HIGH COURT OF CHHAT‘ITSGARH, BILASPUR Division Bench: Hon'ble Shri L.C. Bhadoo & Hon'ble Shri Sunil Kumar Sinha, JJ‘. Criminal Appeal No. 319 of 2001 Chi’rra Rekha ‘ r Versus Stafe of Chha‘r‘risgar'h A . JUDGMENT Judgment for' cow Sdl- Sunil Kumar Sinha Judge W Hon'ble 5m Jusiicé L_c_ Bhadm .14 Sdl- j av w L.c.BHADoo Judge /g{ /o172008 L_/ Post for Judgment: [8/01/2008 Sd/- sUNIL KUMAR SINHA Judge 5“:0 W“)h U s Shri Ram Chandra Dubey with Shri Ramakant Pandey, counsel for the appellant. Shri Satish Gupta, Dy. Govt. Advocate forthe State/ respondent. (DIVISION BENCH) HON'BLE SHRI L.C. BHADOO & HON'BLE SHRI SUNIL KUMAR SINHA, JJ. JUDGMENT ( ($.01 .2008) Following judgment of the Court was delivered by Sunil Kurnar Sinha :l' (1) This appeal is directed against the judgment of conviction and order of sentence dated 13.3.2001 passed by the 6”‘ Additional Sessions Judge, Bilaspur in Sessions Trial No. 254/2000, whereby and whereunder after holding the accused/appellant guilty of offence punishable under Section 302 I.P.C, she has been convicted and sentenced to undergo imprisonment for life and to pay~ a fine of Rs.1,000/—, in default of payment of fine to further undergo SI. for one year. (2) The accused/appellant Chitra Rekha, along with 3 other co-occused persons namely— Manharan Kaushik; Hulasram @ Kallu and Ram Prasad were charged under Section 302 I.P.C. for committing murder of Amrica Bai. Alternatively, they were also charged under Sections 302/34 & 304B I.P.C. a“n \ HIGH COURT OF CHHA‘I’l'I56ARH BILASPUR Criminal Appeal No. 319 of 2001 Appellant Chi‘rra Rekhh, W/o Hulasram, Aged about 19 years, R/o Sargaon, P.S. Hirr'i, District Bilaspur' (C.6.) Versus Respondent State of Chhattisgarh, Through S.H.O., P.$. Hirr'i, District Bilaspur‘ (6.6.) " u f (Appeal under Section 374 (2) of Cr.P.C.) Appearance: The facts of fhe case are Tha‘r Amrica Bai (since deceased) was married To accused Manhar'an in The year 1999. 6awna was performed after one year of marriage. On 5.6.2000, an informa’rion was received by police sfafion Hirri That Amrica Bai has received burn injuries. This informaTion was given by accused Ram Prasad, who was The faTher-in-Iaw of The deceased. The informaTion was reduced inTo wriTing vide Rojnamchas’ana No. 117 daTed 5.6.2000 (Ex.—P/18 C). According To The conTenTs of Rojnamchasana, The deceased was broughT in burnT con‘diTion To The police sTaTipn in a Tempo (Three wheeler) by 3—4 persons including faTher-in—law Ram Prasad and The husbtirfd Manharan Kaushik (boTh co—accused persons) and Then, she was Taken To The hospiTaI. The informaTion was given ThaTfwhen The deceased was cooking‘food aT abouT 7.00 a.m., fire caughT her cioThes. AT ThaT Time, no one was presenT in The“house excepT ChiTra Rekha, The presenT appellanT, who was cleaning The house. The deceased was referred T'o Bilaspur HospiTal by The police for her medical examinaTion, Through consTable Ramanand Singh- 1358, where she was examined by DocTor Madhulika Sen (PW-11), who prepared her injury reporT Ex.-P/17. She also issued a memo To The concerned police sTaTion for recording The dying declaraTion of The deceased. The deceased died in The hospiTal aT abouT 11.05 hours and a merg inTimaTion was given by The hospiTal. On This informaTion, an officer of Bilaspur police sTaTion reached To The hospiTal, gave noTice Ex—P/Z To The Ponchos and prepared inquesT Ex.—P/3 on The body of The deceased. The dead body was senT for posT-morTem examinaTion under requisiTion Ex.—P/7 and ThereafTer The invesTigaTion was handed over To Hirri police, where a formal merg inTimaTion Ex.-P/14 was lodged. In furTher invesTigaTion, siTe plan Ex.—P/4 was prepared by Halka PaTwari. A jerikin of 5 liTres along wiTh kerosene oil, maTch-box, soil and oTher arTicles were seized from The place of occurrence under Ex.-P/6. The InvesTigaTing Officer also prepared a siTe plan under‘Ex.