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2012 DIGILAW 259 (KER)

Sivan Pillai v. State of Kerala

2012-03-01

K.VINOD CHANDRAN, R.BASANT

body2012
Judgment : K. VINOD CHANDRAN, J. 1. The above Criminal Appeal arises from the judgment of the Additional Sessions Judge (Ad hoc) - I, Pathanamthitta in S.C.No.443 of 2006. The appellant/accused is alleged to have torched his wife resulting in her death by reason of the 36% burns suffered by her. The death of the injured, according to the prosecution, was an inevitable conclusion of a sad life plagued with financial depravity and marital discord. 2. The prosecution case is initiated on the statement of the deceased recorded by P.W.20, on the strength of which F.I.R. (Exhibit P14) was initially registered under Sections 307 and 498A IPC on 17.10.2005. The deceased was under treatment in the Medical College Hospital while the First Information Statement Exhibit P12 was recorded by P.W.20. Subsequently, on her death at about 8.30 p.m. on the very same day, Exhibit P18 report was made deleting Section 307 and including Section 302 IPC. The case of the prosecution is built on the above statement recorded by P.W.20 as also the circumstances spoken to by the various witnesses and inter alia the scientific evidence that came to the fore on the investigation conducted by P.W.22. 3. On the fateful day, according to the statement (Exhibit P12) of the deceased, while she had returned home from work, her husband, the appellant, was in an inebriated condition and on her refusal to accede to his demand for money, picked up a quarrel with her. When the appellant assaulted her physically, the deceased went inside the house and at about 8.00 hours in the night, the husband came inside the house taunting her and taking a lighted kerosene lamp, opened the cap, threw the kerosene on her body and torched her with a match stick. The deceased thus having suffered burns on the face, chest, shoulders and back, rushed to her neighbour's (P.W.13) house. When the deceased came to the neighbouring house, P.W.13, his wife (D.W.1) and their relative (P.W.7) were available in the house. On seeing the severely burnt neighbour, P.W.13 and P.W.7 ushered her in, informed her father over telephone and, immediately rushed to get a car. It is the case of the prosecution that the deceased was taken from the house of P.W.13 to Community Health Centre (CHC) at Adoor, where she was given first aid by P.W.18, who also prepared Exhibit P11 wound certificate dated 16.10.2005. It is the case of the prosecution that the deceased was taken from the house of P.W.13 to Community Health Centre (CHC) at Adoor, where she was given first aid by P.W.18, who also prepared Exhibit P11 wound certificate dated 16.10.2005. P.W.5, the father's brother of the deceased and P.W.12, the brother-in-law of the deceased had reached the house of P.W.13 on hearing of the mishap and had accompanied her to the CHC, Adoor. The CHC being not equipped to deal with the severe burns inflicted on the patient, P.W.18 referred her to the Medical College Hospital. On reaching the CHC, the relatives of the deceased, her sister (P.W.4), and her father (P.W.6) joined the deceased and it was they along with P.W.5 and P.W.12 who took the deceased to the Medical College Hospital at Thiruvananthapuram. As per Exhibit P13 medical case record, the deceased was admitted at about 10.30 a.m. in the Medical College Hospital, Thiruvananthapuram and while continuing on treatment, her condition deteriorated by around 7.30 p.m. and she breathed her last at 8.30 p.m. The accused was arrested on 19.10.2005. Investigation was carried on and final report was filed before the Judicial First Class Magistrate Court, Adoor, which committed the case to the Sessions Court. This, in brief, is the facts of the incident which led to the registration of the crime, the arrest of the accused and the final chargesheet being filed on completion of investigation. 4. The Court below examined P.Ws1 to 22 on behalf of the prosecution and D.W.1 to D.W.3 for the defence. Exhibits P1 to P21 documents were marked along with M.Os 1 to 9. We have heard Sri.V.Sethunath, the learned counsel for the appellant and the learned Public Prosecutor, who took us through the entire evidence on record. The trial Court having detailed the entire evidence placed before it, a reiteration of the same by the appellate Court is not called for especially in the context of the appellate Court having been set with the task of examining the relevant circumstances which would either point definitely to the guilt or a reasonable hypothesis of innocence of the accused. 5. The instant case is one in which none has witnessed the incident and the investigation as well as the adjudication referred to above proceeded on the circumstances available on record. 