HIGH COURT OF CHHATTISGARTH, BILASPUR Criminal Appeal No.985 /2001 APPBLLANT Enesh Giri, s/o Gajendra Goswaixii, aged about 20 years, r/o Sitamaai Korba, Distt. Korba (C.G) RJBSPONDBNT Versus State of Chhattisgarh, tlirough the Distdct Magistrate, Korba, Distt. Korba (C.G). CrimiaalAooealNo.1019 /2001 APPBLLANT Maaoj Son ofAshok Kumar Gupta, aged about 19 years, r/o Sitamani Korba, Distt. Korba(C.G) RBSPONDENT Versus State of Chhattisgarh, tiirough the S.H.O., Korba, Distt. Korba(C.G). CriminalAppeal N0.1033^/2001 APPBLLANT Clihotu @ Shushil Kuiiiajt', s/o Raineshwar Gupta, agecl about 18 years, r/o Sitainaai, Korba, Distt. Korba Versus HESPONDENT State of Chhattisgarh, through fhe Distiict Magisfci-ate, Korba (C,G), Appearaixee: Shri R.P. Tripathi wifh Slui Sunil Sahu, counsel for the appellaat Enesh Giri. Shri Sharat Tiwari, Advocate, appears on behaJf of Shri Ram Kuniar Tiwari, counsel for the appeUant Maaoj. Shri H.S. Patel, counsel for the Appellaat Chhotu @ Sushil. Shri Ravmdra Agrawal, Paael Lsiwyer appears for the State ^) Crimiaal Aooeal No.12/2002 APPBLLANT RESPONDENTS The State of Chhattisgarh, Versus 1. Chhotu alias Sushil Kuniar, aged about 18 years, s/o Raineshwar Gupta/r/o Sitaiiimii, Korba (C.G), 2. Marioj, aged about 19 yeai's, s/o Ashok Kumar Gupta, r/o Sitaniaiii, Korba, (C.G). 3. Inesh Giri, aged about 20 years, s/o Gajendra Goswaini, r/o Sitamani, Korba (C.G) Appearaace: Shri Raviadra Agrawal, Paiiel Lawyer appears for the State Shri H.S. Patel, counsel for the accused respondent No.l Chliotu @ Sushil. Shri SharatTiwan, Advocate, appears on behaIfofShn Rara Kuinar Tiwari, counsel for tiie accused/respondent no.2 Maiioj, Shri R.P. Tripafhi wifh Shri Sanil Sahu, counsel for fhe Accused/respondent No.3 Enesh Gid CRIMINAL APPBALS u/s 374 (21 OP THB CODB OF CmMmAL PROCEDURE D.B.: HOrBLB.j8HRI_L,C_BHADOOa HON'BLE SHR3 SUNIL KUMAR SINHA, J, J ORALJUDGMBNT (05.11.2007) The foUowitig judginent of tlie Coiirt was passed by L.C.Bhadoo, J, (1) Crimmal Appeal No.985/2001 ffled by appeUaat Enesh Gin, Cnmiaal Appeal No. 1019/2001 filed by Maaoj, Crimmal Appeal No. 1033/2001 filed by Chhotu @ SushU Kumar and Crimmal Appeal No. 12/2002 filed by fhe State of Chhattisgarh are arisiag out offtie same judgment dated 06.10.2001 passed by tiie Ist Addl. Sessions Judge, Korba, in Sessions Trial No. 163/2001, flieretbre, tliey are beiag disposed of by ttus common judgment. By fhese r~' appeals, Uie accused appellaiits have questioned fhe legality aiid coiTectaess of tlie said judginent of coiiviction and order of sentence whereby fhe leained Addl. Sessions Judge, aiter holdiag the accused appellants guilty for commission of ftie oifence punishable under sections 450, 376(2)(g) & 302 read witii section 34 ofI.RC,, sentenced each offlie accused appellaat to undergo 7 years R.I., to pay a fiiie ofRs.500/-; 10 years R.I. , to pay a liae of Rs.500/- & imprisoninent for life aiid to pay a tio.e ofRs.500/-, ia delault of payinent of tuie aaiounts to fuitlier undergo two ixionths S.I, on each count It was directed tliat aU. tiie substaative sentences shaU run coucurreutiy, On the ofher hand, being aggrieved by tlie quaatuxn of sentences awarded by the tdal Court fhe State has also preferred appeal seekiag enhanceiiient of fhe sentence of tlie accused appellaate. (2) The case of fhe pi'osecution iii brief is that on 23.1.2001 at about 2.15 p.in., tiie accused persons had eve-teased Miss Gayatd, aged about 14 years wifh a bad iatention. When Champa Bai was sleepiiig ui her house, accused Chhotu @ Sushil Kumar caiue to her house aiid atteiapted to outrage fhe inodesty of Gayatd but Champa Bai woke up and she iaformed Kadam Siagh Thakur, who iii tum scolded accused Chhotu @ Sushil. At about 