Case Note & Summary
The case pertains to an appeal against conviction under Section 302 read with Section 34 IPC. The prosecution case was based on a dying declaration (Exh.28) given by the deceased Ajmeri, who alleged that the appellants poured kerosene and set her on fire. The trial court convicted all five accused. On appeal, the High Court examined the dying declaration and found that it was recorded by a police officer without any certification from a doctor regarding the fitness of the deceased to make the statement. Additionally, there was no certification by a magistrate. The court held that such a dying declaration is not reliable and cannot be the sole basis for conviction without corroboration. The court also noted that there were inconsistencies and lack of corroborative evidence. Consequently, the appeal was allowed, the conviction was set aside, and the appellants were acquitted.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Section 32 Indian Evidence Act, 1872 - Dying declaration recorded by police officer without certification of fitness by doctor and without magistrate's certification - Held that such dying declaration is not reliable and cannot be sole basis for conviction without corroboration (Paras 10-15).
B) Criminal Procedure - Appeal against Conviction - Section 374 Code of Criminal Procedure, 1973 - Appellants convicted under Section 302 IPC read with Section 34 IPC - Appeal allowed on ground of unreliable dying declaration - Held that conviction based on uncorroborated and suspicious dying declaration is unsustainable (Paras 16-20).
Issue of Consideration
Whether the dying declaration (Exh.28) is reliable and trustworthy to base conviction for murder under Section 302 IPC read with Section 34 IPC.
Final Decision
Appeal allowed. Conviction set aside. Appellants acquitted of all charges. Bail bonds cancelled. Fine, if any, refunded.
Law Points
- Dying declaration
- reliability
- corroboration
- Section 302 IPC
- Section 32 Indian Evidence Act
- Section 374 CrPC
Case Details
2023 LawText (BOM) (10) 42
Criminal Appeal No.453 of 2017 with Criminal Application No.1900/2022 and Criminal Application No.2594/2023
Smt. Vibha Kankanwadi, Abhay S. Waghwase
Mr. Nilesh S. Ghanekar (for Appellants), Mr. S.D. Ghayal (APP for Respondent)
Shaikh Amjad S/o Shaikh Jalal, Shaikh Naseem W/o Amjad, Shaikh Riyaz S/o Shaikh Pashumiya, Shaikh Usman S/o Shaikh Daud, Shaikh Asina @ Haseena W/o Shaikh Pashumiya
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against conviction for murder under Section 302 IPC read with Section 34 IPC.
Remedy Sought
Appellants (convicts) sought acquittal by challenging the judgment and order of conviction passed by the Additional Sessions Judge, Basmath in Sessions Trial Case No.16 of 2015.
Filing Reason
Appellants were convicted for murder based on a dying declaration which they contended was unreliable and not corroborated.
Previous Decisions
The trial court convicted all five accused under Section 302 read with Section 34 IPC and sentenced them to life imprisonment.
Issues
Whether the dying declaration (Exh.28) is reliable and trustworthy to base conviction for murder under Section 302 IPC read with Section 34 IPC.
Submissions/Arguments
Learned counsel for appellants argued that the dying declaration was recorded without doctor's certification of fitness and without magistrate's certification, making it unreliable. The prosecution failed to provide corroborative evidence.
Ratio Decidendi
A dying declaration recorded by a police officer without certification of fitness by a doctor and without magistrate's certification is not reliable and cannot be the sole basis for conviction without corroboration.
Judgment Excerpts
Appellants – convicts are hereby invoking Section 374 of the Code of Criminal Procedure (Cr.P.C.) for assailing judgment and order of conviction passed by the learned Additional Sessions Judge, Basmath in Sessions Trial Case no.16 of 2015 by which they are held guilty for the offence under Section 302 read with 34 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for life.
Procedural History
The trial court convicted the appellants. They appealed to the High Court under Section 374 CrPC. The High Court allowed the appeal and acquitted them.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 302, 34, 307, 323, 504
- Code of Criminal Procedure, 1973 (CrPC): 374
- Indian Evidence Act, 1872: 32
