Mahi @ Mahindran vs State

D. Murugesan, J.—By the judgment in S.C. No. 184 of 2005 dated 9.11.2006, the learned Principal Sessions Judge, Chengalpattu found

the sole accused, the appellant herein, guilty of the offence u/s 302 IPC, convicted and sentenced him to undergo life imprisonment and also to pay

a fine of Rs. 1,000/-, in default of which to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellant

is before this Court by way of the present appeal.

The appellant (who will be hereinafter referred to as the ""accused"") was put to face the trial on the following prosecution case:

The deceased-Shalina was living with her son in a farmhouse of Trueman at Vengambakkam village. The accused by name Mahi @ Mahindran

was also working in the said farmhouse. On the pretext of helping the deceased, he used to visit the house of the deceased frequently and later he

used to compel the deceased for sexual intercourse. However, the deceased refused to accede to the desire of the accused. On the fateful day of

occurrence i.e., on 10.7.2004 at about 6.00 p.m., the accused entered into the house and compelled the deceased for sexual intercourse. At that

time, the deceased was preparing tea. Angered by the non-cooperation and refusal on the part of the deceased, the accused handpicked the stove,

poured the kerosene on the deceased and ran away from the scene of occurrence after setting her ablaze. As the deceased sustained severe burn

injuries, she was taken to Chromepet Government Hospital by her son, P.W.1 and on their advice, she was admitted in Government Kilpauk

Medical College & Hospital at 9.30 p.m., on the same day.

On receipt of intimation from the Government Kilpauk Medical College & Hospital at 10.15 p.m., on 10.7.2004, P.W.11, the Sub Inspector of

Police attached to Peerkankaranai Police Station, went to the hospital after handing over a requisition under Ex.P-12 to the IX Metropolitan

Magistrate, Saidapet to record the dying declaration of the deceased. As the deceased was not conscious to give such a dying declaration, as

certified by the duty doctor Nirmala under Ex.P-6, he enquired and recorded the statement of P.W.1, the son of the deceased, under Ex.P-1 and

registered the same in Cr. No. 142 of 2004 for the offence u/s 307 IPC. The First Information Report is Ex.P-11.

On receipt of the requisition from P.W.11, P.W.8, the IX Metropolitan Magistrate, Saidapet went to the Government Kilpauk Medical College

& Hospital at about 2.45 a.m., on 11.7.2004 and since the deceased was not conscious to give such a dying declaration as certified by the duty

doctor Nirmala under Ex.P-6, he could not record the dying declaration.

In the meanwhile, P.W.11 went to the scene of occurrence and prepared the Observation Mahazar, Ex.P-2 and also drew rough sketch, Ex.P-

13 in the presence of P.W.6 and other witness. He examined P.Ws.1, 2 and other witnesses and recorded their statements. As he received

information from the hospital that the deceased had regained consciousness, he again gave a requisition to P.W.8, the IX Metropolitan Magistrate,

Saidapet at 7.40 a.m., on 11.7.2004 for recording the dying declaration of the deceased.

On receipt of such requisition, P.W.8 again went to the hospital at about 8.30 a.m., on 11.7.2004 and after following the procedures and after

ascertaining the fitness of the deceased to give such a statement from the doctor-P.W.9 under Ex.P-7, recorded the dying declaration, Ex.P-5 of

the deceased in the presence of P.W.9 between 8.30 a.m., and 9.05 a.m. P.W.9 has also certified under Ex.P-8 that the deceased was conscious

and oriented throughout the period of recording of the dying declaration.

As P.W.11 received intimation from the hospital that the deceased had died at 6.30 p.m., on 11.7.2004, he altered the offence to one u/s 302

IPC and sent the altered report, Ex.P-14 to the Court as well as to the higher police officials. He thereafter handed over the investigation to

P.W.12, the Inspector of Police in-charge of Peerkankaranai Police Station.

P.W.12, after scrutinising the file and the investigation done by P.W.11, went to Government Kilpauk Medical College & Hospital on

12.7.2004 and conducted inquest on the body of the deceased between 8.00 a.m., and 10.30 a.m., in the presence of panchayatdars and

prepared the inquest report, Ex.P-15. He thereafter gave a requisition to the doctor and sent the body through the Head Constable for conducting

post-mortem.

