^l'^> ^y HIGH COURT OF CHHATTISGARTH, BILASPUR Criminal Appeal No.985 /2001 APPBLLANT Enesh Giri, s/o Gajendra Goswauu, aged about 20 years, r/o Sitamaiii Korba, Distt. Korba (C.G) RESPONDBNT Versus State of Chliattisgarh, through the Distiict Magistrate, Korba, Distt. Korba (C.G). Criminal Appeal No.1019 /2001 APPELLANT Manoj Sou ot'Ashok Kuiuar Gupta, aged about 19 years, r/o Sitam.ani Korba, Distt. Korba (C.G) RBSPONDENT Versus State of ChhaTrisgarh, ttirough the S.H.O., Korba, Distt. Korba(C.G). 'sita'tssgsgt^- APPELLANT Grimiaal Appeal No.1033 /2001 Chbotu @ Shushil Kumar, s/o Ramesbwar Gupta, aged about 18 years, r/o Sitamaai, Korba, Distt. Korba Versus RBSPONDENT State of Chliattisgarh, fhrough flie Disttict MagisU'ate, Korba (C.G). Appearaace: Shri R.P. Tripafbi wifti Shri Suiul Sahu, counsel for fhe appellant Enesh Giri. Slu-i Sharat Tiwari, Advocate, appears on behalf of Shri Ram Kuiuar Tiwari, couiisel for the appeUaat Manoj. Shri H.S. Patel, counsel for tbe Appellant CIihotu @ Sushit. Shri Raviiidi-a Agrawal, Panel La\Y}rer appears for the State Crlminal Appeal No.12/2002 APPELLANT KESPONDENTS The State of Chhattisgarh, Versus 1. Chliotu alias Sushil Kuniar, aged about 18 years, s/o Rameshwar Gupta, r/o Sitamaui, Korba (C.G). 2. Manoj, aged about 19 years, s/o Ashok Kumar Gupta, r/o Sitamai-ti, Koi-ba, (C.G). 3. Inesh Giri, aged about 20 years, s/o Qajendra Goswami, r/o Sitamani, Korba (C.G) Appearance: Shri Ravindi-a Agrawal, Panel Lawyer appears for the State Shn H.S. Patel, coi.uisel for the accused respondent No. 1 Chhotu @ Sushil Shri SharatTiwari, Advocate, appears on behalfofShri Ram KuiuarTiwari, counsel for fhe accused/respoadent no.2 Manoj. Shri R.P. Tripathi wifh Shri Sunil Sahu, counsel for fhe Accused/respondent No.3 Enesh Giii CKIMINAL APPEALS u/s 374 (21 OF THE CODE OF CRIMINAL PROCEDURE D.B.: HON'BLE SHRI L.C BHADOO. HON'BLE 8HRI SUNIL KUMAR SINHA, J, J ORAL JUDGBaBNT (05.11.2007) The tbilowitig judgment of tlie Court was passed by L.C.Bhadop^ J, (1) Crimmal Appeal No.985/2001 ffled by appeUaat Enesh Giri, Ci-iminal Appeal No. 1019/2001 filed by Manoj, Criminal Appeal No. 1033/2001 tiled by Chhotu @ Sushil Kumar and Crimnial AppealNo. 12/2002 filed by fbe State of Chhattisgarli are ai-isiag out of tlie same judgment dated 06.10.2001 passed by fhe Ist Addl. Sessions Judge, Korba, ia Sessions Trial No. 163/2001, Uieretbre, tbey are being disposed ot' by this common judgment. By fhese BSS ^'•••^S-^^SB;^-^. ;S^V'kSw''^'^ '^S-K-±SSl appeals, the accused appeUaats have questioned ttie legality aiid con-ecmess of £he said judgment of conviction and order of sentence vvhereby the leamed Addl. Sessions Judge, after holding the accused appeUaats guflty for conunission of fhe oflence punishable uiider sections 450, 376(2)(g) & 302 read wifh sectiori 34 ofI.P.C., sentenced each offbe accused appeUant to undergo 7 years R.I., to pay a fine of Rs.500/-; 10 years R.I. , to pay a fme of Rs.500/- & imprisorunent for life and to pay a fiae ofRs.500/-, ia default of paynient of fine amounts to fui-Uier undergo two months S.I. 011 each count. It was directed fhat all the substantive senteaces shaU ii.in concurrenUy. On the ofher haad, being aggrieved by the quaatuin of sentences awarded by the ta-ial Court the State has also preterred appeal seekmg eiLhaaceiuent of the sentence of fhe accused appeUaats. (2) The case of the prosecution ia brief is that on 23.1.2001 at about 2.15 p.m.., fhe accused persons had eve-teased Miss Gayatri, aged g.bout 14 years wifh a bad iateution. Wben Champa Bai was sleepiag ia ber house, accused Chliota.i @ Sushil Kumar came to her house aud attempted to outrage fbe modesty of Gayatri but Champa Bai woke up and she informed Kadam Singh Thakur, who in tum scolded accused