Deenan @ Deenadayalan vs State

R. Balasubramanian, J.—The appellant in this appeal stands convicted under Sections 302, 316 and 450 of the Indian Penal Code. For the

former offence, he stands sentenced to undergo imprisonment for life together with a fine of Rs. 2,000/- carrying a default sentence; for the offence

u/s 316 I.P.C., he stands sentenced to undergo seven years rigorous imprisonment together with a fine of Rs. 1,000/- carrying a default sentence

and for the last one, to undergo rigorous imprisonment for 3 years together with a fine of Rs. 1,000/- carrying a default sentence. Hence, he is

before this Court in this appeal. Heard Mr. S. Ashok Kumar, learned senior counsel appearing for the appellant and Mr. V.M.R. Rajendran,

learned Additional Public Prosecutor appearing for the State.

The prosecution case is that at about 12.30 p.m. on 19.2.99, the accused set fire to Vijayalakshmi by pouring kerosene on her in her house, as

a result of which, she succumbed to the burn injuries on 23.2.99 and in the course of the same transaction, a quick child, which is found to be nine

months old, was also done to death. Both the above referred to offences were committed by the accused after committing house trespass. To

substantiate their case, the prosecution examined P.Ws. 1 to 15, besides marking Exs.P. 1 to P. 25 and exhibiting M.Os.1 to 10. Let us state the

prosecution case hereunder:-

P.W. 1 is the husband of Vijayalakshmi (since deceased) and is the rickshaw puller by profession. Through Vijayalakshmi, he has a female child by

name, Anu and he is living in the second floor of the multi-storeyed structure in Sundaram Main Road, Vyasarpadi, with his wife. The said portion

belonged to Kanaga, who is the junior maternal aunt of Vijayalakshmi (since deceased) and he was there on a monthly rent of Rs. 250/-. He

knows the accused, who is none else than his wife''s senior paternal aunt''s grand son. The accused was residing in a nearby street and he often

used to come home as a relative. A few months before the occurrence, the accused came home and his wife gave him coffee. While receiving the

coffee tumbler, the accused caught hold of his wife''s hand, which shocked him. Therefore, he and his wife advised the accused not to come home

any more. Thereafter, the accused was often kidding her and this was told to him by his wife. Since the accused is a relative, they do not want to

precipitate the matter. On the occurrence day, leaving his wife and daughter, Anu, he went to attend the marriage of his friend''s sister and returned

home at 3.00 p.m. There, he noticed a crowd near his house. Sujatha, the younger sister of his wife, informed him as to what happened and his

wife had already been taken to Government Kilpauk Medical College Hospital and he proceeded to the hospital and enquired her. At that time, his

wife told him that at about 12.30 p.m. on that afternoon, the accused made sexual advances to her and as his wife chased him out, the accused left

threatening her and some time later, when she was asleep, the accused came home; poured kerosene and then set fire to her and thereafter, he ran

away. His wife died at about 8.45 a.m. on 23.2.99.

P.W. 10 is the Casualty Medical Officer in the Government Kilpauk Medical College Hospital at Chennai. When he was on duty in the hospital

on 19.2.99, at about 1.40 p.m., a patient by name Vijayalakshmi with burn injuries was admitted in the burns ward. He enquired her as to how she

sustained injuries, for which, she replied that her brother''s son, Deenan (the accused) poured kerosene on her at 1.00 p.m. and then set fire to her

and that he had done it on account of exchange of words. He entered the details in the case sheet. She was conscious. She had suffered 54% burn

injuries. He commenced treating her and since he was of the opinion that her dying declaration must be recorded, he sent an intimation to the

Magistrate. He also obtained the opinion of a Gynaecologist, who told him that there is a foetus of 36 weeks old. Vijayalakshmi died at about 8.40

a.m. on 23.2.99. Ex.P. 9 is the death intimation and Ex.P. 10 is the accident register. P.W. 11 is the Sub-Inspector of Police in the investigating

police station. On receipt of information over telephone that a patient by name Vijayalakshmi had been admitted in the hospital with burn injuries,

he reached the hospital at 9.00 p.m. on 19.2.99. P.W.6, the duty doctor, identified the patient and ascertaining himself that Vijayalakshmi was in a

fit and conscious state of mind, he recorded the statement given by her, in which he had taken her left thumb impression. Before taking her left

thumb impression, he read over the contents to her and she affirmed the contents of the same as correct. P.W. 6, the doctor, was by his side at

that time. Ex.P. 11 is the said statement. P.W. 6 wanted the dying declaration of Vijayalakshmi be recorded by a Magistrate. P.W. 6 is the

medical officer in the Government Kilpauk Medical College Hospital. A patient by name Vijayalakshmi with burn injuries was admitted as an in-

patient in the burns ward and he was treating her. At about 9.00 p.m. on 19.2.99, P.W. 11 appeared in the hospital and proceeded to examine

