; -"""a'i»^ ^ If ^ i»:-s^ s^) H1GH COURT OF CHHATTISGARH, BTLASPUR CORAnfl: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble SJiri Sunil Kumar Sinha. J. Criminal Ap&eal No^10Z6 of 2003 Kanchan Ghosh 'r vs. \. The State of Chhattisgarh JUDGMENT For consi^leration Sd/- Sunii Kumar Sinha Judge 1'B|S5B4is|Eg| HON'BLE SHRI JUSTICE RAJEEVGUPTA Sd/- ChiefJustice Post for Judgment :///05/2009 's Sd/- Sucil KumarSinha 7 'Judge i HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: v Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. :iia%:i^??t^^ Appellant Respondent Criminal Appeal No. 1076 of 2003 • Kanchan Ghosh, Son of Shri Kalyan Ghosh, aged about 32 years, Resident of Bhilai - 3, Charoda, District Durg (Chhattisgarh) 'i. ' Versus ^. The State of Chhattisgarh (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Rajesh Jain with Smt. Kiran Jain, Counsel for the appellant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDGMENT (.IL.05.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. N (1) Appellant Kanchan Ghosh stands convicted and sentenced by the Seventh Additional Sessions Judge (F.T.C.), Durg (C.G.) in Sessions Trial No. 178/2002 on 16.9.2003, in the following manner with a further direction to run the sentences concurrently:- Conviction Sentence u/s 498 A IPC u/s 302.1PC R.l. for 3 years and fine of Rs.1,000/-, in default of payment of fine to further undergo S.l. for 2 months Imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to further undergo S.l. for'2 months '^s-:s"'i^^^^tvSf:ss^ g% .I.^KS^j^^ (2) Criminal Appeal No. 1076 of 2003 The facts, briefly stated, are as under:- Deceased Monika was the wife of the appellant. Their marriage took place on 15.4.2001. Previously, the deceased was residing in her matrimonial house along with the other members of the family, including Chanchal Ghosh and Deepti Ghosh (2 other co-accused persons, who have been acquitted by the Sessions Court) but, on accoun{,of some difference, the husband and wife ,.l started residing separately from 5.6.2001. On 29.6.2001, the deceased left the company of the appellant and went to the house of her brother Shyamal Das (PW-12). Thereafter, a proceeding u/s 9 of the Hindu Marriage Act was filed by the appellant in the Court of Third Additional District Judge, Durg vide Civil Suit No. 199- A/2001. On 10.1.2002, the deceased appeared before the matrimonial Court and gave her consent for residing with the appellant. Both the parties agreed to fix the matter on 8.2.2002 for completion of formalities of compromise. On 8.2.2002, it was told to the Court that the husband and wife are residing together since 7.2.2002 and the matter be fixed on 20.2.2002. This is clear from the order-sheets filed as Ex.-D/4. On 20.2.2002 at about 9.00 a.m., the deceased received 90% burn injuries. She came out from her house in burning condition. The neighbolirs any how extinguished the fire and Viswash Sinha (PW-1) took her to Jyoti Hospital, from where, she was referred to Sector-9 Hospital, Bhilai. The allegations are that the appgllant was treating the deceased with cruelty and on account of certain dispute, the appellant poured kerosene oil on the MiM •f—i-SssSWS -*J^Us3&; Criminal Appeal No. 1076 of 2003 deceased and set her on fire. The deceased firstly made an oral dying declaration before Viswash Sinha (PW-1) while he was taking \. her to the hospital. In burn unit also she was crying that she has been burnt which was witnessed by B.K. Nandi (PW-10). Shyamal Das (PW-12, brother of the deceased) met the deceased in Jyoti Hospital, where she also made oral dying declaration before her brother that she was p.ut to fire by the appellant after pouring ..( kerosene oil on her. , After admission in Sector-9 Hospital, a written dying declaration (Ex.-P/4) was recorded by the Executive Magistrate, Navin Thakur (PW-3). In this dying declaration also, the deceased made statement that she was put to fire by the appellantafter pouring kerosene oil on her. The deceased died on 3.3.2002 during the course of her treatment in Sector-9 Hospital, Bhilai. On information from Sector-9 Hospital (Ex.P/13), the Investigating Officer reached to the scene of occurrence, gave notice (Ex.-P/6) to the Panchas and prepared inquest (Ex.-P/7) on the body of the deceased. The dead body of the deceased was sent for its post- mortem to District Hospital, Durg under Ex.-P/8-A, where the post- mortem examination was eonducted by a team of two Doctors namely Dr. J.K. Meshram and Dr. Ashok Kumar Soni (PW-7), who prepared their report Ex.-P/S. The Autopsy Surgeons noticed that the burn injuries were all over the body except head, neck & waist and opined that the cause of death was septicaemic shock on account of 90% infected burn. In further investigation, the bed-head ticket ofthe deceased was seized under Ex.-P/10. 11^1^':^^^^ 4 Cruninal Appeal No. 1076 of 2003 In this matter, earlier the offence was registered u/ss 307 & 498 A/34 IPC and Sections 3 & 4 of the Dowry Prohibition Act, 1961 against the appellant, co-accused persons Chanchal Ghosh (brother-in-law) and Deepti Ghosh (mother-in-law) under Ex.