Holding

Dying declarations remain admissible even if the declarant lives longer than expected, and the death was homicidal, justifying conviction under Section 302 IPC.

Summary

The appellant was convicted of murder under Section 302 IPC for allegedly pouring kerosene on his wife and setting her on fire. The victim survived for about twenty days after the incident, during which she gave two statements to a police Sub‑Inspector and a magistrate accusing her husband. The defence argued that these statements could not be treated as dying declarations because the victim lived longer than expected and that the case should have been tried under Section 306 IPC (abetment of suicide) since it was initially registered as such. The Supreme Court held that a dying declaration does not lose its evidentiary value merely because the declarant lives longer than anticipated, and that the post‑mortem report conclusively showed a homicidal death. Consequently, the conviction under Section 302 IPC and the life sentence were upheld, and the appeal was dismissed.

Issues considered

Whether statements made by the deceased after the incident qualify as dying declarations under Section 32 of the Evidence Act despite the deceased surviving for more than twenty days.
Whether the death was homicidal or suicidal in nature.
Whether the initial registration of the case under Section 306 IPC and subsequent framing of an alternative charge under the same section vitiates the conviction under Section 302 IPC.

Legislation cited

Indian Evidence Act, 1872s. 32
Indian Penal Code, 1860s. 302, s. 306

Subjects

murderdying declarationSection 32 Evidence Acthomicidal deathpost‑mortem evidenceIPC 302IPC 306charge framing

Judgment

A NAJJAM FARAGHI ALIAS NAJJAM FARUQUI
v.
STATE OF WEST BENGAL
-
NOVEMBER 18, 1997

B [M.M. PUNCHHI AND M. SRINIVASAN, JJ.)

Indian Penal Code, 1860-Section 302-Murder-accused setting his
wife on fire-Dying declarations recorded-Dying declarations accusing the
C husband-Mental condition of the deceased sufficiently good-Post mortem
report holding the death as homicidal in nature-Conviction and sentence
justified.

Indian Evidence Act, 1872: Section 32-Dying declaration-Deceased
lived/or more then twenty days after making dying declarations-Validity of
D -Held, dying declaration does not loses its value if the person lives for a
longer time than expected.

The appellant was convicted for an offence under Sec. 302 of Indian
Penal Code, 1860 and was sentenced to imprisonment for life and a fine of
Rs. 5,000 was imposed.
E
The prosecution case was that the appellant poured kerosene oil over
his wife and set her on fire. She was admitted in the hospital where her
statements were recorded, one by Sub-Inspector Police and another by a
' the deceased had accused her husband of
Magistrate. In both the statements
having set her on fire. Both the trial Court and High Court, relying upon
F
her statements and the evidence of the post mortem examiner, came to the
conclusion that the death was homicidal. Hence the present appeal.

The contention of the appellant was that the two statements recorded
by the Sub-Inspector of Police and the Magistrate cannot be considered as
G dying declaration as the deceased thereafter lived for twenty days or more.
It was also contended that in the first instance the case was registered under
Sec. 306 l.P.C. When the charges were framed it was under Sec. 302 IPC.
Afte; examination of witnesses, Court framed an alternative charge under
Sec. 306 IPC. Thus the prosecution was in confusion as to whether the
H appellant was guilty under Sec. 302 IPC or under Sec. 306 IPC.
148
NAJJAM FARAG Ill ALIAS NAJJAM FARUQUI 1·. STATE OF WEST BENGAL J49
Dismissing the appeal, this Court A
HELD: 1.1. The death could not have been suicidal and it was nothing
but homicidal. The Courts below were justified in convicting the appellant
for an offence under Sec. 302 IPC and in sentencing him to imprison~ent
for life. (151-D-E; 152-BI
B
1.2. The mere fact that the case was registered initially under Sec. 306
l.P.C. and later, after examination of witnesses an alternative charge under
the same section was framed will not vitiate the proceedings or the conclusion
of the Courts below. The post mortem examiner has stated that death was
homicidal in nature and not a suicidal death. Nothing could be elicited in the
cross examination to discredit the aforesaid opinion. Both the Courts have C
accepted his evidence and came to the conclusion that the case falls under
Sec. 302 IPC. Thus there is no justification for taking a different view.
1151-C-E; 152-BI