Vijayalakshmi (since deceased). P.W. 6 was by his side when P.W. 11 recorded the statement from Vijayalakshmi. He certified that

Vijayalakshmi was in a fit and conscious state of mind at that time. Ex.P. 3 is the certificate at the foot of Ex.P. 11, which shows that the patient

was fully conscious when the statement was recorded. Then, at 9.30 p.m., he sent an intimation to the Magistrate to record her dying declaration.

Accordingly, between 10.15 p.m. and 10.45 p.m., the Metropolitan Magistrate recorded her dying declaration. P.W.6 was present by the side of

the patient and he gave Ex.P.4, the certificate, which is found reflected at the foot of Ex.P. 15, reading as hereunder:-

Patient was fully conscious and able to talk when the dying declaration was recorded.

P.W. 12 is the XIV Metropolitan Magistrate, Chennai. On receipt of Ex.P. 12, the requisition to record the dying declaration of the patient, he

immediately reached the hospital, where he observed Vijayalakshmi admitted as an in-patient. P.W. 6 identified the patient to him. Vijayalakshmi

was conscious. There were three women by her side. By asking them to leave that place, P.W. 12 examined Vijayalakshmi by asking her personal

details and she gave answers in a coherent manner. He introduced himself to her as the Metropolitan Magistrate, which she understood. Then,

satisfying himself from the answers given by Vijayalakshmi that she was in a fit and conscious state of mind, he examined her as to how she came

to sustain the injuries and Vijayalakshmi answered each question one after the other and he had taken her left thumb impression in it. P.W.6 had

certified her fit and conscious state of mind. Ex.P. 14 is the said dying declaration. In that dying declaration, the patient had implicated the accused.

The details of which, we will refer a little later.

P.W. 11, the Sub-Inspector of Police, registered Ex.P. 11 in his police station Crime No. 152 of 1999 u/s 307 I.P.C. and prepared Ex.P. 13,

the printed F.I.R. He sent the express records to the Court as well as to the higher officials. P.W. 14 is the investigating officer in this case. He

collected the express records sent to him and commenced investigation. He went to the Government Kilpauk Medical College Hospital, where by

examining Vijayalakshmi, he recorded her statement. He examined P.W. 4 and her mother, Kanaga, who were outside the ward by recording their

statements. On 20.2.99, he prepared Exs.P. 17 to P. 19, the rough sketch about the scene of occurrence. A little later in the morning, he prepared

Ex. P. 7, the observation mahazar, in the presence of P.W. 9 and another. At 8.30 a.m., from the scene of occurrence, he recovered a multi-

coloured half burnt bed spread - M.O.2, a multi-coloured towel - M.O.3, a green colour pillow cover - M.O.10, a piece of a light blue colour

jeans pant - M.O.4, a black colour inner wear - M.O.5, a violet colour inner wear - M.O.6, a blue colour blouse - M.0.7, a bottle of a capacity

of 750 ml - M.O.8 and a kerosene smelling match box - M.O.9 under a mahazar attested by the same witnesses. He examined witnesses and

recorded their statements. He sent the case properties to the Court. At 12.00 noon on 21.2.99, he arrested the accused in the junction of

Dr.Ambedkar Road and Stephens Road and examined him in the presence of P.W. 5 and another and at that time, the accused gave a confession

statement, the admissible portion of which is Ex.P. 20. Pursuant to Ex.P.20, M.O.1 came to be recovered at 1.30 p.m. on the same day under

Ex.P.1 mahazar attested by the same witnesses. At that time, he noticed that the accused had burn injuries on his left hand ring finger and on the

posterior back side of his head. He sent the accused for medical treatment to Government Stanley Hospital with a medical memo. P.W.13 is the

medical officer at the Government Stanley Hospital during the relevant time. At about 3.00 p.m. on 21.2.99, the accused was brought before him

with a police medical memo by the Sub-Inspector of police in this case. The accused told him that at about 1.00 p.m. on 19.2.99 in the occurrence

house, when a lady aged about 20 years was attempting to set fire to her after pouring kerosene, he tried to save her and at that time, he received

the burn injuries. Ex.P. 14 is the accident register issued by him.