-P/8. The posT—morTem was conducT by Dr. Madhulika Sen (PW-11) and Dr. N.S. Chandel and a reporT Ex.—P/16 was prepared. According To opinion of These Two AuTopsy Surgeons, deaTh was due To shock caused by exTensive (100 %) Thermal burn. In furTher invesTigaTion, bed-head-TickeT EX.—P/15 was received by The police, in which, a communicaTion by The s»a deceased had been reduced in’ro wr‘ifing by Dr. Madhulika Sen (PW—11) fha‘r “she has been burn'r by Chi-frar‘ekha (devr'uni) by soaking her‘ wi’rh kerosene oil and Then se’n‘ing her- on fire". Based on These investigahons and af’rer‘ recording s’ratemen'rs of witnesses, a Firs’r Informa'rion Repor’r Ex.—P/9 was regisfered u/s 3043/34 I.P.C. agains‘r The accused persons on 7.6.2000. (3) AfTer compleTion of usuol invesTigaTion, The charge-sheeT was filed in The CourT of Judicial MagisTraTe FirsT Class, Bilaspur, who in Turn commiTTed The case To The Sessions Judge, éilaspur from where- iT was received on “ Transfer by The 6“ AddiTional Sessions Judge, who conducTed The Trial and convicTed ‘and s_enTenced The accused/appellanT as aforemenTioned. However, 3 co—accused persons namely- Manharan Kaushik, Hulasram @ Kallu and Ram 1 $ - i Prasad were acquiTTed. (4) The convicTion of The appellanT is mainly based upon The evidence of Dr Madhulika Sen (PW-11), who had TreaTed The deceased and had recorded l her communicaTion as a dying declaraTion in a porTion of bed—head-TickeTr (lEx.—P/15), in which iT has menTioned as follows: “According To paTienT's own sTaTemenT, she has been burnT by ChiTrarekha (devrani) by soaking her wiTh kerosene oil and Then seTTing her on fire as wiTnessed by following persons" : '. 1) Dr. Madhulika Sen Sd/— 2) P.C. Ramanand Singh‘, No. 1358 Thana Hirri $d/- 5.6.2000 ‘‘hw. (5) Learned counsel for The appellanT argued ThaT in The facTs and circumsTance of The case, such endorsemenT made by The DocTor in The bed- head-TickeT appears T9 be false and fabricaTed. He submiTTed ThaT iT appears To be made afTerThoughT wiTh an inTenTion To creaTe an evidence. Though as ll 3) Mrs. Laxmi VasTrakar, nursing sisTer, SP hospiTaI, Bilaspur (Burn UniT I/C) ' Sd/- 5.6.2000 4) Ram Kumar Pali S/o Sukhiram Pali, ’ Ward Boy, burn uniT Sd/— A W“ many as 4 persons have been menh‘oned in Ex.-P/15 fhaf They were presem‘ while recording such sfafemem‘ buf none of them have been examined except fhe Doctor. If such informm‘ion was available on 5.6.2000 ifself, if should have come in The confenfs of The FIR, which was lodged on 7.6.2000 by The S.H.O. offer compleTion of enTire invesTigaTion. NoT only This, There is no memo of seizure of This documenT and iT has noT been shown by The prosecuTion as To when iT came on record. Even The sTaTemenT of lady DocTor (Ex.-D/5) was recorded on 10.7.2‘000 i.e. almost after 35 days of the incident. Apart from The above, he also argued That The deceased had as many as 5-.6 occasions to disclose the above facts but she did not disclosed it To anybody, therefore, no reliance can be placed 6n such dying declaration said t6 have been recorded by The DocTor as it becomes suspicious and unproved. (6) On the other hand, learned counsel for the State opposed these arguments and supported the judgment of conviction and order of sentence passed by The Trial Court. (7) In order To appreciate the arguments advanced by the learned counsel for The appellant, we have perused the entire record. (8) The caserof the prosecution is that the deceased was brought in burnt condition in police station Hirri in a tempo (three wheeler), where she was accompanied by 3—4 persons including father—in-law Ram Prasad and the husband Manharan Kaushik. When the information was given that she has received burn injuries, a requisition for her medical examination was prepared by the concerned police and she was immediately sent to hospital along with constable Ramanand Singh, No. 1358. According To the injury report (Ex.