JUDGMENT
1. This appeal assails the correctness of the order of acquittal recorded by the learned 3rd Additional Sessions Judge, Dharwad in Sessions Case No. 110 of 1993. The complaint of the wife pursuant to which the husband and his mother had been charge-sheeted for offences punishable under Sections 498-A and 302 read with Section 34 of the IPC. Unlike in the matter of wife burning while the allegation is essentially of the demand for property, dowry, money etc., this case is slightly different insofar as the admitted position is that the accused husband who was living in Room No. 4 of the temple along with the deceased wife Usha is alleged to have been doing some business of selling brandy and the deceased wife had objected to this activity being carried on by him as a result of which there used to be serious disputes and quarrels. There is some suggestion from the wife’s family members that because of the objection raised by the deceased that she was being badly treated by the husband and his mother and even being starved at times. It is not very certain as to when exactly the incident took place. It appears to have occurred on the evening of 31-5-1993 when tlsha was found to be severely burnt and had to be removed to the hospital. The prosecution version is that the two accused who were extremely fed up with Usha for having disrupted their illegal activity decided to do away with her; and A-2 had caught her legs while A-1 poured kerosene on her clothes and lighted a match with which he set fire to her clothes. We need to mention here that there is also an opposite version as appears from the Medico-Legal Register wherein on her admission in hospital wherein the history is given as accidental burns sustained from the stove while cooking. The Police registered the dying declaration on 5-6-1993 wherein Usha has very clearly implicated both the accused as the persons responsible for setting her on fire. Usha died on 7-6-1993 and the accused were both charge-sheeted and put up for trial. The learned Trial Judge after assessing the evidence recorded the finding that a conviction is unsustainable and therefore acquitted the accused. The State assails the correctness of that order through the present appeal.
2. The learned Advocate B. Anand has appeared as Amicus Curiae Counsel on behalf of the accused.
3. The principal submission canvassed on behalf of the prosecution is that the deceased Usha was a simple village woman, that admittedly she did sustain serious burn injuries as a result of which she ultimately died and that if the injuries in question were accidental, that there was no valid reason as to why she would falsely implicate her husband and mother-in-law.
4. The learned State Public Prosecutor submitted that as regards the version of the Medico-Legal Register that the doctor recorded the history given by the husband who had brought her there, that the Court must necessarily ignore that version as the husband would try to exonerate himself and consequently that the version in the dying declaration must be acted upon.
5. The learned Counsel has placed reliance on the fact that it is now well-settled law that in cases of this type where the evidence is minimal, that a conviction can be based on a dying declaration alone and he submits that this Court ought to set aside the order of acquittal and convict the two accused who are squarely implicated in the dying declaration. With regard to the fact that the dying declaration itself does not contain the requisite endorsement on it that the patient was in a fit condition to make her statement, the learned State Public Prosecutor submitted that there is on record sufficient evidence from the doctor that the patient was in a fit condition and it is his submission that this evidence should satisfy the Court about the mental fitness of the patient, even if there is no endorsement on the document itself.
6. On behalf of the respondents, what is pointed out to us is that the version at the earliest point of time is of some consequence and that the doctor has very clearly admitted that even though the husband gave the history of the case as being accidental burns that it is very crucial to note that the deceased Usha was conscious at that time and that the doctor has stated that she did not at all dispute that this was an incorrect position. Again, the learned Advocate brings to our notice the fact that the memo which was sent to the police by the hospital seems to indicate that the patient was not conscious or in a fit condition to make a statement. The learned Advocate submits that even though there is some evidence that Usha was in a position to talk that there was absolutely no guarantee that at the point of time when the statement was recorded i.e., on 5-1-1996 that her physical and mental condition was absolutely stable, as otherwise the validity of the statement would be destroyed. He has placed reliance on a decision of the Supreme Court in the case of Paparambaka Rosamma v. State of Andhra Pradesh, wherein the Supreme Court had occasion to lay down one more aspect of the law with regard to dying declarations viz., that it is equally important to ensure that the physical and mental fitness of the patient is certified at the time of recording the dying declaration, in other words, at the commencement so that it is very clear that the fit condition of the patient was ascertained before the recording was commenced. The Supreme Court has made a subtle distinction between an endorsement which normally appears after the statement has been recorded obviously in order to emphasise the principles applicable, which would be that the Court must be satisfied that the condition was stable and proper at all times. While we have to bear in mind these principles, unfortunately in the present case, we find that there is no endorsement on the dying declaration at all. Such a condition would be virtually fatal to the document itself and it is now well-settled law that as a rule of prudence the endorsement regarding fitness must be contained on the document itself so that there is a guarantee in the mind of the Court that it is a contemporaneous assessment. In the present case, if a conviction has to be recorded against the accused, it would have to be done on the basis of virtually this document alone. The value of this dying declaration is considerably eroded for want of the requisite certificate from the doctor. Secondly, we have a contrary version in the Medico-Legal Register at an earlier point of time. The learned Defence Counsel is right when he points out to us that Usha died on 7-6-1993 and that this statement was recorded hardly 24 hours before she passed away which means that her condition was steadily deteriorating. The Court also has to take cognizance of the fact that the parent was in a state of shock and depression and also of the fact that the patient was in physical and mental trauma because in all these cases, as it does happen, a septic infection had developed and the patient ultimately died of septicemia. These are all aspects that would considerably water down the evidentiary value of the dying declaration and in our considered view that the Trial Court was perfectly justified in holding that no conviction was possible in this regard. We need to mention that we have on record the evidence of P.W. 9 who was the Pujari and he has very clearly deposed to the effect that when the incident took place, deceased was alone in the house and that the door was bolted from inside and furthermore it was he who called the husband from his paan shop and the two of them somehow opened the door and rescued Usha. This is an additional reason why it would not at all be safe for us to hold that the accused are liable for either of the two offences.
7. Having regard to the aforesaid findings, the appeal fails on merits and stands dismissed. We direct the office to pay a professional fee computed at Rs. 1,000/- to the learned Advocate who has appeared as Amicus Curiae. The bail bonds of the accused stand cancelled.
8. The learned Counsel on behalf of the respondent-accused states that it appears from the record that the accused may be in custody. Having regard to this position, the office to communicate the operative part of this judgment to the Trial Court and the jail authorities with a direction that the accused be set at liberty immediately if not required in connection with any other offence.