How to Prove Element of Cruelty as Projected under Section 498A IPC

Indian Penal Code, 1860 - Ss. 498A & 302 - Only if the element of cruelty as projected under Section 498A IPC is proved, the conviction against the accused will lie. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.M. SHAFFIQUE & ANNIE JOHN, JJ.

Crl. Appeal No. 534 of 2013

Dated this the 20th day of February, 2018

APPELLANT(S)

APPUKUTTAN, S/O.RAMAN, C.NO.994 CENTRAL PRISON, KANNUR. S/O.RAMAN, POOPPARAMBU, ERUVASSY. 

BY ADV.ADV. SMT. BINDU SREEKUMAR (STATE BRIEF) 

RESPONDENT(S)

STATE OF KERALA ADV. SMT. AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR 

J U D G M E N T

Annie John, J.

This appeal is filed under Section 374 (2) Cr.P.C through the Superintendent, Central Prison, Kannur challenging the judgment of conviction and sentence passed by the Sessions Court, Thalassery. 

2. The appellant herein was the sole accused in Crime No. 101 of 2008 of Peringome Police Station for the offences punishable under Sections 498A and 302 IPC. The allegation of the prosecution was that the appellant used to torture his wife Chithra @ Bindu, physically and mentally, suspecting her chastity. On 26.03.2008, at 1 p.m., the appellant, with an intention to commit murder of his wife, poured kerosene, set fire on her clothes and she has sustained serious burn injuries. While undergoing treatment at Pariyaram Medical College, she died on 30.03.2008 at 8.45 p.m., and thereby the appellant is alleged to have committed the aforesaid offences. 

3. During the course of trial, the prosecution has examined PWs 1 to 23 and marked Exts.P1 to P21 and MOs 1 to 7. On the side of defence, no evidence was adduced and it is denied to have committed such offences. The case was registered originally under Sections 498A and 307 IPC on the basis of the FI statement lodged by the deceased herself. After the death of victim, Section 307 IPC was deleted and Section 302 IPC was incorporated. 

4. The learned counsel for the appellant has argued that after evaluating the the entire evidence, the lower court has erroneously convicted the accused relying on the FI statement given by the wife of the appellant and the finding entered by the lower court that the appellant is guilty of the offence punishable under Section 498A is not sustainable. It is also argued that no independent evidence was adduced on the side of the prosecution and the lower court ought to have considered the fact that there was no evidence against the appellant that he has tortured his wife demanding dowry or for any other reasons to attract Section 498A IPC. The lower court ought not to have relied on the statement given by the deceased under Section 164 Cr.P.C. Hence, the appellant filed this appeal challenging the conviction and sentence passed by the Additional Sessions Judge, Adhoc-III, Thalassery in S.C. No. 560 of 2008. 

5. This is a case which was originated on the basis of the FI statement given by the deceased Chithra @ Bindu, who was the wife of the appellant herein. The appellant and Chithra got married at Thimiri Siva Temple on 15.11.2003 and this fact has not been denied at the time of argument. So, it is proved that the appellant as well as the deceased Chithra got married legally and they were living together as husband and wife till her death. The prosecution alleged that the appellant's wife has been undergoing torture, physically as well as mentally, as he has suspected her chastity when they were residing in rented houses in various places. On 26.03.2008, at 1 p.m., while Chithra was doing household works at the kitchen of the quarters bearing door No.3/437 of Vayakkara Panchayath, the appellant, with an intention to commit murder, poured kerosene on her clothes and set fire and accordingly she sustained burn injuries upto 80% and she was admitted at Pariyaram Medical College Hospital, Kannur. While undergoing treatment, she succumbed to injuries on 30.03.2008 at 8.45 p.m. She has given FI statement, and on that basis the crime was registered under Sections 498A and 307 IPC. 

6. Now the prosecution has alleged that the appellant, with an intention to commit murder, poured kerosene on the body of the victim, who is none other than the wife of him, and lit fire. Accordingly she sustained 80% burn injuries and while she was in hospital, she succumbed to injuries. Hence the section was altered and Section 302 of IPC was incorporated. The prosecution has mostly relied on Ext.P8 dying declaration as well as the evidence of PWs1 to 5 and PW16. 

