HIGH COURT OF CHHATTISGARH AT B1LASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1029 of 1994 ^" Rajkumar versus The State of Madhya Pradesh (now State of Chhattisgarh) JUDGMENT FOR CONSIDERATION ^- Sd/- R.S. Sharma Judge ^^ Hon'ble Shri Sunil KumatSinha, J.: ^ /-> ^?/>-p ^ Sd/- Sunil Kumar Sinha 3 Judge Postfor^/-10-2011 Sd/- R.S.Sharma Judge ..-.^ HIGH COURT OF CHHATTISGARH AT BILASPUR ^ D.B-: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1029 of 1994 Appellant versys Respondent Rajkumar, S/o Ghondul Yadav, aged about 35 years, Occupation Carpenter, R/o Mohalla Sarbodaya Nagar, Pachpedi Naka, P.S. Kotwali, Raipur (M.P.) (now Chhattisgarh) The State of Madhya Pradesh (now State of Chhattisgarh) Present: Smt. Kiran Jain, counsel for the appellant. Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 21sb October, 2011) Per Radhe Shyam Sharma, J-: This appeal is directed against the judgment dated 29-7-1994 passed by Session Judge, Raipur in Session Trial No.118/1994. By the impugned judgment, accused/appellant Rajkumar has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. Case ofthe prosecution, in brief, is as under: Deceased Smt. Dasri Bai was the wife of appellant Rajkumar. Ku. Rekha (PW-1) is their daughter. The appellant used to suspect the chastity of the deceased. When the deceased objected the drinking habitof the appellant, the appellant started quarrelling with •1^^^-:-.. \ 1 1 ~ . 11 S ^ .. ^- ..^' ^ her and thereafter, he poured kerosene on the body of the deceased, set her on ablaze and bolted the door from inside. The deceased alarmed for help, the neighbourers came for rescue, but the appellant did not open the door till the deceased was badly burnt and became unconscious. The incident was witnessed by Ku. Rekha (PW-1). The deceased was taken to Medical College Hospital, Raipur for her treatment. Dr. Ram Pandey (PW-14) examined her at about 1 1.50 p.m. and found smell of kerosene on the body of the deceased. There were deep burn injuries over her right thigh, left thigh, abdomen, front ofthe chest, right forearm, front of neck and partial face. He gave his report vide Ex-P/16. He also sent written information (Ex-P/17) to the police chowki on the same day. On 16.10.93 at about 11.00 a.m. Asst. Sub Inspector Haril Sidar (PW-11) recorded the statement of deceased as Dehati Nalisi vide Ex-P/10 and Crime No. 1092/93 was registered in P.S. City Kotwali vide Ex-P/10-A . On the same day at about 11.45 a.m., Addl. Tahsildar-cum-Executive Magistrate UR Netam (PW-12) recorded dying declaration (Ex-P/14) of the deceased. Investigating officer seized one chimney, one piece of burnt sari, burnt petticoat, burnt blouse, one bottle containing 100 ml. kerosene and one match-box vide Ex-P/3. The appellant was also examined by Dr. Subhash Pandey (PW-5). In spite of treatment, the deceased died on 29.11.93. Dr. A.P. Padaraha (PW-6) informed the police vide Ex- P/6. Merg intimation (Ex-P/9) was recorded. Investigating officer reached to the hospital, gave notice (Ex-P/1) to Panchas and prepared inquest (Ex-P/2) on the body of the deceased. The dead body of the deceased was sent for post mortem examination to /. t>w Medical College Hospital, Raipur vide Ex-P/8-A. Post mortem was conducted by Dr. Arvind Nerulwar (PW-8), who gave his report vide Ex-P/8. He opined that cause of death was syncope due to exhaustion and septicemia as a result of burn injuries. Patwari Bhikham Prasad Soni (PW-7) prepared site-map vide Ex-P/7. 3. After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Raipur, who, in turn, committed the case to .the Session Judge, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 4. Smt. Kiran Jain, learned counsel appearing for the appellant argued that the dying declaration (Ex-P/14) recorded by Additional Tahsildar-cum-Executive Magistrate UR Netam (PW-12) is unreliable. Ku. Rekha (PW-1 - daughter of the deceased and the appellant) deposed that the appellant had thrown Chimney lamp towards the deceased. There is material contradiction in the dying declaration and in the statement of Ku. Rekha (PW-1). The deceased was not in a position to make any statement. The appellant himself admitted the deceased in the hospital. The finding recorded by the Session Judge, convicting the appellant under Section 302 of IPCis unsustainable. Alternatively, learned counsel argued that the act the appellant would not be punishable under Section 302 IPC and even after admitting the entire case, he would be liable for punishment under Section 304 of IPC. She placed reliance on Shanti Bai vs. State of M.P., 2003 (1) MPJR SN 61, Lokendra Tiwari vs. State of C.G., . 4-.——;1;- ^s^ /^•^ "\ fl-L,.' 1 ^"'.^' h- 2009(1) CGLJ 220 (DB), Kalu Ram vs. State of Rajasthan, 2000 SCC (Cri) 86 and Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 2 SCC (Cri) 944. 5. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent supporting the impugned judgment of conviction, argued that the dying declaration (Ex-P/14) recorded by Addl.Tahsildar-cum-Executive Magistrate U.R.Netam (PW-12) is duly certified by Dr. Ashok Shambharker (PW-15). 