HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta. C.J. & 'Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 379 of 2004 ‘ Lokendra Tiwari @ Kaushlendra a f Vs. State of Chhattisgarh JUDGMENT For consideration r Sdl- Sunil Kumar Sinha HON’BLE SHRI JUSTICE RAJEEV GUPTA Sdl- Chief Justice Judge Post for Judgment 1W1 0/2008 x4 Sdl W Sunil Kum-ar Sinha / Judge f! J W w HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Crjminal Appeal No. 379 of 2004 Lokendra Tiwari alias Kaushlendra, aged about 28 years, S/o Shri Arjun Tiwari, Multi-Purpose Health Worker, Health Department, Village: Lakhram, R/o‘Village' Tiffra, P.S.H' Civil Lines, Biiasiour, rahsii & Disit; Biiaspur (C.G.) APPELLANT Versus State of Chhattisgarh, Through: Station House Officer, Civil Lines, Bilaspur (C.G.) RESPONDEN‘IZ (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Ashok Verma & Shri Gajendra Sahu, Advocates for the appellant. Mr. Ashish Shukla, Govt. Advocate, for the State. JUDGMENT (1?.1otg908) ‘i Following judgment of theCourt was delivered by Sunil Kumar Sinha, J. (1) Appellant- Lokendra Tiwari @ Kaushlendra stands convicted under Section 302 l.P.C., for commission of murder of his wife- Saroj Bala, and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/—, in default of payment of hne to further undergo R.l. for 3 months, by the Additional Sessions Judge, Bilaspur in Sessions Trial -No. 246/2001 on 315‘ of March, 2004. 2 Criminal Appeal No. 379 of 2004 (2) Deceased— Saroj Bala was married to the appellant on 19.4.2000. She was residing with the appellant and her in-Iaws in viilage Selar. On some difference, on account of alieged illicit reiations of the appellant with one Rajeshwari Raj (PW-10), the deceased left the company of the appellant and came to her parents place in village Muruwa. After sometime their marital relations resumed and both husband and wife started living separately in a rented premise of one Arjun Das Vaishnaw in Tiffra, Bilaspur. The deceased was working as a teacher and was earning Rs.1 ,000/- per month. The deceased most oftenly used to quarrel with the appellant on account of alleged illicit A relations of the appellant with Rajeshwari Raj. On 27.3.2001 at about \ 8.00 p.m., the appellant and the deceased were in their rented premise. The appellant was in drunken condition and was keeping some more liquor with him. When he was asked to take meals by Saroj Bala, he denied to take the meals saying that Rajeshwari has instructed him for not taking the meals at house. On this, quarrel begun between the appellant and the deceased. The allegations are that during the quarrel, the appellant weptto the kitchen, brought kerosene~~ oil and poured it over the body of the‘deceased. Thereafter, he rubbed a match-stick on the floor and put the deceased on fire. When hue and cry was made a next-door neighbour namely Srikant (PW-6) and other persons ran over there. All including the appellant tried to extinguish the fire. But, by that time the deceased has already received burn injuries. She was admitted to Government Hospital, Bilaspur. An information regarding burn case was‘given by the hospital authorities to the police and a dying declaration (Ex.-P/12) of the deceased was recorded by the Executive Magistrate, P.C. Kori (PW-1 1) on 28.3.2001. (é? 3 Criminal Appeal No. 379 of 2004 The further case of the prosecution is that in the night of 27.3.2001, elder sister of the deceased namely Aabha Pandey (PW-5) has visited the hospital and the deceased made an oral dying declaration to her. On 28.3.2001 at about 15.00 hours, a Dehatinalishi (Ex.-P/4) was also recorded at the instance of the deceased. This also contains the allegations about putting the deceased on fire by the appellant. The deceased died during the course of her treatment in the hospital on 31.3.2001. Inquest (Ex.—P/8) was prepared on the same day after as giving notice (Ex-PH) to the Panchas and the dead body was sent for its pgstmortemwto the concerned department of the hospital. The postmortem examination was conducted by a team of 2 Doctors .. namely- Dr. T.S. Shyam (PW-2) and Dr.(Smt.) Chipde. They prepared their report Ex.-P/2. The Autopsy Surgeons opined that the cause of death was septicaemic shock due to burn. (3) ln further investigation, the injury report of the deceased (Ex.- P/1) was collected, according to which, the deceased had received 95% burn injuries and was directed to be admitted in burn unit. The Investigating officer had also seized‘ione nylon-nighty, one bed—sheet, one container of kerosene oil, some pieces of bangles, a match-box and unburnt & half-burnt match—sticks from the place of occurrence i.e. from the house of the appellant, vide seizure memo Ex.—P/15. Site plan (Ex.