Holding

The dying declarations were found to be voluntary, consistent, and reliable, and, together with corroborative medical evidence, justified the conviction under Section 302 IPC.

Summary

The appellant, Imtiyazhusen alias Bhaylu, was convicted of murder under Section 302 IPC for allegedly pouring kerosene on Habibunnisha and setting her ablaze, resulting in her death. The conviction was based primarily on three dying declarations made by the deceased at different stages—first to the police, then to the treating doctor, and finally before an Executive Magistrate—each consistently identifying the accused. The prosecution’s case was corroborated by extensive medical evidence showing 94% ante‑mortem burns consistent with the alleged act, and the motive of a rejected marriage proposal was established. The appellant challenged the reliability of the dying declarations, alleging inconsistencies and questioning the voluntariness of the statements. The High Court examined the declarations, found them voluntary, consistent, and made while the deceased was in a fit state of mind, and held that the medical evidence fully supported the prosecution’s version. Consequently, the Court affirmed the Sessions Court’s conviction and life sentence, dismissing the appeal.

Issues considered

The admissibility and reliability of the dying declarations as evidence of guilt
Whether the dying declarations contain material inconsistencies that undermine their credibility
Whether the medical and forensic evidence corroborates the prosecution’s case
Whether the conviction under Section 302 IPC is sustainable on the basis of the evidence

Legislation cited

Code of Criminal Procedure, 1973s. 374(2)
Indian Evidence Act, 1872s. 32(1)
Indian Penal Code, 1860s. 300, s. 302, s. 307, s. 323

Subjects

murderdying declarationSection 302 IPClife imprisonmentmedical evidenceforensic evidencemotivationevidence reliability

Judgment

R/CR.A/371/2013 JUDGMENT DATED: 03/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 371 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and
HONOURABLE MR. JUSTICE R. T. VACHHANI

=========================================
Approved for Reporting Yes No

=========================================
IMTIAZHUSSEIN @ BHAYLU MOHAMMED SIRAJ KHOKHAR
Versus
STATE OF GUJARAT
=========================================
Appearance:
MR MM TIRMIZI(1117) for the Appellant(s) No. 1
MR BHARGHAV PANDYA, APP for the Opponent(s)/Respondent(s)
No. 1
=========================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 03/02/2026

ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1. Feeling aggrieved and dissatis4ed with the judgment and
order of conviction dated 09.01.2013 passed by the learned
Sessions Judge, Kheda at Nadiad in Sessions Case No.96/2011
convicting the respondent-accused for the o@ence punishable
under Section 302 of the Indian Penal Code, 1860 and sentencing
him to rigorous imprisonment for life and 4ne, the appellant–
accused has preferred the present appeal under Section 374(2) of
the Code of Criminal Procedure, 1973 (“the Code” for short).

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2. The brief facts leading to the 4ling of the present appeal are
as under:

2.1. As per the prosecution case, on 08.05.2011 at around 8:30 PM
near Khatraj Darwaja area, Mehmdabad, the accused Imtiyazhusen
alias Bhaylu, after a quarrel sparked over insistence on marriage,
poured kerosene from an Ashok stove onto the body of
Habibunnisha, set her ablaze with a matchstick with intent to
murder her, and Jed from the spot. The injured Habibunnisha
sustained severe burn injuries on head to chest and abdomen. She
was immediately taken to Mehmdabad Nagarpalika Hospital for
treatment, given primary care, and thereafter referred to V.S.
Hospital, Ahmedabad for further treatment.

2.2. Accordingly, a complaint was 4led by the injured Habibunnisha
herself before ASI Mr. Chavda at Mehmdabad Police Station,
whereupon FIR came to be registered initially for the o@ences
punishable under Sections 323 and 307 of the Indian Penal Code.
After the injured Habibunnisha succumbed to her burn injuries on
09.05.2011 at around 4:30 PM, Section 307 IPC was deleted and
Section 302 IPC was added. After completion of investigation,
charge-sheet was 4led on 26.07.2011 before the learned Judicial
Magistrate First Class, Mehmdabad, and the case was committed
to the Sessions Court, Nadiad where it was registered as Sessions
Case No.96/2011.

