Holding

A conviction cannot rest solely on an unreliable dying declaration; the prosecution failed to discharge its burden of proof, and the conviction was set aside.

Summary

The appellant, P. Mani, was convicted of murdering his wife by allegedly setting her on fire, based solely on her dying declaration. The High Court upheld the conviction, holding the dying declaration reliable and noting the appellant's alleged absconding and lack of injury as circumstantial support. On appeal, the Supreme Court examined whether Section 106 of the Evidence Act applied, whether the dying declaration was sufficiently reliable without corroboration, and whether the prosecution had proved guilt beyond reasonable doubt. The Court found that Section 106 was inapplicable, the dying declaration was not wholly reliable, no presumption under Section 113A applied, and the prosecution’s evidence was insufficient. Consequently, the appellant was entitled to the benefit of doubt and the conviction was set aside.

Issues considered

Whether Section 106 of the Evidence Act imposes a burden of explanation on the accused when the alleged offence occurred inside a locked room.
Whether a dying declaration alone, without corroborative evidence, can sustain a conviction under Section 302 IPC.
Whether the presumption under Section 113A of the Evidence Act applies in a murder case alleged to be a suicide.
Whether the prosecution proved the appellant's guilt beyond reasonable doubt.

Legislation cited

Indian Evidence Act, 1872s. 106, s. 113A, s. 32
Indian Penal Code, 1860s. 302, s. 307

Subjects

dying declarationburden of proofSection 106Section 113Abenefit of doubtmurdersuicideevidence lawIndian Penal CodeIndian Evidence Act

Judgment

A P. MANI f
v.
STATE OF TAMIL NADU
'
FEBRUARY 24, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

...
Evidence Act, 1872: ,_
Section 106-Applicability of-Burden ofproof-Deceased-Wife closed
c herself in a room and put fire on herse/f--Husband.and other witnesses broke
open the door-Doused the fire by pouring water--Conviction of husband-
Courts below were of the opinion that it was for the husband to offer some
explanation terms a/Section 106-Justification o/-Held, not justified-Section
106 cannot be said to have any application as the occurrence took place
D inside a room and husband and other witnesses broke open the door after
seeing the smoke coming out from the room-Penal Code, 1860-Section 302.
!--
Section 32-Dying declaration, iffound to be reliable would be sufficient
for conviction-On facts, evidence suggesting that dying declaration not '
revealing entire truth-Accused entitled to ben1~fit of doubt--Conviction set
E aside-Penal Code, 1860-Section 302.

Section 1l3A-Presumption under--Husband charged under Section 302
/PC. hence presumption in terms of Section l /3A is not available.

Criminal Law:
F
y-- •
Commission of offence-Burden of proof-Held: ls on prosecution to
prove involvement ofaccused beyond all reasonable doubt-Evidence-Burden
ofprooj

On the fateful day, some children were watching T.V. in the house
G of appellant-accused. They came out of the house stating that deceased,
wife of appellant had asked them to go out of the house and bolted the
door from inside. Upon hearing the same, PW-1, PW-2 and appellant
f
broke open the door and found deceased in flames. The fire was doused
and she was taken to hospital by the appellant and the witnesses. A dying
H 486
P. MANI v. STATE OF TAMIL NADU 487
declaration was record by Magistrate in the presence of doctor. Head A
constable also recorded the statement of the deceased on the basis of which
FIR was lodged. A case under Section 307 IPC was registered against
appellant. After 5 days deceased died in hospital. Appellant was arrested
in connection with the case 12 days after the death of deceased.

Sections judge convicted the accused under Section 302 IPC by B
relying upon the dying declaration. High Court upheld the conviction
holding that dying declaration made by the deceased is reliable and also
..... taking into consideration the circumstances that appellant had absconded
from the place of occurrence after the incident; that the appellant had
failed to offer explanation in terms of Section 106 of Evidence Act as the C
incident took place inside a room and appellant was present therein and
also, in view of the fact that Appellant did not suffer any burn injury.
Aggrieved appellant filed present appeal.

Allowing the appeal, the Court

HELD: 1. In a criminal case, it is for the prosecution to prove the D
involvement of an accused beyond all reasonable doubt. It was not a case
where both, husband and wife, were last seen together inside a room. The
incident might have taken place in a room but prosecution itself has
brought out evidences to the effect that the children who had been
witnessing television were asked to go out by the deceased and then she E
bolted the room from inside. As they saw smoke coming out from the
room, they rushed towards the same and broke open the door. Section
106 of the Evidence Act thus cannot be said to have any application
whatsoever. [491-G-H; 492-A)

2. Investigating officer did not place any material to show that the p
Appellant had been absconding during the said period. He did not say that
he made any attempt to arrest the Appellant. He also failed and/or
neglected to made any statement or bring on record any material to show
as to what attempts had been made by him to arrest the appellant.
(492-B-D)
G
3. Absence of injury on the person of accused had been found by
the High Court to be one of the grounds for believing the prosecution case.
All the prosecution witnesses categorically stated that the fire was doused
by pouring water. In that situation, no wonder, the Appellant did not suffer
any burn injury. It is not the case of the prosecution that any other person H
488 St:PRFME COURT REPORTS [2006] 2 S.C.R.

