-1; 9./vai1 1 (J)‘ R /942 00 . 1/ 0 & ‘ V the 1shes base to be for represente seven Id ys by unles ega he legal practmoner oes not appea ' e h t pnsoner states that he does not w1s 1 court may proceed at once w1th the case and wxll not gal practmoner who should appe tM o; Appel to heppeIate court - emo a tgAl/ d ll s T d r ‘ ) , t be . e ar V HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Criminal Aggeal No. 935198 Narayan Rao Vs. State of Madhya Pradesh JUDGEMENT FOR CONSIDERATION / Sd/- ‘ DI'HRENDRA mSI'mA {"X‘Q-J' Judge ‘ HON’BLE 5HRI L.c.aHAnoo J. I] (J; V I ,, Sd/- ‘ ‘y\ ' ¥ L.c BHADoo ‘ \ OST FOR JUDGMENT ON 2 MARCH 2006 f—d—-—"b— Sdl— ‘ DHIRENDRA MISHRA s. - Judge 1 }g HIGH COURT OF CHHATTISGARH AT BILASPUR DB : Hon. Shri’L.C. Bhadoo & Hon. Shri Dhirendra Mishra,JJ Criminal Appeal No. 935 of 1998 Narayan Rao Appellant Versus Respondent State of Madhya Pradesh. Shri R.K.Sharma, Advocate for the appellant. Shri U.N.S.Deo, Additional Public Prosecutor with Shri Akhil Mishra, P.L. on behalf of the State. J U D G M E N T (09.03.2006) Per Dhirendra Mishra,J The appellant has preferred this appeal under section 374 (2) of the Code of Criminal Procedure questioning the legality and correctness of the judgment passed by Additional Sessions Judge, Baloda Bazar in Session Trial No. 89/95 by which/learned Additional Session Judge after holding the accused/appellant guilty under section 302 of the IPC for causing the homicidal death of his wife namely Preeti has sentenced him to undergo imprisonment for life. The case of the prosecution in brief is that Preeti was the wife of-the accused/appellant. On 10.12.1994 when Preeti was cleaning the house the appellant abused and beat her and after pouring kerosene on her set her on fire. Thereafter, the appellant took her to Primary Health Centre Sarsiwan where Dr. B. Chaurasiya PW-15 sent an information P-13 to the Station House Officer of Police Station Sarsiwan to the effect that Preeti, the wife of the appellant was brought to CD. Sarsiwan as a case of burn. Station House Officer vide memo of P—12 addressed to the Assistant Surgeon, Primary Health Centre requested the doctor to examine Preeti and submit his report. Thereafter, the doctor examined Preeti and found that patient was not fully conscious and smeil of kerosene was emanating from her body. Doctor further found that Preeti had sustained 75 per cent third degree burn injuries which was fatal to iife. Station House Office of Police Station Sarsiwan was advised'to shift the patient immediately to District Hospital for proper treatment. Station House Officer of Police Station Sarsiwan vide memo P-17 dated 10.12.1994 inquired whether Preeti was in a position to give her statement or not on which Dr. Chaurasiya vide memo of Ex P-14 informed that she was not able to give statement as she was not fully conscious. Thereafter, Assistant Surgeon, Primary Health Centre, Sarsiwan vide memo of Ex P-16 referred Preeti to D.K. Hospital, Raipur. ln-charge of Police out post, D.K. Hospital Rauipur vide memo dated 12.12.1994 (P-21) addressed to Chief Medical Officer, D.K. Hospital, Raipur inquired whether the deceased was in a position to give statement or not. G.M. Ansari, the Naib Tehsildar and Executive Magistrate (PW-21) recorded the dying declaration of Preeti on 12.12.1994 vide Ex. P-23. On the information given by Krishna Rao, ward boy of D.K. Hospital that the patient Preeti, wife of Narayan Rao who was admitted in the hospital after receiving 90 per cent bum on 10.12.1994 had died at 1.00 am. on 15.12.1994. merg intimation of Ex P-4 was registered. Thereafter, Dehati Nalsi dated 15.12.1994 (P-20) was also registered at Police out post, D.K. Hospital, Raipur mentioning therein that on 12.1 2.1994 Bharat Rao son of Bodhan Rao informed in the police out post that on 12.12.1994 his niece Preeti was set on fire by Narayan Rao and he admitted her for treatment for her burn injuries and she wished to give her statement. On the basis of Dehati Nalsi offence under section 302 of the IPC was registered against the accused/appellant. Her dying declaration was recorded by the Executive Magistrate Shri G.M. Ansari in which she stated that Narayan Rao had set her on fire after pouring kerosene on her body. On inquiry her father aleo stated that Narayan Rao had set Preeti on flre. Inquest report over the dead body was performed vide Ex P-7. Body was sent for post mortem examination to the Assistant Surgeon Raipur vide P-22 Dr D C Jain ( not examained) conducted the post mortem examlnatron on the body of the deceased and submitted hrs report P 22 Post mortem report has been proved by prosecution Witness Dr. Arvrnd Nerulwar, PW-ZO, the Demonstrator at D.K. Hospitai, Raipur as the doctor who performed autopsy has not been examined. in the post mortem report it is mentioned that the deceased had sustained 80 per cent third degree burn injuries and infection was aiso found. Crime No. 124/1 994 was registered in the Police Station Sarsiwan after receipt of the diary from the poiice station City Kotwali, Raipur on 17.12.1994. spot map P—17 was got prepared by Halka Patwari. The report from the Forensic Science Laboratory with respect to chemical analysis of seized articles is Ex P-24. According to the FSL report smell of kerosene was emanating from wearing apparels of the deceased, bed