Under the Indian Penal Code, 1860, can close relatives of a deceased, who are never declared hostile and whose chief-examination discloses nothing incriminating against the accused, have their testimony discarded merely because they resiled in cross-examination?

No. Their testimony cannot be treated as an afterthought on that basis alone; earlier statements they made during investigation cannot be relied on to convict and must first be put to the witnesses and confirmed from the Investigating Officer before any contradiction is held against the accused, and courts should not brush aside the testimony of witnesses who were never declared hostile.

Indian Penal Code, 1860 — s.302 — Appreciation of evidence — Dying declaration — Hostile witnesses — Benefit of doubt — Indian Penal Code, 1860 — s.302 — Extensive burns and medical evidence cast doubt on prosecution theory — Held: Burns of 96% of the body surface, including the scalp, raise a doubt over the theory that the accused poured kerosene on the victim, being more consistent with the deceased having doused herself; combined with medical evidence that only a victim with 80 to 90% burns would be conscious and fit to give a statement, this also casts suspicion on the dying declarations. (¶2, 5, 12) Indian Penal Code, 1860 — s.302 — Testimony of un-hostile witnesses not to be discarded on cross-examination alone — Held further: Close relatives never declared hostile, whose chief-examination discloses nothing incriminating, cannot have their testimony discarded as an afterthought merely for an unfavourable cross-examination; their earlier statements to the investigation cannot convict and must first be put to them and confirmed from the Investigating Officer. (¶9) Indian Penal Code, 1860 — s.302 — Suspicious dying declarations, conviction not sustained — Held further: Major unexplained discrepancies in the timing of two dying declarations, including a fifteen-hour gap before FIR registration, render them unsafe to found a conviction; the prosecution having failed to prove a single circumstance and reasonable doubt lingering on whether the death was homicidal or suicidal, the conviction cannot be sustained and the accused is acquitted. (¶11, 13, 14)

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