437 of 1992

19th August, 1993

Petitioner Counsel: Miss Shirley Mazarello with M. S, Mohite, s
Respondent Counsel: D. T. Palekar, A.P.P. .

Cases Cited:
1992 Cri LJ 972 (Cal) [Para 14]
1992 Cri LJ 616 (Delhi) [Para 13]
1992 Cri LJ 161 (Gauhati) [Para 11]
1992 Cri LJ 2919 : AIR 1992 SC 1817 [Para 15]
1990 Cri LJ 1462 : AIR 1990 SC 1379 [Para 11]
1989 Cri LJ 1485 : AIR 1989 SC 1519 [Para 15]
AIR 1988 SC 912 [Para 15]
1986 Cri LJ 836 : AIR 1985 SC 416 [Para 15]
1983 Cri LJ 221 : AIR 1983 SC 164 [Para 15]
1982 Cri LJ 986 : AIR 1982 SC 1021 [Para 15]
1981 Cri LJ 9 : AIR 1981 SC 617 [Para 15]
1981 Cri LJ 168 : 1981 SCC (Cri) 281 : AIR 1981 SC 650 [Para 15]
1979 Cri LJ 1122 : AIR 1979 SC 1505 [Para 15]
1976 Cri LJ 54 : AIR 1976 SC 2199 : 1976 Lab IC 599 [Para 15]
1976 Cri LJ 1548 : AIR 1976 SC 1994 [Para 15]
1974 Cri LJ 361 : AIR 1974 SC 332 [Para 15]

JUDGMENT

SALDANHA, J. :-This is yet one more of those gory and ghastly, cases of wife burning that has come up before the Court. We do not mean to be prejudiced but at the same time we cannot hide the fact that these incidents are so horrifying and depraved that the Court has to re-act to them with the degree of seriousness that such incidents necessarily require. The appellant is the surviving husband and the deceased Vijaya is the unfortunate wife. The appellant accused Vital Sadashiv Gaikwad is an Ex-service man, from the Army and was residing at Village Hamdabad, District Satara. He was aged approximately 36 years and there are references on record that he was earlier married and that he had three children through his previous wife. Indications are that the first wife also met with a fiery end and that even though the police registered offences against him, that the same was done at a belated stage and that consequently nothing came out of that prosecution. The present marriage with Vijaya was hardly six months old on 25-10-1990 which is the date of the incident. At about 6.00 p.m. in the evening Vijaya was heard screaming for help as her clothes were on fire and people rushed to her rescue and extinquished the flames. By that time she was extensively burnt and was therefore removed to the Satara Civil Hospital. She is alleged to have been fully conscious and to have stated to P W 2 Gyandeo, Jotiba Dhane, P W 3, Ashok Sadashiv Shinde and P W 4 Hanmanth Waman Salunke who are the persons, who came to her assistance, and ultimately removed her to the hospital, that it was her husband Vithal who had set fire to her clothes after pouring kerosene on her. She also indicated the reason which was to the effect that he had addicted to Alcohol and that he used to turn violent and beat her up on the ground that he suspected her fidelity. According to her these were the reasons for Vithal to have decided to finish her off.

2. The prosecution alleges that Vijaya was conscious when she was admitted to the Satara Civil Hospital and that PW 7 P.H.C. Vithal Kikale who was attached to the Hospital Casualty Section took down her statement which was in the form of a dying declaration and which was ultimately treated as the F.I.R. in this case which is at Exhibit 20. Arrangements were made to call the Tahsildar who is PW 5 Anant Deshpande and after his arrival, the formal dying declaration of Vijaya was taken down which is at Exhibit 24. We also have on record a third dying declaration which is at Exhibit 29 which was by the Police Officer PW 8 P. S. I. Janardan Tiwate, who was attached to the Satara Taluka Police Station and who is the investigating Officer in this case. He visited the hospital on the next morning i.e. on 26th and according to him he asked deceased Vajaya as to what exactly had transpired and he recorded her statement which has been produced before the Court. In all therefore quite apart from the oral dying declarations made to PWs 2, 3 and we have three written dying declarations in this case and the central issue canvassed before us is the question as to whether the Court ought to accept this mass of evidence either individually or cumulatively, because of certain infirmities that have been pointed out, we shall deal with that point presently.

