/~~~\ ”H/gQ/gg/ggggg/zy/il/ §ivisiom gench f fzih ‘\ 1N mg: nah COURT OF JUD 1CATUHE Arr JabaLPUR (£«K.P.).j CR llv'xlNAL APPgAL No. 37¢ OF CREENAL A?P§AL UNDER SEZCTION 574< 22 OF GREENEL PROCEEURE CODE . « APPELLAQE a MAN‘IRAM @ I‘v‘IAI‘EGr‘U $ON OF JHAMIVERATJE, VAged about 32 years, Coak, residant of Nayapara, Police atation Cha Karhhaim , Dis trict B ilaspur . 'Vel‘SUS-a w RESPOND-:INT : THE STATB; OF lvmDHYB_ iJiQADESgH. r HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.370 of 1999 Mantmm @ Mangtu . Vs. The Statc of M.P. (now Chhattisgarh) JUDGMENT For consideration Sdl- ' 7%,“ A >g/ Sunil Kumar Sinha Judge ’" ’ ’ ’ ’(Q.7.’ZOUS "" Hon’le Shn' Justice L.C.Bhadoo (3 I (a NJ ‘3 o Sdl- x ” L.C.BHADOO U iKW Judge r r ;r m d Post for IL~ .07.2005 é! SCI/- Judge, Ar I 0. O7. 2005 HIGH COURT OF CHHATTISGARH AT BILASPUR (DNISION BENCH} } Coram : Hon’ble Shri L.C. Bhadoo 8s I-Ion’ble Shri Sunil Kumar Sinha, JJ v ‘ Criminal Appeal No.370 of 1999 ‘ 3 Mantram @ Mangtu 'i Vs. \_ ‘ Q The Staate of Madhya Pradesh (now ChhattiSgarh) . Appearance: MiSs. Dipali Pandey, counscl for the appellant. Shn' Akhil Mishra, Panel Lawyer for the State. JUDGMENT (Delivemd on H July 2005) Sum'l Kumar Sinhgz J, This appeal has been dilected against the judgment of conviction and order ofsentence dated 09.1.1999 passed by the second Addl. Sessions Judge, Bilaspur in Sessions Trial No.364/ 1998 whereby the appellant has been convicted u/s 302 of the IPC and has been sentenced to undergo life imprisonment and to pay a nne of Rs.100/-, in default of payment of tine to further undergo simple imprisonment for 15 days. (2} The brief facts are that the deceased namely Smt, Savitri dai was living along—with her husband namely Mantram (the appellant) in village Nayapara. In the intervening night of ”1f? ’ ’ ‘ y z. ‘ 14- 15m March 1998, Savitn'bai has gone to see Video Film near iher neighbors house namely Shubhdas on the occasion of % ‘Chaa'thi’ (sixth day’s ceremony after the birth) being celebrated 1n his house. She retumed back at about 3 iam. The éappellant asked her as to Why she has gone to see the video jwithout his permission. He assaulted her and thereafter With ‘a‘h‘intention to kill her, he poured kerosene oil on her and put her to hre. This matter was informed to Police Station Chaiqahata b3} one Ram Kumar Ghori at about 5 a.m. which was reduced into Writing in Rosnamcha Sanha dated 15.3. 1998 vide EX.P.5. A Dehatinalishi was also recorded at 5.35 am. on 15.3. 1998 by the Police Vide EX.P.6 when the Police visited the place of occurence. This Nalz'shi was lodged by the deceased herself in which the entire story, as above, was narrated and it was stated that the appellant put her to fire after pouring kerosene oil on her. It appeals that the deceased was admitted to Sardar Patel Hospital, Bilaspur on 15.3.1998 at about 6.40 am. She was medically examined and the burn was found to be 68%. On 17.3.1998 at 3 p.m., the Executive Magistrate recorded her dying declaration vide EXP. 13 in which also she made all allegations against her husband and declared that her husband was having some suspicion regarding her character b. and for this only, he poured keresone oil and set her on fire. She remained alive in the Hospital till 25.3. 1998 but ultimately she succumbed to the injtuies at about 6.30 am. on the said clay. The postmortem was conducted on the same day and the \ cause of death has been shown to be Septicemia due to burn a injuries. AftCr investigation, the charge sheet was filed u/ s 302 IPC and the. matter was committed to the Court of Sessions for trial. (3) The learned trial Judge after completion of the trial convicted the appellant u/‘s 302 IPC and sentenced him as ‘5‘ Kaforementioned. The conviction is based on the dying ‘tiEclai‘ation made by the deceased vide EXP. 13. The trial Court j has believed the contents of the dying declaration'holding it to begmle and correct. . £4) Leaxned counsel for the appellant, referring to the decision of Rajasthan High Couxt in the case of Shahabuddin —Vs- The State ofRajasthan 1973 Cri.L.J. 723 submits that the dying declaration is not true. It does not fulfill the test of its truthfulness and the same was not believable. The Sessions Comt committed an error of law by holding the declaration to be true and proved. She submits (that the dying declaration must be tested by independent evidence that the declarant was mentally conscious and possessed memory or intelligence, sufficient to know what he or she was doing and saying. She also submits that the Doctor has not given a cel1jf1cate before recording the dying declaration that the deceased was in a ht mental condition to give the dying declaration. The Doctor has only certihed in the dying declaration to the eh'ect “that the deceased was conscious during the entire period consumed for recording the dying declaration that is from 3.05 pm to 3.30 egre’ / p.m., on 17.3. 