Case Note & Summary
The appeal was preferred before the High Court of Judicature at Bombay against the judgment and order dated 30.12.2003 passed by the 3rd Adhoc Additional Sessions Judge, Pune, in Sessions Case No. 489 of 2002, convicting the two appellants under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to life imprisonment along with a fine. The case arose from an incident on the early hours of 11th July 2002, where the deceased Firoz Kallu Shaikh was fatally assaulted while sleeping on a handcart in Kasewadi, Bhavanipeth, Pune. The prosecution alleged that the assault was motivated by an earlier love affair between the deceased and Swati, the sister-in-law of appellant No.1, which was disapproved by the appellant and the family. The attack, involving five to six assailants armed with weapons like sattur and sword, resulted in the deceased sustaining 56 injuries; he later succumbed in hospital. A dying declaration (Exhibit 67) was recorded by PSI Dhananjay Solankar (PW10) at Sasoon Hospital after the attending doctor Dr. Kaustub Kulkarni (PW12) certified that the patient was conscious and oriented. In that statement, the deceased named the two appellants as assailants, attributing specific weapons to them. During trial, all three alleged eyewitnesses (PW4, PW5, PW11) turned hostile on the aspect of actual involvement of the appellants. The panch witnesses for spot panchnama, seizure of clothes, and recovery of weapons also turned hostile. The mother of the deceased (PW7) gave evidence but was found to have improved upon her earlier statement. The trial court convicted the appellants relying primarily on the dying declaration. The core legal issue before the High Court was whether the dying declaration alone, in the absence of any corroboration from eyewitnesses who turned hostile, could sustain the conviction. The appellants argued that the dying declaration was uncorroborated and therefore unreliable; they contended that the mother's evidence was not credible and that the medical history furnished by the victim's brother at the time of admission did not name the accused, making the dying declaration suspect. The State, however, submitted that the dying declaration was recorded after due certification by the doctor about the victim's fitness to give a statement, that it named the appellants specifically, and that it inspired confidence sufficient to base a conviction. The Court scrutinized the testimonies of PW10 and PW12. It found that PW10's evidence about the recording of the statement, the obtaining of the left leg thumb impression because both hands were bandaged, and the endorsement of the doctor were consistent and credible. PW12 confirmed that the victim was conscious and oriented and in a fit condition to make the statement. The Court held that the dying declaration was truthful and voluntary, finding no reason to disbelieve it. It observed that corroboration is not a mandatory requirement when the dying declaration itself is found to be reliable and inspires confidence. The fact that eyewitnesses turned hostile did not affect the evidentiary value of the dying declaration. Consequently, the Court concluded that the prosecution had proved the guilt of the appellants beyond reasonable doubt. The appeal was dismissed, and the conviction and sentence awarded by the trial court were upheld.
Headnote
A) Criminal Law - Dying Declaration - Evidentiary Value - Section 32 of Indian Evidence Act, 1872 - Conviction based solely on dying declaration - Where eyewitnesses turn hostile, the court may rely on the dying declaration if it is found to be truthful, voluntary, and inspires confidence. The dying declaration recorded by the police in the presence of a doctor, with endorsement that the patient was conscious and oriented, was held admissible and trustworthy. The court found no reason to disbelieve the victim's statement naming the appellants as assailants. Held that the conviction under Section 302 read with Section 34 IPC is sustainable based on such dying declaration. (Paras 6-10) B) Criminal Law - Dying Declaration - Corroboration - Section 32 of Indian Evidence Act, 1872 - Necessity of corroboration - The court observed that although there is no corroboration from eyewitnesses who turned hostile, the dying declaration itself, if credible, does not require further corroboration. The evidence of the doctor (PW12) corroborated the condition of the victim to make the statement. The mother's evidence (PW7) was not relied upon as corroboration. The court held that the dying declaration was sufficient to base conviction. (Paras 7-9)
Issue of Consideration
Whether the dying declaration (Exhibit 67) recorded by the investigating officer and endorsed by the attending doctor could be relied upon as sole evidence to convict the appellants under Section 302 read with Section 34 IPC when all eyewitnesses had turned hostile.
Final Decision
The appeal was dismissed. The conviction and sentence of the appellants under Section 302 read with Section 34 IPC were upheld.
Law Points
- dying declaration
- conviction based on sole dying declaration
- corroboration not essential
- hostile witnesses do not discredit prosecution case
- section 302 IPC
- section 34 IPC
