LexSTATE OF U.P. versus AMEER ALI
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> STATE OF U.P. v. AMEER ALI APRIL 3, 1996 [K. RAMASWAMY, S.P. BHARUCHA AND K.S. PARIPOORNAN, JJ.J Indian Penal Code, 1860 : A B 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. Shakil Ahmed Syed for the Respondent. The following Order of the Court was delivered : Leave granted We have heard learned counsel on both sides. This appeal by special leave arises from an order of acquittal passed F G 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 : D E F "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 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 .... " 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 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 witn
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