Case Note & Summary
The case involves an appeal against conviction under Section 307 read with Section 34 of the Indian Penal Code, 1860. The appellants were convicted by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial 210/1996 and sentenced to rigorous imprisonment for three years and fine of Rs.3000. During the pendency of the appeal, appellant No.1 and appellant No.3 expired, and their appeal abated. The prosecution case was that on 08.07.1996 at 7:00 p.m., a quarrel took place between complainant Pushpa Sharma and the accused over a pet dog entering her house and lapping milk. The accused allegedly barged into her house, sprinkled kerosene, and set her on fire. Her son Manish doused the fire and took her to the hospital. The doctor informed the police, and the Executive Magistrate recorded a dying declaration between 1:05 a.m. and 1:15 a.m. on 09.07.1996. The FIR was lodged based on that dying declaration. The court noted that neither the complainant nor her son lodged a police report. The dying declaration was recorded without certification by the doctor that the complainant was conscious and in a fit state to make the declaration. The court found that the dying declaration was not reliable and that the prosecution failed to examine material witnesses, including the complainant and her son. The court held that the conviction was not sustainable and allowed the appeal, acquitting the surviving appellant.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Section 32 Indian Evidence Act, 1872 - Dying declaration recorded by Executive Magistrate without certification by doctor that the declarant was conscious and in a fit state to make the statement - Held that such dying declaration is not reliable and cannot form the sole basis of conviction (Paras 5-7). B) Criminal Law - Attempt to Murder - Section 307 Indian Penal Code, 1860 - Prosecution failed to examine material witnesses including the complainant and her son who allegedly doused the fire - Held that the conviction is not sustainable and accused is entitled to benefit of doubt (Paras 4, 8).
Issue of Consideration
Whether the dying declaration recorded without doctor's certification of consciousness is reliable and whether the conviction under Section 307 IPC is sustainable
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant No.2 (Vijay s/o Gajanan Sharma) acquitted. Appeal of appellant No.1 and appellant No.3 abated due to their death.
Law Points
- Dying declaration must be recorded after certification of consciousness by doctor
- Dying declaration must be free from tutoring and corroborated
- Section 307 IPC requires intention to cause death
- Benefit of doubt when prosecution fails to examine material witnesses
