>A-- H1GH COURT ORCHHATriSGARH AT BILASPUR \ . ..-- ' '.' '- ' ". '"~"'- • ~ • • DIViSIONBENCH; Coram: HON'BLE Mr.T.P.Shanna & HON'BLE Mr.R.N.Chandrakar, JJ. Appellants (!n Jaii) 2. -3. Respondent Criminal Appeai No.239 of 2805 1. Kamle^h S/o Ram Wiilavran Surya?a(andh!,aged 30 years, Ram - Khiiawan S/o Bharosi Suryawanshi, aged 60years, Purain Bai w/o Ram Khiiawan Suryawanshl, aged about 50 years, " Ail R/o indira Awas, Masturi, Pollce Station Masturi, District BHaspur (C.G.) Versus Stats of Chhatti^arti, through Police Station Masturi, Distriot Bilaspur (C.Q.) (Criminai Appeal under Section374 (2) ofthe Cr.P.C.) Mr.Rajkuamr Gupta, counsel for the appetlants. Mrs.Madhunisha Singh, Panel Lawyerforthe State/respondent. JUDGMEitfT (Passed cn S1" September, 2011) PerT.P.Sharma,J.:- 1. Chatlenge inthis appea! is to the judgment of convictton & order of sentence dated 25.2.2005 passed by the 8th Additional Sessions Judge (F.T.C.), Bilaspur, in Sessions Trisai No.396/2004, whersbyS. whereunder ieamed 8th Addstional Sessions Judge after hoiding the appellants guilt in consequence ofabetment of culpable-homicide amounfingto murder of Manju convicted appeilant Kamlesh under ^ection 109 read with SKstion 302 of the i.P.C., appellant Ramkhilawan under Section 302/34 and appeiiant Purain Bai under Ssction 302 ofthe I.P.C. andsentenced ttiem to undergo imprisonment for tife and to pay fine of Rs.1000/-, in defauit of payment of fine to Turther undergo R.l. for six months. i'T1 \;®.&&.'>.•. .^ '^' ,;<c8ffl^ igssa % ii-il 2. Convlction is impugned on the ground that without there being any tota of evidence, the frial Court tias convicted & sentenced the appellants as aforementioned and thereby committed illegaiity. 3. As per case of the prosecution, wife of the appellant temlesh, Smt.Manju mamedwith }<teimiesh, appellant Ramkhilawan & Purain Bai are father-in-law & mother-in-law of deceased Manju. Since the mamage ofthe deceased, the appetiants committed torture and cruelty upon her. On 2.7.2004at about 9 p.m. a{ipsltant Kamlesh, husband of d«;eased Manju, directed to father & mother to burn the deceased and thereafter hs went for his work, then appeilant Ramkhilawancaught hoid her arwi Purain Bai poured kerosene oil over her and set her ablaze. Kamlesh took hsr to hospital for treatment. She was examined by Dr.A.R.Banjare (RA/-2) vide Ex.P/7A and found foilowing injuries and symptoms:- (i) 0)% bum -injuries. Patient was grasping condition. Pulse not feable. B.P. not recordabte. (il) Smeil of kerosene oii come over the body. Considering serlous condition, herdyingdeclarationwasrecorded by DrA.R.Banjare (PVrf-2) vide Ex.P/8, in which the deceased Manju made dying dectaration that the appeliants used to quarre! and commit torture. On the date of incident, her husband directed ths appeilante to burn her and went for his work, thereafter her father-in-law Ramkhitawan caught hold her and her mother-in-law Purain Bal poureci kerosene oil over her and set her ablaze. She was shifted for further treatment to Medical Coilege, Bilaspur and during the course of traveiing, she died. Dead body was brought to CIMS. Death was intimated to Kotwali Police Slation Who recorded merg vid^ Ex.P/15 and on the basis of merg, Police Station Masturi reeorded merg vide Ex.P/14. F.I.R. was registered by father of deceased Manju namely Makhanlai on 3.7.2(^34 vide Ex.P/1. investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex;P/3 prepared inquest over the body of deceased Manju vide Ex.P/4. Jerry can containing 50 gram kerosene oi!, , bum hairs, match box and match sttek, piain soil and soi! containing smeil of ksrosene were seized from the spot vide Ex.P/6. Dead body was . sent forautopsy to Medica! Coilege, Bila'psur vide Ex.P/12A, where w a 1^.,. ..-.^ -.!/ '^^"^ @? Dr.A.K.Shukla (PW-4) conducted autopsy vide Ex.P/12 and found foliowing injuries:- (i) Bum injuries over the body. (ii) Chard and contalns suit mixed mucus inside the neck and trachea. (iii) internal part of brain was congssted. Cause of death was shock as ^/result of extensive burn. ,lit 4. Statements of the vritnesses Were recorded under Section 161 of the Cr.P.C. and after completion of investlgation, charge sheet was filed in the Court of Additional Chief Judicial Magistrate, BiSaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where the 8th Additiona! Sessions Judge (F.T.C.), Bitaspur received the case on transfer for tnai. 5. in order to prove the guitt ofthe accused/appellants, the prosecution has examined as many as eight witnesses. Statements of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied ths circumstances appearing against them and pleaded innocence and faise implication in the crime in question. They have also examined defence witnesses nameiy Raju (DW-1), Govind Prasad (DVV-2), Pittu (DW-3) and Ashok Kumar (DW-4) vrtio have deposed that at the time of incidentappeliant Kamlesh was not present in his house, he was cailKl by the viltagers, th^i he took his wtfe to hospitai for treatment. 