7. The learned counsel for the appellant has contended that the lower court has relied on the dying declaration and convicted the accused. She has further contended that the victim at the time when the dying declaration was taken was not conscious and no thumb impression or signature was taken. But the Magistrate, who was examined as PW16, has emphasised and testified that it was not possible to take the thumb impression of the victim since her hands were having burn injuries. Now the only thing to be considered is whether Ext.P8 dying declaration is corroborated by any other independent witnesses in this case. 

8. PW1 has given evidence to the effect that while he was attending the birthday function of grand child of his employer(çÎØñßøß), he received a phone call that his sister was admitted at Pariyaram Medical College Hospital due to burn injuries. Immediately he rushed to the hospital and found that her whole body was having burn injuries. She was talking at that time and when he enquired, she told that the appellant poured kerosene and set fire to her. According to him, they were having wordy dispute between them. They were residing in Thattummal in a rented house and the appellant was working in a granite quarry and when his work stopped during rainy season, they shifted their residence to Kudiyanmala and thereafter they shifted to Nedumchalil. At that time, she was pregnant and after her delivery, they shifted to a house on rent at Peringome and thereafter, they went to the quarry shed in Thattummal and at last they shifted to Vayakkara on 25.03.2008. He has deposed that Chithra was manhandled by the appellant and she was treated at Government Hospital, Payyannur due to bleeding from mouth. He has further deposed that the appellant has poured kerosene on her and set fire. According to him, the statement was recorded by the police as well as the Magistrate. From the deposition of PW1, there is no evidence to the effect that the victim was harassed and manhandled, physically and mentally, in connection with demand of dowry etc. 

9. During cross examination, he has deposed that when he met the deceased and her family 3 days before the occurrence, there were no problems between them. He has further deposed that the appellant was reluctant to take the deceased to the hospital. He asserted and testified before the trial court that the deceased Chithra has repeatedly told him that it was the appellant who caused burn injuries to her. 

10. PW2, who is the sister of PW1 and the victim, supported the version of PW1 and the prosecution. She has also deposed that the appellant manhandled the victim; but she has no case that she was manhandled for getting dowry, property or any valuables. Her deposition is to the effect that the appellant always have a doubt upon the chastity of the victim. She has further deposed to the effect that the appellant had poured kerosene and set fire by stating that she would not have lived longer as she used to talk to others. 

11. PW3, who is the cousin of the deceased Chithra, deposed that the appellant frequently used to pick up quarrel with Chithra and whenever Chithra talks to others, the appellant had a doubt on her and Chithra suffered burn injuries on 26.03.2008 and she was taken to the Pariyaram Medical College Hospital for treatment and that while he visited her in the hospital, she told him that the appellant poured kerosene on her body and set fire. Over and above, he has testified that Chithra had told him that it was due to the doubt of the appellant that he has done the same. 

12. As per the evidence of PWs 1 to 3, it has turned out that the appellant had always a doubt in the chastity of Chithra and due to that reason the appellant, with an intention to kill her, poured kersosene on her body and set fire. The evidence of PWs1 to 3 is in corroboration with Ext.P8 dying declaration given by Chithra while she was in the hospital for treatment. 

13. PW4 is the mother in law of the owner of the quarters where the appellant and Chithra were residing lastly. According to her, she has rented out the building to them on 25.03.2008 for Rs.800/- per month. On the very next day, at about 1 p.m., she heard the cry of Chithra and found her in flames and one neighbour named Bindhu was pouring water over the body of Chithra. When she asked Chithra who has done this, she pointed towards the appellant who was standing in the kitchen. PW4 immediately called the neighbours and they attempted to put off the fire by pouring water. They talked with Chithra and she has disclosed that the appellant had poured kerosene and set fire on her. She further deposed that she was conscious and was taken to the hospital immediately. The appellant also accompanied her in the jeep. 

14. PW5, another neighbour of the deceased Chithra and the appellant, has also given evidence in support of the prosecution. He has deposed that on hearing the cry, he ran towards the residence of Chithra and found Chithra with fire all over the body and the dress was found pasted to the body with fire. She told him that the appellant has set fire to her and she was crying by saying that the appellant tried to kill her by pouring kerosene and lighting fire. He identified MO1 jerry can kept at the back side of the quarters of the deceased Chithra and MO2 series of burnt pieces of clothes found at the place of occurrence. He has also deposed that the appellant was not willing to take Chithra to the hospital. He has also testified that Chithra has twice told him that the appellant has set fire to her. According to him, the jerry can was kept inside the kitchen and Chithra was found standing outside the kitchen. At that time, the appellant was there and he was found with minor burn injuries on the hands of the accused. But there is no explanation on the part of the defence how the appellant has sustained the said minor burn injuries. 