3. The P.S.I. there after made efforts to arrest the accused who had been named as the person responsible for vijaya's condition. Vijaya died in the hospital on 26-10-1990 and the prosecution alleges that in spite of regular and persistent efforts on the part of the Police. the accused could not be traced not only in that village but in any of the five to six villages where the Police looked for him and kept a watch and that ultimately he was arrested as late as on 7-12-1990 when he was seen in Satara, This circumstance of abscontion is strongly canvassed by the prosecution against

the accused. On completion of the investigation in this case, the accused was put on trial before the learned II Additional Sessions Judge, Satara. The accused contended that he is innocent; that the Police have wrongly implicated him merely because Vijaya sustained burn injuries and she died and further that he was not even present in the village on that day and that he is scapegoat. The learned Trial Judge accepted the prosecution evidence after considering it carefully and convicted the accused under Section 302, I.P.C., and awarded him a sentence of rigorous imprisonment for life, and to pay a fine of Rs.2000/- in default rigorous imprisonment for one year. The accused has preferred this appeal through which he has assailed the correctness of the conviction and sentence awarded to him.

4. We have heard Ms. Shirley Mazarello, learned Counsel appearing on behalf of the appellant and Mr. D.T. Palekar, the learned A. P. P. who appears for the State. Counsel on behalf of the appellant has taken us through the first set of witnesses i.e. P Ws 2. 3 and 4 and pointed out that these three persons who were the witness who have arrived on the scene at the earlier point of time, relate that they heard the shouts and therefore went to the assistance of Vijaya. They were instrumental in extinguishing the flames and ultimately taking her to the Satara Civil Hospital. They do not mention any where that the accused was present either in the house or near the scene of offence. The learned Counsel, therefore, submits that this is a very important circumstance in favour of the appellant in so far as it fully supports his defence that he was not present, as otherwise these witnesses could not have missed mentioning that he was seen there. Learned Counsel contends that Vijaya admits to have raised an alarm as soon as her clothes caught fire and in these circumstances, there would not have been time for the accused to have run away unnoticed and therefore she submits this factor will have to be held completely in favour of the accused. PWs 2 and 3 in terms state that Vijaya informed them that it was the accused who set fire to her clothes and she also indicated the reasons for his doing this. Learned Counsel draws our attention to the fact that PW 4. Hanmanth Waman Salunke who had removed Vijaya to the hospital in terms states that he went there virtually behind PW 3 and that when the commotion took place he and PW 3 were seated on the Ota. PW 4 in his deposition states that Vijaya was unconscious. In the light of this admission, the learned Counsel submits that the evidence of PWs 2 and 3 with regard to the oral dying declaration to them implicating the accused will have to be totally discarded because there is a direct contradiction between PWs 2 and 3 on the one hand and PW 4 on the other with regard to the state in which Vijaya was. We find it difficult to accept this submission because we have very carefully examined the evidence of these three witnesses. The credibility of PWs 2 and 3 is hardly in doubt and we do not see any reason why they should falsely implicate the accused on a serious charge of this type because they are neither the relations nor friends of the deceased nor has it been shown that they were hostile to the accused. It is true that PW 2 has admitted that there was some land transaction between him and the accused involving some monetary dealings and that therefore he was not on talking terms with him but this to our mind is not a sufficient ground on which PW 2 would go to the extent of falsely implicating the accused on a murder charge. He had only relayed what came to him from the mouth deceased Vijaya. As far as PW 4 is concerned, it is necessary for us to take note of the fact that he was the last person to come there in point of time and that even if he states that deceased Vijaya was conscious when he got there, he is in no position to depose as to what her condition was when PWs 2 and 3 reached the spot. Even as regards his version that Vijaya was unconscious find it a little difficult to accept this evidence because on admission to the hospital, the case papers clearly indicate that Vijaya was conscious. She was not only conscious but the Doctors have made a note of the fact that all her faculties were functioning quite normally. Under these circumstances, in our considered view, the findings of the learned Trial Judge

to the effect that at the earliest point of time Vijaya did make oral dying declarations to PWs 2 and 3 and that she had mentioned the accused as the person who set fire to her are perfectly in order and do not deserve to be interfered with.

