»C',;.«-<1 ^•a!lhaW-'' 'A A°' ' o. HIGH COURT OF CHHATTISGARH : BILASPUR Divjsion Bench Coram: - Hon'ble Shri Dhirendra Mishra & Hon'ble Shri Manindra Mohan Shrivastava, JJ. Criminal Appeal No.1077 of 1991 -^^' / Appeltants Kuber Puri & another Versus Respondent StateofM.P. Judament fbr consideration Sd/- Judge HON'BLE SHRI JUSTICE DHIRENDRA MISHRA 3 cu)^ Sd/-. Dhirsndra Mishra Judge Post for pronouncement of iudament cm o^ <^' Sd/- JUDGE 03 -02-2010 t/it /A'4. HIGH COURT OF CHHATT1SGARH : BILASPUR Division Bench Coram: - Hon'ble Shri Dhirendra Mishra & Hon'ble Shri Manindra Mohan Shrivastava, JJ. ABpellants ResBondent Criminal Appeal No.1077 of 1991 1. Kuber Puri Son of Anand Puri Goswami, aged about 31 years, Occupation Pujari. 2. Anand Puri Goswami Son of Vidya Puri, aged about 60 years, by occupation seroice in Mandi Samiti. Both Resident of Brahminpara, P. S. Arang, District Raipur (M.P.) Versy^ State of M.P. through P. S. Arang, District Raipur (M.P.) (Appeal underSection 374 of the code of Criminal Procedure) Present: - Ms. Deepali Pandey, counsel for the appellants. Shri Ashish Shukla, Govt. Advocate for the State. JUDGMENT (Delivered on this J^__day of February, 2010) PerManindra Mohan Shrivastava. J. This Criminal Appeat is directed against the judgment of conviction and order of sentence dated 22-11-1991 passed by the 4th Additional Sessions Judge, : / Ra.ipur in Sessions Trial No.159/1991 whereby the learned trial Court after holding the appellants guilty Tor commission of offence under Sectiori 302 read with Section 34 ofthe I.P.C., has sentenced to undergo life imprisonment. Cl -"2-- (2) The case of the prosecution isthat on 25-01-1991 at 11.30 P.M. in the night, the appellants with a common intention to commit murder poured kerosene oil on the deceased-Vyasnarayan and set him on fire. Thereafter, Banshital, P.W.10, father of the deceased-Vyasnarayan lodged report Ex.P-9 in the Police Station Aarang soon after the incident at 00.30 Hre on 26-01-1991 stating that the accused-Anand Puri had lodged report in Police Station Aarang against deceased-Vyasnarayan alleging that he had abducted his daughter-Laxmi Bai whereupon a criminal case was registered against Vyasnarayan. This incident was five months old and since then Vyasnarayan had eloped and had not returned home and that there is previous enmity between the accused and the deceased. One Sindhi Boy informed the father ofthe deceased namety Banshilal in the night on the date of the incident that his son Vyasnarayan has gone towards Police Station in burnt condition. When Banshilal heard about this, he immediately rushed to PoliceStation Where he met with his son who was found in burnt condition and upon being asked stated that Anand Puri and Kuber Puri poured kerosene oil on him and set him on fire. On such report lodged by Banshilal, P.W.10, father of the deceased, Station House Officer, H. D. Mourya, Police Station Aarang registered CrimeNo.14/1991 for alleged commissipn of offence under Section 307 read with Section 34 of the I.P.C. Vide Ex.P-10. Vyasnarayan, who was in seriously burnt condition, was referred for medlco legal examination whereupon he was medically examined in Medical College, Raipur and it was found that Vyasnarayan was burnt alt over his body including his face and other parfe also and he was diagnosed as 90% burnt. From there, he was shifted to Sector-9 Hospital, BhiHi where he succumbed to burn injuries and died on27-01-1991 at about 09.45 A.M. An inquest over the body of the deceased was prepared vide Ex.P-10 in presence of witnesses and the same was handed 4; ^' &- \- appellants namely Anand Puri and Kuber Puri were sentenced to undergo life imprisonment holding them guilty of commission of offence of eommittlng murder of the deceased-Vyasnarayan. (6) Learned counsel for the appellants strenuously argued at length assailing the judgment of conviction and sentence by submitting that there was no eye- witness of the alleged incident of appellants buming the deceased-\^asnarayan by pouring kerosene on him. Leamed counsel further submits that conviction of the appeltants, could not be sustained on oral dying declaration given by the deceased-Vyasnarayan to his father, as the same does not inspire confidence and is extremely doubtful in the facts and circumstances of the case, and furthar that there is no corroboration to the same. Learnedcounsel advan(%d her submission by submitting that the cireumstances of the case established that the deceased committed suicide by pouring kerosene as there is history of dispute befrween the parties. Learned