sheet and hair lock of the deceased. After completion of the investigation the charge sheet was tiled in the Court of Additional Chief Judicial Magistrate, Baloda Bazar who in turn committed the case to the Court of Sessions Judge Raipur from where the learned Additional Sessions Judge, Baloda Bazar received the case on transfer for trial. Learned Additional Session Judge, framed charge under section 302 of the IPC against the accused/appellant who abjurecl his guilt. Prosecution in order to establish charge against the accused has examined 21 witnesses in all. Thereafter statement of the accused was also recorded under section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him in the prosecution case and pleaded that he is innocent and has been falsely implicated in the case. The accused/appellant has further stated in his t?’ 1 69% statement that he tried to save his wife and in the process of saving her he had also sustained burn injuries. There is no eyewitness to the incident and the case of the prosecution rests on the dying declaration of the deceased P-23 recorded on 12.12.1994, The principle on which dying declaration is admitted in evidence is indicated in the legal maxim nemo moriturus praesumitur — a man will not meet his Maker with a lie in his mouth. The constitutional Bench of the Supreme Court in the matter of Laxman vs. State of Maharashtra reported in (2002) 6 SCC 710 has held as under: “The situation in which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. it is for this reason that the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and i correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in prevail, nor can it be said that since there is no certification of the doctor as tothe fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral in writing and any adequate method of communication where. by words or by signs or otherwise will suffice provided the indication is positive and definite. 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 evidentiai value or weight has to be attached to such statement necessarily depends on the facts and cicumstances of each particular case. What essentially required is that the person ho records a dying declaration must be satisfie that the decsed was in a tit sate mind. Where it is proved by the testimony of the agistrate that the declarant was tit t ‘ make the statement even without examination by the doctor the dclaration n be acted uon provided the crt ultimatel ca p ou y holds the ame to be voluntary and truthful. A certification by te doctor is essentially a rule of cautio and therefore the oluntary an truthful natur o the declation cn be established otherwise. It is indeed a hypertechnical view that the certication of he doctor was to the effect that the ‘ patien s coscious and there was no certification that the patient as in a tit state of d especially when t Mirate categorically stated in his evidence indicatin the questions he had pu to the patien nd from te answers elicited as satisfie tat the patient was in a fit state of min whereafter he had recorded the dying declaration”. In the matter o P.V.Radhakrishna Vs. State of Karnaaka ported in (2003) 6 SCC 443 Hon’ble the Suprme Court has held that though a dying eclaration is ntitled to great weight, it is orthwhile to note at th as f t re e d e w th e accused h no power of cross examination. Such a power is essential or elictng the truth as an oligation of oath could be. This is the reason the court also insists that the 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 the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a tit state of mind after a clear opportunity to observe and identify the assailant, Once the court is satisfied that the declaration is true and voluntary, undoubtedly, it can base its conviction without any further corroboration. lt 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. J t l r is w d ea t M o e s h n v d e f ra a if t t i n w min he agst g t t a h w d h d f ii b in the light of above principle acceptability of the dying declaration in the instant case has to be considered. Learned counsel for the appellant submits that after Preeti sustained burn injuries on 10.12.1994, the appellant had tried to extinguish the fire and in that process he also sustained burn injuries over his hand, chest and arm. He had immediately taken Preeti to Primary Health Centre, Sarsiwan for treatment where Dr. Chaurasiya PW-15 had treated her as also the appellant. Preeti had sustained 90 per cent burn injuries and she was not fully conscious andvas such she was not in a position to give dying declaration. The doctor referred Preeti to D.K. Hospital, Raipur for further treatment. Thereafter, the appellant took her to D.K. Hospital, Raipur and admitted her there. The doctor did not find any injury over the person of the deceased except burn injuries. It is further contended that there is no medical evidence available on record to show that thereafter the deceased regained consciousness and she was fully conscious to give statement on 12.12.1994, the date on which alleged dying declaration was recorded by GM. Ansari PW-21. Dying declaration is a suspicious document as there is no evidence available on record to demonstrate as to who authorized the officer to record the dying declaration. Learned counsel