, the first appellant went there and picked up quarrel with her.

At that time, the second appellant was also present. Immediately, the first appellant had brought kerosene in a coconut shell and pushed the

deceased down and after her falling down, she had poured kerosene on her person and the second appellant had lit a matchstick and put it on her

and set her on ablaze.

As discussed herein before, as per the evidence of P.W. 14 Dr. Dexcy Clement, coupled with Ex. P17 Accident Register, the estimation of

burns is at 60%. Though the deceased had sustained burns over right arm, forearm, right upper chest, right back, right buttock and both lower

limbs, the death was occurred only on 26.09.2009. The date of occurrence is 27.08.2009 at 04.30 p.m., and the date of death is 26.09.2009 as

the deceased went sudden cardiac arrest at 10.30 a.m., Therefore, it is thus clear that the death was occurred after one month while she was on

treatment.

As per Dr. Modi, A Textbook of Medical Jurisprudence and Toxicology, 24th Edition 2011, Page No. 487:

To estimate the amount of area affected by second or third degree burns in percentage, the body is divided into different areas, each representing

nine per cent. This is called the rule of nine. There is marked fluid loss resulting in shock when over 20 per cent of the body is affected and usually

over 50 per cent is fatal.

Extensive burns of the trunk, even though superficial, are much more dangerous than those of the extremities. Burns of the genital organs and the

lower part of the abdomen are often fatal.

Sensitive and nervous women are more susceptible to burns than strong women, however, women generally do not bear burns as well as men.

As it seen from Page No. 488 of the above said Book, the death may occur within 24 to 48 hours, but usually the first week is the most fatal.

In suppurative cases, death may occur after five or six weeks or even longer.

In the given case on hand, over a trivial matter, the deceased, who is none other than the elder sister of the second appellant, was set on fire by

him while his wife, who is the first appellant had poured kerosene over her. As we have discussed herein before, there was no pre-meditation or

preplan to commit the murder of the deceased and therefore the offence has invariably fallen within the fourth exception of Section 300 I.P.C.,

Exception fourthly to Section 300 I.P.C., enacts that:

4thly.-If the person committing the act knows that it so imminently dangerous that it must, in all probability, cause death or such bodily injury as is

likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

In Paraman Vs. State of Kerala, , a question was arisen before the Division Bench of the Honourable Kerala High Court as to whether the act

of the appellant could be brought under murder or culpable homicide not amounting to murder. The allegation is that the appellant/accused had

killed his wife by setting her fire. The presence of the accused on spot at the time of occurrence was established. Dying declarations of the

deceased were corroborated by evidence of witnesses. Wound certificate also disclosed version given by victim about incident that her own

husband had poured kerosene and lit fire on her. Postmortem report disclosed that cause of death was burn injuries ''complicated by pyemia'' but

did not disclose as to whether complication arose as a natural consequence or due to any intervening cause. Under this circumstance, the Division

Bench of Kerala High has held that the accused is liable to be convicted u/s 304 Part I I.P.C., and not u/s 302 I.P.C., merely because doctor

opined that injuries caused were sufficient to cause death.

In the instant case on hand also, the dying declarations of the deceased have been corroborated with the medical evidence as well as by the

evidence given by P.W. 8 the learned Judicial Magistrate No. I, Thoothukudi, which has been supported by P.W. 16 Dr. Balakumar, who has

certified the mental fitness of the deceased to give such a declaration.

P.W. 9 Dr. Manoharan, who has conducted postmortem examination on the dead body of the deceased has stated in Ex. P8 postmortem

certificate that the deceased would appear to have died of complications of superficial burns and he has also opined that the death would have

occurred 4 to 12 hours prior to the autopsy. Ex. P11 chemical analysis report has disclosed the fact that kerosene was detected in M.O. 2 Blouse,

M.O. 3 Coconut Shell and M.O. 5 Saree

It is pertinent to note her that P.W. 9 Dr. Manoharan did not say as to whether the burn injuries sustained by the deceased would be sufficient

in the ordinary course of nature to cause death. He has also stated about any other intervening cause for her death.

Under this circumstance, we are of considered view that as held in Paraman''s case (cited supra), the act of the appellants can be taken out

from the ambit of Section 302 I.P.C., instead it could be brought under the purview of Section 304 Part I I.P.C., Accordingly, we allow the

criminal appeal partly. The conviction and substantive portion of sentence imposed on the appellants 1 and 2 u/s 302 I.P.C., are set aside. Instead,

the appellants 1 and 2 are found guilty u/s 304 Part I I.P.C., and they are convicted and sentenced thereunder to suffer each seven (7) years of

rigorous imprisonment. The fine amount of Rs. 1,000/- each imposed by the Trial Court is maintained. In default of payment of fine, the

appellants/accused shall each undergo rigorous imprisonment for a further period of six months. The period so far undergone shall be given set-off

against the sentence of imprisonment u/s 428 Cr.P.C., Consequently, connected miscellaneous petitions are closed.

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