P.W.12, Professor, Department of Forensic Medicine attached to Kilpauk Medical College & Hospital, on receipt of requisition and the body

at 11.30 a.m., on 12.7.2004, commenced post-mortem at 11.45 a.m., and he noted the following injury:

Infected superficial burns seen over the face, neck, both sides of upper part of chest front and back of both upper limbs upper part of back and

scapular region and part of middle of left thigh (48% burns). No other injury made out.

He issued the post-mortem certificate, Ex.P-9 with his opinion that the deceased would appear to have died due to the complication of burns.

P.W.12, continuing with his investigation, arrested the accused near Selaiyur Camp Road ICICI Bank at 12.00 noon and recorded his

voluntary statement in the presence of P.W.7 and another witness. He brought the accused to the police station and remanded him to judicial

custody. He examined the other witnesses and recorded their statements. He thereafter handed over the investigation to P.W.13, the incumbent

Inspector of Police of Peerkankaranai Police Station.

P.W.13 took up investigation on 27.7.2004. He scrutinised the file and satisfied himself with the investigation done by P.Ws.11 & 12. He

thereafter examined the Head Constable and the post-mortem doctor-P.W.10 and recorded their statements. After completing investigation, he

laid the final report on 12.10.2004 against the accused before the Court for the offence u/s 302 IPC.

Before the trial Court, the prosecution examined 13 witnesses, marked 17 exhibits and produced 8 material objects to prove the charge

against the accused.

When the accused was questioned u/s 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied

each and every incriminating material as false. No witness was examined and no document was marked on the side of the defence. However, the

learned trial Judge found the accused guilty, convicted and sentenced him for the offence as stated earlier.

Mr. R. Sankarasubbu, learned Counsel appearing for the accused has submitted that it is purely a case of circumstantial evidence, as there is

no eye-witness to the occurrence. According to the learned Counsel, the two circumstances namely, the dying declaration and the last seen theory

as spoken to by P.W.3 are not sufficient to hold the accused guilty of the offence.

So far as the last seen theory is concerned, the learned Counsel would submit that though P.W.3 has spoken for having seen the accused on

the evening of the date of occurrence and he also smelt kerosene odour on the clothes of the accused, when questioned, the accused did not reply

and further the accused took bath in a nearby water tank. Thereafter, P.W.3 went to the house of the deceased and found the deceased ablaze.

He tried to douse the fire by removing his lungi and rolling the same around the body of the deceased. Thereafter, he took the deceased to an

auto-rickshaw stand, from where he was taken to the hospital by P.W.1. The learned Counsel would submit that P.W.3 has been introduced only

to prove additional circumstance, as he was examined by the Investigating Officer only after four days of the occurrence when his statement u/s

161 Cr.P.C., was recorded. He would also submit that though P.W.3 has spoken about the panchayat board President of Meppedu village for

having seen himself and the deceased in the auto-rickshaw stand, the said President has not been examined. The failure on the part of the

prosecution to examine the said President throws a serious doubt about the presence of P.W.3 either in the scene of occurrence or his attempt to

save the life of the deceased or his version as to taking the deceased to the auto-rickshaw stand. Further, the driver of the auto-rickshaw was not

examined, again throwing a serious doubt about the presence of P.W.3 in the scene of occurrence as spoken to by him. Hence the evidence of

P.W.3 cannot be believed.

So far as the next circumstance namely, the dying declaration is concerned, the learned Counsel would submit that the said dying declaration

cannot be believed. According to the learned Counsel, it is the case of the prosecution that the deceased was first taken to the Chromepet

Government Hospital and thereafter to the Government Kilpauk Medical College & Hospital and was admitted by her son, P.W.1. The

prosecution story is that when the IX Metropolitan Magistrate, P.W.8 made an attempt to record the dying declaration of the deceased, the

deceased was not in a fit state of mind to give such a declaration, as certified by one Dr. Nirmala. On the other hand, the accident register, Ex.P-

16 shows that the patient was brought conscious and well oriented while she was brought to the hospital by P.W.1. In these circumstances, it

should be presumed that the deceased had already given a dying declaration to the doctor at Chromepet Government Hospital, but the same has

been suppressed by the prosecution. Further the alleged doctor who has certified as to the mental state of mind of the deceased has also not been

examined, which is fatal to the prosecution case. He would also submit that the initial dying declaration said to have been given by the deceased to

the doctor at about 9.30 p.m., was suppressed, as the said doctor has not been examined. The non examination of the doctor is fatal to the

prosecution case and in support of the said submission, the learned Counsel would rely upon the judgment of the Apex Court in Jain Karan v.

