STATE OF ASSAM versus MAFIZUDDIN AHMED

Citation: [1983] 2 S.C.R. 241 · Decided: 14-01-1983 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Dismissed

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Judgment (excerpt)

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••
241 
STATE OF ASSAM 
v. 
MAFIZUDDIN AHMED 
January 14, 1983 
[D.A. DESAI AND R.B. MISRA, JJ ,) 
P•nal Cod•-Sectio~ !!02-Conviction if could be baa.d on dying declara-
tion which la not corroborated. 
• 
Evidence Act-/)ying decfaration-Accu1ed, if could be conVicttld on dying 
declaration which is not corroborated-Evidence of child witne1s-lf could be 
accepted. 
The prosecution case against the . respondent was that after marrying for 
a second time he startCd ill.treating his first wife, t be deceased, and that on the 
day of tho occurrence (10th April, 1983) he poured kerosene oil on her a.nd set 
fire to her body. When the deceased started screaming he gagged her and 
wrapped her with a quilt and threw her oa the floor and in the process ho 
himself received burn injuries on his hands-. A week later on the 18th April~ 
1973 when the uncle of the deceased called on her at the hospital and enquired 
as to how it happened, 1he told him that her husband poured kerosene oil and 
set fire to her body. He· then reported the matt~r to the police. Since her 
condition was precarious, a Magistrate recorded her dying declaration. 
The respondent's case on the other hand was that on the day of the 
occurrence when bis wife's garments accidentally caught fire when .. his house 
caught fire he attempted to extinguish the fire by coveriiig her with a quilt and 
in the process he himself had received bum injuries. 
Believing the evidence of the son of the deceased, a boy of 7 years, and 
the dying.declarations made to her uncle and the Magistrate, the Sessions Judge 
held that the charge under s. 302 I.P.C. was established. But the High Court 
did not find it safe to convict him on the ba~is of the dying declarations and 
the statement of the child witness and acquitted him of the charge. 
A 
8 
c 
D 
E 
F 
In appeal to this Court, it was contended on behalf of the State that evon 
if there was n~ e\•idence oD. record to corroborate the dying declarations the 
G 
respondent's conviction could be based on the dying declaration. 
Dismissing the appeal, 
HELD : It is well settled that, even in the absence of other corroborating 
evidence, there can be a conviction on the basis of a dying dec.laration provided 
that the Court is satisfied about the truthfulness of the dying dqqlaratlon anq 
that it is not vitiated in any 9tb~r manner. 
~246 !!·CJ 
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242 
slJPREME COURT REPORTS 
(1983) 2 8.C.&. 
A 
Maniappan v. The Statt of Madras, [1962] 3 S.C.R. 869, Khushal Rao v. 
B 
c 
D 
E 
G 
H 
State of Bombay, [1958] S.C.R. 552, and Lallubhai Devechand Shah & Ors. v. 
State of Gujarat, A.I.R. 1976 S.C. 1776 reforred to. 
In the instant case even though the occurrence took place on 10th April 
and the deceased was alive till 18th April, 
she did not disclose either to the 
villagers who visited her or to the doctor or the nurse attending on her that her 
husband.sprinkled kerosene oil and se:t her on fire. There was no evidence that 
she was not in a position to speak or that she was unconscious between 10th 
Apr ii and 18th April. It was only on the 18th April that she made an oral 
dying declaration for the first time to her uncle and later to the Magistrate. 
And secondJy the name of the husband of the deceased in the dying declaration 
was shown as Mohitin Ali aod not the real nan1e Mafijuddin Ahmed. The 
doctor, W:i whose presence the dying decJaration was recorded, did not state that 
the declarant was the deceased; he orlly stated that the Magistrate recorded the 
statement of a patient of bis unit who bad received the burn injury. Therefore 
the probability of her statement being inspired by her uncle cannot be weeded 
out. The aforesaid circumstances do cast doubt on the truthfulness of the 
dying declaration. [246 D·H, 247 A-CJ 
From the tenor of the evidence of the son of the deceased, a boy of about 
7 years, it is evident that h~ was vadllati-ng throughou(and that he was not a free 
agent but he bad been tutored. 
H1~ said that he \Vas in the mango grove at the 
time of the occurrence ; that his uncle taught him to tell the police that be was 
in the grove at the time of occurrence; that it was the house that caught fire 
first; that his father poured kerosene oil on bis mother and set fii"e to her. He 
also said that his father poured sented oil on his mother's body and not kerosene 
oil. On the application of Alimuddin Ahmed the son of the accused was kept in 
·the custody of his wife and thus to a11 intents and purpos<

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