^^ '^v ;:HI<3W©OURT:WIGHHAMlS©«RM.^BiiipyR: O.IB. H<!in'bleShFi)ftaieev<auBta.C.J.& Hon'bleShn Suiiil XiimarSinha^J. CRIMINAL APPEAL N0.632 o(2fiOT Sanjeet Kumar Dewangan ti. .•.t^ Vs. State of Chhattisgarh JUOGMENT For conslderation Sd/- Sunil Kumar Sinha Judge Hon'ble Shri Justice Raie&v Gupta J a^ra^ Sd/- ChiefJustice Post for Judgment :^/08/2<»8 Sd/- Sunil Kumar Sinha 'Judse ^^^ HIGH COURt OF CHHATTISQARH. BILASPUR D.B. Hon'ble Shrl Raleev Gupta. C.J. & Hon'bSe Shri SuniS S&imar Sinfta, J. CRIMINALAPPEAl. No.532of2U08 APPELLANT RESPONDENT Sanjeet Kumar Dewangan, syed about 22 years, S/o Phoo! Singh, R/o Charama, P.S. Charama, Distt. K^nker (C.G) v& State of Chhattisgarh, through Police Station Charams, Dfett. Kanker (C.G). CRIMINAL APPEAL U/S 374 t210F TH6 CODEOF Cj-aMINAL PROCEDURE Appearance: Shri Suryakant Mishra, counsel for the appellant. Shri Praveen Das, Deputy Govt. Advoeate, Tor the Stete. •tyOGMgNT (4-08.2008) Following judgment of the Court was deNvered by Sunil Kumar Sinha, J. (I) This appeal is directed against the juctgment of convlcUon and order of sentence dated 10.01.20(0 passed by the 3 Add!ti©nalSessions Judge (FTC), KanKer in Sessions Trial No. 461/2001. whereby, e appellant has been convicted under Section 302 I.P.C. anct sentenced to undergo imprisonment for life ahd to pay a tine of Rs.500/-, in delault of payment of tine, to further undergo R.l.ifor 3 months. (2) The brief facts are that the deceased namely Vimla Bai was wife of the appetlant. She was married with the appellant in February, 2001. On P6.06.2001, she received burn injuries to the extent of 90%. She was ..-\^' -....': .—^. ^: =%.. 't 'N.. fc AA 18 ^ Cr.A.No.532of2006 taken to Primaiy Mealth Centre, Charama, from where a report was sent to the concerned police statlon Uirough the vaccinator of the hospltal which was reduced into wnting vide Rosnamchasahna No. 189 dated 06.06.2001. Looking to her critical condition, her ctying declaration Ex.P-15 was recorded by the Executive Magistrate, Charama. Vimla Bai made statement that she has been bumt by her husband after pouring kerosene oll on her. The investigation was.feonducted and half burnt cloths, chtmney containing kerosene oil, match-box, and other articles were seized under EX.-P/3, P/4 & P/5. Since the condition of Vimia Bai was ^.-eriorating, she was taken to Mashih hospital, Dhamtari, where another dying declaration Ex.P/20 was recorded by another Executive Magistrate on the same day i.e. 06.06.2001. Vimla Bai succumbed to those injuries on 16.06.2001. After her death, her dead body was sent for post-mortem examlnation anct a report Ex.-P/26 was obtained. The Doctor opined that the cause of death was toxemia due to 90% burn injuries. (3) After usual investigation, charge-sheet was filed in fte Court of C.J.M., Kanker who in turn committed Uie case to the Court of Sessions, Kanker from where it was received on transfer by the 3 Additiona! Sessions Judge (FTC), Kanker who conducted the frial and convicted and sentenced the accused/appellant, as aforementioned. (4) The conviction of the appetlant is based on the two dying declarations recorded by the Executive Magistrates and oral dying ..< declarations made by the deceased b^ore Govind (PW-4), NaKul Singh (PW-5) & Kotwar-Ntleshwar (PW-6) as also toher father Ramlal (P.W.7). (5) Learned counset for the appetlant argued that ttie two dying ^declarations EX.-P/15 & P/20 as also the oral dying declaration before the £ 7 > tssswssas Cr.A.No,53Z<rf'2<)06 said three witnesses are unretiable and the learned triat Juc^e etred in faw \ in ptacing reliance on such documents ahd the orat testimonies of R/V-4 Govind, PW-5 Nakul Singh, PW-e. Kotwar-Nileshwar and P.W.7 Ramlat (ferther of the deceased). (6) On the ottier hanct, teamed State Counsel opposed these arguments and supported the judgment of the trial Court. -'.'1\ (7) We have heard the learned counset for the parties at length and have also perused the records ofthe sessions trial. (8) The principles regarding testing veracity of the dylng declaration are wett settted. Since the admissibitity of ttie dying deciaration is rKrt subject to the cross examination of the maker, a strictest scrutlny and ctosest cireumspecUon is required by ttie Court before acting upon it. In the matter of X.R Seddv andanother-Vs-The PyUro Prosecutor. AW 1976 S.C. 1994, the Apex Court observed that wrtiile great sotemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell ties 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 tutonng, prompting or a procluct of his imagination. It has funher been observed that the Court must be satisfled that the deceased was in a flt state of mind to mato the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was^-making the statement wtthout any influence or rancour. It has also been observed that once the court is satisfied that the dying declaration Is true and voluntary it can be sufficient to found the convicUon even without any further corroboration. In this very judgment, the Apex Court further