State of Delhi (NCT) 1999 SCC (Crl.) 1385. In the absence of any evidence to show at what point of time the deceased regained consciousness

to give a declaration, the subsequent recording of dying declaration, Ex.P-5 by P.W.8, the IX Metropolitan Magistrate in the presence of P.W.9-

doctor, who issued the certificate under Exs.P-7 and P-8 cannot be believed.

Further, the learned Counsel would submit that the Magistrate has not ensured as to whether the deceased was in a fit state of mind to give the

dying declaration. In support of the said submission, the learned Counsel relied upon the judgment of the Apex Court in Lallubhai Devchand Shah

and Others Vs. The State of Gujarat, .

He would further submit that as the deceased was taken to the hospital by P.W.1, her son, who was with her right from the beginning till she

was declared dead on the next day, there is every possibility of tutoring the deceased to falsely implicate the accused. In support of the said

submission, the learned Counsel would rely upon the judgment of the Apex Court in K. Ramachandra Reddy and Anr. v. The Public Prosecutor

1976 SCC (Crl.) 473.

Further, the learned Counsel would submit that though the dying declaration is entitled to great weight, as the accused does not have an

opportunity to cross-examine the person who gave such declaration, the Court must insist that the dying declaration to be of such nature as to

inspire full confidence of Court in its correctness. The learned Counsel would submit that on the facts of this case, the prosecution has not let in any

evidence as to how and when the deceased regained consciousness, especially when the Magistrate, who visited the hospital earlier, found that the

deceased was not conscious. Thereafter, he was informed to come to the hospital to record the dying declaration as the deceased regained

consciousness. In support of the said submission, the learned Counsel would rely upon the judgment of the Apex Court in Mohan Lal and Ors. v.

State of Haryana 2007 (1) MWN (Crl.) 194.

Finally the learned Counsel would submit that the medical evidence also does not support the case of the prosecution, as the prosecution case

is that the accused poured kerosene on the deceased and set her ablaze and if that be so, certainly, the scalp hair of the deceased could have been

burnt, but the post-mortem certificate, Ex.P-9 shows that there was infected superficial burns seen over the face, neck, both sides of upper part of

chest front and back of both upper limbs upper part of back and scapular region and part of middle of left thigh. Except the above injuries, no

other injuries were noticed by the post-mortem doctor, P.W.10. In support of the said submission, the learned Counsel would rely upon the

judgment of the Apex Court in Tarun alias Gautam Mukherjee v. State of West Bengal 2003 SCC (Crl.) 1052.

On the other hand, Mr. P.Kumaresan, the learned Additional Public Prosecutor would submit that P.W.3 is an independent witness. There is

nothing to suggest as to why he should falsely implicate the accused. His evidence is quite natural, as he has deposed that when he saw the accused

just immediately after the occurrence i.e., on the evening of 10.7.2004, he smelt kerosene odour in his clothes and when he asked the accused

about the same, the accused did not reply. To conceal the offence, the accused also took bath in a nearby tank. On suspicion, P.W.3 went to the

house and found the deceased ablaze and thereafter removed his lungi and tried to save her life and thereafter he took the deceased to an auto-

rickshaw stand and by that time, as P.W.1 came there, he sent the deceased to the hospital along with P.W.1. Of course, the President of

Meppedu village who was present at the auto-rickshaw stand and who witnessed the above, was not examined. Inasmuch as the prosecution has

proved its case as to the last seen theory as spoken to by P.W.3 as well as the dying declaration, the mere failure to examine the President is not

fatal to the prosecution case. Similarly, the failure on the part of the prosecution to examine the auto driver is also not fatal to the prosecution case

inasmuch as the fact that the deceased was taken firstly to the Chromepet Government Hospital and was admitted.

