1996 INSC 0599
                                                     State of U.P.

                                                           Vs

                                                      Ameer Ali

                                        Criminal Appeal No. 474 of 1996

                            (K. Ramaswamy, S.P. Bharucha, K.S. Paripoornan JJ)

                                                      03.04.1996

                                                        ORDER

1. Leave granted.

2. We have heard learned counsel on both sides.

3. This appeal by special leave arises from an order of acquittal passed by the Division Bench of the
High Court of Judicature at Allahabad in Criminal Appeal No. 781 of 1984 on 30-8-1990. The case
of the prosecution is that the deceased is the wife of the respondent. On 20-10-1983, between 7.00
and 8.00 p.m. after the accused had come home, he found the deceased preparing food with dal. He
brought fish and asked her to make curry. When she was preparing spices to prepare curry, he asked
her for whom had she already prepared the food with dal to which she had stated that she had
prepared the food for him and that she did not know that he would bring fish for preparing curry. He
suspected her fidelity and called the deceased inside the room, beat her and poured kerosene on her
and lit fire. He came out and shut the door. When she was crying for help, the neighbours had come
to rescue her and taken her to the hospital. In the hospital when the Executive Magistrate was
summoned to record her statement she gave statement at about 9.30 a.m. on 21-10-1983 thus :

                  "Smt Wazihunnishan w/o Ameer Ali r/o Village Barhar Kot P.S. Utraula stated on
                  oath that my husband Ameer Ali used to commit much harassment to me. He had
                  brought me before the second marriage was performed. He wanted to marry someone
                  else. He poured kerosene upon me and put to fire. I was kept inside the house and so
                  I could not run. I have a son aged about 2 years. When I was burning, the other
                  women of the village had come and started pouring water to extinguish the fire..."

4. Subsequently, the Sub-Inspector (PW 6) had recorded her statement under Section 161 CrPC,
which now turned out to be the second dying declaration and is consistent with the first dying
declaration with more details. At the trial, apart from the witnesses who had supported the
prosecution case during investigation and examined under Section 164 CrPC had turned hostile, the
Sessions Judge believed the oral testimony of hostile witnesses and separated that part of the
statements which were favourable to the accused and accepted their statement which were consistent
with the dying declarations recorded by the Magistrate and also by the Sub-Inspector. Based
thereon, he convicted the accused for an offence under Section 302 IPC and sentenced him to
undergo imprisonment for life.

5. On appeal, as stated earlier, the High Court has acquitted the respondent giving him the benefit of
doubt. The High Court has reasoned that in the second dying declaration though the names of two
witnesses have been mentioned, they were not present at the time of recording the statement. After
the statement was recorded, the witnesses had come and attested the statement. Therefore,
investigating officer having had an interest in recording the statement, fabricated it. On that premise
the dying declarations were rejected. We have carefully scanned the dying declarations. Even
excluding the evidence of the witnesses who turned hostile, we find that the dying declarations are
sufficient to base a conviction. She has categorically stated that her husband put her in the room,
poured kerosene and lit the fire and when she was on fire, she was kept inside the room and was
prevented by him from coming out of the house but after she was rescued by the neighbours, her life
could not be saved. Under these circumstances, it is clear that the accused had an intention to kill
her deliberately by pouring kerosene on her head and then set her on fire. Death took place on
account of the intentional act of the respondent. The High Court, therefore, was wholly unjustified
in doubting the correctness of the declaration recorded by the Magistrate. No reasons have been
given to disbelieve the dying declaration recorded by the Magistrate. Even with regard to the dying
declaration recorded by the investigating officer, we do not find any reason to discard it. No doubt,
as stated, the witnesses had come subsequent to recording of the statement of the deceased by the
investigating officer but that does not mean that the investigating officer and fabricated the
statement. As seen, the statement given to the Executive Magistrate is quite clear and is a categorical
statement. It gets corroboration, if at all it is needed, from the subsequent dying declaration recorded
by the investigating officer. It is settled law that a dying declaration, if found truthful, is sufficient to
base a conviction without any further corroboration. In this case, the medical evidence corroborates
her dying declarations. It is not necessary that it should be recorded in the form of questions and
answers as contended for the accused. The doctor has certified that she was in a mentally fit
condition to give the statement. Taking the declarations into consideration, we find no valid or
legally sustainable reasons in the judgment of the High Court to uphold the acquittal. We hold that
the prosecution has proved its case beyond any shadow of doubt. The judgment and order of
acquittal passed by the High Court is set aside and that of the Sessions Court stands confirmed.
Consequently, the respondent is convicted for an offence punishable under Section 302 IPC and is
sentenced to undergo imprisonment for life.

6. The appeal is accordingly allowed.