for the appellant further argues that before recording the dying declaration the Magistrate did not inquire about the condition of the injured as to whether she was in a fit condition to depose or whether she was able to understand the question and answer the same properly. It is further contended that father of the deceased PW-11 and brother Pradeep Rao PW-12 have not supported the case of the prosecution. They did not lodge any report after the incident. The document in question is a suspicious one on the ground that though the deceased stated on 12.12.1994 that she was burnt by the appellant, no offence was registered by the Police till 15.12.1994 the date on which she died. Preeti and the present appellant were married 1o; 9 about 8 to 10 years earlier to the incident and they had three children and a ten year otd daughter namely Sanka and were Iiving peacefully. 11.; On the other hand learned counsel for the respondent/State supports the impugned judgment of the trial Court and submits that the conviction can be based solely on dying declaration and the dying declaration recorded by the magistrate can be acted upon without any corroboration and without any certificate from the doctor that at the time of recording of statement the deceased was in a fit condition to depose. 12. We have heard teamed counsel for the parties and perused the material available on record. 13. The conviction is based on dying declaration of EXP-23 recorded by PW-21 GM. Ansari Naib Tehsildar and the Executive Magistrate. The only question to be considered before this Court is whether the Court below was justified in arriving at the conclusion on the basis of dying declaration P-23 that the appellant after pouring kerosene on Preeti set her on fire? GM. Ansari PW-21 has stated in his statement that he s§ was Naib Tehsildar and Executive Magistrate in Raipur at the relevant time. He had gone to D.K. Hospital, Raipur to record dying declaration of Preeti as per the order of A.D.M. Police constable had taken him to Preeti for recording of her statement. Doctor on duty permitted him to record her statement. He introduced himself and stated that he had come to record her statement. Doctor on duty gave a certificate that Preeti was able to depose. Thereafter, he recorded her statement. He went on questioning and recorded her replies in Ex. P-23 Which bears rhis signature. He has further stated that in reply to his questions Preeti has stated that accused poured kerosene on her body while she was alive and set her on me. Preeti further stated that she was voluntarily deposing. ln the cross examination he has further stated that he did not remember at what time he received the memo of ADM.,He stated ' that he had ent the order along with‘the statement of Preeti to the £ s concerned Police station. He has further stated that he did not remember 'a‘s to where he had gone to record the statement of Preeti. After putting four questions he had put his signature at the bottom. However, as he had forgotten to ask the last question, therefore, he asked the last question and as Preeti was not able to sign he'made entries to this effect and certified the same with his signatures. From the perusal of document of P-23 it is found that at the top of this document there is endorsement that at present the patient can give statement and bears signature with date. However, it is not clear as to who is the person who had signed it and what is his designation. Ex. P- 23 is written on both sides. However, front page of the document does not bear the signature. ln the back side of the document after putting his signature in the middle the Magistrate has asked the further question whether the factum of setting her on tire by her husband has been stated by her under duress? She replied in negative. Thereafter, he had again put his signature and at the end of the back page in the left comer he made a tip " fingers of both the hands are burnt therefore her signature or thumb impression could not be taken”. After perusing the evidence and other material available on record, we are of the considered opinion that the dying declaration in the instant case cannot be made a basis to hold the appellant guilty for the offence in the absence of any corroboration for the following reasons:- as pointed out in the foregoing paragraphs the incident occurred on 10.12.94 at 7-8.00 am. The police of police station Sarsewan was promptly} informed by the doctor about the incident and Preeti was medically examined and it was found that she was not fully conscious as she had sustained third degree burn injury which was fatal to life. ln reply to query of the Station House Otticer the doctor stated a) that Preeti Was not ’able to give statement as she was not fully conscious. in the cross examination Dr.Chourasiya had stated that he did not notice any injury over the body of the deceased except burn injuries. Third degree burn injuries are excessively painful which may affect the mental balance of the injured and the possibility of death within 24 to 48 hours was there. He has further stated that because of excessive burn capacity to make a statement is affected. The patient becomes unconscious and thereafter enters into coma which results in death. Except the statement of Dr. Chourasiya P.W.