1998”. She submits that this is not a sutiicient certificate to hold that the deceased was mentally lit While she ; was giving the declaration. She also submits that the Doctor who has given a certiflcate regarding consciousness during the com‘se of dying declaration has not been examined in this case l and an adverse inference' should be drawn against the 1 prosecution. She also submits that the conduct of the ‘gléfpellant is 0f a gmat importance as after the said ‘ mishappening the appellant himself went to the family A p members of the deceased and has informed them about the incident. She refers to Para 9 of the decision of Division Bench of Rajasthan High Court in the matter of Sagir Khan —Vs~ State ofR_q[asthan 1999 Cril.L.J. 1705. (5} We have heard learned counsel for the appellant as well as the counsel for the State at length and have also perused the records of the case. The principles regarding testing veracity of the dying declaration are well settled. Since the admissibility of the dying declalation 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. Ready and another —us- The Public Prosecutor, Am 1976 S.C. 1994, the Apex Court observed t that while great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, -S, ‘ prompu'ng or a product of his imagination, Ithas further been ébserved that the Caurt must be 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 ihf1uel1ce or rancour. It has also been observed that once the oo‘tlx‘t is satisfied that the dying declaian'on is true and voluntaly it can be sunicient to found the conviction even a without any further corroboration. In this very judgment, the Apex Court further observed that in order to test the reliability of a dying declaration, the Court has to keep in View the circumstances like the opportunity of the dying man for observation, for example, Whether there was sufficient light if the crime was committed at night; whether the capacity of the\ man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart x from the ofncial record 0f it; and the statement had been made at the earliest opportunity and’was not the result of tutoring by interested parties. (63 The Apex Court in the matter of RV. Radhakrishna —vs- State of Karnataka, Am 2003 S.C. 2859 held that the general principle on which this spices of evidence is admitted is that they are declarations made in extremity, when the. party is at the point of death and when every hope of this world is gone, [1‘ @ when evely motiVE to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The principle on which the dying declarau'on is admitted in evidence is indicated in legal maxim “nemo moriturus proesumitur mentiri — a manyvill not meet his maker with a lie in his mouth.” Ta In the background of above principles, if we examine the ‘ reliability of the dying declaration, first of all, it has to be ‘ a a decided as to‘whether the deelaxant was in a tit state of mind to make the dying declaiation or not? For this puipose, if we look into the dying declaration (EX.P.13) it: Would be clear that the dying declaration was recorded by the Executive Magistrate on 17.3. 1998 in between 3.05 p.111. to 3.30 pm. On the left‘site at the bottom of the said document, a certification has been given by one Dr.R.Jeetpure at 3.30 p.111. by making an endorsement ‘that the declarant was conscious during the entire period consumed for recording dying declaran'on i.e., 3.05 — 3.30 p.111. Learned counsel argues that though the certificate indicates i that the deceased was through out conscious, but it does not i indicate that she was mentally fit to give the dying declaration, therefore, it cannot be said that the deceased was in a nt state Q of mind to make the decimation. This point is to be tested in the light 0f Constitutional Bench decision. of the ApeX‘Court rendered in a matter of Laxman -Vs- State OK Maharashtra {2002i 6 SCC 710, This was a reference made to the Apex Court in which almost a similar question has cropped up as to whether the certincate of Doctor to the eEect that the patient is ” 14¢ av ‘~ t/\f av @9 conscious and there was no certification that the patient was in fit state of mind at the time of making the declaration makes the declaraa'on unacceptable