Conviction on the sole basis of inconsistent and uncorroborated dying declarations is unsafe. The High Court allowed the appeal, set aside the murder conviction, and acquitted the appellant due to lack of independent evidence and benefit of doubt.
The conviction and sentence under section 302 IPC are set aside; the appellant is acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 Cr Appeal 680 of 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Criminal Appeal No. 680 of 2002
Syed Jabbar s/o Syed Hussain, Age 33 years, Occupation : Labourer, R/o Jafrabad, Taluka Jafrabad, District Jalna. .. Appellant.
Versus
The State of Maharashtra. .. Respondent.
Shri. G.A. Kulkarni, Advocate, holding for Shri. R.S. Deshmukh, Advocate, for appellant.
Shri. S.J. Salgare, Additional Public Prosecutor, for respondent.
Coram: T.V. NALAWADE & S.M. GAVHANE, JJ.
Judgment reserved on : 25 September 2017 Judgment pronounced on : 11 October 2017
JUDGMENT (Per T.V. Nalawade, J.):
the Court of the learned 2nd Additional Sessions Judge,
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Jalna. The appellant-accused is convicted and sentenced for an offence punishable under section 302, Indian Penal Code. Both the sides are heard.
The deceased Taherabe was a daughter of Abdul Khan Pathan. She was given in marriage to the brother of present appellant-accused more than 2 years prior to the date of the incident. The deceased was living with her husband and one issue in a room of the house. The brothers of the husband of the deceased were living in separate rooms in the vicinity. Even the house of the father of the deceased was in the vicinity of this place and the brothers of the deceased were living with her father, Abdul Khan.
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that date there was some altercation between the deceased and Yasmin. Due to quarrels which the deceased had with Yasmin, the appellant became angry. He first gave abuses to the deceased and then set her on fire after pouring kerosene on her person. When she started shouting, persons in the vicinity rushed and they extinguished the fire. She was shifted to Civil Hospital Jalna. In the Civil Hospital her statement was recorded as dying declaration by Police Head Constable Kadam. On the basis of this statement, the crime came to be registered for offences punishable under sections 307, 504 and 34 of Indian Penal Code. On the next day, on the requisition given by police, the Executive Magistrate recorded her dying declaration after midnight hours of the night between 10 and 11 October 1998. Both, Kadam and the Executive Magistrate Nandedkar had obtained opinion of the doctor of the Civil Hospital about fitness of the deceased before recording the dying declaration.
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of the deceased. During course of investigation spot panchanama was prepared which was of the room where the deceased was living. Statements of some witnesses came to be recorded who were father and brothers of the deceased. Taherabi succumbed to the injuries on 15-101998. The offence was converted to make it one under section 302 IPC and statements of some witnesses were again recorded. Inquest panchanama was prepared and the dead body was referred for post mortem examination. The doctor who conduced post mortem examination gave opinion that the death took place due to cardiac respiratory arrest due to septicemia and shock due to 97% superficial to deep burns. Charge-sheet came to be filed against the present appellant only. Charge was framed for offence of murder. The prosecution examined in all 8 witnesses. The accused took defence of total denial. During statement given under section 313 of the Code of Criminal Procedure he contended that he was not at home and his wife also sustained burn injuries when she was making attempt to extinguish the fire. He has examined three witnesses in defence including one doctor who had given treatment to his wife on the burn injuries.
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endorsements of the doctor on the statement to the aforesaid effect. This document is given exhibit 28.
(i) Her husband was not at home at 9.00 p.m. and she was alone in the room. Nothing is mentioned in Exhibit 28 about the issue when the deceased had a child.
(ii) Accused gave abuses to her on the ground that she had picked up quarrels with his sister Yasmin and then poured kerosene on her person and pushed her towards electric stove.
(iii) Due to electric stove her clothes caught fire.
hours of the same night. He has deposed that he obtained thumb impression of the deceased on the statement and
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obtained endorsements of the doctor regarding fitness of the patient. The dying declaration is proved at Exhibit 33.