4.30 p.in,, on accouut of sonie paiN ui her stoiaach, Champa Bai alongwifh her two sBiatl children went to aiiswer fhe call of nature. She left Gayatd tiiere because she was sleepiag at tliat time. When she was at fhe river, Haiaiddun Begum came aad iafonned tiiat Gayatd is bumt at fhe residence, therefore, she returaed to her house. By fhat tbne, Gayatri was already talcen to hundred bedded hospital. At about 6 p.m. she reached hospital aad she saw Gayatri ia a bumt condition. On enquiry by her, Gayatri Biade oral dying declaration tfiat Chhotu @ Sushil alongwitli his two fiiends tied her witli cot aad after pouiiag petrol on her body, set her on fire. At about 2 a.m., m fhe night, Gayatri breatiied her last on account of buni irijuries. The infoi'mation was sent by fhe Doctor regardmg deafh of Gayatri Bai on fhe basis ofwhich, merg iatimation Ex. P.9 was recorded by the Head Constable Hetram, Chowki Rampur, P.S. City KotwaU. Champa Bai also gave intimation to P.W.12 Akhil Paiidey, Head Constable, Outpost rl::'"''::''!:'T^'l;1!^^^ Rampur, based on fhat he had recorded Ex. P.13 and the same was sent to fhe PoUce Station Kotwali, on the basis ofwhich the F.I.R, Ex.P. 16, was registered for conimission offhe offence u/s 302 read witii section 34 85 450 offhe I.P.C. The dyiag declaration of Gayatti was recorded by tihie Executive Magistrate A.K. Agrawal (P.W.8) ta hundred bedded hospital. The iaquest Ex.P.4 was prepared on the body of Gayatii. One undeiwear of accused Enesh was seized under Ex. P.1. Bei-muda of accused Chhotu @ Sushil was seized under Ex. P.2. One bumt wooden cot, the remams ofbunit clofhes aad plastic Nawar osid one piece of rope wA&Aseized under Ex. P.3. On the body of Gayatii, the post mortem was conducted by Dr.Smt. N. D. Ram (P.W.9) and Dr.A.V. Purena (P.W.19) who opiaed tliat tiie cause of deafh was shock due to 100% bums and it was hoimcidal ui nature. They prepared postmorteni report Ex. P.8. Dr.SmtN.D,Ram also exammed fhe body of Gayatd regardmg commission of rape and she prepared medical examination report Ex. P.7. When Gayatari was admitted m 100 bedded hospital, titie Doctor exammed her, prepared medical examiD.ation report Ex. P.19 and it was shown that she was conscious at fhat tiine. (3) After completion of iavestigation, the charge sheet was fUed agaiast the accused appeUaats m fhe Court of C.J.M. Korba, who ia tura cominitted fhe case to tlie Court of Sessions, Bilaspur, froni where fhe leamed Additional Sessions Judge, Korba received fhe case on taraiisfer. (4) The prosecution ia order to estabMsh the charges against the accused persons exainiaed as maay as 20 witnesses, The statenient ofthe accused persons were recorded u/s 313 Cr.P.C,, m which each of the accused denied the material appeanng agaiast hiiii and stated that fhey are iiinocent aiid have been falsely impUcated ia fhis case. (5) The leamed trial Court al'ter hearing counsel for the respective parties convicted aiid sentenced each of tiie accused as aforeiaentioned. (6) At the vexy outset, leamed counsel for fhe accused appeUaats have not disputed tlie homicidal deatli of Gayatd. More over, P.W.l Rafeeq has stated that his graiid daughter Sanno I uiformed tiiat Gayatn Ayas burat, fherefore, he went to fhat side aad saw fhat Gayatd was lyiag bumt aad his sons Nayim aiid Bhalla were extiagiiishiag fhe fire, thereafter his elder son Salim reached fhere, accused Euesh was also present fhere aad they took Gayitd to Hospital. Sirmlar is tiie evidence ofP.W.2 Nayim Khaa who has stated he saw Gayatd whUe she was buraiag aiid she was cryiag save, save and fhere afler she fell down. He extiiiguished flie fire by coveiiiig her body with a blaaket aad fhereafter poured water also. P.W.3 Aslani @ BaUa has also coiToborated fhe above evidence about fhe buniiiig of Gayatri. The above ocular evidence is con'oborated by Dr.