Case Note & Summary
The appeal before the High Court of Judicature at Bombay, Aurangabad Bench, arose from Sessions Case No. 95 of 2008 before the Adhoc Additional Sessions Judge-2, Latur, where the appellant (accused no.1) and co-accused Dnyandeo Gopinath Pawar (accused no.2) were tried for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860, concerning the fatal stabbing of one Bhaskar Dhansing Pawar. The trial court convicted both accused and sentenced them to life imprisonment and fine. The appellant alone challenged the conviction by filing the present criminal appeal; the co-accused did not appeal. The case primarily rested on the dying declarations of the deceased, with no eye-witnesses to the assault. On 3.6.2008, in village Nandurga Tanda, Tq. Ausa, District Latur, the appellant allegedly went to the house of Bhaskar and took him to the house of co-accused Dnyandeo, where Dnyandeo questioned Bhaskar about a previous quarrel and then, while the appellant held Bhaskar (as per one version), Dnyandeo stabbed Bhaskar with a knife in the abdomen and on the back of the right knee. Bhaskar was hospitalized and his statement was recorded on 4.6.2008 by API Bansode (PW13), treated as FIR. A second dying declaration was recorded on 6.6.2008 by Special Executive Magistrate Vikrant Gaikwad (PW11). Bhaskar succumbed to injuries on 8.7.2008, and the charge was altered to Section 302 IPC. During trial, the prosecution examined 16 witnesses; the defence examined one. The only witness who claimed to have seen a part of the incident was Madhukar (PW4), but no eye-witness to the actual stabbing. The prosecution case was that the appellant shared common intention with Dnyandeo to kill Bhaskar. The primary issue was whether the conviction of the appellant, based mainly on the dying declarations, could be sustained when those declarations contained material discrepancies. The appellant's counsel argued that the case hinged on multiple dying declarations which were not uniform. He pointed out that the two written dying declarations (Exh.73 and Exh.57) varied significantly: the first stated that the appellant caught hold of Bhaskar facilitating the stabbing, the incident occurred at 6:45 p.m., and Bhaskar was taken from his house; the second omitted the catching hold, stated the incident at 5:00-5:30 p.m., and that Bhaskar was taken from a place where he was sitting under a tree. The oral dying declarations were also inconsistent and unrecorded. He contended that no reliance could be placed on such conflicting evidence, and without it, there was nothing to convict the appellant. The respondent State opposed the appeal, supporting the conviction, though detailed arguments are not reflected in the truncated judgment. The court noted that the case against the appellant rested solely on dying declarations, whereas the co-accused had additional circumstantial evidence. It observed that the role attributed to the appellant was only that of sharing common intention, not actual stabbing. The court then examined the two recorded dying declarations and highlighted material variations on three aspects: the place from where Bhaskar was taken, the time of the incident, and most crucially, the role of the appellant—active holding in the first, and no such role in the second. The judgment excerpt ends while discussing the second dying declaration, indicating the court’s detailed scrutiny of the discrepancies. The court expressed doubt on the reliability of the dying declarations due to these conflicts, but the final decision was not included in the provided text.
Headnote
A) Criminal Law - Dying Declarations - Multiple Dying Declarations - Indian Evidence Act, 1872, Section 32 - Where there are multiple dying declarations with material discrepancies regarding the time, place, and role of the accused, the evidentiary value is undermined - The Court observed that the first dying declaration (Exh.73) recorded on 4.6.2008 attributed an active role to the appellant (catching hold of the deceased) and placed the incident at 6:45 p.m., while the second (Exh.57) recorded on 6.6.2008 omitted such role and placed the incident at 5:00-5:30 p.m. and at a different location - The discrepancy as to the appellant's role directly affects the charge under Section 34 IPC, and without corroboration, conviction cannot be sustained on such dying declarations alone (Paras 14-17).
Issue of Consideration
Whether the conviction of the appellant under Section 302 read with Section 34 IPC, based solely on multiple dying declarations with material discrepancies, can be sustained; and whether the appellant shared common intention with the co-accused.
Law Points
- Multiple dying declarations with inconsistencies must be scrutinized with caution
- Conviction cannot be based on conflicting dying declarations without corroboration
- Material variance in dying declarations on the role of the accused undermines the charge of common intention under Section 34 IPC
