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2006 Supreme(SC) 1165
(2007) 3 Supreme Court Cases 118
(BEFORE B.N. AGRAWAL AND P.P. NAOLEKAR, JJ.)
MOHD. ISMAIL ALIAS HAJI ABDUL KADAR SHEIKH - Appellant
Versus
STATE OF GUJARAT - Respondent
Criminal Appeals Nos. 799 - 800 of 2005,
Decided on November 22, 2006
The voluntary and truthful dying declaration can be a strong basis for conviction under Section 302 IPC.
Headnote:
Dying Declaration - Conviction under Section 302 IPC - Voluntary and Truthful Dying Declaration
Fact of the Case:
The appellant was convicted under Section 304 Part II IPC by the trial court, and the State filed an appeal challenging his acquittal of the charge under Section 302 IPC. The High Court dismissed the appellant's appeal and allowed the State's appeal, converting the appellant's conviction to Section 302 IPC and sentencing him to imprisonment for life.
Finding of the Court:
The High Court found the dying declaration of the victim to be voluntary and truthful, leading to the conviction of the appellant under Section 302 IPC.
Issues: Conviction under Section 302 IPC based on dying declaration, appeal against conviction and acquittal.
Ratio Decidendi: The voluntary and truthful dying declaration of the victim led to the conviction under Section 302 IPC, justifying the High Court's decision.
Final Decision: The appeals were dismissed, upholding the conviction of the appellant under Section 302 IPC.
ORDER
1. Heard learned counsel for the parties.
2. The appellant was convicted by the trial court under Section 304 Part II of the Indian Penal Code (for short "IPC") and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs 1000, in default to undergo further imprisonment for a period of one month. Before the High Court, the appellant preferred an appeal against conviction; whereas the State of Gujarat also filed an appeal challenging his acquittal of the charge under Section 302 IPC. By the impugned judgment, the High Court dismissed the appeal filed by the appellant, whereas the appeal filed on e behalf of the State was allowed and conviction of the appellant was converted from Section 304 Part II IPC to Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs 1000; in default to undergo further imprisonment for a period of six months. Hence, these appeals.
3. The appellant is the husband of the victim lady. He has been convicted f on the basis of the dying declaration, Ext. 9 which was recorded by a Magistrate, who was examined as PW 1. We have perused the dying declaration and the evidence of PW 1. In our view, the dying declaration is voluntary and the statements made therein are truthful. This being the position, we are of the view that the High Court was quite justified in convicting the appellant under Section 302 IPC and no interference by this 9 Court is called for.
4. The appeals, accordingly, fail and the same are dismissed.
Appeal dismissed.