and the subjective satisfaction of 1 the Magistrate recording the dying declaration that injured was in a fit state of mind at the‘time of making declaration cannot be relied on, is the correct enunciation of law ? The apex Court Eiter considering the entire matter held that normally, the Court in order to satiety whether the deceased was in a tit j mehtal 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 certification of the doctor as to the iitness 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 C! / ~ \x also been stated that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a tit state of mind. Where it is proved by f i suffice provided the indication is positive and definite. It has ’ i the tostimony of the Magistrate that the declarant was ht 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 voluntaty and “tifuthiill nature of the declaration can be established otherwise. The apex Court replied the reference in terms that “In the absence a of medical . . certification . . that the. injured . . was 1n . a fit ‘ state of mind at the timC of making declaration, it would be vely much risky to accept the subjective satisfaction of a i Magistrate who opined that the injured was in a fit state of mind at the time of making declaration”, is not correct enuncian'on of law. , yr . ._ < (8} In View of the above decision of the Apex Court, we hold that a certification of the Doctor to this effect that the patient was conscious and not to this effect that the patient was in a tit state of mind to make a dying declaration would make no difference in the matter if the dying declaration is proved otherwise in accordance with law and is ultimately held to be voluntaiy and truthtiil. Now if we see the dying declaration on its face it would appear that it has been recorded in a question and answer form. The Magistrate has put up one introductory question about name etc and a positive answer has been recorded in the language of the declarant who deposes her J name with the name of the husband, her age, occupation and @ . x ‘ i -9r place of residBnce alongwith the police station in the spec$ed l manner. We fmd that on the basis of record all these particulars are correct. After this a second question has been 3 asked which is in relation to the incident which took place on 15.3.1998 and the deceased has categorically replied that the V 1 1 1 husband on the suspicion of her character, poured Kerosene bil on her and thereafter put her to hre. The Executive ‘ Magistrate has been examined as P.W.9. He has also stated in 111; evidence “that before recording the dying declaration, he got ‘ the declarant examined by the Doctor and when the doctor certified that the patient was in a fit mental condition to think, understand and speak, then only, he recorded the dying declaration. There has been no cross examination of this Witness regarding the mental htness etc., of the deceased and only one suggesn'on has been put to him that the said dying declaration was recorded after asking the relatives of the deceased. It appears to us that on Being called by the Police and after being satished about the tit mental condition of the deceased with the assistance of the Doctor and after putting introductory queStion about the identification etc., the Executive Magistrate has recorded this dying declaration after subjective satisfaction which shows that the declarant was in a tit mental condition to give such a declaration and the arguments that the deceased was not in a fit mental condition cannot be accepted. -lo— (9) Now coming to the next quEstion rEgarding non- } exeunination of ths doctor who gave the certification on the dying declaration, the judgment of the Apex Court rendered in the matter of Shanmggam @ Kulandaivelu ~Vs- State 0f Tamilnadu AIR 2003 S.C. 209 is referable in which the Apex Court has held that when the dying declaration was recorded 3 ‘after satisfaction of the Magistrate regarding consciousnese of s the deceased and his position to make the statement and the j Ddctor also ‘made an endorsement on the dying declaration about the consciousness of the patient, the mere fact that the a doctor in whose piesence the dying declaration was recorded was not examined does not aifect the evidenciaiy value to be attached to the dying declaration. We also hold that the non- exatniuation of the doctor who gave certincate on the dying declaration will make no edect on the evidenciaiy value of dying declaration if it is otlieiwise proved to be true and trustworthy on the basis of statement of the Executive Magistrate and on the basis of other supporting circumstances t in this case. O. (10) Now we come to the quesh'on of possibility of tutoring of the deceased and also the other circumstances on which the reliability of,the dying declaration can be tested. lfwe examine the record, it would appear that just after the incident, at 5 a.m. on 15.3. 