Chhotu @ Suslul; At about 4.30 p.m., on account of some paiN ui her stomach, Chanipa Bai alongwifh her two small cliUdren went to answer fhe caU of nature. She left Gayatri fbere because she was sleeping at fliat time. When she was at tlie river, Hamiddun Begum came aad informed that Gavatri is bumt at fhe residence, fherefore, she retumed to her house. By fhat tune, Gayatri was ah-eady taken to hundred bedded hospital. At aboiit 6 p.m. she reached hospital and she saw Gayatri m a bumt condition. On enquiry by her, Gayatri made oral dying declaration fhat Chhotu @ Suslul alongwifh his two friends tied her with cot aad afier pouring petrol on her body, set her on fire. At about 2 a.m., in the night, Gayatri breatlied her last on account of bum injuries. The ialbrmation was sent by fhe Doctor i-egardmg death of Gayatri Bai on fhe basis ofwhicli, merg iatimation Ex.P.9 was recorded by the Head Constable Hetram, Chowki Rampur, P.S. City Kotwali. Champa Bai also gave iptimation to P.W.12 Akhil Paadey, Head Coustable, Outpost f:^- •t'^^W'-.t' "-"•^iSKSSS'^'' / Raiupur, based on that be had recorded Ex. P.13 aud Uie same was sent to fhe PoUce Station Kotwali, on the basis ofwhich fhe F.I.R. Ex.P. 16, was registered for cominissioa offhe ofience u/s 302 read witti section 34 & 450 ofthe I.P.C. The dyiug declaratiou of Gayatri _< was recorded by the Executive Magistrate A.K. Agrawal (P.W.6) in hundred bedded hospital. The mquest Ex. P.4 was preparcd on the body of Gayatii. One underwear of accused Eiiesh vvas seized under Ex. P.1. Bei-muda of accused Cbhotu @ Susbil was seized under Ex. P.2. One bumt wooden cot, fhe reinains ofbumt clothes <- \ and plastic Nawar aiid one piece 01 rope wasAseized under Ex. P.3. On fhe body of Gayatri, the post luortein was conducted by Dr.Smt. N. D. Ram (P.W.9) and Dr.A.V. Purena (P.W.19) who opmed that tbe cause of death was shock due to 100% burus it was homicidal in nature. They prepared postmorteia report Ex. P.8. Dr.SmtN.D.Ram also examiiied the body of Gayatri regarding coiumission of rape and she prepared luedical examiaation report Ex.P.7. When Gayatri was adinitted ui 100 bedded' hospital, the Doctor examiaed her, prepai'ed niedical exanunation report Ex. P.19 aad it was shown fhat she was conscious at fhat tuae. (3) After coiupletion of iuvestigation, fhe chargesheet was filed agatast fhe accused appellants iu the Court of C.J.M. Koi-ba, who ia tum. conuaitted the case to the Court of Sessions, Bilaspur, from whei-e fhe leamed Additional Sessions Judge, Korba i-eci the case on ti'ansfer. (4) The prosecution in order to estabUsh the charges agauist fhe accused persons examined as raaay as 20 witaesses. The statement of tlie accused persons were recorded u/s 313 Cr.P.C., ia which each of fhe accused denied fhe niaterial appearing against him and stated fbat fhey are innocent and have been falsely tmplicated ia fhis case. (5) The leamed trial Court at'ter bearing counsel for fhe i-espective parties convicted and sentenced each offhe accused as aforeraentioned. (6) At Tlie veiy outset, leaiTied counsel for Uie acciised appellaiits have not disputed the hoinicidal deattl of Gayatri. More ^: •T ^|?|^^fe^£?^^ ^ over, P.W.l Rafeeq lias stated that lus graiid daughter Saiino informed fhat Gayatri Aras bumt, therefore, he went to that side and saw that Gayatn was lyuig bumt and his sons Nayim and Bhalla were extuiguishing fhe fire, thereafter his elder son Sa1im reached there, accused Enesh was also present fbere aad fhey took Gayitri to Hospital. Similar is the evidence ofP.W.2 Nayiin Khsm who has stated he saw Gayatri while she was biiming and she was ciyiag save, save and fhere after she feU down. He extiilguished tbe tire by covenng her body wifh a blaaket and fhereafter poured