A had suffered any burn injury in the process of putting out the fire. The f
incident admittedly took place inside a small room. It had two doors. The
prosecution witnesses knocked both the doors. Their call to the deceased
to open the door remained unanswered and only then they took recourse
to breaking open the door. According to them, not only the Appellant was
with them at that point of time, but also he took part in dousing the flames.
B Indisputably, he took the deceased to the hospital. If the version of the
deceased in her dying declaration is accepted as correct, the witnesses and
in particular the neighbours would have lodge:d a First Information Report
and in any event, would not have permitted the Appellant to take her to .
the hospital. [492-E-GI
c 4. The son alld daughter of the deceased, categorically stated that she
had been suffering from depression and she had made an attempt to
commit suicide a week prior to the date of occurn:nce. It is the positive
case of the prosecution itself that she was not keeping good relation with
the Appellant on the belief that he had an affair with another lady. The
D same admittedly has not been proved. If she had been labouring under a
false belief and if in fact she has been suffering from depression for
whatever reasons, the possibility of her making wrong statement before ~

the Magistrate cannot be ruled out. In any c~vent, the materials brought
on records do not support the prosecution case, but support the defence.
•
E [493-A-B)

5. Indisputably conviction can be recorded on the basis of dying
declaration alone but the same must be wholly reliable. In a case where
suspicion can be raised as regard the correctness of the dying declaration,
the court before convicting an accused on the basis thereof would look
F for some corroborative evidence. Suspicion i1s no substitute for proof. If
r- •
evidence brought on record suggest that such dying declaration does not
reveal the entire truth, it may be considered only as a piece of evidence in
which event conviction may not be rested only on the basis thereof. The
question as to whether a dying declaration is of impeccable character
G would depend upon several factors such as physical and mental condition
of the deceased. In this case, the circumstances whi<:h have been brought
on record clearly point out that what might have been stated in the dying
declaration may not be correct. If the deceased had been nurturing a ("

H
grudge against her husband for a long time, ~;he while committing suicide
herself may try to implicate him so as to make his life miserable. In the
present case where the Appellant has been charged under Section 302 IPC, -
P. MANI v. STA TE OF TAMIL NADU [SINHA, J.] 489
the presumption in terms of Section 113A of the Evidence Act is not A
available. In absence of such a presumption, the conviction and sentence
of the accused must be based on cogent and reliable evidence brought on
record by the prosecution. In this case, the evidences are not such which
point out only to the guilt of the accused. Appellant is thus entitled to the
benefit of doubt. 1493-C-GI
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 081
of 2005.

~ From the Judgment and Order dated 31.12.2003. of the Madras High
Court in Crl. A.No. 97/2001.

V.J. Francis, A Radhakrishnan, Anupam Mishra and Jenis V. Francis
c
for the Appellant

Subramonium Prasad, Abhay Kumar, Gopal Krishnan and Jai Kishore
for the Respondent.

The Judgment of the Court was delivered by D
S.B. SINHA, J. I. The appellant was convicted on a charge of
commission of an offence under Section 302 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for life as also a fine of Rs.
5000 by a judgment and order dated 10-01-2001 passed by Additional Sessions
Court Kanyakumari District at Nagercoil in S.C. No .. 183 of 1999. E
2. The deceased was the wife of the Appellant. They were not in good
terms. The deceased nurtured grudge against him in the belief that the
·Appellant was having affairs with another woman (PW-12) who is wife of
his elder brother (PW-11). On 4-10-1998 at 10.45 a.m. some children had
been witnessing television in the house of the Appellant. They came out F
• ·----{ therefrom stating that the deceased had asked them to go out of the house and
bolted the door from inside, upon hearing the same PWs I, 2 and the Appellant
herein went back and broke open the door. Allegedly, the Appellant had
poured kerosene on her and set fire to the deceased.

3. It is not in dispute that the door of the room was broken open. The G
said witnesses as also PWs 3 to 6 saw the deceased in flames. The fire was
extinguished and she was taken to the government hospital. It is moreover
not in dispute that the Appellant took her to the hospital along with other
witnesses. They reached hospital at about I I.I 5 a.m. A dying declaration was
recorded by a judicial Magistrate between the period 12.25 p.m. and 12.45 H
490 SUPREME COURT REPORTS [20061 2 S.C.R.

