HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.590 of 2001 Ketram Verma versus The State of Chhattisgarh JUDGMENT FOR CONSIDERATION i i sw- ; R.S.SHARMA E » J‘mige Hon’ble Shri Sunil Kumar Sinha, J.: § ejvea ~ / Sd/- \ Sunil Kumar Sinha‘ Judge.’ ‘1 i I Post for /7 40—2011 2. Case of the prosecution, in brief, is as under: Padma (DW-2) is married (first) wife of the appellant. The deceased was second wife of the appellant married under churi custom. The appellant used toquarrel with the deceased. On this account, she had gone to the house of her brother Tikamchand \\ / HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon’ble Shri Justice Sunil Kumar Sinha and Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.590 of 2001 Ketram Verma, Slo Ramjiyan Verma, aged about 34 years, Occupation Agriculturist, R/o Village Kanki, P.S. Kharora, District Raipur (Chhattisgarh) Appellant versus Respondent The State of Chhattisgarh Present: Shri Abhay Tiwari, counsel for the appellant. Shri Ajay Dwivedi, Deputy Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on 19TH October, 201 1) Per Radhe Shyam Sharma, J.: This appeal is directed against the judgment dated 3-4-2001 passed by Session Judge, Raipur in Session Trial No.217/1999. By the impugned judgment, accused/appellant Ketram Verma has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2 Verma (PW-4). A Panchayat was held in the village in which the appellant was persuaded by Panchas, whereupon he brought her back to his house. On the fateful day, i.e., 8-2-1999, at about 9—9:30 P.M., he came home in drunken state and started quarreling with her. He gave beating to her with hands. She went to verandah of the house and slept there. When she was sleeping in the verandah, he brought kerosene and poured the same on her and set her on fire. She raised alarm, whereupon many peopie came there. On calling by the viii’agers, the appellant came out of the room. Pawan Kumar (PW—2) extinguished the tire. Dukaiha (PW-19) asked the deceased as to cause of the fire. She told him that the appellant set her on tire. She was taken to Medical College Hospital, Raipur. Arun Kumar Sharma, TahsildarlExecutive Magistrate (PW-21) reached the hospital and recorded dying declaration of the deceased on 9-2-1999 vide Ex.P-4. First Information Report for an offence under Section 307 IPC was registered in Police Station Kharora vide Ex.P-5. The deceased succumbed to the burn injuries on 12-2- 1999. An intimation of the death was sent to Police Station Maudahapara, where Merg intimation (Ex.P-12) was recorded. Thereafter, regular Merg intimation (EXP-6) was recorded in Police, Station Kharora. ‘The Investigating Omcer reached the hospital, gave notice (Ex.P-2) to Panchas and prepared inquest (EXP-3) on the body of the deceased. Dead body of the deceased was sent for post mortem examination to Medical College Hospital, Raipur. The post mortem was conducted by Dr. Arvind Nerulwar (PW-20), who gave his report Ex.P-18. He opined that the cause of death was syncope due to ante mortem burns. \‘x \ 3 In further investigation, pieces of semi-burnt clothes, broken garland, match-stick, earthen-pot and match-box were seized vide Ex.P-1. Eariier, the deceased was sent fcr medicai examination t0 Medical College Hospital, Raipur vide Ex.P—10. She was examined by Dr. M,P.Poojari (PW-10), who gave his report Ex.P-10. After completion of the investigation, charge-sheet was tiled against the appellant in the Court of Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Session Judge, Raipur, who conducted the trial and convicted and sentenced the ,1 appellant as mentioned above. Charge under Section 302 IPC was framed against the appellant. He abjured the guilt. He examined Krishna Kumar Verma (DW-1), Padma (DW-2) and Kejuram (DW—3) in his defence. The prosecution examined 21 witnesses in its support. 3. Shri Abhay Tiwari, learned counsel for the appellant argued that the dying declaration (Ex.P-4) recorded by Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW—21) is unreliable. According to medical evidence, the deceased had sustained 90-100% burn injuries and she was not in a position to make any statement. The appellant himself got the deceased admitted in the hospital and got her treated there. He further argued that had the appellant poured kerosene on the deceased, his clothes would also have borne smell thereof. So far as the oral dying declaration is concerned, Tikamchand Verma (PW-4.) is brother of the deceased and Dukalha (PW-19) is friend of Tikamchand Verma (PW—4), therefore, they are highly interested witnesses. Their testimonies are notvreliable. \ \ 4 Hence, the finding recorded by‘ the Iearned Session Judge convicting the appeiiant under Section 302 IPC is unsustainabie. Alternativeiy, learned counsel argued that the act of the appellant would not be punishabie under Section 302 IPC and even after admitting the entire case, he would be liable for punishment under Section 304 IPC. He placed reliance on the judgment dated 22-9-2010 passed by this Court in Criminal Appeal No.18/1993 [Arvind Sao vs. The State of Madhya Pradesh (Now State of Chhattisgarh)] and Hari Shankar vs. State of Rajasthan, 1999 Cri.L.J. 2902. 