3. On conclusion of evidence, the Sessions Court put various
incriminating circumstances to the respondent-accused under
Section 313 of the Code. The respondent-accused denied all
allegations and claimed to be innocent. After hearing both sides,
the learned Sessions Judge convicted the respondent-accused

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under Section 302 IPC and sentenced him to rigorous
imprisonment for life along with 4ne.

4. We have heard learned advocate for the appellant-accused
and examined the oral and documentary evidence adduced before
the Sessions Court.

Oral Evidences : -

No. Particulars. Exh.
1 PW1 Dr. Kalpesh Somchand Kataria 8
2 PW3 Dr. Mrutunjaybhai Narayanchandra Das 18
3 PW4 Dr. Dineshbhai Ramanbhai Patel 20
4 PW13 Dr. Nirav Manilal Prajapati 41
5 PW5 Fazalmahmmad Noormahmmad Sindhi 26
6 PW6 Gulabkhan Sidarkhan Pathan 28
7 PW7 Yasinmiya Sikandarmiya Shekh 31
8 PW8 Aarifali Jahurali Saiyad 32
9 PW9 Faridkhan Abdulkarimkhan Pathan 34
10 PW10 Sahidmiya Yasinmiya Malek 35
11 PW11 Karimsa Kalusha Diwan 37
12 PW2 Iqbalbhai Sulemanbhai Mansuri 12
13 PW17 Salimbhai Babubhai Khalifa 51
14 PW12 Shabanabanu Samrudin Kazi 38
15 PW14 Samiyudin Sirajuddin Kazi 44
16 PW15 Babubhai Mithabhai Chavda 47
17 PW16 Punaji Thavarji Kotwal 49
18 PW18 Vinubhai Babarbhai Sharma 53
19 PW19 Rameshbhai Khimjibhai Dodiya 56

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Documentary Evidences: -

No. Particulars. Exh.
1 Police memo written for conducting the P.M. of the 9
deceased.
2 Post-mortem report of the deceased. 10
3 Certi4cate relating to the cause of death of the 11
deceased.
4 Police memo addressed to the Executive Magistrate 13
for recording the dying declaration of the deceased.
5 Dying declaration of the deceased recorded before 14
the Executive Magistrate
6 Carbon copy produced in evidence of the dying 15
declaration of the deceased recorded by the
Executive Magistrate.
7 Case papers relating to the treatment given to the 19
deceased at V.S. Hospital.
8 Police memo addressed to the doctor regarding the 21
deceased having come for treatment at
Mahemdavad Municipal Hospital
9 Injury certi4cate issued by the doctor of 22
Mahemdavad Municipality relating to the injuries of
the deceased.
10 Case papers relating to the treatment of the 23
deceased at Mahemdavad Municipal Hospital.
11 Police memo regarding producing the accused 24
before Shri Patel Doctor for medical examination on
12/5/11 at 6:35 p.m.
12 Medical certi4cate issued by Dr. Shri Patel after 25
examining the accused.
13 Inquest panchnama of the dead body of the 27
deceased.
14 Joint photograph of the deceased and the accused. 29
15 Panchnama of the house of the deceased. 33
16 Panchnama regarding seizure of the pant and shirt 36
of the accused.
17 Medical certi4cate regarding the treatment given to 42
the accused by Dr. Prajapati.