5. We, thereafter come to the more important mass of evidence namely the dying declaration recorded by PW 7 Police Head Constable Vithal Janardhan Kikale immediately after the admission of Vijaya to the Satara Civil Hospital. This dying declaration which is also the FIR in the present case in terms implicate the accused and it also sets out the history and the conduct of the accused who was given to alcoholism and who was also mis-behaving with deceased Vijaya; that this trouble started hardly two or three days after her marriage; that he used to beat her up and that he was suspect of her fidelity. The statement is a relatively long one and our initial reaction to it was with some degree of caution because of the fact that the record appears to suggest that Vijaya had suffered 100 degree burns. Whether with this amount of burning she could have been in a position to make a detailed statement of that type was the crucial issue and the learned Counsel appearing on behalf of the accused submitted that the narration given in the dying declaration is no different to the usual story set out by the police in all cases of burning whereby they attribute the acts to the husband and indiscriminately implicate him. As far as this dying declaration is concerned, we need to take cognizance of the fact that it is recorded by the Police Head Constable attached to the casualty ward of the Satara Civil Hospital. The accused does not even belong to that town and it was after admission of Vijaya to the Hospital, having regard to the fact that she had suffered extensive burn injuries, that the Head Constable took down her statement. This was obviously because having regard to the extensiveness of the burns, there was no knowing as to how long her condition would continue to be stable. We have carefully scrutinised the evidence of the only doctor who has been examined in this case who is PW 6 Dr. Pralhad Vishnu Pawar who states that he was the Casualty Medical Officer when Vijaya was brought to the hospital, that the initial entries are in his hand-writing and that the case papers clearly indicate that Vijaya was fully conscious and that her faculties were functioning. We have also noticed that even though the extent of burns is 100 percent, that except for a very few areas, the medical papers indicate that the burns were generally, superficial. This fully explains two things, the first of them being that Vijaya was therefore fully conscious and secondly that even the doctors did not attach the degree of gravity and seriousness to her case when she was admitted to the hospital as is evident not only from their re-action but from the case papers also. It is under these special circumstances that we have really no reason to doubt the veracity of the dying declaration that the Head Constable had recorded on Vijaya's admission to the Hospital.

6. The Head Constable thereafter sent for the Naib Tahsildar, PW 5 Anant Venkatgesh Deshpande who came to the hospital at about 9.30 p.m. and recorded Vijaya's dying declaration. We nee?d to mention that this second statement was approximately one hour after the first one. PW 5 is quite categorical about the fact that the patient was fully conscious, that her faculties were functioning and that she answered the questions put by him to the her and furthermore that he has taken down whatever she told him correctly. According to him, he handed ov the copy of the dying declaration to the Police and kept the original in a sealed envelope and produced the document intact in court at the time of the trial. The learned Counsel appearing on behalf of the appellant has criticised the validity of this dying declaration, firstly on the ground that a person with 100 per cent burn injuries could not have been in a position to give a statement of this type. Secondly, she points out that the incident had taken place at about 6.00 p.m. and that the condition of Vijaya must have steadily deteriorated. Thirdly her most important ground of criticism is that the dying declaration does not contain the one most important ingredient namely a certificate

from the Doctor to the effect that the patient was in a fit condition to make the dying declaration. She submits that all the rest of the evidence is totally useless in the absence of this most important requirement. The declaration in question only contains an endorsement to the effect that the patient was conscious. The learned Counsel submits that the patient being conscious is hardly sufficient for a court to accept and hold that the dying declaration was in fact representative of that the patient in fact communicated to the person who recorded the same. Again it is pointed out that it is not in question and answer form and therefore is not in the exact words of the deceased. We shall deal with the basic law relevant to dying declarations which has now become well crystallised a little later as regards the factual aspect we do need to note that in so far as the Doctor has certified that the patient was conscious and PW 5 in terms in his deposition certifies that she was in a position to understand the questions put to her and to cogently answer them, that the cumulative effect would be sufficient to render the dying declaration acceptable. It is true as pointed out by learned Counsel, that the correct and ideal situation would require a proper certificate from the doctor and an endorsement that the patient is not only conscious but is in a fit condition to record the dying declaration, the latter being far more important than the former. In the absence of that certificate a Court could always fall back off other parts of the record for the purpose of satisfying itself. In the present case the record is satisfactory but we do concede that in the absence of such a certificate in other cases a dying declaration may be rendered heavily suspect.

7. We thereafter come to the third dying declaration which is the one recorded on the next morning that is on 26th October, 1990 by P.S. I. Tiwate when he visited the hospital. This dying declaration again follows the same pattern as the earlier two and implicates the accused as the person who set fire to the deceased. The reasons given for his doing so are also the same as the ones contained in the earlier two. The learned Counsel for the defence has submitted that this statement is an even weaker piece of evidence but it was recorded on the day when Vijaya ultimately died and that the case papers themselves indicate that her condition was worsening. It is therefore submitted that Vijaya was virtually on the verge of breathing her last and that everything that the P.S.I. has taken down is absolutely worthless in so far as he has only reproduced what is stated in the documents that were prepared on the previous night. Also this dying declaration does not contain any endorsement from the medical officers. It would be rather difficult for us to accept the theory of fabrication that is alleged against the investigating officer for the simple reason that there was already on record the F.I.R. as laos the dying declaration that had been recorded by the Naib Tahsildar on the previous night and in our considered view, there was no special necessity or for that matter any reason for the P.S.I. to prepare one more document and that too for him to take the trouble of fabricating the document in the light of the earlier existing ones. The P.S.I. who had commenced the investigation was at that stage in the process of booking the offence registered under Section 307, I.P.C. and in that context he had taken down the statement of Vijaya because there were no indications at that point of time that she was likely to die. In view of the fact that Vijaya did not survive, this statement assumes the complexion of a dying declaration. Be that as it may, the P.S.I. has been cross-examined wherein his evidence has remained unshaken and in the over all circumstances of the present case, we are not prepared to accept the charge that this is an instance of fabrication.

8. The principle plank of criticism canvassed by the learned Counsel on behalf of the appellant as far as these three dying declarations are concerned is that there is an inherent contradiction with regard to the role attributed to the appellant. Whereas in the first of them namely Exhibit 20, there is no reference to the accused having tried to extinguish the fire, we do find that in the second and third dyig

declarations there is a specific statement that he along with other persons tired to extinguish the flames. A two-fold argument is canvassed on this basis, the first of them being that if the accused was in fact present when the fire took place that his conduct very clearly indicates that he has innocent and that he made an effort to put out the fire along with the othere persons. If at all he left the place after that it was clearly because according to his learned Counsel there were indications that the Police would get after him as normally happens in these cases and therefore in order to save himself he went into hiding. The second submission canvassed is that this is a very material departure on the part of Vijaya with regard to the role attributed to the accused and consequently, it would affect the very credibility and veracity of the dying declarations in question. The learned Counsel hasubmitted that it is a well settled principle of law that where there are serious infirmities and particularly contradictions between the versions set out, in a case of multiple dying declarations, that the Court will be left with no option except to reject the whole lot of them.

9. As far as this argument is concerned, we need to observe that Vijaya did in fact set out exactly, the same version to PWs 2 and 3 at the earliest point of time. Thereafter even if she has stated that the accused was among the persons who tried to extinguish the flames we would put it down into two factors; one is the possibility that the accused was in fact still around there and that he left the place while the attention of everybody was focussed on Vijaya in which case the non-mentioning of his having tried to extinguish the flames in the first dying declaration is fully explained. Secondly, we also need to take note of the fact that Vijaya had sustained extensive burns and and under these circumstances having regard to the fact that she is a simple village woman that the possibility of something having her mind or for that matter of her having made some small mistakes or errors cannot be ruled out. What is really crucial in assessing the evidence is the real question as to whether the infirmity or the contradiction that is alleged is of a material nature whether it is so crucial that it goes to the very root of the matter and whether it is fundamental enough to require rejection of the entire set of dying declarations merely because of the inconsistencies that may be alleged. In the present case we are essentially concerned with only one aspect of the matter namely as to whether it was the accused who set the deceased on fire. What happened thereafter is a secondary issue and in so far as there is 100 per cent consistency with regard to Vijaya's version in both the recorded and oral dying declarations with regard to the main ingredients of the case, we do not consider that this infirmity is one that can vitiate or destroy the credibility of the three dying declarations.