(Siat) N.D. Raai as also Dr.A.D.Purena (P.W,19) who conducted fhe postmortem on tlie body of Gayatd and fliey have stated fhat deafh of Gayatd was on account of buni iajuiies aiid tlie deafh was hoiixicidal ia natiire. The post niortein report is Ex.P.8. Therefore, froni the above ocular aad m.edical evidence it is established fhat deafh of Gayatri was hondcidal ia nature. (7) As fai' as fhe complicity of accused persons ia criine ia question is conceraed, ia fhis case, tliere is no ociilar or direct evidence regarding fhe iavolveinent of flie accused persons ia fhe cilme. The whole case rests on tlie circiiiiistaatial evidence aad as per fhe setfled law, ia order to rest conviction of aii accused based on fhe circuinstaiitial evidence, tiie prosecution is required to estabMsh tiie foIlowHig poiats iri view of fhe decision of fhe Apex Comt rendered m fhe matter Dhanexniovi Chatterfee -Vs' Stdte of W.B. reported in iflS!9^_2»CC^22,which is quoted below: Aui a case based on circunistaiitial evidence, fhe circuiiistances froni which the conclusiou ofguilt is to be drawn have not only to be fully estabMshed but also fhat atl fhe circumstances so estabUshed should be of a conclusive nature aad consistent only wifh fhe hypofhesis of ttie guilt of the accused. Those circumstaaces should not be capable of beiag explamed by aay ofher hypothesis except fhe guilt of fhe accused aad fhe cham ofthe evidence inust be so coiaplete as not to leave aiiy reasonable ground for '^ tlie belief consistent witii tlie ianocence of fhe accused. It needs no remiiider fhat legally estabMshed circuiiistaaces aad not inerely iadignation of the court caii fonii fhe basis ofconviction and fhe niore serious the ciTme, fhe greater should be tlie care taken to scnitinize tlie evidence lest suspicion takes tlie place ofproof/' (8) In fne preserit case, fhe prosecution has tded to establish fhe crioie agaiiist tiie accused persons based on oral dyitig declaration raade by Gayatii before P.W.2 Nayim Khaa, P.W,3 Aslam @ Balla, P.W.5 Mohmmad Safi @ Mundal, P.W.16 Itwaii Das, fatlier of tiie deceased, P.W.18 Chainpa Bai, inofher of deceased. (9) Haviag heard leamed counsel for the parties, we have perused flie niaterial available on record as also fhe judginent of the tdal Court. (10) It is settled law fliat ui order to rest conviction based on tlie orai dyiag declaration, it is th.e duty of the court to ensure tliat tlie dymg declai'ation was voluntary, true aiid prompt aiid whex'e fhe Court tiads tiiat the oral dyiiig declaration is shaky and no expUcit reUaace caii be placed on flie same, fheu niust see fhat fhe dyiiig declaration is coiToborated in material particulars by other evidence, (11) In fhe matter of Thurukanni Pompiah and another -vs- State o/Mysore, AIR 196S S.C. 939 fhe Apex Court held that a dyiag declaration is relevaiit aiid material evidence ia tlie prosecution of fhe assailarits aiid a ti-ufliful aiid reUable dymg declaration inay foiTa tiie sole basis of conviction, even fhough it is uot coiToborated. But fiie Court raust be satisfied fhat tlie declai'ation is ti'atMul. The reUability of tiie declai'ation should be subjected to a close scratiay, consideiiiig fhat it was made in the absence oftlie accused, who had no opportunity to test its veracity by cross exammatiou. If fhe Court finds tliat tlie declaration is not whoUy reMable and a inaterial aiid iategral portion of fhe deceased's version of fhe entii'e occurrence is uutrue, tlie Court inay, iii aU the circuiiistances of fhe case, consider it unsafe to convict the accused on the basis of fhe declaration alone witliout