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18 Police memo addressed to Dr. Shri Prajapati. 43
19 Dying declaration of the deceased / complainant 48
recorded before ASI Shri Chavda.
20 Copy of the logbook of the ambulance by which the 52
deceased was taken from Mahemdavad to V.S.
Hospital, Ahmedabad
21 Entry Extract of intimation given by PSO, 54
Mahemdavad, to the Police Station.
22 Extract of Station Dairy of Mahemdavad Police 55
Station
23 List having sent by Investigating O@icer of the 57
muddamal to FSL.
24 Receipt issued by FSL acknowledging receipt of the 58
muddamal.
25 Forwarding letter sent to Mahemdavad Police 59
Station regarding the FSL analysis report.
26 Biological report relating to the baniyan of the 60
accused.
27 Serological report relating to the baniyan of the 61
accused.
28 Forwarding letter of analysis report from FSL 62
regarding collected from the place of incident
29 FSL’s Analysis report regarding the items collected 63
from the site
30 The report of the FSL mobile van o@icer inspected 64
the spot and submitted the report.

5. Learned advocate for the appellant submits that the
impugned order of conviction is required to be set aside because
the evidence of dying declarations requires closer scrutiny, there
are material inconsistencies in the prosecution case, the medical
and other corroborative evidence does not fully support the
prosecution version, and the bene4t of doubt ought to have been
extended to the accused. He therefore prays for allowing the
appeal and acquitting the appellant-accused. He submits that

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nothing sort of such material has been found to prove the dying
declarations beyond reasonable doubt.

6. The learned APP has vehemently opposed the appeal and
submitted that the impugned judgment and order of conviction
passed by the learned Sessions Judge is legal, proper, and based on
a correct appreciation of the oral as well as documentary evidence
on record. It is contended that the prosecution has successfully
proved its case beyond reasonable doubt through consistent,
cogent, and trustworthy dying declarations made by the deceased
at di@erent stages, all of which are voluntary, truthful, and duly
corroborated by unimpeachable medical evidence. The learned APP
submitted that the deceased remained conscious and oriented for a
considerable period after the incident, and her statements were
recorded by the police o@icer, the treating doctors, and the
Executive Magistrate after due certi4cation of her 4tness. It is
further submitted that there are no material contradictions or
inconsistencies in the prosecution case so as to warrant
interference by this Court. The motive arising out of a long
standing love relationship and refusal to marry is clearly
established, and the nature and extent of burn injuries
unmistakably demonstrate the intention of the accused to cause
death. The defence version is afterthought and improbable.
Therefore, the learned APP prayed that the appeal being devoid of
merit deserves to be dismissed and the conviction and sentence
imposed by the learned Sessions Judge be con4rmed.

Case of Prosecution:-
7. The incident took place on 08.05.2011 at about 8:30 PM
inside the residential premises of the deceased Habibunnisha
situated in the Khatraj Darwaja area of Mehmdabad. The

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prosecution case primarily rests upon the dying declarations both
oral and written made by the deceased herself at di@erent stages
during her treatment. These includes:

7.1 the statement recorded by ASI Mr. Chavda at Mehmdabad
Nagarpalika Hospital shortly after she was brought there, wherein
she named the accused Imtiyazhusen alias Bhaylu as the person
who poured kerosene from an Ashok stove onto her body and set
her ablaze with a matchstick; and

7.2 the history and statements given by her to the treating doctor
at V.S. Hospital, Ahmedabad as recorded in the case papers, in
which she again attributed the act to her “lover”- accused, stating
that the act was committed because she had been insisting on
marriage.

(i) The prosecution further relies upon the medical evidence
establishing that the deceased had sustained extensive burn
injuries covering approximately 94% of her body surface, which
injuries were ante mortem in nature and were the direct cause of
her death on 09.05.2011 at around 4:30 PM at V.S. Hospital,
Ahmedabad.

(ii) The burn pattern and severity, as per the post-mortem report
and testimony of the doctors including Dr. Mrutunjanbhai Das, Dr.
Kalpesh Kataria, Dr. Dineshbhai Patel and Dr. Nirav Prajapati are
stated to be consistent with pouring of a substantial quantity of
kerosene followed by ignition. The incident occurred in a private
residence where the deceased was staying separately from her
brother’s old house.

