Case Note & Summary
The appellants, husband and wife, were convicted by the Additional Sessions Judge, Greater Bombay, for the murder of Tasabirunissa, the wife of the first appellant's brother, under Section 302 read with 34 IPC and sentenced to life imprisonment. The prosecution case was that on 26/10/2015, after a quarrel over a room, the appellants poured kerosene on the deceased and set her ablaze, causing 49% burns. She died on 28/10/2015. The conviction was based primarily on two dying declarations: one recorded by a police officer on 27/10/2015 and another by an Executive Magistrate on the same day. The appellants challenged the conviction, arguing that the dying declarations were unreliable due to contradictions and that the prosecution failed to examine independent witnesses. The High Court analyzed the dying declarations and found material contradictions: the first declaration stated that both appellants poured kerosene and set the deceased ablaze, while the second declaration stated that only the first appellant poured kerosene and the second appellant was not present. The court also noted that the Executive Magistrate did not certify that the deceased was in a fit state of mind to make the declaration. The court held that the dying declarations were not reliable and could not form the sole basis for conviction without corroboration. The court also noted that the prosecution did not examine any independent witnesses from the neighborhood who had shifted the deceased to the hospital. Consequently, the court allowed the appeal, set aside the conviction, and acquitted the appellants, giving them the benefit of doubt.
Headnote
A) Evidence Law - Dying Declaration - Reliability - Section 32(1) of Indian Evidence Act, 1872 - The court examined the admissibility and reliability of two dying declarations recorded by a police officer and an Executive Magistrate. The court found material contradictions between the two declarations regarding the presence of the second appellant and the manner of pouring kerosene. The court held that when there are inconsistencies, the dying declaration cannot be the sole basis for conviction without corroboration. (Paras 1-21) B) Criminal Law - Murder - Conviction based on Dying Declaration - Section 302 r/w 34 IPC - The appellants were convicted for murder of the deceased by pouring kerosene and setting her ablaze. The court held that the dying declarations were not reliable due to contradictions and lack of corroboration from independent witnesses. The court acquitted the appellants, giving them benefit of doubt. (Paras 1-21)
Issue of Consideration
Whether the dying declarations recorded by the police officer and the Executive Magistrate were reliable and could form the sole basis for conviction under Section 302 IPC.
Final Decision
The appeal is allowed. The impugned Judgment and order dated 17/06/2021 passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No.68 of 2016 is set aside. The appellants are acquitted of all charges. Their bail bonds stand cancelled. Fine, if paid, be refunded.
Law Points
- Dying declaration
- Reliability of dying declaration
- Corroboration
- Section 302 IPC
- Section 34 IPC
- Section 307 IPC
- Section 504 IPC
- Section 428 CrPC