P.W. 2 is the brother of the deceased in this case. P.W. 1''s wife, (i.e.) the deceased, is his sister. He is working as a loadman in the railway

good shed. The house of the deceased is in a walking distance from his place of work, which he can reach in half-an-hour. On the occurrence day

afternoon by about 12.30 p.m. or so, he went to Vijayalakshmi''s house. As he was nearing the house, he heard his sister''s distress call from the

second floor to save her. He immediately ran up the staircase and at that time, he saw the accused coming down the staircase. P.Ws. 3, 4 and

P.W. 4''s mother, Kanaga, also went with him to Vijayalakshmi''s portion, where they found Vijayalakshmi in flames in her saree. They tried to put

out the fire by pouring water. She was covered by a bed spread. He asked her as to what happened and she answered that the accused had set

fire to her after pouring kerosene. He, P.Ws. 3, 4 and P.W. 4''s mother, Kanaga, took Vijayalakshmi in an autorickshaw to the hospital. P.W. 3 is

a tailor by profession. He knows the accused. Kanagammal''s house (P.W. 4''s mother) is very close to his tailoring shop. It consists of two floors.

In the first floor, there was a family of a police personnel and at the second floor, Vijayalakshmi (since deceased) was staying with her husband

and her child. He remembers that the occurrence took place in the year 1999, but does not remember the date and he did not know the details of

the incident. However, he would add that he was working in his shop around 1.00 p.m. and at that time, he heard ''SOS'' from the upstairs portion

and people in the lower floor started running up. He came out and saw people going up and immediately thereafter, Vijayalakshmi was brought

down from the upstairs portion. They were requesting him to secure an autorickshaw and in the autorickshaw, Vijayalakshmi was transported to

the hospital and he also accompanied her by taking his seat in the front by the side of the auto driver. In the auto, Vijayalakshmi was complaining

that she had been set fire to (reference is to a male and not by the name). P.W.4''s mother is Kanaga. Her mother owns a two-storeyed structure

and at the ground floor, she lives with the mother and at the first floor, there was a family of a police personnel. P.W. 8 is the wife of the said police

personnel. In the second floor, Vijayalakshmi is living with her family and Vijayalakshmi is her cousin. She knows the accused. On the occurrence

day, when she was in her house, she heard a commotion outside her house. She, along with P.W.8, went upstairs to the house of Vijayalakshmi,

where they found her in flames. They tried to cover her with a saree. Since Vijayalakshmi was pregnant, they were under the impression that

probably she is having labour pain and that is why she is shouting. P.Ws. 4 and 8 brought Vijayalakshmi down, where P.W. 3 was also there.

P.Ws. 4, 8 and 3 took Vijayalakshmi in an autorickshaw to the hospital. Enroute, Vijayalakshmi was saying something, which she did not listen to.

P.W. 5 witnessed the arrest of the accused as spoken to by the investigating officer; his examination by the investigating officer; recording his

confession statement, the admissible portion of which also we have already referred to. He also spoke about the recovery of M.O.1 under Ex.P.

He admitted his signature in Ex.P. 1 as Ex.P.2. P.W. 8 is the wife of the police personnel, who is living in the first floor of the building. She

would also state, as spoken to by P.W. 4, the details of the building and she running up towards the house of Vijayalakshmi along with P.W. 4.