—P/16) was also prepared. Appellant— Lokendra had also received injuries, therefore, he was sent for his medical examination under Ex.- ‘ P/17 on 29.3.2001 and a report Ex.—D[4 was obtained. According to the said report, he had received burn injury of 5 cm x 5 cm on the middle portion of left forearm, burn injuries on the right index, middle and ring \ “ 4 Criminal Appeal N0. 379 of 2004 fingers. The injuries on the right index finger were of the sizes of 1 cm x 2 cm & 1/2 cm x 1/2 cm. The seized articles were sent for their chemical examination to F.S.L. Sagar and a report (Ex.-P/25) was received. According to the F.S.L. report, kerosene oil was found on the clothes etc. of the deceased. (4) After compietion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Additional Sessions Judge, Bilaspur, who conducted‘the trial and convicted and sentenCed the appellant as ‘3 aforementioned. However, two other co-accused persons namely- Arjun Tiwari and Smt. Kamlesh Tiwari (in—laws of the deceased), who were charged u/s 498-A l.P.C., were acquitted. (5) The conviction of the appellant is mainly based upon the dying declaration of the deceased made to the Executive Magistrate, supported by the oral dying declaration and the attaining circumstances of the case. ."‘ w. (6) Mr. Ashok Verma, learned counsel for the appellant, argued that the written dying declaration does not‘fultill the test of its truthfulness and the same was unbelievable. The Sessions Court committed an error of law by holding the declaration to be true and proved. He argued that dying declaration must be tested by independent evidence ' that the declarant was mentally conscious and possessed memory or intelligence, sufficient to know that what she was doing and saying. He also submitted that the Doctor, who has given certificate regarding Criminal Appeal No. 379 of 2004 fitness of the deceased, has not been examined in this case and an adverse inference should be drawn against the prosecution. He also argued that the Executive Magistrate had nowhere said that the deceased was in a fit mental condition to give the dying declaration, therefore, in absence of evidence of the Doctor, who made an endorsement of certification, it cannot be said that the deceased was conscious and she was tit to give the dying declaration (Ex.—P/1 2). He also referred to the evidence of Srikant (PW—6), who was first man to u 1‘ reach to‘ the_room, in which, it comes that the deceased told him that shegherself pOured kerosene oil on her and had rubbed the match—stick to frighten the appellant due to which the fire caught her nighty. Lastly, he argued that even if the contents of the dying declaration are held to be proved, it appears that during a sudden quarrel and fight between the husband and the wife, out of anger, the appellant poured kerosene oil on his wife and just to show his whims of opposition or detachment, he rubbed the match—stick on the floor of the room and the nylon-nighty of the deceased, stained with kerosene oil, accidentally got fire. Therefore, the offence would begiessor than one punishable u/s 392 w. l.P.C. (7) On the other hand, Mr. Ashish Shukla, Govt. Advocate, for the State, opposed these arguments and supported the jUdgment 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. \ (9) declaration are well settled. Since the admissibility of the dying The principles regarding testing the veracity of the dying 6 Criminal Appeal No. 379 of 2004 declaration is not subject to the cross examination of the maker, a strictest scrutiny and closest circumspection is required by the Court before acting upon it. In the matter of KR, Reddy and another —Vs- The Public Prosecutor, AIR 1976 S.C. 1994, the Apex Court ’observed that whiie great soiemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not Iikely to tell lies or to concoct‘a case so as to implicate an innocent r person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It has further been observed that the Court must be 4 satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any infiuence or rancour. It has also been observed that once the court is satisned thatthe 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 reliablllty 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 partres .K‘ Criminal Appeal No. 379 of 2004 (10) In the matter of Suraideo Oza and Ors. —Vs- State of Bihar‘ AIR 1979 SC 1505, the Apex Court held that merely because the dying declaration is a brief statement, it is not to be discarded. On the ‘ contrary, the shortness of the statement itself guarantees truth. (11) In the matter of Nanahau Ram and Anr. —Vs- State of Madhya desh AIR 1988 SC 912, it was further held by the Apex Court that normally the Court