Crl.A(MD)Nos.449 & 576 of 2022 & Crl.R.C(MD)No.941 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 02.02.2026

PRONOUNCED ON : 11.02.2026

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

AND

THE HONOURABLE MS.JUSTICE R.POORNIMA

Crl.A(MD)Nos.449 & 576 of 2022 &

Crl.R.C(MD)No.941 of 2022

1.Crl.A(MD)No.449 of 2022:

Mohandass ... Appellant/Accused No.1

Vs.

State by,

The Inspector of Police,

C.3, S.S. Colony (L & O) Police Station,

Madurai.

(Crime No.518 of 2016).... Respondent/Complainant

PRAYER:- Criminal Appeal is filed under Section 374 of Cr.P.C to

call for the records and set aside the Judgment of the lower Court

made in Sessions Case No.19 of 2017 on the file of the Court of

Sessions Judge, Mahalir Neethimandram, Madurai dated 12.04.2022

and acquit the appellant herein from the above said charges.

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Crl.A(MD)Nos.449 & 576 of 2022 & Crl.R.C(MD)No.941 of 2022

For Appellant: Mr.R.Shanmugasundaram

Senior Counsel

for Mr.V.Purushothaman

For Respondent: Mr.T.Senthil Kumar

Additional Public Prosecutor

2.Crl.A(MD)No.576 of 2022:

Shanmugam ... Appellant/Accused No.2

Vs.

State by,

The Inspector of Police,

C.3, S.S. Colony (L & O) Police Station,

Madurai.

(Crime No.518 of 2016).... Respondent/Complainant

PRAYER:- Criminal Appeal is filed under Section 374(2) of Cr.P.C

to call for the records and set aside the Judgment of the lower Court

made in Sessions Case No.19 of 2017 on the file of the Court of

Sessions Judge, Mahalir Neethimandram, Madurai dated 12.04.2022

and acquit the appellant herein from the above said charges.

For Appellant: Mr.N.Mohideen Basha

For Respondent: Mr.T.Senthil Kumar

Additional Public Prosecutor

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3.Crl.R.C(MD)No.941 of 2022:

M.Jeganathan ... Petitioner/P.W.1

Vs.

1.Mohandass

2.Shanmugam ... Respondents 1 & 2/

Accused Nos.1 & 2

State represented by,

The Inspector of Police,

C.3, S.S. Colony (L & O) Police Station,

Madurai.

(Crime No.518 of 2016). ... 3

rd

Respondent/Complainant

PRAYER:- Criminal Revision is filed under Section 397 read with

401 of Cr.P.C to call for the records from the lower Court in

Judgment in Sessions Case No.19 of 2017 dated 12.04.2022 on the

file of the Sessions Judge, Mahalir Neethimandram, Madurai and set

aside the same and consequently award death punishment to the

respondents 1 and 2.

For Petitioner: Mr.K.Prabhu

For Respondent: Mr.T.Senthil Kumar

Additional Public Prosecutor

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Crl.A(MD)Nos.449 & 576 of 2022 & Crl.R.C(MD)No.941 of 2022

COMMON JUDGMENT

(Judgment of the Court was delivered by

G.K.ILANTHIRAIYAN, J.)

Crl.A(MD)Nos.449 and 576 of 2022 are directed as against

the Judgment passed in Sessions Case No.19 of 2017 dated

12.04.2022 on the file of the Sessions Judge, Mahalir

Neethimandram, Madurai, thereby convicting the appellants for the

offences punishable under Sections 120-B and 302 of I.P.C.

2.Crl.R.C(MD)No.941 of 2022 is filed by P.W.1 for

enhancement of punishment in Sessions Case No.19 of 2017 dated

12.04.2022 on the file of the Sessions Judge, Mahalir

Neethimandram, Madurai.