-P/14), at about 10.40 a.m., she was examined by Dr. Madhulika Sen (PW-11). She has mentioned in the injury report that the lady was already admitted in burn unit of the hospital at around 8.00 a.m. and was under treatment. She found that it was a case of 100% burn and smell of kerosene was present. This injury report was handed over to constable Ramanand Singhon The same day. Nothing has been mentioned in this report by Dr. Madhulika Sen (PW-11) that the deceased was burnt by the appellant ‘ u na“ \ or The deceased made any such communica’rion To her. Anofher‘ document (again marked as Ex.—P/17) was prepared by Dr. MadhuHka Sen (PW-11) at about 10.45 a.m. on *he same day calling upon The police To make arrangement for recording The dying declara‘rion of the deceased. Admi‘r'redly she is no? fhe admil‘l‘ing Doc'lor as per ‘lhe contents of The bed-head-lickef (Ex.-P/15). The admi’rfing Docfor, who has given treatment to the deceased, has not been examined in this case. The ad‘mitting Doctor has not recorded any such history of burning by the appellant in the bed-head—ticket but the alleged statement of the deceased in form of dying declaration is said to have been recorded by Dr.‘ Madhulika Sen (PW-11). Had the statement was given to her as aboye, certainly, she would have mentioned the same in the first instance in the injury report, which she had prepared simultaneously, where she had mentioned the history and had handed over the some to the concerned police constable. Secondly‘ if such statement, in fact, was given to her, she would haVe made atleast some whisper of it in the memo issued by her to the police for making arrangement to record the dying declaration of the deceased. (9) Dr. Madhulika Sen (PW-11) has deposed that on 5.6.2000 at about 10.40 a.m., constable Ramanand Singh, No. 1358 of police station had brought Amrica Bai for her examination. The lady was already admitted in burn unit and her treatment was going on. Her pulse were low and the blood pressure was also not recordable, breathing ratewas 28 per minute, she was in full conscious condition and was responding the questions. She had received 100% burn injury and smell of kerosene was coming out from her body. She has referred her for specialist opinion while preparing the injury report (Exc— P/17). She further deposed that the deceased herself told her that Chitrarekha has burnt her after pouring kerosene oil and she has recorded her statement in presence of constable Ramanand Singh, No. 1358, nursing sister Laxmi Vastrakar, Burn Unit I/c., Ram Kumar S/o Sukhiram, resident of Pali, ward boy of the burn unit and she had also taken their signatures over the said statement. The statement was recorded in Ex.—P/15, which also bears her signature. g (10) If is important to memion This focf here ’rha’r fhough There is nam and signafur'e of as many as 4 per-sons in document EX.—P/15 but none of ‘rhem have been examined by The prosecu‘rion in The Cour‘f. Only lady Dr‘. Madhulika Singh (PW—11) has been examined. Her police case diary sfa‘remen’r has also been produced as Ex.-D/5, a perusal of which wauld show Thai if was recb‘rded on 10.7.2000 i.e. almost afTer 35 days of The incidenT. In facT, if she? had recorded such sTaTemenT of The deceased on 5.6.2000 and iT was well wiThin The knowledge of police because iT bears The signaTure of con‘sTable Ramanand Singh, her sTaTemenT would have been recorded earlier. NoT only This, iT has noT aT all shown by The prasecuTion as To how and when This documenT (Ex.-P/15) came in Therrecord of Th‘e police as admiTTedly, There is‘no Seizurememo showing ThaT such documenT was ever seized by The police during The inv‘esTigaTion. (11) AnoTher imporTanT circumsTance is The FIR. (Ex.—P/9), which was regisTered on 7.6.2000 by The InvesTigaTing Officer. The conTenTs of The FIR. would show ThaT offer compleTion of enTire invesTigaTion, iT was regisTered for offence under SecTion 3043/34 I.P.C. and noT under SecTion 302 I.P.C. IT would also show ThaT There is no menTlon in The FIR. ThaT in facT, The deceased was burnT by The appellanT Chifrarekha’ by pouring kerosene oil on her. RaTher iT comes ThaT The deceased was being TreaTed wiTh crueITy and on a parTicular day she received burn injuries inside The house and came ouT from The houSe in burning condiTion as sTaTed by various wiTnesses. If The dying declaraTion of The deceased was already recorded an 5.6.2000 before The police consTable and iT was well wiThin The knowledge of The police, Then cerTainly, iT would have been reflecfed in The F.I.R., which was regisTered on 7.6.2000 by The InvesTigaTing Officer and There would noT have been an omission of This facT, which was a mosT imporTanT and maferial facf of The prosecuTion case. Therefore, iT is clear ThaT eiTher The alleged declaraTion was noT recorded upTo 7.6.2000 or even if iT was recorded, if has noT been proved by The prosecuTion beyond reasonable doubTs so as To base The convicTion solely on iT. As sTaTed above, only The lady Docfor has been examined on This‘poinT, whose evidence is shaky and in appreciaTion enTries i ';/, n e of ’rhe alleged dying declaration and her evidence do no’r inspire ’rhe confidence of fhis Court (12) The o’rher‘ reason for not accep‘ring The dying deciar‘ation is ThaT Th deceased did no? disclose The name of The appeHan‘r on many earlier occasions. According fo fhe prosecufion case, on ‘rhe faieful day, The deceased came ou’r in burning condiTion from her in-laws house and PW-Z, Chediram me’r her, who Tried To exTinguish The fire. Chediram deposes ThaT The deceased ran away To a disTance of 200 meTres and he chased her while Trying To exTinguish The fire. Then The deceased fell down, he gave her waTer and‘asked To her, on which, The deceased disclosed ThaT her Ancha/ (a porTion of sari) caughT fire while she was preparing Tea. PW-6, Chandrika Prasad, is also a‘wiTness, who had Tried To exTinguish The fire. He deposed ThaT his house is siTuaTed jusT by The side of The house of The accused persons. AT abouT 7.00 a.m. on The faTeful day, he saw Amrica Bai in burning condiTion, when she came ouT from ’her house. She was going Towards The pond. He along wiTh Chediram (PW—2) Tried To exTinguish The fire, ThereafTer he wenT To call a Tempo for Taking The deceased To The police sTaTion. He Took The deceased To The police sTaTion in The Tempo. From The police sTaTion, she was senT To The hospiTaI. He was accompainied by Milan, Rajkumar, Ram Prasad, Manharan and Prem Kumar. Therefore, This was The firsT occasion, when The deceased could have disclosed ThaT she was puT To fire by The appellanT buT she did noT disclose This facT To These wiTnesses. The second occasion was in The Tempo when she could have disclosed iT,buT, There also she did noT disclose This facT To anyone or To Chandrika Prasad (PW-6). The Third occasion To The deceased was To disclose The facT To The police in police sTaTion, where she was Taken by The said persons and a requisiTion form was prepared by The concerned officer of The police sTaTion. There also The deceased did noT disclose This facT. The fourTh occasion for disclosure was when she was on The way To The hospiTal and was accompanied by The police consTable Ramanand Singh, who was Taking her for medical examinaTion. As sTaTed above, Ramanand Singh has noT been examined by The prosec‘uTion and iT has also noT come in The prosecuTion case £ e ‘rhm‘ The deceased had disclosed The name of fhe assailan’r fo him. The fif‘rh occasion was ’ro disclose this fact ’ro the admi‘rfing Doc‘ror', who prepared ’rhe admission-sheet Ex.-P/15 and gave Trea’rment ’ro ‘rhe deceased. Noi‘hing has been mentioned by ’rhe Docfor in The admission-sheet Even ThaT DocTor' has noT been examined by The prosecuTion. PW—6, Chandrika Prasad, has caTegor‘ically sTaTed vide Para-2 of his cross—examinaTion ThaT The deceased has noT disclosed any facT eiTher' To Them or To The DocTor in The hospiTaI while she was geTTing her TreaTmenTir Even The admiTTing DocTor has wriTTen in The hisTory ThaT iT was a suicidal case of 100% burn . lT cannoT be said Thaf‘T‘he deceased was noT in fiT menfal condiTion To disclose The name of The assailanT To anyone because according To proseciiTion iTself, on The basis of injury reporT as also The endorsemenT in The bed-head-TickeT, she was responding To The“ quesTions and she allegedly did response To DocTor Madhulika Sen (PW-11), who ulTimaTely reduced her dying declaraTion inTo wriTing. (13) In This regard, learned counsel for The appellanT referred To The decision of The Supreme CourT rendered in The maTTer of K. Ramachandra Reddz and anaf/Ter -Vs- The Pub/ft: Prasecufor: 1976 Sugreme Caurf Cases (CM) 473. In The. said case, The Apex CourT held ThaT The dying declaraTion is noT a sTaTemenT on oaTh so ThaT iTs TruTh could be TesTed by cross—examinaTion, Therefore, The courTs have To apply The sTricTesT scruTiny and The closesT circumspecTion To The sTaTemenT before acTing upon iT. 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, prompTing. or a producT of his imaginaTion. The courT musT be saTisfied ThaT The deceased was in a fiT sTaTe of mind To make The e sTaTemenT afTer The deceased had a clear opporTuniTy To observe and ’ \ idenTify his assailanTs and ThaT he was making The sTaTemenT wiThouT any \i Influence or rancour Once The courT Is saTIsfIed ThaT The dying declaraTIon Is True and volunTary iT can be sufficienT To found The conwcTion even \ \ \ 1M wiThou‘r any fur‘fher‘ corroborm‘ion. While examining'fhe dying decIaraTion of the said case, i‘r further held vide Para—1O as follows: i “From The evidence discussed above, if is clearly ‘ esfablished That al‘rhough 'fhe deceased was conscious aft fhe place of occurrence, of fhe Time when he was pu‘r on ’rhe lorry and also at fhe Time when he was broughf To The nursing home and was in a posi’rion To speak he did not disclose the names of the assailants to anybody. This conduct of the deceased can be explained only on two hypotheses, namely, either the dec'eased was not conscious, at all and was not in a position to talk to anybody ore V g that even though he was conscious he did not ~ disclose the occurrence to anybody because under the stress and strain of the assault; which took place admittedly at a time when darkness had set in $ and there was very little moonlight, he was not able _to identify the assailants. No third inference can be spelt out from the conduct of the deceased in not disclosing the names of the assailants on these three occasions". (14) In the present case, the deceased got 5-6 occasions, as stated above, but she did not disclose the name of the assailant to anybody on such occasions and thereafter, this dying declaration comes into existence, which appears to be doubtful as the same has not been proved beyond reasonable doubt the prosecution and in appreciation, as stated above, does not by inspire the confidence of the Court. Therefore, we do not find it proper to upheld the conviction resting on such dying declaration. (15) In the facts and circumstances of the case, the conviction of the appellant on above evidence cannot be sustained, the appeal deserves to be allowed. It is accordingly allowed. The conviction and sentence imposed g against the appellant are set aside. She is acquitted of the charges framed against herblt is stated that the appellant is in jail. She be set at liberty, if not required in any other case. Fe i ' t, 1L7 Sdl— Sd" Sunil Kumar - L.c.BHAD.00 S'nh, Judge i W JuqQf vatti New e