15. PW6, who is the CI of Payyannur Police Station, visited the place of occurrence and seized MO1 kerosene can and MO2 series of burnt pieces of clothes. He prepared Ext.P1 scene Mahazar. 

16. PW22, who is the doctor working in the PMCH, has given evidence to the effect that Dr. Muhammed Noushad, who worked as Casualty Medical Officer, prepared the wound certificate of the appellant as well as the deceased Chithra. He identified Ext.P17 wound certificate of the accused, which shows that he has sustained 9% superficial burns. Ext.P21 wound certificate of deceased Chithra reveals that she had sustained 80% of the superficial and deep burns. 

17. PW16, who was the Judicial First Class Magistrate, Payyannur during the period of occurrence, has taken down the dying declaration of the deceased Chithra. According to her, on 26.03.2008 at 9.40 p.m., she went to the hospital as per the requisition of the Sub Inspector of Police, Peringome and visited Chithra who was under treatment at Medical College Hospital, Pariyaram. Before recording the statement, she ascertained the mental and physical capacity of the injured and satisfied herself that the victim was mentally sound and in the presence of the duty Medical Officer, she recorded the statement. She has recorded Ext.P18 dying declaration. According to her, the victim was not able to affix the signature as she has burnt injuries on her body, except face, head, back and lower part of the legs. She has also testified that the victim had given statement that her husband Appukuttan poured kerosene and set fire and he was reluctant to take her to the hospital. 

18. PW12, who was the Professor of Forensic Medicine in Pariyaram Medical College Hospital on 31.03.2008, as per the requisition of Special Tahsildar, Payyannur, conducted the postmortem examination on the body of Chithra involved in Crime No. 101 of 2008 of Peringome Police Station and issued Ext.P4 postmortem certificate to the effect that the deceased had infected burns involving upper limbs, lower limbs, front of chest, abdomen and head, except scalp. He has opined that the deceased died of infected burns. 

19. PW20, who is the Circle Inspector of Police, Payyannur, gave evidence that he received FIR on 27.03.2008. He visited the place of occurrence, prepared Ext.P1 scene mahazar and took the photographs of the place of occurrence. He questioned the witnesses and arrested the appellant on the same day at 2.15 p.m. He has also deposed to the effect that the accused also sustained burn injuries at the place of occurrence. But the victim did not give statement that the appellant sustained burn injury. 

20. Now the question is whether the conviction and sentence entered under Section 498A IPC is proper or not. The main aspect to be considered is whether the cruelty as alleged by the prosecution will come under the purview of Section 498A of IPC. It is important to note that the cruelties alleged will not be sufficient enough to attract Section 498A of IPC. Only if the element of cruelty as projected under Section 498A IPC is proved, the conviction against the appellant will lie. 

21. The learned Public Prosecutor has argued that the appellant with an intention to end the life of Chithra set fire after pouring kerosene on her body and he had an intention to commit murder of the deceased Chithra and accordingly he had done it. The reason behind such act was that he has doubted the chastity of the deceased Chithra. According to the prosecution, there was an age difference of 14 years between the appellant and the victim and the appellant has suspected the chastity of the deceased Chithra and accordingly he manhandled her and treated her with cruelty. 

22. When the case was taken up for hearing, the learned counsel for the appellant vehemently argued that the lower court has not considered and evaluated the evidence regarding the issue which ended in the conviction under Section 498A IPC. According to her, Section 498A is not attracted in this case. No witnesses were cited to establish the ingredients as contemplated under Section 498A IPC. Section 498A IPC reads as under: 

498A: Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 

Explanation.-For the purpose of this Section, “cruelty” meansa) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 

23. Therefore, in order to attract Section 498A IPC, there must be a cruelty, mental as well as physical, so as to cause grave injury or danger to life, limb or health and there must be harassment with a view to coerce her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. So, only if the ingredients as contemplated under Section 498A is attracted, the question of conviction will arise. 