5. The instant case is one in which none has witnessed the incident and the investigation as well as the adjudication referred to above proceeded on the circumstances available on record. The statement recorded from the deceased as also the statements made by her to her relatives and the doctor who gave her first aid, etc. points to a homicidal death. The plea of the accused, on the other hand, is that the incident was a mere accident. One solitary witness also would raise a theory of self immolation. A hapless creature of circumstance delivered from the yoke of a sad life by death. Death - which visited her in her marital home, whether by voluntary invitation, by accident or by active instigation of her husband is the question we are faced with. 6. The circumstances of marital discord and drunkenness of the appellant are more or less established, though not the immediate motive. The marriage of the appellant with the deceased and the child born in wedlock are undisputed. The fact of the appellant and the deceased having made the house of the elder sister (D.W.3) of the mother of the appellant their marital home is also established. Next comes the circumstances of the marital life of the appellant and the deceased. Both the appellant and the deceased were not regularly employed, the former being a hotel employee and the latter being one seasonally employed in cashew factories. The poor financial state of the family accentuated by the lethargy and drunkenness of the appellant also have been consistently spoken to by all the witnesses. The child born to them was in the care of the father of the deceased and living in her parental (maternal) house. Marital discord is not far; in circumstances of financial depravity and alcoholism of the husband. P.W.4, P.W.5, P.W.6 and P.W.12, all close relatives of the accused, speak of the sad circumstances in which the deceased lived and the travails she had to undergo at the hands of her husband/appellant. In addition to these witnesses who were the close relatives of the deceased, her neighbours (P.W.7 and P.W.13) as also a person in the locality (D.W.2) speaks of the frequent quarrels between the husband and wife that emanated from their marital home. In addition to these witnesses who were the close relatives of the deceased, her neighbours (P.W.7 and P.W.13) as also a person in the locality (D.W.2) speaks of the frequent quarrels between the husband and wife that emanated from their marital home. The alcoholism of the appellant and the frequent quarrels often ending in physical assault of the deceased was a circumstance agreed to by all the witnesses; even the immediate neighbour, P.W.13, who was declared hostile by the prosecution. The only jarring note was the evidence of D.W.1, the wife of P.W.13, who thought it fit even to contradict her husband's version about the marital life of the deceased. We shall deal with the evidence of D.W.1 later. At present, suffice it to say that the version of an idyllic marital existence of the deceased as stated by D.W.1 can only be disbelieved on the overwhelming evidence to the contrary. The immediate motive of the appellant having demanded money, which the deceased refused, though was spoken to by the deceased, has to be viewed in the context of the circumstances in which the appellant and the deceased lived. Motive, immediate or antecedent, though, is not a compulsory circumstance weighing in the mind of the Court in a case built on circumstantial evidence alone, it is one circumstance which necessarily helps the Court to arrive at a conclusion of guilt or otherwise and is one of the factors to be considered in dismissing or excluding any and every reasonable hypothesis consistent with the innocence of the accused. The circumstances explained above as spoken to by the witnesses, both related and otherwise, establish beyond any reasonable doubt that the deceased lived in unhappy circumstances, and was open to frequent abuses and physical assaults as also demands for money from the appellant more oftener than ever, prompted by the alcoholism of the appellant. 7. The circumstances being sadly and sufficiently fertile for the occurrence of an incident as alleged, we have now to look at the incident proper which led to the death of the deceased. The fact that the deceased suffered burns, that too, to the extent of 36% and her death after about 24 hours requires no serious probe. At the first instance the deceased was rushed to the CHC, Adoor, where P.W.18 examined her. The fact that the deceased suffered burns, that too, to the extent of 36% and her death after about 24 hours requires no serious probe. At the first instance the deceased was rushed to the CHC, Adoor, where P.W.18 examined her. Exhibit P11 wound certificate issued by P.W.18 would itself indicate extensive burning on the face, chest and shoulders of the deceased. It was also due to such extensive burns having been suffered that P.W.18 referred the patient to the Medical College Hospital. The referral letter though as such is not marked, it is evident from Exhibit P13 case record of the deceased maintained by the Medical College Hospital, Thiruvananthapuram that the patient was referred from CHC, Adoor. The burns having been caused with the aid of kerosene and the extent of burns being 36% is clear from Exhibit P13. The presence of kerosene is also evident from Exhibit P2, FSL report which detected kerosene in the lamp and the clothes of the deceased recovered from the site. The patient having been put on intensive treatment, was recorded as being conscious and oriented on admission and thereafter on the next day. However, her condition took a turn for the worse at about 8.10 p.m. and her vitals having failed by 8.30 p.m., she was declared expired by the Medical Attendant. So much is evident from Exhibit P13. The doctor who conducted the autopsy on the body of the deceased was examined as P.W.1 to mark Exhibit P1 certificate of autopsy. The P.W.1 has clearly and categorically stated that the death was due to the burns affecting approximately 36% of the body which, in her opinion, was sufficient to cause death. That the burns were caused with the aid of inflammable kerosene and that the victim succumbed to such burns cannot at all be doubted. 