Criminal Appeal No. 573 of 2002 (Supreme Court of India, decided 20 November 2008; Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.; judgment delivered by Dr. Arijit Pasayat, J.) — Penal Code, 1860, s. 302: Kamalam died of burn injuries after her husband Karuppasamy allegedly poured kerosene on her and set her ablaze amid quarrels over his illicit intimacy with one Parvathi. The Learned Sessions Judge, Tirunelveli convicted the accused under s. 302 IPC relying on the dying declaration (Ex.P.11) recorded by PW 11, Trainee Magistrate, after Doctor Kanchana certified the deceased conscious and oriented, and on the oral declarations before PWs 1, 2, 4, 5 and 6. The Madras High Court (Crl. Appeal No. 734 of 1992, order dated 27.3.2001) set aside the conviction: it discarded the dying declaration because the Magistrate went by the doctor's opinion without independent enquiry, rejected the witnesses' evidence and that of PW 8 without reasons, and found that the FIR showed the accused brought the hospital intimation to the police. Allowing the State's appeal, the Supreme Court held: (i) the High Court's conclusion that the Magistrate should have independently enquired fitness was absurd — satisfaction based on the doctor's certification is proper, the doctor being the appropriate person to certify that aspect; (ii) the finding on the intimation was factually wrong — PW 12, Grade I constable at the out-post police station attached to the medical college hospital, received Ex. P 4 from the hospital on 12.9.1990 at 1.15 PM; (iii) no reason was assigned for discarding the declarations before PWs 1, 2, 4, 5 & 6 or the evidence of doctor PW 8, though the Trial Court had concluded the deceased's statements clearly implicated the accused. The High Court's judgment was held clearly unsustainable and set aside; the respondent was directed to surrender to custody forthwith to serve the remainder of sentence.
