;-St HIGHGOURTOFCHHATTISGARH.BILASPUR DIVISIONBENCH CORAWI: HON'BLE MR.T.P.SHARMAAND HON'BLEIV(R.R.L.JHANWAR,JJ. APPELLANTS: RESPONDENT: Criminal ADDeal No.255 of 2004 Dinesh Tiwari and others Versus State of Chhattisgarh •!t-.:;' B$ellte't JUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- R-L. Jhanwar Judge th Post for pronoyncement ofjudflment pn 5m October, 2010 ?mat T.P. Sharma Judge ^ HIGHCOURT OF CHHATTISGARH. BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA AND HQN'BLE MR. R.L.JHANWAR, JJ. CriminalADDealNo.255of 2004 1. Dinesh Tiwari, S/o late Ghanshyam Tiwari, aged about 28years, APPELLANTS: (InJail) RESPONDENT: 2, Ramesh Kumar, S/o late Ghanshyam Tiwari, aged about21years, 3. Suresh Kumar, S/o late Ghanshyam Tiwari, ' ageij ;about 19 years, 4. Ku. -Rani D/o late Ghanshyam Tiwari, aged about 18years, All above R/o Paladikala, thaha Baradwar, Distt. Janjgir-Champa(C.G.) * ':'•.' ' . . • • •/ '".'', '.•'.• 5. Smt. Janki Tiwari, wife of Pramod Tiwari, aged about 30 years, R/o Khaparganj Bilaspur, permanent Residence Paladikala, thana Baradwar, Distt. Janjgir-Champa (C.G.) l .. , 6. Smt. Revati Dubey wife of Raju Dubey, aged about 25 years; R/o near lce Factory, Rani '• Road, Korba, Permanent Residence Paladikala, thana Baradwar,Distt. Janjgir- Champa(C.G.) Versus • State of Chhattisgarh Ihrough the police > station Baradwar, Distt. Janjgir-Champa (C.G.) , ..; {Criminal appeal under Sectjon 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. YogeshwarSharma, counsel for the appellants. Mr. SandeepYadav, Deputy Govt. Advocate forthe State/respondent. JUDGMENT (Delivered on QS^ October, 2010) ' ' : Thefollowing iudamentofthe Courtwas passed by T.P. Sharma.J: - 1. Challenge in this appeal is to the judgment of con'viction & order of senten.ee dated 23-2-2004 passed by ihs. Additional Sessions Judge, /, ~"~ay-S':ff %^^/,/ Sakti, the then Sessions Division: Bilaspur, in Sessions Trial No.380/2003, whereby & whereunder learned AdditionalSessions Judge after holding the appellants guilty for commission of the offence of formation of unlawfyl assembly having its common pbject to commit culpable homicide amounting to murde-r of Rambha Tiwari -'wife of appellant No.1 Dinesh Tiwari and in furtherance of the common objectbf unlawful assembly for cbmmitting the culpable homicide amounting to murder of Rambha Tiwari, eonvicted the appeilants under Section 302 read with Section 149 of th0:I.P.C. and snntenced each of them to undergo imprisonment for life & pay fine of Rs.500/-, in default of' '' payment of fine to further undergo R I. for cne month, a!ong with conviction underSection 147 of the I.P C., ho've'/er separate sentence has not been imposed uppn the appellants on fhis count 2. Conviction is impugned on the ground that v/ithout any iota of evidenee and without placing reliance upon the dying deciaration which does riot inspite confidence and which is not truslworthy, the trial Court has convieted & sentenced the appellants and therefcy committed ijiegality. ''.' 3; Case of the prosecution, in brief, is that Rambha Tiwari (since deceased), wife of appellant No.1 Dinesh Tiwari.was residing with the appellants who are husb^ndand relatives of husband.On 4-6-2003 the appellants formed unlawful asserribly, they demanded j'ewellery of Rambha Tiwari for providing the same in the marriage of appellant N6.4 Ku. Rani and on her refusal, they poLired yiessl over her body and set her ablaze. RambhaTiwari shouted for heip on which villagers.came,' opened the doorand'took her alongwith appe!!ant No.1 Dinesh Tiwarito . B..D.M;Hospital, Champa. She was exanined by Dr. KR. Sin^h (PW-7) vide Ex.P-15and 90% burns were fcund on he-r body, sme'! cf diesel'' wascoming from herbody. The ]nvesl'gat;nn OfHcer requestsc' forher . f"~\ ^ liiStii dying declaration and asked about the mental condition of patient vide Ex.P-33. It was answered by Dr. K.R. Singh (PW-7) that Rambha Tiwari is in fit state of mind to give statement. Thereafter, Executive Magistrate K.S. Mandavi (PW-1) tecorded her dying dectaration vide Ex.P-2 in which she has specifically stated that all the appellants have poured diesel over her body and set her ablaze. She has also stated that the appellants had demanded dowry and committed torture & cruelty upon her for last more than 1 % years and she was in her maternal house on account of inability to give dowry. On 4-6-2003 at about 6.40 a.m. she died as a result of such fatal injuries. The doctor intimated death vide Ex. P-3. Merg was Fecorded vide Ex. P-4. On the basis of unregistered merg Ex.P-4, registered merg was recorded vide Ex.P-16 and F.I.R. was recorded vide Ex.P-17. Intimation was sent to the Magistrate vide Ex.P- 18. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-5 & P-7, prepared inquest over the dead body of the deceased vide Ex. P-6. Dead body was sent for autopsy to Assistant Surgeon, B.D.M. Hospital, Champa vide Ex.P-12. Dr. Hari Singh Chandel (PW-6) along with Dr. K.P. Rathore conducted autopsy vide Ex.P-13 and found that the body was burnt up to 95%, except eyelid and privatepart all the remaining parts of the bodywere burnt up to 2nd & 3rd degree, smell of petrochemical was coming, skin was peeling, internai parts were congested and cause of death was shock as a result of excessive .burns. Burnt mateh stick, mateh box, burnt petticoat, biouse, bra, sari, broken pieces of bangle, broken piece of mangal sutra, ear tops and local maia were seized from the sppt i.e. room ofappellant No,1 Dinesh Tiwari vide Ex.P-8. Marriage card Ex.P- 10 relating to appellant No.4 Ku. Rani was seized vide Ex.P-9. Spot map was prepared by the Investigating Officer vide Ex. P-11. Accused Dinesh i;(--(»^ ^a^. 4 Tiwari was taken into custody, he made discloser statement of diesel container vide Ex. P-19 and the same was recovered at the instance of accused/appellant Dinesh Tiwari aiong with diesel vide Ex. P-20. He was arrested on 11-6-2003 at Paladikala, the place of incident, vide Ex.P-21. Other accused Ramesh Kumar, Suresh Kumar, Jiyalal Tiwari, Ku. Rani & Smt. Revati Dubey were arrested on 4-6-2003 in their house at Paladikala vide Exs.P-22, 23, 24, 25 & 27, respectively. Another accused Smt. Janki Tiwari, wife of Pramod Twari was arrested on 4-6- 2003 at Baradwar vide Ex. P-26. Arrest ofthe accused was intimated to their reiatives vide Exs. P-28 & 29. Patwari prepared spot map vide Ex.P-32. Seized articles were sent for chemical examination vide EX.P- 31. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before Additional Chief Judicial Magistrate, Sakti, who committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as sixteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication. They have also examlned defence witness Smt. Mogra Bai Pandey (DW-1) who has deposed that deceased Rambha was residing with her husband Dinesh in a separate room; on the date of alleged incident she (this witness) was present on account of marriage of accused Rani; at about 12.30 mid night Rambha shouted from her room then they rushed towardo her room; the room was bolted from inside; they have broken . the door and entered inside the room where they saw that Rambha was '' "~\ r' ? sl; ^J/ ^y' burning; they poured water upon her body; Rambha demanded water then she provided water to Rambha; after taking water Rambha told her (this v/itness) to take her to the hospita) on whlch Dinesh took her to the hospital by cycle, but while going to hospital she went along with Dinesh to the Police Station. The accused also examined Kumar Bhuarya (DW- 2) & Pramod Kumar Vaishnav (DW-3). Accused Dinesh Tlwari, Ramesh Tiwari & Suresh Tiwari have examined themselves to show that they have sold land for marriage of appellant Rani. ,'•'' • 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appeilants vehemently argued that in the present case, conviction is solely based on the dying declaration Ex. P-2 which does not insplre confidence and which is not trustworthy. Even otherwise, if Ex.P-2 is examined minutely, it reveals that all the appellants have poured diesel on the body of deceased Rambha Tiwari and set her ablaze which was not possible that seven persons will pour diesel over her and seven persons will set her ablaze. As per the dylng deciaration, the deceased shouted for help then the villagers came and opened the door which was closed, but for the reasons best known to the prosecution, the prosecution has not examined any witness offhe villgge who has opened the door. On the date of incident, marriage ceremony of Rani has commenced and relatives were present. At least it was not possible or advisable for the appeliants to kill the deceased on the date of commencement of marriage ceremony ofone of the appellants namely Rani resulting Into destruction of marriage ceremony and her life. The appellants have never demanded dowry, they have never committed torture & cruelty, and they have sold immovable property for marriage of Ku. Rani and arrang6d money for them. The deceased herself has committed suicide, she was not happy with appellant Dinesh and on account of her unhappiness, appeliant Dinesh was residing separately from other appeliants. On the date of incident, appellant