(i) On 10-10-1998 at about 9.00 p.m. she had quarrel with present appellant as Yasmin instigated the accused.
(ii) During quarrel the appellant poured kerosene on her person and set fire to her by using a burning piece of paper.
(iii) Her husband was not at home and her in-laws were present in other room.
(iv) She shouted when her clothes caught fire and due to that her in-laws rushed to her room and they extinguished the fire.
(v) There was dispute between the appellant and her family as her daughter aged about one and half years used to enter the house of the appellant and due to that there used to be frequent quarrels.
8 Cr Appeal 680 of 2002 11) There is evidence of oral dying declaration given by Abdul Khan (PW 1), father of the deceased. He has deposed that on that night when one lady Ashu Begum informed him that his daughter had sustained burn injuries, he went to her matrimonial place. He has deposed that when he inquired with the daughter she disclosed that there was harassment to her from her sister-in-law and the present appellant-accused and on that date there was quarrel between her and her sister-inlaw. He has deposed that she disclosed that her sister-inlaw and the present appellant poured kerosene on her person and set her on fire. He has given evidence that he and his son shifted the deceased Taherabi to Government Hospital. Even if the other circumstances like some omissions with relation to the previous statement are ignored it can be said that, this dying declaration is not consistent with the aforesaid two recorded dying declarations. PW 1 has deposed against the sister-in-law of the deceased also by saying that she was also involved in the incident in which fire was set to the deceased.
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side of his house and he had tried to convince the appellant not to quarrel. He has deposed that after 15 to 20 minutes of his return to his house, he heard shouts and so he again rushed to the spot and at that time he saw that Taherabe was completely burnt. In the cross examination of this witness it is brought on the record that he had stated before police that he went to the house of the deceased only when he saw crowd gathered in front of that house. Similarly, some omissions which amount to contradiction from the evidence of PW 1 and PW 2 were pointed out to them and they are duly proved in the evidence of investigating officer Khedkar (PW 7). Before police PW 1 in the statement dated 12-10-1998 had stated that even after learning about the incident he had not gone to the matrimonial house of the deceased and he had stayed at home with children. PW 2 had stated before police that when he learnt about the incident he had directly come to the residential place and the deceased was already brought there. These omissions can be ignored and the remaining evidence like the evidence given on the dying declarations can be analysed and appreciated.
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not show that they had seen the appellant in that house when they reached the house of deceased after learning about the incident. The evidence on the record and even the dying declarations show that the in-laws of the deceased and even her sister-in-law, who could have been made accused, were at home, at the residential place but they are not examined as witnesses by the prosecution. Thus, there is only evidence of dying declaration to show that the appellant was present there. It was 9.00 p.m. and even the husband of the deceased was not at home and so it was necessary for the prosecution to show that anybody had seen the appellant in the vicinity of the house of the deceased or at least in his own room situated in the same campus when they rushed to the spot after learning about the incident. If the in-laws of the deceased had extinguished the fire and the deceased had no grievance against the in-laws, they could have given information about the starting of the incident and also about extinguishing fire by somebody or by them. In the first dying declaration nothing was disclosed as to who had extinguished the fire. All these circumstances are relevant
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but there is no evidence given by the prosecution on such circumstances.
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investigating officer shows that no such attempt was made and there is no explanation to that lacuna.
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house is situated at a distance of 30 to 40 feet from the house of the deceased and after starting of the fire they noticed that door of the room was closed from inside and due to that Gaffar, other brother of the accused lifted the tin sheet of the room for entering in the room. She has deposed that after opening of the door by Gaffar, the deceased who was in flames came out and she virtually fell on her. She has deposed that due to this she sustained burn injury as her clothes also caught fire. In the crossexamination, the learned APP suggested her that she fell on the person of the deceased or the deceased had caught hold of her. These suggestions show that the State is not disputing that this lady was present at the place of the incident at the relevant time. Defence has examined Dr. Chavan (DW 3) to prove that this lady had sustained burn injuries and the extent was 8 to 10% over back and 3 to 5% burns on right forearm. This witness had examined DW 2 at about 12.30 p.m. on 11-10-1998. The certificate issued by this doctor is proved at Exhibit 56. In view of the aforesaid circumstances this Court holds that the State has not disputed that this witness was present there and she had sustained burn injury in the incident. It was
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necessary for the State to get examined DW 2 and explain the injuries on the person of this lady but the defence was required to examine the witnesses to bring this evidence on record.