10. There is another head of challenge and one which the learned counsel did press with a degree of seriousness name the fact that some confusion has arisen with regard to the role played by the defence doctors on that night. PW 7 Police Head Contable Vithal Kikale, has in terms referred to one Doctor Lawande who admittedly has not been examined and he states that it was Dr. Lawande who certified the dying declaration. On the other hand the prosecution has examined PW 6 Dr. Pawar, who is quite categorical about the fact that the dying declaration Exh. 20 was certified by his colleague Dr. Gaikwad. The contention is that on a material issue of this type, where Dr. Gaikwad is not examined and where the head constable states that it was certified by Dr. Lawande, the evidence of Dr. Pawar would not be of any avail to the prosecution. We do not consider this infirmity to be one of that degree of seriousness because admittedly there were at least three or four doctors in attendance in the hospital on that night. Dr. Pawar is quite categorical about the fact that the endorsement was made by Dr. Gaikward and under these circumstances, PW 7 is obviously making a mistake with regard to the name of the doctor. The oral evidence on this point is secondary to that of what appears in writing in the documents and as long as that

endorsement has been properly proved and explained, we do not consider this head criticism to be of that degree of seriousness as to vitiate the dying declaration in question. It is true that the prosecution ought to have, as far as possible, examined the very doctors who have made the endorsements on the dying declarations because PW 6 Dr. Pawar does in fact recognise his own signature on the other dying declaration Exh. 24. We make this observation because the condition of the patient is not adequately represented in the endorsements on the dying declarations in this case and even if it is, having regard to the fact that the deceased is not available, it is virtually a sacred duty on the part of the prosecution to examine the person who recorded the dying declaration and the one who certified the deceased, for cross-examination unless there are valid reasons such as genuine non-availability. Regardless of this fact, however, in our considered view the infirmities that have been canvassed on behalf of the appellant would not be good enough to pursuade us to reject the dying declarations in question. The learned Trial Judge has based the conviction essentially on this material and we do not really see any fault whatsoever in what has been done by him.

11. Coming to the law on the point, the learned. Counsel appearing on behalf of the appellant has drawn our attention in the first instance to the decision in the case of Bilaluddin v. The State of Assam, reported in 1992 Cri LJ 161. This was a decision of the Gauhati High Court and the Court upheld the contention that the prosecution not having examined the witnesses who were on the scene at the earlier point of time for the purposes of indicating what exactly had transpired, the condition of the deceased and more particularly the statement made by the deceased, was a serious infirmity and on the facts of that case, set aside the conviction. The facts, however, are clearly distinguishable because in the present case we have on record the evidence of PWs 2 and 3 who did in fact reach the scene at the earliest point of time. That decision is therefore of no avail to the appellant. The learned Counsel thereafter drew our attention to the decision of the Supreme Court in the case of State of Gujarat v. V. Mohanabhai Raghubhai Patel reported in AIR 1990 SC 1379 : (1990 Cri LJ 1462). This was a case where the High Court had set aside the conviction principally on the ground that the conduct of the accused who had admittedly tried to smother the flames by putting a matress over the deceased and pressing it down until the fire is extinguished, was a circumstance in his favour and one which indicated it was most unlikely that he was responsible for having set the deceased on fire.

12. The learned counsel submits that the references in the dying declarations of Vijaya to the fact that the accused was present and that he attempted to extinguish the flames is a factor in his favour and that consequently, the present case is completely covered by the decision of the Supreme Court referred to supra. We have gone through the facts of that case and we find that they were entirely different. The conduct attributed to the accused in that case bears no similarity to what the accused is alleged to have done in the present incident. We have also found that there is no consistency with regard to the version that the accused had in fact tried to extinguish the flames and on a scrutiny of the evidence in this case, we are clearly of the view that the accused made good his escape immediately after setting Vijaya on fire knowing fully well that when she raised an alarm the neighbours, relations and other villagers would rush to the spot. Further more we have scrutinised as to whether there was any evidence of burn injuries on the accused and we find that this was not so. Under these circumstances the decision in question would not be of any assistance to the appellant in the present case.

13. On the question of certification of the state of mind of the deceased, the learned counsel appearing on behalf of the appellant has drawn our attention to a decision reported in 1992 Cri L.J 616, in the case of

Surinder Kumar v. State, in which case the Delhi High Court rejected the dying declaration principally because the Executive Magistrate had not made any attempt to contact the doctor to find out the condition of the patient nor was the declaration in question and answer form or in the words and language of the deceased and because of the fact that the patient was in the midst of the near relatives. We have perused the facts of the case before Delhi High Court and we find that the Court rejected the dying declaration principally because it did not inspire confidence. The Court took serious note of the fact that the deceased had been for quite some time in the company of her relatives and that there was every possibility of tutoring. That is not the case as far as this prosecution is concerned because it has come on record that none of the relatives of the deceased vijaya were anywhere around when the dying declaration was recorded.

