Case Note & Summary
The appellant, Naresh Bhaduji Dhurve, was convicted by the Additional Sessions Judge-2, Amravati, in Sessions Trial No. 89/2016 for the murder of his wife Anju, under Section 302 of the Indian Penal Code, and sentenced to life imprisonment, although he was acquitted under Section 498A. The case arose from an incident on 29 January 2016, when Anju sustained 74% burn injuries at the matrimonial home. According to the prosecution, the appellant, a habitual drinker who often quarreled with Anju, poured kerosene on her and set her ablaze after she brought him morning tea. Anju’s dying declaration, recorded on the same day, stated that she herself had poured the kerosene and the appellant lit the matchstick; it also mentioned that the appellant extinguished the fire, suffering burn injuries in the process. The trial court relied on this dying declaration and the testimony of the couple’s young daughter, Nilima (PW2), to convict the appellant of murder. On appeal to the Bombay High Court, the appellant challenged the reliability of the dying declaration, citing the absence of recording by an Executive Magistrate, and the credibility of the child witness, alleging tutoring and contradictions. In the alternative, he argued that the facts at most amounted to culpable homicide not amounting to murder under Section 304 Part II IPC, as the act was unpremeditated and done in the heat of passion. The State maintained that the evidence supported the murder conviction. The High Court analyzed the evidence and found the dying declaration credible: it was recorded promptly, certified by a doctor who confirmed Anju was fit to make a statement, and its contents – especially Anju’s admission of her own act – lent it authenticity. The Court declined to discard it merely for lack of Magistrate involvement. However, it rejected the testimony of Nilima (PW2) as unreliable because her account materially differed from the dying declaration: she claimed her father poured kerosene and denied he attempted to extinguish the fire, contradicting medical evidence that the appellant had 15% burns on his hands. The child’s stay with her maternal uncle and repeated court visits with him suggested tutoring. The Court concluded that the proven facts – a sudden morning quarrel, the deceased pouring kerosene on herself, the appellant lighting a matchstick in anger without premeditation, and his immediate effort to douse the fire – did not support murder but constituted culpable homicide under Section 304 Part II. Consequently, the conviction under Section 302 IPC was set aside and substituted with Section 304-II IPC. The appeal was partly allowed, and the sentence was to be modified accordingly, though the specific terms of the sentence were not detailed in the available excerpt.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Indian Evidence Act, 1872, Section 32 - The dying declaration recorded by police without a Magistrate’s presence was held admissible and reliable because the doctor certified the declarant was fit to give a statement, the declaration had a ring of truth as it included self-implicating admissions and the accused’s rescue efforts, and there were no procedural infirmities warranting its rejection; Held, the dying declaration could be relied upon (Paras 10-11). B) Criminal Law - Child Witness - Credibility - Indian Evidence Act, 1872, Section 118 - The testimony of an eight-year-old child witness was discarded as unreliable due to material contradictions with the dying declaration of the deceased, her denial of the accused’s burn injuries contrary to medical evidence, and circumstances indicating tutoring by her maternal uncle; Held, heavy reliance on such testimony by the trial court was erroneous (Paras 12-13). C) Criminal Law - Culpable Homicide vs Murder - Sudden Quarrel - Indian Penal Code, 1860, Sections 299, 300, 304-II - Where the deceased poured kerosene on herself and the accused, in a sudden quarrel and heat of passion without premeditation, lit a matchstick causing death, and the accused then extinguished the fire sustaining burns, the act constituted culpable homicide not amounting to murder under Section 304 Part II and not murder under Section 302; Held, conviction under Section 302 IPC is altered to Section 304-II IPC (Paras 15-16).
Issue of Consideration
Whether the conviction under Section 302 IPC is sustainable based on the dying declaration and eyewitness testimony, and whether the offence falls under Section 304 Part II IPC
Final Decision
The High Court partly allowed the appeal. It upheld the reliability of the dying declaration but discarded the testimony of the child witness. Concluding that the offence constituted culpable homicide not amounting to murder under Section 304 Part II IPC, the Court set aside the conviction under Section 302 IPC and convicted the appellant under Section 304-II IPC, with appropriate modification of sentence.
Law Points
- dying declaration recorded by police without Executive Magistrate is admissible if doctor certifies fitness and declaration has ring of truth
- child witness testimony contradictory to dying declaration and medical evidence is unreliable
- act committed in heat of passion upon sudden quarrel without premeditation falls under Section 304-II IPC not Section 302 IPC