She would then depose that as she was climbing up, she saw the accused coming down the staircase. She would state that in the autorickshaw,

Vijayalakshmi stated that the accused, after pouring kerosene on her, set fire to her. P.W. 9 witnessed the preparation of Ex.P. 7, the observation

mahazar and recovery of M.Os.2 to 9 under Ex.P. 8. 6. P.W. 14 was continuing his investigation further by examining the witnesses and recording

their statements. As already stated, after arresting the accused, he sent him for medical treatment. He received the death intimation that

Vijayalakshmi died at about 8.40 a.m. on 23.2.99 and accordingly, altered the section of offence from one u/s 307 I.P.C. to 302 I.P.C. and

prepared Ex.P. 21, the altered express F.I.R. He went to the hospital mortuary and conducted inquest over the dead body on 23.2.99 from 11.45

a.m. till 3.00 p.m. in the presence of witnesses and panchayatdars. Ex.P. 22 is the inquest report. Then, he sent a requisition through a police

constable for post-mortem. P.W. 7 is the doctor, who did post-mortem on the dead body on receipt of the requisition. He noted several

symptoms on the dead body during the time when he conducted post-mortem and the symptoms are noted in Ex.P. 6, the post-mortem report.

The symptoms as noted therein are as hereunder:-

Infected deep burns covered withpus seen over abdomen. Left upper limbs, left side of the back of the trunk, both lower limbs fully except front of

both legs and both buttocks.

Hyoid bone : Intact

Lungs : Pale and oedematous.

Heart : Contained fluid blood in all chambers.

Brain : Surface vessels were congested.

Stomach : contains 100 ml. of thick yellow fluid

without any specific odour.

All the other

internal organs : Pale on cross section.

Uterus : contained 34 weeks size male foetus.

Bladder : contains 100 ml. of urine.

The doctor is of the opinion that death would have occurred due to complications of burns - septicaemia. P.W. 14 sent the case properties to the

Court with a requisition to subject the same for chemical examination. Ex.P. 23 is the requisition given by him. As an enclosure to Court''s letter,

Ex.P. 24, the case properties were sent to the laboratory by the Court. Ex.P. 25 is the report received from the laboratory. P.W. 14 was

succeeded by P.W. 15, who, after verifying the investigation already done by P.W. 14, filed the final report in Court against the accused on

25.8.99 under Sections 302 and 316 of the Indian Penal Code. When the accused was questioned u/s 313 of the Code of Criminal Procedure on

the basis of the incriminating materials made available against him, he denied those materials as false and contrary to facts. He neither let in any oral

evidence nor brought in any documentary evidence.

Mr.S.Ashok Kumar, learned senior counsel appearing for the appellant, would contend that though there are several dying declarations besides

the judicial dying declaration recorded by the learned Metropolitan Magistrate and a written complaint given by Vijayalakshmi herself to the police,

yet, from the manner in which those declarations are shown to have been made, it is seen that they are surrounded by suspicious circumstances and

therefore, this Court may be in a position to disbelieve the entirety of the dying declaration in whatever form it is and acquit the accused. In Ex.P.

11, the complaint given to the police and in Ex.P. 14, the judicial dying declaration, Vijayalakshmi had not mentioned about the presence of P.W.

2, who is none else than her brother, as a person, who knows about the crime or in any event, as a person to whom she had given a dying

declaration earlier. This omission in Exs.P. 11 and P. 14 would enable this Court not only to doubt the evidence of P.W. 2, but also to doubt

Exs.P. 11 and P. 14. Ex.P. 14 can also be doubted because admittedly the relatives of Vijayalakshmi were by her bed side when the learned

Metropolitan Magistrate reached the hospital to record the dying declaration and therefore, tutoring the mind of Vijayalakshmi to implicate the

accused is apparent on the face of record. Vijayalakshmi could not have given the oral dying declaration at all, as spoken to by P.W. 2 and other

witnesses, since P.Ws. 3 and 4 - who are neutral witnesses and who admittedly accompanied the injured to the hospital in the same autorickshaw,

did not disclose that Vijayalakshmi at any point of time on her way to the hospital from the house gave any dying declaration. This assumes

considerable importance and therefore, in the face of their evidence, viz., P.Ws. 3 and 4, the oral dying declaration relied upon by the prosecution

must be doubted. The presence of the accused, namely, the accused coming down the stairs from the house of Vijayalakshmi, is denied by P.W.