24. Section 498A IPC, which was inserted by the Criminal Law (Second Amendment) Act, 1983, came into force on December 25, 1983 and is prospective in operation. A perusal of Section 498A leaves no manner of doubt that the Legislature intended the operation of this provision to be prospective in nature and not retrospective. In this case, the dying declaration of the victim is available and there was no evidence in the nature as revealed from the dying declaration that she was incessantly ill-treated mentally, physically for a long period before her death. It is true that some of her relatives, sister and brother, had deposed that she used to tell them regarding the ill-treatment, physical and mental harassment on the part of the appellant. As we have stated above, all cruelties will not attract Section 498A IPC. 

25. In the instant case, the deceased had not made any complaint against the appellant prior to her death regarding the illtreatment and manhandling, before any of the authorities. It is turned out that she was the second wife of the accused. The first wife of the appellant is no more. Hardly she lived for three years along with the appellant. If she had suffered manhandling, either physically or mentally, definitely she would have given a proper complaint before the concerned authorities. Even when she was in hospital, after sustaining the burn injuries, she had not spoken against the appellant that she had subjected to cruelty on the part of the appellant. Only when she was on the bed after sustaining 80% burn injury, she has given statement before the police as well as the Magistrate and to the neighbours that the appellant has poured kerosene over her body and set fire and accordingly, she sustained 80% burn injuries. She has also deposed that the intention of the appellant was to kill her by setting fire on her. In order to attract Section 498A of IPC, there must be an evidence to prove that the deceased was subjected to mental as well as physical cruelties by demanding dowry. 

26. The learned Sessions Judge relied on the evidences of PWs 2 and 3 and convicted the appellant by invoking Section 498A IPC. In fact, there is no evidence on the side of the independent witness that she was subjected to cruelty in relation to the demand of dowry or any property or valuable security. In the absence of such an evidence, I find that the finding entered by the Sessions Judge is not proper and in fact he has not understood the gist and crux of Section 498A of IPC. Section 498A IPC can be invoked only when the first and second limb of Section 498A is proved. 

27. The cruelty within the meaning of Section 498A IPC has been explained in the Explanation II of Section 498A of IPC. It consists of two clauses namely Clauses (a) and (b). To attract Section 498A IPC, it must be established that the cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide, or the harassment was to compel her to fulfil illegal demand for dowry. So it is very clear that every type of harassment or cruelty would not attract Section 498A IPC. The mental cruelty is broadly explained in S. Hanumantha Rao v. S. Ramani [AIR 1999 SC 1318], wherein it is held as follows: 

“mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it serves the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to live with the other party. In other words, the party who has committed wrong is not expected to live with the other party.” 

28. In Smt. Raj Rani v. State (Delhi Administration) [AIR 2000 SC 3559, it is held that while considering the case of cruelty in the context to the provisions of Section 498A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt. 

29. In Girdhar Shankar Tawade v. State of Maharashtra [AIR 2002 SC 2078], it is held that cruelty has to be understood having a specific statutory meaning provided in Section 498A IPC and there should be a case of continuous state of affairs of torture by one to another. 

30. In Manju Ram Kalita v. State of Assam [(2009) 13 SCC 336, it is held in paragraph 22 thus: 

“Cruelty” for the purpose of Section 498A IPC is to be established in the context of S. 498-A IPC as it may be a different from other statutory provisions. It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging of the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.” 

31. So, on going through the evidence adduced by the prosecution, it does not appear that the victim was subjected to cruelty and mental harassment and the conduct of the appellant is such a nature as is likely to do such an act or the harassment of the accused was with an intention to coerce her or any person related to her to meet any unlawful demand for any property or valuable security. The trial court has misconceived the gist of the Section and without considering or discussing the evidence, blindly arrived at a point that the appellant is guilty under Section 498A of IPC. It was evidenced from the testimony of PWs 1to 3 that there was harassment on the part of the appellant; but it was due to his doubt regarding the chastity of the victim. The cruelty as defined under Section 498A IPC has two limbs i.e., Explanations (a) and (b). In the absence of any additional evidence established by the prosecution, it is difficult to come to the point that the accused is guilty under Section 498A IPC. The learned trial Judge has failed to consider all these facts and ultimately convicted him by invoking Section 498A IPC. Here in this case, the prosecution has adduced evidence to the effect that the appellant himself has poured kerosene on the body of the victim and set fire and thereby she succumbed to injury. 