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(iii) According to the prosecution, there was a long standing love
relationship between the deceased (who was unmarried) and the
accused (who is married and has four children), spanning 10–15
years. During this period, the accused allegedly prevented the
deceased from entering into any other marriage or engagement by
breaking o@ previously arranged matches and issuing threats. On
the fateful evening, when the deceased once again pressed the
accused for marriage, an argument ensued, leading to the accused
allegedly committing the act in a fully conscious and intentional
manner. The accused was arrested on 12.05.2011, four days after
the incident, at which time he was found with a plaster on his left
leg allegedly sustained while Jeeing the scene. The prosecution
contends that the entire chain of circumstances including the dying
declarations recorded while the deceased was conscious and
oriented for several hours after the incident, the medical
corroboration of the burn injuries, the motive arising from the
refusal to marry, and the absence of any credible alternative
explanation establishes the guilt of the accused beyond reasonable
doubt for the o@ence of murder punishable under Section 302 IPC.

7.3 The formal dying declaration recorded by the Executive
Magistrate, PW-2 Iqbalbhai Sulemanbhai Mansuri at Exh. 14, at
Mehmdabad Nagarpalika Hospital on 08.05.2011, pursuant to a
requisition from the police. The Executive Magistrate deposed that
he obtained a certi4cate of 4tness from the attending doctor before
recording the statement, recorded it verbatim in the deceased's
own words in privacy without any prompting or inJuence, read it
over to her for con4rmation, obtained her signature, and secured a
second 4tness certi4cate after recording. In this declaration, the
deceased detailed the 15-year love relationship with the accused,
his interference in her two prior engagements by threats and

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breaking them o@, the quarrel on the fateful evening over her
insistence on marriage, the accused pouring kerosene from an
Ashok stove onto her body, igniting it with a matchstick, and
expressly stated: “If I die, the responsibility is of Imtiyaz, he
has taken such a step against me for the sake of marriage.”
This Magistrate recorded declaration, made while the deceased
was conscious, oriented, and fully 4t, carries the highest
evidentiary value and sanctity under law, being free from any
in4rmity and duly corroborated by the doctor's certi4cations.

8. We have carefully perused the record and the submissions
made by the learned advocate for the appellant-accused and the
learned APP and coming to the core of the prosecution evidence,
the case rests principally on the dying declarations of the deceased
Habibunnisha, which were recorded on three distinct occasions
while she was in a 4t state of mind and under clear apprehension of
death due to extensive burn injuries.

8.1 The 4rst statement was her complaint-FIR recorded by ASI
Mr. Chavda at Mehmdabad Nagarpalika Hospital shortly after
arrival, wherein she named the accused Imtiyazhusen alias Bhaylu
as the person who assaulted her, poured kerosene, and set her on
4re.

8.2 The second was the history given by her to the treating
doctor at V.S. Hospital, Ahmedabad, in which she stated: “Around
9:00 PM on 08/05/2011, my lover came near Khatraj Darwaja,
poured kerosene on me and set me ablaze.”

8.3 The third and most formal was the dying declaration

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recorded by the Executive Magistrate PW-2 at the same
Mehmdabad Nagarpalika Hospital on 08-05-2011, after due
certi4cation of her 4tness by the attending doctor. In this
declaration, she reiterated in detail the long-standing love
relationship of 15 years, the breaking of her two engagements by
the accused, his threats, the incident of kerosene being poured
from the Ashok stove and her being set ablaze, and expressly
stated: “If I die, the responsibility is of Imtiyaz, he has taken
such a step against me for the sake of marriage.” These
declarations are consistent in material particulars, voluntary, and
made without any prompting or inJuence. They satisfy all
conditions under Section 32(1) of the Indian Evidence Act and
inspire full con4dence.