Dinesh was present in the house along with the deceased to attend the marriage of Ku. Rani, they are residing' in a separate room where the deceased committed suicide. The deceased was burnt up to 95%, there Vifas no possibiiity of any'dying declaration, her hands were also burnt, but the dying declaration Ex.P-2 reveals that she has signed on it which shows that the dying declaration is a concocted document and does not inspire confidence for conviction of alt the appellants under Section 302 read with Section 149 of fhe I.P.C. Learned counsel placed reliance in the matter of Mohan Lal and others v. State of Haryana1 in which the Supreme Court has held that the dying deciaration should inspire confidence of Court to base convictlon without further corroboration. Learned counsel further placed reliance in the matter of Ramesh Chandra v. State of Rajasthan2 in which the Rajasthan High Court has held that in caseof conviction based on circumstantial evidence, the prosecution is required to prove the entire chain of circumstances for the only hypothesis that only the appeilant has committed the offence. Learned counse! also piaced reliance in the matter of Chacko v. State of Kerala3 in which the Supreme Court has he!d that in case of dyiR$ declaration doubtful, conviction is not sustainable; Learned counsel y 1 2007 (1) CCSC 559 (SC) 21998Cri.LJ.1994 3 2003 (2) CCSC 649 (SC) '6.t "i s ^ ^y ^s^ relisd upon the matter of Stste "f U.P. v. Madan Mohan and others4 •n which the Supreme Court has held that contradiction between dying declaration and prosecution version makes the dying declaration doubtful and same cannot be relied upon. Learned counsel further relied upon the matter of K. Ramachandra Reddy and another v. The Public Prosecutor in which the Supreme Court has held that the Court is required to satisfy itself that the deceased was in a fit state of mind to make the statement after the deceased had a ctear opportunity to observe and identify his assgilants and that he was making the statement wit'nout any influence or rancour. Once the Court is satisfled that the dying declaration is true and voluntary it can be suffieient to found the conviction even without any further corroboration. Learned counsel also reiied upon the matter of Paparambaka Rosamma and others v. State of Andhra Pradesh in which the Supreme Court has held that doctor is required to give certificate of fitness of mind at the time of making declaration and note the fact that she was conscious. Learned counsei placed reliance in the matter of AdevappaNagappa Anagolkar v. State of Kamataka by its Stata Public Prosecutor in which the Karnataka High Court has held that at the time of recording dying declaration, physicaland mental condition of declarant has to be proved by positive evidence. Learned counsel further placed reliance in the matter of Rajendra Singh v. State of Rajasthan in which the Rajasthan High Court has heid that absence of certification by scribe of statement that whatever he had scribed was correct statement of deceased makes the dying declaration doubtfu!. Learned counsel also y 4 1989 Cri.L.J. 1485 5AIR1976SC1994 8 1S99 Cri.L.J. 4321 71998 Cri.LJ. 584 -'< 81998Cri.L.J.2126 iBsBssm'i.wra-iai ^ i^ placed reliance in the matter of Baldev Singh v. State of Punjab in which the Supreme Court has held that similarity in dying declaration and FIR and the deceased was unconscious on previous day make the dying declaration doubtful. Learned counsel relied upon the matter of Shaikh Rafiq & another v. State of Maharashtra in which the Supreme Court has held that in case of statement of dying declaration doubtful, conviction is not sustainable on the basis of dying declaration. 9. On the other hand, learnedi State counsel vehemently opposed the ,'i!. appeal and submitted that in.the present case, on the fateful day all the appellants were present in house on account of marriage of Rani, they demanded jewellery from the deceased for giving the same in the marriage of Rani and on being refused by the deceased, they got annoyed and poured diesel upon the body ofthe deceased andset her ablaze, they have brutally committed the murder of deceased Rambha, wlfe of Dinesh. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted & sentenced the appellants. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. In the present case, abnormal death of deceased Rambha Tiwari as a result of fatal burn injuries has not been substantially disputed on behalf of the appellants, otherwise also same is established by the evidence of Dr. Hari Singh Chandel (PW-6), Dr. K.R. Singh (RW-T), autopsy report Ex.P-13 and injury report Ex.P-15 which reveal that death.of the deceased was abnormal and as a result of fatal burn injuries. •; 91991(i)?Vi.P.W.N.