32. Section 32 of the Evidence Act deals with the dying declaration. When a statement is given by a person who has subsequently dead will be considered as a substantive evidence. In Ramesh and others v. State of Haryana (2017) 1 SCC 529 it is held that dying declaration is relevant only if it relates to the cause of death and if it relates to an offence relating to the death. However, dying declaration cannot be used to convict an accused under Section 498A of IPC. The decision in Kantilal Martaji Pandor v. State of Gujarat & another [(2013) 8 SCC 781], describes the inadmissibility of evidence under Section 32(1) to prove an offence under Section 498A IPC. It is held that in order to make the statement of a dead person admissible in law (written or verbal), the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in death, in cases in which the cause of death comes into question. Hence evidence under Section 32(1) cannot be admitted to prove an offence under Section 498A IPC. So, in order to establish the ingredients under Section 498A IPC, the cruelty has to be proved by giving the leading evidence other than the dying declaration. In this case, immediately after the incident, the victim has given an oral declaration to the immediate neighbours and the owner of the building. All the witnesses cited by the prosecution have supported to the effect that the deceased has told them that she was being set on fire by her husband, who is the accused/appellant herein. During cross examination also, they deposed that immediately after the incident, the matter was revealed by the victim and she has pointed out that the accused/appellant who was there at the time of incident has stated that he is the sole person behind it. 

33. The question is whether the victim had been ill-treated by the accused/appellant. The defence has no case that the victim had committed suicide by pouring kerosene herself on her body and set fire. PW1, who is none other than the brother of the victim, had stated that she used to say about the ill-treatment of her husband, the appellant herein; but she has never stated anything about the manhandling for procuring any dowry or any property from the residence of the victim. Even on going through the evidence of PW1, there is not even a whisper that the accused/appellant had ill-treated his wife, the victim, or was harassing her or treating her within the meaning of Section 498A IPC. On going through discussion of evidence adduced by the prosecution, nothing was brought out to prove the ingredients as contemplated under Section 498A IPC. There is no evidence to prove that the cruelty or the mental torture on the part of the appellant was of the magnitude that it has been practised continuously. 

34. Therefore, we are of the considered opinion that the trial court wholly misunderstood the ingredients as contemplated under Section 498A IPC and convicted the accused/appellant. Indeed, no cruelty is established by adducing independent evidence by the prosecution and under the circumstances stated above, we are constrained to interfere with the conviction entered and the sentence imposed under Section 498A IPC and accordingly the same is set aside. 

35. The next question to be considered is whether the conviction and sentence imposed under Section 302 IPC is proper or not. 

36. In this case, conviction was based on the dying declaration as well as the evidence of the independent witnesses. PW16, the learned Judicial First Class Magistrate, Payyannur had recorded the dying declaration of the victim and has deposed that on 26.03.2008, while she was working as Judicial First Class Magistrate, Payyannur has visited the MCH, Pariyaram at 9.40 p.m. and recorded the statement of the victim named Chithra, W/o. Appukuttan involved in Crime No. 101 of 2008 of Peringome Police Station. She has further stated that before recording the statement, she had ascertained the mental and physical capacity of the injured. After satisfying that the injured was mentally and physically capable of giving the statement and after getting the same certified by the duty Medical Officer, who was attending the patient, she had recorded her statement. She has further stated that the injured was not able to affix her signature because of the burn injury. The deceased had sustained burn injury all over the body except the face, head, back and lower portion of the legs. She was mentally and physically fit throughout the recording of the statement. This was also certified by the Medical Officer in Ext.P8. She has also stated that the victim gave statement to the effect that her husband Appukuttan had caused burn injuries on her. She has further stated that her husband poured kerosene and set fire and her husband was reluctant to take her to the hospital. She was cross examined by the learned counsel for the defence also. During cross examination, she has deposed that the victim has told that her husband insisted her to say that the victim herself has done it. Her husband was along with her while she was admitted in the hospital. Nobody has helped her to give statement before the Magistrate. 

