Case Note & Summary
The appellants, four individuals, were convicted by the 3rd Ad-Hoc Additional Sessions Judge, Mumbai, for the murder of Mohammad Rafiq under Section 302 read with 34 of the Indian Penal Code, 1860, and sentenced to life imprisonment. The prosecution case was that on 12 June 2007, at about 5:00 pm, the deceased was intercepted by the appellants while riding a motorcycle and assaulted with knives. The informant, Farida Shaikh (PW-1), sister-in-law of the deceased, witnessed the incident and claimed that the deceased named the appellants as his assailants before dying. The dying declaration was recorded by the investigating officer (PW-16) at the hospital. The trial court relied on this dying declaration and convicted the appellants. On appeal, the Bombay High Court examined the reliability of the dying declaration. The court noted that the dying declaration was not recorded in question-answer form, which is essential to ensure that the statement is in the exact words of the deceased. The court also found that the informant (PW-1) had ample opportunity to tutor the deceased before the dying declaration was recorded, as she was present with him in the hospital. Additionally, the informant's own testimony was inconsistent and she did not name the appellants in her initial complaint. The court held that the dying declaration was not free from doubt and required corroboration, which was lacking. The court also noted that the medical evidence did not support the prosecution case fully. Consequently, the court allowed the appeal, set aside the conviction and sentence, and acquitted the appellants.
Headnote
A) Criminal Law - Murder - Dying Declaration - Reliability - The court examined whether the dying declaration recorded by the police officer was reliable and could form the sole basis for conviction - Held that the dying declaration was not recorded in question-answer form, was not free from tutoring, and lacked corroboration, hence conviction was set aside (Paras 1-31). B) Evidence Law - Dying Declaration - Recording Procedure - The court held that a dying declaration must be recorded in the exact words of the deceased in question-answer form to ensure its authenticity - The absence of such form raised doubts about its reliability (Paras 20-25). C) Criminal Law - Dying Declaration - Corroboration - The court held that when a dying declaration is not wholly reliable, it must be corroborated by other evidence - In this case, the dying declaration was not corroborated by the testimony of the informant or other witnesses (Paras 26-30).
Issue of Consideration
Whether the conviction of the appellants under Section 302 r/w 34 IPC based solely on the dying declaration of the deceased is sustainable in law.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted.
Law Points
- Dying declaration must be recorded in question-answer form
- Dying declaration must be free from tutoring
- Dying declaration must be corroborated if there are doubts
- Section 32 of Indian Evidence Act
- 1872
- Section 302 r/w 34 of Indian Penal Code
- 1860