-P/14 on 20.2.2002 and various articles were seized from the place of occurrence under Ex.-P/1 & P/2. The seized articles were sent for their chemical examination to Forensic Science Laboratory but the <t ,..( report could not be produce(J. It is also the case of prosecution that when the deceased received burn injuries and was crying for help, the appellant was trying to escape from that place, therefore, he was caught by neighbours and was beaten by them. He received injuries and was also sent for medical examination and his MLC report, Ex.P/9, was collected. He was examined on 20.2.2002 at 11.50a.m. ia.-Ki«-S"3S (3) After completion of usual investigation, the charge-sheet was filed in the Court ofJudicial Magistrate, First Class, Durg, againstthe appellant and two co-accused persons namely Chanchal Ghosh and Deepti Ghosh. The matter was committed to the Court of Session, from where, it was received on transfer by the Seventh Additional Sessions Judge (F.T.C.), Durg, who conducted the trial and convicted and sentenced the accused/appellant as aforementioned. However, the other two co- accused persons were acquitted. (4) The conviction of the appellant is based upon the dying declaration (Ex.-P/4) of the deceased. Criminal Appeal No. 1076 of 2003 (5) Mr. Rajesh Jain, learned counsel appearing on behalf of the appellant, would submit that the dying declaration (Ex.-P/4) does not fulfill \ the test of its truthfulness. He would further submit that the Doctor, who gave certificate in the dying declaration was not examined. The Executive Magistrate has also not. proved that the deceased was in a fit mentat condition to give dying dedaration. He would also submit that the deceased was a Bangali lady and she was not knowing Hindi language, therefore, the dying declaratiork recorded in Hindi becomes suspicious. Referring to the documents relating to the civil litigation, he would submit that the deceased used to sign in English, whereas her signature over the dying declaration is in Bangla. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and suppori:ed the judgment and order passed by the Sessions Court. (7) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) We are conscious about the law that the admissibility of the dying declaration is not subject to the cross examination of the declarant, therefore, a strictest scrutiny and closest circumspection is required by the Court before acting upon it. In the matter of K.R. Reddy and another -Vs- The Public Prosecutor. AIR 1976 S.C. 1994, the Apex Court observed that while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the .^!s^ '<» Criminal Appeal No. 1076 of 2003 court has to be on guard against the statement of the deceased being a result of either tutorihg, prompting or a product of his imagination. It has further been observed that the Court must be satisfied that the deceased was in a fit state of mind tojnake the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. It has also been observed that once the court is satisfied that the dying declaration is true ..( and voluntary it can be sufficient to found the conviction even without any further corroboration. The Apex Court further observed that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. (9) In the matter of Nanahau Ram and Anr. -Vs- State of Madhva Pradesh. AIR 1988 SC 912, it was further held by the Apex Court that normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion eannot prevail. / tll?i :ii ;' R^! t.'r^ Criminal AupealNo. 1076 of2003 (10) In the matter of Laxman -Vs- State of Maharashtra (2002) 6 SCC 710, a reference was made to the Constitutional Bench of the Apex Court, in which, a question has cropped up as to whether the certificate of Doctor to the effect that the patient is conscious and there was no certification that the pati^nt was in fit stateof mind at the time of making the declaration makes the declaration unacceptable and the subjective satisfaction of the Magistrate .recording the dying declaration that injured was in a fit state of mind at the time of making declaration cannot be relied on, is the correct enunciation of law ? The Apex Court after considering the entire matter held that normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. The Apex Court further held that the dying declaration can be oral or in writing and adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It has also been stated that 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 beattached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration myst be satisfied that the ^i-swW^ Criminal Aooeal No. 1076 of2003 deceasedwas in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even \. without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. The Apex Court has further held that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. The Apex Court ,..