Case Note & Summary
The appellant, Datta Tukaram Malwad, was convicted by the Ad Hoc Additional Sessions Judge, Latur for the murder of his wife Kavita under Section 302 IPC and sentenced to life imprisonment. The prosecution case was that on 10th May 2010, Kavita suffered 91% burn injuries and died on 16th May 2010. The prosecution relied on two dying declarations: one recorded by ASI Shahaji Ghadge (Exh.42) on 11th May 2010, where Kavita stated that her husband poured kerosene and set her on fire after a quarrel over money; and another recorded by a Magistrate (Exh.43) on 12th May 2010, where Kavita stated that she caught fire accidentally while cooking. The trial court convicted the appellant based on the first dying declaration. On appeal, the High Court examined the evidence and found that the two dying declarations were contradictory. The court noted that the first dying declaration was recorded without a doctor's certification that Kavita was fit to give a statement, while the second dying declaration was recorded after proper certification. The court also observed that the medical evidence showed that Kavita had 91% burns and was on sedatives, which could affect her mental state. The court held that when there are two inconsistent dying declarations, the one favorable to the accused must be accepted. The court further held that the prosecution failed to prove the case beyond reasonable doubt. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted. The court directed that the appellant be set at liberty forthwith unless required in any other case.
Headnote
A) Criminal Law - Murder - Dying Declaration - Section 302 Indian Penal Code, 1860 - Conviction based on dying declarations - The appellant was convicted for murder of his wife based on two dying declarations. The court found that the dying declarations were inconsistent with each other and with medical evidence. The first dying declaration (Exh.42) implicated the appellant, but the second dying declaration (Exh.43) stated that the burns were accidental. The court held that when there are two contradictory dying declarations, the one favorable to the accused must be accepted, and the conviction cannot be sustained. (Paras 1-20) B) Evidence Law - Dying Declaration - Reliability - Section 32 Indian Evidence Act, 1872 - Inconsistency between dying declarations - The court examined the two dying declarations and found material contradictions. The first declaration was recorded by a police officer without certification of fitness by a doctor, while the second was recorded by a Magistrate after certification. The court held that the second dying declaration, being more reliable and recorded in proper form, should be preferred. The conviction was set aside and the appellant was acquitted. (Paras 10-18)
Issue of Consideration
Whether the conviction of the appellant under Section 302 of the Indian Penal Code, 1860 based on dying declarations is sustainable when the dying declarations are inconsistent and lack corroboration.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Bail bonds cancelled. Appellant to be set at liberty forthwith unless required in any other case.
Law Points
- Dying declaration must be consistent and reliable
- conviction cannot be based on contradictory dying declarations
- benefit of doubt to accused