37. Before a conviction can be made on a dying declaration, the court must be fully satisfied that the dying declaration is reliable in the sense that it was actually made by the accused when fully possessed of the power to understand the implication of her statement and it was made without any exterior influence or ulterior motive. It must also be satisfied that the dying declaration reflects a true version. As per the version of PW16, the victim was stable, conscious and able to understand the consequences and accordingly she has given the statement before the Magistrate. The Magistrate has further deposed that she has obtained certificate from the concerned Medical Officer before recording the dying declaration. In fact, in this case, the victim had given the statement before the police as and when she got admitted in the hospital. In her statement also, she had revealed that the appellant himself has done the act. The learned counsel for the appellant pointed out that the dying declaration was not signed and the thumb impression also was not affixed. In order to support her arguments, she has not cited any provision or settled positions. Normally, it is impossible for a burnt victim to sign or affix his/her thumb impression and that non-signing of dying declaration by a burnt victim is not sufficient to discredit the same. The said fact is supported by the decision in Suresh Purushottam v. State of Chhattisgarh [2017 Crl. L.J 91], wherein it is held that non-signing of a dying declaration by the burnt victim is not sufficient to discredit the evidence and the person who is going to die will not say lie and in this case the victim was very stable even at the time of giving the FI statement as well as the dying declaration. 

38. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be justified by cross examination, the courts have to apply strictest scrutiny and closest circumspection to the statement before acting upon it while great solemnity and sanctity is attached to the words of a dying man because person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary, it is sufficient to find the conviction even without any corroboration. This fact has been reiterated in K. Ramachandra Reddy v. Public Prosecutor [AIR 1976 SC 1994]. 

39. In Appu v. State of Kerala [1990 Crl.J 36], it is held that the dying declaration may be oral, when such a dying declaration as testified by the witness, suffers from no infirmity and is found to be wholly truthful and without any element of embellishment or distortion and the court is justified in relying on the same. 

40. In Laxman v. State of Maharashtra [AIR 2002 SC 2873], it is held that absence of certification of Doctor into the fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification by the Doctor is a rule of caution and the voluntary and truthful nature of declaration can be established otherwise. It is further held that the juristic theory regarding acceptability of a dying declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, 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. Since the accused has no power of cross examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court must see that the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. 

41. In Vinod Kumar v. State of U.P [1989 Crl LJ 544, the oral dying declaration was to the effect that the husband set fire on the wife on sprinkling kerosene. Her dying declaration got material corroboration from the neighbours. It was also supported by the prompt FIR and the husband was found guilty of the murder. In that case, it is stated that in the hospital, the victim was in a fit state to speak and give a dying declaration implicating the accused in the crime. During the recording of the dying declaration, her mother was sent out of the ward. The dying declaration was found true and voluntary and accordingly the accused was found to be convicted. 

42. Section 32 of the Evidence Act governs dying declaration. It is held in Ramesh and others v. State of Haryana [(2017) 1 SCC 529] that the declaration may be made to a Magistrate, a police officer, a public servant or a private person. Doctor would be the best person to opine about the fitness of the dying man to record the statement. 

43. In Khushal Rao v. State of Bombay [AIR 1958 SC 22], it is held that this kind of dying declaration would stand on much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of the circumstances showing anything to the contrary, it should not be disbelieved by the court. In this case also, the Judicial First Class Magistrate, Payyannur has recorded the dying declaration of the victim, who is having no animus with the accused person. 

44. It is held in Ramesh and others v. State of Haryana (2017) SCC 529 that dying declaration is a substantive piece of evidence and can be made the basis of conviction, once the Court is convinced that the dying declaration is made voluntarily and is not influenced by any extraneous circumstances. 

45. In Ramadhar and another v. State of Chhattisgarh [2016 Crl. L.J 5052], the certificate was issued by the Doctor showing fit state of mind of declarant at 12.35 noon, whereas the actual dying declaration was recorded at 6 p.m. The Magistrate has specifically stated that at the time of giving statement, the deceased was in a fit state of mind. It is held that the dying declaration had been duly proved by the prosecution as required under law and the same cannot be doubted on mere delay in recording such statement. 

46. The decision in State of Gujarat v. Jayrajbhai Punjabhai Varu (2016) 14 SCC 151 is also with regard to the powers of court while considering the dying declaration. It is held that the courts have to be extremely careful when they deal with the dying declaration as the maker thereof is not available for the cross examination, which possess a great difficulty to the accused person. A mechanical approach should not be made in relying upon a dying declaration, which would be extremely dangerous. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that dying declaration is so recorded, it may be acted upon and can be made the basis for conviction. The court has to examine the dying declaration scrupulously with a microscopic eye to find out whether it is voluntary, truthful, made in a conscious state of mind and without being influenced by the relative persons or by the investigating agency who may be interested in the success of the investigation or which may be negligent while recording dying declaration. 