(, replied the reference in terms that,"ln the absence of medical certification that the injured was in a fit state of mind at the time of making declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration", is not correct enunciation of law. (11) Now coming to the case on hand, PW-3, Navin Thakur (Executive Magistrate) deposed that on the fateful day, he had gone to the burn unit of Sector-9 Hospital for recording the dying declaration of deceased Monika. Before recording the dying declaration, he made inquiry from the treating Doctor as to whether the deceased was in a position to give the dying declaration. The Doctor certified that the deceased was in a condition to give statement. Thereafter, he recorded the dying declaration ofthe deceased who stated in answer to question No.4 that onaccount of some quarrel, firstly her husband gave 3 kicks to her and then put her on fireafter pouring kerosene oil on her. He has also proved signature ofthe deceased over the dying declaration. In Para-14 of the cross examination, he stated that before giving certificate, the concerned Doctor has seen the deceased before him. In Para-22, he deposed that the deceased was answering to the questions in general manner and M1 f f' . .<T r:' P^'!N1S9BS^|| is-"SI!se»;i1!. it! ! ^ ^;" ...^ >•' Criminal AupealNo, 1076 of 2003 while speaking she was not facing any difficulty. In Para-33, he stated that the deceased has easily signed over the dying declaration and had \. denied the suggestion that she was unable to speak and sign the document. The contents r>f the dying declaration would show that the Doctor gave the certifica^e that the deceased was in a condition to give statement at 1.00 p.m. and the statement was completed at 1.30 p.m. That means the dying declaration was recorded within half an hour after ii •I obtaining the certificate from the Doctor. The dying declaration is in question-answer form and there appears to be no ambiguity on the face of it. The contents of the dying declaration as also the Court deposition of the Executive Magistrate would show that the deceased deposed that her husband was asking her to give ornaments, on resistance, he gave 3 kicks and then, put her on fire after pouring kerosene oil on her. (12) In the matter of Shanmugam @ Kulandaivelu -Vs. State of Tamilnadu. AIR 2003 SC 209, it was held that "When the dying declaration was recorded after satisfaction of the Magistrate regarding consciousness of the deceased and his position to make the statement and the Doctor also made an endorsement on the dying declaration about the consciousness of the patient, the mere fact that the doctor in whose presence the dying declaration was recorded was not examined does not affect the evidentiary value to be attached to the dying declaration". Therefore, if the satisfaction of the Magistrate was there regarding consciousness of the deceased and her position to make the dying declaration and the dying declaration is found otherwise reliable, the instance of non-examination of the Doctor giving certificate would make no difference. ^ < |g|,,;f.:^MiiS^ illi (lil! 10 Criminal Apoeal No. 1076 of 2003 (13) It was argued before us that the Executive Magistrate has not deppsed before the Court that he was satisfied about the mental status of the deceased, therefore, it was fatal to the prosecution. (14) This question was raised before this Court on an earlier occasion and we answered the question in following manner:- "The question raised before us is "whether the Magistrate recordrng jhe dying declaration should state in clear words that the declatent was in a fit state of mind to give dying declaration, or, firstly, he should give a certificate like this, then, he should begin to record the dying declarationand if they are lacking, the dying declaration will not be held to be truthful or correct ? On the basis of various judgments rendered by the Apex Court in the cases, in which, either the certificate of the Doctor was obtained or it was not obtained, the final verdict is that if the Magistrate recording the dying declaration was satisfied that the declarant was in a conscious state of mind and in a position to make statement, that itself would be sufficient to rule out the possibility of recording an incorrect dying declaration on this account. Ifthe satisfaction of the Magistrate is reduced into writing, it is well and good but if such satisfaction or certificate has not been reduced into writing, merely on this ground, the dying declaration cannot be discarded if otherwise it was established on record that the Magistrate was satisfied about the consciousness and state of mind of the deceased and he was of the opinion that the deceased was in a position to make a dying declaration. We are of the considered view that the satisfaction of the Magistrate in this regard can be gathered by a Court while scrutinizing the dying declaration as also the evidence ofthe Magistrate and it is not necessary that the Magistrate should speak in so many words that the declarant was in a fit state of mind to record the dying ^ declaration or he should give a certificate like this then begin 11 Criminal Aweal No. 1076 of2003 ^^ to record