3.The case of the prosecution is that the deceased married

the first accused and gave birth to three children. While so, the first

accused became suspicious of the conduct of the deceased, and as a

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result, misunderstanding arose between them. Hence, the deceased

left the matrimonial home of the first accused and went to her

parents' house along with the three children.

4.Thereafter, the deceased filed a petition for divorce in

H.M.O.P. No. 406 of 2014 on the file of the Family Court, Madurai,

in which she also filed a petition seeking interim maintenance for

herself and the children.

5.Consequently, the first accused developed aversion and

motive against the deceased on the grounds that she had failed to

cooperate with him in their family life and had also obtained an

order of interim maintenance against him. Hence, the first accused

frequently threatened the deceased by stating that he would pour

petrol on her and set her on fire in order to compel her to withdraw

the divorce petition.

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6.However, the deceased did not withdraw the divorce

case, and as such, the first accused conspired with the second and

third accused to do away with the life of the deceased. The second

accused is the driver of the first accused, and the third accused is a

friend of the first accused.

7.While being so, on 03.05.2016 at about 9.30 a.m., the

deceased came to the Family Court to attend the hearing and

thereafter returned to her house. When she proceeded to her house at

about 11.45 a.m. and attempted to open the door, the second and

third accused arrived in a motorcycle.

8.At the instigation of the first accused, the second accused

threw chilli powder on the face of the deceased and poured petrol on

her from a silver bucket, and the third accused also threw a burning

torch upon the deceased. As a result, the deceased caught fire and

screamed.

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9.At that juncture, the first accused also shouted at the

deceased to die. Thereafter, all the accused fled away from the scene

of occurrence. Immediately, the deceased was taken to the

Government Rajaji Hospital, Madurai, by her father. However, she

succumbed to her injuries on 03.05.2016 at about 8.30 p.m.

10.Based on the complaint, the respondent registered the

F.I.R in Crime No.518 of 2016 for the offences punishable under

Sections 109, 120(B), 302 read with 34 of IPC and Section 4 of

TNPHW Act. After completion of the investigation, a final report

was filed and the same was taken cognizance by the Trial Court.

11.In order to bring the charges to home, the prosecution

examined P.W.1 to P.W.30 and marked Exs.P1 to P31. The

prosecution also produced Material Objects M.O.1 to M.O.17. On

the side of the accused, marked Ex.D.1 to Ex.D.5 and no witnesses

were examined before the Trial Court.

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12.On perusal of the oral and documentary evidence, the

trial Court found the first accused guilty for the offences punishable

under Sections 120-B and 302 of I.P.C and sentenced him to undergo

life imprisonment for each offence and imposed a fine of Rs.

25,000/- for each offence in default, to undergo one year Simple

Imprisonment for each offence. The Trial Court found the second

accused guilty for the offences punishable under Sections 120-B and

302 of I.P.C and sentenced him to undergo life imprisonment for

each offence and imposed a fine of Rs.10,000/- for each offence in

default, to undergo one year Simple Imprisonment for each offence.

Aggrieved by the same, the appellants/Accused Nos.1 and 2 have

filed the Criminal Appeals.

13.P.W.1, who is the father of the deceased, filed Crl.R.C.

(MD) No. 941 of 2022 seeking enhancement of the punishment

imposed on Accused Nos. 1 and 2.

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14.The learned Senior Counsel appearing for the

appellant/A.1 in Crl.A. (MD) No.449 of 2022 submitted that the

dying declaration was marked as Ex.P17 and the complaint was

marked as Ex.P1. Both the complaint and the dying declaration are

doubtful, and these documents were fabricated at the instigation of

P.W.1, who had hatred towards the first accused from the very

beginning.

15.Further, there were material contradictions with regard

to the left thumb impression found in the complaint marked as

Ex.P1 and the left toe impression in Ex.P17. In order to falsely

implicate the accused, both documents were fabricated by the

prosecution and produced before the Trial Court.