14. The learned counsel has thereafter relied on a Division Bench decision of the Calcutta High Court in the case of Smt. Ira Ghosh v. The State, reported in 1992 Cri LJ 972. In this case, the accused-husband was acquitted by the High Court because it was found that he had received burn injuries while trying to save the wife, that there was no evidence against him but on the contrary there were strong circumstances indicating his innocence, The learned counsel seeks to draw a parallel between the present case and the one referred to supra, but we do not see any. In that case it is true that the conduct of the accused in sustaining injuries while making a desperate attempt to save the wife apart from nothing else being alleged against him, was a factor which the court took into consideration. We have before us overwhelming and conclusive evidence that implicates the accused quite apart from the very circumstance of his having absconded for almost two months which we shall deal with and we therefore do not see any similarity between that decision and the present one.

15. Mr. D. T. Palekar, the learned A.P.P. has drawn our attention to a decision of the Supreme Court, reported in AIR 1992 SC 1817 : (1992 Cri LJ 2919) in the case of Paniben v. State of Gujarat. In view of the importance of the principles governing the situation in which the Court may act on a dying declaration, we consider it useful to cull them out and to reproduce them briefly in this judgment which will be of assistance in this and other cases. They are :

(i) It is neither a rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration (Mannu Raja v. State of M.P., (1976) 2 SCR 764 : AIR 1976 SC 2199 : (1976 Cri LJ 54);

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416 : (1986 Cri LJ 836); Ramavati Devi v. State of Bihar, AIR 1983 SC 164 : (1983 Cri LJ 221);

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assistants and was in a fit state to make the declaration (Rama Chandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 : (1976 Cri L J 1548);

( iv) Where a dying declaration is suspicious it should not be acted upon without corroborative evidence (Rasheed Beg v. State of Madhya Pradesh, (1974) 4 SCC 264 ; AIR 1974 SC 332 : (1974 Cri LJ 1548);

(v) Where the deceased was unconscious and could never make any deying declaration the evidence with regard to it is to be rejected (Kake Singh v. State of M.P., AIR 1982 SC 1021 : (1982 Cri LJ 986);

(vi) A dying declaration which suffers from infirmity cannot form the basis of a conviction (Ram Manorath v. State of U.P., 1981 SCC (Crl) 281 : (1981 Cri LJ 168);

(vii) Merely because a dying declaration

does not contain the details as to the occurrence, it is not to be rejected (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617 : (1981 Cri LJ .9));

(viii) Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 : (1979 Cri LJ 1122));

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail (Nanahau Ram v. State, AIR 1988 SC 912);

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. v. Madan Mohan, AIR 1989 SC 1519 : (1989 Cri LJ 1485)).

16. In Paniben's case the Supreme Court had occasion to consider the law with regard to dying declarations threadbare. The Supreme Court however did not have occasion to consider one more aspect that needs to be taken very serious note of particularly in cases of the present type. Where there is a background of unhappiness, marital discord, violence, accusations against fidelity and the like and where it is highly suggestive of the fact that the deceased wife has been the victim of harassment torture, and character assassination over a period of time and consequently can never be favourably disposed towards the husband the Court would have to put itself on guard. In such cases the principle "nemo moriturus proesumitur mentiri" the principle which governs the credibility that is attributed to dying declarations, namely that a dying person would not normally tell a lie, does require serious examination. Having regard to the mental disposition of the victim one cannot rule out the possibility on the part of some persons to implicate, purely out of a sense of vendetta, the husband who has been responsible for prolonged and protracted ill-treatment. Cases are quite common where the wife is virtually pushed to a position of utter desperation and which results in an attempted suicide and at a later point of time when questions are put one cannot completely eliminate the possibility of false implication, if the background has been extremely hostile, and the victim feels guilty of having attempted the suicide. That aspect therefore does require serious examination. Conversely, it would certainly appear correct that if, over a period of time, statements made to different persons both oral and in writing consistently set out the same version and if that version does find support from the evidence of other witnesses also, then a Court could safely act on what is contained in the dying declarations, as in the present case.

17. Having examined the position in law very carefully and having applied the well settled principles that have emerged through various decisions to the material that is before us, we have no hesitation whatsoever in holding that the prosecution has established the charge of murder. The findings of the learned trial Judge therefore do not require any interference with. The conviction of the appellant for the offence under S. 302 of the I.P.C. stands confirmed, and so does the sentence awarded to him by the trial Court.

The appeal accordingly fails and stands dismissed.

Appeal Dismissed