in orderto satisfy whether the deceased was in a fit me‘nt’al 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 A w . ’ . ' . n . and conscious state to make the dying declaration, the medical opinion cannot prevail. Pra , (12) 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 patient was in fit state of mind at the time of making the declaration makes thetgeclaration unacceptable and the ‘ subjective satisfaction of the Magistrate recording the dying declaration that injured was in a tit 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 normaliy, the Court in order to satisfy whether the deceased was in a tit mental condition to make 7 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 I be said that since there is no certification of the doctor as to the fitness / \ Criminal Appeal No. 379 of 2004 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. lt has also been stated that there is no requirement of Iaw 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 *s f or weight has‘to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially requ‘ired is that the person who records 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 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 otthe declaration can be established . othenNise. 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. (13) PW—11, P.C. Kori, is the Executive Masgistrate, who recorded the dying declaration. He deposed that on 28.3.2001, he had received 9 Cg? Criminal Appeal No. 379 of 2004 a memo from the concerned police station for recording the dying declaration of the deceased. He reached to District Hospital at about 2.15 p.m. and made contact with the treating Doctor to know about the position of the deceased to give the dying declaration. Thereafter he obtained a certificate of the Doctor showing that the deceased was conscious and she was fit to give her statement at that moment. Such certification is in the written form at the top of the dying declaration (Ex.-P/12) showing to be given at 2.15 p.m. Thereafter, the dying at declaration was recorded which bears the signature of the declarant. The Magistrate has also signed the dying declaration at 2.25 p.m. A which shows that about 10 minutes time was consumed to record the declaration of the deceased. The dying declaration is in question- answer form. The Executive Magistrate has categorically deposed about the questions which he had asked to the deceased in chronological order and the answers to those questions given by the deceased. The contents of the dying declaration as also the Court deposition of the Executive Magistrate would show that the deceased deposed that her husband used tots‘drink every day. He was having ~ relations with a nurse, due to which, they used to quarrel. When she was asked as to how the incident occurred, the deceased made the declaration in the following manner: Q.No.3 aw$aa€tm$amlw Ans. atulttWwtta§®Q$mtafrwma$W mamatultism‘gwatatqlaaat Wfhae‘taasiamawqlaaétwmw maratmawaaaawmmnal ma a wmammawtm “ti 10 Criminal Appeal No. 379 of 2004 Q.No.6 31:21 33W ? 11%%WWW%?§&WW@%W WWW$W$WW1#%%Q§W ganlmWMaEwah¥fwww Vfé IW%€IW£{WWW&' emwwré lmwwWq§rmw$ WWW mlmi$m®ww Wm?! wa§m%l Ans. On perusal of the dying declaration and the evidence of the Executve i r Magistrate, PW—11, it appears that such declaration of the deceased was‘ Fecorded after a certification by the Doctor regarding her mental‘ status and even if the Doctor is not examined in this case, that wouid £ make no difference in view of the judgment of the Apex Court rendered in the matter of Shanmuqam @‘ Kulandaivelu —Vs. State of Tamilnadu, AIR 2003 SC 209, in which 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 _ s not examined does not affect the evidentiary value to be attached to the dying declaration”. Therefore, if the satisfaction of the Magistrate Xx was there regarding consciousness of the deceased and his 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. (14) Mr. Ashok Verma, learned counsel for the appellant, referring to the decision in the matter of Sher Singh and another —Vs- State of ea 11 g} Criminal Appeal N0. 