L' HIGH COURT OF CHHATTISGARH. B1LASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 848 of 2003 Sadan Ram Sori Vs. State of Chhattisgarh JUDGMENT Forconsideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^^9-^ Sd/- Chief Justice Post for Judgment :4/05/2009 Sd/- SunilKumarSinha Judge /^^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT RESPONDENT Criminal Appeal No. 848 of 2003 Sadan Ram Sori S/o Anant Pal Sori; aged about 33 years, resident of Lattipara, Kanker, Distt. Kanker (C.G.) \/ersus State of Chhattisgarh Through : Police Thana - Kanker, Distt. Kanker (C.G.) (Appeal under Section 374 (2) of The Code of Criminal Procedurel Appearance: Ms. Meenu Banerjee, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate for the State. JUDGMENT (4-.05.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) Appellant Sadan Ram Sori stands convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 3 months, by the Third Additional Sessions Judge (F.T.C.), Kanker (C.G.). (2) The allegations are that he committed murder of his wife, namely Parmabai, by putting her on fire after pourjng kerosene oil on her. (3) The facts, briefly stated, are as under:- On 13.11.2002, Pradeep Bhatt (PW-4) saw a lady on the road, who was crying for water. The lady has received burn injuries. When he asked as to how she received injuries, the lady replied t^—^.f Criminal Aroeal No. 848 of2003 that "on account.of suspicion of her illicit relations with the other persons, her husband assaulted her and put her on fire after pouring kerosene oil on her body; she has come to that place for going to the hospital". PW-4, Pradeep Bhatt, went to the police station and lodged the report (Ex.-P/4). The police reached to the scene of occurrence and seized many articles like plastic bottles, half burnt cloths, pieces of match-stick, plain soil and soil stained with kerosene oil etc. from the place of occurrence i.e. form the room where the incident took place. Cloths of the lady were also seized from the K.D. Hospital, Kanker. The lady was examined by Dr. Vijay Shukla (PW-13), who gave his report Ex.-P/13. He noticed that she has received 90% burn injuries. Kerosene smell was coming from her body, she was in conscious condition. She has sustained burn injuries on face, neck, chest, back and limbs. The injuries were fresh and grievous in nature. In further investigation, on a written request made by police offjcer to this witness (PW-13), he recorded her dying declaration on 13.11.2002,in which she made statement that she was burnt by her husband. The lady was deceased Parmabai who died in the hospital on 16.11.2002 at about 4.25 p.m. during the course of her treatment. After giving notice (Ex.-P/1) to the Panchas, inquest (Ex.-P/2) on the body ofthe deceased was prepared on 17.11.2002 and a requisition was sent for its post-mortem under Ex.-P/15. The post-mortem examination was conducted by Dr. Pradeep Kladiyas (PW-14), who prepared his report Ex.-P/15-A and opined that the (S> Criminal Aopeal No. 848 of 2003 cause of death was 90% burn injuries, it may be suicidal or homicidal in nature. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Kanker.who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Third Additional Sessions Judge (F.T.C.), Kanker, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. (5) The conviction of the appellant is based on the dying declaration of the deceased. (6) Ms. Meenu Banerjee, learned counsel appearing on behalf of the appellant, argued that the dying declaration recorded by the Doctor cannot be relied on. It should have been recorded by an Executive Magistrate. The dying declaration is suspicious as it does not bear the signature or thumb impression ofthe declarant. After receiving such burn injuries, the deceased may not be in a position to give a dying declaration like above. She vehemently argued for disbelieving the dying declaration on these counts treating it to be wholly unreliable. (7) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. a-.z..^' Criminal Appeal No. 848 of 2003 (9) So far as dying declaration not recorded by the Executive Magistrate is concerned, the Apex Court held in the matter of Raiendra and others -Vs- State of Maharashtra. (2006) 10 SCC. 759 that there is no law which mandates that a dying declaration should be recorded only by a Magistrate. No doubt more sanctity is attached to a dying declaration recorded by a Magistrate since the recording of dying declaration by a Magistrate assures the court that the statement has been correctly understood and truthfully recorded by an impartial person. This was said in the context when the dying declaration was recorded by a senior clerk in the government department who was authorized to record dying declaration as Executive Magistrate authorized by Tehsildar. (10) Further in the matter of Balbir Sinah and another—Vs-State of Puniab. (2006) 12 SCC. 283, the Apex Court said that merely on the ground that the dying declaration was not recorded by Magistrate the whole case of the prosecution cannot be rejected. It would depend upon the facts and circumstances of each case and no hard-and-fast rule can be laid down therefor. However, where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. (11) Now we shall examine the veracity of the dying declaration recorded by the Doctor. Dr. Vijay Shukla (PW-13) deposed that on 13.11.2002, he received a requisition for medical examination of the deceased. The deceased was in conscious condition, her orientation was / ^^' CriminalADDealNo. 