counsel submits that Laxmi Bai, daughter of the appellant-Anand Puri was abducted by the deceased-Vyasnarayan whereupon a report was lodged against the deceased-Vyasnarayan in ttie Police Station- Aarang alleging commission of offence under Section 363, 366 of the I.P.C. and thsre was previous enmity between the parties, therefore the appellanls have been falsely implicated in the case. Relying upon decision of the Supreme Court in the case of Uka Ram vs, State of Rajasthan, AIR 2001 Supreme Court 1 814, Ramilaben Hasmukhbhai Khristi and another v. State of Gujarat, AIR 2002 Supreme C^durt 2996, ithas been contended that dying declaration does not inspire confidence and cannot be made basis for conviction in the facts and .circumstahces of the case. ^'^yffi- ?S;3i!^. I • :-^./ o k\ -2. over for autopsy. In the postmortem report Vide Ex.P-8 prepared by Dr. R. N. Turre, P.W.9, Govt. Hospital, Durg, it was found that superficia! to deep burn injuries were present all over the body except face & hypogastric region. Carbon sootings are present in nostrils. The Burns were antemortem in nature and duration was stated to be 36 hours. In the opinion of Doctor Turre, P.W.9, cause ofdeath was shock due to extensive burns. (3) Ash of burnt clothes, shoe of left foot, a plastic box smelling kerosene, a match box and soil smelling kerosene from the verandah of the house of the accused were seized in presence of witnesses vide Ex.P.3. Vide Ex.P-4, one shoe of right foot which was found in burnt condition was seized from near the place of the incident. Vide Ex.P.5, Najri Naksha of the place of incident was prepared by Station House Officer, H. D. Mourya, P.W.12 in presence of witnesses. Vide Ex. P-6, seized articles were sent to Government Hospital, Aarang for examination. One woolen sweater, one black shirt smelling kerosene, one black full paint smelling kerosene wsre seized from the accused-Kuber Puri in presence of witnesses by Station House Officer, H. D. Mourya, P.W.12 vide Ex.P.7. Case diary statement of Banshilai, Manharan Lal, Maniram, Pramod and Parmanand were recorded. After completion of investigation, charge sheet was filed by the Police Station Aarang in the Court of Additional Chief Judfcial Ma'gistrate, Raipur who in turn, committed the case to the Court of Sessions, Raipur and ths-'same was made over to the 4 Additiona! Sessions Judge, Raipur / for trial of the alteged commission of offence under Section 302 read with Sectton 34 ofthe I.P.C. against the appellants-Kuber Puri, Anand Puri and Johra Bai. (4) The fearnsd tria! Court framed charges against three accused persons namely Kuber Puri, Anand Puri and Johra Bai. The appellants abjured their guitt. N;'I i';!r ^ ^ In order to bring home the guilt of accused/appellants, the prosecution examined as many as 12 witnesses. Thereafter, the appellants were examined by the trial Court under Section 313 oftbe Cr.P.C. in respect ofths cireumstances appearing against them in the case of the prosecution. Atl the accused persons pleaded innocence and stated that the deceased committed suicide as he bumt himself and they have not committed the offence. It was admitted by the accused-Anand Puri that the deceased-Vyasnarayan had run away with his daughter-Laxmi Bai. Anand Puri also stated that they have been falsely implicated in the case and burnt clothes, shoes, match box and kerosene oil container was not seized from the place near their house but it was seized from the place outside the house of one Lakhan lal Gupta. He also stated ftat nothing was seized from their possession. He further stated in his cross examination that the deceased- Vyasnarayan had abducted his daughter-Laxmi Bai and warrant of arrest was issued against him and in order to save himseff, he wanted to take Laxmi Bai to get her stetement recorded. He threatened that if Laxmi Bai is not sent along with him, he will commit suicide by burning himself and falsely implicatss them. The appellants/accused pereons examined three defence witnesses. (5) The learned trial Court vide impugned judgment of conviction and sentence held that the appellants-Anand Puri and Kuber Puri have committed murder of Vyasnarayan by pouring kerosene and setting him on fire, relying upon oral dying declaration given by the deceased to his father Banshilal, P.W.10 immediately after the inpident in the Police Station, which fact was stated in the prompt FIR lodged by Banshilal, P.W.1Q and written by Station House Officer, H.D. Mourya, Police Station Aarang, P.W.12. However, the tearned trial Court Tound that there was no incriminating