Summary
A woman and her brother were strangled to death in their home in Gujarat in March 2009 and a younger brother, a child, was strangled and left for dead but survived. The prosecution case was that the appellant and the victims' sister, who were in love and wished to marry, conspired to kill her family. The surviving child gave five statements between 05.03.2009 and 25.03.2009; the first, recorded as a dying declaration, spoke of three unknown persons, and the appellant was named only in the last. A bottle of pesticide found at the scene was proved by two shop witnesses to have been bought by the appellant shortly before; the appellant offered no explanation. The trial court convicted him under Sections 302, 307 and 328 IPC and the Gujarat High Court affirmed. The Supreme Court dismissed the appeal.
Issues
- Whether a conviction for double murder can rest on the testimony of a surviving child eyewitness who named the accused only in the fifth of his statements, the earlier ones referring to unknown persons.
- Whether recovery from the scene of a pesticide bottle proved to have been purchased by the accused, with no explanation from him, sufficiently corroborates the sole eyewitness.
Provisions considered
- Sections 302, 307 and 328, Indian Penal Code, 1860Convictions for the murder of the mother and brother by strangulation, the attempt to murder the surviving child, and administering a stupefying substance (pesticide traces being found on the deceased's clothes) were affirmed; sentences of life imprisonment under Sections 302 and 307 and five years under Section 328 were maintained. (¶¶ 2.1, 2.3, 7)
- Section 161 (and the dying declaration recorded before the Executive Magistrate), Code of Criminal Procedure, 1973The child's successive statements, including the first recorded as a dying declaration naming unknown assailants, were considered; the variations were excused given his tender age, his neck injuries proved by the doctor, and the presence of the co-accused sister throughout the earlier statements, with the true version emerging once he was under police protection. (¶¶ 2.1, 4.4, 6.1)
Held
- Heavy reliance was placed on the surviving child (PW-66), but his first four statements did not name the accused and the name surfaced only on 25.03.2009. The benefit of doubt as to the inconsistency may be given to the child, who had been strangled, was of tender age and had the co-accused sister present when his earlier statements were recorded; yet the accused could not be convicted on his deposition alone and further evidence connecting the accused was required. (¶ 6.1)
- The recovery from the scene of a pesticide bottle purchased by the accused before the occurrence was established through PW-58 and PW-60, who fully supported the prosecution despite cross-examination and whose evidence there was no reason to doubt; the accused failed to explain this incriminating circumstance. Taken with the eyewitness account, the conviction for killing the two deceased was sustained. (¶¶ 6.1, 7)
Result
Appeal dismissed; the conviction and sentences under Sections 302, 307 and 328 IPC imposed by the trial court and affirmed by the Gujarat High Court on 25.03.2019 confirmed.