4. On the contrary, Shri Ajay Dwivedi, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, argued that the dying declaration (Ex.P—4) recorded by Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21) is duly proved and certified by Dr. lrfan Parvez Qureshi (PW-6) and is, therefore, admissible in evidence and can be based for conviction of the appellant. He further argued that the oral dying declaration made before Tikamchand Verma (PW-4) and Dukalha (PW-19) is also reliable. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the record of the x session case. The conviction of the appellant under Section 302 IPC is based on the dying declaration (Ex.P-4) recorded by Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21) as also the oral dying declaration made by the deceased before her brother Tikamchand Verma (PW-4) and Dukalha (PW-19). Admittedly, there 5 was no eye-witness of the incident. So far as dying deciaration is concerned, if an officer recording a statement was satisfied that the declarant was in a fit mental condition to make dying declaration, the said dying deciaration can be reiied upon and may be basis for conviction of the accused. 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 deciaration can be made a basis of conviction. There again can be no dispute that for basing the conviction on the dying deciaration, the dying deciaration must pass all the tests of voluntariness, the fit condition of mind of the maker of the dying deciaration and the witness not being influenced by any other factors and the truthfulness of the deciaration. The law is settied 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. Radhakrishna v. State of Karnataka, (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 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 nt mental condition to make the dying declaration looks up to \ the medical opinion? But where the eyewitnesses \ \ 6 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 certmcation 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 in para 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 dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has tobe on guard that the statement of deceased was not as a result of either tutoring, prompting or a product 7 of,imagination. The Court must be further satisfied that the deceased was in a flt state of mind after a clear opponunity to observe and identify the assaiiants. Once the Court is satisfied that the declaration was true and voluntary, undoubtediy, it can base its conviction without any further corroboration. It cannot be laid down as an absolute ‘rule of Iaw that the dying deciaration 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-4) made by the deceased before Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21 ) was reliable and can be based for conviction. 9. The deceased had stated in her dying declaration (EX.P—4) that the incident was of 8-2-1999 at about 9 P.M. Her husband Ketram (the appellant) came and told her that whatever was told by him was not being done by her. Saying this, he committed Marpeet with her with his hand. Her husband, at that time, was in a drunken state. Her husband used to harass her. After the Marpeet, she had slept on her cot. At that time, her husband came from the courtyard and poured kerosene on ‘her. Therefore, she went to verandah. There her husband set her on fire with match-stick, due to which she \got burn injuries. \ 10. Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21) deposed that on instructions of the Collector, he went to Medical College Hospital, Raipur, where the deceased was admitted as indoor patient. He recorded her dying declaration (EXP—4). He further deposed’that the deceased was fit to make statement and the medical ofiicer posted in the hospital had also certified that the deceased was able to make statement and thereafter only he recorded the dying declaration (EXP—4), which bears his signature and thumb impression of the deceased. Dr. lrfan Parvez Qureshi (PW-6) deposed that on 9-2-1999, the Executive Magistrate had come for recording the dying declaration (Ex.P-4) of the deceased and the Executive Magistrate had asked about health of the deceased for the purpose of recording her dying declaration. He further deposed that the deceased was able to make statement, therefore, he had given a certiticate to that effect. He also deposed that health of the deceased was good during and after recording of her statement as dying declaration. 11. According to Dr. lrfan Parvez Qureshi (PW-6),.Dr. M.P.Poojari (PW-10) and Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21), the deceased was mentally fit to make dying declaration (Ex.P—4). Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW- 21), who recorded the dying declaration (EXP-4), was also satisfied before recording the dying declaration (Ex.P-4) that the deceased was fit to make statement. Dr. M.P.Poojari (PW-10) deposed that deceased Latabai, wife of Ketram was brought in the hospital ‘for *\ 9 treatment. She had sustained burn injuries to the extent of 100%. He further deposed that at that time, she was fully conscious. He was not cross-examined by the defence and his evidence is unchallenged. Therefore, his evidence that the deceased was fully conscious is reliable. Therefore, the dying declaration (Ex.P—4) is reliable and can 'be based for conviction. 