6. In Sunder Singh vs. State of Uttaranchal, (2010) 10 SCC 611, the Hon'ble Supreme Court observed thus: "30. There can be no dispute that the dying declaration can be made a basis of conviction. There again can be no dispute that for basing the conviction on the dying declaration, the dying declaration must pass all the tests of voluntariness, the fit condition of mind of the maker of the dying declaration and the witness not being influenced by any other factors and the truthfulness of the declaration. The law is settled by this Court in the decision of Laxman v. State of Maharashtra, (2002) 6 SCC 710. There, of course, the Court has discussed the implication of the doctor's statement. The Court has further considered the subject in Shanmugam v. State of T.N., (2002) 10 SCC 4 as also in P.V. Radhakhshna v. State ofKarnataka, (2003) 6 SCC 443. We hasten to add that we do not want to understate the importance of the evidence of doctors. However, there could be cases where though there is no certification by the doctor, still the dying declaration can be accepted and in our opinion present is such a case. In Laxman case, (2002) 6 SCC r •^ ^\ ^•/€. 1 ^:% 1 J /. ..y-^ r-: 710, the Court had observed in SCC para 3: (SCC p. 713) "3. ... Normally, therefore, the court in order ot satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses 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 ceri:ification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable." This decision was by the Constitution Bench of this Court and has taken stock of all the earlier decisions. It has been throughout followed by this Court in the later cases." 7. In Jayabalan vs. Union Territory of Pondicherry, (2010) 1 SCC 199, the Hon'ble Supreme Court observed thus: "20. With regard to the issue of dying declaration raised , by the appellant, it is a well-established legal position that a dying declaration can be made the sole basis of conviction of an accused provided the dying declaration is found to be true and voluntary and is not a result of tutoring or prompting or a product of imagination. This Court in Paniben v. State of Gujarat, (1992) 2 SCC 474, has succinctly summarised the law on the point as follows inpara 18: (SCC p. 480) (i) "18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the !i- ''^.^/ •,.^^-" A \M. dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. ......." 8. We shall consider the incident in the above context and find out whether the dying declaration (Ex.P-14) made by the deceased before U.R.Netam, Additional Tahsildar/Executive Magistrate (PW- 12), Dehati Nalisi (Ex. P-10) lodged by the deceased and statement of the deceased under Section 161 Cr.P.C. recorded by Assistant Sub-lnspector Haril Sidar (PW-11) were reliable, admissible in evidence and can be based for conviction. 9. In Patel Hiralal Joitaram vs. State of Gujarat, 2002(1) Crimes 94 (SC), the Hon'ble Supreme Court, while considering the '^ 7 matter in respect of the statement made by a person before his death, held that two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) His statement as to the cause of his death; (2) His statement as to any of the circUmstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed one and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub- section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted, the Court has to consider how far it is reliable. Once that test of reliability is found positive, the Court has to consider the utility of that statement in the particular case. 10. The deceased had stated in her dying declaration (Ex.P-14) that on 15-10-1993, at 10 P.M., her husband Rajkumar (the appellant) came in drunken state and asked for serving food. She served him food. Thereafter, the appellant, saying that she had illicit relationship with someone, poured kerosene on her and set her on fire with match-stick. On sustaining burn injuries, she screamed. On .:^A ^"%. ^i"^ \ ? ^"':.^ 1 f"I«!^ r 8 this, neighbourers called her father. Her father and the neighbourers got her admitted in the hospital. 11. U.R.Netam (PW-12) deposed that on 16-10-1993, at about 11:45 A.M., he had visited Medical College Hospital (D.K.Hospital), Raipur, where the deceased was admitted in burn-ward. Dr. Ashok Shambharker (PW-15) also deposed that on 16-10-1993, he was on duty in D.K.Hospital (Medical College Hospital), Raipur in Ward No.9, where the deceased was admitted. He further deposed that the deceased was in a fit mental condition to make statement. He also deposed that he had made an endorsement on the statement (Ex.P-14) to the effect that the deceased was in a fit condition to make statement and after the statement he had again made an endorsement on that document that the deceased was in a fit condition during recording of her statement. U.R.Netam (PW-12) deposed that he had recorded