8. Having found the medium of injury and the cause of death, what remains to be considered is as to WHO administered death -the deceased herself, accidentally by D.W.3 or actively by appellant, is what is to be culled out from the evidence. 9. 8. Having found the medium of injury and the cause of death, what remains to be considered is as to WHO administered death -the deceased herself, accidentally by D.W.3 or actively by appellant, is what is to be culled out from the evidence. 9. On the question of pinning the 'WHO' on the appellant, the counsel for the appellant has varied contentions regarding the reliability of interested witnesses, the admissibility of dying declaration said to have been made by the deceased, the medical condition of the deceased, the improbability of the appellant's involvement and so on and so forth. It would be safe for us to first detail the circumstances which pins the 'WHO' on the appellant before dealing with the contentions raised by the counsel for the appellant. 10. Pausing here for a moment, Exhibit P12, statement recorded by P.W.20 from the deceased, was not in the nature of a dying declaration, since at that point of time death was not expected and the patient was conscious and oriented as recorded by the Medical Attendant and the statement was recorded for the purpose of registering a crime. However, the incident on which a crime was registered having eventually led to the death of the deceased, the statement so recorded as Exhibit P12 can 'possibly' be one made under Section 32(1) of the Evidence Act, since such statements, by virtue of the said provision are deemed to be so; irrespective of whether the person who made it was or was not at that time under expectation of death. We qualify the statement as being 'possible', since there are serious contentions urged on that count and at present, as noticed earlier, we are listing out the incriminating circumstances against the appellant. 11. The house of D.W.3 was normally inhabited only by D.W.3, her nephew (the appellant) and his wife (the deceased). D.W.3, as is discernible from the evidence on record, was a octogenarian at the time of the incident and was admittedly infirm on her feet and weak in her faculties. The deceased having suffered burns, obviously, could not have expected any assistance from D.W.3 and hence rushed to the neighbour's house. The neighbours also being well aware of the proclivities of the appellant, extended a helping hand by offering her temporary shelter and transportation for medical care. It is to this neighbouring house (P.W.13's house) that P.W.5 and P.W.12 arrived. The deceased having suffered burns, obviously, could not have expected any assistance from D.W.3 and hence rushed to the neighbour's house. The neighbours also being well aware of the proclivities of the appellant, extended a helping hand by offering her temporary shelter and transportation for medical care. It is to this neighbouring house (P.W.13's house) that P.W.5 and P.W.12 arrived. It is after they arrived that the deceased was taken to the Adoor CHC by P.W.5, P.W.12 and others. The earliest statement of the deceased about the incident is to P.W.18, being the doctor at the CHC, Adoor. The history and alleged cause of injury has been recorded by P.W.18 in Exhibit P11 Accident Register-cum-Wound Certificate as "homicidal burns at 7 p.m. at home" (sic). Exhibit P11 is dated 16.10.2005 and is issued at 8.45 p.m. It is the case of P.W.5 that immediately after first aid was given to his niece, she had told him that the appellant had torched her after pouring kerosene on her, since she had refused to give him money for consuming alcohol. P.W.4, the sister of the deceased and P.W.6, the father of the deceased, were informed about the mishap and had rushed to the marital house of the deceased, from where the deceased was already taken to the Adoor CHC. P.Ws 4 and 6 hence had rushed to the Adoor CHC, where they joined P.W.5 and P.W.12. P.W.4 had talked to the deceased at the hospital, where she was administered first aid and was also informed by the deceased about the burns inflicted on her by the appellant. P.W.6 and P.W.12 have deposed that it was in the Medical College Hospital at Thiruvananthapuram that the deceased spoke to them about the appellant being behind the burns caused on her. Above all is the statement, Exhibit P12, recorded by P.W.20. Exhibit P12 is a rendering of the immediate circumstance that led to the eruption of a quarrel, the subsequent taunt made by the appellant to the withdrawing deceased, the act of throwing kerosene on the body of the deceased and setting her on fire. These are the very compelling circumstances which the prosecution would rely on to answer the question of 'who did it?'. 12. These are the very compelling circumstances which the prosecution would rely on to answer the question of 'who did it?'. 12. The principles for evaluation of evidence, in a case of this nature purely dependent on the immediate and surrounding circumstances, have been laid down by the Supreme Court time and again and reiterated in Kishore Chand v. State of H.P. [AIR 1990 SC 2140] "In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis". Hence, the paramount consideration being the exclusion of every reasonable hypothesis consistent with the innocence of the accused, in this case the theory of suicide and accident has to be dealt with at the first instance. 