State Of A.P vs P. Khaja Hussain
- SCC(2009) 15 SCC 120
- Neutral2009 INSC 524
- AIRAIR 2009 SC Supp 2054
- SCR[2009] 6 SCR 660
Ratio decidendi
The rule this decision rests on
When variations exist between successive dying declarations recorded under different circumstances—the first by a Magistrate and the second by a police officer shortly thereafter—if those variations are not trivial but describe the scenario in substantially different manner, and if the later declaration appears to show improvements rationalized to fit the injuries sustained by the deceased, a court may reject both declarations or decline to rely upon them to base a conviction where no other corroborating evidence connects the accused to the crime.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
STATE OF A.P. .. APPELLANT
vs.
P. KHAJA HUSSAIN .. RESPONDENT
JUDGMENT
Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment of Division Bench of Andhra
Pradesh High Court directing acquittal of the respondent who faced trial for alleged
commission of offences punishable under Section 302 of the Indian Penal Code, 1860
(in short IPC). The learned II Additional Sessions Judge, Kurnool had found the
accused guilty and sentenced him to undergo imprisonemnt for life.
2. According to the prosecution version on 2/8/1999 the accused poured
kerosene over his wife Pinjari Hussain Bee (hereinafer referred to as the deceased)
and set her on fire. The prosecution version primarily restrained on two dying
declarations purported to have been recorded by the Magistrate and by a police
official. First dying declaration was recorded by the Magistrate on 2/8/1999 on 11.30
a.m. which is Ex. P. 15. Later on another dying declaration Ex. P. 20 was recorded
by the Head Constable PW.12 after about one hour of the first dying declaration.
The High Court noticed that there was variation between the two dying declarations
1 about the manner in which the deceased was set on fire. In fact that the two dying
declarations can be reconciled with each other and since no other evidence was
available to connect accused with crime the conviction as recorded was held to be not
sustainable. Accordingly acquittal was directed.
3. Learned counsel for the appellant - State submitted that the variation
between the two dying declarations was not very significant and the High Court
should not have discarded the subsequent dying declaration on the ground that it
was at variance with the first dying declaration.
4. There is no appearance on behalf of the respondent in spite of service of
notice.
5. There is no explanation as to why the second dying declaration was
recorded by the Head Constable of Police shortly after such a statement was
recorded when the dying declaration have already been recorded by the Magistrate.
It is not a case where the variation between the two dying declarations is of trivial in
nature. The scenario was described in substantially different manner. The High
Court noted that the improvements were made to rationalise with the injuries
sustained by the deceased. Conclusions of the High Court do not have any infirmity
which warrant any interference.
6. The appeals stands dismissed.
..................J. (Dr. ARIJIT PASAYAT)
2 ...................J. (ASOK KUMAR GANGULY) New Delhi, April 15, 2009.
3
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