16.The so-called material witness was examined as P.W.3

and P.W.3 did not even identify any of the accused. Exs. D1 and D2

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clearly establish that there was a cordial relationship between the

first accused and the children.

17.The learned senior counsel further submitted that, in

fact, the first accused had filed a petition for restitution of conjugal

rights against the deceased, and the same was pending at the time of

the alleged occurrence. Therefore, when the first accused had no

intention to do away with the life of the deceased, there was no

motive on his part to cause her death.

18.Even assuming that the dying declaration is believable,

there is no implication of the accused herein. No one had witnessed

the occurrence, including the deceased. According to the deceased,

two persons came on a motorcycle and threw chilli powder on her

face. Therefore, she could not identify the accused persons.

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19.Due to the alleged occurrence, the deceased sustained

90% to 95% burn injuries. Even then, her statement was recorded by

the Sub-Inspector of Police and an F.I.R. was registered. Further, her

dying declaration was recorded, in which her left toe impression was

obtained, whereas in the complaint, her left thumb impression was

obtained by the Sub-Inspector of Police. These material

contradictions are fatal to the case of the prosecution.

20.Therefore, there was absolutely no necessity for the first

accused to cause the death of his own wife. In fact, the first accused

had only filed a petition for restitution of conjugal rights, and

thereafter the deceased filed a petition for divorce, which is nothing

but a counter-blast.

21.Though the first accused raised a plea of alibi that, at

the time of the alleged occurrence, he was in Hotel Aarthi at Madurai

along with his advocate, and also made a statement under Section

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313 of Cr.P.C., the names of the accused were not mentioned in the

Accident Register, the complaint, or the dying declaration.

Therefore, the prosecution did not produce any piece of evidence to

implicate the accused in this case.

22.Further, the deceased was not in a fit state of mind to

give a dying declaration. The doctor who certified the deceased as

being in a fixed state of mind was not a Medical Officer of the

Government Rajaji Hospital, Madurai, but a postgraduate student. In

fact, he certified that the deceased was in a fixed state of mind. The

same was clarified during cross-examination, wherein he

categorically admitted that he had certified the deceased as being in

a fixed state of mind.

23.According to the prosecution, the accused poured petrol

from a silver bucket and a Bovonto plastic bottle, which were

produced as M.O.6 and M.O.7. It is highly difficult to believe that

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the accused poured petrol from a silver bucket. The entire case of the

prosecution is a cooked-up one in order to falsely implicate the

accused in this case. Therefore, the prosecution has failed to prove

the charges beyond reasonable doubt.

24.The prosecution has also failed to prove the “last seen”

theory by any piece of evidence. The accused were implicated in this

case solely on presumption and assumption. Further, the Trial Court,

based only on the dying declaration of the deceased, convicted the

accused without any other corroborative evidence.

25.The learned counsel appearing for the appellant/A.2 in

Crl.A. (MD) No. 576 of 2022 submitted that the second accused is in

no way connected with the alleged occurrence and has been falsely

implicated merely because he was the driver of the first accused. No

witness has spoken about the role played by the second accused, and

no one identified him.

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26.The complaint, the dying declaration, and the statement

of the deceased are all doubtful, and these documents were

fabricated at the instigation of P.W.1. Though the prosecution

marked M.O.6 and M.O.7 as if the accused brought petrol in a silver

bucket and a soft drink bottle, it failed to prove from where the

petrol was purchased. Further, P.W.12 and P.W.13 turned hostile and

did not support the case of the prosecution.

27.Even according to the case of the prosecution, none of

the witnesses had witnessed the alleged occurrence of sprinkling

chilli powder and pouring petrol on the deceased. Only on the

information given by the driver, P.W.1 and P.W.2 came to the house

of the deceased. Further, P.W.1 and P.W.2 did not know whether the

deceased had affixed her left toe impression, and they did not even

see the dying declaration. Therefore, the conviction and sentence

imposed on the second accused cannot be sustained and are liable to

be set aside.