So far as the next contention as to the dying declaration is concerned, the learned Additional Public Prosecutor would submit that when the

deceased was taken to Chromepet Government Hospital, she was in a state of mind to speak and therefore she informed P.W.1 that when the

accused made an attempt to sexually harass her and when she refused, he poured kerosene and set her ablaze. Thereafter, when an intimation was

given to the IX Metropolitan Magistrate, P.W.8, he came around 2.45 a.m., to the hospital on 11.7.2004 and as he found the deceased was

unconscious, he therefore could not record her declaration. When he again received subsequent intimation, he went to the hospital at 8.30 a.m.,

and as he found the deceased was in a fit state of mind to give the declaration and that the doctor-P.W.9 also certified to the said effect, he

recorded the dying declaration. Hence the contention of the learned Counsel for the accused merits no acceptance, as could be seen from the fact

that the Magistrate did not record the dying declaration when he visited the hospital at 2.30 a.m., initially and he recorded such a declaration only

after ascertaining the fitness of the deceased at 8.30 a.m. He would also submit that though P.W.1 was present with the deceased, the accused has

not even suggested P.W.1 that there was a possibility of tutoring of the deceased and in the absence of such defence, the accused is not entitled to

raise the said contention for the first time in the appeal. Moreover, he would submit that the deceased was first taken to Chromepet Government

Hospital and thereafter to Government Kilpauk Medical College & Hospital and she was suffering on account of burn injuries and in the normal

course and under the above circumstance, one cannot expect any tutoring is possible and could be made. He would also submit that equally the

non examination of the doctor who has first seen the deceased in Chromepet Government Hospital to speak about the condition of the deceased

cannot in any way shatter the prosecution version when the dying declaration is supported by the medical evidence namely, the injuries found on

the body of the deceased during the post-mortem. He would also submit that the dying declaration should be given great weight and in the absence

of any other material to show that the dying declaration, Ex.P-5 cannot be believed, the prosecution case must be accepted in toto. He would

further submit that one more circumstance put against the accused is the preparation of the observation mahazar, Ex.P-2 in which the unburnt

broken parts of the stove were found in the scene of occurrence, falsifying the case of the defence that it was an accidental burst of stove. To

support the said submission, the learned Additional Public Prosecutor would rely upon the judgments of the Apex Court in P.V. Radhakrishna v.

State of Karnataka 2003 SCC (Crl.) 1679 and in Sohan Lal alias Sohan Singh and Ors. v. State of Punjab 2004 SCC (Crl.) 226.

We have given our anxious and careful consideration to the rival submissions made on either side. We have also perused the entire materials

placed before us and also gone through the judgment of the learned trial Judge.

So far as the challenge to the last seen theory is concerned, firstly we must keep it in mind that P.W.3 is an independent witness and he has no

motive against the accused. Except a faint attempt by suggesting that he had animosity against the accused, we could see no material to come to

the conclusion that there was animosity on the part of P.W.3 to falsely implicate the accused. A perusal of the entire evidence of P.W.3 would

show that it is quite natural. We could also see the normal conduct of a person to attempt to save the life of another person who is dying of burn

injuries. P.W.3 has categorically deposed that he saw the accused on the evening of the fateful day and he smelt kerosene odour on his clothes. He

has also spoken about the attempt made by the accused to clear the odour by taking bath in a nearby tank. His evidence is also quite natural, as he

has spoken that when he questioned the accused as to the smell of kerosene on his person, the accused did not respond to such question. Instead

the accused had only tried to conceal the offence by taking bath to remove the odour from the clothes. Suspecting some untoward incident, P.W.3

rushed to the house of the deceased and saw her ablaze and therefore he immediately removed his lungi and tried to save the life of the deceased.