water also. P.W.3 Aslam @ BaUa has also corroborated the above evideuce about the biimuig of Gayatri. The above ocular evidence is corroborated by Dr.fSint.) N.D. Ram. as also Dr.A.D.Purena (P.W.19) who conducted fhe postmorteiu on the body of Gayatri and they have stated that deafh of Gayatri was . on account of bum iajuries and fbe death was honucidal in natiu-e. The post mortem report is Ex.P.8. Tlierefore, from the above ocular and medical evidence it is established fhat death of Gayatri was hoinicidal in nature. (7) As fai' as ftie coinpUcity of accused persons in crixue ui question is concemed, in fhis case, there is no ocular or direct evidence regarding fh.e tavolveinent of fhe accused persons in fhe cilme. The whole case rests on the circuinstantial evidence and as per the settled Jaw, ia order to rest conviction ofaii acciised based on fhe circuiustaiitial evidence, fhe prosecution. is requu'ed to establish ttie followuig points ia view of the decisioil of fhe Apex Coui-t rendered ui fhe matter Dhem.anjofi Chattertee -Vs- State of W.B. reported in {1994) 2 SCC 222, which is quoted below; '"in a case based on circuiiistautial evidence, the circum.staaces froia which fhe conclusion of guilt is to be drawn bave not ouly to be fuUy estabhshed but also that all fhe circumstances so estabUshed should be of a conclusive nature aad consisteut onty with fhe hypothesis of fbe guilt of the accused. Those circuinstaaces should not be capable of beiag explaiued by any other hypoth.esis except the guilt of the accused and the chain of the evidence inust be so coiaplete as not to leave any reasonable ground for n> • • tfie belief consistent wiffa the iauocence of fhe accused. It aeeds no remiader that legaUy establislied circiunstances aad not inerely iadignation of the court caii fonn. the basis ofconviction aad fhe inore serious the ci-ixne, fhe greater should be fbe care ta-ken to sci-utiaize fhe evidence lest suspicion takes the place ofuroof.' (8) Jn tlie preserit case, fbe prosecutiori has tried to establisli fhe ci'mie agaiast the accused persons based on oral dyiiig declaration made by Gayatri before P.W.2 Nayim Kliaa, P.W.3 Aslam @ BaUa, P.W.5 Moluamad Safi @ Mundal, P.W.16 Itwari Das, fatlier of the deceased, P.W.18 CIiainpa Bai, inofher deceased. (9) .Havmg. beard leamed counsel for the parties, we have perused Uie niaterial available on record as also the judgment of the trial Court. (10) It is settled ]aw that ia order to rest conviction based on fhe oral dying declaration, it is the duty of the coiirt to ensure that tlie dyuig declai-ation was voluntary, true and pronipt and where fhe Coiirt tlnds tliat the oral dying declaration is shaky and no explicit reliance csai be placed on the same, fhen must see fhat flie dyiag declaj-ation is con'oborated ia material particulars by ofhg£, evidence. (11) ln ttie matter of Thuruktin.ni Pompidh dnd another -vs- State ofMhfsore, AER 1965 S.C. 939 the Apex Court held tliat a dying declaration is relevaut aud inateiial evidence in the pi-osecution of the assailarits and a trufbful and reliable dying declaration mav foi-m flie sole basis of conviction, even Uiough it is not coiToborated. But fhe Court must be satisfied fhat the declaratioa is truttiful. The reliability of the declai'ation should be subjected to a close scrutiny, considering that it was made in £he absence of Uie accused, who Iiad no opportunity to test its veracity bv cross examuiation. Ifthe Court finds fhat the declaratioii is uot whoUv reliable and a material aild uitegral portion of fhe 1 deceased's vei-sioil of tlie eiitu-e occun-ence is uutrue, fbe Court ^'tete-Sfs^g^i^ • K;;!-;^-^.