further corroboradon. (12) In flie matter of State of Punjab -»s- Preween Kumsir^ (200S) 9 SCC 769 fhe Apex Court held that where dying declarations being iaconsistent witli each ofher as versions disclosed ui fhe two were quite different aiid role of tlie accused was difierenfly described, tliose were also not reliable. (13) In the Ught of fhe above piinciples, tf we scrutinize fhe raaterial available on fhe record, it is admitted position fhat in the first mstaace at ftie request of tlie 1.0., P.W.8 A.K. Agrawal/the Executive Magistrate cum Talisildar, Korba, recorded ftie dyiag declaration Ex. P.6 ia fhe huiidred bedded hospital, Korba at 6,45 p.ia,, iii which Gayatod raade a dyiiig declai'ation tliat she was sleepin.g in her house, she was buniirig ftierefore, she woke up she raii out of the house aiid raised cries, at ftiat tmie nobody was at her house, her niofher had gone to River, She does not know that how she caine iii contact witii fire. There was no dispute in her house wifli her parents nor fhere was aay dispute ia fhe viciaity. She has said fhat soaie one inight have set her on lire. She does not kuow who set her on tire. Her pai'ents or any other faiaily xnerabers have not set her on fire. (14) The Executive Magistrate A,K. Agrawal (P.W.8) has stated that on 21.3.2001 at about 6.45 p.m., he recorded fhe dyiag declaration of Gayatd. She stated fhat she was sleepiag ip Uie house wheu she was bumiag, she woke up arid came out of fhe house aad raised cries. The Magistrate has reproduced fhe oral dyiag declaration (Ex.P.6) giveu by fhe deceased aiid he has categorically stated fhat when he recorded fhe dyitig declai'ation of fhe Gayatri, he enquired from her as to who set her on fire, but she did uot disclose fhe name of aiiy one even ou askiag froia her niaay times. Therefore, as per fhe evidence of Executive Magistrate P.W,8 A.K. Agrawal and the dyiag declaration Ex. P.6 recorded by him, it clearly shows tiiat Gayatii was not able to tell as to who set her on fire. Now ttie question remaias about fhe oral dyiag declaration made before 5 witiiesses. P.W.2 Nayim Khaa has stated fliat on the fateful day he saw Gayatii ia bumiag condition. She was crynig aiid after waking 2-4 steps she fell down lie covered her body witii bag, fhereafter witih. a blaolcet and also poured water on her body. On askiiig fromi her, she was tafcmg fhe naine of Chhotu in ftie nieaiitiine, 50-100 persons gathered there aiid froin there tiiey took her to Dharam Hospital, Korba. As no body was ^fhere, tiiey took her to PoUce Station where Daroga recorded her stateinent and ftiereafter, she was taken to hundred bedded hospital, On enquiiy by tlie Doctor, she disclosed the name of Chhotu aad after about half aii hour fhe TahsUdar caine aad recorded her statenieut. She disclosed fhe naine of Chliotu aad two otiiers before fhe Tahsildar aad said fhat she does not know tlie name of ofher two persons. In tfae cross exainiaation, he has stated ttiat when he alongwitli liis fafher enquired from Gayatn she disclosed tiie naoie of Chhotu and she did not disclose tlie uame of aiiybody else, fliereafter they took her to ttie hospital. In para 9 he has stated fhat it is correct fhat at fhe place of incident, she did not disclose tibiat Chhotu @ Suslul Gupta and & ofhers set her on fire after tyiag on fhe cot aad pourmg peteol on her body. How this fact has been written ui her police case diary stateinent Ex. D-1, he does not kaow. His fafher Rafeeq has been examined as P.W. 1 who in para 2 ofhis evidence has categoricaUy stated fhat he did not enquire aayfhirig about bumiag troin Gayatri. Of course, later on he caoie to know fliat Clihotu @ Sushil and two ofher persons have set her on fire. He heard Uke