4, who had admittedly gone up the staircase to reach the house of Vijayalakshmi and therefore, the evidence of P.W. 2, which is contra to the

evidence of P.W. 4 must be disbelieved, which means the presence of the accused at the time of commission of crime in the house is highly

doubtful. To sum up his arguments, learned senior counsel would contend that there is absolutely no legal evidence to connect the accused with the

crime and therefore, the judgment under challenge has to be set aside. Mr.V.M.R.Rajendran, learned Additional Public Prosecutor, in meeting

these points, would submit that there are so many dying declarations on record in this case and no compelling reasons are made out either to

disbelieve all or any one of them. The dying declarations are consistent, namely, the involvement of the accused and therefore, this Court may

sustain the judgment under challenge. The learned State counsel took pains in taking us through the entire evidence on record to show that there

are no suspicious circumstances at all in any of the oral dying declarations stated to have been given by Vijayalakshmi not only to the individuals,

but also to the doctors, to the Magistrate as well as in Ex.P. 11. Therefore, the learned State counsel argued for confirming the judgment under

challenge.

Having regard to the submissions made by the learned senior counsel for the appellant and the learned Additional Public Prosecutor, we went

through the entire materials on record with utmost care and caution. There is no dispute, as contended by the learned senior counsel for the

appellant, that there is no direct evidence to the crime and the entire case of the prosecution rests on a number of dying declarations. The Supreme

Court, in a recent judgment, held that if there are more than one dying declaration and the dying declarations run contra to each other, then the

Court while evaluating the said dying declarations would not be committing any error in discarding those dying declarations from the purview of

consideration. It must be remembered that in that case, the Supreme Court found that the dying declarations were running contra to each other on

a material aspect. Therefore, the test is whether the dying declarations are cogent and convincing and if so, whether they are reliable and

trustworthy to be acted upon. If the dying declarations satisfy all the above referred to requirements of law, then the Court may not have any

difficulty in accepting those declarations and in other words, it has no option to reject them. Having that principle in mind, we went through the

entire records.

P.W. 10 is the Casualty Medical Officer in the Government Kilpauk Medical College Hospital, before whom at about 1.40 p.m. on 19.2.99,

Vijayalakshmi with burn injuries was admitted. The charge against the accused is that around 1.00 p.m. on that day he committed the crime.

Therefore, within a very short time, Vijayalakshmi was admitted in the hospital and she was examined by P.W.10. He had categorically stated that

when he enquired Vijayalakshmi as to how she came to sustain injuries, back came the answer that it is the accused, who is none else than her

brother''s son, had set fire to her at about 1.00 p.m. after pouring kerosene. Ex.P. 10 is the accident register, which is the contemporary record

prepared at that time when Vijayalakshmi was admitted in the hospital. In Ex.P. 10 also, there is a noting that Vijayalakshmi sustained burn injuries

due to homicidal attempt made by a known person at about 1.00 p.m. on 19.2.99 in the address mentioned therein. The address mentioned

therein is the house, in which Vijayalakshmi was living along with her husband. Ex.P. 10 also shows that Vijayalakshmi was brought before him by

Baskaran (shown to be the neighbour and examined in this case as P.W. 3). Surprisingly, we find that P.W. 10 had not been cross examined at all

by the defence on his evidence that Vijayalakshmi implicated the accused in her dying declaration for the burn injuries found on her. Therefore, the

evidence of P.W. 10 about the disclosure made by Vijayalakshmi to him stands unrebutted and therefore, we may not have any difficulty at all in

accepting the evidence of P.W. 10 as a person to whom Vijayalakshmi made an oral dying declaration at the earliest point of time implicating the

accused. Of course, prior to reaching the hospital, Vijayalakshmi, enroute from her house to the hospital in the autorickshaw, is stated to have

been accompanied by P.Ws. 2, 3, 4 and P.W. 4''s mother, Kanaga. However, P.W. 3, in his evidence, had not said that Vijayalakshmi in the

autorickshaw implicated the accused by his name as the person responsible for the burn injuries. But, however, his evidence shows that

Vijayalakshmi was shouting in the autorickshaw that she had been set fire to and the words expressed by her show that she was indicating the act

of a male. P.W. 4 though admitted that she was also travelling in that autorickshaw was fair enough to say that she did not notice what