the statement (Ex. P-14) after obtaining the certificate of Dr. Ashok Shambharker (PW-15) to the effect that the deceased was in a fit condition to make statement. The deceased had told him that on 15-10-1993, her husband Rajkumar (the appellant) had returned home in drunken state and on being asked for, she had served him food. Thereafter, the appellant made a false allegation against her that she had developed illicit relationship with someone and saying this, he poured kerosene on her and set her on fire with match-stick, due to which, she sustained burn injuries. She had also stated that on sustaining burn injuries, she had screamed, whereupon, neighbourers had come there and with the help of the neighbourers and her father, she was admitted in ff "-•^^^ |lN<- ^Nt 9 the hospital. He further deposed that the statement (Ex.P-14) was read over to the deceased, who had accepted its correctness and had put her thumb impression on it. The statement was recorded in presence of the doctor, who had also signed the document. The condition of the deceased, at the time of giving statement (Ex. P-14), was good. 12. Haril Sidar, Assistant Sub-lnspector (PW-11) deposed that he reached D.K.Hospital (Medical College Hospital), Raipur on 16-10- 1993, at 11 A.M. and interrogated the deceased. At that time, she was in a fit condition to make statement. She told him that on 15-10- 1993, her husband (the appellant) had come in drunken state. When she asked as to why he consumed liquor, he quarreled with her and went out of the house. At about 10 P.M., he returned to the house and again quarreled with her. He made an allegation that she was in illicit relationship with someone and saying this, he poured kerosene on her, hurled a lighted kerosene lamp (Chimney) on her and sether on fire. 13. Haril Sidar (PW-11), in examination-in-chief, had given the date as 15-10-1993, but in cross-examination, he deposed that by slip of tongue he had deposed the date to be 15-10-1993 and actually it was on 16-10-1993, when he had recorded the report Ex.P-10. He admitted that no doctor was present at the time of recording the report. He deposed that on 16-10-1993, at 11 A.M., he had interrogated the deceased in Ward No.9 of D.K.Hospital (Medical College Hospital), Raipur. She told him that on sustaining 'fc-: 10 burn injuries, she had screamed and raised voice for help, whereupon neighbourers had come there and saved her. She had burn injuries on her chest, abdomen, legs and hands. He recorded the report as Dehati Nalisi (Ex.P-10) and had taken the thumb impression of the deceased on Dehati Nalisi (Ex.P-10) and, thereafter, had himself signed it, while the deceased was dictating the report, her condition was good and she was well talking. 14. From the discussion of evidence of the Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12) and Dr. Ashok Shambharker (PW-15), it appears that the deceased was in full conscious state of mind and had made a declaration to them to the said effect. 15. The main plank of the criticism canvassed on behalf of the appellant as far as these three dying declarations are concerned is that there is a contradiction with regard to the manner in which the deceased was set on her. According to the dying declaration recorded by Assistant Sub-lnspect Haril Sidar (PW-11) after pouring kerosene from the bottle, the appellant set the deceased on fire with a lighted lamp, whereas according to Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12), the appellant had set her on fire with a match-stick. 16. The deceased had sustained burn injuries to the extent of 55% and she had made a long report to Assistant Sub-lnspector Haril Sidar (PW-11) and just after sometime Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12) had recorded ^^^s^,^ ^" ^^. """ ^.-:\ \- ._J/ '^ss^^ 11 her statement. Under these circumstances, possibility of her having made small mistakes or errors cannot be ruled out. The crucial question is as to whether the infirmity or contradiction is of such a nature which goes to the very root of the matter and is sufficient for rejection ofthe entire set ofdying declaration? 17. A perusal of the three dying declarations reveal that so far as the manner in which the appellant misbehaved with the deceased and the pouring of kerosene from the bottle is concerned, there is absolute consistency. The only important aspect of the matter is as to whether it was the appellant who set the deceased on fire? All the dying declarations reveal that it was the appellant who had set his wife (the deceased) on fire. 18. Dr. Ram Pandey (PW-14) deposed that the deceased was admitted in D.K.Hospital (Medical College Hospital), Raipur on 15- 10-1993 at about 11 :50 P.M. She had sustained burn injuries on her left and right thighs, abdomen, front portion of chest, whole right hand, front portion of neck and some part of face. He observed that the deceased had sustained burn injuries to the extent of nearabout 50%. He had shifted the deceased to surgery department for her better treatment. He had prepared a report vide Ex.P-16 in his writing and signed it. He also deposed that he had informed police about the incident vide Ex. P-17. He further deposed that he had made entries in the document (Ex.P-13) to the effect that permission may be obtained from the doctor of the surgery department for recording his statement. He had signed the document (Ex.P-13). y ^ ..