•^i?ftS^-"i^g'' may, in afl the circumstances of the ease, consjder it unsafe to convict the accused on the basis of the declaration alone withoiit further con-oboration. (12) Iii the matter of Stntc oj" Punjab -vs- Preween Ku.metr, (2005) 9 SCC 769 Qie Apex Court held fliat wliere dyiag declarations beiag incousistent with each otfaer as versions disclosed iii tlie two were qiute difierent aud role of tlie accused was differently described, Uiose were also not TeUable. (13) In fhe light of tfae above principles, if we scrutmize the inaterial available on the record, it is admitted position that ia fhe first mstance at tlie request of ttie 1.0., P.W.8 A,K. Agrawal, the Executive Magistrate cunl Tahsadar, Korba, recoided ftie dyiag declaratioii Ex.P.6 iu fhe hiiiidred bedded hospital, Korba at 6.45 p.jn., in which Gayatri uiade a dyiag declaration tb.at sbe was sleeping in her bouse, she was buniiiig therefoi-e, she woke iip she ran out.of the Iiouse aad raised cries, at fhat time nobody was at her house, her luofher had gone to River. She does not know ttiat liow she came in contact with fire. There was no dispute in her house wifh her parents nor fhere was aay dispute in the viciaity. She has said that soxue one miglit have set her on lu-c. She does not know who set her on fire. Her parents or aay ofher famfly nienibers faave not set her on fire. (14) Tlie Executive Magistrate A.K. Agrawal (P.W.8) has stated that on 21.3.2001 at about 6.45 p.m., be recorded the dyiag declai-ation of Gayatri. She stated that she was sleepmg in flie house \vhen she was buiTtiag, she woke up arid came out ot the house aiid raised cries. The . Magistrate has reproduced the oral dying declaration (Ex. P.6) given by tlie deceased and he bas categorically stated fhat when he recorded fhe dyirig declai-ation of the Gayatri, he enquired IS-om her as to who set ber on fire, but sbe did not disclose the name of aay one even on asking trom ber many times. Therefore, as per the evidence of Executive Magistrate P.W.8 A.K. Agrawal aiid the dytug declaration Ex.P.6 recorded by hnn, it clearly shows tliat Gayatii was not able to teU as to wbo set Iier on .fu-e. Now the question remairis about the oral dyiag dec&u~a,tioii made before 5 witoesses. P.W.2 Nayim Khan has stated that on the fateful day he saw Gayatii ia bumiiig coiidition. She was ciying aud after wakiag 2-4 steps she fell down he covered ber body witli bag, thereatter wifh a blaaket and also poured water on Iier body. On askiag froiu her, she was tafcing the name of CIl.hotu in the ineantiiae, 50-100 persons gathered there aiid frora ftiere tbey took her to Dharain Hospital, Korba. As no body was there, fhey took her to Potice Station wliere Daroga recorded her statenient and t.tiereafter, she was taken to hundred bedded hospitaJ. On enquiry by the Doctor, she disclosed the name of Chhotii &nd after about half an. hour tlie Tahsildar came and i-ecorded her statement. She disclosed the naiue of CIihotu and two otliers before the Tahsildar and said that she does not know the name of other two persons. In the cross examination, he B? stated fhat when he alongwifh liis lafher enquired fi-om Gayatri sbe disclosed fhe name of Chliotu and she did not disclose the uame of aiiybody else, fhereafter fhey took her to the hospital. In para 9 he has stated that it is correct that at flie place of uicident, she did aot disclose fhat Chiiotu @ Suslul Gupta aad & ofhers set her on lire aftex- tying on tiie cot aud pouriitg pett-ol on ber body. How tttis fact has been written ia her poUce case diaiy stateuient Ex. D-1, he does not know, His fafber Rafeeq has been examiaed as P.W. 1 wlio iu para 2 ofhis evidence bas categorically stated fhat he did not enquire anyfhiiig about biiming ti~oiu Gayatri. Of course, later on be came to know fhat Chliotu @ Sushil and other persons Iiave set her on fire. He heard