fhat, He does not know aay fliiag more. Therefore, tlie evideuce of P.W. 1 Raleeq aad his son P.W.2 Nayini KIiaii is contradictory to each ofher for the reason tiiat P.W.2 Nayira Khan has stated tliat his fafher also reached to the spot, ia his presence only he enquired from Gayatd, she took tlie name of Chhotu aiid tiiis witoaess has not stated about two oftier persons who canie alongwifh Chhotu to set her on fire. On the contrary, Rafeeq has stated fhat noftimg was enquired from Gayatii as to how she received tlie buin iiijuries. (15) Aiiotiier witriess is P.W.3 Aslaoi @ Batlu. He has also stated that heaiing the cries, he went near fhe house of Gayatri aad saw that she was biimmg. On enquiry she disclosed tlie name of Sushil aad stated tiiat two otlier persons have also set her on iire. In fhe cross examuiation, he has stated fhat he did not see anybody settiag Gayatri on fire. He has stated fhat his police case diaiy stateinent was not recorded, ia ffae last Une of para 5 he has stated tliat whatever he has stated has stated inerely on the basis of his hearing froia others. Therefore his evidence is based on hearsay. His poMce case diary stateiaent was not recorded. Therefore, fhis witness is not of aay help to the prosecution to establish tiiat fhe deceased niade oral dying declaration before hun regardiag setting Gayatri on fire by the accused persons. P.W,5 Mohd. Safi @ Mundxil ia para 5 of his stateiaent has stated fhat Chhotu, broflier of Aiiil set her on iire aad she further stated tliat 3 per sons came togefher but iii para 14 of his cross exainiaation, he has contradicted fhe poUce case diory statenient Ex. D-2, A perusal offhe police case diary statenient Ex. D-2 shows fhat ttiis fact fhat Gayatd inade oral dynig declaration regarding settiag her on fire by Chhotu. 3 persons came does uot fmd place ia ftiis poUce case diaiy statement, tlierefore, fhis is aa improvenient before tlie Court aad fhe same caanot be reUed on. Regaidmg tiie fact fhat fhe accused persons said tliat Poddar is fheir person and titiey have bribed the police, tliey are not goiag to take aay action agaiast Iiim but ftiis tact also does not find place iii poUce case diary stateBient Ex. D-2, as such no reMaace caa be placed on ttie evidence offhis witaess. (16) P.W.16 Itwori DSLS, fatiier of fhe Gayatri Devi has stated io. his examination m chief tiiat ia tiie hospital her daughter disclosed fhat Chhotu @ Sushil, Maaoj & Enesh came aad set her on fire but ia fhe case diary statenient Ex. D-7 such stateiaent is not fliere, More over, he has also stated ftiat when he came fhere, tlie Tahsfldar was recording fhe statement of his daughter. A perusal of the poUce case diary stateinent Ex. D-7 reveals ftiat he has stated tliat when he came his wife Champa Bai disclosed that these 3 persons have set Gayatri on Sre, fherefore, it is not estabUshed fhat Gayatri made oral dyiag declaratiou regardiag iavolveinent of fhe appellants in criiae ia questiou before fhis witaess, (17) Now we are left wifh P.W.18 Champa Bai, tfae motlier deceased before whom Gayatoii said to have made oral dymg 10 ?o declai'ation. In exainiaation ia chief, she has stated tliat she enquired froin Gayatod fhen she disclosed that Chhotu, Enesh, Maaoj after committbig rape on her, tied her, poured petrol on her body aad set her on lire. This witaess has also stated fhat her daughter's stateraent was recorded by fhe Tahsildar ia the presence of Doctor and to tilieni also, she disclosed that fact but as has been mentioned earlier, P.W.8 A.K. Agrawal has categoricaUy stated fhat Gayatri gave dyiag declaration Ex.6 and ia that, Gayatri stated fhat she does not know who set her on lire, tlierefore, recording of dyiag declaration by Talisildar