2.1. The Dying declaration does not lose its value if the person lives
for a longer time than expected. Thus there is no merit in the contention that D
the deceased lived long after making the dying declaration and therefore
those statements have no value. The proviso of Sec. 32 of Evidence Act were
overlooked. No doubt it has been pointed out that when a person is expecting
his death to take place thereby he would not be indulging in falsehood. But
that does not mean that such a statement loses its value if the person lives E
for a longer time than expected. jl52-F-HI

2.2. If there is nothing on record to show that the statements would not
have been true or if the other evidence on record corroborates the contents
of the statements, the Court can certainly accept the same and act upon it.
In the instant case both the Courts have discussed the entire evidence on F
record and found that two dying d.eclarations are acceptable. The records
also show that the mental condition of the deceased was sufficiently good to
give a statement to the Magistrate. (153-A-BJ

Kanchy Momuramma v. State of Andhra Pradesh, ft 9951 Supp. 4 SCC
118, cited. G

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 68 of
1992.

From the Judgment and Order dated 20.8.91 of the Calcutta High Court
in Crl. A. No. 286 of 1987. H
150 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Uma Datta for the Appellant.

D.K. Sinha for Mis. Sinha & Das for the Respondent.

The Judgment of the Court was delivered by

B SRINIVASAN, J. The appellant is challenging the concu1Tent judgments
of the courts below whereby he was convicted for an offence under Section
302 l.P.C and sentenced to suffer imprisonment for life. He was also directed
to pay a fine of Rs. 5000

2. On the night of 29.6.85 the appellant poured kerosene oil over· the
C head of his wife from behind and lit a matchstick and set her on fire. She was
• admitted in the hospital around 1.00 AM on 30.6.85. Her statement regarding
cause of her death was recorded on 1.7.85 by PW 18, Sub Inspector of Police
marked as Ex. 6. Another statement marked as Ex. 5 was recorded on 11.7.85
by PW 12, a magistrate, who was sent to the hospital under orders of the High
Court. In both the statements she had stated that her husband came home
D in a drunk condition in the mid night of 29.6.85 and assaulted her severely.
She was driven out of the room but as her two children were sleeping inside
she went back to the room. Then he poured kerosene oil from behind and set
fire. Her parents were sent for and her father took her to the hospital. Thus
in both the statements she had accused her husband of having set fire to her
after pouring kerosene. The courts below relied upon the two statements and
E also the evidence of the post mortem examiner to the effect that the bum
injuries were such that they lead to the conclusion that the death was
homicidal. The courts below have also referred to all the circumstances of the
case and rejected the defence that the wife of the appellant committed suicide
or that the offence should if at all be considered to be one under Section 306
l.P.C. and not 302 l.P.C.
F
3. Learned counsel for the appellant places reliance on the following
circumstances:-

(i) The case history noted in Ex. A by PW 9, a senior House Surgeon
as soon as the deceased was admitted in the hospital states that the deceased
G tried to burn herself after pouring kerosene on her person in a suicidal
attempt.

(ii) The father of the deceased (PW I) wrote a letter on 30.6.85 to the
police which has been treated as First Information Report in which it is stated
that he was convinced that his son-in-law abetted his daughter in committing
H suicide.
NAJJAM FARAGHI ALIAS NAJJAM FARUQUI '· ST ATE OF WEST BENGAL [SRINIVASAN. J.) Is I

(iii) PW 7 has stated that the deceased was speaking normally soon A
after the incident and she claims to have set fire on herself.

(iv) The two statements recorded by the Sub Inspector of Police and
__,,. the Magistrate marked as Ex. 6 and 5 respectively cannot be considered as
dying declaration and given any weight as the deceased lived for twenty days
and more till 31.7.85. B
(v) The Judicial Magistrate who recorded the statement in Ex. 5 did not
ascertain the mental condition of the deceased and therefore her statement
is not reliable in view of the ruling in Kanchy Momurama Versus Slate of
Andhra Pradesh, [1995] Supp. 4 SCC 118.

(vi) In the first instance the case was registered under Section 306.
c
When the charge was framed it was under Section 302 l.P.C After examination
of 9 witnesses, the Presiding Officer of the Court framed an alternative charge
under Section 306 l.P.C. The accused moved the High Court against the order
framing an alternative charge in a revision but the same was dismissed. Thus
the prosecution was in a confusion as to whether the appellant was guilty D
under Section 302 I.P,C. or under 306 l.P.C.

4. All the aforesaid circumstances have been considered in detail by
both the courts and it has been found that there is no substance in the
contentions put forward by the defence. A perusal of the record shows that
the death could not have been suicidal and it was nothing but homicidal. PW
E
I 0 the post mortem examiner has stated as follows:-

''Death in my opinion was due to effect of ante-portem bums. Taking
into consideration the sites and extent of areas involved in my opinion
the burn was homicidal in nature.
Bum injury causing death may be accidental, suicidal or homicidal. I F
found the injuries causing the death to be homicidal. The sites as
described on examination of dead body were mostly on inaccessible
parts of the victim, the areas were very extensive. So I hold the
;•
opinion that the death was in homicidal in nature.

Injury Nos. 1, 3, 4, 5, 6, 7 as mentioned by me were on the back side G
part inaccessible part on the body of the subject. These injuries were
very extensive too. From these injuries I hold the opinion the death
was homicidal in nature caused by those injuries which were bum
injuries. On the front side of the trunk of the body I did not find any
injuries. In regard to her face I did not find injuries exactly on the front
side. H
152 ,SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A There is no injury observed by me that could lead me to hold that it
was a suicidal death."

Nothing could be elicited in cross-examination to discredit his aforesaid
opinion. Both the courts have accepted his evidence and come to the
conclusion that the case falls under Section 302 I.P.C. We do not find any
B justification to take a different view. ·

5. The courts below have also referred to the circumstance that the
accused who was admittedly present at the scene of occurrence did not make
any attempt to put out the fire and save his wife. His case that he did so and
C got burn injuries in the process has been rightly negatived. The evidence on
record shows that he has made a clumsy attempt to inflict some injuries on
himself in order to make the court believe that he attempted _to put out the
fire.

6. The history of the case recorded in the hospital in Ex. A has not been
D proved to have been- given by the deceased. The courts below have rightly
refused to attach any value thereto.

7. The father of the deceased did not have the necessary information
at the time of FIR as his daughter was not in a position to speak when she
was taken by him to the hospital.
E
8. The evidence of PW 7 has also been considered in the proper
perspective by the courts below. There is nothing on record to support the
contention of the appellant that the deceased was tutored by her, parents to
make statements against her husband when she gave the dying declarations.
The courts below are right in rejecting that case.
F
9. There is no merit in the contention that the appellant's wife died long
after making the dying declarations and therefore those statements have no
value. The contention overlooks the express provision in Section 32 of the
Evidence Act. The second paragraph of sub-section (I) reads as follows:
G "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" No doubt it has been pointed out that when a person
is expecting his death to take place shortly he would not be indulging in
falsehood. But that does not mean that such a statement loses its value if the
H person lives for a longer time than expected. The question has to be considered
NAJJAM FARAGHI ALIAS NAJJAM FARUQUI '· STATE OF WEST BENGAL [SRINIVASAN. J) J53
in each case on the facts and circumstances established therein. If there is A
nothing on record to show that the statement could not have been true or
if the other evidence on record corroborates the contents of the statements,
the court can certainly accept the same and act upon it. Jn the present case
both courts have discussed.the entire evidence on record and found that two
dying declarations contained in Ex 5 and 6 are acceptable.
B
I 0. The records show that the mental condition of the deceased was
sufficiently good to give a statement to the Magistrate.

11. The mere fact that the case was registered initially under Section 306
l.P.C. and later after examination of 9 witnesses an alternative charge under
the same Section was framed will not vitiate the proceedings or the conclusions C
of the courts below. There is no doubt that the charge under Section 302 !PC
has been proved beyond doubt.

12. We have perused the records. We find ourselves in agreement with
the judgments of the courts below. Hence the appeal is dismissed. D
S.V.K.L Appeal dismissed.