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

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Approved for Reporting Yes No

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IMTIAZHUSSEIN @ BHAYLU MOHAMMED SIRAJ KHOKHAR

Versus

STATE OF GUJARAT

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Appearance:

MR MM TIRMIZI(1117) for the Appellant(s) No. 1

MR BHARGHAV PANDYA, APP for the Opponent(s)/Respondent(s)

No. 1

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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 dissatisfied 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 offence punishable

under Section 302 of the Indian Penal Code, 1860 and sentencing

him to rigorous imprisonment for life and fine, 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 filing 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 fled 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 filed by the injured Habibunnisha

herself before ASI Mr. Chavda at Mehmdabad Police Station,

whereupon FIR came to be registered initially for the offences

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 filed 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 fine.

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.

1PW1 Dr. Kalpesh Somchand Kataria 8

2PW3 Dr. Mrutunjaybhai Narayanchandra Das 18

3PW4 Dr. Dineshbhai Ramanbhai Patel 20

4PW13 Dr. Nirav Manilal Prajapati 41

5PW5 Fazalmahmmad Noormahmmad Sindhi 26

6PW6 Gulabkhan Sidarkhan Pathan 28

7PW7 Yasinmiya Sikandarmiya Shekh 31

8PW8 Aarifali Jahurali Saiyad 32

9PW9 Faridkhan Abdulkarimkhan Pathan 34

10PW10 Sahidmiya Yasinmiya Malek 35

11PW11 Karimsa Kalusha Diwan 37

12PW2 Iqbalbhai Sulemanbhai Mansuri 12

13PW17 Salimbhai Babubhai Khalifa 51

14PW12 Shabanabanu Samrudin Kazi 38

15PW14 Samiyudin Sirajuddin Kazi 44

16PW15 Babubhai Mithabhai Chavda 47

17PW16 Punaji Thavarji Kotwal 49

18PW18 Vinubhai Babarbhai Sharma 53

19PW19 Rameshbhai Khimjibhai Dodiya 56

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Documentary Evidences: -

No. Particulars. Exh.

1Police memo written for conducting the P.M. of the

deceased.

9

2Post-mortem report of the deceased. 10

3Certificate relating to the cause of death of the

deceased.

11

4Police memo addressed to the Executive Magistrate

for recording the dying declaration of the deceased.

13

5Dying declaration of the deceased recorded before

the Executive Magistrate

14

6Carbon copy produced in evidence of the dying

declaration of the deceased recorded by the

Executive Magistrate.

15

7Case papers relating to the treatment given to the

deceased at V.S. Hospital.

19

8Police memo addressed to the doctor regarding the

deceased having come for treatment at

Mahemdavad Municipal Hospital

21

9Injury certificate issued by the doctor of

Mahemdavad Municipality relating to the injuries of

the deceased.

22

10Case papers relating to the treatment of the

deceased at Mahemdavad Municipal Hospital.

23

11Police memo regarding producing the accused

before Shri Patel Doctor for medical examination on

12/5/11 at 6:35 p.m.

24

12Medical certificate issued by Dr. Shri Patel after

examining the accused.

25

13Inquest panchnama of the dead body of the

deceased.

27

14Joint photograph of the deceased and the accused. 29

15Panchnama of the house of the deceased. 33

16Panchnama regarding seizure of the pant and shirt

of the accused.

36

17Medical certificate regarding the treatment given to

the accused by Dr. Prajapati.

42

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18Police memo addressed to Dr. Shri Prajapati. 43

19Dying declaration of the deceased / complainant

recorded before ASI Shri Chavda.

48

20Copy of the logbook of the ambulance by which the

deceased was taken from Mahemdavad to V.S.

Hospital, Ahmedabad

52

21Entry Extract of intimation given by PSO,

Mahemdavad, to the Police Station.

54

22Extract of Station Dairy of Mahemdavad Police

Station

55

23List having sent by Investigating Officer of the

muddamal to FSL.

57

24Receipt issued by FSL acknowledging receipt of the

muddamal.

58

25Forwarding letter sent to Mahemdavad Police

Station regarding the FSL analysis report.

59

26Biological report relating to the baniyan of the

accused.

60

27Serological report relating to the baniyan of the

accused.

61

28Forwarding letter of analysis report from FSL

regarding collected from the place of incident

62

29FSL’s Analysis report regarding the items collected

from the site

63

30The report of the FSL mobile van officer inspected

the spot and submitted the report.

64

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 benefit 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 different 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 officer, the treating doctors, and the

Executive Magistrate after due certification of her fitness. 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 confirmed.

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 different 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 off 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 fleeing 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 offence of murder punishable under Section 302 IPC.

7.3The 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 certificate of fitness from the attending doctor before

recording the statement, recorded it verbatim in the deceased's

own words in privacy without any prompting or influence, read it

over to her for confirmation, obtained her signature, and secured a

second fitness certificate 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 off, 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 fit, carries the highest

evidentiary value and sanctity under law, being free from any

infirmity and duly corroborated by the doctor's certifications.

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 fit state of mind and under clear apprehension of

death due to extensive burn injuries.

8.1The first 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

fire.

8.2The 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. ”

8.3The 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

certification of her fitness 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 influence. They satisfy all

conditions under Section 32(1) of the Indian Evidence Act and

inspire full confidence.

9. PW-15 Babubhai Mithabhai Chavda, the ASI who recorded

the first 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 fled. 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 fitness. In cross-

examination, he denied any prompting, influence, or presence of

relatives during recording, confirmed the deceased's

consciousness, and affirmed 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 infirmity.

10.The Post-Mortem Doctor, Dr. Kalpesh Kataria, who conducted

the autopsy, clearly established that the deceased suffered 94%

ante-mortem burn injuries covering head, chest, abdomen, and

major portions of the body, which were sufficient 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 inflicted by the accused.

11.PW-3, Dr. Mrutyunjanbhai Das at Exh. 18 the Casualty

Medical Officer 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 confirmed 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 fitness 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 certificate of fitness 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 officer and identifier. The declaration was made in

privacy, after double certification of consciousness and fitness 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 infirmity, 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 flame, 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 fleeing 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

offence 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 confidence of

the court. The Court is required to satisfy itself

that the deceased was in a fit 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

satisfied 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 satisfied that it is

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true and free from any effort 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

different entities at different places and at different points of time.

Though considerable effort was made by the learned advocate for

the appellant by taking us through the contents of the dying

declarations, we do not find any such inconsistencies, lapses, or

infirmities 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 fit state of mind. It

is further required that any inconsistencies, if present, must be

material so as to shake the credibility of the declarations.

16.1Considering the facts of the present case, the first 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 confidence. We find that these statements

do not suffer from material inconsistencies. On the contrary, the

fact that the declarations were recorded by different persons lends

prudence and substance so as to eliminate the possibilities of

inconsistencies.

16.2The 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 fit

state of mind.

16.3Similarly, 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 find

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 fine 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 confirmed.

(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

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