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28.Per contra, the learned Additional Public Prosecutor

appearing for the respondent submitted that the prosecution had

categorically proved the motive behind the crime. Admittedly, the

deceased was the wife of the first accused, and they had separated

due to misunderstanding between them. Since the deceased filed a

petition for divorce against the first accused, the first accused

conspired with the other accused to do away with the life of the

deceased.

29.After attending the Court hearing, when the deceased

was stepping into her house, the accused threw chilli powder to

screen their identity, and thereafter poured petrol on her and set her

on fire.

30.P.W.1 and P.W.2 categorically deposed about the motive

and the conspiracy to do away with the life of the deceased.

Immediately upon receiving intimation from the hospital, the Sub-

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Inspector of Police went to the hospital and recorded the statement

of the deceased. The deceased was conscious and was able to give

her statement. Thereafter, the Sub-Inspector of Police recorded her

statement and registered the F.I.R., which was marked as Ex. P1.

31.The statement is clear and cogent, and there is

absolutely no reason to disbelieve the statement recorded from the

deceased. Thereafter, in the presence of the learned Magistrate, the

dying declaration was recorded and marked as Ex. P17. The doctor

who certified that the deceased was in a fit state of mind was also a

duty doctor and was part of the emergency ward team. Therefore, he

was competent to certify whether the deceased was in a fit state of

mind or not.

32.The Trial Court convicted the accused not only based on

the confession statement but also on other circumstantial evidence.

The children of the deceased and the first accused categorically

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deposed that the first accused very often used to quarrel with the

deceased. The first accused also threatened the deceased to withdraw

the divorce petition if not, he will pour petrol and set her on fire.

Further they also deposed that after recording dying declaration they

had spoken to the deceased. The deceased informed them that the

first accused only poured petrol and set fire on her. Therefore the

prosecution clearly proved the charges and the Trial Court rightly

convicted the accused and it does not warrant any interference of

this Court.

33.The learned counsel appearing for the petitioner in

Crl.R.C. (MD) No. 941 of 2022 submitted that P.W.1 had filed this

revision petition seeking enhancement of the sentence imposed on

the first and second accused. However, during the pendency of this

revision, the sole petitioner died, and no one came forward to step

into the shoes of the revision petitioner. Therefore, this revision

petition is liable to be dismissed for default.

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34.Heard the learned counsel appearing on either side and

perused the materials available on record.

35.The first accused is none other than the husband of the

deceased. They got married on 29.01.2001 and were blessed with

three children. Due to misunderstanding between them, they got

separated, and the deceased went to her parents' house along with the

children. While so, the first accused filed a petition for restitution of

conjugal rights in H.M.O.P.No.173 of 2015 on the file of the Family

Court, Chennai. After receipt of notice in the said petition, the

deceased filed a petition for divorce in H.M.O.P. No. 406 of 2014 on

the file of the Family Court, Madurai.

36.While being so, on 03.05.2016, the deceased returned

home from the Court hearing by car along with her driver at about

11.45 a.m., and as she was entering her house, two unknown persons

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approached her. One of them threw chilli powder on her face, and

the other poured petrol on her from a silver bucket and set her on

fire. Thereafter, the deceased screamed and fell down with burn

injuries.

37.Immediately, the driver of the deceased and others came

to the scene of occurrence and called a 108 ambulance. The driver

also informed the parents of the deceased, who were residing nearby.

They immediately reached the house of the deceased and took her to

the Government Rajaji Hospital, Madurai.

38.Her statement was recorded in the Accident Register to

the effect that two unknown persons had poured petrol on her and

set her on fire. She was admitted in Ward No. 301 at about 12.45

p.m., having sustained about 95% burn injuries.

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39.On intimation, the learned Judicial Magistrate No. VII,

Madurai, recorded the dying declaration between 01.50 p.m. and

02.05 p.m. Prior to recording the dying declaration, one Rajnihedan

certified that the deceased was conscious and in a fixed state of mind

to give the dying declaration. Thereafter, the dying declaration was

recorded by the learned Magistrate and marked as Ex. P17.

40.The dying declaration reveals that when the deceased

was returning home after attending her divorce case, two persons

threw chilli powder on her face, poured petrol on her, and set her on

fire. She further stated that the first accused had earlier threatened

that he would set her on fire by pouring petrol.

41.In the dying declaration, the learned Magistrate

obtained the left big toe impression of the deceased. Simultaneously,

the police were informed, and the Sub-Inspector of Police came to

the hospital and recorded the statement of the deceased at about

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01.15 p.m., which was marked as Ex. P18. In the said statement, the

left thumb impression of the deceased was obtained by the Sub-

Inspector of Police, who was examined as P.W.27. He registered the

F.I.R. on the basis of Ex. P1 at about 02.30 p.m. in Crime No. 518 of

2016. Thereafter, at about 08.30 p.m., the deceased was declared

dead by the Doctor.

42.The parents of the deceased were examined as P.W.1

and P.W.2. The driver of the deceased was examined as P.W.3;

however, he turned hostile and did not support the case of the

prosecution. The servant maid of the deceased was examined as

P.W.4, and she also turned hostile and failed to support the case of

the prosecution. The children of the first accused and the deceased

were examined as P.W.6 and P.W.7.

43.P.W.1 and P.W.2 deposed that three persons came to the

scene and that two of them threw chilli powder on the face of the

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deceased, while one of them poured petrol on her and set her on fire.

In fact, the driver of the deceased, examined as P.W.3, chased them

but could not apprehend them. The statement recorded from the

deceased was marked as Ex. P1, and the dying declaration recorded

from the deceased was marked as Ex. P17. Both documents reveal

that only two persons came to the scene of occurrence.

44.Further, there are material contradictions in the

complaint, which was marked as Ex.P1, the dying declaration was

marked as Ex.P17, and the statements recorded by the Judicial

Magistrate was marked as Ex.P21 and Ex.P22. Ex.P1 was recorded

from the deceased in Ward No.301 on 03.05.2016 at about 01.15

hours. Thereafter, the F.I.R. was registered at about 14.30 hours in

Crime No.518 of 2016 for the offences punishable under Sections

307 and 120(B) of the I.P.C., which was marked as Ex. P18.

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45.The learned Magistrate recorded the dying declaration

from the deceased between 13.50 hours and 14.05 hours. In Ex. P1,

the Sub-Inspector of Police obtained the left thumb impression of

the deceased, but in the dying declaration, the learned Magistrate

obtained the left toe impression. Before recording the dying

declaration, Dr. Rajnihedan examined the deceased and certified that

she was conscious, oriented, and in a fixed state of mind to give the

dying declaration.

46.The learned senior counsel vehemently contended that

the said doctor, who had deposed as P.W.29, was not the duty doctor

at the time of recording the dying declaration from the deceased. He

was only a postgraduate student and was merely a member of the

team in the emergency ward who could assist the duty doctor.

Therefore, his certification cannot be accepted, and he was not

authorized to certify that the deceased was conscious and oriented at

the time of giving the dying declaration.

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47.P.W.29 certified that the deceased was in a “fixed state

of mind.” This appears to be a typographical error, and P.W.29

clarified that he consciously certified the deceased as being in a

“fixed state of mind.” However, he did not even know the difference

between “fixed state of mind” and “fit state of mind.” He certified

the deceased as being in a “fixed state of mind.” Further, the dying

declaration requires corroboration in every aspect from a credible

source of evidence. Each and every sentence of the statement in

Ex. P17 must be proved by the prosecution through credible and

untainted evidence. However, the prosecution failed to corroborate

the same with any piece of evidence, and therefore, it is not

admissible under Section 32 of the Indian Evidence Act, 1872. The

relevant portion of Ex. P17 is as follows:

“Nfhh;by; bilNthu;]; Nf]; elf;fpwJ.

ePjpkd;wj;jpy; nrd;Wtpl;L tPl;bw;F

tUk;nghOJ ,uz;L Ngu; vd; Kfj;jpy;

kpsf;fha; nghb Nghl;lhu;fs;. ngl;Nuhy; clk;gpy;

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cw;wp gj;j itj;J tpl;lhu;fs;. vd; fzth;

mbf;fb ngl;Nuhy; Cw;wp nfhOj;jp tpLNtd;

vd;W $Wthu;. fztuplk; vd; gps;isfis

nfhLf;f Ntz;lhk;.”

48.Even assuming that Ex.P17 is an admissible evidence,

the deceased did not mention the name of the first accused as the

person who either instigated or directly set fire on her. After

recording Ex. P17, P.W.1 and P.W.2, along with P.W.5 to P.W.7,

spoke to the deceased. They deposed that the deceased told them that

their father poured petrol on her and set her on fire. When the

deceased mentioned specific overt act against the first accused to her

relatives, no one prevented her from stating it in her statement

recorded by P.W.27 and in Ex.P17 recorded by the learned

Magistrate.

49.The prosecution mainly relied upon P.W.3’s claim to be

an eyewitness to the scene of the crime. However, P.W.3 turned

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hostile and did not support the case of the prosecution. To identify

the accused, a test identification parade was conducted. Both the first

and second accused stated before the Judicial Magistrate, who

conducted the parade, that they were photographed and that their

photographs were shown to the witnesses. P.W.3 categorically

admitted that he was shown the photographs of the accused during

the test identification parade.

50.Thereafter, the Investigating Officer conducted an

inquest, and the inquest report was marked as Ex. P28. Ex. P28 does

not specifically state anything about the role played by the first

accused.

51.On receipt of intimation from the hospital, the Sub-

Inspector of Police, who deposed as P.W.27, went to the hospital at

about 01.15 p.m. and recorded the statement of the deceased, which

was also attested by P.W.1. However, in his deposition, he stated that

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he had received information from the hospital at about 12:00 noon.

The emergency ward doctor, who deposed as P.W.21, stated that the

deceased was brought to the hospital at about 12.30 p.m., which is

also supported by the Accident Register marked as Ex.P10.

Therefore, P.W.27 could not have received any intimation from the

hospital at about 12.00 noon, as the deceased was brought to the

hospital only at 12.30 p.m.

52.Further, P.W.27 recorded the statement of the deceased

without any certification from the duty doctor in charge of the ward

regarding whether the deceased was in a fit state of mind to give any

statement. This raises grave suspicion regarding the recording of the

complaint, marked as Ex. P1, from the deceased by the Sub-

Inspector of Police. This fact was also categorically admitted by him

during cross-examination.

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53.In this regard, the learned senior counsel appearing for

the appellant/A.1 relied upon the Judgment of the Hon’ble Supreme

Court of India in the case of Tarun Sharma vs. State of Haryana

[2025 SCC Online SC 2094], in which it was held as follows:

“55.A perusal of the statement/dying declaration

(Exh. P-34), further reinforces these doubts. Before

recording the said statement/dying declaration (Exh.

P-34) the recording officer, i.e., Sub-Inspector Somnath

(PW-17), neither noted nor recorded his own satisfaction

that the injured Munish Kumar was in a fit condition to

make a statement.

56. It has been consistently held by this Court in

a catena of decisions that the satisfaction of the person

recording the dying declaration is indispensable. A

Constitution Bench of this Court in Laxman v. State of

Maharashtra10, observed the following:

“3. …………Consequently, what

evidential value or weight has to be attached to

such statement necessarily depends on the facts

and circumstances of each particular case. What

is essentially required is that the person who

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records a dying declaration must be satisfied that

the deceased was in a fit state of mind. Where it is

proved by the testimony of the Magistrate that the

declarant was fit to make the statement even

without examination by the doctor the declaration

can be acted upon provided the court ultimately

holds the same to be voluntary and truthful. A

certification by the doctor is essentially a rule of

caution and therefore the voluntary and truthful

nature of the declaration can be established

otherwise.”