observed that in order to test the 4 Cr.A.No.532of2006 reiiability of a dying declaration, the Court has to keep in view the \ ' circumstances like the opportunity of the dying man for observation, for e)simple, whether there was sufficient Ught if the crime was commiUad 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 from the officiat record of it; and the statement had been made at the earliest opportunityand was not the result oftutoring by interested parties. (9) The Apex Court in the matter of P.V. Radhakristina -Vs- State of Kamataka, AIR 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 wortd is gone, when every motlve to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The principle on which the dying dectaration is admitted in evidence is indicated in legalmaxim "nemo moriturus pivesumitur mentiri - a man will not meet his maker with a tie in his mouth." (10) If we examine the evidence of this case In tight of the above principles, it would appear that the first dying declaration was recorded on 06.06.2001 at 8.00 a.m. It was tecorded by Mr. K.K. Behar (PW-14) who was working as Tehsildar & Executive Maglstrate, Charama. He deposed ..( that on 06.06.2001 at about 8.15 a:m,, he obtained certificate of the Doctor regarding positionof the deceased to gh/e dying declaraUon and thereafter, he recorded the dying declaration. The contents of the dylng declaration as also the contents of the evidence of this witness would Iflii Cr.A.No.532of2006 Q) show that the dying declaration was recorded in question anct answer form and in answer to question No. 5, the deceased replied that her husband poured kerosene oil on her. and thereafter, set her on flre. In the cross- examination of this witness, nothing could be brought on record to show that either the dying declaration was suspicious or such dying declaratlon was not given bythe declarant. The second dying declaration (Ex.P/20) of the deceased was recorded on the same day at about 8.00 p.m. when she was admitted in Mashih Hospital, Dhamtari. This was recorded by PW-10 Mr. D.R. Margiya who was Executive Magistrate, Dhamtari. The contents of the dying declaration (Ex.-P/20) would show that this was also in question and answer form and in repty to question No.2, the deceased made declaration that at about 5.00 a.m. her husband poured kerosene oil on her and thereafter, he set her on flre by a match-stick. The Exeeutive Magistrate, before recording dying declaration of the deceased, has al»a obtained a certificate by the Doctor certifytng that the patient was in a condition to give statement. PW-10 Mr. D.R. Margiya has proved this dying declaration by giving his evidence before the biai Coun and the defence has not been able to ellcit any such circumstance which may suggest or point out towards the untruthfulness of such declaratlon recordedbyPW-10. (11) In view of the above evidence on record, it is apparent that on 06.06.2001, two dying declarations of the deceased were recorded by the two different Executive Magistrates at two sflfferent places one at Charama and the other at Dhamtari and in both the dying declaratiore, the deceased had made consistent statements about putting her to flre by her husband after pouring kerosene oil on her. Therefore, on the basts of \these two dying declarations, it is estabtished that the deceased was put Cr,A.No.532of20Q6 to fire by her husband at about 5.00 .a.m. on 06.06.2001 due to whteh she \ received 90% burn injunes and ultimately succumbed to those injuries in Mashih Hospital, Dhamtari- on 16.06.2001 during the couree of her treatment. These written dying dectaraUons are supported by the oral dying declaration of the deceased, which she made before Govind (Rff- 4), Nakul Singh (PW-5) & Koftwar Nlleshwar (PW-B) who have deposed that when they met Vimla Ba'i in the village after the incident, she categorically stated that her husband poured kerosene oil on her and set her on fire. Though Uiese witnesses have been put to lengthy cross- examinations, but nothing could be brought on record which may assail the credibility of these witnesses in relation to oral dying declaration made bythe deceased Vimla Bai before them. (12) Apart from the above evidence, there is also evidence of the tattier of the deceased namety- Ramlal (PW-7), who deposed in Para-4 of hls evidence that when he met Vimla Bai in Charama Hospital and inquired from her, she told him that her husband has set her on fire after pouring kerosene oit upon her. This version of PW-7 has also not been assaited in his cross-examination and the same remains Intact against the accused/appetlant. (13) For the foregoing discussions, we do not find any torce in the arguments advanced by the learned counsel for the a^eltant. The appeilant has rightly been convicted for committing the murder of his wife by setting her on fire after pouring keroserie oit on her. (14) There is no merit in the appeal flled by the appellant. The appeal deserves to be and is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge