Case Note & Summary
The appellant, Gajraj Ramswarup Kharare, was convicted under Section 302 of the Indian Penal Code for the murder of Mangesh Vijay Pilley by pouring kerosene and setting him on fire. The conviction was based primarily on a dying declaration recorded by PW-1, Special Judicial Magistrate Anirudhha Sasane, wherein the deceased stated that his friend 'Dalya' had poured kerosene on him and set him ablaze due to previous enmity. The prosecution also examined PW-2 Dagadu Bhalekar, who claimed that the deceased made an oral dying declaration naming 'Dadu' as the perpetrator. The appellant's name is Gajraj, not Dalya or Dadu. The trial court convicted the appellant while acquitting the co-accused. On appeal, the High Court examined the evidence and found that the dying declaration did not name the appellant. The court noted that the prosecution failed to prove that 'Dalya' referred to the appellant. The investigating officer had expired and no other officer was examined to prove the investigation. The court held that the dying declaration was unreliable and inconsistent, and the conviction could not be sustained. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted. The court directed that the appellant be released forthwith unless required in any other case.
Headnote
A) Criminal Law - Murder - Dying Declaration - Section 302 Indian Penal Code, 1860 - The dying declaration recorded by the Special Judicial Magistrate named 'Dalya' as the perpetrator, whereas the appellant's name is 'Gajraj'. The prosecution failed to prove that 'Dalya' referred to the appellant. The court held that the dying declaration is unreliable and cannot form the basis of conviction. (Paras 1-5) B) Evidence Law - Dying Declaration - Corroboration - Section 32 Indian Evidence Act, 1872 - The oral dying declaration to PW-2 also named 'Dadu', not the appellant. The court held that the inconsistency between the dying declarations and the lack of corroboration regarding the identity of the accused renders the prosecution case doubtful. (Paras 5-6)
Issue of Consideration
Whether the conviction of the appellant under Section 302 IPC based on the dying declaration is sustainable when the dying declaration names 'Dalya' and not the appellant 'Gajraj'.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Bail bonds cancelled. Appellant to be released forthwith unless required in any other case.
Law Points
- Dying declaration must be consistent and reliable
- Identity of accused must be established beyond reasonable doubt
- Conviction cannot be based solely on uncorroborated dying declaration if it is doubtful