(Emphasis Supplied)

57. In the present case, the absence of

satisfaction recorded by the Sub-Inspector, Somnath

(PW-17), regarding the fitness of the injured Munish

Kumar to make a statement, casts a serious doubt on the

reliability of the statement/dying declaration (Exh.

P-34).”

54.Thus, it is clear that the person who records a statement

or dying declaration ought to satisfy themselves that the injured

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person is in a fit condition to make a statement. In the present case,

admittedly, P.W.27 failed to record his own satisfaction that the

deceased was in a fit state of mind.

55.Though the deceased was certified by P.W.29 as being

conscious, oriented, and in a fixed state of mind to give the dying

declaration, the emergency ward doctor, who deposed as P.W.21, and

the Associate Professor in charge of Ward No. 301, who deposed as

P.W.24, stated that they did not know any doctor by the name of

Rajnihedan. P.W.29 was working in the Government Rajaji Hospital,

Madurai, and there is no such medical officer in the burns injury

ward. Therefore, the credibility of P.W.29’s certification in the dying

declaration is seriously questionable, especially since it was made

without any registration number or Government office seal. Though

P.W.29 is qualified to certify, he was not authorized to certify the

deceased before recording her dying declaration. P.W.21, the

emergency ward doctor who admitted the deceased, and P.W.24, the

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Associate Professor in charge of Ward No. 301, were the officers

authorized to certify the deceased prior to recording her dying

declaration.

56.On perusal of the final report, the prosecution did not

even list P.W.29 as a witness. During the trial, in order to prove the

certification, he was examined as P.W.29. Therefore, P.W.29 was

subsequently included as a witness as an afterthought, which raises

serious suspicion regarding the credibility of P.W.29 and the

certification given by him in the dying declaration recorded by the

learned Judicial Magistrate.

57.It is also evident from the certification that he provided,

wherein he had stated that the deceased was in a “fixed state of

mind.” In medical terminology, no such expression exists. It was

certified as a “fixed state of mind” instead of a “fit state of mind.”

This point was also duly brought out during cross-examination by

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the defence. Except for the dying declaration, there is no other piece

of evidence to prove the charges against the accused. Although a

dying declaration which is not a deposition made in Court, is neither

given under oath, nor recorded in the presence of the accused, it is

admitted as evidence by way of an exception to the general rule

excluding hearsay, based on the principle of necessity.

58.The main points of a dying declaration serve merely to

put the Court on its guard while testing the credibility of the

declaration in light of the relevant circumstances.

59.In this regard, the learned senior counsel relied upon the

Judgment of the Hon’ble Supreme Court of India in the case of

Irfan alias Naka vs. State of Uttar Pradesh [2023 SCC Online SC

1060], wherein it was held as follows:

“61. In India too, a similar pattern is

followed, where the Courts are first required to satisfy

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themselves that the dying declaration in question is

reliable and truthful before placing any reliance upon

it. Thus, dying declaration while carrying a

presumption of being true must be wholly reliable and

inspire confidence. Where there is any suspicion over

the veracity of the same or the evidence on record

shows that the dying declaration is not true it will only

be considered as a piece of evidence but cannot be the

basis for conviction alone.

62. There is no hard and fast rule for

determining when a dying declaration should be

accepted; the duty of the Court is to decide this

question in the facts and surrounding circumstances of

the case and be fully convinced of the truthfulness of

the same. Certain factors below reproduced can be

considered to determine the same, however, they will

only affect the weight of the dying declaration and not

its admissibility: -

(i) Whether the person making the statement was in

expectation of death?

