(Prayer: Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, against the judgment dated 16.03.2023 in S.C.No.91 of 2016 on the file of the Mahila Fast Track Court, Nagercoil and set aside the same as illegal and acquit the appellant.)

N. Anand Venkatesh, J.

1. This criminal appeal has been filed challenging the judgment passed by the Mahila Fast Track Court, Nagercoil, in S.C.No.91 of 2016 dated 16.03.2023 wherein, the appellant was convicted and sentenced in the following manner:

                  

2. The case of the prosecution is that there was a love affair between the deceased and the accused person. The family of the deceased came to know of the same and hence, she broke the relationship with the accused. However, the accused person is said to have continued to pursue her and the deceased started avoiding him. On 25.05.2013, at about 2:00 PM, the accused is said to have come to the house of the deceased with 2 litres of diesel in a plastic container and poured the same on the deceased and set her on fire. The deceased sustained grave burn injuries.

3. Immediately after the incident, PW1, who is the aunt of the deceased and PW3, who is the brother of the deceased and others took the deceased to the private hospital and PW7 doctor treated her.

4. The deceased is said to have informed the doctor that the accused person had poured the diesel and set her on fire. Since the deceased had sustained more than 90% burn injuries, word was sent to the Judicial Magistrate with a request to record the dying declaration.

5. PW13, who is the Judicial Magistrate, came to the hospital at about 05:45 PM and started recording the dying declaration (Ex. P11).

6. The police were also informed about the incident and PW11, who is the Special Sub-Inspector, came to the hospital around 3:00 PM and recorded the statement of the deceased under Ex. P.11. This resulted in the registration of the FIR (Ex.P12) for offence under Section 307 of IPC.

7. Investigation was taken over by PW12 and when the investigation officer went to the hospital, the deceased was in an unconscious state and therefore he was not able to record any statement. Therefore, the investigation officer went the next day on 25.05.2013 and recorded her statement (Ex. P20).

8. The investigation officer went to the scene of crime and prepared the observation mahazar (Ex. P10) and the rough sketch (Ex.P14). He also collected MO2 from the scene of crime under Ex.P4.

9. The accused person was arrested in the course of investigation on 26.05.2013 and based on his confession, the two-wheeler used by him was seized (MO1). The accused person was remanded to judicial custody.

10. On 29.05.2013, the deceased died and hence, an alteration report (Ex.P15) was prepared and the offence was altered from Section 307 of IPC to Section 302 of IPC.

11. The investigation officer went to the Government Hospital on 30.05.2013 and conducted the inquest in the presence of panchayathars and prepared the inquest report (Ex. P16).

12. The investigation was thereafter taken over by PW14 and he sent the body for autopsy. PW5 doctor conducted the autopsy and issued the postmortem certificate (Ex.P1). The following injuries were noted in the postmortem certificate:

                   “Infected epidermo-dermal burns seen all over the body except face and part of soles of feet. Peeling and blackening of the skin seen over the burn area in a scattered manner. Singeing of scalp hair, eyebrows, eyelashes, axillary and pubic hair noted. The base of the burnt area is red in colour and at many places it is covered with infected pus materials. Nil genital injuries.”

13. As per the final opinion (Ex.P2), the deceased had died due to extensive burn injuries and its complications.

14. PW14 continued with the investigation and on recording the statements of witnesses and collecting all relevant materials, laid the police report before the Judicial Magistrate, Iraniel. The copies were served on the accused under Section 207 of Cr.P.C.

15. Thereafter, the case was committed to the file of Mahila Fast Track Court, Nagercoil and was tried in S.C. No. 91 of 2016.

16. The trial court framed charges for offences under Sections 449 and 302 IPC and the accused person denied the charges.

17. The prosecution examined PW1 to PW14 and marked Exhibits P1 to P21 and also relied upon MO1 and MO2.

18. The incriminating evidence was put to the accused person while he was questioned under Section 313 Cr.P.C., and the same was denied as false.

19. The accused person did not examine any witnesses nor rely upon any documents.

20. The trial court, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to the conclusion that the prosecution had proved the case beyond reasonable doubts. Accordingly, the accused person was convicted and sentenced in the manner stated supra.

21. This Court carefully considered the submissions made on either side and the materials available on record.

22. PW1 is the aunt of the deceased, PW2 is the mother of the deceased, PW3 and PW6 are the brothers of the deceased and PW4 is the father of the deceased. None of these witnesses supported the case of the prosecution and all of them turned hostile.

23. In view of the above, the only evidence that is available for the prosecution was the dying declaration of the deceased, which was allegedly recorded by the Judicial Magistrate (PW13), in the presence of the doctor. The dying declaration was recorded by PW13 between 5:45 PM and 6:45 PM.

24. Yet another material that is available is the statement that was recorded by PW11 between 3:45 PM and 4:30 PM.

25. The statement that was recorded under Ex.P11 was the statement which is said to have been given by the deceased, who suffered 99% burn injuries. This statement contains minute details like mobile number, time, various names, etc. If this statement had been recorded by PW11 on 25.05.2013 between 3:45 PM and 4:30 PM, such evidence becomes shaky, since the investigation officer (PW12) specifically states that when he went to the hospital, he found the deceased in an unconscious state and that he was able to get her statement only on the next day. Therefore, the conscious state of the deceased is highly doubtful.

26. Insofar as the dying declaration recorded by PW13, again it has been recorded on the very same day. Here the deceased states that when she came out of the bathroom, she found the accused person near the window of the adjacent house and he is said to have splashed petrol from a bottle and set her on fire. The specific defence taken by the accused person is that it was a case of self-immolation.

27. If the accused person had splashed the combustible material on the deceased and set her on fire, it is not known as to how the deceased sustained 99% burn injuries. This means that almost the entire body of the deceased was burnt. It could not have happened if the petrol/diesel had been splashed by the accused from MO2, which is a plastic bottle. At the best, it could have been splashed on some part of the body of the deceased and if she had been set on fire, that part of the body alone would have burnt. However, it is seen that the entire body had been burnt and she had sustained 99% burn injuries. Therefore, the alternate theory that it was a case of self-immolation seems to be highly probable in view of the fact that in case of self-immolation, the petrol or diesel is poured from head to toe and therefore a person lit on fire sustains complete burn injuries.

28. Yet another curious factor to be noted is that if really the incident had taken place in the manner in which the deceased had narrated, there was no reason as to why her own father, mother, brothers, and aunt did not support the case of the prosecution.

29. The above scenario must be seen in the background of there being a prior relationship between the accused and the deceased and the love affair vehemently opposed by the family of the deceased.

30. A conviction and sentence can be sustained merely based on a dying declaration and the law on this issue is now too well settled. However, if the dying declaration by itself is not sufficient and it requires corroboration, the Court must be slow in proceeding further only based on the dying declaration. In other words, it will be unsafe to convict an accused person only on the basis of dying declaration.

31. In the light of the above discussion, this Court holds that the accused person cannot be convicted and sentenced only based on the dying declaration alleged to have given by the deceased. In the absence of any corroboration, it is highly unsafe to only rely upon the dying declaration.

32. In view of the same, this Court is inclined to interfere with the judgment passed by the trial court.

33. In the result, the judgment passed by the Mahila Fast Track Court, Nagercoil, dated 16.03.2023 in S.C.No.91 of 2016 is hereby set aside. As a consequence, the accused person is acquitted from all charges under Sections 449 and 302 of IPC and set at liberty. The bail bonds shall stand cancelled and the fine amount paid by the accused persons shall be refunded.

34. In the result, this criminal appeal stands allowed.