^' ,/y ^s^' ••^^^" 12 19. According to Dr. Ashok Shambharker (PW-15), Dr. Ram Pandey (PW-14), Assistant Sub-lnspector Haril Sidar (PW-11) and Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12), the deceased was mentally fit to make dying declaration (Ex. P-14). Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12), who recorded the dying declaration (Ex. P-14), was also satisfied before recording it that the deceased was fit to make statement. Therefore, from their evidence, we find that the dying declaration (Ex. P-14) and Dehati Nalisi (Ex.P-10) recorded as a dying declaration and statement ofthe deceased under Section 161 Cr.P.C. recorded as a dying declaration are reliable, admissible in evidence and can be basedforconviction. 20. Ku. Rekha (PW-1) was aged about 15 years at the time of incident. She deposed that her father used to come house in drunken state daily. She further deposed that on the fateful day her father (the appellant) had returned home at about 10 P.M. in drunken state and quarreled with her mother (the deceased). She further deposed that her father hurled a lighted kerosene lamp (Chimney) on her mother, due to which, her mother sustained burn injuries. Her mother screamed and raised voice for saving her life. Neighbourers knocked the door of the house and they asked to open it, but the appellant did not allow her to open the door. When her mother was comptetely burnt and the neighbourers continued to knock the door, the appellant opened it. The neighbourers had 13 taken the deceased out of the house and thereafter they had taken her to the hospital. 21. Evidence of Rekha (PW-1) is acceptable to the extent that the deceased was burnt. Neighbourers had come to save her life and the appellant did not permit Rekha (PW-1) to open the door in spite of continuously knocking it. When the deceased was burnt completely, the appellant opened the door. In last para of the cross- examination, Rekha (PW-1) deposed that she had not seen her father throwing burning Chimney on her mother and she told this fact inadvertently. 22. On the face of the above clear enunciation of law, the argument advanced by learned counsel for the appellant cannot be acceptable. Upon careful assessment of the evidence tendered by Dr. Ashok Shambharker (PW-15), Dr. Ram Pandey (PW-14), Assistant Sub-lnspector Haril Sidar (PW-11) and Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12), we find no circumstances brought on record to suspect their bona fides. Nothing has been elucidated to show that they were interested in fabricating a case against the appellant or that they had any motive to make out a false case against him. It appears that the deceased making the statement was not influenced by any exterior factor and made the statement which was duly recorded, therefore, it can be made basis for conviction. ^^.i^^^ ^ ^- ^\^-%. ^'^ -^a^i<?@ &; 14 23. We have carefully perused the evidence of Dr. Ashok Shambharker (PW-15), Dr. Ram Pandey (PW-14), Assistant Sub- Inspector Haril Sidar (PW-11) and Additional Tahsildar/Executive Magistrate U.R.Netam (PW-12). From their evidence, it is crystal clear that it was none else but the appellantwho poured kerosene on the deceased and set her on fire. Dr. Arvind Nerulwar (PW-8) opined that the cause of death of the deceased was syncope due to exhaustion, septicemia due to burns. Therefore, we do notfind any infirmity in the finding recorded by the learned Session Judge that it was the appellant who caused the death of the deceased. 24. Now, we shall examine the matter in the light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 25. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Codejt has to be observed that a death must have been caused by him under \ .4;"...-&^ "V. !g ff^-r^^ i ^•••-—y1 ^ ^, .'••^?^^' ^ "^-"^^' - -^ri^"" '^ 15 any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 26. In Yomeshbhai Pranshankar Bhatt vs. State of Gujarat (supra), the Hon'ble Supreme Court observed that some altercation took place between the appellant and the deceased, then the appellant on a spur of moment, gagged her mouth, poured kerosene on her, which was lying nearby in a cane, and lighted a match-stick. The Hon'ble Supreme Court held that the appellant had no premeditation to cause any bodily harm or injury to the deceased. It was further held that the case of the appellant fell under Section 304 Part II IPC. 27. In Kalu Ram vs. State of Rajasthan (supra), the Hon'ble Supreme Court, while considering the matter, observed that the k ^ '•^ /^