379 of 2004 Puniab, (2008) 2 SCC (Cri) 783, argued that the Magistrate has nowhere deposed in his Court evidence that he was satisfied about the mental status of the deceased, therefore, it was fatal to the prosecution. We have carefully considered the argument advanced by Mr. Verma. In the said case, there were more than one dying declarations. The Apex Court observed that “Second dying declaration was more probable and looks natural. Although it does not contain r certificate of doctor that declarant was in a m state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to £ make the statement to him". While uphoiding the such dying declaration recorded by the Magistrate and after considering the entire evidence on record, the judgment and finding of the High Court was confirmed. (15) The question raised before us is “whether the Magistrate recording the dying declaration should state in clear words that the declarant was in a fit state of mind to give dying declaration, or, firstly, he should give a certificate like this,"€hen, he should begin to record the dying declaration and if they are lacking, the dying declaration will not be held to be truthful or correct ? Ori‘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 r 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. If the “r1 ‘w _, 12 Criminal Appgal No. 379 of 2004 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, mereiy on this groundrthe 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 of the Magistrate and it is not necessary that the Magistrate should speak in so many wordsvthat A the declarant was in a fit state of mind to record the dying declaration or he should give a certificate like this then begin to record the dying declaration. (16) In the present case, the Doctor has given certificate firstly on the top of the dying declaration, as stated above, and, then in the last portion of the dying declaration, he again made an endorsement that “patient remains conscious during giving her statement". Apart from the above, evidence of the Executive-‘LMagistrate would show that what questions he had asked to the deceased and what answers were given by the deceased to the said questions. The answers of the deceased to the questions asked by the Magistrate would show that she was properly responding to them and when she was responding to the questions asked by the Executive Magistrate, the Magistrate continued to record the declaration till end by putting subsequent questions, which were also properly replied by her in the manners she wanted to reply. This shows that when the Executive Magistrate was satisfied 13 Criminal Appeal No. 379 of 2004 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 beginningto end while recording the dying declaration. Even in the cross examination, not a singie question was asked to the Executive Magistrate that the deceased was not in a position to make the dying declaration. (1m :- ln view of all this, we do not find any infirmity in the evidence of PW—11 or in the dying declaration, on the ground that the deceased was n&ot in a fit mental condition to record the same, a (18) The aforesaid dying declaration of the deceased is corroborated by the evidence of PW-5, Aabha Pandey, elder sister of the deceased. She deposed vide Para-4 that when she knew about the burn injury received by the deceased and her admission in the Government Hospital, she went to the hospital in the night itself, where the deceased made oral dying declaration to her that firstly abusing and quarrel took place between them andithereafter, when she asked the appellant to take meals, the appellant denied and said that nurse- Rajeshwari has stopped him to take the meals. The deceased further told to this witness that thereafter when her husband tried to take more liquor, she threw the liquor, due to which, her husband poured kerosene oil on her and rubbed a match-stick and set her on tire. This declaration was made in the night itself. Nothing has been brought in the cross examination of this witness to impeach her credibility regarding the oral dying declaration made by the deceased. The written dying declaration is also corroborated by the contents of the 14 M inal Appeal N0. 379 of 2004 Dehatina/ishi (Ex.—P/4) recorded by the Investigating Officer at the instance of the deceased at 3.00 p.m. on 28.3.2001. Here also the deceased made declaration about the incident to the poiice officer and put her signature at the bottom of the report. (19) Apart fro he above evidence, we find that Dehatina/ishi and the dying declation recorded by the Magistrate both bear the signatures of the deased. If the deceased was not conscious or she wasmot able to give dying declaration, how she would be able to put her signatures n these documents. Therefore, the factum of' o conssiousnessof the deceased can also be gathered from the contents of these documents and the consistent declaration made by te deceased at 3 instances would show that the dying declaration was h true and correct and the Sessions Court has rightly believed on such declarations. (20) Mr. Asho Verma has further argued that PW—6, Srikant, admits k in the cross examination that when he asked to the deceased as to how it happened, the deceased said that she herself has poured ~ kerosene oil on her body just to frighten the appellant,