13. The theory of suicide has been solely propounded by the hostile witness, P.W.13. When the deceased came to the house of P.W.13, it is admitted that P.W.13, D.W.1 and P.W.7 were present there. P.W.13 turned hostile and contrary to what was stated before the police, deposed before the Court that the deceased on being queried about the cause of burns, replied that she had poured kerosene over herself and set fire. However, neither P.W.7 who also turned hostile, nor D.W.1, the wife of P.W.13, a witness arrayed on behalf of the accused, have such a case. The attendant circumstances also goes against the theory of suicide, more so when the accused himself does not have such a case. However, neither P.W.7 who also turned hostile, nor D.W.1, the wife of P.W.13, a witness arrayed on behalf of the accused, have such a case. The attendant circumstances also goes against the theory of suicide, more so when the accused himself does not have such a case. The theory of suicide propounded by P.W.13, in our opinion, is a mere figment of imagination, which is to be discarded at the threshold. 14. Now comes the theory of accident raised by the accused and by going by the suggestions in the cross examination and the statement under Section 313 as also spoken to by D.W.3. D.W.3, as has been noticed earlier, was an old infirm woman in her eighties. The house in which the incident occurred is a two room shanty and if the theory of accident is to be believed; despite her age and infirmity, it was only natural that D.W.3 would have made attempts to put out the fire or at least alert the neighbours. The presence of the old lady in the room in which the incident occurred cannot, for a moment, be believed for the glaring absence of any evidence regarding her involvement. Neither the neighbours or the persons who gathered there speaks of D.W.3's presence and D.W.3 also has not suffered any burns to her person or clothes. An accident, of course, would also have left telltale signs of burning of other articles in the room. The deceased, her clothes and her properties alone were singed in the incident. From the deposition of D.W.3 before Court it has come out that D.W.3, at the time when the incident occurred, was in the care of her nephew, the appellant, and thereafter in the care of her sister, the mother of the appellant, making her interested. The version of accident spoken of by her considered in the totality of circumstances is to be rejected as an interested version. 15. Another compelling circumstance to discard the plea of accident is the absence of the accused after the incident. The accused, no doubt, has to account and explain his whereabouts at the time of the accident. The house in which the incident occurred was inhabited solely by the appellant, his wife and his aunt. 15. Another compelling circumstance to discard the plea of accident is the absence of the accused after the incident. The accused, no doubt, has to account and explain his whereabouts at the time of the accident. The house in which the incident occurred was inhabited solely by the appellant, his wife and his aunt. The explanation offered by the accused in his 313 statement is that while he was returning from a petty shop after purchasing groceries he saw a commotion at P.W.13's house and on going there, he found his wife covered in a dhoti sitting inside a car. When he queried to P.W.5 standing there, it is his contention, that P.W.5 replied that he will explain later. This contention itself is unbelievable, since it is not natural human conduct that a husband's query about what happened to his wife will be dismissed with such levity and in the improbable event of that happening, the husband would definitely not swallow it without demur. It is the further case of the appellant that he had then gone to his house where D.W.3 told him about the accident. He claims to have again gone to the hospital at Adoor, where again he asserts that though he tried to stop the vehicle transporting his wife, he was ignored. In assessing the veracity of the statement made by the appellant/accused, this Court is aided by the evidence offered by the driver of the car which transported the deceased from P.W.13's house to the CHC, Adoor, who was a defence witness. D.W.2 would say that while transporting the injured from P.W.13's house, about 100 meters ahead the accused was seen coming towards the car and when D.W.2 tried to stop the car, P.W.5, who was inside the car, asked him not to stop since it was a case of burns. This would lay bare the inconsistency in the explanation offered by the appellant and the defence witness. The explanation is inherently infirm and inconsistent and cannot persuade this Court to conclude that the appellant was not present in the house at the time of occurrence. On the contrary, it establishes the presence of the appellant in the vicinity. 16. This would lay bare the inconsistency in the explanation offered by the appellant and the defence witness. The explanation is inherently infirm and inconsistent and cannot persuade this Court to conclude that the appellant was not present in the house at the time of occurrence. On the contrary, it establishes the presence of the appellant in the vicinity. 16. One other circumstance weighing heavily upon the mind of this Court is that on the deceased going to P.W.13's house the only attempt made by the neighbours was to inform the father of the deceased and none has thought it fit to inform the appellant or at least enquire about his whereabouts. The theory of accident again has the ring of incredulity. Having dealt with the probability of every hypothesis of innocence of the accused, now we proceed to the task of looking at whether the guilt of the accused is established beyond all reasonable doubt. 