-15 there is no evidence of any other doctor on record to show that deceased regained consciousness thereafter as the prosecution has not tiled and proved bed head ticket of Preeti and has not examined the doctor who treated her during five days of her admission in D.K.Hospital, Raipur. It is true that certificate of the doctor regarding fitness of the declarant to make declaration is not sine qua non to accept the dying declaration in the evidence and the same is rule of caution and prudence. But in the instant case since there is certificate of the doctor as described above, prosecution ought to have examined the doctor on duty who certified the deceased. Moreover the Magistrate before recording the statement of the ' deceased did not put any preliminary question to the patient with a View to satisfy himself that the patient was in a fit condition of mind to understand the question and reply the same. b) W t i t .5 J 10 The statement was recorded on 12.12.94 at about 2.00 p.m. However 'there is no document available on record to show that when the request was made by the ponce to P.w.-21 G.M.Ansari Nayab Tahsildar for recording the statement of the patient and who authorized him to do so. in the cross examination this witness has stated that he recorded the statement as per the orders of ADM ' however he did not recollect as to at what time he received the order and retumed the copy of the said order to the concerned police station. However there is no document to show that the Magistrate was in fact authorized by the ADM to record the dying declaration of Preeti.’ P.W.-19 Sheetala Prasad Singh the Outpost incharge. D.K.Hospital, Raipur who recorded the Dehati Nalishi P-20 has no where stated that he requested G.M.Ansari or the ADM concerned to depute a person for recording the statement of Preeti‘ Author of P-23 G.M.Ans'ari has stated that he along with a police constable went to D.K.Hospital, Raipur to record the statement. After recording the statement he sent the statement so recorded along with the order of ADM to the police station. However no offence was registered by the concerned police station on the basis of dying declaration on 12.12.94 and crime was registeredoniy after Preeti died on 15.12.94 under Section 302 of the IPC vide Ex.P.20. ' This creates a serious doubt regarding the document of EXP-23. The endorsement at the top of P-23 mentions that “at present patient can give statement“ with x 11 signature and date. However neither the name nor the designation of the person making the above endorsement is present. The Executive Magistrate also did not recollect the name of the doctor on duty who gave the certificate to him. The front page of the dying declaration does not bear the signature of the Magistrate. The manner in which the statement has been recorded and even after completion the additional question was put to her creates a suspicion in our mind. In this regard we are fortifled with the judgment of the Supreme Court in the matter of Chacko Vs. State of Kerala reported in (2003) 1 SCC 112 wherein it is held that the dying declaration appearing to be so arranged so as to accommodate the space above the thumb impression of the deceased, genuineness of the same becomes doubtful and it cannot be relied upon for convicting the accused-appellant. In this case also a tip was inserted in the vacant space of the dying declaration which makes the same doubtf. P.W.-11 Ramchandra Rao Bhonsle, the father of the deceased has stated in paragraph No.8 of his statement that the statement of his daughter was ‘ recorded in the presence of doctor and police after ousting him. However, the statement was recorded by the police in the presence of his son and brother in law of the accused. In these circumstances we are of the considered opinion that it would not be safe to convict the appellant only on the basis of dying declaration and r t j r ul we intend to look for corroboration from other evidence. 16. The prosecution has examined P.W.-1 Draupadi Bai, P.W.-2 Bhagbali & P.W.-3 Shiv Prasad who are the neighbours of the appellant. AH these three witnesses have not supported the case of the prosecution and they have been declared hostile. 17. P.W.-3 is the immediate neighbour of the appellant. As per the spot map of P-17 the house of this witness is adjacent to the house of the deceased. From the perusal of the spot map it appears that in fact the incident took place in the kitchen which is described as ‘A’ in the map where burnt articles of Preeti were found. Preeti was found lying at the spot marked as 'B‘ in the map in burnt condition and distance from A to B is 25 ft. where as accused is shown to be standing at the spot marked as ‘C' and this witness saw the deceased from the spot marked as ‘D'. The distance between ‘B' and ‘C’ is 6 ft. and ‘C’ to ‘D’ is 4 ft. He has further stated that Narayan informed him that his wife has committed self immolation whereupon he saw that she was burning. He asked the appellant to extinguish tire by pouring water whereupon he poured water on her. 18. Learned trial Court relying on the evidence of this witness who has been declared hostile by the prosecution has arrived at the conclusion that the appellant was no trying to extinguish tire even though his wife was burning and this circumstance is a strong circumstance which corroborates the dying declaration of