9. PW-15 Babubhai Mithabhai Chavda, the ASI who recorded
the 4rst dying declaration/complaint at Exh. 48 at Mehmdabad
Nagarpalika Hospital shortly after the incident, has deposed that
he reached the hospital around 9:15 PM on 08.05.2011 upon
receiving information from P.S.O. Vinubhai Babarbhai. He stated
that the deceased Habibunnisha was conscious and oriented, and in
his presence with only the doctor and the deceased in the room,
she narrated the incident: that accused Imtiyazhusen alias Bhaylu
due to her insistence on marriage assaulted her, poured kerosene
from an Ashok stove onto her head, chest, and abdomen, set her
ablaze with a matchstick, and Jed. She expressly stated that if she
died, Imtiyaz would be responsible. PW-15 recorded it verbatim as
per her narration, obtained her signature, and added his own as
witness, along with the doctor's endorsement of 4tness. In cross-
examination, he denied any prompting, inJuence, or presence of
relatives during recording, con4rmed the deceased's
consciousness, and a@irmed that no assault marks were visible

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attributable to burns. He handed over the complaint to P.S.O.
around 11:30 PM–12:00 midnight. This testimony fully corroborates
the contents of Exh. 48 and establishes its voluntary and reliable
nature, free from in4rmity.

10. The Post-Mortem Doctor, Dr. Kalpesh Kataria, who conducted
the autopsy, clearly established that the deceased su@ered 94%
ante-mortem burn injuries covering head, chest, abdomen, and
major portions of the body, which were su@icient in the ordinary
course of nature to cause death. The nature, distribution, and
depth of burns were wholly consistent with the pouring of a
substantial quantity of kerosene followed by ignition, as described
in the dying declarations. No evidence of any other assault or
alternative cause of injury was found. The medical opinion rules out
self-immolation or accident and fully corroborates the homicidal
nature of the act attributed to the accused. This evidence provides
strong and independent medical substantiation to the dying
declarations and leaves no room for doubt that the death was
caused by the injuries inJicted by the accused.

11. PW-3, Dr. Mrutyunjanbhai Das at Exh. 18 the Casualty
Medical O@icer at VS Hospital, Ahmedabad, who examined and
treated the deceased upon her arrival around 1:00 AM on
09/05/2011, has deposed that she was conscious, oriented, and able
to give a detailed history at the time of admission. He recorded her
statement in the case papers, which matches the earlier
declarations. Dr. Mrutyunjanbhai Das further con4rmed in his
evidence and cross-examination that the deceased remained
conscious and conversant until approximately 3:30 PM on
09/05/2011, after which her condition deteriorated; she became
unconscious around 3:45 PM and expired between 4:30–4:45 PM.

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This prolonged period of lucidity and 4tness lends exceptional
credibility to her statements. The treating doctor’s testimony and
contemporaneous case papers provide unimpeachable
corroboration to the dying declarations.

12. The third dying declaration was recorded by the Executive
Magistrate Iqbalbhai Sulemanbhai Mansuri PW-2, pursuant to a
written requisition from the Mehmdabad Police Station. PW-2 has
deposed that he proceeded to Mehmdabad Nagarpalika Hospital,
obtained the doctor’s certi4cate of 4tness before and after
recording, recorded the statement verbatim in the deceased’s own
words, read it over to her, obtained her signature, and signed as
the recording o@icer and identi4er. The declaration was made in
privacy, after double certi4cation of consciousness and 4tness by
the doctor. This Magistrate-recorded dying declaration carries the
highest degree of sanctity and reliability, as it was taken with all
procedural safeguards. It is fully consistent with the earlier
statements and reinforces the prosecution case beyond reasonable
doubt. The law does not require a Magistrate recorded declaration
as a sine qua non, but when one exists and is free from in4rmity, as
here, it constitutes the strongest piece of evidence.

13. The argument advanced by the learned advocate for the
appellant is that the accused also sustained injury while trying to
save the deceased; however, the same does not have the substance
which can be said to be in support of the said contention. On the
contrary, it goes to suggest that the accused, after setting the
deceased on a blaze, just to avoid catching the Jame, tried to run
away from the place, stumbled down, and sustained the injury and
the said fact cannot be ruled out as the same stands substantiated

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as surfaced from evidence.