the dying declaration". (P/ease see- 2009 CRI.L.J., 420 fLokendra Tiwari alias Kaushlendra -Vs- State of Chhattisaarh}) v (15) In the present case, the Doctor has given certificate on the top of the dying declaration. Apart from the above, evidence of the Executive Magistrate would show that what questions he had asked to the deceased and what answer^ were given by the deceased to the said :1 questions. The answers of the deceased to the questions asked by tt Magistrate would show that she was properly responding to them and when she was responding to the questions asked by the Executive Magistrate, the Executive Magistrate continued to record the declaration till end by putting subsequent questions, which were also properly replied by her in the manner she wanted to reply. This shows that when the Executive Magistrate was satisfied with the answers of the questions given by the deceased, he continued to complete the dying declaration and the subjective satisfaction of the Magistrate can be gathered from such course of action adopted by him from beginning to end while recording the dying declaration. For the reasons stated above, we do no find any substance in the argument that the dying declaration was not reliable because the Doctor giving certificate was not examined and the Executive Magistrate had not proved that the deceased was in a fit mental condition to give dying declaration. (16) About the argument that the deceased was a Bangali lady and she was not knowing. Hindi, reliance has been placed on the evidence of defence witness No. 2, Smt. Suchita Bosh who was working as Assistant Grade-111 in District and Sessions Court, Durg. She deposed that in a i^, —"*«.. '.i'fr 12 Criminal Appeal No. 1076 of 2003 case pending in the Court of Third Additional District Judge, Durg between the appellant and his wife, she was called by the Court on a day. \. The deceased was not knowing Hindi language and she used to speak Bangla, therefore, she was called for the purpose of translation by the Presiding Judge. The questions which were asked by the Presiding Judge were translated in Bangla and explained to the deceased in Bangla and reply of the deceased in Bangla were translated into Hindi and was 'i. :1 told tQ the Court. In the cross examination, she admitted that she has n< knowledge if the deceased was knowing Hindi also. Complete order- sheets ofthe matrimonial case has been filed as Ex.-D/4, wherein there is no such endorsement made by the Judge. Therefore, the version of the DW-2 appears to be doubtful. (17) About the argument that the deceased used to sign in English, we find in the document of civil case that the deceased had signed in English. She has signed the order-sheets as also Vakalatnama in English, but on that only, no inference could be drawn that she was not knowing Hindi. The Executive Magistrate has also denied the suggestion and has reiterated that he recorded the dying declaration as per tt statement made by the deceased. Accordingly, we do not find any force in the contention raised by the counsel for the appellant that the deceased was not knowing Hindi and even she was unable to given the dying declaration in Hindi. (18) Apart from the written dying declaration, the deceased also made oral dying declaration before Viswash Sinha (PW-1) who took the deceased to the hospital. That apart, B.K. Nandi (PW-10) deposed that he had-.gone to the hospital where the deceased was crying andsaying !^S^^^^^?*^E"lsS* 13 Criminal Appeal No. 1076 of2003 that she has been burnt. PW-12, Shyamal Das, also deposed that she met Monika in Jyoti Hospital and asked about the incident. Monika \. categorically stated that she was burnt by her husband, Kanchan Ghosh, after pouring kerosene oil on her. The above instances of oral dying declaration coupled with the other circumstances would show that the deceased made consistent statement on 3-4 occasions and there was no inconsistency in the dying declarations made by her. •'/- (19) The appellant has examined Jainarayan Sahu (DW-1) to show that he was not present in the house at the time of incident. He deposes that after the incident, he had gone to the shop of the appellant to ca!l him and then only, the appellant came there, by that time, the deceased was taken to the Hospital. This witness is a witness of seizure (Ex.-P/1). He has tried to build up the theory of alibi but his evidence does not appear to be reliable on the face of version of PW-1 who deposed that Kanchan Ghosh was caught by the villagers at the time of incident while he was trying to escape. Moreover, when we have taken the written dying declaration as proved which is supported by the oral dying declaration on 2-3 occasions, in appreciation, we find that this witness is not reliable anl he is making statement in the interest of the appellant which is creature of after- thought. (20) For the foregoing reasons, vye do not find any substance in this appeal, the appeal is liable to be dismissed and is accordingly dismissed. Sd/- ChiefJustice Sd/- Sunil Kuntar Sinha Judse vatti