Case Note & Summary
The appellant, Mustaq Ahmed Ismail Kadari, was convicted under Section 302 IPC for the murder of Shalu Sudhakar Pagare by setting her on fire. The prosecution alleged that the deceased had illicit relations with the appellant and refused his demands to leave her husband. The incident occurred on the night of 2nd May 1998. The deceased made two dying declarations naming 'Mushtaq Sayyed' residing at Millat Nagar as the perpetrator, with a telephone number. The appellant was arrested after treatment for burn injuries. The appellant challenged the conviction on the ground that his identity was not established. The High Court found that the dying declarations named a different person and were inconsistent, thus the conviction was unsustainable. The court allowed the appeal and acquitted the appellant.
Headnote
A) Criminal Law - Murder - Dying Declaration - Section 302 Indian Penal Code, 1860 - The deceased made two dying declarations naming 'Mushtaq Sayyed' as the assailant, while the appellant was 'Mustaq Ahmed Ismail Kadari' - The court held that the identity of the appellant was not established as the person named in the dying declarations, and the declarations were inconsistent with each other - Conviction set aside (Paras 1-10).
Issue of Consideration
Whether the conviction under Section 302 IPC based on dying declarations is sustainable when the declarations name a different person and contain inconsistencies.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted.
Law Points
- Dying declaration must be consistent and reliable
- Identity of accused must be established beyond reasonable doubt
- Contradictions in dying declarations lead to acquittal
Case Details
2005 LawText (BOM) (04) 80
Criminal Appeal No.853 of 2000
V.G. Palshikar, Smt. Nishita Mhatre
Mr. Prabhakar P. Hudlikar (for Appellant), Mrs. U.V. Kejriwal (for Respondent State)
Mustaq Ahmed Ismail Kadari
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Nature of Litigation
Criminal appeal against conviction for murder
Remedy Sought
Appellant sought acquittal from conviction under Section 302 IPC
Filing Reason
Appellant challenged conviction on ground that identity was not established and dying declarations were inconsistent
Previous Decisions
Trial court convicted appellant under Section 302 IPC in Sessions Case No.836 of 1998 on 7th September 2000
Issues
Whether the dying declarations are reliable and consistent
Whether the identity of the appellant as the assailant is established
Submissions/Arguments
Appellant argued that the dying declarations named a different person (Mushtaq Sayyed) and thus his identity was not established
Prosecution argued that the appellant was the same person as named in the declarations
Ratio Decidendi
Dying declarations must be consistent and clearly identify the accused; inconsistencies and naming of a different person render the conviction unsustainable.
Judgment Excerpts
The Appeal is directed against the judgment dated 7th September 2000 passed by the Additional Sessions Judge for Greater Bombay in Sessions Case No.836 of 1998 convicting and sentencing the Appellant under Section 302 of the Indian Penal Code.
The deceased had left two dying declarations, naming one Mushtaq Sayyed who resided at Millat Nagar as the perpetrator of the crime.
Procedural History
Trial court convicted appellant on 7th September 2000; appellant filed Criminal Appeal No.853 of 2000 in Bombay High Court; High Court allowed appeal on 25th April 2005.
Acts & Sections
- Indian Penal Code, 1860: 302, 449