Thereafter, he took the deceased to an auto-rickshaw stand and as P.W.1, the son of the deceased, also came there, he made arrangements for

the deceased to be taken to the hospital. We find absolutely no reason to discard the evidence of P.W.3. His evidence cannot be disbelieved

mainly on the ground that the prosecution has failed to examine the President of Meppedu village as well as the auto driver. Though the prosecution

case rests only on circumstantial evidence, in the wake of the evidence of P.W.1 coupled with the evidence of P.W.3 and the fact hat the deceased

was admitted in the hospital where she succumbed to injuries would go a long way to support of the case of the prosecution and in these

circumstances, it is not necessary for the prosecution to examine all the persons who came across the occurrence and the subsequent events. If the

case of the prosecution is viewed from that angle, we are of the considered view that mere failure to examine the President of Meppedu village and

the auto driver would in any way affect the prosecution case. The evidence of P.W.3 is further attacked on the ground that his statement u/s 161

Cr.P.C., has been recorded after four days. There is no controversy that the occurrence had taken place on 10.7.2004 and the statement of

P.W.3 u/s 161 Cr.P.C., was recorded only on 14.7.2004. Initially the case was registered only for the offence u/s 307 IPC and the same was

altered only on the subsequent day after the death of the deceased. In that process, the Investigating Officer has lost two days, as he was

frequently making arrangements for recording the dying declaration. Thereafter, the investigation continued and in the course of examination, delay

of two days had occurred. In our view, a mere delay of two days in recording the Section 161 Cr.P.C., statement by itself would not establish a

falsity in the prosecution case, especially when the prosecution has heavily relied upon the dying declaration. For all these reasons, we reject the

contention of the learned Counsel for accused in challenging the evidence of P.W.3.

So far as the challenge to the dying declaration is concerned, it has been repeatedly held that the dying declaration is entitled to great weight

and it cannot be brushed aside unless strong grounds are made out that such a dying declaration was the result of either tutoring or prompting or a

product of imagination. It has been also authoritatively held that the dying declaration can be the sole basis for conviction in the event such dying

declaration inspires full confidence of the Court in its correctness.

In Mohan Lal''s case reported in 2007 (1) MWN (Crl.) 194 the Apex Court, on a detailed analysis of the law, has held that when the dying

declaration is trust-worthy and reliable, it has to be accepted. One of the basic conditions would be that before recording the dying declaration, it

must be ensured that the deceased was in a fit state of mind and was conscious to give such declaration. This law is laid down by the Apex Court

in the judgment in Paparambaka Rosamma and Ors. v. State of Andhra Pradesh 1999 SCC (Crl.) 1361.

Much was argued as to the failure on the part of the Metropolitan Magistrate-P.W.8 in ascertaining the fitness of the deceased to give the

dying declaration. We have carefully perused Ex.P-5, the dying declaration as well as the evidence of P.W.8, the Metropolitan Magistrate who

recorded the dying declaration. P.W.8 has stated that he received a requisition from C-7 Peerkankaranai Police Station at about 2.30 a.m., on

11.7.2004 to record the dying declaration of the deceased. Within 15 minutes, he reached the hospital only to find that the deceased by then had

become unconscious. Therefore he did not record the declaration. This circumstance goes to show that the Magistrate had first ensured as to the

fitness of the deceased to give such declaration. On seeing that the deceased was not in a fit state of mind to give such declaration, he went back

and again came to the hospital at 8.30 a.m., when he received subsequent intimation and recorded the dying declaration. We find absolutely no

substance in the argument of the learned Counsel for accused that the Magistrate has not ascertained the fitness of the deceased to give such

declaration from the above facts narrated. Ex.P-5 would show that before the same was recorded, a certificate was issued by Dr. S.R.

Vijayalakshmi, P.W.9 to the following effect under Ex.P-7 namely, ""though talking with a hoarse voice patient is conscious and oriented and is fit

to give statement"". Thereafter, the Magistrate-P.W.9 has put the following questions (which we have translated) as to the name of the deceased,

her husband''s name, age, the occupation of husband, residence address, the identity of the Magistrate and as to the occurrence. The deceased

had answered all the questions but with hoarse voice. From the above, it is seen that the patient was conscious before the dying declaration was

recorded. The Magistrate has also ensured as to the fitness of the deceased to give such declaration even after the dying declaration was recorded.