A p.m. in the presence of a doctor (PW-15). A Head Constable (PW-23), in-
change of Kulachal Police Station in the meantime received information
about the said incident whereupon he arrived at the hospital recorded the
statement of the deceased again from 14.15 p.m. to 14.45 p.m. on the basis
whereof the First Information Report was lodged. A case under Section 307
B of the Indian Penal Code (Code) was reg:istered against the Appellant. In
Column No. 7 of the said First Information Report the name of the Appellant
was shown as accused. The Investigating Officer (PW-24) on 5-10-1998
made seizure of kerosene can, matchstick, iron ·Jolt etc. She died in the
government hospital at about 11.15 a.m. on 9-10-1998, whereafter the charge
in the F.I.R. was altered to Section 302 of the Code. The Appellant was
C arrested in connection with the said case on 21-10-1998.

4. The Appellant was put on trial, a charge-sheet having been filed for
commission of an offence under Section 302 of the Code. It is not in dispute
that before the learned Sessions Judge, Kanyakumari District at Nagercoil in
whose court the case was transferred for disposal, all the material witnesses
D turned hostile. The defence case was that she committed suicide as after
undergoing a Histectomy operation, she suf'.ered hormonal unbalance leading
to mental stress and strain. She was said to have been not only suffering from ._
mental illness and unsoundness of mind b1Jt also from depression. The son ~
and daughter of the deceased categorically stated that the deceased had been
E suffering from mental illness and had made attempts to commit suicide by
pouring kerosene and setting fire on her person on an earlier occasion but the
same was prevented by PW-9.

5. The learned Sessions Judge convicted the Appellant relying only
upon the dying declaration made by the de1;eased. The High Court on appeal
F preferred by the Appellant herein from the said judgment and order of
conviction and sentence upheld the same inter alia holding that the dying y- •
declaration made by the deceased is reliable. The High Court moreover took
into consideration also the circumstances that the Appellant had absconded
from the place of occurrence from 4-10-1998 to 21.10.98. The learned court
opined that it was for the Appellant herein 1:0 offer some explanation in terms
G of Section 106 of the Evidence Act as the occurrence took place inside a
room and the Appellant was present therein. Onl)' because the deceased had
undergone Histectomy operation, the court was of the view, the same would
not mean that she would lose her mental balance.

6. Mr. V.J. Francis, learned counsel appearing on behalf of the Appellant,
H would, inter alia. submit that the dying declarations were not reliable in view
P. MANI v. STATE OF TAMIL NADU [SINHA, J.] 491

of the fact that the deceased died five days thereafter. The learned counsel A
"Y also pointed out certain discrepancies in the two dying declarations. It was
' argued that in view of the fact that the witnesses did not support the prosecution
case, the learned Sessions judge as also the High Court acted illegally in
passing the judgment and order of conviction and sentence.

7. Mr. Subramonium Prasad, learned counsel appearing on behalf of B
the State, on the other hand, would argue that keeping in view of the fact that
the dying declaration was made by the deceased shortly after she was brought
> to the hospital before the Magistrate, the High Court cannot be said to have
A:
committed an error in placing reliance thereupon. It was also submitted that
although motive for commission of the offence could not be proved, the
conviction and sentence can be upheld on the basis of the said dying
c
declarations alone. Our attention has also ben drawn to the conduct of the
Appellant.

8. There are certain striking features in this case. All the prosecution
witnesses in unison stated that the children who were witnessing television D
came out the room saying that the deceased had bolted the same from inside.
PW-I Kumaradas and PW-2 Saravanadas have been engaged in the work of
-4 soaking coconut husk. They categorically stated that they together with the
.(
Appellant forced open the door and doused fire. Their neighbours, PWs 3 to
6, also made identical statements. It is furthermore not in doubt or dispute
that the room had two doors and both were found to have ben locked from E
inside. The Investigating Officer admittedly stated that at the place of
occurrence neither a gas stove nor a kerosene stove nor firewood was found.
He had seized the bolt from inside the house in a molten condition. There
were only two entrances in the front and back of the house.

9_. The High Court, however, did not pay much credence to the said F
• ·---! statements of the Investigating Officer and other witnesses inter alia on the
ground that the burden of proof thereof lies upon the Appellant in terms of
Section 106 of the Evidence Act as also, in view of the fact that the Appellant
did not suffer any burn injury.

10. We do not agree with the High Court. In a criminal case, it was for
G
the prosecution to prove the involvement of an accused beyond all reasonable
doubt. It was not a case where both, husband and wife, were last seen together
rt
\ inside a room. The incident might have taken place in a room but the
prosecution itself has brought out evidences to the effect that the children
who had been witnessing television were asked to go out by the deceased and H
492 SUPREME COURT REPORTS [20061 2 S.C.R.

A then she bolted the room from inside. As t1ey saw smoke coming out from
the room, they rushed towards the same and broke open the door. Section (
I06 of the Evidence Act, to which reference was made by the High Court in
the aforementioned situation, cannot be said to have any application
whatsoever.

B 11. The High Court furthermore commented upon the conduct of the
Appellant in evading arrest from 4.10.1998 to 21.: 0.1998. The Investigating
Officer did not say so. He did not place any material to show that the Appellant
had ben adsconding during the said record. He funhermore did not place any
material on records that the Appellant could not be arrested despite attempts
C having ben made therefore. Why despite the fact, the Appellant who had
been shown to be an accused in the First lnfom1ation Report recorded by
himself was not arrested is a matter which was required to be explained by
the Investigating Officer. i-le admittedly v;sited the place of occurrence and
seized certain material objects. The Investigating Officer did not say that he
made any attempt to arrest the Appellart or for that matter he had ben
D evading the same. He also failed and/or neglected to make any statement or
bring on record any material to show as to what attempts had been made by
him to arrest the Appellant. No evidence furthermore has been brought by the
prosecution to show as to since when the Appellart made himself unavailable
>
for arrest and/or absconding.

E 12. Absence of injury on the person of accused had been found by the
High Court to be one of the grounds for believing the prosecution case. All
the prosecution witnesses categorically s•rated that the fire was doused by
pouring water. In that situation, no wonder, the Appellant did not suffer any
bum injury. It is not the case of the prosecution that in fact any other person
p had suffered any bum injury in the process of putting out the fire. The
incident admittedly took place inside a small room. It had two doors. The
prosecution witnesses knocked both the doors. Their call to the deceased to
open the door remained unanswered and only then they took recourse to
breaking open the door. According to them, not only the Appellant herein
was with them at that point of time, bu: also he took part in dousing the
G flames. Indisputably, he took the deceased to the hospital. If the version of
the deceased in her dying declaration is accept1ed as correct, the witnesses
and in particular the neighbours would have lodgt:d a First Information Report
and in any event, would not have permil':ed the Appellant to take her to the
hospital.
H I1. The question is as to whether in the aforementioned situation reliance
P. MANI v. STATE OF TAMIL NADU [SINHA, J.] 493
should be placed on the dying declaration. The son and daughter of the A
y deceased categorically stated that she had ben suffering from depression and
I
she had made an attempt to commit suicide a week prior to the d,ate of
occurrence. It is the positive case of the prosecution itself that she was not
keeping good relation with the Appellant on the belief that he had an affair
with another lady. The same admittedly has not been proved. If she had ben
labouring under a false belief and if in fact she has ben suffering from
B
depression for whatever reasons, the possibility of her making wrong statement

<
, before the Magistrate cannot be ruled out. In any event, the materials brought
on records do not support the prosecution case, but support the defence.
-\

14. Indisputably conviction can be recorded on the basis of dying
declaration alone but therefore the same must be wholly reliable. In a case
c
where suspicion can be raised as regard the correctness of the dying declaration,
the court before convicting an accused on the basis thereof would look for
some corroborative evidence. ,Suspicion, it is trite, is no substitute for proof.
If evidence brought on records suggests that such dying declaration does not
reveal the entire truth, it may be considered only as a piece of evidence in D
which event conviction may not be rested only on the basis thereof. The
question as to whether a dying declaration is of impeceable character would
.. --\ depend upon several factors; physical and mental condition of the deceased
is one of them. In this case the circumstances which have hen brought on
records clearly point out that what might have been stated in the dying
declaration may not be correct. If the deceased had ben nurturing a grudge
E
against her husband for a long time, she while committing suicide herself
may try to implicate him so as to make his life miserable. In the present case
where the Appellant has hen charged under Section 302 of the Indian Penal
Code, the presumption in terms of Section I 13A of the Evidence Act is not
available. In absence of such a presumption, the conviction and sentence of F
the accused must be based on cogent and reliable evidence brought on record
·---{
by the prosecution. In this case, we find that the evidences are not such
which point out only to the guilt of the accused.

15. We are, therefore, of the opinion that it is a fit case where the
"Appellant is entitled to the benefit of doubt." He shall be released to with G
if not required in any other case. ''The impugned judgments are set aside.
The appeal is accordingly allowed."
~.

\ D.G. Appeal allowed.

H