(ii) Whether the dying declaration was made at the

earliest opportunity? “Rule of First Opportunity”

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(iii) Whether there is any reasonable suspicion to

believe the dying declaration was put in the mouth of

the dying person?

(iv) Whether the dying declaration was a product of

prompting, tutoring or leading at the instance of

police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to

clearly observe the incident?

(vii) Whether, the dying declaration has been

consistent throughout?

(viii) Whether, the dying declaration in itself is a

manifestation / fiction of the dying person’s

imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself

voluntary?

(x) In case of multiple dying declarations, whether, the

first one inspires truth and consistent with the other

dying declaration?

(xi) Whether, as per the injuries, it would have been

impossible for the deceased to make a dying

declaration?

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63. It is the duty of the prosecution to

establish the charge against the accused beyond the

reasonable doubt. The benefit of doubt must always go

in favour of the accused. It is true that dying

declaration is a substantive piece of evidence to be

relied on provided it is proved that the same was

voluntary and truthful and the victim was in a fit state

of mind. It is just not enough for the court to say that

the dying declaration is reliable as the accused is

named in the dying declaration as the assailant.

64. It is unsafe to record the conviction on

the basis of a dying declaration alone in the cases

where suspicion, like the case on hand is raised, as

regards the correctness of the dying declaration. In

such cases, the Court may have to look for some

corroborative evidence by treating the dying

declaration only as a piece of evidence. The evidence

and material available on record must be properly

weighed in each case to arrive at an appropriate

conclusion. The reason why we say so is that in the

case on hand, although the appellant-convict has been

named in the two dying declarations as a person who

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set the room on fire yet the surrounding circumstances

render such statement of the declarants very

doubtful.”

60.Thus, it is clear that it is unsafe to record a conviction

solely on the basis of a dying declaration. In cases where suspicion

or doubt arises regarding the correctness of the dying declaration, it

is necessary to look for other corroborative evidence, treating the

dying declaration only as a piece of evidence.

61.In the present case, the prosecution failed to corroborate

Ex. P17 with any corroborative material.

62.In view of the above, the prosecution has miserably

failed to prove the charges against the appellants, and this Court has

no hesitation in holding that the guilt of the appellants has not been

proved beyond reasonable doubt. Accordingly, the appeals succeed,

and the appellants are acquitted.

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63.In view of the above, the convictions and sentences

imposed on the appellants in Sessions Case No.19 of 2017 on the

file of the Court of Sessions Judge, Mahalir Neethimandram,

Madurai, cannot be sustained and are liable to be set aside.

64.In the result, Criminal Appeal Nos.449 and 576 of 2022

are allowed and the Judgment made in Sessions Case No.19 of 2017

on the file of the Court of Sessions Judge, Mahalir Neethimandram,

Madurai, is hereby set aside and the appellants are acquitted of all

the charges. The bail bond, if any, executed by the appellants shall

stand cancelled. The fine amount, if any paid, shall be refunded to

the appellants. The appellants shall be set at liberty forthwith, if they

are no longer required in connection with any other case.

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65.During the pendency of Crl.R.C(MD)No.941 of 2022,

the sole petitioner died, and no one came forward to step into the

shoes of the revision petitioner. Hence, this revision petition is

dismissed for default.

[G.K.I.J.,] & [R.P.J.,]

11.02.2026

NCC :Yes/No

Index :Yes/No

ps

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To

1.The Sessions Judge,

Mahalir Neethimandram,

Madurai.

2.The Inspector of Police,

C.3, S.S. Colony (L & O) Police Station,

Madurai.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

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G.K. ILANTHIRAIYAN, J.

AND

R. POORNIMA, J.

ps

Pre-Delivery Judgment made in

Crl.A(MD)Nos.449 & 576 of 2022

& Crl.R.C(MD)No.941 of 2022

11.02.2026

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