Case Note & Summary
The appellant, Tukaram Tulsiram Pawar, was convicted under Section 302 read with 34 of the Indian Penal Code by the Ad Hoc Additional Sessions Judge-1, Nashik on 2 February 2009 for the murder of Sarika. He filed Criminal Appeal No. 210 of 2014 after a delay of four years and 329 days. The co-accused, Tulshiram (father of the appellant), had already filed Criminal Appeal No. 777 of 2011, which was allowed by a Division Bench of the Bombay High Court on 7 January 2014, acquitting him. The evidence against both accused was identical, consisting primarily of two dying declarations (Exhibits 18 and 26). The Division Bench had found these dying declarations unreliable for three reasons: (i) the deceased Sarika spoke only Vadari language, but the dying declarations were recorded in Marathi, with no evidence that their contents were explained to her in Vadari; (ii) Sarika claimed she was six months pregnant, but the postmortem report indicated she was not pregnant, showing she was not mentally fit when the declarations were recorded; and (iii) police records (Exhibit 17 and Exhibit 33) disclosed a history of suicide, which contradicted the dying declarations. The Division Bench concluded that in the absence of other reliable evidence, the conviction of the co-accused could not be sustained. In the present appeal, the court noted that the evidence against the appellant was identical to that against the co-accused. Accepting the findings of the earlier Division Bench, the court held that the appellant was entitled to the same benefit. Accordingly, the appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Language Barrier - Dying declarations recorded in Marathi while deceased spoke only Vadari language - Held that there was no evidence that contents were explained to deceased in her language, rendering declarations unreliable (Paras 3-4). B) Criminal Law - Dying Declaration - Mental Fitness - Deceased claimed six months pregnancy but postmortem showed no pregnancy - Held that deceased was not mentally fit when dying declarations were recorded (Para 3). C) Criminal Law - Dying Declaration - Inconsistency with Other Evidence - Police records showed history of suicide, contradicting dying declarations - Held that disclosure of suicide falsified contents of dying declarations (Para 3). D) Criminal Law - Appeal - Parity with Co-accused - Evidence against appellant identical to that against co-accused who was acquitted - Held that appellant is entitled to same benefit and conviction cannot be sustained (Paras 4-5).
Issue of Consideration
Whether the conviction of the appellant based on dying declarations can be sustained when the co-accused has been acquitted on the same evidence and the dying declarations are unreliable.
Final Decision
The appeal is allowed. The conviction and sentence of the appellant under Section 302 read with 34 IPC are set aside. The appellant is acquitted and shall be set at liberty forthwith.
Law Points
- Dying declaration reliability
- language barrier
- mental fitness
- inconsistency with medical evidence
- disclosure of suicide
- parity with co-accused acquittal