The further certificate under Ex.P-8 was obtained from P.W.9-doctor, wherein it is specifically stated that the patient was conscious and oriented

throughout the period of giving the statement and no outsiders, relatives or police were allowed at that time. The evidence of P.W.8-Magistrate,

who recorded the dying declaration, also shows that he ensured the fit state of mind of the deceased to give such a statement from the answers

given by the deceased to the questions. We have absolutely no reason to discard the evidence of P.W.8, the Magistrate. The evidence of the

Magistrate is also corroborated by the evidence of the doctor-P.W.9, as she has stated that she examined the deceased and was satisfied as to her

fitness to give the declaration before recording and even after the completion. In view of the above factual background, the judgment relied upon

by the learned Counsel for accused in Lallubhai Devchand Shah and Others Vs. The State of Gujarat, is of no use to the accused, as in the said

judgment the Apex Court has factually found the failure on the part of the Judicial Magistrate to ensure the fit state of mind of the deceased to give

such declaration. In this context, the judgment of the Apex Court in P.V. Radhakrishna''s case relied upon by the learned Additional Public

Prosecutor could be usefully referred to. In paragraphs 11 & 12, it has been observed as follows:

This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn

and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this

reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in

miscarriage of justice, because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the

court without a scrap of evidence.

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is

essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such

a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a

result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind

after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it

can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form

the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence....

The dying declaration is questioned on the ground that there was a possibility of tutoring the deceased. The evidence of P.W.9-doctor is

categorical that at the time the dying declaration was recorded, no outsiders, relatives or police were allowed as could be seen from the certificate

issued by P.W.9 under Ex.P-8. Of course, P.W.1 claims to have accompanied the deceased immediately after the occurrence till the dying

declaration, Ex.P-5 was recorded. The evidence as to his presence could be considered in the sense that he being the son of the deceased would

say that he was present with his mother throughout in the hospital. For determining the fact as to whether he was present when the dying

declaration was recorded by the Magistrate, the evidence of P.W.8, the Magistrate who has recorded the declaration and the doctor, P.W.9 who

has issued the certificate as to the fitness are relevant. P.W.9 has specifically deposed that no outsiders, relatives or police were allowed at that

time. To decide such an issue, much reliance should be attached to the evidence of the Magistrate as well as the doctor, who could very well

speak of the presence of other persons at the time of recording the dying declaration. That apart, the evidence of these witnesses were not

controverted even by suggesting that there was a possibility of tutoring by P.W.1 except a general suggestion. Hence the contention that the

deceased was tutored by P.W.1 cannot be accepted on the facts of this case. The Apex Court in Jai Karan''s case (supra) has laid down the

following law in paragraph 10:

A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it

is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted to the premise that ordinarily a dying person will not

falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need

that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying

declaration may form the sole basis for conviction without the need for independent corroboration, it must be shown that the person stating it had

the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it

is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge

without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a

reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other

piece of evidence-- neither extra strong nor weak--and can be acted upon without corroboration if it is found to be otherwise true and reliable.

Of course, in K. Ramachandra Reddy''s case (supra), the Apex Court has held that the dying declaration must be voluntary and if the Court

comes to the conclusion that there was a possibility of tutoring, it cannot be relied upon. However, in view of our discussion namely, that there had

been no possibility of tutoring the deceased, the said judgment is not applicable to the facts of this case. Moreover, the tutoring must be the result

of an interested party and there must be some supportive materials to sustain the plea of tutoring. In this context, P.W.3, who took the deceased

from the place of occurrence to the auto-rickshaw stand, has not spoken anything about the statement made by the deceased to him or any enquiry

made by him with the deceased. There was no possibility of any tutoring at the instance of P.W.3, who is an independent witness and who does

not have animosity with the accused. The next person to accompany the deceased was P.W.1. His evidence is also categorical that the deceased

was not in fit state of mind to speak when she was taken to the hospital and she told the occurrence only for the first time in the hospital.

Thereafter, she became unconscious. Even when the Magistrate came at 2.30 a.m., on 11.7.2004, he could not record the dying declaration as the

condition of the deceased was not conducive to give such declaration. Thereafter, the deceased regained consciousness only around 8.30 a.m.,

when the dying declaration was recorded. There is absolutely no material to show that there was occasion for P.W.1 to tutor the deceased.