47. In this case, no evidence is forthcoming to prove that there are discrepancies and contradictions in the evidence of the independent witnesses as well as the statement recorded as dying declaration. The victim after sustaining the burn injuries has given an oral dying declaration that the accused himself has done the act. So the evidence adduced by PWs 1 to 5 is to the effect that the victim has stated immediately after the incident that the appellant has purposefully poured kerosene on her body and set fire. 

48. In this case, PW16, the Doctor has assertively stated in support of Ext.P8 that the victim has given statement voluntarily without any influence of the Investigating agency or the accused/appellant herein. Even at the time of giving dying declaration, the victim has stated that her husband has forced her to say that she herself had done the act. It shows that even when she was on sinking stage on her bed, she was forced by the appellant, who is none other than her husband, to give statement supporting him and therefore he was so cruel even at the time of her death. When Ext.P8 is read along with the oral testimony of PWs 1 to 5, we do not find any contradictions in the statement made by the witnesses before the police officer and the statement of the victim and PWs 1 to 5 before the Police Officer. PW16, the Magistrate, has a prime role to establish the guilt of the appellant herein. The evidence adduced by PWs 1 to 5 along with PW16 is consistent and reliable. It is well settled that the courts are fully entitled to act on the dying declaration if it is free from extraneous pressures. 

49. While recording the 313 statement also, the appellant has failed to explain as to how the deceased got fire. He sought pardon from the Court instead of explaining the real incident before the court. 

50. On relying on Ext.P8 dying declaration and the oral testimony of PWs 1 to 5 and 16, we are of the view that their evidence stands corroborated by the dying declaration made by the deceased. The defence has not been able to elucidate anything in the cross examination of the aforesaid witnesses to discredit the testimony to the extent that the deceased has not made any dying declaration before them. PWs 1 to 4 are very strong and reliable witnesses. They have assertively stated that the deceased was conscious and she was talking and she revealed to them that her husband, who is the appellant herein, has committed the offence by pouring kerosene on her and setting fire. The victim had declared before the Magistrate that the appellant had insisted her to say that she herself has done the act. Ext.P8 dying declaration is very precise and short and the Magistrate has recorded the very material facts revealed by the victim. There is no embellishment in the statement given by the victim to the Magistrate and it was also proved that she was conscious at the time of incident and this was certified by the doctor also. We have no hesitation to come to the point that the dying declaration which was recorded by the Magistrate is relevant, just and proper and there are no grounds to disbelieve it. The trial court has considered all these facts and has come to the conclusion that the appellant is guilty under Section 302 of IPC. It is proved that the appellant had a motive behind him to kill his wife as he suspected her chastity and has planned accordingly and he poured kerosene kept in a jerry can in the kitchen on her body and set fire. It was also proved that except her head, all other part of the body was got burnt and she was alive for three days. The unfortunate incident occurred while she was preparing fish curry in the kitchen. On the same day, the CI of Police, Peringome Police Station has arrested the appellant. It is also proved by the postmortem certificate that the victim died due to infection of burn injuries and Ext.P20 FSL report would reveal that the jerry can and the cloth was sent for chemical analysis. The evidence adduced by PWs 1 to 5 as well as the FSL report and the testimony of the PW16 is sufficient to establish the guilt of the accused. 

51. Keeping in view all the above facts, we are of the considered view that the prosecution in this case failed to prove beyond reasonable doubt that the appellant was in any way guilty of any act or conduct which is of the nature elaborated in clauses (a) and (b) of Section 498A of IPC so as to establish the cruelty within the meaning of Section 498A IPC. Therefore, the appellant herein is entitled to be acquitted of the charges under Section 498A IPC The trial court was fully justified in relying upon the dying declaration and the testimony of PWs 1 to 5, PW16 and Ext.P8 in order to convict the appellant under Section 302 of IPC. There is no merit in the appeal preferred against the conviction and sentence under Section 302 of IPC. 

52. The appellant is not found guilty of the offence punishable under Section 498A IPC. In the result, the appeal is partly allowed directing hereunder: 

1. The conviction and sentence of the appellant in S.C. No. 560 of 2008 of Addl. District Court-IV, Thalassery, insofar as it relates to Section 498A of IPC is set aside. 

2. The conviction and sentence of the accused/appellant under Section 302 IPC is confirmed.