is adraitted by tiie prosecutiou witaesses aiid the TahsUdar has categorically recorded tiie dymg declaration Ex. P.6 given by Gayatd m which Gayatri has categoiicatly stated fhat she does not know who set her on fire. More over P.W. 18 Champa Bai iii her police case diory statenxent Ex. D-8 has stated fhat Gayatri disclosed fhat Chhotu aad two ofiiers set her on fire, she has not categoricatly taken fhe naiaes of accused Enesh aad Maaoj aad iri Ex. D-8 she has not stated that Gayatd told her tiiat fhe accused persons cominitted rape on her before setting lier on fire. Therefore, there is aii improveinent of naiiies of Maaoj aiid Enesh ia Court evidence aad tlie laother aad father botihi have categorically adinitted tliat tlie oral dyiag declaration was recorded by tlie Tahsildar, in which Gayatd has not taken tiie naine of aiiy person nor regardiag the commission of tiie rape by aiiy one on Gayatti, has been nxeutioned ia fhe dyiiig declaration. Therefore, tiiere is a uiaterial contradiction in flie evidence of prosecution witaesses before whom Gayatii stated to have made oral dymg declaration aad tiiat too atl ttiese stateinents are contradictoiy to fhe wiitten dying declai'ation inade by Gayatii before tiie Tahsildar. Merely on fhe basis of evidence of P.W.18 Champa Bai before whoiii ti.ie oral dying declaration said to have been raade does not uispire confidence offhe court because ia fhe first iastaace the oral dying declaration is iaconsistent wifh fhe dyiag declai'ation Ex. P.6 inade before the Executive Magistrate. Even fhe evidence ofP.W. 1, P.W.2 & P.W.18 wifli regard to oral dyiag declaration ui respect of fhe accused persons is contradictoiy and incousistent. Even oflier wise, fherc are ofher iolierent iafirmities ia fhe iavestigation for fhe reason tiiat P,W.12 AkhU Paadey has stated m pai'a 3 of his 11 ^ 7/ evideuce fhat on 24.1.2001 on fhe basis of fhe stateinent of fhe m.other of deceased, he registered fhe case whereas there is 210 such statement of mofh.er Champa Bai is avaUable on record. In para 4 agaia he has stated tiiat it is coirect fhat fhe stateinent of Champa Bai, raofher of deceased recorded by hiin was fhe basis of the first iafonnation report but that statexxxent is not iacluded iii tlie file. When that was fhe basis of recordiag of ftie FJ.R. aiid tiiat has not been placed on record by the prosecution fhat shows fhe Biaterial docunients have been suppressed. Therefore, ui view of tiie foregoiag discussion, there is inconsistency between tlie evidence of fhe prosecution witoesses regardiag the names of accused taken by Gayatri. ia her oral dyiag declaration, Moreover, the evidence of Champa Bai P.W.18 regai'dmg the oral dymg declaration made by Gayatri before her is not corroborated by aay other independent circuiastantial evidence on account of iafit'mities in fhe evidence of prosecution witiiesses. The prosecution has not been able to estabUsh fhe iavolvenient of tlie accused appeUaiits iii fhe cilme ia question beyond reasonable doubt As such fhe Imdmg of fhe uial court convictmg the accused persons for commission ofthe offence u/s 450, 376(2)(g) & 302 read with section 34 of I.P.C. cannot be sustahied. The conviction aiid sentence imposed agaiast fhe accused appellaats ai'e set aside. (18) In flie result, titie appeals filed by accused appeUaat Enesh Giii, Chotu @ Shshil aad Maaoj succeeds. They are allowed aiid fhe accused persons are acquitted of all fhe chai'ges. The accused persons are stated to be ia detention siiice 25.1.2001, therefore, fliey be set on Uberty forfhwifh, ifnot required ia aay oflier case. (19) Consequently, fhe State appeal bemg devoid of merit is disiuissed. Sd/- L.C, Bhadoo Judge Sd/- Sunil Kumar Sinha Judge /Rao/