Further, there was no suggestion put to P.W.1 on the alleged tutoring. Initially the deceased was not in stable condition, but regained

consciousness thereafter and then became unconscious and thereafter regained consciousness. This would show that she was fighting for her life. In

these circumstances, even if P.W.1 was present throughout with the deceased, tutoring is not possible. The contention that there was a possibility

of tutoring is only a misconception without any backing. Hence we reject the said contention also.

The next contention of the learned Counsel for accused is that the doctor who saw the deceased initially at Chromepet Government Hospital

was not examined. His examination may through much light as to the version of the deceased especially when it is the case of the prosecution that

the deceased had given a statement to the said doctor. The failure on the part of the prosecution to examine the said doctor throws serious doubt

about the subsequent dying declaration. This argument should also fall to the ground for the simple reason that immediately when the deceased was

taken to Chromepet Government Hospital, of course the deceased has stated to the doctor that the accused had poured kerosene and set her

ablaze. On seeing her condition, the doctor advised the deceased to be admitted in Government Kilpauk Medical College & Hospital. Except the

above advice, it appears that he has not given any treatment and has played only a minor role of advising the deceased to be taken to KMC

hospital. When the prosecution has established the dying declaration as voluntary and was recorded in the manner known to law by following the

procedures and such dying declaration has inspired the full confidence of Court, merely because the doctor who has advised the deceased to be

taken to KMC hospital was not examined, the non examination of the doctor will not throw a serious doubt on the dying declaration. We must

keep it in mind that there is no contradiction in the statements of the deceased at different point of time. Even P.W.1 has deposed that when the

deceased was brought to Chromepet Government Hospital, she had only stated that the accused was the cause for the burn injuries. The same

version was reiterated by the deceased before the Magistrate as well. In these circumstances, the submission of the learned Counsel that the failure

on the part of the prosecution to examine the doctor at Chrompet Government Hospital throws suspicion to the dying declaration cannot be

accepted.

Lastly it was contended that the injuries as found during the post-mortem did not tally with the prosecution version. The learned Counsel would

submit that the scalp hairs of the deceased were not burnt, which would falsify the prosecution version of pouring kerosene on the body of the

deceased and set her ablaze. In our view, the said submission is also on a total misconception. The medical evidence namely, Ex.P-9, the post-

mortem certificate in fact supports the case of the prosecution while it narrates the injuries. The injuries as found on the body of the deceased have

been already extracted and from the same, it could be seen that those injuries sustained by the deceased were due to the pouring of kerosene on

the body and set her ablaze. It need not necessarily be in all cases that the hair should also be burnt. Further the opinion of the doctor as to the

cause of death is that the deceased died of complication of burns. Hence the medical evidence fully supports the case of the prosecution and the

contention of the accused that it does not support the case of the prosecution is not acceptable.

As we have believed the dying declaration, Ex.P-5 recorded by P.W.8, Metropolitan Magistrate, the conviction based upon the sole dying

declaration could be even sustained. Further, in this case, in addition to the dying declaration, one more circumstance put forth by the prosecution

is the last seen theory as spoken to by P.W.3. There is yet another circumstance, namely, the observation mahazar, Ex.P-2. If it is a case of

accident, certainly, the broken parts of the stove should have also been burnt fully or partly to indicate the accident. Further, Ex.P-2 shows the

presence of unburnt broken parts of the stove. The observation mahazar also shows the presence of aluminium bottom of the kerosene stove

without there being any indication as to the fire in it. The above facts would show that after the accused had poured kerosene on the deceased, he

had thrown the stove in the place of occurrence and ran away. If it is a case of accident, the broken parts without their being a symptom of fire

could not have been found. Hence we are of the considered view that the defence argument namely, it is a case of accident cannot be accepted.

For all the above reasons, we find absolutely no merit in any of the contentions made on behalf of the accused and consequently, we do not

find any reason to interfere with the conviction and sentence imposed on the accused by the judgment under appeal. Accordingly, the criminal

appeal fails and it is dismissed.