12. 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. Irfan Parvez Qureshi (PW-6), Dr. M.P.Poojari (PW—10) and Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21), 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. lt 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. ‘13. Now, we shall examine whether the oral dying declaration made by the deceased before Tikamchand Verma (PW-4) and Dukalha (PW-19) was reliable and admissible in evidence. 14. ln Heikrujam Chaoba Singh vs. State of Manipur, AIR 2000 SC 59, the Hon’ble Supremev‘Court held as under: “3. An oral dying declaration no doubt can form the' \\ basis of conviction, though the Courts seek for r‘ l 10 corroboration as a rule of prudence. But, before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a tit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. ....." 15. Rajendra Kumar (PW-1) deposed that on 8-2-1999, at about 9—9:30 P.M., he heard voice of Bachao Bachao from the house of the appellant. Then he went to his house. He saw there that the deceased was lying on earth and Pawan Kumar (PW-2) was extinguishing fire. Padma (DW-2), first wife of the appellant, was weeping there. Pawan Kumar (PW-2) deposed that he heard voice of Daudo Daudo. Then he went to the house of the appellant. The deceased was burning, then he extinguished the fire and the appellant came out from the room. 16. Tikamchand Verma (PW-4), who is brother of the deceased, deposed that Dukalha (PW-19) informed him that the appellant had set his sister (the deceased) on ti‘re. ln the next morning, he went to Medical College Hospital, Raipur. His sister told him there that the appellant had burnt her by pouring kerosene. Dukalha (PW-19) deposed that when he heard that the deceased was burnt, he went to her house and served her water. At that time, the appellant was sitting there. He asked therdeceased about the incident. She told him that the appellant had set her on tire. When he was returning from the house of the appellant to his house, the brother of the 11 deceased Tikamchand Verma (PW-4) met him on the way. He informed him about the incident. Krishna Kumar Verma (DW-1) deposed that it is true that he had heard that the appellant had set the deceased on fire by pouring kerosene. 17. The evidence of Tikamchand Verma (PW-4) and Dukalha (PW—19) get support from the evidence of Dr. Irfan Parvez Qureshi (PW-6), Dr. M.P.Poojari (PW—10), Arun Kumar Sharma, Tahsildar/Executive Magistrate (PW-21) and Krishna Kumar Verma - (DW-1), who deposed that the deceased was in fit mental condition when the written dying deciaration was recorded. Hence, the oral dying declaration made by the deceased before her brother Tikamchand Verma (PW—4) and Dukalha (PW-19) appears to be reliable and admissible in evidence. 18. From the above, we find that the evidence of dying declaration (Ex.P-4) and the oral dying declaration led by the prosecution is reliable, admissible in evidence and can be based for conviction of the appellant. The prosecution came-up with a dednite case that the offence was committed by the appellant and has proved its case beyond reasonable doubt. 19. We have carefully perused the evidence of Rajendra Kumar (PW-1) and Rajaram (PW-3). From the evidence of these witnesses, it appears that the relation between the appellant and the deceased was strained. We have also carefully perused the evidence of Tikamchand Verma (PW-4), Dukalha (PW-19), Dr. Irfan \\ Parvez Qureshi (PW-6): Dr- Mt'P-Poojari (PW-10) and Arun Kumar / $31 géQ‘l 12 Sharma, Tahsildar/Executive Magistrate (PW-21). From the evidence of these witnesses, it is crystai clear that it was none else but the appellant who burnt the deceased by pouring kerosene. Dr. Arvind Nerulwar (PW-20) opined that the cause of death of the deceased was syncope due to ante mortem burns. Therefore, we do not find any infirmity in the finding recorded by the learned Session Judge that it was the appeiiant who caused the death of the deceased. 20. Now, we shall examine the matter in the Iight of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 21. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penaity to be infiicted 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 Code, it has to be observed that a death must haVe been caused by him under any of the circumstances mentioned in the five Exceptions to Section \ \ .».‘«L‘v 13 300 of the Indian Penal Code, which include death caused whiie 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 Iater 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. 22. In the instant case, the appellant poured kerosene on the deceased and set her on tire, which reveals that he had an intention to commit her murder. We are of the view that in the above facts and circumstances, the act of the appellant would not be falling under any Exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide n‘ot amounting to murder. In view of the above, the case law relied upon by learned counsel for the appellant is distinguishable on facts. 23. For the foregoing reasons, we do not find any substance in the appeaLEe appeal is liable to be and is accordinglydismissed; ]W Sunil Kumar Sinhai , 5d]. / i, Sd/— Judge.) / Rs. sHARIVlA Judge g //¥ \ £- ’ s, ., i ii lv Gopal .I rl 2