STATE OF U.P.versusAMEER ALI

                                  STATE OF U.P.                                      A
                                       v.
                                   AMEER ALI

                                   APRIL 3, 1996

                  [K. RAMASWAMY, S.P. BHARUCHA AND                                   B
                         K.S. PARIPOORNAN, JJ.J

          Indian Penal Code, 1860 :

           S. 302-Dying declaration as a basis for conviction--Accused causing
    death of his wife by setting her on fire-Dying declarations made to Magistrate   C
    a11d Investigating Office1~Trial Cowt recordi11g co11viction accepti11g state-
    ments of witnesses declared hostile as far as they were consista11t with dying
    declarations-Acquittal by High Cowt on the ground that witnesses came and
    attested the statement of deceased made to Investigating Officer after the
    statement had been recorded-Held, dying declarations were sufficient to base     D
    conviction independent of evidence of .witnesses tumed hostile-Medical
    evidence c01roborates dying declarations-High Cowt en·ed in doubting dying
    declaration recorded by Magistrate-Accused convicted of the offence and
    sentenced to i111p1isonment for life-Evidence Act-Dying declaration.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                        E
    474of1996.

         From the Judgment and Order dated 30.8.90 of the Allahabad High
    Court in Cr\. A. No. 781 of 1984.

          AS Pundir and Parshant Kumar for the Appellant.                            F
>

          Shakil Ahmed Syed for the Respondent.

          The following Order of the Court was delivered :

          Leave granted                                                              G
          We have heard learned counsel on both sides.

          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. 781/84 on August 30, 1990. The case of the prosecu- H
                                       1205
    1206                  SUPREME COURT REPORTS                   [1996] 3 S.C.R ..

A tion is that the deceased is the wife of the respondent. On October 20,
    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 as to whom she had already prepared the food with dal to which
B   she had stated that she had prepared the food for him and that she did
    not know that he would bring fish for preparing curri. He suspected her
    fidelity and called the deceased inside the room beat her and poured
    kerosene oil 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 Executive Magistrate was summoned
C   to record her statement she gave statement at about 9 .30 a.m. on October
    21, 1983 thus :

            "Smt. Wazihunnishan w/o Amir Ali r/o village Barbar Kot P.S.
            Utraula stated on oath that my husband Amir Ali used to commit
            much harassment lo me. He had brought me before the second
D           marriage was performed. He wanted to marry someone else. He
            poured kerosene oil 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 .... "
E
           Subsequently, the Sub-Inspector (PW-6) had recorded her statement
    under Section 161 Cr.P.C., which now turned cut 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
F   Cr.P.C. have turned hostile at the trial, 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
G   offence under Section 302 IPC and sentenced him to undergo imprison-
    ment for life.

           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
H   have been mentioned, they were not present at the time of recording the
                             STATEv. AMEERALI                            1207

    statement. After the statement was recorded, the witnesses have come and A
    attested the statement. Therefore, investigating officer having had an inter-
    est in recording the .statement, fabricated it. On that premise. the dying
    declarations were rejected. We have carefully scanned the dying declara-
    tions. 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 B
    oil and lit 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 oil on her head and then set her to fire. C
    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 dying declaration recorded by the Magistrate. Even with
    regard to the dying declaration recorded by the investigation officer, we do
    not find any reason to discard it. No doubt, as stated, the witnesses had D
    come subsequent to recording of the statement of the deceased by the
    investigating officer but that does not mean that investigating officer had
    fabricated the statement. As seen, the statement given to the Executive
    Magistrate is quite clear and is a categorical statement. It gets corrobora-
    tion, 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 E
    foqnd truthful, is sufficient to base a conviction without any further cor-
    roboration. 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.
                                                                                  F
    Taking the declarations into consideration, we find no valid or legally
    sustainable reasons from the judgment of the High Court to uphold acquit-
    tal. 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 G
    IPC and is sentenced to undergo imprisonment for life.

           The appeal is accordingly allowed.


    R.P.                                                      Appeal allowed.