(78) Y - 10 2008 (3) SBR 374 64. 12.Conviction of the appellants is soleiv based on the dvina declaration. In case of conviction based on the dying declaration the prosecution is required to prove the fact that the dying declaration is voluntarily given, it is true and that the deceased was in a fit state of mlnd to make statement, she was not impressed or tutored by her relatives or other persons. In case of dying declaration, the person against whom it is used is not having any opportunity to cross-examine to prove the truthfulness ofthe dying declaration. ^ . 13.The principle of dying declaration is based on legal maxim "nemo moiiturus proesumitur menfiri"—aman wili not meet his maker with a lie in his mouth. 14.Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 502} expressed his view relating to dying declaration as follows: - "...That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is siienced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that which is imposed by a positive oath in a court ofjusttoe..." 15.While dealing with the question of retiability of dying dectaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav11 has held that if the court is satisfled that the dyjng declaration is true and voluntary rt can base conviction on it, without corroboration. 16.Counsei Tor the defence has piaced reliance on the aforeclted cases in which the Supreme Court and the High Courts have held that in case of conviction based on dying declaration the Court is..required to satisfy that r"AtR 1985 SC 416 7 (£- 10 the makers of dying declaration have made truthful statement, the deceased was having opportunity to state the truth, she was in a fit state of mind to make the statement and she was not impressed or tutored by the persons. Ifthe dying declaration is proved to be true, then same may be the basis for conviction without further corroboration from any independent source. It is not the rule of law, but is a rule of caution to obtain certificate from doctor that the deceased was in a fit state of mind to give the statement. •i-i. 17.0n the basis of the aforesaid touchstone of law, we are required to examine the dying declaration Ex.P-2 recorded by K.S. Mandavi (PW-1). 18.K.S. Mandavi (PW-1) - Executive Magistrate has deposed that on 4-6- 2003 at about 5 a.m. he proceeded to B.D.M. Hospital, Champa for recording the dying declaration of Rambha, she was admitted in the hospital for treatment, she was rocking, her mental state was good, she was in a position to answer the questions put to her and he asked the doctor about her mental state, after getting certificate from the doctor he put questions to Rambha which she answered and the same were recorded vide Ex.P-2. After recording herstatement he also obtained her signature on Ex.P-2. Defence has cross-examined this witness at ?th. in his cross-examination, he has deposed that he had received requisition for dying declaration at 4.30 a.m. then within 10-15 minutes he reached hospital and after formal queries, he recorded the dying declaration of Rambha. He has further deposed that at the time of recording dying declaration he did not know the blood pressure & puise of Rambha. in his cross-examination he has specifically deposed that he has recorded the statement of Rambha what she has stated to him. - i-r A 11 19.The prosecution has examined another witness Dr. K.R. Singh (PW-7) relating to the frt state of mind of deceased Rambha Tiwari, who has deposed in paras 5 & 6 of his evidence that the prosecution has asked him relating to position of Rambha for recording dying declaration vide Ex. P-33 which he has answered that the patient is conscious and is in a position to make statement. Thereafter, her dying dectaration was recorded. 20.The statement recorded under Section 32 of the Evidence Act as dying deciaration is a stronger evidence without any opportunity of cross- examination and same can be relied upon if It is found to be true. In Ex.P-2, the deceased has stated that her sister-in-Saw i.e. nanand, dedh saas, brother-in-law (devar) S her husband have poured diesel upon her body and set her ablaze. She shouted upon which villagers came and opened the door, they poured water upon her body and also took her to the hospital. For the second question, she has answered that Rani, Revati, dedh saas Janki, devar Suresh, Ramesh & husband Dinesh were present and her great grand-father Jiyalal was also present. She has aiso stated that the appellants used to quarrei with her on the ground that she has not attended the marriage of Rani and they also assaulted her. She has further statedthat on account of dowry they have assaulted her and she was residing in her maternal house for 1 % years. This shows that the deceased was having sufficient opportunity to answer the questions rationaily. 