evidence so as to hold Johra Bai guilty of commission of offence, she was acquitted from the charges leveled against her and the T-'^SSS^W TaE^^:K^; (A'2- -L, A (7) On the other hand, leamed State counsel supported the judgment of conviction and sentence stating that though there is no eye-witness, yet the prosecution has proved the gyilt of the appellants from established and proved chain of circumstances and above all by dying deciaratton of Uie deceased- Vyasnarayan given to his father Banshilal in the Police Station immediately after the incident, followed by prompt FIR • which also contained the said dying declaration of the deceased-Vyasnarayan given to his father, who lodged report. Learned State counsel contended that the iearned trial Court has not coramitted any illegality in holding the appellants guilt for commission of offence on the basis of oral dying declaration. The prosecution has duly proved the said dying declaration from the testimony of Banshilai, P.W.10, father of the deceased, beyond all reasonable doubt. The fact that the deceased was murdered is proved from the testimony of other prosecution witnesses, who saw the deceased- Vyasnarayan crying that he has been burnt, and therefore, it cannot be said that the deceased had committed suicide. Learned State counsel furttier contended that it is an admitted position that there was enmity between the parties and the. deceased-Vyasnarayan had run away with daughter of appellant-Anand Puriand on the date and time ofthe incident, the appellants poured kerosene and sst him on fire. Seizure of various burnt articles i.e. match box, kerosene contafner was made from road in front ofthe house of appellant-Kuber Puri and clothes worn by the^ppellant-Kuber Puri smelling kerosene were seized . Soil smelling kerosene seized from the yerandah of the house of the appellant-Kuber Puri has also been proved. In his submission, once the testimony of Banshilal, P.W.10, father of the deceased-Vyasnarayan inspires confidence and proves oral dying declaration, no further corroboration is necessary and conviction based on such dylng declaration proved by Banshilal, P.W.IOsupported by other prosecutton witnesses inrespect '^ ! •^nrg'.s^' .;:' y f'A- 7' of all point towards the guilt of the accused-appellants is just and proper in the eye of law. He placed reliance upon the judgments in the case of Shanmugam alias Kulandaivelu Versus State of T.N., (2002) 10 SCC 4 and P. V. Radhakrishna Versus State of Karnataka, (2003) 6 SCC 443. (8) We have carefully considered the submission made by learned counsel for the parties and perused the records of the case. (9) Death of the deceased-Vyasnarayan due to burn injuries has been established by the prosecution. Pramod Kumar, P.W.3 as well as Parmanand, P.W.4 h'ave deposed before the Courtthat they heard the voice of crying for help and saw a person proceeding towards Police Station while saying ttiat he has been set on fire and they recognized him itwas the deceased-Vyasnarayan and found that the deceased-Vyasnarayan was burnt and it was apparent from his body. Dr. P. L. Yadu, P.W.8 stated that he was 90% bumt on the basis of findings recorded in the register maintained in the department of Surgery which has been proved as Ex.P.7-A. He found that the entire body was burnt.Banshilal, P.W.10 has deposed in his testimony that he was infonned by Sindhi Boy, Parmanand, P.W.4 that his son has received burn injuries and has gone to Police Station whereupon he also rushed to the Police Station and saw that his son was badty burnt. Dr. R.N. Turre, P.W.9, Govt. Hospital, Durg performed autopsy and found that the deceased-Vyasnarayan sustained superflcial as well as deep burn injuries on his entire body. He was found 90% bumt. It was found that superfteial to deep b'ur6 injuries were found present and in his opinion, cause of death was shock due to extensive bum. From the aforesaid evidence on record, which has remained uncontroverted, it is proved that the deceased-Vyasnarayan was extensively burnt which caused his death. Thus, death of the deceased- Vyasnarayan due to burn injuries is proved and the learned trial Court has not committed any illegalify in recording finding of deatti of the deceased- Vyasnarayan due to burn injuries. Banshilal, P.W.10, father of the deceased has deposed in his Court statefnent that hisson Vyasnarayan died in Sector-9 Hospital, Bhilai and he had klentified the body of the deceased. He deposed that Anand Puri had leveled allegation on his son that he abducted his daughter-Laxmi Bai which is an incident of five months