17. P.W.5, among the relatives, who had the first opportunity to see the injured and accompany her to the CHC, Adoor speaks of the statement made by the deceased about the incident. True, he talks about such statement being made after first aid was given. It is only natural that on seeing his badly burnt niece his first concern would have been to give her first aid and only then would a normal person seek the cause of such burns. P.W.4, the sister of the deceased, also speaks of the statement of the deceased at the CHC, Adoor. P.W.6 and P.W.12, respectively the father and brother-in-law of the deceased, speak of the statement made by the deceased to them at the Medical College Hospital, Thiruvananthapuram. The statements to various witnesses having been made at different places alone cannot discredit the statement as such. It is only natural that the witnesses did not want to speak about hearsay before Court and honestly stated the exact time and place where the deceased herself narrated the incident to them. 18. P.W.13 was the only person who talked about an attempt to commit suicide, which we have earlier found to be wholly unreliable in the facts and circumstances of the case. D.W.1, even contrary to the hostile stand taken by her husband, would try to make out that she had not queried the deceased about the cause of burns. 18. P.W.13 was the only person who talked about an attempt to commit suicide, which we have earlier found to be wholly unreliable in the facts and circumstances of the case. D.W.1, even contrary to the hostile stand taken by her husband, would try to make out that she had not queried the deceased about the cause of burns. Having claimed to be the close friend of the deceased, we ask ourselves, is it possible that D.W.1 did not attempt to elicit the cause of the burns from the deceased, even when she admits that while P.W.13 and P.W.7 had gone for getting a suitable transportation the deceased was resting at her house? The entire evidence of D.W.1, according to us, is tainted and is only to be discarded. 19. Coming to the reliability of the related witnesses, it has been laid down that mere relationship is not a reason to discard such evidence. The factum of interest necessarily cautions the Court when approaching such evidence and restricts the Court from relying on such evidence without some corroboration from the circumstances. Care and caution in good measure is required on appreciating the evidence of such witnesses and if they are found to be cogent, credible and trustworthy, the same can be relied upon and cannot be discarded merely on the ground that they are close relatives [vide Onkar v. State of U.P., (2012) 2 SCC 273]. In this case, the statement made by the interested witnesses corroborates the first statement made by the deceased to P.W.18, who gave her first aid and recorded the same in Exhibit P11 wound certificate. The statement in Exhibit P11 is proximate to the incident and is the first statement of the deceased which is corroborated by the other witnesses, who admittedly had been present along with her at the hospital till the time her death. P.W.18 was unshaken in cross-examination also and categorically stated that the patient had told him that her husband torched her. 20. The cause of injury recorded by P.W.18 in Exhibit P11 was assailed on the ground that the intimation said to have been given by P.W.18 was not received at the Police Station and that the reference note issued has not been produced and proved. It cannot be disputed that the deceased was provided with first aid by P.W.18 at CHC, Adoor. It cannot be disputed that the deceased was provided with first aid by P.W.18 at CHC, Adoor. The cause of burning recorded by P.W.18, as told by the patient, is proximate to the occurrence and cannot be disbelieved merely for the reason that the intimation said to have been sent by P.W.18 and the reference note have not been produced or proved. The most proximate version of the incident recorded as stated by the victim is consistent with the version given by P.Ws 4 and 5, both of whom heard about the incident from the deceased at the CHC, Adoor. P.Ws 6 and 12 have also deposed about the version of the deceased, which tallies with the other declarations made by the deceased and there cannot be any doubt regarding it, merely for the fact that the said witnesses heard it from the deceased at the Medical College Hospital, Thiruvananthapuram. In this context, it is also to be noticed that P.W.13, who saw the accused at the first instance after the incident, was declared hostile for the reason of deviating from the earlier statement, which was to the effect that the appellant torched her. 21. The counsel for the appellant would, however, invite us to the cause recorded in Exhibit P13 case record, which reads as "History obtained from bystander: H/O accidental burns from kerosene lamp" (sic). This alone, in our opinion, cannot lead to the statement of the deceased to be disbelieved. It is borne out from the records that the deceased was accompanied by a number of persons and all of them had not spoken to the deceased at that point of time or heard her explanation about the incident. None of the persons who accompanied the deceased evidently had witnessed the incident also. Though the history recorded in Exhibit P13 was specifically put to P.W.21, doctor, in her cross-examination it is pertinent that the defence made no attempt to elicit as to who the bystander was or as to whether the history spoken of was a hearsay or direct knowledge. In this context, we would seek for further corroboration from Exhibit P12 recorded by P.W.20. 