1998 a report of this mishappening was given to the Police Station by one Ramkumar. This report was reduced into writing in Rosnamcha Sanka No.514 dated 15.3.1998 /// / I» x \{ 7) 4v which has been proved as EX.P.5. The contents of Scmha also support the stOIy of the prosecution to the effect of burning the deceased by the appellant. This was the first report With the Police which ultimately supports the dying declaration. Not only this, a Dehatz' Nai’ishz' was also recorded on the same day at about 5.35 am. vide EX. P-6 when the Police went to the *6fmt. This Nalishi was lodged by the deceased herself in which the deceased made almost the same allegations against the apiaellant. This further colroborates the contents of the dying ‘ declaration. It appears 111st Dehaiz' Naiishz' was recorded before Ramkumar (P.W.4) who is the neighbor of the deceased. He has categorically stated in Para 2 of his evidence that the deceased has lodged the report making allegations against her husband to the extent of causing burn injuries to her after pouring Kerosene oil on her and such statement was recorded by the police before him. He has also stated that the deceased had put thumb impression on the said statement and has further categorically stated that the deceased was fully conscious while giving this statement of Rosnamcha Sanka EX.P.6. In fact, he is an eyewitness of lodging of this Rosnamcha Sanha by the deceased to the Police on 15-3-1998 at 5.35 am. In our opinion, this was the earliest opportunity to the deceased to make her statement before the Police and that too in presence of witness Ramktmiar (P.W.4) who has categorically stated that the deceased was fully consciouswhile making this statement that her husband put her to fire after pouring Kerosene Oil on her. It is very important to mention @ . —'?’_ this fact here that this Witness Ramkumar (P.W.4) has not bcen ‘ cross-examined by the defence on any point against his said version and surprismgly his cross examination has been marked as ‘NIL’. 111 the facts and circumstances as mentioned above, the 1 - ‘ question of tutoring the deceased does not arise. There was no ‘oépor‘tunity with the relatives of the deceased to tutor her because she has made her statement to the police at the earliest opportunity on the basis of which Dehati Nalishi was ‘ recorded at about 5.35 am. on the same day. This statement is almost identical to the statement made in the dying declaration on 17.3. 1998 and also to the contents of first hand information to the police vide Rosnamcha Sanha dated 15.3.1998 which was recorded at 5.00 a.m. In the facts and circumstances, since all the statements are identical and the earlier statements were recorded in the shortest time, we cannot say that there was any Chance of tutoring the deceased § Vex« 41$ for making any false dying declaration on 17.3. 1998. x (11§ On the basis of above facts and circumstances and also on the basis of the coxroborative pieces of evidence i.e., / Rosnamcha Sanha (EX.P.5) and the Dehaii Naiishi (EX.P.6) We are of the opinion that the dying declaration is trustworthy to base conviction on it. The certiflcate of the doctor to the etl‘ect that the deceased was conscious while recording the dying declaration and not to the effect that the deceased was in a ht mental condition to give the dying declaration and further the -13- non examination of th€ Doctor by the Pmsecufion makes 110 diffarence in the facts and circumstances of this particular caS6‘ (12) Now coming to the las} question about the conduct of the accused/appellant, We are of the opinion that since we have ‘h‘eld the dying declaration true and trustworthy and we are holding that the appellant was guilty of the oh‘ence punishable § u] s 302 of the IPC, the question of conduct need not be gone into by this Court. #Jn (13) In the facts and circumstances of this case, we hold that the learned Sessions Judge has rightly convicted the appellant under section 302 of the IPC believing the dying declaration EX.P.13. This appeal has no merit. The appeal fails and is dismissed. The conviction and sentence awarded to the appellant are upheld and confirmed. Sdl— Sdl— 'i " L.C.BHADOO Sunil Kumar Sinha Judge Judge |\ .7.2005 I! .07.2005