848 of2003 normal and pulse was 96 per minute, her blood pressure was 100/60 MM (mercury). She had received burn injuries on face, neck, chest, back and both limbs. She had received 90% burn injuries. Smell of kerosene oil was coming from her cloths. The burns were fresh burns. On the same day, he also received a written request from the S.H.O. for recording the dying declaration of the deceased. He recorded her declaration (Ex.- P/14). The contents of the dying declaration would show that it was recored at 10.00 p.m. The dying declaration is in question-answer form. In answer to question No.4, the deceased made categorical statement that she was burnt by her husband after pouring kerosene oil on her. In the cross examination, he admitted the suggestions that the deceased was in conscious condition during the course of her treatment. He deposed that firstly the deceased was treated by him and thereafter the dying declaration was recorded. He has admitted that no Executive Magistrate was present to record the dying declaration and when he was recording the same, relations of the deceased as also the police officers were present. He also admitted that there were no marks of violence on the body of the deceased. In the entire cross examination of this witness, the defence has not raised any question as to why the signature or the thumb impression of the deceased was not taken over the dying declaration.It has been argued for the first time before this Court. In fact, such question had to be asked by the Doctor, who recorded the dying declaration, so that, some explanation would have been there. (12) In the matter of Srinivasa and others -Vs- State bv Santebennur Police. (2005) 9 SCC. 327, the first dying declaration was recorded on the day deceased sustained burn injuries and containing signature ofthe \ ^^ 6 Criminal Appeal No. 848 of 2003 deceased, however, the second dying declaration recorded on following day did not contain her signature. The Apex Court observed that the second dying declaration being recorded on day after deceased sustained the burn injuries, said injuries must have aggravated and she must not have been in a position to put her signature thereon. Hence the second dying declaration was not vitiated. Though casein hand is not a case tff more than one dying declaration having signature only on one, but, the fact remains that signature on the dying declaration may not have tp been taken due^injuries sustained by the deceased on her limbs. The Doctor in his medical report has categorically mentioned about the bufn injuries on the limbs of the deceased which appears to be a reason for not taking the signature of the deceased on her dying declaration. If this question would have been asked from the Doctor, certainly, he would have been in a position to explain the same and then only, the arguments in this regard would have been considered. Therefore, we do not find any force in the arguments of Ms. Banerjee that the dying declaration should be discarded on the ground that it does not bear signature or thumb impression of the deceased or it was recorded by the Doctor and not by the Executive Magistrate. (13) Now we shall examine as to why the dying declaration was not recorded by the Executive Magistrate. 8.1., C. Tigga (PW-16) deposed that he had given a requisition to the Doctor (Ex.-P/14-A) to record the dying declaration of the deceased. In Para-13 of his cross examination, he admitted that the Executive Magistrate was not available for 2-3 days, though he had sent requisition for 2 times. The deceased was also alive for 2-3 days. This was answered in the context as to why the dying ^'^1-^ Criminal Appeal No. 848 of 2003 declaration was not recorded by the Executive Magistrate. It appears that since the Magistrate was not available, the Doctor wasrequested to record the dyingdeclaration and the same was recorded by him. If the evidence of the Doctor does not appear to be untrustworthy, there is no reason to disbelieve the dying declaration recorded by him. Why the Doctor will depose against the appellant. Nothing has been brought on record to show interestedness on his part. In fact, no foundation has been laid down to disbelieve the testimony of the Doctor. Therefore, in the facts and circumstances of the case, in our considered opinion, the dying declaration recorded by the Doctor cannot be disbelieved and the conviction based on such dying declaration of the deceased deserves to be sustained. (14) For the reasons stated above, we do not find any iilegality or infirmity in the judgment and order passed by the Sessions Court. (15) The appeal is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti