Case Note & Summary
The appeal was filed against the conviction of the appellant, accused No. 1, for the murder of Indrajeet Jaiswal. The trial court had convicted the appellant under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to life imprisonment. The incident occurred on 26 January 1984, when the deceased was chased and stabbed by the appellant and three others. The deceased was admitted to K.E.M. Hospital, where he died on 28 January 1984. The prosecution primarily relied on two dying declarations recorded by a police officer, API Jadhav, as the eyewitnesses turned hostile. The first declaration was incomplete as the victim became unconscious, and the second was recorded the next day after the doctor certified the patient was oriented. The trial court convicted the appellant based on these declarations while acquitting the co-accused. On appeal, the High Court re-examined the evidence. The dying declarations were found to be unreliable due to several procedural lapses. They were not signed by the victim, were recorded in English rather than the victim's language, and were not in question-answer form. The doctor's endorsement was made vertically in the margin, raising doubts about its authenticity. Additionally, the investigating officer knew that a dying declaration should ideally be recorded by a magistrate but failed to secure one. The court observed that if the victim had become unconscious during the first attempt, it was unclear how he could later give a lengthy statement. With the eyewitnesses turning hostile, the prosecution had no other evidence. The court held that such unreliable dying declarations could not sustain a conviction beyond reasonable doubt. Consequently, the appeal was allowed, the conviction was set aside, and the appellant was acquitted. The bail bond was cancelled, and any fine paid was ordered to be refunded.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Indian Evidence Act, 1872, Section 32(1) - The court examined two dying declarations recorded by a police officer (API Jadhav) which lacked the victim's signature, were not in the victim's language, and had an unusual vertical endorsement by the doctor. The court found these aspects created serious doubt about their correctness. Held that such unreliable dying declarations could not be the sole basis for conviction under Section 302 of the Indian Penal Code. (Paras 8-13) B) Criminal Procedure - Investigation - Duty to Record Dying Declaration by Magistrate - Code of Criminal Procedure, 1973, Section 164 - The court noted that the investigating officer knew the requirement to get the dying declaration recorded by a magistrate but failed to do so. This failure added to the doubt about the reliability of the dying declarations. Held that the investigating agency should have secured a magistrate's presence. (Para 13) C) Evidence - Hostile Witnesses - Corroboration - Indian Evidence Act, 1872 - When the complainant and other eyewitnesses turned hostile and did not support the prosecution, the case rested entirely on the dying declarations. With the dying declarations found unreliable, the prosecution case failed. Held that conviction cannot be based on such weak evidence. (Paras 5, 8)
Issue of Consideration
Whether conviction under Section 302 of the Indian Penal Code can be sustained solely on the basis of dying declarations when eye witnesses have turned hostile and the dying declarations suffer from procedural lapses and doubts about reliability.
Final Decision
Appeal allowed; conviction and sentence set aside; appellant acquitted of offence under Section 302 IPC; bail bond cancelled; fine refunded.
Law Points
- dying declaration must be reliable
- conviction cannot be based on suspicious dying declaration
- investigating agency should have secured magistrate to record dying declaration
- endorsement of doctor on dying declaration should be proper
- statement not in language of declarant raises doubt