Ulce fhat. He does not kiiow any Uiing ruore. Therefore, tlie evidence of P.W. 1 Rat'eeq and his soii P.W.2 Nayim Kliaa is contradictoiy to each other for the i-eason fhat P.W.2 Nayim Khan has stated fliat his fafher also iieached to tlie spot, in his pi-esence only he enquired from Gayatri, she took the naiae of Chhotu aad fhis witaess bas not stated about two ofher persons who came alou.gwifh ChJiotu to set her on fire. On fhe contrary, Rafeeq has stated fhat noUiiiig was enquu-ed from Gayatri as to how she received tl.ie buin iiijui-ies. (15) Anoflier vvitaess is P.W.3 Aslam @ Ballu. He bas also stated that heaiing fhe cries, he went near the house of Gayatii and saw tliat she was bui-ning. On enquir;' sbe disclosed ftie narne of' > Sushil and stated that two other persoiis have also set her on fire. Iii the cross examinatiou, he has stated tbat he did not see aaybody setting Gayatn on fire. He has stated that his police case diary statement was not recorded, m the last line of para 5 he has stated tbat whatever he has stated has stated merely on the basis of his .hearing fi'oia others. Thercfore his evidence is based on hearsay. His police case diaiy statemeiit was uot recorded, Therefoi-e, tbis witaess is aot of any help to fhe prosecution to establisb tliat fhe deceased inade oral dyiag declaration before hitn regarduig settuig Gayatri on fire by the accused persons. P.W.5 Mohd. Safi @ Mundul ia para 5 ofhis stateiuent has stated that Chliotu, brofher of Aiul set her on lire and she farfher stated fhat 3 per sons carne together tout in para 14 of bis cross examniatioii, he has contradicted the police case diary stateinent Ex.D-2. A pei~usal offtie police case diary stateinent Ex.D-2 sbows that tliis fact fhat Gayatri inade oral dyiug declaration regarding setting her on fire by Chhotu. 3 persons came does not find place ia thj.s poUee case diaiy stateinent, fherefore, fhis is an improveraent before the Court aad the same caanot be relied on. Regarding tbe fact fhat fbe accused persons said that Poddar is fbeir person and ftiey have bribed fhe police, tfaey are not going to take aiiy action against ^iim but this tact also does not find place ia police case diary stateinent Ex. D-2, as such no reliaace can be placed on. tlie evidence oftbiswitaess. (16) P.W.16 Itwari Das, tafher of fhe Gayatri Devi has stated m his examination in chief fhat ia the hospital ber daughter disclosed that Chliotu @ Sushil, Maiioj & Enesb came and set her on fire biit iti the case dianr stateiaeut Ex. D-7 such stateiaent is not tliere. Moi1e over, he has also stated fbat when be came fhere, the Tahsildai' was recordiag fbe statement of his daughter. A perusal of the police case diary statement Ex. D-7 reveals ttiat he has stated fbat when he came his wife Cbampa Bai disclosed fhat fhese 3 pei-sbns have set Gayatri on fiie, fherefore, it is not established fhat Gayatn. ma.de oral dymg declaration regarding involvement of the appeUants in crime in question before this witness. (17) Novv we are left with P.W.18 Champa Bai, tlie mofher deceased before vvlioin Gayatd said to liave laade oral dying » v\ ;'^' 10 declaratioii. In examination in chief, she has stated tliat she enquired from Gayatri fhen she disclosed fbat Clihotu, Eiiesh, Maiioj after committiiig rape on her, tied her, poured petrol on her body aad set her on tire. TIus witness has also stated tliat her daughter's statement was recorded by the Talisildar in the presence of Doctor and to theia also, she disclosed that fact but as has been mentioned earUei-, P.W.8 A.K. Agrawal has categoricaUy stated fhat Gayatri gave dying declai^tion Ex.6 aiid iii that, Gayatri stated tliat she does uot kiiow who set lier on flre, therefore, recordiiig of dying declaration by Talisildar