22. The counsel for the appellant argues against the admissibility of the dying declaration in a direct challenge against Exhibit P12 recorded by P.W.20. In this context, we would seek for further corroboration from Exhibit P12 recorded by P.W.20. 22. The counsel for the appellant argues against the admissibility of the dying declaration in a direct challenge against Exhibit P12 recorded by P.W.20. The counsel would place reliance on a number of decisions to point out that no Magistrate was called to record the dying declaration of the deceased and that no certificate was issued by the doctor regarding the state of mind of the deceased and that from the medical records it is clear that the patient was being administered sedatives, which would go against her being conscious and coherent when the declaration was alleged to be made. 23. In State of A.P. v. Guvva Satyanarayana [(2008) 12 SCC 692], the Supreme Court was considering a similar case of uxoricide, wherein the deceased was admitted in the hospital at 11.45 p.m. having suffered burns from an incident which took place at 9.00 p.m. and on the next day at 5.40 a.m. gave a dying declaration implicating the accused. Noticing that the doctor had noted that the deceased is alleged to have sustained burns accidentally at her residence, the Supreme Court refused to reverse the order of acquittal passed by the High Court. In the said case, the crucial aspect noticed by the Supreme Court was that the complainant as well as the mother of the deceased who accompanied the deceased to the hospital claimed that the deceased was unconscious and regained consciousness only on the second day. It was in this circumstance that the dying declaration said to have been recorded by none other than the Magistrate himself was disbelieved. In State of Rajasthan v. Wakteng [(2007) 14 SCC 550] , the Supreme Court held that merely because a statement is recorded by a police personnel and the thumb impression of the deceased was affixed, it cannot be straightway rejected. However, the dying declaration recorded in the said case was disbelieved on the ground that the Station House Officer who recorded the declaration did not ascertain from the doctor about the state of mind of the declarant; nor was the doctor aware of any such declaration being recorded. It was held in the facts of the said case that there was no explanation for not summoning a Magistrate for the purpose of recording such statement. It was held in the facts of the said case that there was no explanation for not summoning a Magistrate for the purpose of recording such statement. Shaikh Rafiq & another v. State of Maharashtra [(2008) 3 SCC 691] was also a case in which the Assistant Sub Inspector on information received from the hospital proceeded to record the dying declaration, but failed to call a Magistrate in spite of his availability. In addition to this, the fact of absence of certificate from the Medical Officer and the failure to record the time when declaration was made also was held to be fatal to the prosecution. In Shaikah Bakshu and others v. State of Maharashtra [(2007) 11 SCC 269], the admissibility of the dying declaration was refused for more than one infirmity. Reliance was also placed on the decision in Mehiboobsab Abbasabi Nadaf v. State of Karnataka [(2007) 13 SCC 112], in which case four dying declarations were made, each attributing the incident to different causes and not naming all the accused. The decision in Sarojini Amma v. State of Kerala [2003 Crl.L.J. 3323 (Ker)] was also urged before us to show that the effect of sedatives administered to a patient is a relevant factor to be considered while deciding the acceptability of a dying declaration. 24. Relying on the above decisions, the learned counsel for the appellant would assail the dying declaration made in the instant case on the grounds stated above. None of the decisions referred to above, in our opinion, provides a breather to the appellant. But for the fact that the decisions placed by the counsel, invariably related to wife-burning, that too by kerosene, the circumstances were totally different. Apart from factual parallels, law has to be applied to the circumstances. Precedents, particularly in a criminal case, are not closed corpus of theories to be applied mechanically, but are sources of inspiration constantly feeding the judicial thought process. 25. In dealing with the contention regarding no Magistrate being made available for recording the declaration, we, for a moment, deviate from the facts in issue. Dying declaration, as is noticed in all the decisions cited before us, was one in which the declarant was faced with imminent death and the sanctity of such statements does not require any over emphasis. In dealing with the contention regarding no Magistrate being made available for recording the declaration, we, for a moment, deviate from the facts in issue. Dying declaration, as is noticed in all the decisions cited before us, was one in which the declarant was faced with imminent death and the sanctity of such statements does not require any over emphasis. It is trite law that great solemnity and sanctity is attached to the words of a dying man, because faced with the imminent possibility of meeting his maker, no one is likely, going by normal human conduct, to make up a story and implicate an innocent person. The shroud of mystery and fear of what happens after death and the resultant solemnity of the occasion persuaded the law makers to permit admissibility of declarations made on such occasions; even at the risk of prohibiting