21.0n the same day i.e. on 4-6-2003, all the accused except accused Dinesh were arrested, but the fact remains that Smt. Janki Tiwari was arrested at Baradwar from her maternal house and not at Palarikala. Accused Dinesh was arrested on 11-6-2003 after seven days of the ineident. All the articles relating to the deceased were seized from the /'^' 12 room of Dinesh. Appeltant Dinesh was taken into custody on 11-6-2003, his memorandum i.e. discloser statement under Section 27 of the Evidence Act was also recorded vide Ex.P-19 on 11-6-2003 by the Sub Divisional Officer (Police) G.R. Banjare (PW-10) who has deposed in para 7 of his evidence that he has recorded the memorandum of accessed Dinesh vide Ex.P-19 and at the instance of appellant Dinesh, jerry can of 5 litres capacity containing one litre of diesel was seized vide Ex. P-20. ^ 22.There is some dispute relating to smell of kerosene or diesei, but the doctor has specificalty stated the word petrochemical which includes diesel and, therefore, there cannot be any doubt that petrochemical product i.e. diesel was used in the present case. 23.0efence has taken spedfic plea by examining Smt. Mogra Bai Pandey (DW-1), that on the date of incident this witness was present to attend the marriage of Rani and after the function, members of the family were present in the house at 12.30 a.m., when they were sleeping, she (this witness) heard sound from the room of Rambha that Rambha was burning, then they rushed and broken the door, they went inside where they saw the badly injured body of Rambha, Rambha was conscious, she demanded water on which she (DW-1) provided water, thereafter, Dinesh took Rambha to the hospital and Police Station by cycle. This shows that Rambha was in conscious state of mind at that time. As per the evidence of Smt. Mogra Bai Pandey (DW-1), door of the room of Rambha was opened by the appeltants, but no such evidence of breaking door was found by Investigating Officer G.R. Banjare (PW-10) who has specifically stated in para 15 of his cross-examination that no such evidence relating to breaking of door was' found. G.R. Banjare >~/^(PW-10) has admitted that he has not examined the neighbours. 13 lliteil 24.3mt. Mogra Bai Pandey (DW-1) - close relative of the appetlants has admitted in para 9 of her cross-examination that after the incident, the appeilants were sent to jail and, therefore, she was residing in their house for a month and'during this time, the police visited the house of the appellants many times, but she did not speak before the police to the effect that Rambha has set herself ablaze. ••9 25.D.K. Netam (PW-8) - Sub Inspector has admitted in his cross- examinatlon that appellant Nq.1 Dinesh has lodged rojnamcha Ex. D-1 ,1; which reveals that his wife Smt. Rambha sustained burn injuries at about 11 p.m., but it did not reveal as to how she sustained burn injuries. 26.Theory of dying declaration is based on legal maxim "nemo moriturus proesumitur mentirf' which means that a man will not meet his maker with a lie in his mouth. But it is not necessary that a man will always speak truth at the time of his death especially when he or she is annoyed with his/her relatlves or other members. 27.As per the dying declaration Ex.P-2, deceased Rambha shouted on which villagers came and opened the door. But the prosecution has not examined the persons who have opened the door and poured water upon the body of the deceased. How six persons went inside the room of the deceased at 12.30 mid night i.e. at odd hours is not known. The deceased has not stated that the door was closed from inside. No evidence of breaking of door at.12.30 mid night, was found. Presence of appellant No,1 Dinesh in his room aiong with his wife would be normaL and natural. As per rojnamcha Ex. D-1, the deceased was wearing maxi and not sari & blouse, though her other burnt clothes were seized vide :x.P-8. Evidence of Smt. Mogra Bal Pandey (DW-1) reveais that at the time of incident a!l members of the family were sleeping after taking food. ~;1,; / •'" 14 This creates doubt retating to presence of other accused persons except husband ofthe deceased nameiy Dinesh, appellant No.1 herein, whose presence was natural. It