is adniitted by flie prosecution witaesses aad fhe Tahsildai- has categorically recorded tlie dyiiig declaration Ex. P.6 given by Gayati-i ui wbisy Gayatri has categoncally stated fliat she does not know who se ber on itire. More over P.W. 18 Champa Bai ui ber police case diary statemeat Ex. D-8 has stated fhat Gayatri disclosed fliat Chbotu and two ofhers set ber on tire, sbe has not categoricaUy Taken the names of accused Enesh and Manoj and iri Ex. D-8 she has not stated tliat Gavatt-i told ber fhat fbe accused persons committed i-ape oa her before settuig her ou fire. Therefore, there is an tmproveruent ofnaines ofMauoj and Enesh ia Court evidence aiid fhe mofher and fatlier botli have categorically admitted tliat tlie oral dying declaration was recorded by tlie Tahsildar, m which Gayatri has not taken tlie name of any person nor regai-duig fhe coiuiuissioii of tlie rape by auy one 011 Gayatfi, lias b| mentioned m flie dymg declaration, Theretbre, Uiere is a material conti-adiction tn ftie evidence of prosecution witaesses beibre whom Gavatri stated to liave made oral dyiiig declaration and tliat too all these statements ai-e contradictory to the written dying declaratioB made by Gayatri before fh.e Tahsildar. Merely on Uie basis of evidence of' P.W.18 Champa Bai before whom ttie oral dyrag declaration said -to have been made does not mspu-e confidence of the court because ia the first mstance the oi-al dying declai-ation is iuconsistent with the dying declai-ation Ex. P.6 made before tlie Executive Magistrate. Even the evidence ot P.W.l, P.W.2 & P.W.18 witli regard to oral dyrng declaration in respect of the accused persons is coiitradictoiy aild inconsistent. Even ottier wise, tbere are ofher ialierent tirfinnities in the mvestigation for fhe reason Uiat P.W.12 Akhil Pandey bas stated m pai'a 3 of his (.]-;• I,.] 11 evidence fhat on 24.1.2001 on the basis of fhe stateiuent of tae ruother of deceased, he registered the case whereas there is no such stateinent of m.other Chaiapa Bai is available 011 record. In para 4 again he has stated that it is correct fhat ttie statement of Champa Bai, inofher of deceased recorded by hrca was fhe basis of flie first inform.ation report but that stateiuent is not iacluded ta the file. When that was the basis of recordiug of ttie F.I.R. aiid fhat has not been placed on record by fhe prosecution tliat shows the material docuuients have been suppressed. Theretbre, ui view of the foiiegouig discussion, fhere is uiconsistency between tiie evidence of the prosecutioa witaesses regardiag the names of accused taken by Gayatri ia her oral dying declaration. Moreover, fhe evidence of Chaim.pa Bai P.W.18 regarding fhe oral dyiiig declarafLon raade by Gayatri before her is not corroborated by any ofh.er uidependent circuiastaiitial evidence on accouiit of infinuities iri tb.e evidence of prosecution witaesses. The prosecution has not been able to estabhsh fhe involveinent ot' the accused appellaiits ia the cittne in question beyond reasonable doubt. As such Uie findiiig of fhe tfial court convictuig fhe accused persons for coininission offhe offence u/s 450, 376(2) (g) & 302 read wifh section 34 of I.P.C. caiuiot be sustained. The conviction aiid sentence imposed agamst fhe accused appeUants ai-e set aside. (18) In ftie result, fhe appeals filed by accused appeUant Enesb. Gu-i, Chotii @ Shshit aad Mauoj succeeds. They are allowed and flie accused persons are acquitted of all ttie chai-ges. The accused pei-sons afe stated to be in detention suice 25.1.2001, therefore, they be set on Uberty forfbwifh, ifnot i-equired in auy oUler case. (19) Consequenfly, the State appeal bemg devoid of merit is disniissed. ~ -- ----—-—— Sd/- L.C.BHADOO Judge Sd/- s"nilKumar siaha Judge ,'Rao/