Vijayalakshmi was saying enroute. How far a person could observe what is happening around him or her would depend upon the person, who is

actually accompanying the injured. Such capacity to observe will vary from individual to individual and when all of them were travelling in anguish

to reach the hospital at the earliest point of time, we find nothing unusual in P.W. 4 not noticing or not listening as to what Vijayalakshmi was telling

at the time of her travel. Therefore, from the evidence of P.W. 4, as referred to above, namely, that she did not notice as to what Vijayalakshmi

was saying to others in the autorickshaw, it cannot be held, as submitted by the learned senior counsel, that Vijayalakshmi could not have given

and did not give any dying declaration at all on her way from the house to the hospital. We have also noted that P.W.3''s evidence show that

Vijayalakshmi implicated a male without disclosing his name or his identity as the person responsible for the burn injuries on her. Now, we have the

evidence of P.W.8. She is none else than the person who is living in the first floor of the building in which the deceased Vijayalakshmi was living in

the second floor. Her evidence shows that even when Vijayalakshmi was brought down from the second floor, she told her that the accused

poured kerosene and then, set fire to her. Therefore, even at that point of time, namely, within a short time, after P.W. 8 had access to

Vijayalakshmi''s house that disclosure had come, which implicates the accused as the person responsible for the crime. From her evidence in cross,

we do not find any single circumstance from which we can disbelieve her evidence in chief that Vijayalakshmi gave an oral dying declaration to her.

Therefore, we have the evidence of P.Ws. 3 and 8 to find out as to whether before reaching the hospital, Vijayalakshmi had given any dying

declaration. The evidence of P.W. 8 do show definitely that Vijayalakshmi had implicated the accused in the crime in the dying declaration given to

her and P.W. 3''s evidence shows that in the dying declaration Vijayalakshmi was implicating a male as the person responsible for the crime on her.

Then, we have the evidence of P.W. 2, who is none else than the elder brother of Vijayalakshmi. His evidence also shows that the moment he

reached the house (he was already on his way to the house of Vijayalakshmi), on enquiry, Vijayalakshmi told him that the accused set fire to her

after pouring kerosene. So, this evidence of P.W. 2 is in total corroboration to the oral evidence of P.W. 8. Therefore, we reiterate once again by

stating that to P.Ws. 2 and 8, Vijayalakshmi, without any waste of time and in fact at the quickest possible time after the crime on her, had given a

declaration that it is the accused and the accused alone, who had poured kerosene on her and then, set fire. This declaration to P.Ws. 2 and 8 is

followed by the declaration made by Vijayalakshmi to P.W. 10, the doctor, who examined her at about 1.40 p.m. Apart from the evidence of

P.Ws. 2 and 8, which we have already discussed above, we have the evidence of P.W. 13, the doctor, who examined the accused on his arrest.

To the doctor, the accused told that he came to sustain the injury when he was trying to save a woman in the address mentioned in Ex.P. 14 when

she was attempting to set fire. This is an admission on the part of the accused to P.W. 13 about his presence at the scene of occurrence and this

can be definitely made use of against him u/s 21 of the Evidence Act.

Let us now apply our mind to the judicial dying declaration of Vijayalakshmi recorded by P.W. 12 and whether there are any suspicious

circumstances in recording the said statement. Of course, it is true, as pointed by the learned senior counsel for the appellant, that P.W. 12''s

evidence shows that when he reached the hospital, the relatives of Vijayalakshmi, namely, three women, were by her bed side and after asking

them to move away, he commenced the proceedings. In this case, it must be noted, as already referred to earlier by us, that immediately after

P.Ws. 2 and 8 had access to Vijayalakshmi''s house, she, in certain unmistaken terms, had implicated the accused as the person responsible for the

crime. One can understand if such an information is not available to P.Ws. 2 and 8 at the earliest point of time. In other words, if the prosecution

was not aware as to who is responsible for the crime committed on Vijayalakshmi, then probably the prosecution party would be loitering to find

out who the culprit is and if they do not get any clue, probably their mind may work in implicating a person who is not well disposed of towards

them. But, in this case, the evidence of P.W.2 shows, besides the oral dying declaration given by Vijayalakshmi to him, that he saw the accused

coming down the stairs as he was going up to reach the house of Vijayalakshmi. P.W. 8''s evidence also shows the above fact. Simply because

P.W. 4, to a question put to her by the Court as to whether she saw the accused at that time, she answered in the negative, it does not necessarily

lead us to hold that the evidence of P.Ws. 2 and 8 that they saw the accused coming down the stairs cannot be believed. When a young woman is

in flames and when she is crying for help, which attracts the attention of several people, then everybody would start running to reach the victim. In

that process, especially when they were in the state of mind in which they were placed at that time, one might notice people coming opposite to

them and one might not notice the same fact. It all depends upon the power of memory and the power of observation of each individual and as to

how the brain starts working in meeting such an emergent situation. At the risk of repetition, we state one may be directly running to reach the

victim unmindful of what is coming opposite to him and other, by chance, would have noticed persons coming in the opposite direction while

reaching the scene of occurrence. If the evidence of P.W. 4 is appreciated in the context of the above anticipated mental balance of an individual

placed in such a situation, then her evidence that she did not notice the accused would not necessarily mean that the accused was not seen there at

all and therefore, the evidence of P.Ws. 2 and 8 regarding the presence of the accused at that time must be disbelieved. Therefore, to sum up, we

state that within a short time after the commission of crime, P.Ws. 2 and 8 came to know that it is the accused and the accused alone who

committed the crime on Vijayalakshmi and this statement of Vijayalakshmi gets corroborated by the fact that both of them saw the accused coming

down the stairs while both of them were going up. If that is so, the prosecution was clear even at the earliest point of time as to who the accused is.

In that background, the presence of three women by the bed side of Vijayalakshmi in the hospital when P.W.12, the Metropolitan Magistrate,

reached the hospital to record the dying declaration of Vijayalakshmi, means to us nothing. In other words, it cannot be held by any stretch of

imagination that the three women, stated to be present by the side of Vijayalakshmi, as spoken to by P.W. 12, had tutored Vijayalakshmi to

implicate the accused in this case and in fact, there is no scope or chance for it. Having concluded so, namely, the presence of three women by the

side of Vijayalakshmi when P.W. 12 went to record the dying declaration would not vitiate the recording of the dying declaration itself. We

perused the evidence of P.W. 12 and the dying declaration recorded by him. He found Vijayalakshmi having clarity in mind and thought; she

understood whom he was; and that she was able to answer the question after question put to her. P.W. 12''s evidence also shows that P.W. 6, the

duty doctor, certified the fitness of Vijayalakshmi. We have already referred to the certificate of P.W. 6 found entered at the foot of Ex.P. 14.

P.W. 12''s evidence shows that before recording, he asked the relatives to move away. From a reading of Ex.P.14, we see that Vijayalakshmi

implicated the accused in the crime.

In addition to the above, we applied our mind to the complaint given by Vijayalakshmi herself to P.W.11, the Sub-Inspector of Police. In

recording that complaint also, we do not find any vitiating circumstances. One thing is certain from all the dying declarations, namely, the oral dying

declaration; judicial dying declaration and the complaint given by Vijayalakshmi herself which, later on assumed to be that of a dying declaration on

her death, are consistent in pointing out the guilt of the accused alone and not leaving any room to doubt his involvement. For all the reasons stated

above, we do not find any reason much less compelling reason to disbelieve the evidence of P.Ws.2 and 8 regarding the oral dying declaration of

Vijayalakshmi given to them; the evidence of P.W.12, the Metropolitan Magistrate, who recorded the judicial dying declaration, Ex.P.14 and

P.W.11, the Sub-Inspector of Police, who recorded Ex.P.11. As already stated, these dying declarations establish the involvement of the accused

in pouring kerosene and setting fire to Vijayalakshmi, who later on died. We have already referred to the medical evidence available in this case,

namely, P.Ws.6, 7 and 10, which unerringly show that Vijayalakshmi was admitted in the hospital with burn injuries; she was under intensive

treatment and her death was due to complications arising out of such burn injuries (i.e.) septiceamia. Therefore, the conviction u/s 302 I.P.C. has

to be sustained and it is, accordingly, sustained. The medical evidence further shows that the foetus in the womb of Vijayalakshmi was 36 weeks

old. The evidence also shows that the accused trespassed into the house of Vijayalakshmi and committed the crime. Therefore, the conviction

under Sections 316 and 450 I.P.C. is also based on legal evidence.

For all the reasons stated above, we do not find any illegality in the judgment under challenge as the conclusion of guilt arrived at by the Court

of Sessions is based on legal material. As a result of the above, we find that the judgment under challenge is liable to be sustained and accordingly,

it is sustained. The appeal is dismissed.