before, since then his son had eloped and did not return home. In the night of 25-01-1991 while he was sleeping at home, one sindhi boy came and stated that his son has gone to the Police Stetion in burnt condition whereupon he also went to the Police Stetion and met his son; who was badly burnt. When he asked his son as to how he received bum injuries, he stated that Anand Puri and Kuber Puri poured kerosene oil and set him on fire. He further deposed that he immediately lodged report in the Police Station Ex.P- 9, thereafter he was taken to Raipur and Bhilai where he died on the next date. In his examination, he has stated that crime was registered against his son for ffie commission of offence under Section 363, 366 of the I.P.C. on the allegaUon of having abducted Laxmi Bai. He stated that his son was unabte to speak property after he disclosed to him regardingthe fact as to how he receh/ed bum injuries. He has cleariy denied the suggesUon that Vyasnarayan was not in a fit condition to make any statement. In his cross-examination, he has also stated that when deceased was asked to who had set him on fire, he clearly stated that Anand Puri arfd Kuber Puri had burnt him. He further stated that Parmanand, P.W.4 had informed thatVyasnarayan has gone to the Police Station in burnt condition. ^ / Station House Officer, f-1? D. Mourya, P.W.-12, Police Station, Aarang has deposed that on the report of Banshilal, P.W.10, he has lodged F.I.R., Ex.P.10. It is proved frora the testimony of the prosecution witnesses that no sooner, the •..te, .-»,.!<*' •T incident happened, the deceased-Vyasnarayan rushed to the Police Station who was foHowed by his father, Banshilal, P.W.10. Vyasnarayan saw his father and though his condition was bad, he had clearly told him as to how he received burn injuries. F.I.R. was promptly filed on 00.30 Hre on 26-01 -1991 by the father of the deceased himself. Testimony of Banshilal, P.W.10 is fully corroborated by prompt F.I.R. The said FIR was lodged immediately after the incident by father of the deceased-Vyasnarayan. (10) Pramod Kumar, P.W.3 has also deposed that he knew appetlant as well as the deceased-Vyasnarayan and while he was reading, he heard cry for help and when he came out, he saw some one was proceedingtowards Police Station Arang. Thereafter, some other pereons of the colony came out and Parmanand, P.W.4 came to him. He and Parmanand also went to the place and found that the person who entered the police station from behind was trembling and saying that he was seton fire. When he saw the face of that person, he recognized that he was the deceased-Vyasnarayan and he was soaked in drain water. He saw that Vyasnarayan was burnt and bum injuries were apparent all over frie body. He had deposed that Vyasnarayan was in conscious eondition. Thereafter, he along with Parmanand, P.W.4 went to the house of the Banshilal, P.W.10, father of Vyasnarayan to inform this fact. The aforesaid testimony of the P.W.4 has not been impeached nor has been controverted. Parmanand, P.W.4 has also supported the case of the prosecution and the testimony of Pramod Kumar, P.W.3 while stating that when he heard cry for help at about 11.30- 12 P.M. in the -. / night and came out, then he saw one person running towards the Police Station ahead of Gandhi Chowk. He went to th6 Police Station and it was found that Vhe said person was Vyasnarayan ahd he met Pramod Kumar in the Police Station and in the Police Station he saw that the Vyasnarayan was crying that he has '^.%. •%^ P' lo been set on fire and murdered by speaking words "^RfT f^ t, W 'SVvS t, ginsD-^Rfr'. Thereafter, he and Pramod Kumar went to inform the father of the deceased that his son Vyasnarayan was burnt and gone towards the Police Stetion. The testimony of the prosecution witnesses has also not been controverted in his cross examination. (11) From the testimony of the aforesaid prosecution witnesses, it is established beyond doubt that in the night the deceased Vyasnarayan ran towards Police Station in burnt condition which was seen by Pramod Kumar, P.W.3 and Parmanand, P.W.4 who heard him crying that he has been set on fire and murdered. They found burn injuries all over his body and they went to inform Banshilal, P.W.10, father of the deceased- Vyasnarayan who immediately went to the Police Station and met his son Vyasnarayan where Vyasnarayan clearty told him that Anand Puri and Kuber Puri poured kerosene on him and set him on fire. There is nothing in the cross-examination of the prosecution witnesses so as to impeach their credibility. The fact that there