the accused from having an opportunity to challenge the veracity of the same by cross-examination. The Indian Evidence Act however goes a step further and provides in subsection (1) of Section 32 that when a statement is made by a person as to the cause of his death or the circumstances resulting in his death; the same is relevant, irrespective of whether such person was under expectation of death or not. Further the mode of examination of witnesses by the police and the recording of such statement has been provided under Section 161 of the Code of Criminal Procedure. However, by Section 162 of the Code of Criminal Procedure, no such statement shall be signed or used as evidence at any enquiry or trial. Section 162(2) carves out an exception and provides a specific exclusion of any statement falling within the purview of sub-section (2) of Section 32 of the Indian Evidence Act. Hence, even a statement recorded by the police under Section 161 though not admissible as evidence under Section 162, for the purpose of Section 32(1) can be deemed to be a dying declaration. Exhibit P12 being a statement recorded under Section 154 and signed by the informant stands on a better footing than a statement under Section 161 going by the clear provisions of the Code. Exhibit P12 in such circumstances can definitely be considered as a declaration made by the deceased under Section 32(1) of the Evidence Act and is definitely a very compelling circumstance in the instant case. 26. Exhibit P12 in such circumstances can definitely be considered as a declaration made by the deceased under Section 32(1) of the Evidence Act and is definitely a very compelling circumstance in the instant case. 26. All the decisions cited above deal with a situation in which the declarant and the person who recorded it was aware of the imminent death of the declarant. It was in such circumstance that the Hon'ble Supreme Court disbelieved the declarations for the reason of not having summoned a Magistrate to record the same. In the instant case as also in the context of Section 32(1) of the Indian Evidence Act, we are afraid that the use of the word "dying declaration" is a misnomer and even we have used the term by rote. It is pertinent that in this case P.W.20 did not proceed to the hospital to record a dying declaration as such. On information being received from the Medical College Hospital, P.W.20 along with a woman constable was deputed for the purpose of recording the statement of the victim in the alleged incident. The statement so recorded under Section 154 of the Code of Criminal Procedure; by the subsequent death of the declarant, assumed relevance under Section 32(1) of the Indian Evidence Act. The failure to summon a Magistrate, in the facts and circumstances, cannot be the sole ground to affect its admissibility. We also take into account the consistent statements made by the deceased to her sister, uncle, father and brother-in-law as also the cause of injury recorded by P.W.18; the last being the earliest after the incident. 27. The next contention urged by the counsel for the appellant is that no certificate was issued by the doctor regarding the state of mind of the deceased and her competence to make a coherent declaration; before such declaration was taken from her. To further buttress this argument, the learned counsel took us through the medical case records, Exhibit P13, and points out that the patient was administered "phenergan" and "pethidine" in an eight hourly period and the administration of the same would result in the sedation of the patient, thus making it further impossible for the declarant/patient to honestly and clearly narrate the cause of the burns. In this context, it is pertinent that P.W.20, who recorded Exhibit P12, specifically stated in cross examination that before recording the statement he had gone to the duty room and through the duty nurse he had enquired with the doctor as to the condition of the patient and thus ensured her competence. Again, we remind ourselves that this was not a case where there was any expectation of death and even according to the doctor the patient was conscious and oriented. The fact that P.W.20 had ensured the competence from the Medical Attendant, obviously is consistent with his earlier statement to the investigating officer, since no contradiction has been marked. Much has been made about the administration of the two drugs mentioned above and the resultant sedation it causes. The learned counsel for the appellant would specifically refer to the decision in Sarojini Amma's case (supra) to contend that on such administration of drugs being evident from the record, the Court has to disbelieve the declaration without anything more. We do not think that the decision lays down any such blanket embargo. In the present context it is pertinent that P.W.20 was not questioned about the administration of drugs or the possible sedation of the declarant. P.W.20 asserts otherwise on the strength of the enquiry made with the doctor and the examination and the body note, Exhibit P12(a), made by the woman constable accompanying P.W.20. Further, P.W.21, the doctor under whose care the patient was, has not been questioned about the effect of administration of drugs noticed in the medical record. P.W.21 has, before Court, categorically stated that the patient was conscious and oriented and that the deterioration was noticed only at 7.30 p.m. on 17.5.2005. The mere fact that the patient was examined by the doctor at 10.00 a.m. does not lead to a conclusion that her state was different at 1.00 