Case Note & Summary
The appellant, Bapu Bajarang Patil, was convicted by the Additional Sessions Judge, Dhule for the murder of his wife Ratnabai under Section 302 IPC and sentenced to life imprisonment. The prosecution case was that on the intervening night of 16-05-2015 and 17-05-2015, the appellant came home drunk, suspected his wife's fidelity, poured kerosene on her, and set her ablaze, causing 87% burns. Two dying declarations were recorded: one by Police Naik Kailas Patil (Exh.15) and another by Special Executive Magistrate Mahendra Joshi (Exh.24). The deceased succumbed to burns and the crime was converted from Section 307 to 302 IPC. The prosecution relied on these dying declarations and the testimony of the couple's daughter, Jyoti (PW3), aged about 10 years. The trial court convicted the appellant. On appeal, the Bombay High Court examined the evidence. The court found that the two dying declarations were inconsistent: in the first, the deceased stated that her husband poured kerosene and set her on fire, while in the second, she stated that she caught fire from a stove and her husband tried to save her. The daughter's testimony was also inconsistent and appeared tutored. The court held that inconsistent dying declarations cannot be the sole basis for conviction, and the child witness was unreliable. The court also noted the lack of corroborative evidence. Consequently, the appeal was allowed, the conviction was set aside, and the appellant was acquitted.
Headnote
A) Evidence Law - Dying Declaration - Reliability - Inconsistency - Indian Evidence Act, 1872, Section 32(1) - Two dying declarations recorded were contradictory regarding the manner of incident and presence of accused - Held that such inconsistent dying declarations cannot form the sole basis for conviction (Paras 10-15). B) Evidence Law - Child Witness - Tutored Testimony - Indian Evidence Act, 1872, Section 118 - Daughter of accused and deceased, aged about 10 years, gave evidence that appeared tutored and inconsistent with dying declarations - Held that child witness testimony must be scrutinized with caution and cannot be relied upon if tutored (Paras 16-20). C) Criminal Law - Murder - Circumstantial Evidence - Indian Penal Code, 1860, Section 302 - Prosecution failed to prove motive or any other corroborative evidence - Held that conviction cannot be sustained on weak and contradictory evidence (Paras 21-25).
Issue of Consideration
Whether the conviction of the appellant under Section 302 IPC based on dying declarations and testimony of a child witness is sustainable.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted of all charges. Fine, if paid, to be refunded.
Law Points
- Dying declaration
- reliability of child witness
- tutored testimony
- inconsistency in dying declarations
- conviction based on dying declaration