was dispute between Vyasnarayan and Anand Puri and Kuber Puri on account of Vyasnarayan having fled with daughter of Anand Puri, is not in dispute and has also been cleariy deposed by Banshilal, P.W.10, father of the deceased Vyasnarayan. This is an admitted position on record that accused-Anand Puri lodged report that the deceased- Vyasnarayan had fled away with Laxmi Bai, daughter of appellant-Anand Puri and sister of appellant-Kuber Puri. •• / (12) Ashes of burnt clothes, shoes, a plastic conlainer of kerosene, match box were seized from the place in front of the house of the appellant-Kuber Puri. The seizure has been proved by Satish Kumar Choubey, P.W.5 by stating that the aforesaid seized articles were seized from the road in front of the house of %, 1^/ --L1 appellant-Kuber Puri. It cannot be lost sight of that the FIR was promptly lodged at 00.30 Hrs by Banshilal, P.W.10, father of the deceased Vyasnarayan and his testimony is fully supported and corroborated by the FIR lodged immediatety after the incident. (13) In the matter of Helkrujam Chaoba Singh Vs. Sfate of Manlpur, 1999 (4) Crlmes 327 (SC) the Apex Court while considering the reliability of an oral dying declaration held thus: "An oral dying declaratjon no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of pmdence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulnessof the same and that the said cfeclaration was made by the deceased while he was in a fitcondition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability" (14) Inthecase of Laxman Vs. Stateof Maharashtra, 2002 (6) SCC 710 while resolving the conflict of opinion as to the manner oftesfing the credibility of dying declaration, overruling view taken in Paparambaka Rosamma Vs. State of A.P., 1999 (7) SCC 695 and approving the correctness of the view taken in Koli Chunilal Savji and Anr. Vs. State of Gujarat, 1999 (9) SCC 862 it was authoritatively pronounced as under - The juristic theory regarding acceptability of a dying deelaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this wortd is gone, when every motive to falsehood is silenced, and the man Is induced by the most powerful consideration to speak only the tn4h. Notwithstanding the same, great caution must be exerclsed in considferirtg the weight to be givento this species of evidence on account of ' the existenoe of many clreymstances which may affect their truth. The situation in which a man is on thedeathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requiremente of oath and. cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying ^^•^. 't -i^ /^ declaration should be of such a nature as to inspire full confidence of the oourt in its truthfulness and oorrectness. The court, however, has always to be on guard to see that the statement of the deceased was not as a resutt of either tutoring or prompting. or a produot of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assaitant. Normally, therefore, the court in order to satisfy whether the deoeased was in a frt mental condition to make the dying declaration looks-tip to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the deolaration, the medical opinion will not prevail, nor can it be said that since there is no certiflcation ofthedoctor as to the fflness ofthe mind of the declarant, the dying declaratlon is not acceptable. A dying declaration oan be oral or in writing and any adequate method of communfcation whether by words or by signs or othewise will suffice provided the indication is positive and definite. In most cases, however, suoh statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely neoessary, although to assure authentioity it is usual to call a Magistrate, if avallable for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to suoh statement necessarity depends on the facts and circumstances of each particular case. What is essentially required is that the person who reoords a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit tp make the statement even without examination by the doctor the declaration can be acted upon provided the court uttimately holds thesame to be voluntary and truthful. A certifioation by the doctor is essentially a rule of caution and, ttierefore, the voluntary and truthful nature ofthe declaratioh can be established otherwise." ^ / ' * (15) In the case of P. V. Radfiakrishna Versus State of Karnataka, (2003) 6 SCC 443, the Supreme Court observed as under- 13. In the light of the above principles, the acceptabllity of a...t,(»..ttMC;..t"~B**— -l^ <c, alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evklence