6. After providing opportunity of hearing to the parties, teamed 8t Additional Sessions Judge convicted^S sentenced the appellants as aforementioned. 7. We have heard leamed counsel for the parties, perused the judgment impugned and recordofthe triai Court. 8. Learned counsei for the appellants vehemently argued that in the present case convtetion is substantially based on the evidenCe of Dr. Dr.A.R.Banjare (FW-2) and dying deciaratlon Ex.P/8 recorded by him, which do not inspire confidence and tmstworthy. Same has not been -T-1'' .SEAli;:;.^., SS»\ supported by orai dying declaration made to Makhantal (RW-1) and Uma Bai (PW-7). Even dying declaration is a weak type of evidence and to test truthfulness of the witnesses tiberty to cross-examine is not avaiiabte to scrutinize minuteiy at the time of dying declaration. Dylng dectaration and oral dying declaration are contradicSory to each other. Dr.A.R.Banjare (PW-2) has not taken proper precaution at the tims of recording her dying declaration. Even as per his evidence she was not in a position togive statement, !§hewas grasping conditionand was not in a position to speak properiy, thersfore, alleged dying deciaration Ex.P/8 does not inspire eonfidence and trustworthy for convictlon of the appellants without further corroboration Trom independsnt sources. Learned counsel further argued that this is not the case of offence under Section 488-A and 304B of the I.P.C. but the case of commisston of murder. if Ex.P/8 dying deciaration te relisd upon, then even same is not sufflcient to warrant conviction of appeitant i'teimiesh who was not present at the time of inc'ident and as per Ex.P/8 after direcflng to his father & mother to bum deceased Manju he went for his livellhood, thereafter he was cailed by the viliagers and he is the person who has taken his wife to hospital for treatment to save her. t-fis post conduct shov/s that he has tried to save his wife and hls previous conductshows that he was not present at the timeof incident. Even if it is reiied that he was directed his father & mother to burn the deceased.then it was not be obligatory upon his father & mother to foliow the direction and words oftheirsons to kili.the deceased. Even if it is presumect that 'ne has used the aforesaid words to his father & mother, then even tt wouid not be possible to presume that he has told the aforesaid words with intent to cause homicidal death of the<yeceased and knowing well that his words wouid be pbeyed by his parents. Using of mere words that bum her (srpr d<l 1*11) is not sutRcient for preving the commisdon of offence by abetment against appellant No.1 Kamlesh. Therefore, evidence adduced on behalf of the prosecuti&n is not sufficient to warrant convictlon of appeliant Kamiesh. 9.-0n the other hand, leamed Panel Lawyer for the Statefrsspondent supported the judgment impugned and argued that Dr.A.R.Banjare . .'i'!ii •• •-•y-';s: ••:T^w^ss^sav^-^ (PW-2) was competent to record the statement eonsidering the injury and emergency as Ex.P/8, In which the deceased has categoricaity stated that alt the appeilants have committed murder of the deceased. After appreciating the evidence available on record, fhe triai Court has convicted and sentenced the appeiiants as aforementioned. ).in order to appreciate the arguments advanced on behaif of the parties, we have examined the evide^se adduced on behatfofthe proseeution. 11.In the present case, homlcidal death of deceased Manju has not been admitted by the appeilants.but abnormal death of the deceased has not been disputed by any ofthe psrties, even otherwise, it is established by the evidence of Dr.A.R.Banjare (PW-2), medieai examination report Ex.P/7A, evidence of Dr.A.K.Shukla (PW-4) and autopsy report Ex.P/12. Death of Manju was abnormat. 