Case Note & Summary
The criminal appeal arises from a conviction under Section 302 of the Indian Penal Code, 1860, where the appellant, original accused No.2, was sentenced to life imprisonment by the Additional Sessions Judge, Biloli in Sessions Case No. 53 of 2011. The prosecution alleged that on 02.04.2011, the appellant poured kerosene on the deceased Sarojana and set her ablaze following a dispute over gold ornaments and partition of property. The deceased sustained 92% burn injuries and was admitted to Apollo Hospital, Nanded, where her dying declarations were recorded, forming the basis of the case. The co-accused, her husband, was acquitted. On 02.04.2011, Police Head Constable Kamble recorded the first statement of the deceased after medical opinion, which led to registration of Crime No. 14/2011 under Section 307 read with 34 IPC. The same day, Special Judicial Magistrate Datta Navghare recorded a second dying declaration after a doctor certified the patient as conscious. Investigation included seizure of a kerosene can and match stick. The deceased died on 25.04.2011 due to septicemia from burns. After trial, the appellant was convicted under Section 302 IPC and sentenced to life imprisonment, while original accused No.1 was acquitted. The core legal issues before the High Court were the reliability of the two dying declarations, the effect of hostile witnesses and non-examination of certain persons, and the sustainability of the appellant's conviction when the co-accused was acquitted on the same evidence. The appellant's counsel argued that the first dying declaration had overwriting in time and date, unattested thumb mark, and no reading over, and that the second dying declaration lacked specific indication of patient's condition. It was also argued that the deceased's 92% burn injuries rendered her unable to speak, supported by the testimony of her brother. The respondent's counsel maintained that both dying declarations contained medical certification of fitness and were consistent, and that hostile witnesses were not fatal when the case rested on dying declarations. The High Court heard both sides and considered the evidence, including the two dying declarations and the testimony of the recording witnesses, as well as the citations submitted by the appellant's counsel. The court noted the submissions regarding the fitness certifications, consistency, and the procedural defects in the declarations. It also considered the acquittal of the co-accused. However, the provided text of the judgment ends before the final reasoning and decision, so the High Court's conclusion and operative order are not available in this excerpt.
Headnote
A) Criminal Law - Dying Declaration - Sole Basis of Conviction - Indian Penal Code, 1860 Section 302; Code of Criminal Procedure, 1973 Section 374(2) - The appeal challenged conviction based on two dying declarations recorded on 02.04.2011. The appellant argued that the first dying declaration (Exh.13) had overwriting in time and date, unattested thumb mark, and no endorsement of reading over, while the second (Exh.19) lacked explicit indication of patient's condition. The court examined these contentions in light of the recording witnesses' testimony and the certifications by doctors. (Paras 4-7) B) Criminal Law - Dying Declaration - Fitness Certification - Indian Penal Code, 1860 Section 302 - The appellant contended that the deceased had 92% burn injuries and was not in a fit condition to speak, which was supported by the brother's testimony that she was not in a position to talk. The respondent argued that the declarations recorded by police and magistrate both contained medical certification that the patient was conscious. The court considered whether the fitness requirement was satisfied. (Paras 4-7) C) Criminal Law - Hostile Witness - Impact on Prosecution Case - Indian Penal Code, 1860 Section 302; Code of Criminal Procedure, 1973 Section 374(2) - Panch witnesses and relatives turned hostile, and neighbouring persons and the doctor were not examined. The appellant argued these lacunae rendered the case doubtful, while the respondent maintained that hostile witnesses were not fatal when the case rested on dying declarations. The court noted these conflicting positions. (Paras 6-7) D) Criminal Law - Acquittal of Co-accused - Consistency in Evidence - Indian Penal Code, 1860 Sections 302, 34 - The appellant argued that since original accused No.1 was acquitted on the same set of facts and evidence, the appellant should also be acquitted. The court recorded that the trial court convicted only the appellant and acquitted her husband. The inconsistency was a key ground in the appeal. (Paras 2, 10)
Issue of Consideration
Whether the two dying declarations recorded on 02.04.2011 are reliable and can sustain conviction under Section 302 IPC; whether conviction of appellant is sustainable when co-accused was acquitted on same evidence; whether non-examination of doctor and neighbouring witnesses creates reasonable doubt
Law Points
- Dying declaration can be sole basis for conviction if it inspires confidence
- dying declaration must be certified by doctor regarding fitness
- multiple dying declarations must be consistent
- hostile witness testimony does not necessarily affect prosecution if other evidence sufficient
- acquittal of co-accused on same evidence may be relevant