p.m., when the declaration was recorded. It is not as if the doctor is, at all time, excepted to be at the bed side of the patient. The duty nurses monitor the condition of a patient admitted critically and any deterioration would definitely be brought to the notice of the Medical Attendant. The administration of the drugs by itself cannot lead to any adverse inference regarding the condition of the victim or her competence to make a declaration and no such circumstances was suggested to the doctor. The duty nurses monitor the condition of a patient admitted critically and any deterioration would definitely be brought to the notice of the Medical Attendant. The administration of the drugs by itself cannot lead to any adverse inference regarding the condition of the victim or her competence to make a declaration and no such circumstances was suggested to the doctor. 28. The last contention assailing Exhibit P12 is regarding the difference of signature. Inter alia, it is to advance the said challenge that D.W.1 has been examined. We have noticed before that the evidence of D.W.1 inspires absolutely no confidence. However, to meet D.W.1's evidence regarding the difference in signature in Exhibit P12 being not of the appellant, we once again visit her evidence. D.W.1, while asserting that she is very familiar with the signature of the deceased, however, admits that she does not know how her husband or her two children put their signature. Less said about her evidence, the better. The contention as such does not merit any consideration, keeping in mind the social status and literacy of the deceased as also the chances of the signature of such persons constantly being subject to change. The financial and societal compulsions not to alter a signature is totally absent in the case of the deceased. 29. On the basis of the above general discussions of the law with particular reference to the circumstances revealed in the instant case, we are of the opinion that Section 154 statement recorded from the deceased is one that can be safely held to be admissible and acceptable under Section 32(1) of the Evidence Act. Admissible, since under Section 32(1) any statement made by a person as to the cause of his/her death is relevant in cases in which the cause of that person's death comes into question whether or not such person was or was not at the time of making the statement under expectation of death or not. We also draw sufficient support from Section 162 of the Code of Criminal Procedure, which excludes the use of any statement made under Section 161 in evidence; but carves out an exception with respect to any statement under clause (1) of Section 32 of the Indian Evidence Act. The statement made under Section 154 stands on a better footing than a statement under Section 161 of the Code. The statement made under Section 154 stands on a better footing than a statement under Section 161 of the Code. Acceptable, for the reason that the facts as revealed by the substantive evidence recorded in the above case necessarily inspires confidence in the mind of the Court about the sincerity and veracity of the statement recorded from the deceased. The attendant circumstances pointing to the capacity and competence of the deceased at the time of making the statement along with her earlier statements on the very same lines spoken to the relatives adds to the credibility of the version. Unhesitatingly we draw support from such statement made by the deceased about the circumstances which led to her death. 30. The only other contention remaining to be looked into is that of the kerosene in the lamp being insufficient to cause the burns suffered. There can be no dispute that the burns were caused by kerosene and but for the lamp, there was absolutely no source recovered from the premises. The lesser quantity of kerosene in fact would go against the theory of suicide and accident, since in such event the possibility is more for a confined, concentrated burning. However, when kerosene is thrown on a person, it splashes over a large area and the possibility of such extensive burning is more. It is also to be noticed that the deceased was wearing a synthetic nightie at the time of the incident as is revealed from Exhibit P2 FSL report, which increases the effect of burning. 31. Considering the entire circumstances; the harassed life of the deceased, the violent and alcoholic tendencies of the appellant, the scientific and medical evidence regarding the cause of death, the dying declaration made by the deceased and the unerring presence of the appellant as also his conduct after the incident, not a grain of doubt remains in our mind regarding the guilt of the accused as is established by the prosecution. The circumstances surely and definitely form a chain without a single weak unit and unfailingly pin the 'WHO' on the appellant. Each of the circumstances individually and together bristles with the conclusion of murder as provided under Section 300 of the Indian Penal Code and such wilful conduct of the appellant necessarily amounts to 'cruelty' as defined under Explanation (a) of Section 498A. Each of the circumstances individually and together bristles with the conclusion of murder as provided under Section 300 of the Indian Penal Code and such wilful conduct of the appellant necessarily amounts to 'cruelty' as defined under Explanation (a) of Section 498A. The conviction of the appellant passed under Section 498A IPC and under Section 302 IPC is liable to be confirmed. 32. The appeal, hence, deserves to be dismissed and is, accordingly, dismissed.