12.As regardsthe question of homicidal death and compiicity of the appeilants in crime in question, conviction is substantialfy based on the evidence of Dr-A.R.Banjare (PW-2) relating to dying declaration made by the deceasedand evidence Makhanlal (FW-1),fatherofthe deceased and Umabai (PW-7), mother of the deceased. As per evMence of Makhanial (PW-1) and Umabai (FW-7), theywere informed about the burn injuries of their daughter, then they rushed to Musturi hospitat where deceased Manju made dying declaration to them that att the appeiiants have caused bum injuries by pouring kerosene oil and setting her abiaze. in cross-examination of Umabai (PW-7), she has admftted in para 10that Manju was iyfng in the bed of hospitat, she was not in a position to talk, she was uncoqscious, but she has specifically deposed that Manju made dying declaration before her. At the time of reeording dying deciaration she reached to hospital. It shows that father & mother have heard thestatement made by the d6Geased at thetimeof recordjng her dying dectaration vide Ex.P/8: Dr.A.R.Banjare (PW-2) has specifically deposed that he hasrecorded dying declaration of Manju vide Ex.P/8. Her condition was serious.in his detailedcross-examination he has specificaiSy deposed that he has-recorded true dying deciaration/true statement, she was at grasping stage, but she was able to speak. Ex.P/8 her dying dectarationalso reveals fhe sacne thing. Dying d|eciaration is ,:-..i;c >'..?; T'.;. •: ;.r-;s:-; ^i:.s3,;^esK;'6!rai».K. 1 ' . il'. 1 1 III i. 1 1 1 u i ^fi.^^^ i':i"?>$». 6 the statement of the person which cannot be testified by cross- examination on behaif of the parties against whom tt can be used on account of death ofthe person, therefore, the person who recordsdying deciaration is under obligatton to ensure that she is making true statement and the person-who records dying deelaratlon has taken al precaution to ensure the writing of true dylng deelaration. 13.Dyingdeclaration is a weak typp of evidence but once it is proved then same is sufficient for convictioffi6f the appetlants. At the tlme of recording the evidence, the Court is required to scrutinize the evidence minuteiy. Ex.P/8 reveals that the appellants used to commit torture and cruelty upon her on account of demand of dowry since last three years. On the date of incident her husband totd other appellants to burn her and thereafter he went for his work, then her father-in-taw RamS<hilawan caught hold herand h6r mother-in-law Parain Bal poured kerosene oii with her andset her abiaze. Ex.P/8 reveais that theaforesaid three appellants have committedtorture and crueity in connection with demand of dowry, she was having opportunity to impiicate all three persons and to state about alt three appellants at the time of pouring kerosene oil and setting herablaze, but she has specificaily stated that at the time of such incident her husband was not present, which also find corroboration from the evidence of defencewitpesses nameiy Raju (DW-1), Govind Prasad (DW-2), Pittu (DW-3) and Ashok Kumar (DW-4). This statement alone is sufficient to presume that she has made true dying declaration and has stated the actual act of the appeliants. Substantive part of dying declaration as foltows:- "^ W^? <t<lRslc<11<< ?W ^ xra%r "^t wro y^r stl^ 4 ft^ ^lct'fr'i ^ wft? w? 'sre f^4 i ^T TiRf d-t<l>1 ^d4i<( ^t 'ETaT ^IT <t>^<<"! ^N ^ ''pn! ^t m^t ^t crTtr*r 3 ^ st^TErrjt ^ "E;tuf-?i^r gr^ ?t *g<l><< g<t^lt y^lK Tcp^t S^l ft^t t^r ^ict^ ^ W? ^t ^RTR y^T W^ ^ iTrf^T c!'tl<t>< 3n»T "eFTT f^qr ^ tre^iT -gw ^ft ^ f^Tfq* 2/7/2004 fesi ^<b<il< t I q€f^T ^qpT t f , 14-The principie of dying ^leclaration 1s based on tegal maxim "nemo moriturus proesumitur mentirf— a man will not meet his maker with a lie in his mouth. 15.Lord Chief Justice Baron Eyre {See. R. v. Woodcock, (1789) 1 Lea 5Q&} expressed his view relating to dying dectaration as foltows: - "...That such declarations are made In extremity, when the party is at the point of death, and when every hope of this wortd is gone; i^nen every motive to faisehood is silenced, and the mii'ia is induced bythe most pow^ful 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 of justice..." 16.While dealing with the question oTdying declaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav1 has hekl that if the court is satisfied that the dying declaratlon is true and voluntary rt can base conwction on it, without corroboration. 