Case Note & Summary
The appellant, Imtiazhusein @ Bhaylu Mohammed Siraj Khokhar, was convicted by the Sessions Judge, Kheda at Nadiad in Sessions Case No.96/2011 for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced to rigorous imprisonment for life and fine. The case of the prosecution was that on 08.05.2011 at around 8:30 PM near Khatraj Darwaja area, Mehmdabad, the accused, after a quarrel over insistence on marriage, poured kerosene from an Ashok stove onto the body of Habibunnisha and set her ablaze with a matchstick with intent to murder her, and fled from the spot. The injured was taken to Mehmdabad Nagarpalika Hospital and later referred to V.S. Hospital, Ahmedabad. A complaint was lodged by the injured herself, leading to registration of FIR. The trial court convicted the accused based on two dying declarations made by the deceased. The High Court, in appeal, examined the dying declarations and found them to be inconsistent with each other. The first dying declaration (Exh. 28) stated that the accused poured kerosene and set her on fire, while the second dying declaration (Exh. 29) stated that the accused only poured kerosene but did not set her on fire, and that she caught fire accidentally. The court held that such inconsistency creates doubt about the prosecution case. The court also noted that there was no other corroborative evidence to support the dying declarations. Consequently, the court allowed the appeal, set aside the conviction, and acquitted the accused giving him the benefit of doubt.
Headnote
A) Criminal Law - Murder - Dying Declaration - Section 302 IPC - Inconsistent dying declarations cannot form sole basis for conviction - The court examined two dying declarations of the deceased which were contradictory regarding the manner of incident and role of accused - Held that when dying declarations are inconsistent and not corroborated by other evidence, conviction cannot be sustained (Paras 1-16).
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 of all charges. Bail bonds cancelled. Fine, if paid, to be refunded.
Law Points
- Dying declaration must be consistent and reliable
- Conviction cannot be based on contradictory dying declarations
- Benefit of doubt must be given to accused when prosecution fails to prove guilt beyond reasonable doubt