17 Cr Appeal 680 of 2002 dying declarations. In the oral dying declarations there is exaggeration which is already mentioned. When the witnesses were available who could have described the incident, they are not examined by the prosecution. The evidence shows that there used to be frequent quarrels between the deceased and the present appellant. Different reasons are given for the quarrels in the two dying declarations. It can be said that the deceased did not like the present appellant. Thus, on one hand it can be said that there is evidence on motive and on the other hand it can be said that there is evidence to show that there was reasons for falsely implicating the appellant.
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in which the offence committed is described and the lacunae due to which the manner of the incident cannot be believed, the dying declarations have become highly suspicions. There is possibility that due to vindictiveness, the appellant's name is mentioned in the dying declarations. There is evidence that on that day there was quarrels as mentioned in the dying declarations and the deceased was feeling insulted and due to that there is possibility that she took steps to commit suicide. There is also possibility of sustaining of injuries accidentally as there is no independent evidence to show that kerosene was used. This Court holds that it was necessary for the prosecution to have corroboration of independent circumstance and as there is no such corroboration, benefit of doubt needs to be given to the accused [reliance is placed on the case reported as (2001) 5 SCC 254 - Uka
Ram vs. State of Rajasthan ].
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case reported as AIR 1965 SC 939 (Thurukanni Pompaih
v. State of Mysore) . In the case cited by the learned Additional Public Prosecutor the Apex Court has laid down that corroboration is not necessary to dying declaration if accepted as true and voluntary. There is no dispute over the proposition. In the other case cited by the learned counsel for the appellant it is laid down that the Court must be satisfied that the declaration is truthful and to ascertain the reliability, the dying declaration needs to be subjected to close scrutiny. The Apex Court has laid down that as there is no opportunity to test veracity by cross examining in such a case, it is the duty of the Court to see and ascertain that the declaration is truthful. It is observed that if the version of the deceased of the entire occurrence is untrue, the Court may in the facts of that case consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. There cannot be dispute over this proposition also. In view of the facts of the present matter, this Court has considered the surrounding circumstances and also the inconsistencies in the recorded and the oral dying declarations. This Court holds that due to the
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circumstances mentioned by this Court benefit of doubt needs to be given to the appellant. The trial Court has virtually not considered the aforesaid circumstances of the matter and the trial Court has given conviction by presuming that as there is evidence of dying declarations, story given in the dying declarations needs to be believed. The judgment and order of the trial Court cannot sustain in law.
Sd/- Sd/- (S.M. GAVHANE J.) (T.V. NALAWADE, J.) rsl
3 issues framed by the court
Whether the conviction for murder can be sustained on the sole evidence of inconsistent and unsupported dying declarations in a murder case.
Whether the benefit of doubt needs to be given to the accused when there is no independent corroboration of the circumstances of the offence.
Whether the trial court erred in law by convicting the accused without considering surrounding circumstances and the lack of corroboration.
Colour shows how this judgement treated each authority
Uka Ram vs. State of RajasthanReferred¶71
(2001) 5 SCC 254 · Who else cites this
K. Ramachandra Reddy v. The Public ProsecutorReferred¶73
(1976) 3 SCC 618 · Who else cites this
Thurukanni Pompaih v. State of MysoreReferred¶75
AIR 1965 SC 939 · Who else cites this
2 provisions across 2 enactments
Syed Jabbar
The State of Maharashtra
T.V. NALAWADE
S.M. GAVHANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