17.White deaiing with the same question, the Supreme Court in the matter of P.V. Radhakrishna v. State of Karnataka2 held that it cannot be laid down as an absolute rule of law that the dying d®;larationcannot form the soie basis of conviction unless it is corroborated. The rule requirir^ corroboratlon is merely a rule of prudence. iS.White dealing with the question of evidentiary vatue of dying declaratton recorded by the doctor in case of urgency that injured may not continue to aiive and there is no time to call the police or a Magistrate, then recording of dying deciaration by the doctor is not only justified but he was duty bound to do a? who is disinterested and respe^able witness and the Courts are required t(yreiy on such deolaration dying deciaration instead of rej^ting the same. 19.The Supreme Court in the matter df Abdul Majid Abdul Rehman and other v. State of Gujra^ has observed that where the dodor tound that life was ebbing fast, and there was no time to call the police or a Magistrate, it was held that ttie doctor was justified in recording the 4AIR 1985 SC 416 :!AIR 2003 SC 2859 3AIR 1976 SC 1782 m i 1 1 ./ . i 1 statement (dying decSaration); indeed he was duty-bound to do so, and -\ . . . . .. ./ ' .." .. ::. :'.; : as the doctor was a disinterested and respectable witness, ihe triatjudge was unjustifled in rejecting the evidence of the medioal officer. 0.1n the present case, as perevidence of DrA.R.Banjare (PW-2),lnjured was at grasping stage, her condition was serious and she died during the course of travelling to Bilaspur for further treatment shows that there was urgency and oniy this witness y^is available to record dying declaration and he has recorded such dying'declaration as Ex.P/8. 21.At the time of incident, appeliant Kamlesh was not present on the spot He told to her father. & mother to bum his wife. Appeliants No.2 and 3 father & mother were not under obligation to obey his sons order/direction. Even the evidence ofthe prosecution witnesses does not reveals that he was having the knowiedge that his order or words would bs obeyed by his parents and they will set his wife ablaze. When appellant Kamlesh was calied by the vlliagers then he is the person who had brought her to hospitai shows that he has tried to save his wife. His absence at the time of incident and his post conduct is sufficient to dlsassociatehim in commission ofthe incident. 22.Makhanlai (PW-1) and Umabai (PW-7) have deposed thatallthe three appellants have killed their daughter and at the time of rscording dying dectaration they reached to hospital shows that when they reached to hospita! 8t that time DrA.R.Banjare (PW-2) was recorded dying declaration Ex.P/8, therefore, they have deposed that all the appeliants have committed murder of their daughter. 23.Doctor is also competent, respected and quallfied witness. Normaliy the doctor is disinterested person. i case of emergency wherelife of the injured is in danger and is fuli of risk and there is every llkeiihood that injured may die at any moment and there may be non-availability of a Magistfate for recoding such dying declaration within short time, then recording of such dying deciarationby the doctor is not only justified, but he is duty-bound to recorcl such stetement to assist the dispensation of criminat justice, which would be valuable piece of evidence In dispensing suchjusttoe. )ai*Bil.i'"!ft IR'"""a' --^ 9 24.1f the evidence of aforesaid witnesses retating to dying deciaration is considered in the iightof eVidence of DrA.R.Banjare (PW-2) and Ex.P/8, then only inference would bs possibte that appeiiantsRamkhiiawan and Purain Bai have caused homieidal death ofthe deceased with intent to cause her death, but iiafcijlity cannot be fastened upon co-accu^d Kamlesh in absence ofany cogent and reliabie evidence. 25.While convicting and sentencing the appellants as aforementioneci, the y . .. - ' ' .. . '^' '. - • - triai Court has not considefed the aforesaid circumstances and evidentiary value of Ex.P/8 and thereby committed ill^ality. 26.For the for^oing reasons, the appeal is partly all<wed. Conviction & sentence of appellant Ramkhilawan under Section 302/34 of the I.P.C. and conviction S sentence of appellant Purain Bai under S^stion 302 of the i.P.C. are hereby maintained, however, conviction and sentence of appeliant Kamlesh undef Section 109 read withSection 302 ofthel.P.C. are hereby setaside. He is acquitted of the charge. He is in jail, he be set at liberty at once. He be released forthwith, if not required in any other case. Sd/- T.P.Sha^pia Judge ^, Sd/- R.N. Chandrakar Judge <: ! 1