14. The defence has attempted to assail the dying declarations on
grounds of alleged inconsistencies, the accused’s leg fracture, and
motive, but none of these create any reasonable doubt. The
fracture sustained by the accused is plausibly explained as having
occurred while Jeeing the scene after the act, as supported by the
sequence in the declarations and medical evidence of Drs. Prajapati
and Patel. The motive refusal to marry despite a 15 year
relationship, while the accused was already married with four
children is clearly established and explains the brutality of the act.
Pouring kerosene causing 94% burns demonstrates clear intention
and knowledge under Section 300 IPC (clause 4), making the
o@ence murder and not culpable homicide not amounting to
murder.

Legal Aspect:-
15. The Hon’ble Supreme Court has held in Naeem Versus
State of Uttar Pradesh, 2024 INSC 169, as below:

“7. It can thus be seen that this Court has clearly
held that dying declaration can be the sole basis of
the conviction if it inspires the full con4dence of
the court. The Court is required to satisfy itself
that the deceased was in a 4t state of mind at the
time of making the statement and that it was not
the result of tutoring, prompting or imagination. It
has further been held that, where the Court is
satis4ed about the dying declaration being true
and voluntary, it can base its conviction without
any further corroboration. It has further been held
that there cannot be an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is corroborated. It has been
held that the rule requiring corroboration is merely
a rule of prudence. The Court has observed that if
after careful scrutiny, the court is satis4ed that it is

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true and free from any e@ort to induce the
deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even
if there is no corroboration.”

16. In the context of the submissions advanced by the learned
advocate for the appellant, it is contended that there are
inconsistencies in the dying declarations recorded by three
di@erent entities at di@erent places and at di@erent points of time.
Though considerable e@ort was made by the learned advocate for
the appellant by taking us through the contents of the dying
declarations, we do not 4nd any such inconsistencies, lapses, or
in4rmities as claimed by the appellant. It is well settled law that in
cases involving multiple dying declarations, the primary
requirements are that such declarations must be voluntary,
reliable, and made while the declarant was in a 4t state of mind. It
is further required that any inconsistencies, if present, must be
material so as to shake the credibility of the declarations.

16.1 Considering the facts of the present case, the 4rst statement
made by the deceased before the ASI and the subsequent
statements made before the Doctor and the Executive Magistrate,
when appreciated in light of the surrounding facts and
circumstances, inspire con4dence. We 4nd that these statements
do not su@er from material inconsistencies. On the contrary, the
fact that the declarations were recorded by di@erent persons lends
prudence and substance so as to eliminate the possibilities of
inconsistencies.

16.2 The medical condition of the deceased at the time of making
the declarations has also been duly considered, and there is

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nothing on record to suggest that the deceased was not in a 4t
state of mind.

16.3 Similarly, the possibility of tutoring by relatives does not
arise in the present case, as no such material has been brought on
record to substantiate such a claim.

17. Upon careful re-appreciation of the entire evidence, we 4nd
that the learned Sessions Judge has correctly appreciated the dying
declarations as trustworthy and voluntary, duly corroborated by
medical evidence from both the treating doctor and the post-
mortem doctor. There is no perversity, misreading of evidence, or
error of law in the impugned judgment. The conviction under
Section 302 IPC is well founded and sustainable. The sentence of
rigorous imprisonment for life with 4ne is just, balanced, and
proportionate; this is not a case falling within the rarest of rare
category warranting the death penalty, nor is any interference
called for on the quantum of sentence.

18. In the result, the appeal is devoid of merit and is hereby
dismissed. The conviction and sentence passed by the learned
Sessions Judge, Kheda at Nadiad vide judgment and order dated
09/01/2013 in Sessions Case No. 96/2011 are con4rmed.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

After pronouncement of the judgment, the learned advocate

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for the appellant-accused requested six weeks time to surrender
before the jail authorities. Accordingly, six weeks time to surrender
is granted.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)
Kaushal Rathod
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: KAUSHAL MAHESHBHAI RATHOD(HCD0078), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 03/02/2026 14:45:27

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